Jones v. F. W. Woolworth Co.

• Decision Date: 06 December 1938
• Parties: JENNIE JONES, APEELLANT, v. F. W. WOOLWORTH COMPANY, A CORPORATION, AND TRAVELERS INSURANCE COMPANY, A CORPORATION, RESPONDENT
• Court: Missouri Court of Appeals

122 S.W.2d 41

234 Mo.App. 1189

JENNIE JONES, APEELLANT, v. F. W. WOOLWORTH COMPANY, A CORPORATION, AND TRAVELERS INSURANCE COMPANY, A CORPORATION, RESPONDENT

Court of Appeals of Missouri, St. Louis

December 6, 1938

Motion for rehearing overruled December 20, 1940.

Appeal from the Circuit Court of City of St. Louis.--Hon. Arthur H Bader, Judge.

AFFIRMED.

Order affirmed and cause remanded.

H. C Whitehill and George F. Johnson for appellant.

(1) Since defendant claims as a defense the applicability of the workmen's compensation act, it has the burden to both plead and prove itself within the terms of the act. Kemper v. Gluck, 39 S.W.2d 330; Warren v American car and Foundry Co., 38 S.W.2d 718; Span v Coal and Mining Co., 16 S.W.2d 190; Kearley v. St. Louis Car Co., 111 S.W.2d 976. (2) Although the action was one at common law, the parties had a lawful right to agree that plaintiff's damages should be measured by the provisions of the workmen's compensation act. State ex rel. Ebert v. Trimble, et al., 63 S.W.2d 83. (3) Under the Missouri Workmen's Compensation Act both the employer and its insurer shall be parties to any agreement in order to invoke the jurisdiction of the Missouri Workmen's Compensation Commission. Secs. 3325, 3333, R. S. Mo., 1929; DeTienne v. Wellsville Fire Brick Co., 70 S.W.2d 369. (4) Where an order sustaining a motion for a new trial specifies one or more grounds of the motion, the court is presumed to have overruled all other grounds in the motion. Arkla Lbr. & Mfg. Co. v. Henry Quellmalz Lbr. & Mfg. Co., 252 S.W. 961; Cole v. St. Louis-San Francisco Ry. Co., 61 S.W.2d 344; Dietrich v. Cape Brewery & Ice Co., 286 S.W. 38; Kersten v. Hines, 223 S.W. 589. (5) Want of consideration is an affirmative defense and cannot be shown on general denial. 13 C. J., 740, 741; Sec. 2958, R. S. Mo., 1929; Von Schleinitz v. North Hotel Co. et al., 23 S.W.2d 64, l. c. 81; Fleming v. Mulloy, 127 S.W. 105; Peppas v. H. Ehrlich & Sons Mfg. Co., 71 S.W.2d 821, p. 825.

Jones, Hocker, Gladney & Grand for respondent.

The circuit court had no jurisdiction over this action. Jurisdiction was vested exclusively in the Workmen's Compensation Commission. Sec. 3301, R. S. Mo., 1929; Cummings v. Union Quarry Co. (Mo.), 87 S.W.2d 1039; Oren v. Swift & Co., 330 Mo. 869, 51 S.W.2d 59; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640.

SUTTON, C. Becker and McCullen, JJ., concur; Hostetter, P. J., absent.

OPINION

SUTTON, C.

This is an action on an agreement for the payment of compensation for an injury sustained by plaintiff while in the employ of defendant F. W. Woolworth Company. The trial resulted in a verdict and judgment in favor of plaintiff and against the defendant Travelers Insurance Company for $ 2,850.68, including interest, and in favor of defendant F. W. Woolworth Company. From the order of the court granting defendant Travelers Insurance Company a new trial, plaintiff appeals.

Plaintiff was injured while in the employ of defendant F. W. Woolworth Company. It is conceded that plaintiff's injury was the result of an accident arising out of and in the course of her employment, and the agreement sued on itself concedes that the parties were operating under the Workmen's Compensation Law. Defendant F. W. Woolworth Company was insured against liability by defendant Travelers Insurance Company. The agreement sued on was signed by plaintiff and defendant Travelers Insurance Company, but was not signed by defendant F. W. Woolworth Company. It was prepared on a blank form furnished by the Workmen's Compensation Commission. It is captioned "First Receipt and Temporary Agreement," with a parenthetical note, under the caption, as follows: "To be sent in as soon as first compensation is paid, signed by employee and employer and/or insurer." It alleges that the accident occurred on March 2, 1928; that the probable duration of disability is eight weeks; that further medical aid will be required; that employee's wages for the last previous full-time week was $ 10; and that the employee sustained temporary total disability. It then proceeds as follows:

"Received of the Travelers Insurance Company six and 66/100 dollars ($ 6.66) being the first payment to the said employee (or his dependent) under the Missouri Workmen's Compensation Act by reason of said accident.

"By reason of said accident, and as provided in said Act, the undersigned employer and/or his undersigned insurer hereby agree to furnish medical aid as provided in said Act and to pay to the undersigned employee (or his dependents).

"At the rate of Six and 66/100 (6.66) dollars per week commencing 3/6/28 for such time as is provided in said Act, or until the parties otherwise agree.

"Any differences between the said weekly payments and the compensation which may be due under said Act shall be refunded and taken care of when a Final Agreement or Award is made.

"All of the foregoing is subject to the provisions of said Act and is payable and may be modified as therein provided."

Under this agreement, which is dated March 12, 1928, and was filed with the Workmen's Compensation Commission on April 3, 1928, defendant Travelers Insurance Company paid plaintiff $ 6.66 per week for fifty-three weeks, and then filed with the Commission, on May 4, 1929, notice of disagreement and request for a hearing wherein it is alleged as follows: "A disagreement has arisen between the parties to the claim for compensation for the accident, and request is hereby made for a hearing thereon. The exact nature of the disagreement is as follows: Employee contends she is still disabled. Employer and insurer contend disability has ended."

The record of the Workmen's Compensation Commission shows report filed by employer April 3, 1928, temporary agreement filed April 3, 1928, request for hearing filed by insurer May 4, 1929, notice of hearing mailed September 17, 1929, date of first hearing and default of employee and her attorney October 8, 1929.

On January 20, 1933, plaintiff filed with the Workmen's Compensation Commission notice of disagreement and request for hearing. To this the commission replied on January 23, 1933, that, because of the failure of the employee and her attorney to appear for the hearing in the case when set, the claim was dismissed for want of prosecution.

The new trial was granted on the ground that the court was without jurisdiction of the cause.

Plaintiff insists here that the agreement sued on was not made as an agreement under the compensation law, but was made without regard to the compensation law, and is therefore suable at common law. She puts this insistence on the ground that the employer was not a party to the agreement.

The compensation law, section 3325, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 3325, p. 8262), provides that if the employer be not insured his liability under the compensation law shall be primary and direct, but if he is insured his liability shall be secondary and indirect, and the insurer shall be primarily and directly liable, and that both the employer and his insurer shall be parties to all agreements or awards of compensation, but the same shall not be enforceable against the employer, except on motion and proof of default by the insurer.

Section 3333 is as follows:

"Nothing in this chapter shall be construed as preventing the parties to claims hereunder from entering into voluntary agreements in settlement thereof, but no agreement by an employe or his dependents to waive his rights under this chapter shall be valid, nor shall any agreement of settlement or compromise of any dispute or claim for compensation under this chapter be valid until approved by the commission, nor shall the commission approve any settlement which is not in accordance with the rights of the parties as given in this chapter. No such agreement shall be valid unless made after seven days from the date of the injury or death."

Section 3334 is as follows:

"Upon receipt of notice of any accident the commission shall forward to the employer and to the employe or his dependents a form of agreement to pay and accept compensation, providing for payment of compensation in accordance with the provisions of this chapter, which agreement shall be promptly executed by both parties and returned to the commission, and if in any case the employer disputes the claim for compensation and for that reason refuses to execute the agreement to pay compensation, the commission shall assist the person who claims to be entitled thereto, in filing his claim and securing an early adjudication thereof; and where such agreements to pay and receive...