Klasing v. Fred Schmitt Contracting Co.

• Decision Date: 17 July 1934
• Docket Number: 32098
• Citation: 73 S.W.2d 1011,335 Mo. 721
• Parties: George H. Klasing v. Fred Schmitt Contracting Company, a Corporation, Appellant
• Court: Missouri Supreme Court

73 S.W.2d 1011

335 Mo. 721

George H. Klasing v. Fred Schmitt Contracting Company, a Corporation, Appellant

No. 32098

Supreme Court of Missouri

July 17, 1934

Rehearing Denied July 17, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Wilson A Taylor, Judge.

Reversed.

Jones Hocker, Sullivan, Gladney & Reeder and James C. Jones, Jr., for appellant.

(1) An employee is not brought without the operation of the Workmen's Compensation Act under Section 7 thereof (Sec. 3305, R. S. 1929), unless he has a definite contract of employment at a specified salary or wage, which exceeds $ 3600 per annum. A bricklayer employed by the day or by the hour, is within the act, albeit the aggregate of the wages paid him during the year preceding the accident exceeds $ 3600. Russell v. Ely Walker D. G. Co., 60 S.W.2d 44; Kelly's Dependents v. Hoosac Lumber Co., 113 A. 81; Livingstone Worsted Co. v. Toop, 138 A. 183; O'Bannon Corporation v. Walker, 129 A. 599; Hauter v. Coeur D'Alene Co., 228 P. 259; Koester Bakery Co. v. Ihrie, 127 A. 492. (a) The Workmen's Compensation Act is to be liberally construed with a view to the public welfare and should, when possible, be given that construction which will extend its operation to the largest possible class of employees. Sec. 3394, R. S. 1929; Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Shaw v. Jackson, Walker Coal & Mng. Co., 16 S.W.2d 190; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130. (2) The judgment in this case was excessive. Rigley v. Pryor, 290 Mo. 10.

Dan Reardon, Mark D. Eagleton and Allen, Moser & Marsalek for respondent.

(1) The question of plaintiff's right to proceed in a common-law action in the circuit court was one involving the court's jurisdiction, and was waived by defendant. (a) If defendant intended to insist on his defense, it was defendant's duty to ask a separate trial or hearing thereon before going into the trial on the merits. By failing to do so defendant waived the question of the court's jurisdiction over the case. Hockaday v. Gilham, 226 S.W. 993; Chouteau v. Allen, 70 Mo. 354; Byler v. Jones, 79 Mo. 264; Tower v. Moore, 52 Mo. 120; Baisley v. Baisley, 113 Mo. 551; Ivy v. Yancey, 129 Mo. 506; Lindell Real Estate Co. v. Lindell, 133 Mo. 395; Harrison v. Murphy, 106 Mo.App. 470; Mertens v. McMahon, 28 S.W.2d 456; Beyer v. Le Fevre, 186 U.S. 114, 46 L.Ed. 1080; Kemper v. Gluck, 327 Mo. 733. (2) Defendant is estopped by its conduct to assert that this case is within the Compensation Act. The application of the act, in final analysis, rests upon an implied contract between the employer and employee. Under the act, if it applied, plaintiff was entitled to medical treatment for his injury, to be furnished by his employer, the defendant. Defendant, although having full knowledge of all the facts, failed and refused to provide plaintiff the medical and hospital attention he required and to which he was entitled, if the Compensation Act applied, but, on the contrary, forced plaintiff to obtain his own medical and hospital service, at a large expense, which plaintiff paid. So far as the record shows, defendant made no claim that the Compensation Law applied until it was too late for plaintiff to institute a claim thereunder. By its conduct defendant should be and is estopped to assert that the Compensation Law applies in this case. Secs. 3311, 3323-3326, 3337, R. S. 1929; Bunce, Admr., v. Beck, 46 Mo. 333; Mysenburg v. Schlieper, 48 Mo. 426; Roberts v. St. Louis M. L. I. Co., 126 Mo. 460; Ault v. Bradley, 191 Mo. 709; Walton v. Carlisle, 313 Mo. 268; Maupin v. Longacre, 315 Mo. 872; Ratcliff v. Lumpee, 82 Mo.App. 339. (3) While the provisions of the Workmen's Compensation Act are to be liberally construed in determining a case falling within its scope, the same rule does not apply to the provisions governing the application of the act. When that question is in issue the rule of strict construction applies. Span v. Jackson, etc., M. Co., 322 Mo. 170. (a) When an expression is repeated in a statute the presumption is that the same meaning was intended in each instance of its use, unless the contrary definitely appears from the context. State ex rel. v. Ryan, 232 Mo. 92; Pampanga Sugar Mills v. Trinidad, 279 U.S. 211, 73 L.Ed. 665. (b) Where the provisions of a statute are clear, it is unnecessary to resort to rules of construction. The section in question in this case plainly excludes from the operation of the act persons whose average annual earnings exceed $ 3,600. It does not provide that the contract of hire, "express or implied, oral or written," of such employee shall constitute a binding contract of employment of such person for a period of one year or more, and at a wage in excess of $ 3,600. To so hold would be tantamount to adding to the statute provisions which are neither stated nor implied therein. Sec. 3305(a), R. S. 1929; Span v. Mining Co., supra; Cunningham v. Management & Eng. Corp., 226 Mo.App. 215; Glaze v. Hart, 225 Mo.App. 1205.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION

FERGUSON

Action for damages for personal injuries sustained by plaintiff while in the employ of defendant. The trial resulted in a verdict and judgment for plaintiff in the sum of $ 15,000 and defendant appeals. Appellant contends, that the Workmen's Compensation Act applies; that the Workmen's Compensation Commission alone, and not the circuit court had jurisdiction of plaintiff's claim and that if it be held that the Workmen's Compensation Act does not apply the judgment is excessive.

The petition alleges, in substance, that the plaintiff, on December 27, 1927, while in the employ of the defendant as a bricklayer in the erection of a building at Ninth and Benton streets, in the city of St. Louis, Missouri, was injured as the result of a fall or collapse of a portion of a scaffold on which he was, at the time, working, due to the negligence and carelessness of the defendant in failing to properly secure or fasten the boards or flooring of the scaffold; and that "at and prior to the time of said injury plaintiff's average annual earnings exceeded $ 3600, as provided in Section 7 (Sec. 3305, R. S. 1929) of the Workmen's Compensation Act." The answer was a general denial coupled with an affirmative plea that at the time of plaintiff's injury, December 27, 1927, the Workmen's Compensation Law was in effect; that both the plaintiff and the defendant had elected to accept the provisions of the act and were operating under same at the time of the accident and that the Workmen's Compensation Commission and not the circuit court had jurisdiction of the controversy.

Plaintiff was a bricklayer and had worked at that trade for more than twenty years prior to the date of the injury. Defendant company was a building contractor and at the time of the accident was engaged in the construction of a filling station. Plaintiff was employed as one of the bricklayers. Defendant had erected scaffolds along the west wall for the use of plaintiff and the other bricklayers and as plaintiff "was getting off" the scaffold one of the floor boards or planks "tipped" causing him to fall to the ground below, a distance of about five feet. The evidence was that it was customary to nail the floor boards of the scaffolds, and that proper construction so required, but the floor boards had not been nailed or otherwise fastened. The scaffolds had been erected by other employees of defendant, under the supervision of the defendant's foreman in charge of that particular job, and plaintiff had no part in the construction or erection thereof. Plaintiff did not return to work until about a week later when he was sent to another job where he worked a few days. However, and upon the advice of Mr. Schmitt, his employer, plaintiff consulted Dr. Babler some "four or five days" after the fall. The doctor found he had sustained a "double hernia" and about two weeks thereafter plaintiff went to a hospital for an operation. The operation was performed and he remained at the hospital about three weeks. He was away from work a total of fifteen weeks by reason of the injury, after which he returned to work and was able to do, and did, the same kind and character of work in which he had formerly engaged and at the same wages. He apparently does not claim that the injury caused any loss of wages other than for the fifteen-week period mentioned. He does claim that since the injury he has continued to suffer pain in the left shoulder and in the back.

Defendant was a major employer operating under the Workmen's Compensation Act and it is admitted that plaintiff had never rejected the act and, pursuant to Section 3300, had accepted same and therefore came under the provisions and requirements thereof unless, upon the facts, he was excluded from the operation of the act by subdivision (a) of Section 3305 which we shall presently set out. Defendant offered no evidence controverting plaintiff's evidence as to the manner in which he was injured and it is apparent that if the Workmen's Compensation Act applies plaintiff's injury was caused "by accident arising out of and in course of his employment" within the meaning of Section 3301. All references herein to sections of the Workmen's Compensation Act are to the numbers thereof in Revised Statutes 1929. But plaintiff contends that he was not an employee within the meaning of the Workmen's Compensation Law as the term "employee" is used therein and defined by subdivision (a) of Section 3305 which is as follows: "The word 'employee' as used in this chapter (Chapter 28, R. S. 1929) shall be construed to mean every person in the service of any employer . . . under any contract of hire, express or implied, oral or written . . ....