Blaine v. Huttig Sash & Door Co.

• Decision Date: 04 May 1937
• Docket Number: No. 23885.,23885.
• Citation: 105 S.W.2d 946
• Court: Missouri Court of Appeals
• Parties: J. BLAINE, RESPONDENT, v. HUTTIG SASH & DOOR CO., A CORPORATION, APPELLANT.

105 S.W.2d 946

J. BLAINE, RESPONDENT, v. HUTTIG SASH & DOOR CO., A CORPORATION, APPELLANT.

No. 23885.

St. Louis Court of Appeals. Missouri.

Opinion filed May 4, 1937.

Motion for Rehearing Overruled June 15, 1937.

Writ for Certiorari Denied July 30, 1937.

Appeal from the Circuit Court of the City of St. Louis. — Hon. J.W. McAfee, Judge.

REVERSED.

J. Edward Gregg and Robert L. Aronson for respondent.

(1) Plaintiff was entitled to pursue his common-law remedy for injury resulting from the negligence of his master, in view of the allegations of his petition, and because the Workmen's Compensation Commission had already held that plaintiff's injury did not arise out of his employment and therefore was not within the compensation statute. The finding of the Commission to this effect became final in the absence of an appeal, and is conclusive upon the courts, as well as the parties. [Secs. 3301 and 3342, R.S. Mo. 1929; Wors v. Tarlton. 95 S.W. (2d) 1199; Naud v. King Sewing Machine Co., 178 App. Div. 31, 164 N.Y.S. 200; Kersey v. Conrad, 30 S.W. (2d) 167; Conrad v. Youghiogheny & Ohio Coal Co., 107 Ohio St. 387, 140 N.E. 482, 36 A.L.R. 1288; Chicago, R.I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 46 Sup. Ct. 420, 70 L. Ed. 757; Memorandum Opinion of Judge McAfee, Abst. p. 90.] (2) By asserting before the Compensation Commission that plaintiff's injury did not arise out of his employment, and by persuading the Commission to so find, defendant is estopped to assert, in this proceeding, that plaintiff's injury did arise out of his employment.

William R. Schneider for appellant.

Pfitzinger v. Shell Pipe Line Corp. (Mo. App.), 46 S.W. (2d) 955, l.c. 958; Rinehart v. F.M. Stamper Co. (Mo. App.), 55 S.W. (2d) 729, l.c. 733; State ex rel. v. Trimble (Mo.), 53 S.W. (2d) 1033; Daily v. River Raisen Paper Co., 269 Mich. 443, 257 N.W. 857; Sotonyi v. Detroit City Gas Co., 251 Mich. 393, 232 N.W. 201; Section 3301, R.S. Mo. 1929; Gillmore v. Ring Const. Co. (Mo. App.). 61 S.W. (2d) 764; Kiethly v. Stone & Webster E. Corp., 226 Mo. App. 1122, 49 S.W. (2d) 296; White v. Kansas City Stock Yards, 104 Kan. 90, 117 P. 522; Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711; J.C. Hamilton Co. v. Beckl (Okla.), 49 P. (2d) 1065; General Accident Corp. v. Crowell, 76 F. (2d) 341; Stuart v. Kansas City, 102 Kan. 307, 171 P. 913; In Re Loper, 64 Ind. App. ___. 116 N.E. 324; State ex rel. Johnson Sash & Door Co. v. Dist. Court of Hemnepin Co., 140 Minn. 73, 167 N.W. 283; Twin Peaks Canning Co. v. Indus. Comm. (Utah), 196 Pac. 853. (2) Pfitzinger v. Shell Pipe Line Corp. (Mo. App.), 46 S.W. (2d) 955, l.c. 958; State ex rel. Brewen Clark Syrup Co. v. Mo. Workmen's Comp. Comm., 320 Mo. 893, 8 S.W. (2d) 897; Kersey v. Conrad (Mo. App.), 30 S.W. (2d) 167; Daily v. River Raisen Paper Co., 269 Mich. 443, 257 N.W. 857; Sotonyi v. Detroit City Gas Co., 251 Mich. 393, 232 N.W. 201; Naud v. King Sewing Machine Co., 95 Misc. (N.Y.) 676; (a) See defendant's Instruction No. 8, Abstract p. 78; 1 Second Edition Schneider on Workmen's Compensation, p. 1006; Marion Coal Co. v. Ind. Comm. (Ill.), 127 N.E. 84; Griffin v. A. Robertson & Son, 176 N.Y. App. Div. 6, N.Y.S. 313; Daily v. River Raisen Paper Co., 269 Mich. 443, 257 N.W. 857; (b) Pfitzinger v. Shell Pipe Line Co. (Mo. App.), 46 S.W. (2d) 955; Kersey v. Conrad (Mo. App.), 30 S.W. (2d) 167; Sec. 3342, R.S. Mo. 1929; Chicago, R.I. & P. Ry. Co. v. Schendel, 270 U.S. 611, 70 L. Ed. 757; (c) Daily v. River Raisen Paper Co., 269 Mich. 443, 257 N.W. 857; (d) Id. Pfitzinger v. Shell Pipe Line Co. (Mo. App.), 46 S.W. (2d) 955; Sec. 3342, R.S. Mo. 1929.

HOSTETTER, P.J.

This is a suit begun on the 17th day of January, 1931, in the circuit court of the city of St. Louis, in which plaintiff sought to recover damages on account of personal injuries alleged to have been sustained by him as a result of horseplay indulged in by one of his fellow employees, both of whom were in the employ of the defendant corporation.

Plaintiff's amended petition (being the one on which the case was tried) alleged, in substance, that the defendant was engaged at all times mentioned in the business of manufacturing articles of wood at its plant in the city of St. Louis, Missouri; that his injuries were caused by the carelessness and negligence of the defendant corporation in harboring and keeping in its employ a workman by the name of Scheer; that on the 11th day of November, 1930, plaintiff, while engaged in his duties, was shoved, nudged and tickled by said Scheer and caused to swing or jump, and thereby come in contact with machinery and parts of the floor, which resulted in serious and permanent injuries; that plaintiff's fellow workman Scheer carelessly, negligently and frivolously tickled, nudged and shoved plaintiff, directly causing him to jump, swing and fall against machinery and the building and when the defendant corporation knew, or, by the exercise of ordinary care would have known that permitting said Scheer to engage in such action would be likely to cause plaintiff to be injured; that said Scheer was habitually negligent, careless and tricky, attempting practical joking, tickling and nudging among other workmen engaged there, particularly the plaintiff, and that said Scheer knew that plaintiff was particularly sensitive to such actions and likely to become frightened or excited by reason of such conduct and likely to become injured by reason thereof and that defendant negligently and carelessly, with knowledge, or, means of knowledge, of the aforesaid facts, retained said Scheer in its employ and failed to remove him; that prior to the commencement of this suit plaintiff filed a claim on account of said injuries with the Workmen's Compensation Commission of Missouri in due time, to wit: on the 17th day of December, 1930; that upon testimony being taken the said Commission found that plaintiff sustained injuries during the course of his employment but that said injuries did not arise out of his employment; that the said finding of the Commission is binding upon the plaintiff as far as workmen's compensation is concerned and is binding upon the circuit court to the extent that the Commission has adjudged that at the time in question the injury to plaintiff did not come with the provisions of the Workmen's Compensation Law.

After describing the nature of the alleged injuries, and charging that they were caused by the negligence of Scheer and the defendant, the petition closed with a prayer for $15,000 against the defendant. To this petition defendant filed a demurrer on the ground that the petition showed on its face that plaintiff's claim is properly a claim for the Workmen's Compensation Commission under the compensation law, and, further, that the petition showed on its face that plaintiff's claim, arising out of the facts alleged therein, has been adjudicated by the Missouri Workmen's Compensation Commission in a claim in which the parties and the facts were the same as set out in the petition and is res adjudicata.

The court overruled said demurrer and defendant then filed a motion to strike from the petition the clause relating to plaintiff filing a claim with the Workmen's Compensation Commission, on the ground that the matter contained in such paragraph is surplusage and mere legal conclusions and conflicts with other allegations in the petition and is prejudicial to defendant's right to a fair and impartial trial, which motion to strike was also overruled.

Defendant, after saving exceptions to the action of the court in overruling its demurrer and its motion to strike, filed its answer and plea in abatement, which consisted, first, of a general denial, followed by an allegation charging contributory negligence on the part of the plaintiff in indulging and participating in sportive acts and horseplay in the course of and in connection with his work for the defendant and, by way of plea in abatement, alleged that the matters and things sought to be adjudicated would only be properly and legally adjudicated by the Missouri Workmen's Compensation Commission and that the matters set out in the petition and sought to be adjudicated are res adjudicata for the reason that they have heretofore been adjudicated by the Workmen's Compensation Commission of Missouri, setting out the award of the Commission as follows:

                         "Award on Hearing
                              "Accident No. E-79851
                "Employee: J. Blaine
                "Employer: Huttig Sash & Door Company
                "Date of accident: November 11, 1930.
                "Insurer: Self.
                "Place and county of accident: St. Louis,
                  Missouri.
                "Date of hearing: January 14, 1931.
                

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned Referee of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby find in favor of the above employer and insurer and against the above employee and awards no compensation for the above accident.

"For the reason that employee's injuries are not the result of the accident arising out of and in the course of his employment within the meaning of the Compensation Act, while it happened in the course of his employment there is no showing that it arose out of any connection with the duties he had to perform.

"Given at the City of Jefferson, State of Missouri, this 16th day of January, 1931."

This was followed by an allegation that no appeal was taken from said award of said Commission and that the award thereby became the final adjudication on plaintiff's claim and that the same is now res adjudicata.

Thereupon plaintiff filed a motion to strike from defendant's answer and plea in abatement the allegations setting up that the court has no jurisdiction in this cause and the further allegations in relation to the cause being barred by the doctrine of res adjudicata, which motion the court sustained,...