Oren v. Swift & Co.

Decision Date13 June 1932
Docket Number30668
Citation51 S.W.2d 59,330 Mo. 869
PartiesVern Oren v. Swift & Company and Security Mutual Casualty Company, Appellants
CourtMissouri Supreme Court

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

Reversed.

Russell Field and Brown, Douglas & Brown for appellants.

(1) Sections Forty-one, Forty-two, Forty-three, Forty-four and Forty-five of the Workmen's Compensation Act do not contravene Sections One, Twenty-two or Twenty-three of Article Six, Judicial Department, or any other section or article of the Constitution of the State of Missouri. DeMay v. Liberty Foundry Co., 37 S.W.2d 640; Kemper v. Gluck (Mo.), 39 S.W.2d 330; Cotter v. Coal Co., 222 Mo.App. 1138, 14 S.W.2d 662; Brocco v Stores Co. (Mo. App.), 22 S.W.2d 833; Hager v Publishing Co. (Mo. App.), 17 S.W.2d 578; Brashear v. Milling Co. (Mo. App.), 21 S.W.2d 192; St. Louis v. Railroad, 248 Mo. 10; American Life Ins. Co. v Balmer (Mich.), 214 N.W. 208; Western Indemnity Co. v. Pillsbury, 170 Cal. 704; Borgnis v. Falk Co., 147 Wis. 327, 358, 361; Woodard Iron Co. v. Bradford (Ala.), 90 So. 803; Mackie v. Axle Co., 187 Mich. 818; Town of New Holstein v. Dawn (Wis.), 209 N.W. 695; Battle Creek Coal Co. v. Martin (Tenn.), 290 S.W. 18; Vesper Gas and Range Co. etc. v. Leonard (Tenn.), 257 S.W. 395; Salt Lake City v. Industrial Commission (Utah), 199 P. 152. The Supreme Court of the United States has in many cases held similar workmen's compensation acts to be constitutional. Booth Fisheries Co. v. Industrial Commission of Wisconsin, 271 U.S. 208, 211, 70 L.Ed. 908; Hawkins v. Bleakley, 243 U.S. 210, 215, 216, 61 L.Ed. 678; New York Cent. Railroad Co. v. White, 243 U.S. 188; Chicago, etc. Railroad Co. v. United States, 274 U.S. 29; New England Divisions Companies, 261 U.S. 184; Skinner, etc. Co. v. United States, 249 U.S. 562; Mountain Timber Co. v. Washington, 243 U.S. 219. (2) The Missouri Workmen's Compensation Act is elective, and those who elect to come under its provisions are estopped from denying the constitutionality thereof. DeMay v. Liberty Foundry Co., 37 S.W.2d 640; Hoemer v. Leathe, 149 Mo. 366; O'Day v. Commission, 131 Mo. 324; Merrill v. St. Louis, 83 Mo. 252; Railroad v. Town Site Co., 103 Mo. 469; State ex rel. Waterworth v. Marty, 278 Mo. 685; Regan v. Dickman, 207 S.W. 292; Booth Fisheries Company v. Indutrial Commission of Wisconsin, 271 U.S. 208; Hawkins v. Bleakley, 243 U.S. 216; Daniels v. Tearney, 102 U.S. 415, 26 L.Ed. 187; Grand Rapids Railroad Co. v. Osborn, 193 U.S. 17.

Platt Hubbell and Geo. H. Hubbell for respondent.

All judicial power of the State of Missouri is vested solely in the courts established by the Constitution; and, exclusive original jurisdiction in all civil cases, not otherwise provided for in the Constitution, is vested in the circuit courts. The Missouri Workmen's Compensation Act creates a new inferior, judicial tribunal with judicial power, and with original jurisdiction in civil cases in contravention of the Constitution of 1875. Sec. 1, Art. VI, Mo. Const. 1865; Sec. 1, Art. VI, Mo. Const. 1875; Secs. 2, 3, Amendment of 1884, Mo. Const.; Sec. 5 Schedule, Art. XV, Mo. Const. 1875; Graves v. Walker, 23 S.W. 1110; Sec. 4 Schedule, Art. XV, Mo. Const; State ex rel. v. Wilder, 198 Mo. 172; Sec. XIII, Art. VI, Const. Mo. 1865; Sec. 22, Art. VI, Const. Mo. 1875; Sec. 53 (Sub. 17), Art. IV, Const. Mo. 1875; 15 C. J. sec. 27, p. 732; Bors v. Preston, 28 L.Ed. 419, 111 U.S. 252; State v. Ellis, 28 S.W.2d 365; State ex rel. v. Locker, 266 Mo. 384; State ex rel. Barrett v. May, 290 Mo. 302; 15 C. J. sec. 35; State ex rel. v. Nast, 209 Mo. 720; 7 R. C. L. secs. 70, 80; Constitutional Law, 12 C. J. sec. 260; State ex rel. v. Ryan, 182 Mo. 349; State ex rel. v. Pub. Serv. Comm., 303 Mo. 212; State v. Pub. Serv. Comm., 289 S.W. 349; Sec. XXI, Art. VI, Mo. Const. 1865; Sec. 23, Art. VI, Mo. Const. 1875; Otis Elevator Co. v. Indust. Comm., 134 N.E. 21; Evanshoff v. State Indust. Acc. Comm., 154 P. 110; In re Willow Creek, 114 P. 505, 74 Ore. 592; Pac. Coast Cas. Co. v. Pillsbury, 153 P. 26; Western Indem. Co. v. Pillsbury, 151 P. 400; Western Metal Supply Co. v. Pillsbury, 156 P. 492; N. Y. C. Railroad Co. v. White, 243 U.S. 188, 61 L.Ed. 667, 37 S.Ct. 269; Employers' Lia. Assur. Corp. v. Indust. Acc. Comm., 203 P. 96, 187 Cal. 615; Zurich General Acc. & Lia. Ins. Co. v. Indust. Acc. Comm., 218 P. 563, 191 Cal. 770, Certiorari denied, 44 S.Ct. 230, 263 U.S. 722, 68 L.Ed. 525; Sec. 22, Art. VI, Mo. Const.; Yosemite Lumber Co. v. Indust. Acc. Comm., 20 A. L. R. 1001 Secs. 3325, 3326, R. S. 1929; State ex rel. Kahn v. Tazwell, 59 A. L. R. 444; State v. Gillette's Estate, 10 S.W.2d 987; 15 C. J. sec. 179, p. 856; 15 C. J. sec. 181, p. 858; Constitutional Law, 12 C. J. sec. 260; State ex rel. v. Woodson, 161 Mo. 454; State ex rel. Rutledge v. Pub. Serv. Comm., 289 S.W. 788; Ex parte French, 47 A. L. R. 693, 285 S.W. 513; Findley-Kehl Ins. Co. v. O'Connor, 256 S.W. 800; Benson v. Crowell, 38 F.2d 306, 33 F.2d 137; London etc. Co. v. Indust. Comm., 279 U.S. 109, 49 S.Ct. 300, 73 L.Ed. 632. "The word 'exclusive,' as thus used, is too prominent to be ignored and too plain to be misunderstood." Watson v. Henderson, 135 S.W. 464, 98 Ark. 63. Sec. 22, Art. VI, Mo. Const.

Ferguson, C. Sturgis and Hyde, CC., concur.

OPINION
FERGUSON

Vern Oren, an employee of Swift and Company 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 and Company 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 and Company at Trenton, Missouri, 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, Revised States 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, (Sec. 3341, R. S. 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 (Sec. 44, Workmen's Compensation Act Sec. 3342, R. S. 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 (Sec. 3342, R. S. 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 "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...

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