Oren v. Swift & Co.

• Decision Date: 27 May 1932
• Docket Number: No. 30668.,30668.
• Court: Missouri Supreme Court
• Parties: OREN v. SWIFT & CO. et al.

51 S.W.2d 59

OREN v. SWIFT & CO. et al.

No. 30668.

Supreme Court of Missouri, Division No. 1.

May 27, 1932.

Rehearing Overruled June 13, 1932.

Appeal from Circuit Court, Grundy County; A. G. Knight, Judge.

Proceeding under the Workmen's Compensation Act by Vern Oren, employee, opposed by Swift & Co., employer, and the Security Mutual Casualty Company, insurer. From a judgment setting aside an award of the Workmen's Compensation Commission, the employer and insurer appeal.

Reversed.

Russell Field, of Kansas City, and Brown, Douglas & Brown, of St. Joseph, for appellants.

Platt Hubbell, of Trenton, and Geo. H. Hubbell, of Kansas City, for respondent.

FERGUSON, C.

Vern Oren, an employee of Swift & Co., commenced this proceeding under the Workmen's Compensation Act by filing his claim for compensation with the Workmen's Compensation Commission. The claim states: "Claim is hereby made for compensation as provided in the Missouri Workmen's Compensation Act, for personal injury of the employee arising out of and in the course of his employment, both employer and employee having elected to accept said act before and at the time of the accident." Swift & Co. is named as employer, and Security Mutual Casualty Company as insurer. It is then stated that the accident occurred on March 18, 1929, at the plant of Swift & Co. at Trenton, Mo., as claimant "was lifting a can full of cream and while turning and lifting he stepped onto a piece of butter whereupon claimant's left foot shot from under him causing him to fall violently back against some other cans of cream," and that claimant sustained permanent injuries to his back and spine therein described. The employer and insurer named in the claim filed joint answer admitting "all of the statements in the claim" except the average weekly wages, the disability, nature and extent of injury, and the happening of the accident, as alleged therein, which are denied. Thereupon a hearing, upon the claim, was had, at Trenton, before a referee representing the Workmen's Compensation Commission, and the testimony of claimant and witnesses called by both claimant and the employer was heard, transcribed, and reported as provided for in the Compensation Act, sections 3339 and 3357, Rev. St. 1929. At this hearing the employee offered testimony tending to show an injury, as described in his claim, resulting from the alleged accident, and the employer offered testimony in an effort to show that the employee's physical condition could not have been the result of the accident described. The referee made a finding and award in favor of the employer and against the claim "for the reason that employee's condition is not the result of an accidental injury arising out of and in the course of his employment." Pursuant to section 43 of the Workmen's Compensation Act (section 3341, Rev. St. 1929), claimant made application to the commission for a review of the award made by the referee. Upon a review of the evidence, by the full commission, a final award was made by the commission (section 44, Workmen's Compensation Act, section 3342, Rev. St. 1929) in favor of the employer and insurer "and against the employee * * * for the reason that employee's condition is not the result of an accidental injury arising out of and in the course of his employment." Under the provisions of section 44 of the Compensation Act (section 3342, Rev. St. 1929), the claimant appealed to the circuit court of Grundy county. Said section 44 provides that the circuit court on such appeal "shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: 1. That the commission acted without or in excess of its powers. 2. That the award was procured by fraud. 3. That the facts found by the commission do not support the award. 4. That there was not sufficient competent evidence in the record to warrant the making of the award." However, in the circuit court claimant, appellant there, did not present nor ask a determination of, and the court did not pass upon, any of the questions thus made reviewable by the circuit court. The only matter presented by claimant in the circuit court was what is denominated as a motion to quash and set aside the award of the Workmen's Compensation Commission on the ground that the Workmen's Compensation Act is unconstitutional. The motion charges that sections 41, 42, 43, 44, and 45 of the act (Rev. St. 1929, §§ 3339-3343) "confer and grant jurisdiction and judicial power over the subject matter of the Act" to the Workmen's Compensation Commission and that same contravene sections 1, 22, and 23 of article 6 of the Constitution of Missouri, and prays the court to declare said sections of the act unconstitutional and void, to quash and set aside the award of the commission and tax the costs of the proceeding against the employer and insurer. The court sustained the motion holding "sections 41-45, inclusive" of the act to be "unconstitutional and void for the reasons set forth in said motion and that the Missouri Workmen's Compensation Act contravenes sections 1, 22 and 23 of article 6 of the Missouri Constitution," and entered judgment decreeing that "said award be quashed, set aside and for naught held" and "that the claimant and appellant herein" recover of the employer and the insurer, the costs of the proceeding. From this judgment the employer and the insurer appealed.

It is conceded that both the employee, the claimant, and the employer elected to accept the provisions of the Workmen's Compensation Act as the claim filed, and by which this proceeding was commenced, states and the employer's answer thereto admits. "The Compensation Acts are based on a new theory of compensation distinct from the existing theories of damages, the underlying conception being one of insurance. The liability created has no reference to negligence or tort." Kiser on Workmen's Compensation Acts (Corpus Juris Treatise) pp. 6 and 7. The Missouri act (section 3 [section 3301, Rev. St. 1929]) provides: "If both employer and employee have elected to accept the provisions of this chapter [the Workmen's Compensation Act], the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment." The act "is not supplemental or declaratory of any rule, right, or remedy accorded by the common law to an employee * * * but creates an entirely new right or remedy, in favor of an employee who has elected to accept the provisions of said act." De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.(2d) 640, 645. The claimant in this proceeding had elected to accept and come under the provisions of the act. Following the alleged accident and relying upon the terms and provisions of the act he filed his claim with the commission asserting the right to compensation conferred by the act upon an employee. The right thus asserted was created and exists solely by virtue of the provisions of the act. He submitted his claim to the commission in the manner prescribed by the act therefor, and from an adverse award by the referee made application for a review by the full commission. From the adverse award of the full commission, on review, he appealed, in the manner provided by the act, to the circuit court, where he filed a motion to quash the award on the ground that the very sections of the act under which he had proceeded were unconstitutional. Claimant is not in position to question the validity of the act under which he claims and seeks to enforce a right thereby created, upon the provisions of which he relies and pursuant to the terms of which he filed and prosecuted his claim. The beneficiaries under a statute must accept it as it stands, and cannot be heard to say they will reject in part and accept in part. Claimant is not in position to question the jurisdiction of the Workmen's Compensation Commission which he himself invoked merely because of an adverse decision. He instituted this proceeding by filing a claim with the commission under the provisions of the act thereby asserting a right derived solely from the act and pursuing a remedy given solely by the act. For a determination of his claim he invoked the jurisdiction and powers of the commission conferred by the...