Kemper v. Gluck

Decision Date11 May 1931
Docket NumberNo. 30338.,30338.
Citation39 S.W.2d 330
PartiesLILLIAN KEMPER v. OTTO F. GLUCK, Appellant.
CourtMissouri Supreme Court

Leahy, Saunders & Walther and J.L. London for appellant.

(1) The trial court had no jurisdiction. Compensation Act of 1925; State ex rel. Elsas v. Workmen's Compensation Commission, 2 S.W. (2d) 796; Mayberry v. Fruin-Colnon Cont. Co., 327 Mo. 386; 2 Schneider on Workmen's Compensation Act, p. 1496 et seq.; Bishop v. Rys. Co., 124 N.E. 837; Craig v. Boudouris, 241 Ill. App. 392; Beveridge v. Fuel Co., 283 Ill. 31, 119 N.E. 46; Span v. Coal & Mining Co., 16 S.W. (2d) 190; Osagera v. Schaff, 293 Mo. 333, 240 S.W. 124; Morris v. Muldoon, 190 N.Y. App. Div. 689, 180 N.Y. Supp. 319; Kaplan v. Sertel, 116 So. 112; Steagall v. Steel & Iron Co., 205 Ala. 100, 87 So. 787; Reynolds v. Ry. Co. (Ill.), 122 N.E. 371. This court would only have jurisdiction for the purpose of reversing the judgment and directing the lower court to dismiss the cause. Where the lower court had no jurisdiction, the appellate court acquires none except for the purpose just indicated. Kansas City Sanitary Co. v. Laclede County, 269 S.W. 395; St. Louis v. Glasgow, 254 Mo. 285. (2) The petition fails to state a cause of action. (a) The petition shows on its face that the claim is compensable. Compensation Act of 1925; Cases supra. (b) The court takes judicial notice of the Governor's proclamation appointing the Workmen's Compensation Commission November 16, 1926, and of the existence of the commission on and after November 16, 1926. State v. Tippett, 317 Mo. 329. (c) Exceptions to a statute must be pleaded in plaintiff's petition or the petition is demurrable. Bredeisen v. Coffey, 15 Mo. App. 80; State v. Elam, 21 Mo. App. 290; Russell v. Ry. Co., 83 Mo. 507; Buffum v. Woolworth Co., 273 S.W. 179; Span v. Coal & Mining Co., 16 S.W. (2d) 198. (d) Section 5 of the Compensation Act is made a part of Section 2 by apt reference and, under the Missouri law, becomes a part of the same. Gaston v. Lamkin, 115 Mo. 20; State ex rel. Buchanan County v. Imel, 280 Mo. 554. (e) The General Assembly having, in the Workmen's Compensation Act, designated the tribunal in master and servant cases, and having provided that the circuit court shall only have jurisdiction on appeal from the Compensation Commission, the circuit court no longer has jurisdiction in master and servant cases, unless facts affirmatively appear vesting jurisdiction in the said court. Davidson v. Schmidt, 256 Mo. 18; Robinson v. Levy, 217 Mo. 513; State ex rel. v. Hall (Mo. Sup.), 257 S.W. 1047; Hope v. Blair, 105 Mo. 85; Gray v. Bowles, 74 Mo. 419; Sec. 2436, R.S. 1919; Sec. 22, Art. VI, Constitution of Missouri. (3) Instruction 1 is fatally defective. It fails to require the jury to find that the defendant had a reasonable time after learning of the condition to remedy the same. Manche v. Basket & Box Co., 262 S.W. 1023; 23 Cyc. 1142; Snyder v. Mining Co., 206 S.W. 595; Haggard v. Coal Co., 200 S.W. 1075; Winslow v. Ry. Co., 196 S.W. 121; Hicks v. Hammond Pkg. Co., 171 S.W. 938; Wojtylak v. Coal Co., 188 Mo. 260; Removich v. Construction Co., 264 Mo. 55. (4) Plaintiff's Instruction 2 is fatally defective: (a) It permits a recovery for a future loss of wages without any evidence on which to base it. (b) It permits a recovery for diminution of plaintiff's wages without any evidence on which to base it. (c) It authorizes a recovery for permanent injuries without restricting the jury to the permanent injury shown by the evidence. (d) It is broader than the proof. (e) It permits recovery for future medical expense. (f) It permits a recovery for loss of wages without limiting the loss to the actual number of weeks shown by the testimony. Rosenweig v. Wells, 308 Mo. 617; Waller v. Graff, 251 S.W. 733; Hale v. Atkins, 256 S.W. 544; McDonald v. Ry. Co., 147 S.W. 1130.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) Since the plaintiff's petition on which this case was tried stated a cause of action for negligence good at common law and as no facts appeared on the face of the petition sufficient to show that the claim is governed by the Workmen's Compensation Act, it was necessary for the defendant to set up by way of affirmative defense the facts on which it relied to defeat plaintiff's action at law by virtue of the Compensation Act. (a) Plaintiff's petition was not demurrable for failure to negative the applicability of the Compensation Act. Secs. 1226, 1230, R.S. 1919; Trust Co. v. Tyndall, 272 Mo. 368; Span v. Mining Co., 322 Mo. 155; Nadeau v. Water & Power Co., 108 Atl. (Me.) 190; Salvucca v. Ryan & Riley Co., 120 Md. 235; Spottsville v. Portland Cement Co., 94 Kan. 258; Nilson v. Am. Bridge Co., 221 N.Y. 12; Michel v. Am. Cinome Corp., 182 N.Y. Supp. 588; Noble v. Taxicab & Transfer Co., 192 N.W. (Mich.) 709; Craig v. Boudouris, 241 Ill. App. 392; Machine Co. v. James, 271 S.W. (Tex.) 424; Day v. Clark, 215 Pac. (Nev.) 386; Acres v. Frederick & Nelson, 79 Wash. 402; State ex rel. Syrup Co. v. Compensation Comm., 320 Mo. 899; Raison v. Board of Education, 103 N.J.L. 547; State v. Elam, 21 Mo. App. 290; Reynolds v. Day, 79 Wash. 499, 40 Pac. 681, L.R.A. (1916) 432; Olds v. Olds (Ore.), 171 Pac. 1046; Kinnan v. Hurst Co., 301 Ill. 597; Nash v. Ry. Co. (Minn.), 169 N.W. 540; Ark. Valley, etc., Co. v. Ballinger (Colo.), 178 Pac. 566; State ex rel. Gilder v. Industrial Comm. (Ohio), 127 N.E. 595; McHugh v. Williams (R.I.), 110 Atl. 607; Patton v. Stegall (Ky.), 295 S.W. 979; King v. Oil Co. (Tenn.), 296 S.W. 3. (b) Every presumption is to be indulged in favor of the jurisdiction of a court of general jurisdiction and the burden rests on him who asserts that it had not jurisdiction in any action or proceeding to show affirmatively the want of jurisdiction, and "nothing shall be intended to be out of the jurisdiction of a court of general jurisdiction but that which especially appears to be so." Hadley v. Bernero, 103 Mo. App. 556; McIntyre v. Ry. Co., 286 Mo. 245; MeClanahan v. West, 100 Mo. 309; Buddecke v. Ziegenhein, 122 Mo. 239; State v. Baker, 246 Mo. 357. (2) Defendant may not join in issue and defend on the theory of a common-law action and then for the first time after an adverse verdict and judgment and on appeal invoke the provisions of the Compensation Act for his defense. Mirrielees v. Ry. Co., 163 Mo. 486; State ex rel. v. Sturgis, 281 Mo. 604; Osagera v. Schaff, 293 Mo. 340; Dougherty v. Gangloff, 239 Mo. 649. (3) The condition of the floor which caused plaintiff's injury, although created by a porter, was in law the act of the defendant. Bodenmueller v. Box Co., 237 S.W. 881; Busby v. Tel. Co., 287 S.W. (Mo.) 437; Bender v. Grocery & Baking Co., 276 S.W. (Mo.) 405. (4) It was defendant's non-delegable duty to exercise ordinary care to keep the pantry floor over which plaintiff, in the ordinary discharge of her duties must pass, reasonably safe. House v. Car Co., 270 S.W. 135; Bender v. Grocery & Baking Co., 276 S.W. (Mo.) 405. (5) If defendant was present and knew the floor was being scrubbed and thus creating the dangerous condition which caused plaintiff to fall and sustain injury, then "he cannot escape liability by the plea that he had not known it long enough to repair the condition before plaintiff was injured." Popinjay v. Press Brick Co., 193 Mo. App. 616; Midway Bank, etc., Co. v. Davis, 288 Mo. 578; Bodenmueller v. Box Co., 237 S.W. 881; Missouri, etc., Railroad Co. v. Miller, 45 Okla. 173.

WHITE, J.

The plaintiff, November 27, 1926, was employed as a waitress by defendant, who was engaged in the restaurant business in St. Louis, and while so employed she was injured by slipping and falling upon a wet and slippery floor which she alleges was negligently permitted to remain in a dangerous condition while she was obliged to walk upon it in the performance of her duties. On a trial in the Circuit Court of the City of St. Louis she recovered judgment for $7,200, which was reduced by remittitur of $1200. From the judgment then entered for $6,000, defendant appealed to the St. Louis Court of Appeals, where the judgment was reversed and the cause remanded (21 S.W. (2d) 922); one judge dissenting, the case was certified here.

The Court of Appeals held that upon the facts stated in the petition the plaintiff as employee and the defendant as employer were controlled by the provisions of the Workmen's Compensation Act; that the case stated was one exclusively within the jurisdiction of the Compensation Commission. The appellant urges here that the plaintiff thus stated herself out of court. The Court of Appeals remanded the case in order that necessary allegations to bring the case within the jurisdiction of the court might be supplied. The question was not determined in the trial court, but was raised for the first time by appellant in the Court of Appeals.

I. The first question for determination is whether the plaintiff's petition states a cause of action at common law or whether she has pleaded facts which make Cause of Action: her case cognizable only by the Statutory Exception. Compensation Commission. The Workmen's Compensation Act, enacted in 1927 (Laws 1927, p. 409 et seq., Section 2, contains these provisions:

"Every employer and every employee, except as in this act otherwise provided, shall be conclusively presumed to have elected to accept the provisions of this act, and respectively to furnish and accept compensation therein provided, unless prior to the accident he shall have filed with the commission a written notice that he elects to reject the act."

Section 4 of the act divides employers into two classes, major and minor. A major employer is one who has "more than ten employees regularly employed." A minor employer is one who has "ten or less employees regularly employed."

The section then provides that where a minor employer is engaged in an occupation hazardous to...

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