Mangiaracino v. Laclede Steel Co., No. 37132.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation145 S.W.2d 388
PartiesJOHN MANGIARACINO v. LACLEDE STEEL COMPANY, a Corporation, Appellant.
Docket NumberNo. 37132.
Decision Date11 December 1940
145 S.W.2d 388
LACLEDE STEEL COMPANY, a Corporation, Appellant.
No. 37132.
Supreme Court of Missouri.
Division One, December 11, 1940.

Appeal from Circuit Court of City of St. Louis.Hon. John W. Joynt, Judge.


[145 S.W.2d 389]

Joseph N. Hassett, Lewis, Rice, Tucker, Allen & Chubb, Milton H. Tucker and Robert T. Burch for appellant.

(1) Under the pleadings and the evidence the plaintiff's alleged cause of action is barred either (a) by the provisions of the Illinois Workmen's Compensation Act, or (b) by the judgment of the Circuit Court of Madison County, State of Illinois, in the proceedings instituted by the plaintiff under the said act. Blaine v. Huttig Sash and Door Co., 105 S.W. (2d) 946; Boneau v. Swift and Co., 66 S.W. (2d) 172; Moore v. E. St. Louis & S. Ry. Co., 54 S.W. (2d) 767; Morris v. C., R.I. & P. Ry. Co., 251 S.W. 763; Secs. 3, 4, 5, 6, 11, Ill. Workmen's Compensation Act, secs. 139, 141, 142, 143, 148; Chap. 48, Smith-Hurd Ill. Ann. Stat.; O'Brien v. Chicago City Ry. Co., 305 Ill. 244, 137 N.E. 214; Stevens v. Ill. Cent. Railroad, 306 Ill. 370, 137 N.E. 859; Faber v. Industrial Comm., 352 Ill. 115, 185 N.E. 255; Great Atl. & Pac. Tea Co. v. Industrial Comm., 347 Ill. 596, 180 N.E. 460; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W. (2d) 128; Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W. (2d) 551; Mt. Olive & Staunton Coal Co. v. Industrial Comm., 355 Ill. 222, 189 N.E. 296; Arquin v. Industrial Comm., 349 Ill. 220, 181 N.E. 613; Row v. Cape Girardeau Foundry Co., 141 S.W. (2d) 117; Howey v. Howey, 240 S.W. 450, certiorari denied, 260 U.S. 730; Tootle v. Buckingham, 190 Mo. 183, 88 S.W. 619; Dailey v. River Raisin Paper Co., 269 Mich. 443, 257 N.W. 857; Repka v. Fedders Mfg. Co., 267 N.Y. Supp. 709, affirmed 264 N.Y. 538, 191 N.E. 553; Gardner v. Stout, 342 Mo. 1206, 119 S.W. (2d) 790; O'Dell v. Lost Trail. Inc., 339 Mo. 1108, 100 S.W. (2d) 289; Conklin v. Kansas City Pub. Serv. Co., 226 Mo. App. 309, 41 S.W. (2d) 608; Bennett v. General Acc., Fire & Life Assur. Corp., 213 Mo. App. 421, 255 S.W. 1076. (2) The defendant owed the plaintiff no duty with respect to the machine in question, and the evidence wholly failed to establish any cause of action in favor of the plaintiff against the defendant. 18 R.C.L., pp. 582, 583; Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W. (2d) 527; Schaum v. S.W. Bell Tele. Co., 336 Mo. 228, 78 S.W. (2d) 439; Duvall v. Armour Packing Co., 119 Mo. App. 150, 95 S.W. 978; Schaub v. Hannibal, etc., Ry. Co., 106 Mo. 74, 16 S.W. 924; Stagg v. Westen Tea & Spice Co., 169 Mo. 489, 69 S.W. 391; Gypsy Oil Co. v. Ginn, 88 Okla. 99, 212 Pac. 314; L. & N. Railroad Co. v. Pettis, 206 Ala. 96, 89 So. 201; Lay's Administrator v. Harland Producers Coal Corp., 262 Ky. 612, 90 S.W. (2d) 716; Menteer v. Scalzo Fruit Co., 240 Mo. 177, 144 S.W. 833; Barry v. Calvary Cemetery Assn., 106 Mo. App. 358, 80 S.W. 709; Boneau v. Swift & Co., 66 S.W. (2d) 172. (3) The evidence wholly failed to show any negligence on the part of the defendant for the reason that defendant could not be charged with the duty to anticipate that any person would be injured at the place where plaintiff was injured. American Brewing Assn. v. Talbot, 141 Mo. 674, 42 S.W. 679; Meifert v. New Union Sand Co., 124 Mo. App. 491, 101 S.W. 1103; Leffler v. Anheuser-Busch Brewing Assn., 127 Mo. App. 488, 106 S.W. 105; Newhouse v. St. Louis Bank Bld. & Equip. Co., 326 Mo. 1047, 33 S.W. (2d) 932; Cluett v. Union El. L. & P. Co., 205 S.W. 72, affirmed 220 S.W. 865; Ward v. Ely-Walker Dry Goods Co., 248 Mo. 348, 154 S.W. 478, 45 L.R.A. (N.S.) 550; Zasemowich v. American Mfg. Co., 213 S.W. 799. (4) The plaintiff was not entitled to recover because, as a matter of law, his own negligence directly and proximately caused or contributed to his injury. Dempsey v. Horton, 337 Mo. 379, 84 S.W. (2d) 621; Manche v. St. Louis Basket & Box Co., 262 S.W. 1021; Hirsch v. Freund Bros. Bread Co., 150 Mo. App. 162, 129 S.W. 1060; Kilmer v. Connecticut Zinc Corp., 206 Mo. App. 346, 227 S.W. 861; Watkins v. Bird-Sykes Bunker Co., 322 Mo. 830, 16 S.W. (2d) 38; Penny v. Southeastern Express Co., 35 S.W. (2d) 940; Watson v. Carthage Marble & White Line Co., 290 S.W. 649. (5) The verdict of the jury was excessive.

Reardon & Lyng and John H. Martin for respondent.

(1) The applicability of the Illinois Compensation Act was not open to question by the trial court since there was a final judicial determination of this question by a court of competent jurisdiction. U.S. Const., Art. IV, Sec. 1; United States ex rel. Bank v. Lufcy, 329 Mo. 1224, 49 S.W. (2d) 8; Howland v. Railroad, 36 S.W. 29; Payne v. O'Shea, 84 Mo. 135; Hudson Kimberle Pub. Co. v. Young, 90 Mo. App. 505; Hammel v. Talbot, 72 Mo. App. 22; Restatement, Conflict of Laws, chap. 10, sec. 431; Fauntleroy v. Lum, 210 U.S. 230; American Express Co. v. Mullins, 212 U.S. 311; Howey v. Howey, 240 S.W. 450. (a) Even though the courts of Missouri could inquire into the judgment of the Circuit Court of Madison County, Illinois, plaintiff's injuries were not compensable under the Illinois Compensation Act for the reason that his injuries did not arise out of and in the course of his employment within the meaning of those terms as used in the Illinois Compensation Act. Great Atl. & Pac. Tea Co. v. Industrial Comm., 347 Ill. 596; Dietzen v. Industrial Comm., 279 Ill. 11; Nelson Railroad Const. Co. v. Industrial Comm., 286 Ill. 632; Imperial Brass Mfg. Co. v. Ind. Comm., 341 Ill. 51; Newberry v. Industrial Comm., 341 Ill. 554; Board of Education of Chicago v. Ind. Comm., 321 Ill. 23; West Side Coal & Mining Co. v. Industrial Comm., 291 Ill. 301. (b) The plaintiff's common-law right of action is not abolished by the Illinois Compensation Act unless his injuries arose out of and in the course of his employment within the meaning of those terms as used in the Illinois Compensation Act, for the reason that plaintiff had, under the Illinois law, a vested substantive right which could be taken from him legally and constitutionally only by substituting therefor some other adequate substantive right. O'Brien v. Chicago City Ry., 305 Ill. 244; U.S. Const., Amend. 14. (2) To be chargeable with negligence, a party need not anticipate the particular manner or kind of injury; it is sufficient if he should have anticipated some injury. Kappel v. Sonnenfeld Millinery Co., 296 S.W. 1055; Howard v. Sacks, Inc., 76 S.W. (2d) 460; Freeman v. Term. Railroad Assn., 107 S.W. (2d) 36; Mrazek v. Term. Railroad Assn., 111 S.W. (2d) 26; Restatement of Torts, sec. 435. (3) Plaintiff was not contributorily negligent as a matter of law. Parton v. Phillips Petroleum Co., 107 S.W. (2d) 167; Cento v. Security Bldg. Co., 99 S.W. (2d) 1; Howard v. Sacks Co., 76 S.W. (2d) 460. (4) The verdict of the jury was not excessive. Taylor v. Terminal Railroad Assn., 112 S.W. (2d) 944; Sacre v. St. Louis Merchants Bridge Term. Ry. Co., 260 S.W. 85; Grubb v. Kansas City Ry. Co., 230 S.W. 675; Dies v. Skrainka Const. Co., 8 S.W. (2d) 873; Rapp v. St. Louis Transit Co., 88 S.W. 865; Schleuter v. E. St. Louis Elec. Ry., 96 S.W. 105.


This is an action by an employee against his employer for damages for personal injuries. Plaintiff had verdict and judgment for $4500. Defendant appealed to the St. Louis Court of Appeals which transferred the case here on the ground that a constitutional question was involved.

Plaintiff lived in Madison County, Illinois. He worked in defendant's plant there and it was there he entered the employ of defendant. Plaintiff's petition alleged that on the date of his injury he was employed in defendant's plant; that while he was at hotbed No. 2 therein the "machinery, motor and rollers did suddenly, unexpectedly and without warning start in motion and move and plaintiff's left foot was caught therein;" that this was due to negligence of defendant, in that "defendant negligently and carelessly caused, suffered and permitted the electric current of said machinery in said hotbed No. 2 to be and remain on and negligently caused, suffered and permitted the main switch to said machinery to be connected or engaged, all in violation of the duly promulgated rule and custom of the defendant's said mill." This was the only charge of...

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