Osagera v. Schaff

• Decision Date: 07 April 1922
• Docket Number: No. 22475.,22475.
• Citation: 240 S.W. 124,293 Mo. 333
• Parties: OSAGERA v. SCHAFF
• Court: Missouri Supreme Court

240 S.W. 124

293 Mo. 333

OSAGERA v. SCHAFF

No. 22475.

Supreme Court of Missouri, Division No. 2.

April 7, 1922.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Daniel Osagera against C. E. Schaff, as receiver of the Missouri, Kansas & Texas Railway Company. From an order denying leave to set aside an involuntary nonsuit, plaintiff appeals. Affirmed.

Plaintiff sued for injuries received on the 19th of June, 1917, at Chokie, Okl., while loading stones on one of defendant's cars from a stone quarry at that place. His right leg below the knee was run over, resulting in amputation above the ankle. In his petition he charged sundry negligent acts on the part of the defendant, and as an aid to his suit he invoked the provisions of the Workmen's Compensation Law of the state of Oklahoma (Laws 1915, c. 246). Upon a trial in the circuit court of Jackson county at Independence, where his suit was filed, under the compulsion of a demurrer, at the close of his case he took an involuntary nonsuit, with leave to move to set same aside. Being unsuccessful in his motion, he has prosecuted his appeal to this court. He sued for $7,590, but in his motion to set aside the involuntary nonsuit he raised constitutional questions; hence the jurisdiction of this court.

The petition charged that—

Defendant's railroad was "engaged in interstate railway business as a common carrier in Missouri, Kansas, Texas, Oklahoma, and various other states"; that while plaintiff "was in the employ of defendant as a laborer working at a stone quarry, near the town of Chokie, in the state of Oklahoma, * * * and while plaintiff was in the act of lifting a rock onto a car, owned and operated by the defendant, he was, through the carelessness and negligence of defendant, * * * run upon, and so seriously and permanently injured and crippled as to necessitate amputation of his right leg below the knee."

The negligence alleged consisted (a) in running against plaintiff without warning; (b) starting said car "at a time when plaintiff was in the act of loading a rock thereon and in a position of peril, unless said cars were held stationary"; (c) a violation of the hu manitarian rule; (d) failure to furnish a system of signals to warn employees when about to start or move stationary cars.

Plaintiff then invoked the provisions of the Workmen's Compensation Law of the state of Oklahoma to the effect that failure to comply with said law by any employer, subject to its provisions, would result in depriving such employer of the usual defenses of contributory negligence, assumed risk, etc.

Plaintiff asserted that it was the duty of defendant to have complied with said law, that he had failed to do so, and that in consequence he could not interpose the defense of contributory negligence, assumed risk, etc.

Defendant's answer was a general denial, with a plea of contributory negligence and an assumption of risk.

Appellant's evidence tended to show that while engaged in lifting a stone upon one of defendant's cars there was a sudden movement of the car without warning to him, which resulted in the above-described injury. Appellant offered a deposition of the Secretary of the Industrial Commission of Oklahoma, who had in charge all records pertaining to the Workmen's Compensation Law of that state. This witness testified that defendant receiver was granted permission by the State Industrial Commission on the 25th day of August, 1916, to carry his own risk, without insurance, under certain provisions or the Compensation Law, in operating coal mines in Oklahoma. This was an exemption order obtained by said receiver. Thereupon appellant offered in evidence the Workmen's Compensation Laws of Oklahoma, which provide that compensation shall he paid by employers to employees engaged in certain hazardous employments where injuries are sustained. The schedule of employments includes "railroads not engaged in interstate commerce." Section 1 of article 2 of said act defines the liability of employees in case of injury with respect to the schedules of compensation in all cases where there was a compliance with provisions of said act. In the event of noncompliance, the following specific liability is imposed:

"Sec. 2. The liability prescribed in the last preceding section shall be exclusive, except that if an employer has failed to secure the payment of compensation for his injured employees, as provided in this act, then an action may be maintained in the courts for damages on account of such injury for the benefit of such injured employee, and in such an action the defendant may not plead or prove as defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee, and this claim shall be prosecuted for the injured employee by the Commission without expense to such employee, and the amount recovered in such action shall be paid by the Commission to such injured party, provided that this section shall not be construed to relieve the employer from any other penalty provided for in this act for failure to secure the payment of compensation provided for in this act."

Appellant prosecutes his action under the provisions of above section. Other pertinent facts will be stated in the course of the opinion.

Prince, Hamilton, Harris & Berry, of Kansas City, for appellant.

J. W. Jamison, of St. Louis, and Cooper, Neel & Wright and J. S. Bassett, all of Kansas City, for respondent.

REEVES, C. (after stating the facts as above).

1. While appellant's petition alleges that defendant's railroad was "engaged in interstate railway business as a common carrier," and that plaintiff when injured was loading a stone on one of its cars, yet it appears that all parties, including the trial court, treated the particular engagement of defendant's company at the time in question as being that of an intrastate carrier. It was necessary to do this to bring the action within the Compensation Law, offered in evidence, as that law particularly limited its application to "railroads not engaged in interstate commerce."

We shall dispose of the case therefore upon the theory adopted by the parties and the trial court. Palmer v. Shaw Transfer Co. (Mo. Sup.) 209 S. W. 882; Dougherty v. Gangloff, 239 Mo. 649, 144 S. W. 434.

2. It is the contention of appellant that respondent receiver, being subject to the provisions of said law, failed to comply therewith, and in consequence there accrued to him the right to invoke the penalty provisions of said law, which would deprive respondent receiver of his defenses, for it is recited in said statute that—

"In such an action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee."

On the other hand, it is contended by respondent that appellant did not show by his proofs that he had failed to comply with said law and he insists here that appellant's remedy was under the general provisions of said law and not under the penalty provisions thereof. In support of this contention he calls attention to the following provisions (section 1, article 3):

"An employer shall secure compensation to his employees in one of the following ways:

"(a) By insuring and keeping insured the payment of such compensation with any stock corporation or mutual association or by exchanging contracts of indemnity or interinsurance, under reasonable regulations prescribed by the Commission providing for and securing the payment of the compensation provided in this Act, or other concerns authorized to transact the business of workmen's compensation insurance in this state. If insurance be so effected in such a corporation or mutual association or reciprocal or interinsurance association, the employer shall forthwith file with the Commission, in form prescribed by it, a notice specifying the name of such insurance corporation, or mutual association or reciprocal or interinsurance association, together with a copy of the contract or policy of insurance.

"(b) By obtaining and keeping in force guaranty insurance with any company authorized to do such guaranty business in the state, or,

"(c) Subject to the approval of the Commission, any employers may enter into or continue an agreement with his or their workmen to provide a scheme of compensation, benefit or insurance in lieu of the compensation and insurance provided by this act; but such scheme shall in no instance provide less than the benefits here secured nor vary the period of compensation provided for disability or the provisions of this act with respect to periodic payments or the percentage that such payments shall bear to weekly wages, except that the sums required may be increased; provided, further that the approval of the State Industrial Commission shall be granted, if the scheme provides for contributions by workmen, only when it confers benefits in addition to those required by this Act commensurate with such contributions.

"(d) By furnishing satisfactory proof to the Commission of his financial ability to pay such compensation for himself, in which case the Commission may, in its discretion, require the deposit with the Commission of securities or indemnity bond in an amount and of a kind to be determined by the Commission, to secure his liability to pay the compensation provided in this act."

He particularly emphasizes the privilege extended to him by paragraph (b) of the above-quoted section, which enables him to secure compensation to his employees "by obtaining and keeping in force guaranty insurance with any company authorized to do such guaranty business in the state." Respondent insists that appellant's proof wholly failed to show a noncompliance with the...