Logan v. Missouri Valley Bridge & Iron Co.

• Decision Date: 19 March 1923
• Docket Number: 233
• Citation: 249 S.W. 21,157 Ark. 528
• Parties: LOGAN v. MISSOURI VALLEY BRIDGE & IRON COMPANY
• Court: Arkansas Supreme Court

249 S.W. 21

157 Ark. 528

LOGAN v. MISSOURI VALLEY BRIDGE & IRON COMPANY

No. 233

Supreme Court of Arkansas

March 19, 1923

Appeal from Pulaski Circuit Court, Third Division; A. F. House Judge; affirmed.

Judgment affirmed.

Sizer & Gardner and Allyn Smith, for appellant.

The demurrer admits the allegations of the complaint, and the only question in the case is whether or not appellant's remedy is under the Oklahoma Workmen's Compensation Act or under the laws of Arkansas. Our courts take judicial knowledge of the laws of other States. Sec. 4110, C. & M Digest. It is conceded that in Oklahoma appellant could only bring his suit before the Industrial Commission provided by its Workmen's Compensation Act, and the question hinges upon whether the action arises ex contractu or ex delicto. The workmen's compensation acts have substituted a new cause of action for the common law action of the injured employee against his employer, and created new tribunals giving them exclusive jurisdiction of all such proceedings. The question involved here has not been determined, so far as we can learn, but its converse has been frequently decided. It is held, where the employer has complied with such act in the State of his residence, or where he maintains an office, an employee injured in the course of his employment outside that State may recover under the compensation act of the State where he and his employer resided. Pensabene v. Auditor, 140 N.Y.S. 226, 155 A.D. 368. Under this holding plaintiff may receive under the Oklahoma Compensation Act in courts of Arkansas. The law of the place of contract of employment governs an action in tort for negligent injury of employee. Schweitzer v. Hamburger, 138 N.W. 944; 78 Minn. 448; Cannaday v. Coast Line Co., 55 S.E. 836; 143 N.C. 439; 8 L. R. A. (N. E.) 939; Ruck v. Ry Co., 143 N.W. 1074; 153 Wis. 158; Grant Smith Partnership Co. v. Rhode, 42 U. S. S.Ct. 157. The relation between the employer and employee is purely contractual. Rogers v. Rogers, 7070 Ind.App. 659; 122, N. E. 778; Niser v. Miller, 125 N.E. 652; McDowell v. Duer, 133 N.E. 840. The law of a place where a contract is made enters into it, and the right of the employee to recover under the Workmen's Compensation Act is controlled by laws of State where contract is made, not where injury occurred, and plaintiff is entitled to recover under laws of Arkansas. Even should the court hold plaintiff's action does not arise ex contractu, he should nevertheless recover under § 1070, C. & M. Digest, the action being transitory. Pensabene v. Auditor, supra; Schweitzer v. Hamburger, supra.

Rose, Hemingway, Cantrell & Loughborough, for appellee.

The only question for decision is whether the complaint states a cause of action enforceable in this State. Cases cited by appellant reviewed and argued not to support his position, not one of them.

In an action ex delicto the right to recover and the amount of the recovery are governed by the law of the place where injury is received. Carter v. Goode, 50 Ark. 155; St. L. I. M. S. Ry. Co. v. Brown, 67 Ark, 155; St. L. I. M. & S. Ry. Co. v. Hesterly, 98 Ark, 240; Turner v. St. Clair Tunnel Co., 70 N.W. 146, W. 48. The appellant states an action ex delicto and his right to recover is dependent in the Oklahoma law, does not state an ex contractu cause of action. Fordyce v. Nix, 58 Ark. 136; St. L. I. M. & S. Ry. v. Mynott, 83 Ark 6; Miller v. Mintun, 73 Ark. 186. The court regards substance rather than form. Johnson v. Dutlinger, 140 Ark. 511, 1 Corpus Juris, 1016. Had plaintiff stated a cause of action ex contractu he could not recover here, since the parties contemplated performance was to take place in Oklahoma. Johnson v. Nelson, 150 N.W. 620; Mitchell v. St. Louis Smelting & Refining Co., 215 S.W. 506; Crebbin v. Deloney, 70 Ark. 493. Granting the contract was made with reference to Arkansas law, the action ex contractu cannot be sustained, the injury having occurred in Oklahoma. Arkadelphia Electric Light Co. v. Arkadelphia, 99 Ark. 178; Kansas, Ft. Scott & Memphis Ry. Co. v. Becker, 67 Ark. 1; Alabama G. S. & R. Co. v. Carroll, 11 So. 803. We think the general statement as to the right of election between actions ex contractu or ex delicto is at most only applicable territorially, and then only when the law-imposed conditions result from express statutory enactment. In re American Mutual Life Ins. Co., 102 N.E. 693; Gooding v. Ott, 87 S.E. 862; American Radiator Co. v. Rogge, 92 A. 85; Spratt v. Sweeney & Gray Co., 153 N.Y.S. 505; Post v. Burger & Goelke, 216 N.Y. 544; Minor on Conflict of Laws, 507; Bret v. Gulf C. F. & S. Ry. Co., 22 S.W. 1064. Our courts will not endeavor to enforce the Workmen's Compensation Act of Oklahoma. Galveston, H. S. & A. Ry. Co. v. Wallace, 223 U.S. 481; Lehman v. Raymo Film Co., N.Y.S. 1032; Slater v. Mexican National Ry., 194 U.S. 120.

Sizer & Gardner and Allyn Smith, in reply.

If the cause of action grows out of the relation of employer and employee, it is contractual, and the demurrer should have been overruled. Parker v. Wilson, 179 Ala. 361; 60 So. 150; 43 L. R. A. (N. S.) 87. Telephone Co. v. Woughter, 56 Ark. 206; Choctaw R. R. Co. v. Jones, 77 Ark. 362; 92 S.W. 246. Appellee corporation doubtless complied with the Arkansas law while doing business in the State, and it was doing business here when the injury occurred. Person v. Dry Goods Co., 113 Ark. 467.

OPINION

WOOD, J.

The appellant instituted this action against the appellee to recover damages for personal injuries. The complaint alleged substantially the following:

The appellee is a Kansas corporation authorized and doing business in this State. On the 12th day of September, 1921, it was engaged in building a bridge from the foot of Garrison Avenue in the city of Fort Smith, Arkansas, on the south side of the river, to a point on the opposite bank on the north side in the State of Oklahoma. The appellant was a resident of the State of Arkansas and an employee of the appellee. He was required, as a part of his duties, to oil the steam shovel or clam-shell which was used by the appellee in excavating the earth from the river for the foundations of the bridge. The work had progressed from the Arkansas side to a point beyond mid-stream and to the Oklahoma side of the river. The appellee maintained its office from which the work of construction was conducted in Fort Smith, Arkansas, where it hired its employees. The appellant and other employees, in going to their work in the morning and in quitting at night, checked in at the Fort Smith office, and started to their work from that office and were paid at such office. Appellant, while engaged about his work on the day above mentioned, on the end of the bridge in Oklahoma, was severely injured, as he alleges, through the negligence of the appellee. The manner of such negligence and the nature of his injuries he specifically sets forth. He alleged that his relation to the appellee at the time was purely contractual; that the contract of employment was entered into between him and the appellee in Arkansas and was made with reference to the laws of Arkansas; that these laws became a part of the contract, and that, under the laws of Arkanas, it was the duty of appellee to furnish appellant a reasonably safe place to work and reasonably safe tools and appliances with which to perform his work, which duties, the appellant alleges, appellee failed to perform. The appellant concludes his complaint by alleging that the injury was caused solely by the breach of contract between appellant and the appellee in that the appellee negligently failed to furnish him a safe place to work and suitable appliances and tools with which to do his work. The allegations of the complaint specify in detail the particulars in which the appellant charges that the appellee failed to discharge its duties as master toward him as servant. He concludes his complaint with a prayer for damages in the sum of $ 50,000.

The appellee filed the following demurrer to the complaint: "First. It does not state facts sufficient to constitute a cause of action. Second. Because the action, which sounds in tort, was committed in the State of Oklahoma, and is governed by the laws of said State, and can be prosecuted only in the court having proper jurisdiction in said State. Third. Because this court has no jurisdiction of the subject- matter of the complaint." The court sustained the demurrer. The appellant stood on his complaint, and the court entered a judgment dismissing the same, from which is this appeal.

1. The appellant contends, first, that his complaint states a cause of action against the appellee for a breach of contract entered into in this State which entitles him to recover damages under the laws of Arkansas; and second, that appellant, being a resident of Arkansas, and having been employed by the appellee in Arkansas, may enforce in the courts of this State the liability of the appellee for the injury done him, through its negligence, while in its employ, under the Oklahoma Workmen's Compensation Act.

(a). In construing a pleading to determine whether it states a cause of action and consequent liability growing out of and caused by a breach of contract, or whether it states a cause of action growing out of and caused by a tort--in other words whether the cause of action be ex contractu or ex delicto--the allegations of the complaint must be considered as a whole. As was said in Fordyce v. Nix, 58 Ark. 136, 23 S.W. 967, "the character of the action must be determined by the nature of the grievance, rather than the form of the declaration." Now, when this complaint is taken by its four corners, it seems clear to us that the pleader intended by its allegations to state a cause of...