Mitchell v. St. Louis Smelting & Refining Co.

• Decision Date: 04 November 1919
• Citation: 215 S.W. 506,202 Mo.App. 251
• Parties: WILLIAM MITCHELL, Appellant, v. ST. LOUIS SMELTING & REFINING CO., a Corporation, Respondent
• Court: Missouri Court of Appeals

215 S.W. 506

202 Mo.App. 251

WILLIAM MITCHELL, Appellant, v. ST. LOUIS SMELTING & REFINING CO., a Corporation, Respondent

Court of Appeals of Missouri, St. Louis

November 4, 1919

October 9, 1919, Argued and Submitted

Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.

AFFIRMED AND REMANDED.

Order affirmed and cause remanded.

Joseph Reilly for appellant.

(1) Burden of proving the application of the Compensation Act of Illinois to this case, is on the defendant. The defendant attempts to plead the Compensation Act of Illinois as a defense, and the burden is on the defendant to plead and prove that the Compensation Act has jurisdiction in this case. It must overcome the presumption that the common law applies. The defendant has utterly failed to carry its said burden. Gilbert v. Des Lauriers Column Mould Co., 180 N.Y.S. 267. (2) The answer is bad as a pleading. The answer of the defendant pleads only conclusions of law and raises no issue of fact. It does not state facts sufficient to constitute a defense to the plaintiff's cause of action. Mallinckrodt v. Nemnich, 83 Mo.App. 6; Mallinckrodt v. Nemnich, 169 Mo.App. 388; Gibson v. Railroad, 225 Mo. 475; Wentz v. Railroad, 259 Mo. 465. The answer is bad for the further reason that it pleads by way of general denial followed by confession and attempted avoidance. Adams v. Trigg, 37 Mo. 141; Coble v. McDaniel, 33 Mo. 363; England v Dunham, 93 Mo.App. 19; Kelerher v. Little & Henderson, 203 Mo. 498, 512; State ex inf. Delmar Jockey Club, 200 Mo. 34, l. c. 65; Atterberry v. Nichols & Hendricks, 127 Mo.App. 47. (3) There was a total failure of evidence to sustain the defendant's defense, even if the answer of the defendant can be held sufficient as a pleading. (4) The court committed error in granting an order or a new trial.

Boyle & Priest and G. T. Priest for respondent.

In actions for damages to the person sounding in tort, the law of the place where the injury was received governs. The Workmen's Compensation Law of the State of Illinois providing for the manner in which injuries received under the circumstances which appellant received his, is exclusive and the courts of Missouri are without jurisdiction and authority to entertain an action by appellant at common law. Chandler v. Railroad, 127 Mo.App. 43; Williams v. Railroad, 106 Mo.App. 61; Coy v. Railroad, 186 Mo.App. 408; Detroit v. Osborn, 135 U.S. 592. Appellant has sued in this State and has predicated his action upon facts sounding in tort. Respondent contends otherwise, but whether the action sounds in tort or contract makes no particular difference in this instance, for the contract was actually consummated in Illinois and was to be wholly performed in the State of Illiniis, in which event the laws of the State of Illinois govern Liebing v. Life Insurance Co., 207 S.W. 230. The rule, as announced by our appellate courts, that for actions sounding in tort, the laws of the State where the injury was received govern the action. If no cause of action accrued in favor of the injured party in the State where he was injured, then none can accrue in his favor in this State. It is put this wise in the case of Chandler v. Railroad, 127 Mo.App. p. 43.

REYNOLDS P. J. Allen and Becker, JJ., concur.

OPINION

REYNOLDS, P. J.

Action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of the defendant at the latter's plant near Collinsville, in Madison County, Illinois.

The petition in the case avers that in September, 1917, while plaintiff was a resident of the city of St. Louis and a citizen of the State of Missouri, and within the city and State, defendant entered into a contract of hire with plaintiff, whereby plaintiff was to enter the service of defendant as a laborer at its place of business in the city of Collinsville, in the State of Illinois; that in said month and year plaintiff, "under the contract made in the State of Missouri," commenced work for defendant and continued in the service of defendant as such laborer until November 29, 1917; that on November 29, 1917, at the city of Collinsville, in the State of Illinois, defendant, in connection with its business, maintained and operated a smelting furnace; that on the day mentioned, defendant, by its foreman, ordered plaintiff to clear away the debris and slag, which covered the railroad track in front of the furnace; that defendant negligently permitted molten hot lead to escape from the furnace; that the surface of this molten lead had cooled and become hard, forming a crust of the same color as the ground surrounding it; that plaintiff was ignorant of the presence of the molten hot lead and it was not visible or discoverable to plaintiff by the exercise of ordinary care and that while plaintiff, in the exercise of ordinary care, was attempting to break a large piece of the debris with a heavy hammer, he stepped on the crust, which broke and gave way, so that plaintiff's left foot was projected down into the molten hot lead beneath the crust, and his left foot burned from above the ankle to the sole thereof, so that the flesh was burned to the bone on that foot. Charging that defendant knew, or by the exercise of ordinary care would have known, of the presence of this hot lead, and of the danger of plaintiff stepping into it and averring that by reason of his suffering and injury sustained plaintiff has permanently lost the use of his left foot, he demands damages in the sum of $ 15,000.

There was a demurrer interposed to this on various grounds but the demurrer was overruled. A motion to make the petition more definite and certain was also interposed and overruled.

The answer, after a general denial, charges that before and at the time plaintiff sustained the alleged injuries he was employed by defendant at its smelter in Madison County, Illinois; that defendant was at that time engaged in an enterprise wherein molten metal was then and there manufactured and used in dangerous quantities, and in an enterprise wherein statutory regulations of the State of Illinois were then imposed, for the regulating, guarding and placing of machinery and appliances for the protection and safeguarding of defendant's employees therein; that plaintiff was then and there directly engaged in his employment as a tapper-helper, whereby he was exposed and subjected to the dangers of the enterprise, and that while he was then and there in the course of the employment and subjected to the aforesaid dangers, plaintiff came in contact with certain of the molten metal then and there being manufactured and used by defendant, whereby, as a result thereof, plaintiff received the injuries mentioned. Further answering, defendant avers that at that time, ever since, and now, there was and is in force in the State of Illinois a statute of that State known and cited as "Workmen's Compensation Act," and that the provisions of the act at the time of the alleged injury to plaintiff in his petition mentioned, applied to the defendant and to plaintiff because the defendant was engaged in this enterprise and that in and by this Workmen's Compensation Act, certain compensation is therem provided for the employees of those employers who shall be injured by reason of an accident arising out of and in the course of their employment, and that the injuries herein sued for were sustained by plaintiff in an accident which arose out of and in the course of plaintiff's employment with defendant, and that the amount of compensation due plaintiff for the injuries aforesaid alleged to have been sustained is provided for in the Workmen's Compensation Act, in section 6 of [215 S.W. 508] which act it is further provided that no common law or statutory right to recover damages for injuries sustained by an employee while engaged in the line of his duty as such employee other than the compensation provided for in the act shall be available to any employee who is covered by the provisions of the act; that it is further provided by that act that all accidents arising thereunder, if not settled by an agreement of the parties interested therein, should, except as otherwise provided, be determined by the Industrial Commission of the State of Illinois; that by section 11 of this act it is provided that the measure of responsibility of this defendant to plaintiff for personal injuries suffered in his employment shall be compensation as provided for in the act; that at the time of the injury to plaintiff, plaintiff was covered by the provisions of the aforesaid Workmen's Compensation Act and was then and there engaged in the line of his duty as such employee of the defendant. Further answering, defendant sets up that at and before the time of plaintiff's alleged injury plaintiff was in the employ of defendant, engaged then and there in extra-hazardous occupations; that both defendant and plaintiff were then and there bound by the abovementioned Workmen's Compensation Act of the State of Illinois; that plaintiff received his alleged injuries from an extra-hazardous occupation mentioned in section 3 of that act; that by the terms and conditions of the act plaintiff is barred and prevented from recovering compensation or damages for his injuries, except according to the terms of that act; that thereafter plaintiff accepted from defendant certain payments of compensation under the aforesaid act and elected to be bound by the remedies provided in that act and elected his remedy thereunder, and is not entitled to bring this action.

To this answer a reply was filed, generally denying the allegations thereof.

There was a trial of the cause before the court and a jury and a verdict in favor of plaintiff in the sum of $ 4893. Whereupon defendant filed...