Kristanik v. Chevrolet Motor Co.

• Decision Date: 20 April 1934
• Docket Number: 32297
• Citation: 70 S.W.2d 890,335 Mo. 60
• Parties: Andrew Kristanik, Employee, Appellant, v. Chevrolet Motor Company, Employer, Self-Insurer
• Court: Missouri Supreme Court

70 S.W.2d 890

335 Mo. 60

Andrew Kristanik, Employee, Appellant, v. Chevrolet Motor Company, Employer, Self-Insurer

No. 32297

Supreme Court of Missouri

April 20, 1934

Motion for Rehearing Overruled April 20, 1934.

Appeal from Circuit Court of City of St. Louis; Hon. Robert W Hall, Judge.

Reversed.

Alroy S. Phillips and Douglas H. Jones for appellant.

(1) Section 3342, Revised Statutes 1929, is in violation of Section 10, Article II of the Missouri Constitution, in that by depriving the circuit court of jurisdiction to render the judgment required by the facts in a case where all the facts are in evidence, and it finds that there is not sufficient competent evidence in the record to warrant the making of the award, and by requiring the court to remand it to the Compensation Commission, it imposes an unreasonable and unnecessary delay upon the employee's statutory right to compensation and upon the administration of justice in the enforcement thereof. Sec. 3342, R. S. 1929; Mo. Const., Sec 10, Art. II; DeMay v. Liberty Foundry Co., 37 S.W.2d 655; Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 578; Teague v. Laclede-Christy Clay Products Co., 52 S.W.2d 885; Kristanik v. Chevrolet Motor Co., 41 S.W.2d 912; Louisville Gas & Electric Co. v Duncan, 235 Ky. 613, 31 S.W.2d 917; 11 C. J. 211. (2) A motion to quash an execution is a collateral attack and does not lie unless the judgment is void. 34 C. J. 528; Gary Realty Co. v. Swinney, 297 S.W. 44; Burkhard v. Hahne, 17 S.W.2d 638; Enterprise Furniture Co. v. Davidson, 211 Mo.App. 664; Hammett v. Hatton, 189 Mo.App. 567. (3) Only jurisdictional defects render a judgment void. 34 C. J. 509. (4) The essential elements of jurisdiction are cognizance of the class of cases to which the one adjudged belongs, presence of the proper parties, and that the point decided must be within the issues. 15 C. J. 734; Davis v. Morgan Foundry Co., 23 S.W.2d 233; Robinson v. Levy, 217 Mo. 498. (5) The circuit court has jurisdiction to render a final judgment of some kind on appeals from awards of the Compensation Commission. 15 C. J. 734; Smith v. Black, 231 Mo. 693; 33 C. J. 1078-79; 15 C. J. 729; Schubach v. McDonald, 189 Mo. 182; State ex rel. v. Stobie, 194 Mo. 45; Hope v. Blair, 105 Mo. 93; State ex rel. May Dept. Stores v. Haid, 38 S.W.2d 48. (6) The error of the circuit court in making its own findings and rendering judgment thereon made the judgment voidable and not void. Miss. River Bridge Co. v. Ring, 58 Mo. 495; Enterprise Furniture Co. v. Davidson, 211 Mo.App. 669; State ex rel. Gavalek v. Ind. Comm., 126 N.E. 317; Sullinger v. West, 211 S.W. 67; Sowers v. Ingram, 74 Mo. 193; Kansas City v. Winner, 58 Mo.App. 299.

McCarthy, Morris, Zachritz & McGrail for respondent; J. G. Stevenson of counsel.

(1) The Supreme Court has no jurisdiction of this appeal, because the amount involved is considerably less then $ 7,500, and there is no constitutional question involved. (2) Appellant is not in a position to assert point 1 of his assignment of errors contending that Section 3342, Revised Statutes 1929, is in contravention of Section 10, Article II of the State Constitution, for the reason this court has specifically held that the acceptance of the act by the employee constitutes a waiver of this provision. De May v. Liberty Foundry Co., 37 S.W.2d 640; Kemper v. Gluck, 39 S.W.2d 334; Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573. (3) There being no showing constitutional question is presented or jurisdictional amount is involved, cause must be transferred to Court of Appeals. Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573. (4) To bring an appeal within the jurisdiction of the Supreme Court on a constitutional question, it must appear that a constitutional construction was essential to the determination of the case. Miller v. Connor, 250 Mo. 677, 157 S.W. 81. (5) Point 2 of appellant's assignment of errors is without merit. The court did not err in quashing the execution. The circuit court was wholly without jurisdiction to make an original finding of facts and enter an original judgment against respondent. State v. Haid, 38 S.W.2d 48; Wadley v. Employers' Liability, 37 S.W.2d 668; Glaze v. Hart, 36 S.W.2d 668; Beecham v. Greenlease, 38 S.W.2d 537; Harbour v. Gardner, 38 S.W.2d 295; Burns v. Ames Realty Co., 31 S.W.2d 274; Friedel v. Bailey, 44 S.W.2d 15; Texas Pipe Line Co. v. Stewart, 35 S.W.2d 632.

Luke & Cunliff, amicus curiae.

Atwood, J. All concur, except Hays, J., absent.

OPINION

ATWOOD

This appeal has been heard both in division and in banc. Appellant's statement is as follows:

"This is an appeal from an order of the Circuit Court sustaining the employer's motion to quash an execution on a judgment in favor of the employee in a case arising under the Workmen's Compensation Act.

"The Workmen's Compensation Commission heard the evidence on his claim for compensation and made an award against the employee and in favor of the employer, and a finding 'that injury resulted in a loss of hand was not the result of an accident arising out of and in the course of his employment.'

"On the employee's appeal the Circuit Court examined the evidence taken before the Compensation Commission and, on February 3, 1930, rendered a judgment reading as follows:

"Judgment.

"'This cause, on appeal from an award of the Missouri Workmen's Compensation Commission, duly comes on for hearing and decision, and the court, having heard and considered the record herein, duly certified by said Missouri Workmen's Compensation Commission, consisting of the documents and papers on file, the transcript of the evidence of said Commission and the final findings and awards of said Commission, and the court having had the same under advisement, upon review of the questions of law presented herein, doth find:

"'(a) That the facts found by the Commission do not support the award.

"'(b) That there was not sufficient competent evidence in the record to warrant making the award.

"'The court doth further find from the transcript of evidence herein that Andrew Kristanik was an employee of respondent, Chevrolet Motor Company, on April 1, 1928, and that at such time both employee and employer were working under the Missouri Workmen's Compensation Law, and that at such time employee Andrew Kristanik sustained an accident, arising out of and in the course of his employment, by cutting the palm of his hand on metal straps which he was removing from a barrel for employer, by reason of which the hand of said employee became infected, and that he sustained blood poisoning, which thereafter resulted in the amputation of his left (minor) hand and arm midway between the elbow and wrist.

"'The court further finds that, at the time of said accident, employee was receiving from employer an average weekly wage of $ 45.

"'The court further finds that employee was treated by several doctors and in two hospitals, in the last of which the amputation was performed; and that the necessary and reasonable value of medical aid not furnished by employer or insurer, and heretofore paid by employee, amounts to the sum of $ 665.50.

"'The court further finds that employee has been paid by employer the sum of $ 193.00.

"'The court further finds that there is now due and payable to the employee from the employer for said accident, under the terms of said act, the sum of $ 20.00 per week for 180 weeks, beginning April 15, 1928; and that the installments for 91 weeks at $ 20.00 per week are now past due, amounting to date to $ 1,820.00, together with $ 665.50 for medical aid, of which $ 193.00 has been paid, leaving a balance due to date of $ 2,292.50, and thereafter $ 20.00 per week for 89 weeks.

"'Wherefore, it is further ordered, adjudged and decreed by the court that said findings and award of the Missouri Workmen's Compensation Commission be, and the same hereby are, reversed, set aside and for naught held, and that claimant (employee Andrew Kristanik) have and recover of and from respondent Chevrolet Motor Company the sum of $ 2,292.50 due to date and thereafter the sum of $ 20.00 per week for 89 weeks, together with all costs of suit; and that execution issue therefor.'

"The employer took no appeal from this judgment, but instead sued out a writ of error in the St. Louis Court of Appeals, which, on September 29, 1931, denied the writ on the ground that it did not lie in such cases, and that the remedy by appeal given in Section 3342, R. S. 1929, is exclusive. [See, also, Kristanik v. Chevrolet Motor Company, 226 Mo.App. 89, 41 S.W.2d 911.]

"This court then denied the employer's application for mandamus to compel the Court of Appeals to assume jurisdiction of the writ of error.

"Thereafter, on December 22, 1931, the employee sued out an execution on the judgment, and after levy, the employer filed the motion to quash execution. The trial court sustained the motion to quash, and the employee now appeals."

Respondent adopts the above statement supplemented by the following averments from its motion to quash the execution:

"That said execution, levy and garnishment are illegal, null and void, for the reason that same are based on a void judgment which this Court had no jurisdiction to enter, in this, to wit, that it appears on the face of said judgment that it was entered against the employer by this Court after the Workmen's Compensation Commission had found in favor of the employer and when this Court had only jurisdiction to sit as a court of errors and no authority to make any original findings of fact or enter up judgments of any kind.

"That under said Compensation Act, no trial court has any authority to make any original findings of facts or to enter up its own judgment awarding compensation after it...