Hungate v. Hudson
| Decision Date | 25 March 1943 |
| Docket Number | 38274 |
| Citation | 169 S.W.2d 682 |
| Parties | HUNGATE v. HUDSON et al |
| Court | Missouri Supreme Court |
Wilbur C. Schwartz and Morton K. Lange, both of St. Louis, for appellants.
Everett Hullverson, of St. Louis, for respondent.
BARRETT, Commissioner.
In this motor vehicle personal injury action by Earl Hungate against F. B. Hudson Moving Company and Ed Kreysar, the trial court granted the plaintiff a new trial for the assigned reason that the jury's verdict for the defendants was against the weight of the evidence. On this appeal the defendants contend that the plaintiff was not entitled to recover in any event and, therefore, the court should not have sustained his motion for a new trial but should have directed a verdict for them. Specifically the question presented is whether the facts show the plaintiff's cause of action and remedy to be within the terms and provisions of the Illinois Workmen's Compensation Act, Ill.Rev.Stat 1941, c. 48, § 138 et seq., if so he is not entitled to maintain this action in Missouri or elsewhere.
Section 29 of the Illinois Workmen's Compensation Act provides that 'where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding' the compensation payable under the Act. Furthermore, when an employee comes within the Act Section 6 destroys his right to maintain an action for damages. Consequently, as to an injury governed by the Illinois Act, when the undisputed facts show that the employer, his employee and a negligent third person causing the employee's injury are all under and subject to the provisions of the Illinois Workmen's Compensation Law, the remedy provided by the Act is exclusive and the employee may not maintain a common law action for damages against the third party. McNaught v. Hines, 300 Ill. 167, 133 N.E. 53; Friebel v. Chicago City R. Co., 280 Ill. 76, 117 N.E. 467; Nega v. Chicago Railways Co., 317 Ill. 482, 148 N.E. 250, 39 A.L.R. 1057; and the notes of Illinois cases in the annotations in 19 A.L.R. 766, 768; 27 A.L.R. 493, 497; 67 A.L.R. 249, 260. Compare: Mo.R.S.A. § 3699. When the compensation law of another state so provides and is applicable to the case by reason of the presence of the facts specified our courts recognize and enforce that law. Osagera v. Schaff, 293 Mo.333, 240 S.W.124; Mitchell v. St. Louis Smelting & Refining Co., 202 Mo.App. 251, 215 S.W. 506; Mo.R.S.A. § 856; Restatement, Conflict of Laws, Secs. 378, 384, 401. However, Section 29 of the Act applies only when all the parties come within its provisions; it does not destroy the employee's common law action for damages when his injury is occasioned by the negligence of a third person not under and not subject to the Act and when that is the case the employee is not bound to elect between compensation under the Act and maintaining his action for damages. Gones v. Fisher, 286 Ill. 606, 122 N.E. 95, 19 A.L.R. 760; O'Brien v. Chicago City Ry. Co., 305 Ill. 244, 137 N.E. 214, 27 A.L.R. 479; Thornton v. Herman, 380 Ill. 341, 43 N.E.2d 934; Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N.E. 578. The plaintiff, Hungate, contends that this case falls within the latter rule, while the defendants, F. B. Hudson Moving Co. and Kreysar, contend that the facts bring the case within the former rule.
The plaintiff's petition and the evidence supporting it instance a conventional common law negligence case arising out of a collision between the plaintiff's automobile and Hudson's moving van as it was being driven by Kreysar on U. S. Highway 50 near Shattuc, Illinois. As an affirmative defense the defendants plead that both the plaintiff and his employer, L. B. Price Mercantile Company, and the defendants as well were all subject to and bound by the terms of the Illinois Compensation Law and that by reason of Sections 6 and 29 of the Act the plaintiff was not entitled to maintain this action. The plaintiff filed a reply specifically denying that Hudson had ever complied with or was subject to the provisions of the Illinois Workmen's Compensation Act and plead, therefore, that he was not entitled to assert its benefits as a defense.
The plaintiff's evidence, in so far as this issue is concerned, shows that he lives in Illinois and is a commission salesman, working out of the Marion, Illinois branch of the L. B. Price Mercantile Company. On the day of the accident he was engaged in his employment and as a result of the accident and his consequent injuries the Maryland Casualty Company, his employer's compensation insurer, hospitalized him in St. Louis and paid him eleven weeks compensation at the rate of $ 13.75 a week under the Illinois Compensation Act. The compensation claim was not completely disposed of due to Hungate's disapproval of one of the doctors, but for the purposes of this opinion we assume the evidence shows that plaintiff and his employer had complied with, were operating under and subject to the Illinois Workmen's Compensation Act.
From the defendants' evidence it appears that F. B. Hudson was engaged in the storage and moving business in Overland, Missouri, a suburb of St. Louis, under the trade name of F. B. Hudson Moving Company. On June 6, 1941, he had twelve trucks and fifteen or twenty employees, including Kreysar. He moved people's effects both locally and interstate. His right to make interstate trips in his business existed because he was doing so in 1935 and, therefore, he was not required to have a certificate of convenience and necessity for that purpose. He said Missouri was where he was registered but that he was also registered with the license and fictitious name departments of Illinois. Usually the truck involved in this accident was employed in local deliveries around St. Louis but since the shipment was small and there was a shortage of equipment he dispatched this particular truck on this trip. Kreysar was the only employee on that truck, though he had other trucks in Illinois. 'The drivers were all hired in St. Louis.'
Kreysar drove from St. Louis to Indianapolis, Indiana, where he left a dining room suite. He then delivered certain household goods in Louisville, Kentucky, where he stayed all night. He was returning to St. Louis from Louisville, Kentucky, when he was involved in a collision with Mr. Hungate's automobile near Shattuc, Illinois on U.S. Highway 50. He did hauling in and around St. Louis and St. Louis County and inside the State of Missouri as well.
The plaintiff and the defendants, through their counsel, stipulated as to the existence or nonexistence of certain facts:
'It is agreed that the defendant Hudson, on the occasion in question, was operating trucks through various states, including Illinois, from Missouri to Illinois, and into Indiana, where a delivery was made, and from Indianapolis, Indiana, to Louisville, Kentucky, where a further delivery was made, and the truck then returned, through Illinois, to St. Louis.
'That the defendant is engaged in the general moving business, and he operates trucks through various states. * * *
'That this man was not at all times employed in the State of Illinois, but was operating from his place of business in the State of Missouri, at 9500 Lackland Road, which is the office and headquarters of the defendant Hudson.
'That on the occasion in question he was carrying workmen's compensation policy No. 43832 with the Commercial Standard Insurance Company, of Ft. Worth, Texas, being issued to F. B. Hudson, Overland, Missouri, * * * where, on page one (1) of the policy, * * * is the following indemnifying agreement, indemnifying this employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed, wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada.
'It is further agreed that, on the occasion in question, the defendant Finis B. Hudson did not have such policy on file with the parties required of the Illinois Statutes, or mentioned under the Illinois statutes, and had not signified his intention of filing such a policy with such parties as set out in the Illinois Statutes.
'It is further agreed that on June the 6th, and prior thereto, the occasion of the accident in question, he had never notified the parties named in the statute of his direct intention to be bound by the Illinois Act.'
The defendants say this evidence and the fact that Hudson is engaged in a hazardous business (as defined in the Illinois Act), which makes the Act 'apply automatically' to him (Sec. 3, Illinois Workmen's Compensation Law), so conclusively proves that he was operating under and subject to the Act that the court should have directed a verdict for them since it also appears that the plaintiff and his employer were subject to and bound by the Act, as the court would have been bound to do had all the parties been residents of Illinois or the evidence had shown irrefutably that they were, in fact, all under and subject to the Act. Stevens v. Illinois Central R. R. Co., 306 Ill 370, 137 N.E. 859; Osagera v. Schaff, ...
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