General Box Co. v. Mo. Utilities Co.

• Decision Date: 20 December 1932
• Docket Number: No. 30479.,30479.
• Citation: 55 S.W.2d 442
• Parties: GENERAL BOX COMPANY v. MISSOURI UTILITIES COMPANY, Appellant.
• Court: Missouri Supreme Court

55 S.W.2d 442

GENERAL BOX COMPANY v. MISSOURI UTILITIES COMPANY, Appellant.

No. 30479.

Supreme Court of Missouri.

Division One, December 20, 1932.

Appeal from Scott Circuit Court. — Hon. Frank Kelly, Judge.

AFFIRMED AND REMANDED.

Oliver & Oliver for appellant.

(1) Section 3309, R.S. 1929, does not give an unlimited right to the employer to recover against a third party accused of negligence; it is only when that "third party is liable to the employee or to the dependents for the injury or death," and such third party is only liable when its negligence was the direct or proximate cause of the injury or death. 31 C.J. 447, 456; Stockpole v. Pac. Gas & Elec. Co., 186 Pac. 354; O'Brien v. Chicago City Railroad Co., 305 Ill. 244, 137 N.E. 214; Carlson v. Minn. St. Ry. Co., 173 N.W. 218; Fox v. Dallas Hotel Co., 240 S.W. 517; Penn. Steel Co. v. W. & B. Bridge Co., 194 Fed. 1014; Grand Rapids v. Crocker, 189 N.W. 225; Fidelity Cas. Ins. Co. v. Carpenter, 125 So. 507; Golden & Boter Transfer Co. v. Brown & Schler, 177 N.W. 202; Superior Minerals Co. v. Railroad Co., 45 S.W. (2d) 915; McKenzie v. Mo. Stables, Inc., 34 S.W. (2d) 136; U.S.F. & G. Co. v. Railroad Co., 125 Atl. 875; East St. L. Junction Railroad Co. v. Armour & Co., 247 Ill. App. 528. (2) Courts of other states have so construed similar subrogation sections of their Workmen's Compensation Acts. McGarvey v. Ind. Oil & Grease Co., 146 N.W. 896; Stockpole v. Pac. Gas & Elec. Co., 186 Pac. 354; O'Brien v. Chicago City Railroad Co., 305 Ill. 244, 137 N.E. 214; Carlson v. Minn. Street Ry. Co., 173 N.W. 218; Fox v. Dallas Hotel Co., 240 S.W. 517; Grand Rapids v. Crocker, 189 N.W. 225; Fidelity Cas. Ins. Co. v. Carpenter, 125 So. 507; Golden & Boter Transfer Co. v. Brown & Schler, 177 N.W. 202; U.S.F. & G. Co. v. Railroad Co., 125 Atl. 875; East St. L. Junction Railroad Co. v. Armour & Co., 247 Ill. App. 528. (3) Section 11 of our Workmen's Compensation Act was, at the time this suit was filed, exactly like the subrogation section of the Nebraska law. The Supreme Court of that state, in the late case of Bronder v. Otis Elevator Company, held that when the employer was "innocent of wrongdoing in connection with its employee's death," but paid the compensation due, it should be reimbursed by the "third person — the wrongdoer, whose negligence caused the loss." Bronder v. Otis Elevator Co., 237 N.W. 671. (4) The instructions of both the plaintiff employer and defendant third party in this case specifically told the jury that in order for plaintiff to recover it must be shown that the acts of the defendant were the proximate or direct cause of the death. The jury were properly and clearly instructed on that issue without the interposition of Instruction 5. If, therefore, said instruction contained any error, it was harmless. Day & Sacks v. The Travelers, 137 So. 409; McGarvey v. Ind. Oil & Grease Co., 146 N.W. 896. (5) Instruction 5 was a proper instruction. It required the jury to find that the direct cause of the death, that cause without which the death would not have occurred, was the act of plaintiff, before it could find for the defendant. The Box Company had an award against it, unappealed from, and which was therefore, in effect, a judgment. This judgment debtor, the employer, brought this suit under Section 3309, primarily on its own behalf for indemnification. The suit was only incidental and secondary as to the deceased's dependents. The Box Company would get, not only the first money, but most of the money, even if the maximum of $10,000 should be recovered. This defendant, when sued for indemnity for a judgment secured against it by its employee, had a right, under the decisions of this court, to show that it was not primarily liable, but that the employer Box Company was primarily liable, because its act was the proximate cause, the independent intervening cause, of the death. Washburn v. Laclede Gas Light Co., 202 Mo. App. 102 (affirmed by this court, 284 Mo. 181); Telephone Co. v. St. Louis, 268 Mo. 485; Rice v. White, 239 S.W. 141. (6) This is not a suit by an employee against joint tortfeasors. It is, rather, a suit by a judgment debtor (one against whom an award, unappealed from, existed) against an alleged joint tortfeasor, primarily for reimbursement. In such cases it is proper to determine which of the two are primarily liable, and that is what was done in this case, with the result that the jury found that the employer Box Company was primarily liable because its negligence was the direct and proximate cause of its employee's death. Washburn v. Laclede Gas Light Co., 202 Mo. App. 102, 284 Mo. 181; Telephone Co. v. St. Louis, 268 Mo. 485. (7) No party subject to the act is a "third party" under the act and hence cannot be sued as such. Sylcox v. Natl. Lead Co., 38 S.W. (2d) 502; Superior Minerals Co. v. Railroad Co., 45 S.W. (2d) 914; O'Brien v. Chicago City Railroad Co., 305 Ill. 244, 137 N.E. 214; Stevens v. Ill. Cent. Railroad Co., 137 N.E. 862.

Gallivan & Finch and James A. Finch, Jr., for respondent.

(1) Section 3309, R.S. 1929 (being the subrogation section of the Workmen's Compensation Act enacted by our Legislature in 1925) is an exact copy of the Nebraska law in effect at the time of the adoption of our statute and therefore the rule in this State that in construing a statute of another state adopted by this State, the construction of the statute in the foreign state before its adoption here is controlling after its adoption, applies. Sec. 3041, Compiled Statutes of Nebraska, 1922; Schott v. Continental Auto. Ins. Underwriters, 31 S.W. (2d) 7; Ball v. Mercantile Trust Co., 220 Mo. App. 1165, 297 S.W. 415; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327; State ex rel. Kemper v. Carter, 257 Mo. 52, 165 S.W. 273; Yost v. Union Pac. Ry. Co., 245 Mo. 219; State ex rel. Guion v. Miles, 210 Mo. 127. (2) The subrogation section of the Nebraska Workmen's Compensation Act was construed by courts of last resort prior to its adoption here. Graham v. City of Lincoln, 183 N.W. 569; Otis Elevator Co. v. Miller & Payne, 240 Fed. 376; Fidelity & Casualty Co. v. Cedar Valley Elec. Co., 174 N.W. 709. (3) Under Section 3309, R.S. 1929, providing that where a third person is liable to an employee or to dependents for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against third person, the fact that the employer's negligence concurred with the negligence of the third person in causing the injury is no defense and does not bar the employer's right to recover. Otis Elevator Co. v. Miller & Payne, 240 Fed. 376; Fidelity & Casualty Co. v. Cedar Valley Elec. Co., 174 N.W. 709; Graham v. City of Lincoln, 183 N.W. 569; Milosevich v. Pac. Electric Ry. Co., 230 Pac. 15. (4) Instruction 5 was erroneous because it made the concurring negligence of the employer a defense and thus nullified the subrogation section of the Compensation Act. See cases cited under Point 3. (5) The defendant, company, was a "third party" under the terms of the Act and liable to the employer if the employee could have successfully maintained a suit at common law. Langston v. Selden Breck Const. Co., 37 S.W. (2d) 474; Sylcox v. Natl. Lead Co., 38 S.W. (2d) 501. (6) The Nebraska case cited under Point 3 is not in point and the question before the court in this case was not raised or discussed.

STURGIS, C.

This is a suit under Section 3309, Revised Statutes 1929, part of the Workmen's Compensation Act, by the employer of Thomas Clark, who met his death in the course of and arising out of his employment, against defendant, an electrical company, which is alleged to have caused Clark's death through its negligence. The plaintiff was engaged in operating a factory at Illmo, Missouri, making boxes, and procured a part of its electrical power necessary to operate its machinery from the defendant, whose central plant for generating electricity was at Cape Girardeau, Missouri, the two plants being connected by high tension wires carrying electrical energy from defendant's plant to plaintiff's plant. Thomas Clark, the deceased, was in plaintiff's employ and in the course of his work came in contact with an electrical switch and circuit breaker, part of defendant's appliances for transmitting and supplying electricity to operate plaintiff's factory and machinery, and was electrocuted, dying instantly. He left surviving him his wife and four minor children, who were his dependents, and they applied for and were duly awarded, without contest, compensation under our Workmen's Compensation Act.

Thereafter, this plaintiff, as Clark's employer and liable to his dependents for compensation on account of his death, brought this action against this defendant as a third person liable on account of its negligence to such dependents of Clark for his injury and death, under said Section 3309, Revised Statutes 1929, which provides:

"When a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recovery any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation." (Italics ours.)

The petition alleges all the facts essential to make a case under this statute, inclusive of the negligence of this defendant in that the defendant company is, and was at all times hereinafter mentioned, engaged in...