Langston v. Selden-Breck Const. Co.

• Decision Date: 07 April 1931
• Parties: JACK LANGSTON, RESPONDENT, v. SELDEN-BRECK CONSTRUCTION COMPANY, A CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

37 S.W.2d 474

225 Mo.App. 531

JACK LANGSTON, RESPONDENT, v. SELDEN-BRECK CONSTRUCTION COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

April 7, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

AFFIRMED.

Judgment affirmed.

Allen Moser & Marsalek for appellant.

(1) Where, as by the terms of section 10 of our Act, the general contractor is made liable to pay compensation to a subcontractor's employee, the remedy provided in the Act is exclusive and the subcontractor's employee is not entitled to sue the general contractor at common law. Laws of 1927, secs. 3 and 10; Swartz v. Conradis, 298 Pa 343; Byrne v. Hitner's Sons Co., 290 Pa. 225; Leebolt v. Leeper, 275 P. 1087; McEvilly v Myers Co. (Ky.), 276 S.W. 1068; Fox v. Dunning (Okla.), 255 P. 582; White v. Fuller Co., 226 Mass. 1, 114 N.E. 829; Willard v. Bancroft (Mass.), 159 N.E. 511; State v. Bennett Building Co. (Md.), 140 A. 52. (a) Appellant is not a "third party" within the meaning of that term as used in the Act, but is a statutory employer of the plaintiff, subject to the liabilities imposed by the Act and entitled to its benefits. See cases cited under Point 1, supra. (2) Even if appellant is deemed to be a "third party," plaintiff is not entitled to prosecute this action because his immediate employer, A. D. Gates Construction Company, was subrogated by operation of law to any right of action which arose out of plaintiff's injuries and it alone could be entitled to prosecute the action. Laws of 1927, sec. 11. (a) The mere fact that A. D. Gates Construction Company, plaintiff's employer, or its insurer, did not pay plaintiff compensation, does not authorize plaintiff to bring this action. The action is maintainable by the employer without payment or an award of compensation and arises out of the employer's liability to pay compensation. Moreno et al. v. Los Angeles Transfer Co., 186 P. 800; Friebel v. Chicago City Railway Co., 280 Ill. 76, 117 N.E. 467. (b) Where the Act subrogates the employer to the employee's right of action against a third person, the employee cannot divest the employer of that right by instituting a suit. Even if the employee effects a settlement with the third person, the rights of the employer are not impaired unless such settlement is concurred in by the employer. Papineau v. Ind. Acc. Com., 187 P. 108, 45 Cal.App. 181; U.S. F. & G. Co. v. N.Y. N.H. & H. R. Co., 125 A. 875, 101 Conn. 200. (c) Subrogation, as that term is used in the Act, means a substitution of one person in the place of another, so that he who is substituted succeeds to the liability of that other in relation to a debt or claim and to its rights, remedies or securities. Traveler's Insurance Co. v. Brass Goods Mfg. Co., 239 N.Y. 273, 146 N.E. 377; Friebel v. Chicago City Railway Co., supra; Royal Ind. Co. v. J. G. White Engineering Co., 198 N.Y.S. 264. (d) If plaintiff is permitted to prosecute this action, defendant will be subjected to the danger of a double liability. The rights of plaintiff's employer are not barred or affected by plaintiff's action and if it suffers loss under the Act, it may still proceed against defendant. Silvia v. Cotton, 122 A. 513. (3) Plaintiff's petition fails to state a cause of action and the evidence fails to support his theory that he is entitled to sue because of the failure or refusal of his employer to institute the action, there being no allegations whatever in the petition to that effect. O'Donnell v. Baker Ice Machine Co. (Neb.), 205 N.W. 561; Strack v. Telephone Co., 216 Mo. 601. (a) The petition wholly fails to state a cause of action for the further reason that it shows on its face that plaintiff's case comes within the terms of the Compensation Act and he fails to allege facts taking the case out of the statute. Kemper v. Gluck, 21 S.W.2d 922. (b) A petition which wholly fails to state a cause of action may be attacked at any stage of the proceedings and the point is not waived by defendant's answer. Swift v. Ins. Co., 279 Mo. 612-614; Stonemets v. Head, 248 Mo. 252; Storage Co. v. Kuhlmann, 238 Mo. 702; Paving Co. v. Investment Co., 309 Mo. 661; State ex rel. v. Trimble, 315 Mo. 166. (4) Plaintiff is not entitled to recover of defendant at common law because his evidence convicts him of contributory negligence as a matter of law. (5) The damages awarded plaintiff are excessive.

Everett J. Hullverson and Mason, Goodman & Flynn for respondent.

(1) Where, as by the terms of section 10 of our act, subsection d, the general contractor is not liable to pay compensation to a subcontractor's employe for an injury suffered in the course of the employment, on account of the fact that the subcontractor has insured his liability to his own employe, the general contractor is, so far as such injury is concerned, outside of the scope of the Workmen's Compensation Act, and for injury to such subcontractor's employe due to the negligence of the general contractor, the liability of the general contractor is the same as at common law. Foglio v. City of Chicago, 229 Ill.App. 472; Artificial Ice & Cold Storage Co. v. Waltz (Ind.), 146 N.E. 826; Clark v. Monarch Engineering Co. (N.Y.), 161 N.E. 463; Corbett v. Starrett Bros. (N.J. L.), 143 A. 352; Trumbull Cliffs Furnace Co. v. Schachovsky (Ohio), 146 N.E. 306; Cernak v. Milwaukee Air Power Pump Co. (Wis.), 211 N.W. 354; Culbertson v. Kieckhefer Container Co. (Wis.), 222 N.W. 250; Matthews v. G. A. Crancer Co. et al. (Neb.), 233 N.W. 661. (a) The appellant is a third person within the meaning of that term as used in the act, and is not a statutory employer of the plaintiff and is not subject to any liability to the plaintiff imposed by the act on account of the injuries for which the plaintiff sues here, and, therefore, the appellant is not entitled to the benefits of the Compensation Act by way of defense to this suit. See cases cited under Point 1 supra. (2) The plaintiff was entitled at common law to sue in tort for personal injuries negligently inflicted upon him. So far as any person other than his employer is concerned, the Compensation Act does not deprive him of that right, either expressly or impliedly. The only effect of section 11 of the Compensation Act is to subrogate the employer to the employee's right of recovery to the extent necessary to reimburse the employer for the amount paid or payable by the employer as compensation. See Workmen's Compensation Act, Laws of 1927, p. 497, sec. 11; Stackpole v. Pacific, etc., Co., 186 P. 354; Lowe v. Morgan's Louisiana, etc., Co. (La.), 90 So. 429; Smith v. Virginia Railway & Power Co. (Va.), 131 S.E. 440; Bassot v. United Railroad (Cal.), 177 P. 884; Schnick v. Morris (Tex.), 24 S.W.2d 491; Gould v. C. B. & Q. Ry. Co., 315 Mo. 713; Gones v. Fisher, 286 Ill. 606. (a) Inasmuch as both the injured employee and his employer, to the extent that he has paid or become liable to pay compensation, are both interested in the recovery against a third person, both are proper parties plaintiff. See secs. 1157-1159, R. S. 1919. (b) Inasmuch as section 11 of the Compensation Act provides that the entire amount recovered from the negligent third party shall be forthwith paid to the injured employee, except such part thereof as is necessary to reimburse the employer for the compensation he has already paid and for the expenses of recovery, and inasmuch as the A. D. Gates Construction Company had paid plaintiff no compensation in this case, and as plaintiff had rejected compensation from Gates, and as the Statute of Limitations, long prior to the trial of the case, had barred the plaintiff from making any claim for compensation against Gates, unless the statute was tolled by some fact which does not appear, plaintiff was the only person who had any real interest in the recovery, and properly prosecuted the suit in his own name alone by reason of the fact that he was the only real party in interest. See sec. 1155, R. S. 1919. (c) The most that can possibly be said in criticism of plaintiff's procedure in bringing the suit in his own name alone is that the A. D. Gates Construction Company might have a possible interest in the recovery, and, therefore, should have been joined as party plaintiff. However, if this were a defect in the petition at all, it was a mere defect of parties plaintiff, which was waived on account of failure to raise the defect by answer or demurrer. See authorities cited under 2, supra. (3) There is no evidence tending to show that plaintiff was guilty of any negligence whatever, much less that he was negligent as a matter of law. The damages recovered are not excessive. Burns v. Polar Wave Ice & Fuel Co., 187 S.W. 145; Scheipers v. Mo. P. R. R. Co., 298 S.W. 51.

BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff on August 22, 1928, while employed in connection with the erection of the Civil Courts Building, in the city of St. Louis. The original defendants against whom the case was brought to trial, were Selden-Breck Construction Company, the general contractor; A. D. Gates Construction Company, a subcontractor, and plaintiff's immediate employer; and Kaestner-Hecht Company and Westinghouse Electric Elevator Company, also subcontractors in charge of certain details of the work. At the close of plaintiff's case, the court sustained demurrers to the evidence which were interposed at the instance of the last three defendants, whereupon plaintiff took an involuntary nonsuit as to such parties. The verdict of the jury was in favor of plaintiff, and against defendant Selden-Breck Construction Company, in the sum of $ 7,500; and by due and timely steps the latter has...