Mayberry v. Fruin-Colnon Contracting Co.

• Citation: 37 S.W.2d 574,327 Mo. 386
• Decision Date: 31 March 1931
• Docket Number: 29256
• Parties: Alexander Mayberry, Appellant, v. Fruin-Colnon Contracting Company
• Court: United States State Supreme Court of Missouri

37 S.W.2d 574

327 Mo. 386

Alexander Mayberry, Appellant, v. Fruin-Colnon Contracting Company

No. 29256

Supreme Court of Missouri

March 31, 1931

Rehearing Overruled March 31, 1931.

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Reversed and remanded.

Bartley & Mayfield for appellant.

(1) The provisions of the Workmen's Compensation Act were not in effect at the time of the happening of this accident, which was on November 10, 1926, and was prior to the appointment of the Workmen's Compensation Commission, which took place on November 16, 1926. (a) The Workmen's Compensation Act is not a compulsory law, but is an elective law. Laws 1927 pp. 491, 492, sec. 2. (2) Such law could not be constitutional if plaintiff was denied his right of trial by jury. He had no opportunity to waive his right of trial by jury or reject such law prior to the appointment of the commission. The Constitution guaranteed him a right of trial by jury unless he waived such right or elected to come under said law. He could not elect to come under said law prior to the appointment of a commission. Sec. 28, Art. 2 Constitution of Missouri; Kansas City v. Smith, 238 Mo. 323; Hickox v. McKinley, 278 S.W. 671; Renshaw v. Reynolds, 297 S.W. 374; Frowein v. Poage, 231 Mo. 82. (2) It is the elective feature of this law which makes said law constitutional. Young v. Duncan (Mass.), 106 N.E. 1; Deibeikis v. Link Belt Co., 104 N.E. 211, 261 Ill. 454; Hunter v. Consolidated Coal Co., 154 N.W. 1037, 175 Iowa 245; Anderson v. Steel Co., 99 A. 215; Sayles v. Foley, 96 A. 340, 38 R. I. 484; Shea v. North Butte Min. Co., 179 P. 499. (3) There was no showing that defendant herein had complied with Section 25 of said Workmen's Compensation Act. This section gave plaintiff the right to elect after injury to accept or reject the provisions of the act, if the employer was not insured or was not a self-insurer. Laws 1927, p. 506. (4) The act is an elective and not a compulsory law. State ex rel. v. Comp. Com., 8 S.W.2d 899.

Jones, Hocker, Sullivan & Angert and W. A. McCaleb for respondent.

(1) The Workmen's Compensation Act, Laws 1927, pp. 490-522, became effective and was in operation from and after the approval thereof by the voters on Nov. 2, 1926. Art. IV, Sec. 57, Constitution of Missouri; State ex rel. Elsas v. Mo. Workmen's Comp. Comm., 2 S.W.2d 796. (2) The right of trial by jury may be waived and is waived under the terms of the Workmen's Compensation Act unless the parties exercise their right of election. Laws 1927, p. 492, Sec. 2. (a) The "right to elect" to reject the act and the "opportunity to elect" are not synonymous phrases. (b) Where a right is given by law and a means for exercising the right is also given by the same law, but the opportunity to assert the right is denied by reason of the failure of an executive officer to perform a duty cast upon him by the law, no constitutional right is invaded. (c) The opportunity to assert his election was not denied plaintiff by the terms or provisions of the Workmen's Compensation Act, but only by the failure of the Governor to appoint the Workmen's Compensation Commission prior to the injury in question. The unconstitutionality of a law must be predicated upon a denial of constitutional guaranties by the terms of the law itself and cannot be based upon the failure of an executive officer to perform a duty created by the terms of the act. The fact that the Governor did not appoint the Commission until November 16, 1926, may work a hardship on a few litigants who happened to be injured between November 2 and November 16, 1926, but that is no reason for declaring the law unconstitutional. State ex rel. Elsas v. Workmen's Comp. Comm., 2 S.W.2d 796. (3) The failure of the Governor to appoint the commission before November 16, 1926, could at most only defer the time for asserting an election to reject the act, and, inasmuch as plaintiff did not at any time after the appointment of the commission, file his election to reject the act he will be conclusively presumed to have accepted it. (a) Under the law as originally enacted, ample time was afforded for asserting an election under its terms. Laws 1927, p. 516, sec. 56; Laws 1927, p. 522, sec. 79. (b) The Governor was required to appoint the Commission immediately upon the adjournment of the Fifty-third General Assembly. Laws 1927, p. 516, sec. 56. (c) The act itself contemplated that the commission should be appointed and functioning a sufficient time before the act became operative to allow an opportunity for an election under its terms. Laws 1927, p. 516, sec. 56; Laws 1927, p. 522, sec. 79. (d) In view of the fact that the operation of the act was suspended by referendum, the provisions of Section 79 of the act became ineffectual and inoperative by lapse of time; but, pursuant to the intention of the Legislature, as expressed by Sections 56 and 79, the full force thereof may be given effect by holding that plaintiff had a reasonable time after the appointment of the commission to file notice of election, and as no notice was filed at any time he should be deemed to have accepted the act. (4) The question as to whether the defendant complied with Section 25 of the act requiring it to carry insurance is not in question on this appeal, as no issue was presented by the pleadings. (a) If plaintiff intended to rely upon the failure of defendant to carry insurance as giving him a right to elect to proceed at common law, he was required to plead such fact, either in his petition or reply. Kemper v. Gluck, 21 S.W.2d 922; Steagall v. Iron & Coal Co., 87 So. 787; Demopolis Telephone v. Hood, 102 So. 35; Kasulka v. Railroad Co., 105 So. 187; Gunnoe v. Coal Co., 117 S.E. 484; Preno v. Anthracite Mining Co., 284 F. 495.

OPINION

Gantt, P. J.

The petition in this case was filed in the Circuit Court of the City of St. Louis on March 16, 1927. It was alleged that on and prior to November 10, 1926, plaintiff was in the service of defendant as a laborer and that during the course of his employment on said day he sustained injuries as a direct result of the negligence of defendant, to his damage in the sum of $ 20,000.

The answer was a general denial and a plea in abatement. It was therein alleged that the circuit court was without jurisdiction to hear and determine the cause for the reason the Workmen's Compensation Act was in force and effect on November 10, 1926, and therefore the Workmen's Compensation Commission had exclusive jurisdiction of plaintiff's injury.

Replying plaintiff admitted said act was referred to a vote of the people on November 2, 1926, and that a majority of the votes cast were in favor of said act, but alleged his injury did not fall within the jurisdiction of the Workmen's Compensation Commission, for the reason there was no such commission with which he could file a written notice rejecting the act, and further alleged that a denial of the right of trial by jury without an opportunity to reject the act would be in violation...