Mosely v. Empire Gas & Fuel Co.
| Decision Date | 12 March 1926 |
| Docket Number | No. 25112.,25112. |
| Citation | 281 S.W. 762 |
| Court | Missouri Supreme Court |
| Parties | MOSELY v. EMPIRE GAS & FUEL CO. |
Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.
Suit by Robert H. Mosely against the Empire Gas & Fuel Company. From a judgment sustaining a plea in abatement, plaintiff appeals. The case was transferred to the Supreme Court in consideration of constitutional questions raised. Affirmed.
C. W. Prince, E. A. Harris, and James N. Berry, all of Kansas City, for appellant.
Guy At Cowgill and Arthur C. Popham, both of Kansas City, for respondent.
This is a suit in which plaintiff asks for judgment for damages under the Workmen's Compensation Law of the state of Kansas, for personal injuries alleged to have been sustained by him, in Kansas, while in the course of his employment by defendant company, in the state of Kansas, in the business of drilling for oil and gas. The defendant is alleged to be a corporation engaged in the business of drilling for oil and gas in Kansas and other states, but the state of its incorporation is not alleged, nor the place of plaintiff's residence.
The petition alleges that plaintiff was assisting in the removal of an iron casing from a well; that in said work a long cable was used, which was caused to wrap around a revolving drum; that defendant provided a drum without a flange fastened upon the end. thereof; that by reason of the absence of such flange the cable, while being drawn around the drum, was caused to slip off and strike the plaintiff, whereby the bones of his right arm were broken, and "that the use of plaintiff's right arm has been permanently disabled"; and he alleges expenditure of money on account of his injury, pain suffered, and the like. There is no allegation of negligence on the part of defendant.
Plaintiff pleaded and set forth certain provisions of the law then in force, found chapter 61, art. 6, of the general Statutes of. Kansas 1915, and, as amended, Laws of Kansas 1917, c. 226.
The defendant filed a plea in abatement alleging that plaintiff ought not to have or maintain his action in the Missouri court, and set forth the provisions of sections 20, 23, and 24 of chapter 226, Laws of Kansas 1917.
The sections pleaded by plaintiff were those concerning the liability of the employer for injuries sustained by his employees, operating under the terms of the law, and the rights of such employees thereunder. The sections pleaded by defendant were those which provided that no action or proceeding under the law could be brought outside of the state of Kansas, and defining the conditions under which the employer and the employee would be deemed to have accepted the provisions of the law. The trial court overruled plaintiff's demurrer to the plea in abatement, and plaintiff filed a reply. The reply pleaded that the Kansas law, in so far as it was an attempt to confine to the state of Kansas the trial of causes arising under the Compensation Law of that state, was in contravention of article 5 and article 14 of the Amendments to the Constitution of the United States, and violative of the provisions of section 2 of article 4, and section 10 of article 1, as an attempt to abridge the privileges and immunities of the plaintiff, to deprive him of his property without due process of law, deny to him the equal protection of the laws, and deny him a fixed right, in that it undertook to deny the plaintiff the right to litigate his cause of action, he having obtained service on defendant, in the state of Missouri. It was admitted that the statutory provisions pleaded were in force. The court sustained the plea in abatement, overruled plaintiff's motion to set aside the involuntary nonsuit taken by him, and overruled his motion in arrest. The appeal was granted to the Kansas City Court of Appeals, but that court, in consideration of the constitutional questions raised, transferred the cause to this court. Under the provisions pleaded by defendant, by section 23, c. 226, Laws of Kansas 1917, the employer shall be presumed to have accepted the provisions of the act if he has not filed a written statement that he elects not to accept thereunder; and similarly, by section 24, the employee is presumed to have accepted the provisions of the act unless before injury he has filed a written declaration that he elects not to accept thereunder. The declaration by him is to be filed with the secretary of state, and also a duplicate thereof with his employer.
The case here, as presented by the pleadings and in the briefs, proceeds upon the theory that no declaration not to accept was filed by either, and that thereby both plaintiff and defendant did accept the provisions of the law. As to the right to bring the action, the provision (a part of section 20 of said act) is as follows:
"No action or proceedings provided for in this act shall be brought or maintained outside of the state of Kansas, and notice thereof may be given by publication against non-residents of the state in the manner now provided," under certain general statutes.
The sections concerning the relation created by the employer and employee in respect of. the act, through failure to file a declaration not to accept its provisions, have been construed by the Supreme Court of Kansas, in the following cases, among others: Shade v. Lime & Cement Co., 144 P. 249, 93 Kan. 257; Railway Co. v. Fuller, 186 P. 127, 105 Kan. 608; Wegele v. Imert-Hincke Milling Co., 186 P. 130, 105 Kan. 615. The statute is optional in character. Smith v. Packing Co., 225 P. 110, 115 Kan. 874. The substance of the holdings in these cases is that both employer and employee, by operation of the statutes mentioned, accept the provisions of the law if they do not file the declaration not to accept thereunder, and that thereby the provisions of the statute become a part of the contract of employment.
The Supreme Court of Kansas, further construing the provisions of the law, has held that the remedy afforded by the Workmen's Compensation Act, in cases where the employer and employee have elected to come within those provisions, is exclusive. Shade v. Cement Co., 139 P. 1193, 92 Kan. 146; McRoberts v. Zinc Co., 144 P. 247, 93 Kan. 364. Following Moeser v. Skunk, 226 P. 784, 116 Kan. 247, it was said in Johnson v. Milling Co., 229 P. 359, 361, 116 Kan. loc. cit. 734:
The construction given to this statute by the Supreme Court of Kansas becomes part and parcel of the statute, so far as Missouri courts are concerned, in determining the nature of the right. Hiatt v. St. Louis & S. F. Ry. Co., 271 S. W. 806. The question presented here up to this time has not been decided by this court. The question at issue, minus consideration of the provisions of the federal constitution here invoked, or consideration of section 1162, R. S. 1919, was decided by the Kansas City Court of Appeals in Harbis v. Cudahy, 241 S. W. 960, 211 Mo. App. 188. The plaintiff in that case recovered judgment upon a claim arising upon the Kansas Compensation Law, and it was held that the act was a part of the contract of employment, and the provision therein forbidding maintenance of an action outside of Kansas was binding, and the judgment was reversed. That case came here for review, in certiorari, in State ex rel. Harbis v. Trimble, 238 S. W. 809, 292 Mo. 333. In that proceeding, this court distinguished the Harbis Case from those involved in decisions of this court, cited in support of a claim of conflict, and quashed the writ. In doing so expression of the views of this court upon the validity of the provision of the Kansas law, imposing the condition that the action could be brought only in the courts of Kansas, was withheld. Reference was made in the opinion to the expression used in Lessenden v. Mo. Pac. R. R., 142 S. W. 332, 238 Mo. loc. cit. 260, to the effect that no reason is seen why a state which creates a right of action could not impose such a condition, and that expression was declared to be obiter.
The plaintiff relies upon certain decisions of the Supreme Court of the United States, and particularly those in Atchison, Topeka & Santa Fé R. R. v. Sowers, 29 S. Ct. 397, 213 U. S. 55, 53 L. Ed. 695, and Tennessee Coal, Iron & Railway Co. v. George, 34 S. Ct. 587, 233 U. S. 354, 58 L. Ed. 997. In the Sowers Case the original plaintiff was injured while riding upon the pilot of an engine near Gallup, N. M., and, as it was alleged, through the negligence of the defendant. He brought suit in Texas, and a judgment in his favor was affirmed by the Supreme Court of that state. The statute of the territory of New Mexico provided that such an action could be brought only in the courts of New Mexico. The right of the plaintiff to maintain his action at all, under the New Mexico statute, was conditioned upon compliance with certain prescribed requirements. He was required, within 90 days after injury, to make a verified statement thereof and demand his damages, and also required to sue within one year after the occurrence of the injury.
The Kansas act requires demand to be made within three months, and does not permit the employee to sue if the employer is willing to arbitrate. The petition alleges that plaintiff made the demand and defendant refused to arbitrate.
The question presented in the Sowers Case was whether the Texas court...
To continue reading
Request your trial