Kemper v. Gluck

• Decision Date: 03 December 1929
• Docket Number: No. 20584.,20584.
• Citation: 21 S.W.2d 922
• Parties: KEMPER v. GLUCK.
• Court: Missouri Court of Appeals

21 S.W.2d 922

KEMPER v. GLUCK.

No. 20584.

St. Louis Court of Appeals. Missouri.

December 3, 1929.

As Modified, on Denial of Rehearing, December 17, 1929.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

Action by Lillian Kemper against Otto F. Gluck. Judgment for plaintiff, and defendant appeals. Reversed and remanded, and case certified to Supreme Court.

Leahy, Saunders & Walther, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant, on November 27, 1926. The case was tried to a jury, resulting in the return of a verdict in favor of plaintiff, and against defendant, in the sum of $7,200. Subsequently, as the alternative to the granting of a new trial, plaintiff remitted the sum of $1,200, and from the judgment, which was thereupon entered for plaintiff for $6,000, defendant has duly appealed.

The evidence disclosed that at the time her injury was received, and prior thereto, plaintiff was engaged as a waitress in a restaurant conducted by defendant at 817 Washington avenue, in the city of St. Louis, and that on the day in question, while she, in the course of her employment, was passing from the kitchen into the dining room by way of a small pantry, her feet slipped upon the floor, which had been rendered wet, slick, and slippery through the accumulation thereon of water, soap, and suds, causing her to fall and sustain the injuries for which this action has been brought.

For the purposes at hand, it will suffice to say of the pleadings that plaintiff relied upon negligence of defendant in causing water to be placed upon the floor at an unusual time, and in failing to warn plaintiff thereof, all of which was designated as a failure on the part of defendant to have exercised ordinary care to furnish plaintiff a reasonably safe place in which to work, and that, by way of answer, defendant pleaded a general denial, coupled with pleas of contributory negligence and assumption of risk.

On the very threshold of the case we are faced with the insistence of counsel for defendant that the court had no jurisdiction to entertain this proceeding, and that the petition fails to state a cause of action, inasmuch as the accident complained of occurred subsequent to the time when the Workmen's Compensation Act became effective under the decision of the Supreme Court in State ex rel. Elsas v. Missouri Workmen's Compensation Commission, 318 Mo. 1004, 2 S.W.(2d) 796, wherein the effective date was designated as November 2, 1926, the time of the approval of the act by the electorate on a referendum vote. It will be recalled that prior to the handing down of the above decision on February 4, 1928, it had been generally understood, and the Attorney General had held, that the effective date of the act was January 9, 1927. The present action was begun on April 9, 1927, the verdict and judgment were entered on December 8, 1927, and defendant's motion for a new trial was filed on December 10, 1927, all before the decision of the Supreme Court in the Elsas Case. It does appear, however, that the motion for a new trial was not finally overruled until May 7, 1928, but the record does not disclose that the precise question of the effect to be given to the Workmen's Compensation Act was ever brought to the lower court's attention, unless by oral argument upon the merits of the motion, as counsel for defendant assert in their brief.

Since the question of jurisdiction, as it is here presented, turns entirely upon the effect to be ascribed to the evidence adduced, we have concluded that the disposition of the case will be much simplified if we disregard the question of jurisdiction for the moment, and pass instead to the other issue raised, respecting whether or not the petition may be said to be open to the charge that it wholly fails to state a cause of action.

There is no suggestion from defendant that the petition does not state a good cause of action for negligence under the common law, if the effect of the Workmen's Compensation Act is to be disregarded; but, to the contrary, the sole assault made upon it is that it is fatally defective under the law as it now exists, because no facts were pleaded which affirmatively show that plaintiff came outside the pale of such act. Counsel for defendant argue most ably that the burden is on the plaintiff, in a master and servant case arising after the effective date of the Workmen's Compensation Act, both to plead and to prove that his case does not fall within the purview of such act, and that in the absence of such material allegation, as is concededly the situation here, the petition wholly fails to state a cause of action, and is therefore demurrable at any stage of the proceedings.

In view of the fact that the question is largely, if not entirely, one of first impression in our own jurisdiction, we must needs turn for persuasive authority upon the subject to the decisions of the courts of last resort in those of our sister states which themselves have compensation laws which have been the subject of construction. In so doing we find a multitude of decisions bearing directly upon the question; and while, at first blush, there would seem to be a contrariety of opinion as to the necessity for the plaintiff to exempt himself from the scope of his local Compensation Act as a condition precedent to his right to sue at common law for damages, yet, when the cases are analyzed in the light of the several acts which they purport to construe, it will be found that there is actually no conflict between them, but that instead the courts of other jurisdictions have uniformly reached the final result which counsel for defendant ask us to declare in this case.

When we look to the workmen's compensation legislation as a whole in this country, we find that actions for damages are generally forbidden, where both parties have accepted the act; and we observe that this conclusion is particularly true under our local act (Laws 1927, pp. 490-522), since section 3 thereof provides in no uncertain terms that the rights and remedies granted to an employé under the act shall exclude all other rights and remedies of such employé at common law or otherwise. It is evident, therefore, and we must proceed to the final conclusion in this case upon the basis, that in so far as a given case may be affected by the act, the same is not cumulative to or supplemental of the common law, but instead is wholly substitutional in character. Thus the injured employé is left with no election of remedies, but, if the case is one for compensation, he must enforce his right by the remedy which the Legislature has given him, and by none other, since the new right and remedy are both entirely exclusive of the right and remedy which would have been otherwise available to him at common law.

It follows, then, that the exclusive effect of our Compensation Law makes the rule appropriate which our sister states have announced, and which neither party to this proceeding attempts to question, namely, that if the petition shows on its face that the case is one coming within the terms of the Compensation Act, it is necessary that the plaintiff go further and allege facts taking the case out of the statute, else his petition will be subject to demurrer, but that, if no facts are pleaded so as to bring the case within the statute, it is not necessary that he plead any exceptions thereto.

We repeat that the difficulty of reconciling the cases from other jurisdictions is due to the differences existing in the acts upon which such decisions are based. Roughly speaking, and without any intention of being entirely accurate, it may be said that compensation laws fall into two principal classes: Those that are compulsory as to certain designated employments only, which are usually termed hazardous or extrahazardous, and leave all other employments unaffected by the act, unless by voluntary acceptance; and those that are elective as to all employments, save for certain designated employments, which are left unaffected by the act in the absence of a voluntary election to come within it. The elective acts may be themselves subdivided into two groups: The minority group, in which an election is required to be evidenced by some affirmative act on the part of the employer, or the employé, or both; and the majority group, in which an election to come under the act is presumed by the terms of the law itself, in the absence of the giving of some sort of notice to the contrary. Suffice it to say that our own act is elective in character, with the election conclusively presumed on the part of both the employer and the employé, in the absence of written notice of rejection duly filed with the commission, as clearly appears from the language of ...