Miller v. Hotel Savoy Co.

• Decision Date: 29 January 1934
• Parties: BESSIE MILLER ET AL., RESPONDENTS, v. HOTEL SAVOY COMPANY, APPELLANT
• Court: Kansas Court of Appeals

68 S.W.2d 929

228 Mo.App. 463

BESSIE MILLER ET AL., RESPONDENTS, v. HOTEL SAVOY COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

January 29, 1934

Appeal from Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

AFFIRMED.

Judgment affirmed.

Clif Langsdale and Roy W. Rucker for respondent.

Harris & Koontz for appellant.

OPINION

SHAIN, P. J.

This suit was instituted under the provisions of Article 1 of Chapter 27, Revised Statutes 1929, by Bessie Miller and Claude Knock, the mother and father of Claude Knock, Jr., as plaintiffs, and against Hotel Savoy Company, a corporation as defendant. It appears that the plaintiffs had formerly been husband and wife and that their son, Claude Knock, a minor of sixteen years of age, while operating an elevator in a hotel being operated by the defendant in Kansas City Missouri, had been killed. It appears that young Knock was at the time of his death substituting for a regular employee, who was absent upon vacation, and the plaintiffs plead that the son was in the employ and being paid by the employee for whom he was substituting.

The plaintiffs plead that the defendant's elevator, upon which the boy was killed, was maintained by defendant in a negligent manner in that said elevator would start up without the aid of anyone and without anyone having moved or put in motion any of the contrivances or machinery which would ordinarily and normally be put in motion to cause said elevator to start up.

The plaintiffs allege that while the minor son was engaged in operating the said elevator it was stopped by him at the first floor; that he had gotten out upon the floor and that while he was standing there the elevator suddenly started up of its own accord; that the boy attempted to get in the elevator and stop it; and that he received injury causing his death.

The defendant, for answer, pleads contributory negligence alleging that the son of plaintiffs negligently attempted to board the elevator when it was too near the ceiling and when it was dangerous to make such an attempt; further, that it had complied with the provisions of the Workmen's Compensation Law, that defendant and Claude Knock, Jr., were subject to the provisions of said act, and that the Circuit Court of Jackson County, Missouri, was without jurisdiction.

Plaintiffs in reply present that, by reason of age of plaintiffs' son, his employment was illegal by reason of a city ordinance precluding defendant from employing a minor of the age of their son and for that reason the Workmen's Compensation Act could not control; further, that the provisions of the Workmen's Compensation Act neither deprives or attempts to deprive them of their cause of action under Sections 3262 and 3263, Revised Statutes 1929, for the reason that such an interpretation would deprive them of their rights under the provisions of Section 30, Article 2, of the Constitution of Missouri.

The above coming by way of reply does not raise a constitutional question for our determination but only presents for our consideration a question as to the application thereof.

Based upon a denial wherein plaintiffs in reply deny that their son was not in the employment of the defendant within the meaning of the Workmen's Compensation Act, the plaintiffs present further that their son was but a casual employee, if an employee.

Trial was by jury and verdict was for plaintiffs in the sum of $ 6,250. Judgment was entered in accordance with the verdict and the defendant appeals.

The defendant, appellant herein, presents under points and authorities twelve assignments of error. The first assignment is claim of error in the refusal of peremptory instruction offered by defendant. Five of the specifications are as to admission and refusal of evidence. Five are specific claims of error as to the giving and refusal of instructions. Specification twelve makes claim that the verdict of the jury was excessive.

Outside of specification of error one and twelve, no authority is cited in support. As to claims of error as to admission and refusal of evidence, the assignment but states that it was error to permit certain witnesses to testify to some stated fact or error to refuse a witness to testify to some fact. There is no attempt to state why error. No attempt is even made to refer to what part of the record the objectionable matter is recorded. The course followed is presumptive to the effect, that we will carefully scan the record in search of error and will carefully look up the law when in doubt. While such a presumption is highly complimentary to the court, still we would prefer less compliment and more specific assignment of error and citation of authority in support.

As to the assignments of error in regard to admission and refusal of evidence, we have carefully gone over the record and conclude that there is no such prejudicial error as to justify a reversal.

We are told in defendant's brief that plaintiffs' instructions one and four are in error and that the refusal of defendant's Instructions D, F, G and H presents error. No reason is assigned and no authority is cited. De hors the record, we would say that a position on an appellate bench does not entirely eliminate the judge from the practice of law.

We have examined plaintiffs' instructions one and four and find no error therein. As to defendant's refused Instructions D and G, the same are drawn upon the theory presented, that the employment of plaintiffs' minor son came within the provisions of the Workmen's Compensation Act. The instructions are error or not error in accordance with conclusions as to that issue, which we present below.

We conclude defendant's Instruction F was properly refused because the same does not correctly define the duty of defendant as to the deceased boy.

We conclude that defendant's Instruction H was properly refused for the reason that defendant's liability is not necessarily determined by the statements therein contained.

Coming to the issue presented by defendant's claim of error in refusal of demurrer to the evidence, we conclude there is sufficient evidence to raise an issue of fact for the jury, if it be concluded that the plaintiffs have a cause of action arising out of rights based upon the provisions of Article 1 of Chapter 27, Revised Statutes 1929.

It is contended, however, by the defendant, that the facts and circumstances as presented as to the injury and death of the minor son of plaintiffs, present a matter controlled by the provisions of the Workmen's Compensation Act. If the defendant's contention in this respect be correct, the circuit court, of course, had no jurisdiction of the subject-matter of the suit.

The plaintiffs, respondents herein, have specifically taken the position that there is nothing in the Workmen's Compensation Act that deprives parents of a minor child, upon whom they are not dependent and from whom they are not receiving support, from pursuing their right of action for...