Anzer v. Humes-Deal Co., No. 30731.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSturgis
Citation58 S.W.2d 962
PartiesCHRISTINA ANZER and DeBORD COMPANY, Appellants, v. HUMES-DEAL COMPANY.
Decision Date16 March 1933
Docket NumberNo. 30731.
58 S.W.2d 962
CHRISTINA ANZER and DeBORD COMPANY, Appellants,
v.
HUMES-DEAL COMPANY.
No. 30731.
Supreme Court of Missouri.
Division One, March 16, 1933.

Appeal from Circuit Court of City of St. Louis.Hon. James F. Green, Judge.

REVERSED AND REMANDED.

Stout & Spencer for appellants.

(1) Plaintiffs made a case for the jury by showing that Christina Anzer was the widow of the deceased and that this action was instituted within six months after Anzer's death; that the DeBord Company was a direct and independent contractor with the owner of the Missouri Pacific Building, and not the contractor of defendant Humes-Deal Company; that the DeBord Company had paid compensation to Mrs. Anzer and that the death of John A. Anzer was caused by the negligence of the defendant, Humes-Deal Company. McKenzie v. Mo. Stables, Inc., 34 S.W. (2d) 136; Langston v. Selden Breck Const. Co., 37 S.W. (2d) 474; Superior Minerals Co. v. Mo. Pac. Railroad, 45 S.W. (2d) 912; Otis Elevator Co. v. Miller & Payne, 240 Fed. 376; Gones v. Fisher, 286 Ill. 606; Luckey v. Railroad Co., 219 Mo. 802. (2) The employer and the deceased's widow were properly joined as plaintiffs in the action against the Humes-Deal Company, for either or both of the plaintiffs could maintain the action against the defendant. The defendant waived its right to complain of a misjoinder of plaintiffs. Sec. 700, R.S. 1929; Langston v. Selden Breck Const. Co., 37 S.W. (2d) 474; McKenzie v. Mo. Stables, Inc., 34 S.W. (2d) 136; Stanley v. Weber Imp. Co., 190 S.W. 372; Citizens Trust Co. v. Tindle, 199 S.W. 1025; Krause v. Spurgeon, 256 S.W. 1072; Sec. 774, R.S. 1929; Wilhelm v. Hersh, 50 S.W. (2d) 735; Sylcox v. National Lead Co., 38 S.W. (2d) 497. (3) The widow was not required to elect between compensation for death of her husband and an action under the Death Statute against a negligent third party for damages for the death of her husband. The widow could accept compensation and could also maintain legal action against the third party, whose negligence caused her husband's death. McKenzie v. Mo. Stables, Inc., 34 S.W. (2d) 136; Superior Minerals Co. v. Mo. Pac. Railroad, 45 S.W. (2d) 916. (4) There was sufficient evidence tending to prove the negligence of the defendant, Humes-Deal Company, in the operation of the elevator for the court to submit the case to the jury. McNairy v. Pulitzer Publishing Co., 274 S.W. 849; Scheibe v. Fruin-Colnon Contracting Co., 23 S.W. (2d) 44; Hults v. Miller, 299 S.W. 85; Dean v. Railroad Co., 97 S.W. 910; Cech v. Mallinckrodt Chemical Co., 20 S.W. (2d) 509.

Carter, Jones & Turney and George A. McNulty for respondent.

(1) Christina Anzer was not a proper party plaintiff. R.S. 1929, secs. 3302, 3304; C.J. Workmen's Compensation Acts Supplement, p. 140, sec. 168; 1 Schneider Workmen's Compensation Law (2 Ed.) secs. 44, 45; Barry v. Bay Street Ry., 222 Mass. 366, 110 N.W. 1031; Railroad Co. v. Parker, 132 N.W. (Ind.), 372; Hanke v. Railroad Co., 181 App. Div. 53, 168 N.Y. Supp. 234; Employers' Liability Ins. Corp. v. Traction, 139 N.E. 200; Travelers' Ins. Co. v. Brass Goods Mfg. Co., 239 N.Y. 273, 37 A.L.R. 827; R.S. 1929, sec. 3301 (Workmen's Compensation Law, sec. 3); R.S. 1929, sec. 3309 (Workmen's Compensation Law, sec. 11); Schott v. Continental Auto Ins. Underwriters, 31 S.W. (2d) 7; Yost v. Union Pacific, 245 Mo. 219, 149 S.W. 577; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327; O'Donnell v. Baker Ice Machine Co., 205 N.W. 561. (2) DeBord Company is not a proper party plaintiff. Sec. 698, R.S. 1929; R.S. 1929, sec. 3304 (c) (Workmen's Compensation Law, sec. 6-C); R.S. 1929, sec. 3309 (Workmen's Compensation Law, sec. 11); R.S. 1929, sec. 3325 (Workmen's Compensation Law, sec. 27); 25 R.C.L. p. 1395, sec. 78; Travelers' Ins. Co. v. Great Lakes Eng. Co., 184 Fed. 426; Mass. Bonding & Ins. Co. v. Railroad Co., 39 Cal. App. 178; Walker v. Mauro, 18 Mo. 564; Milliken-Helm Commission Co. v. Albers Commission Co., 244 Mo. 38. (3) There is a misjoinder of parties plaintiff. R.S. 1929, secs. 3262, 3263, 3264; Glass v. Beasley, 57 Mo. App. 570; 47 C.J. 56. (4) Deceased was contributorily negligent as a matter of law. Sheffer v. Schmidt, 26 S.W. (2d) 592; Phillips v. Street Railway, 260 S.W. 766.

STURGIS, C.


The plaintiff Christina Anzer is the widow of John A. Anzer, deceased, who lost his life while in the employ of the other plaintiff, DeBord Company, and they jointly brought this suit to recover damages in the sum of ten thousand dollars on account of his death caused, as charged, by the negligence of the defendant. The cause of action is primarily based on Section 3263, Revised Statutes 1929, relating to death by wrongful act, and the amount of damages recoverable is fixed, not exceeding ten thousand dollars, by Section 3264, Revised Statutes 1929, as is the person who can recover therefor, as such section is modified by the provisions of the Workmen's Compensation Act, now Section 3299, Revised Statutes 1929 et seq., which, it is claimed, gives the widow and employer a joint right of action under the facts here. The case in the trial court rode off on defendant's demurrer to the evidence, which perhaps went to the petition as well as to the evidence, and we need not state the facts in extenso. The plaintiffs, on the court sustaining the demurrer, took an involuntary nonsuit with leave to move to set the same aside, and, being unsuccessful on such motion, have appealed here.

The facts, briefly, are that John A. Anzer lost his life while working as a plumber in the erection of the Missouri Pacific Building in St. Louis. The defendant had the general contract for and general charge of the erection of that building and had erected and was operating an elevator used by the workmen in general in going up and down from one story to another in the course of their work. It is alleged that this elevator had certain negligent defects and was being negligently operated by the operator in charge when the deceased attempted to ride the same and take with him certain tools used in his work in going from a lower to a higher floor, and that while so doing he fell or was thrown from the elevator and killed by reason of these defects and the...

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3 practice notes
  • Liberty Mutual Insurance Co. v. Borsari Tank Corp., No. 117
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 20, 1957
    ...already claimed and collected compensation under the Act for the same injuries from his employer. Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962." See also, Schumacher v. Leslie, supra; McKenzie v. Missouri Stables, supra.Subrogation The Company shall be subrogated in case of any payme......
  • McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
    • United States
    • Missouri Supreme Court
    • April 13, 1959
    ...he had a right to do. General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 446; Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962, 964; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. The issues on the merits are whether Count II of McDonnell's second amended third party p......
  • Smith v. Siedhoff, No. 40254.
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1948
    ...an employee), we have held that an insurance carrier of the employer is not a necessary party. Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962. We have further ruled that an injured employee may maintain his action for personal injuries against negligent third parties without joining ei......
3 cases
  • Liberty Mutual Insurance Co. v. Borsari Tank Corp., No. 117
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 20, 1957
    ...already claimed and collected compensation under the Act for the same injuries from his employer. Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962." See also, Schumacher v. Leslie, supra; McKenzie v. Missouri Stables, supra.Subrogation The Company shall be subrogated in case of any payme......
  • McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
    • United States
    • Missouri Supreme Court
    • April 13, 1959
    ...he had a right to do. General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 446; Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962, 964; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. The issues on the merits are whether Count II of McDonnell's second amended third party p......
  • Smith v. Siedhoff, No. 40254.
    • United States
    • United States State Supreme Court of Missouri
    • March 8, 1948
    ...an employee), we have held that an insurance carrier of the employer is not a necessary party. Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962. We have further ruled that an injured employee may maintain his action for personal injuries against negligent third parties without joining ei......

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