Brody v. Cudahy Packing Co.

• Decision Date: 06 March 1939
• Parties: LOUIS J. BRODY, RESPONDENT, v. CUDAHY PACKING COMPANY, ET AL., APPELLANTS
• Court: Kansas Court of Appeals

127 S.W.2d 7

233 Mo.App. 973

LOUIS J. BRODY, RESPONDENT, v. CUDAHY PACKING COMPANY, ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

March 6, 1939

Appeal from Jackson Circuit Court.--Hon. Allen C. Southern, Judge.

Judgment affirmed.

O. Q Claflin and Henry L. Jost for appellants.

(1) If as he avers in his petition, plaintiff was hurt whilst performing work as a slaughterer on defendant Cudahy Packing Company's premises in Kansas City, Kansas, then the Kansas Workmen's Compensation statute provides exclusive compensation to him therefor, and the court below had no jurisdiction of this action for damages. Mosely v. Empire Gas & Fuel Co., 313 Mo. 225; Knaup v. Western Coal & Mining Co. (Mo.), 114 S.W.2d 969; School District No. 46 v. Stewartsville School Dist. (Mo. App.), 110 S.W.2d 399; General Statutes of Kansas, 1935, chap. 44; Leebolt v Leeper, 128 Kans. 61; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kans. 719, 78 P.2d 868. (2) A separable controversy existed, and still exists, between plaintiff, a citizen and resident of the State of Missouri, and defendant Cudahy Packing Company, under the Constitution of the United States, Section 2, Article III, and by the 28th Section of the Judicial Code of the United States, as amended, being Section 71 of Title 28, U.S.C. A., according to Cudahy Packing Co. the right to have said separable controversy tried and determined by and in the proper United States District Court, the order of said United States District Court refusing jurisdiction and remanding the case to the contrary notwithstanding. United States Judicial Code, sec. 28, as amended, Title 28 U.S.C. A., sec. 71; Searl v. School Dist., 124 U.S. 197, 31 L.Ed. 415. (3) Plaintiff claims he was injured whilst performing the work of a slaughterer on defendant Cudahy Packing Company's packing plant in Kansas City, Kansas. Since the Kansas Workmen's Compensation Act provides exclusive compensation therefor to the plaintiff, in and by the Kansas tribunals designated in said statute, the circuit court was without jurisdiction to entertain and try and determine this cause and the judgment rendered by the court and appealed from herein is an attempt to subject defendant Cudahy Packing Company to the jurisdiction of the Missouri courts and to take and appropriate its property and rights without due process of law, in violation of Article 30, Constitution of Missouri, and the Fourteenth Amendment to the Constitution of the United States. (4) Under the evidence, it conclusively appears that the place where plaintiff sustains injuries was on ground and parts of defendant Cudahy Packing Company's premises which were withdrawn from the use of its employees, and all other persons whomsoever, and given over unto, and taken over by, and exclusively possessed, controlled and used by the United States Government, through and by its Department of Agriculture, administering its Bureau of Animal Industry, under the Acts of Congress, to-wit: Act of May 29, 1884, 23 U. S. Statutes at Large 31, Title 7, Chapter 15, U.S.C. A., and Act of March 4, 1907, 34 U. S. Statutes at Large, 1260, being Title 21, Chapter 4, U.S.C. A., and regulations of the Department of Agriculture, and to and over which premises the plaintiff had no right, and none of defendants herein were legally responsible to the plaintiff whilst he was using and in and on the same. (5) Plaintiff cannot recover on the evidence and on this record, and that their several demurrers to the evidence at the close of plaintiff's evidence, and again at the close of all the evidence should have been allowed, and judgment then and there entered in favor of defendants, and each of defendants, on the grounds and because: Hayes v. Kresge Co. (Mo. App.), 100 S.W.2d 325; Menteer v. Scalzo Fruit Co., 240 Mo. 177. (6) The court erred in refusing defendants an appeal to the Supreme Court of Missouri, as prayed, because of the Federal and Constitutional questions involved. Forsythe v. Shryack-Thom Gro. Co., 283 Mo. 49; Carr v. Mo. P. Ry. Co., 195 Mo. 214; Ducoulombier v. Baldwin (Mo. App.), 101 S.W.2d 96; Toomey v. Wichison Industrial Gas Co., 144 Kan. 535, 61 P.2d 891; Fitzpatrick v. Cumberland Glass Co. (N.J.), 39 A. 675; Taylor v. Haddonfield & T. Co. (N.J.), 46 A. 707; Paquet v. Barker, 293 N.Y.S. 983; Breeze v. City of New York, 292 N.Y.S. 716; Garthe v. Ruppert (N. Y.), 190 N.E. 643; Thiele v. McManus Ind. App., 28 N.E. 327; Waggoner v. Northrup Co. (So. Dak.), 278 N.W. 542; Collins v. Spragues Pharmacy (Nebr.), 245 N.W. 602; Chesley v. Rocheford (Nebr.), 98 N.W. 429; Coburn v. Village of Swanton (Vt.), 109 A. 855; Graham v. Pocasset Mfg. Co. (Mass.), 107 N.E. 920; Murphy v. B. & M. R. R. (Mass.), 142 N.E. 782; Coleman v. Renesh, 18 Ohio App. 177; Johnson v. United Fuel Gas Co. (W. Va.), 166 S.E. 118; Napier v. First Cong. Church (Ore.), 70 Pas. (2d) 43; Fraters v. Keeling (Calif. App.), 67 P.2d 118; Pincock v. McCoy (Idaho), 281 P. 3; Eckels v. Maher, 137 Ill.App. 45; Zoebisch v. Tarbell, 92 Mass. (10 Allen) 385; Flannigan v. Amer. Glucose Co., 11 N.Y.S. 688, l. c. 689; Stevens v. Nichols (Mass.), 29 N.E. 1150; 21 Am. & Eng. Ency. of Law (2 Ed.), 475; 33 A. L. R., page 190; 3 Shearman and Redfield on Negligence (6 Ed.), p. 1843, sec. 705; Ward v. Perrigrine, 164 Mo.App. 81, l. c. 84, 85, 148 S.W. 174; 20 R. C. L., pp. 10 and 11, sec. 7, Text 8, and page 69, sec. 60, Text 4 and 5; 3 Cooley on Torts (4 Ed.), page 195, sec. 440, citing Murphy v. B. & M. R. Co., 142 N.E. 782, 248 Mass. 78; Davis Bakery Co. v. Dozier, 124 S.E. 411, 139 Va. 628; West v. Smith & Kelley Co. (Ga.), 157 S.E. 261; Archer v. Union P. R. Co., 110 Mo.App. 349; Roe v. St. Louis Independent Packing Co., 203 Mo.App. 11; Ward v. Perrigrine Scott Kellogg, 164 Mo.App. 81, l. c. 84, 85; Toomey v. Wichison Industrial Gas Co., 144 Kans. 544, 61 P.2d 891; Foley v. H. F. Farnham (Conn.), 188 A. 708; Indian Ref. Co. v. Mobley (Ky.), 121 S.W. 657; Kruntorad v. C. R. I. & P. Ry. Co. (Nebr.), 197 N.W. 611; Vaughn v. Transit Dev. Co. (N. Y.), 118 N.E. 219; Cowart v. Mecks (Tex.), 111 S.W.2d 1105; Faris v. Hoberg (Ind.), 36 N.E. 1028.

Myer M. Rich, Isadore Rich and Mosman, Rogers, Bell & Buzard, for respondent.

(1) Plaintiff was not subject to the Kansas Workmen's Compensation Act. Kansas Workmen's Compensation Act, Secs. 44-508, R. S. Kansas; O'Brien v. Rindskopf (Mo.), 70 S.W.2d 1085; Standard Oil Co. v. Anderson, 212 U.S. 1215, 29 S.Ct. 252; Baker v. Scott County Milling Co., 20 S.W.2d 494; Warren v. American Car & Foundry Co., 38 S.W.2d 718. (2) Plaintiff was an invitee on the premises of defendant, Cudahy Packing Company. (3) Plaintiff was not injured in federal territory, and there is no federal question involved. (4) Plaintiff was not guilty of contributory negligence as a matter of law. Essenpreis v. Elliott, 37 S.W.2d 458, 51 S.W.2d 1015, 330 Mo. 959; Crawford v. Kansas City Stockyards Co., 215 Mo. 394, 114 S.W. 1057; Lanagan v. Ry. Co., 72 Mo. 392; Cox v. American Steam Laundry Co., 267 S.W. 77; Carney v. Anheuser-Busch Brewing Assn., 131 S.W. 165; Day v. Emery, Bird, Thayer Dry Goods Co., 89 S.W. 903; Barr v. City of Kansas, 105 Mo. 550, 16 S.W. 483.

OPINION

KEMP, J.

This is a suit for personal injuries alleged to have been suffered by plaintiff from falling into an uncovered chute at the plant of defendant Cudahy Packing Company, on October 30, 1936, at about five o'clock in the morning. Upon a trial of the case, respondent (hereinafter referred to as plaintiff) recovered judgment against the appellants (hereinafter referred to as defendants) in the sum of $ 5000, from which judgment the defendants have duly prosecuted this appeal. At the time of his injury, plaintiff was, and for thirty years prior thereto had been, following the occupation or profession of a Kosher slaughterer. For eighteen years prior to the herein described injury, plaintiff had been employed in that capacity by the Kosher Star Butchers Association. His duties under said employment required plaintiff to go to the various packing plants in Greater Kansas City, as from time to time directed, and there slaughter cattle and sheep, and once in every seventy-two hours following the slaughtering of an animal, washing the forequarters thereof for the period that the meat remained at the packing plant, all in accordance with the recognized practice of the Orthodox Jewish faith. He was also required to go to the shops and stores of members of the Kosher Star Butchers Association for the purpose of slaughtering poultry there.

From the time he began to slaughter animals at the plant of defendant Cudahy Packing Company, in 1935, he went there, usually, once a week for the purpose of slaughtering animals, and on the weeks that he did slaughtering at said plant, he usually went there twice a week for the purpose of washing meat hanging in the plant cooler and reserved for the Kosher trade, in accordance with Orthodox Jewish practice. For all of the work he did at the various packing plants and Kosher shops, he was paid by the Kosher Star Butchers Association, by a single weekly check, a salary of $ 67 per week, $ 55 of which was for the slaughtering of animals and poultry, and $ 12 per week for the washing of the meat.

The Kosher shopkeepers, who are members of the Kosher Star Butchers Association, pay dues to the association to provide funds with which to operate the business of the association. It further appears that the defendant company made certain payments to the association, but the record is silent as to the amounts and as to times of these payments, and as to the purpose for which they were made. So far as the record discloses, the payments made by the packing company to the association bore no direct relationship either to the salary paid to plaintiff by...