McLeod v. Marion Laboratories, Inc.

Decision Date09 June 1980
Docket NumberNo. WD30865,WD30865
PartiesKerry McLEOD, Plaintiff-Appellant, v. MARION LABORATORIES, INC., Defendant-Respondent.
CourtMissouri Court of Appeals

Dean A. Hodapp, Blumer & Nally, Kansas City, for plaintiff-appellant.

Clyde G. Meise, Meise, Cope & Coen, Kansas City, for defendant-respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

DIXON, Judge.

Plaintiff's petition for personal injuries was dismissed pursuant to a motion to dismiss which asserted that plaintiff's cause of action was barred by § 287.120 RSMo 1978. This section of the Workmen's Compensation Law provides that injury or death by "accident" to an employee arising out of and in the course of his employment releases the employer from all other liability.

Plaintiff appeals and raises, in an overly long and argumentative point, the sole issue that the applicability of the Workmen's Compensation bar to a personal injury claim is an affirmative defense and, as such, places the burden of proof upon the pleader.

No evidence was heard by the trial court, 1 and the issue is framed by the pleadings. In essential part, plaintiff's petition alleged he was an employee of defendant Marion Laboratories when, as he:

"was carrying out his duties as an employee of the defendant, lifting heavy boxes; that plaintiff stooped over and attempted to lift a box weighing in excess of 50 pounds when he felt a sharp pain in his low back; that lifting heavy boxes was part of his regular job which defendant required plaintiff to do in his regular course of performing his work; that defendant was negligent in requiring plaintiff to lift heavy boxes which negligence directly caused plaintiff's injury . . . ."

Plaintiff's petition then asserted a variety of specific grounds of negligence. No question of insufficiency of this pleading to state a cause of action at common law is raised. Plaintiff's petition concluded with allegations of injury and a prayer for damages.

Defendant's Motion to Dismiss was in four paragraphs. The first paragraph recites the language of plaintiff's petition set forth above. The second paragraph reads as follows:

"It is clear from the language in Paragraphs 1 and 2 of Plaintiff's First Amended Petition for Damages, that Plaintiff, at the time of his alleged injury, was clearly an employee of the Defendant, and that if any injury was received by the Plaintiff, which Defendant denies, that it arose out of and in the course and scope of his employment."

The third paragraph sets forth the Workmen's Compensation statute. The fourth reads as follows:

"Section 287.120 clearly bars the Plaintiff from pursuing his alleged cause of action in Count I of his First Amended Petition for Damages. If the Plaintiff received an injury as a result of an alleged accident on November 2, 1976, as alleged in his Petition, which said injury is denied, Plaintiff's only remedy would be for a Claim for Workmen's Compensation."

The motion to dismiss was barren of any support by way of evidence. The parties have argued the issue on the basis of the language of the petition. Plaintiff argues that the statements of the petition do not allege an "accident" within the meaning of the Workmen's Compensation Act. The defendant urges the contrary, asserting that the facts pleaded plainly show an "accident" compensable as a compensation claim. These arguments are off the mark in the manner in which they are presented. There can be no question that the motion raises the issue of subject matter jurisdiction in the circuit court. Such a defense may, at the option of the pleader, be raised by motion. Rule 55.27(a)(1).

For an affirmative defense to be sustained upon a bare motion to dismiss, the defense must be irrefutably established by the plaintiff's pleading. Fiandaca v. Niehaus, 570 S.W.2d 714, 717 (Mo.App.1978); International Plastics Development, Inc. v. Monsanto Co., 433 S.W.2d 291 (Mo. banc 1968). This is but the corollary of the accepted rule that the burden of proof of an affirmative defense rests upon the one asserting the defense.

That the motion to dismiss does not irrefutably establish the affirmative defense in the instant case is patent. The petition does not allege that the defendant is in fact covered by the Workmen's Compensation Act, that the employee had not rejected the provisions of the Act, nor that the requisite notices had been posted, all matters essential to the claim of the defense. In fact, in the entire transcript, there is nothing to indicate the employer was within the coverage of the Workmen's Compensation Act except for an allegation, tendered in a motion to dismiss a separate count of the petition, asserting an injury at a different time. It states that plaintiff had filed a claim for Workmen's Compensation in connection with the injury of another date. The filing of such a claim, even if it might be considered with the instant motion, which is doubtful, does not establish that the employer was within the coverage of the Act.

Additionally, the language of the plaintiff's petition does not "irrefutably" establish an "accident" within the meaning of the Workmen's Compensation Act. Bauer v. Independent Stave Co., 417 S.W.2d 693 (Mo.App.1967), and cases cited therein, demonstrate that the issue of compensability under the compensation act for an injury received by lifting, pushing, or pulling without any untoward event requiring an extraordinary effort, is a close question on the issue...

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14 cases
  • Gross v. Gross
    • United States
    • Missouri Court of Appeals
    • November 24, 1981
    ...affirmative defense. Rule 55.08. The burden to prove the affirmative matter rests on the proponent of the defense. McLeod v. Marion Laboratories, Inc., 600 S.W.2d 656, 657(2, 3) (Mo.App.1980). The principle applies with more rigor where the claimant of the gift was in a relationship of trus......
  • Sampson v. W. F. Enterprises, Inc.
    • United States
    • Missouri Court of Appeals
    • December 30, 1980
    ...defense. For that result to occur, "the defense must be irrefutably established by the plaintiff's pleading." McLeod v. Marion Laboratories, Inc., 600 S.W.2d 656(2) (Mo.App.1980); Jaime v. Neurological Hospital Ass'n. of Kansas City, 488 S.W.2d 641, 644 The defense of contributory negligenc......
  • Fisher v. Steelville Community Banc-Shares, Inc.
    • United States
    • Missouri Court of Appeals
    • July 18, 1986
    ...upon a bare motion to dismiss, the defense must be irrefutably established by the plaintiff's pleading." McLeod v. Marion Laboratories, Inc., 600 S.W.2d 656, 657 (Mo.App.1980). Also see Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769 This court has not been cited to any authority holding......
  • Blum v. Airport Terminal Services, Inc.
    • United States
    • Missouri Court of Appeals
    • September 27, 1988
    ...does not establish that Blum's death is covered by the Workers' Compensation Act. In that regard they rely upon McLeod v. Marion Laboratories, Inc., 600 S.W.2d 656 (Mo.App.1980) which holds that all jurisdictional facts which would bring plaintiff and defendant under the act must appear in ......
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