Mangiaracino v. Laclede Steel Co.

• Decision Date: 11 December 1940
• Docket Number: 37132
• Parties: John Mangiaracino v. Laclede Steel Company, a Corporation, Appellant
• Court: Missouri Supreme Court

145 S.W.2d 388

347 Mo. 36

John Mangiaracino v. Laclede Steel Company, a Corporation, Appellant

No. 37132

Supreme Court of Missouri

December 11, 1940

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

Reversed.

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 A. & 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.S. 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 P. 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 A. & 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.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

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 negligence submitted, but the petition contained other charges, such as failure to warn, failure to inspect, etc. Defendant's answer contained a general denial, alleged contributory negligence, set up also provisions of the Illinois Workmen's Compensation Act and certain decisions of the Supreme Court of Illinois, and stated that the only rights plaintiff had were under that Act.

Plaintiff filed a reply, which (as summarized in plaintiff's brief) pleaded that he had filed a claim with the Industrial Commission of Illinois; that the matter was heard by an arbitrator appointed by that Commission, who found in favor of the employee and against the employer; that then the employer appealed to the full Commission, which, after reviewing the record, affirmed the award in favor of the employee; that the employer then caused a writ of certiorari to be issued out of the Circuit Court of Madison County Illinois, to the Industrial Commission and John Mangiaracino to review the proceedings held before the Industrial Commission; that this matter was then submitted to the Circuit Court of Madison County; that the judgment of that Court was: "It is ordered by the Court that the decision of the Industrial Commission be and the same is set aside, and the Court finds that said injuries did not arise out of and in the course of the employment, and that petitioner is not entitled to receive from respondent compensation on account of said injuries." Plaintiff's reply also pleaded the statutory and case law of Illinois with respect to the jurisdiction and...