Anzer v. Humes-Deal Co.

Citation58 S.W.2d 962
Decision Date16 March 1933
Docket NumberNo. 30731.,30731.
PartiesCHRISTINA ANZER and DeBORD COMPANY, Appellants, v. HUMES-DEAL COMPANY.
CourtUnited States State Supreme Court of Missouri

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 negligence of the operator of the elevator. It is not questioned but that the petition states a cause of action for the plaintiff, Christina Anzer, as widow of the deceased, under the statute mentioned giving a cause of action for death caused by a wrongful or negligent act, and the evidence sustains same unless it be that the deceased was guilty of contributory negligence, which is set up by the answer as a defense.

The petition further alleges that deceased, John A. Anzer, was at the time of his death in the employ of the other plaintiff, DeBord Company, an independent contractor with the owner of the building, and lost his life in the course of his employment, and thereby said DeBord Company became and is liable to pay compensation for his death under the Workmen's Compensation Act. For that reason the DeBord Company joined with the widow as plaintiff herein. The defendant's answer then sets up the fact that not only was the DeBord Company liable to pay compensation for John A. Anzer's death, but that his widow, the other plaintiff, had applied for and received an award of compensation for her husband's death amounting in the aggregate to $9834, and that same was being paid by the Hartford Accident & Indemnity Company, and that such Accident Company was the real and only party interested. The reply then disclosed that the award of compensation to the widow, plaintiff herein, was $20 per week for 484.2 weeks and that at the time of the trial of this case she had actually received $2060. There is no dispute as to any of these facts or as to any fact of the case except as to the alleged contributory negligence of the deceased.

According to a memorandum made by the learned trial judge, the demurrer was sustained on the ground that the parties plaintiff do not have a joint cause of action, the widow's cause of action, if any, being based solely on the statute covering death by wrongful act and independent of the Workmen's Compensation Act, and the DeBord Company's action, if any, being based on the provisions of the Workmen's Compensation Act, Section 3309, giving it a right of action against the negligent third party by way of subrogation. The trial judge said: "While there is authority in some states tending to support the theory of plaintiffs as to the right to sue jointly, the weight of the authority is to the contrary, and it is not believed that under the statutes of Missouri, in the absence of further legislation, such action can be maintained under our Damage Act."

In this court the defendant seeks to justify the action of the trial court on three "points and authorities," to-wit: (1) The widow, Christina Anzer, was not a proper party plaintiff; (2) The employer, DeBord Company, was not a proper party plaintiff; and (3) there is a misjoinder of parties plaintiff.

This case was disposed of in the trial court and the appeal granted here in May, 1930. In its brief filed here defendant frankly admits that the St. Louis Court of Appeals, in McKenzie v. Missouri Stables, 225 Mo. App. 64, 34 S.W. (2d) 136, and in Superior Minerals Co. v. Missouri Pacific Railroad Co. (Mo. App.), 45 S.W. (2d) 912, both decided after the appeal herein was taken, construed Section 3309, Revised Statutes 1929, of the Workmen's Compensation Act contrary to its contentions.

In the McKenzie case, supra, the court directly held that the injured employee, or his dependents in case of death, could maintain an action for damages against a negligent third person causing the injury, notwithstanding his employer was liable and actually paying him compensation under the Workmen's Compensation Act; and held, arguendo, that such employer, or both combined, could maintain such action.

This holding received approval in ...

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    • United States
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    ...the employee has 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.' The employee's rights under the Missouri Compensation Act against his employer embrace compensation for the aggravation of......
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