Holder v. Elms Hotel Co.

• Decision Date: 21 March 1936
• Docket Number: 33230
• Citation: 92 S.W.2d 620,338 Mo. 857
• Parties: Henry Holder, Appellant, v. Elms Hotel Company, a Corporation
• Court: Missouri Supreme Court

92 S.W.2d 620

338 Mo. 857

Henry Holder, Appellant, v. Elms Hotel Company, a Corporation

No. 33230

Supreme Court of Missouri

March 21, 1936

Rehearing Overruled March 21, 1936.

Appeal from Clay Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

Agnes Mae Wilson, L. A. Warden and William A. Craven for appellant.

(1) The court erred in sustaining defendant's motion for judgment on the pleadings and refusing to recognize the rights of the plaintiff for the loss of services, companionship, and society of his wife, and expenses for medicine, drugs surgical and hospital bills, due to the negligence of the defendant. Hengelsberg v. Cushing, 61 S.W.2d 204; Baldwin v. K. C. Rys. Co., 231 S.W. 281; Reeves v. Lutz, 179 Mo.App. 61, 162 S.W. 280; May v. Western Union Tel. Co., 157 N.E. 416, 72 S.E. 1059; Selleck v. Janesville, 47 L. R. A. 691; Furnish v. Ry. Co., 102 Mo. 669; Womach v. St. Joseph, 201 Mo. 467, 100 S.W. 443; Toomey v. Wells, 280 S.W. 441, 218 Mo.App. 534; Hopkins v. Railroad Co., 33 S.W.2d 1009. (2) The Workmen's Compensation Law of Missouri (R. S. 1929, secs. 3299 et seq. and particularly sec. 3301) does not repeal or refer to the common-law rights and cause of action of plaintiff for loss of his wife's services, companionship, and society. Womach v. St. Joseph, 201 Mo. 467, 100 S.W. 443; Furnish v. Ry. Co., 102 Mo. 669; King v. Viscoloid Co., 219 Mass. 420, 106 N.E. 988; Bostic v. Workman, 224 Mo.App. 645, 31 S.W.2d 218; Roxana Petroleum Co. v. Gertrude Cope, 132 Okla. 152, 269 P. 1084; Hopkins v. Railroad Co., 33 S.W.2d 1009. (3) The Workmen's Compensation Act, Chapter 28, Revised Statutes 1929, and each and every section thereof, and the amendments thereto of the Laws 1931, pages 382 to 384, inclusive, is unconstitutional and void for the reason that it is in conflict with and in violation of Section 1, 22 and 23 of Article VI and Article III of the Constitution of Missouri in that it deprives the plaintiff of a hearing in a constitutional court. Secs. 1, 22, 23, Art. VI, Mo. Const.; Art. III, Mo. Const.; Sec. 1, Art. VI, Mo. Const., 1865; Sec. 1, Art. VI, Mo. Const., 1875; Secs. 2, 3, Amend. 1884, Mo. Const.; Sec. 5, Schedule, Art. XV, Mo. Const., 1875; Graves v. Walker, 23 S.W. 1110; Sec. 4, Schedule, Art. XV, Mo. Const.; State ex rel. v. Wilder, 198 Mo. 172; Sec. XIII, Art. VI, Mo. Const., 1865; Sec. 22, Art. VI, Mo. Const., 1875; Sec. 53, Sub. 17, Art. IV, Mo. Const., 1875; 15 C. J., sec. 27, p. 732; Bors v. Preston, 28 L.Ed. 419, 111 U.S. 252; State v. Ellis, 28 S.W.2d 365; State ex rel. v. Locker, 266 Mo. 384; State ex rel. Barrett v. May, 290 Mo. 302; 15 C. J., sec. 35; State ex rel. v. Nast, 209 Mo. 720; 7 R. C. L., secs. 70, 80; 12 C. J., sec. 260; State ex rel. v. Ryan, 182 Mo. 349; State ex rel. Railroad v. Pub. Serv. Comm., 303 Mo. 212; State ex rel. Rutledge v. Pub. Serv. Co., 289 S.W. 785; Sec. XXI, Art. VI, Mo. Const., 1865; Sec. 23, Art. VI, Mo. Const., 1875; Otis Elevator Co. v. Indus. Comm., 134 N.E. 21; Evanshoff v. State Indust. Acc. Comm., 154 P. 110; In re Willow Creek, 144 P. 514, 74 Ore. 592; Pac. Coast Cas. Co. v. Pillsbury, 153 P. 26; Western Indem. Co. v. Pillsbury, 151 P. 400; Western Metal Supply Co. v. Pillsbury, 156 P. 492; N. Y. C. Railroad Co. v. White, 243 U.S. 188, 61 L.Ed. 667, 37 S.Ct. 269; Employers' Liability Assur. Corp. v. Indus. Acc. Comm., 203 P. 96, 187 Cal. 615; Zurich General Acc. & Liability Ins. Co. v. Indus. Acc. Comm., 218 P. 563, 191 Cal. 770, certiorari denied 44 S.Ct. 230, 263 U.S. 722, 68 L.Ed. 525; Sec. 22, Art. VI, Mo. Const.; Yosemite Lbr. Co. v. Indust. Acc. Comm., 20 A. L. R. 1001; Secs. 3325, 3326, R. S. 1929; State ex rel. Kahn v. Tazwell, 59 A. L. R. 1444; State v. Gillette's Estate, 10 S.W.2d 987; 15 C. J., sec. 179, p. 856, sec. 181, p. 858; 12 C. J., sec. 260; State ex rel. v. Woodson, 161 Mo. 454; State ex rel. Rutledge v. Pub. Serv. Co., 289 S.W. 788; Ex parte French, 47 A. L. R. 693, 285 S.W. 513; Findley-Kehl Ins. Co. v. O'Connor, 256 S.W. 800; Benson v. Crowell, 38 F.2d 306, 33 F.2d 137; London, etc., Co. v. Indus. Comm., 279 U.S. 109, 49 S.Ct. 300, 73 L.Ed. 632; Watson v. Henderson, 135 S.W. 464, 98 Ark. 63; Sec. 22, Art. VI, Mo. Const.; State ex rel. Barrett v. May, 235 S.W. 124; State ex rel. York v. Locker, 266 Mo. 384. (4) The Workmen's Compensation Law of Missouri is unconstitutional and void for the reason that it is in conflict with and in violation of Section 30, Article II of the Constitution of Missouri, and Amendments V and XIV of the Constitution of the United States in that it deprives the plaintiff of his right of action and property without notice, hearing or due process of law. Sec. 30, Art. II, Mo. Const.; Amendments V, XIV, U.S. Const.; Shanklin v. Boyce, 204 S.W. 187; Hunt v. Searcy, 167 Mo. 158; Brinkerhoff-Faris Trust & Savs. Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451; Road Imp. Dist. No. 2 of Conway County v. Railroad Co., 275 F. 600; Galpin v. Page, 18 Wall. 350, 21 L.Ed. 959; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55; Jones v. Yore, 142 Mo. 39; Womach v. St. Joseph, 201 Mo. 467.

McCune, Caldwell & Downing, Lynn Webb and William R. Collinson for respondent.

(1) The court did not err in sustaining defendant's motion for judgment on the pleadings, because the Workmen's Compensation Act of Missouri, Chapter 28, Revised Statutes 1929, and Section 3301 thereof, specifically and expressly abrogated a husband's right of action for loss of services and society of his wife due to injuries compensable under the act. R. S. 1929, sec. 3301; Sharp v. Producers Produce Co., 226 Mo.App. 189, 47 S.W.2d 242; McVey v. Chesapeake & P. Co., 103 W.Va. 519, 138 S.E. 97; Hilsinger v. Zimmerman Steel Co., 193 Iowa 708, 187 N.W. 493; Novack v. Montgomery Ward, 158 Minn. 505, 198 N.W. 294; Wall v. Studebaker Corp., 219 Mich. 434, 189 N.W. 58; Buonfiglio v. Neumann & Co., 93 N. J. L. 174, 107 A. 285; Houston Pipe Line Co. v. Beasley, 49 S.W.2d 950; Treat v. Los Angeles Co., 82 Cal.App. 610, 256 P. 447. (2) The Workmen's Compensation Act, Chapter 28, Revised Statutes 1929, is not unconstitutional. (a) The Workmen's Compensation Act does not deprive the plaintiff of a hearing in a constitutional court. Oren v. Swift & Co., 330 Mo. 869, 51 S.W.2d 59; Waterman v. Bridge & Iron Works, 328 Mo. 688, 41 S.W.2d 575; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, certiorari denied 284 U.S. 649; DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; Sharp v. Producers Produce Co., 226 Mo.App. 189, 47 S.W.2d 242. (b) The Workmen's Compensation Act does not deprive the plaintiff of property in violation of the Constitution of Missouri or the Constitution of the United States, because there is no vested property right in a common-law action for damages for a future tort. Silver v. Silver, 280 U.S. 117, 74 L.Ed. 221, 65 A. L. R. 939; Arizona Employers' Liability Cases, 250 U.S. 400, 63 L.Ed. 1058, 6 A. L. R. 1537; Mountain Timber Co. v. Washington, 243 U.S. 219, 61 L.Ed. 685; Hawkins v. Bleakly, 243 U.S. 188, 61 L.Ed. 667; DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; Sharp v. Producers Produce Co., 226 Mo.App. 189, 47 S.W.2d 242; Mackin v. Detroit-Timken Co., 187 Mich. 8, 153 N.W. 49; Hilsinger v. Zimmerman Steel Co., 193 Iowa 708, 187 N.W. 493; Houston Pipe Line Co. v. Beasley, 49 S.W.2d 950; Wall v. Studebaker Corp., 219 Mich. 434, 189 N.W. 58. (3) Specific reply to portions of plaintiff's argument and comment upon authorities therein cited.

OPINION

Tipton, P. J.

In the Circuit Court of Clay County, Missouri, the appellant filed a petition alleging a common-law action for damages for loss of services, companionship and society of his wife, by reason of personal injuries sustained on October 28, 1931, while she was employed by respondent. The appellant claimed he was damaged in the sum of twenty-five thousand dollars.

Respondent's answer alleged, in substance, that the appellant's wife was an employee and the respondent an employer within the scope of the Workmen's Compensation Act (Sec. 3299 et seq., R. S. 1929); that if she was injured as alleged, such injury was by an accident arising out of and in the course of her employment; that appellant's wife had filed a claim and had been awarded compensation under the act; and that by virtue of Section 3301, no right existed in appellant to maintain an action for loss of services under the circumstances pleaded.

Appellant's reply admitted that the injury to his wife was compensable under the act and that she had filed a claim before the commission. The reply also alleged that the act did not refer to or in any manner abrogate the common-law right of action of a husband of an employee for medical expense and loss of his wife's services and society, and further alleged that if the act did take away such common-law right of action, it was unconstitutional and void because it deprived appellant of his constitutional right to a hearing before a constitutional court and deprived him of property without due process of law.

Respondent filed a motion for judgment on the pleadings, which was sustained and judgment was entered for respondent. Appellant has appealed from that judgment.

The sole question on this appeal is whether or not the husband's common-law right to recover damages for loss of the services and consortium of his wife, resulting from respondent's negligence, is lost for the reason that she received compensation under the Workmen's Compensation Law of this State. It must be conceded that, unless the Compensation Act has taken away the husband's common-law rights in that particular, the husband would be entitled to maintain this action. To uphold its position the respondent relies upon Section 3301, Revised Statutes 1929; the pertinent parts are as follows:

"If both employer and...