Leichty v. Kansas City Bridge Co.

• Decision Date: 01 October 1945
• Docket Number: 39379
• Citation: 190 S.W.2d 201,354 Mo. 629
• Parties: Lewis Edwin Leichty, Deceased, Mrs. L. E. Leichty, Claimant, v. Kansas City Bridge Company, Appellant
• Court: Missouri Supreme Court

190 S.W.2d 201

354 Mo. 629

Lewis Edwin Leichty, Deceased, Mrs. L. E. Leichty, Claimant, v. Kansas City Bridge Company, Appellant

No. 39379

Supreme Court of Missouri

October 1, 1945

Rehearing Denied November 5, 1945.

Appeal from St. Charles Circuit Court; Hon. Theodore Bruere, Judge.

Affirmed.

Luke Cunliff & Wilson and Lathrop, Crane, Sawyer, Woodson & Righter for appellant.

(1) The Workmen's Compensation Commission, and the Circuit Court on appeal, contravened Article IV, Section 1, of the U.S Constitution when the Commission and the court failed and refused to give full faith and credit to the judgment and decree of the District Court of Kansas, a court of competent jurisdiction, the judgment and decree of that court being valid on its face. Art. IV, Sec. 1, U.S. Constitution; 28 U.S.C.A., Sec. 687; Williams v. State of North Carolina, 63 S.Ct. l.c. 210; Sec. 1864, R.S. 1939; Barrett v. Barrett, 79 S.W.2d 506. (2) The Workmen's Compensation Commission acted without and in excess of its powers in making the award it did because it has no legal or equitable powers. Its action is contrary to Sections 1, 22 and 23 of Article VI of the Constitution of Missouri. Art. VI, Sec. 1, Constitution of Missouri; Oren v. Swift & Co., 51 S.W.2d 59; Bliss v. Lungstras Dyeing & Cleaning Co., 130 S.W.2d 198; Kelly v. Howard, 123 S.W.2d 584; Pfitzinger v. Shell Pipe Line Corp., 46 S.W.2d 955; Sullivan v. Anselmo Mining Corp., 268 Pac. l.c. 500; Allied Mut. Liab. Ins. Co. v. Interstate Cork Co., 235 N.Y.S. 541. (3) In this proceeding before the Workmen's Compensation Commission the claimant's attack upon the final decree and judgment, regular on its face, of a court of competent jurisdiction, is a collateral attack upon such judgment and decree and will not be permitted by our law. Lieber v. Lieber, 143 S.W. 458, 239 Mo. 1; Reger v. Reger, 293 S.W. 414; Howey v. Howey, 240 S.W. 450; Ray v. Ray, 50 S.W.2d 142, 330 Mo. 530; McDermott v. Gray, 95 S.W. 431, 198 Mo. 266; State ex rel. Conran v. Duncan, 63 S.W.2d 135; Sisk v. Wilkinson, 265 S.W. 536; State ex rel. Van Haffton v. Ellison, 226 S.W. l.c. 562; Johnson v. Merchants and Miners Bank, 213 S.W. 815; Adamson v. Snider, 131 Kan. 284, 291 P. 744; 1 Black on Judgments (2 Ed.), pp. 430, 431; Stevens v. Reynolds, 41 N.E. 931. (4) The award of the Workmen's Compensation Commission is not supported by competent evidence and said award should have been set aside and reversed by the circuit court because there was no competent sufficient evidence in the record to support the award. Sec. 3732, R.S. 1939; Keena v. Keena, 10 S.W.2d 344; Jackson v. Aetna Bricklaying & Const. Co., 51 S.W.2d 705; State ex rel. Johnson v. Merchants & Miners Bank, 213 S.W. 815; Inter-River Drainage Dist. v. Henson, 99 S.W.2d 865; Elliott v. McCormick, 19 S.W.2d l.c. 659; Terminal Railroad Assn. v. Schmidt, 163 S.W.2d 772; 1 Black on Judgments (2 Ed.), p. 430.

H. P. Tudor, William H. Tombrink and Strubinger, Tudor & Tombrink for respondent.

(1) It is the well settled rule that the triers of fact who see and hear the witnesses while delivering their testimony are much more capable of determining the weight to be given that testimony than is any reviewing court. Friede v. George Lytte, Inc., 127 S.W. 40. (2) Respondent's husband not having resided in the State of Kansas one year next preceding the filing of his divorce petition there, the Kansas court had no jurisdiction of the divorce proceedings. Kansas R.S., 60-1502; Howell v. Herriff, 87 Kan. l.c. 390, 124 P. 168; Asling v. Asling, 88 Kan. 331, 128 P. 185; Wible v. Wible, 153 Kan. 428, 110 P.2d l.c. 763; see also cases cited under No. (4). (3) Failure of party to call witness authorizes appellate court to indulge in the inference that such witness' testimony would have been unfavorable to appellant. Sullivan v. Gideon & N.I.R. Co., 271 S.W. 983. (4) It is now, and has been for a long time, the settled law of this state and other jurisdictions, that the judgments of other states are subject to attack by the parties sought to be bound by the judgments when it is made to appear as a fact that the court rendering the judgment had no jurisdiction over the proceedings or the parties. Such attack can be made whether the judgment is pleaded as a cause of action, a defense or used as evidence in the cause. Our court had the right in this instance, to determine for itself whether the Kansas decree in the instant case was valid or void. Williams v. State of N.C., 65 S.Ct. l.c. 1095; Cole v. Cunningham, 133 U.S. 107; Bonnett-Brown Sales Service v. Utt, 19 S.W.2d l.c. 891, 323 Mo. 589; Topalian Bros. v. Asadorian, 104 S.W.2d 713; Woods v. Washington Fidelity N. Ins. Co., 113 S.W.2d 121; Stevens v. Thomasson, 160 P.2d 338; 15 R.C.L., sec. 411, pp. 935, 937; 9 R.C.L., sec. 340, p. 520; see also cases cited under Nos. (2) and (3). (5) The divorce court having obtained simulated jurisdiction over Mrs. Leichty upon an order of publication issued upon a false affidavit of Mr. Leichty as to the whereabouts of his wife, the order of publication is a nullity and subsequent proceedings, including the decree void. Lewis v. Lewis, 15 Kan. l.c. 193; Crouch v. Crouch, 30 Wis. 667; Ford v. Whelan, 233 Wis. 96; see cases cited under Point (3) also.

Clark, C.J. All concur, except Ellison, J., absent.

OPINION

CLARK

Appeal by Kansas City Bridge Company, former employer of Lewis Edwin Leichty, deceased, from a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of claimant as the sole dependent of deceased.

The claim, filled out on a printed form furnished by the Commission, states that deceased came to his death as the result of an accident while in the employ of appellant; that claimant is the widow and sole dependent of deceased, etc. Appellant filed a general denial and no other pleadings were filed with the Commission or in the circuit court.

At the hearing before a Commissioner admissions were made as follows: that deceased was in the employ of appellant and came to his death as the result of an accident while in the course of his employment; that appellant and deceased had duly elected to come under the Compensation Act; and that appellant had filed its report of the accident and respondent had filed her claim with the Commission within the time required by law. The average weekly wages of deceased were agreed to.

Claimant introduced a marriage license and certificate showing that she was married to deceased in Texas in 1921, and testified that they lived together as husband and wife in Texas and later in Oklahoma.

Appellant offered a record, duly authenticated under the acts of Congress, of a divorce decree obtained by deceased in Kansas in 1935 upon service on claimant by publication.

Claimant objected to the receipt of this evidence on the ground that the divorce was fraudulently obtained, stating in detail the reasons for so claiming. The Commissioner admitted the evidence "for what it is worth."

Then the claimant, over appellant's objection, introduced evidence tending to show: that deceased obtained the order of publication in the divorce case by falsely swearing that he did not know her address; that at the time he instituted the divorce suit, during its progress and later, he was in correspondence with her, addressing his letters to her at Oklahoma City where she was staying, some letters to that effect being received in evidence; that when he filed suit he wrote to a woman at a town in Texas that he had caused a copy of the petition to be mailed there as his wife's last known address, (as required by the Kansas statute) and asked the woman to tell "them you don't know her address and it will be returned here" so his wife couldn't cause trouble in the divorce suit; that after the divorce decree deceased joined with claimant as husband and wife in executing and acknowledging a deed to real estate; that after the decree of divorce deceased visited claimant, lived with her as her husband for a short time and introduced her as his wife; that claimant did not learn of the divorce decree until after her husband's death.

Appellant objected to claimant's evidence as being a collateral attack on the Kansas judgment and in conflict with the "full faith and credit" clause of the Federal Constitution. Appellant offered evidence tending to contradict or discredit a portion of the testimony offered on behalf of claimant. After the evidence was in the Commissioner made a finding that the divorce was procured by fraud.

The sole issue tried was as to whether claimant was the wife of deceased at his death. That issue was decided in favor of the claimant by the Commissioner, on review by the full Commission and on appeal by the circuit court.

Appellant asks us to reverse the judgment on the following grounds: (1) that the Commission and the circuit court have failed to give full faith and credit to the Kansas judgment; (2) the Commission exceeded its jurisdiction because it has no equitable power; (3) the Kansas judgment could not be set aside in this proceeding, regardless of whether or not the Commission has equitable power, for the attack is a collateral one; (4) the judgment is not supported by competent evidence.

Beginning with Marx v. Fore, 51 Mo. 69, this court has consistently held that judgments rendered in other states are open to inquiry as to the jurisdiction of the court and notice to defendant notwithstanding the recitals of such judgments. In Marx v. Fore it was assumed that such judgments could be attacked directly, but not collaterally. Our later decisions hold that, on jurisdictional grounds, the judgment of a sister state may be assailed collaterally on evidence dehors the record, but a domestic judgment can...