Pfitzinger v. Shell Pipe Line Corp.

• Decision Date: 08 March 1932
• Docket Number: No. 21901.,21901.
• Parties: GEORGE PFITZINGER, TO THE USE OF VINCENT STOTSCKY, AND VINCENT STOTSCKY, APPELLANTS, v. SHELL PIPE LINE CORPORATION, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

46 S.W.2d 955

GEORGE PFITZINGER, TO THE USE OF VINCENT STOTSCKY, AND VINCENT STOTSCKY, APPELLANTS, v. SHELL PIPE LINE CORPORATION, A CORPORATION, RESPONDENT.

No. 21901.

St. Louis Court of Appeals. Missouri.

Opinion filed March 8, 1932.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Claude O. Pearey, Judge.

AFFIRMED.

Fred Berthold and Emery W. Chase for appellants.

(1) Whether case comes within Compensation Act is question of fact. Kemper v. Gluck (Mo. Sup.), 39 S.W. (2d) 331. While common-law action invokes only common-law liability, statutory exception to such liability is a matter of defense, and not element of the cause of action. Kemper v. Gluck (Mo. Sup.), 39 S.W. (2d) 331. Compensation Act does not apply where a minor employer is engaged in a nonhazardous occupation. Kemper v. Gluck (Mo. Sup.), 39 S.W. (2d) 331. Compensation Act does not take away employee's common-law right against offending third party. Sylcox v. National Lead Co., 38 S.W. (2d) 497 (Mo. App.). Common-law liability of one servant to another for misfeasance is not destroyed by Compensation Act. Sylcox v. National Lead Co., 38 S.W. (2d) 497 (Mo. App.). Bus driver whose negligence caused coemployee's injuries held "third party." amenable to common-law action by coemployee for injuries. Sylcox v. National Lead Co., 38 S.W. (2d) 497 (Mo. App.). Subrogation statute did not bar injured employee's right as real party in interest to maintain action in his own name against third party causing injury (R.S. 1929, sec. 3309). Sylcox v. National Lead Co., 38 S.W. (2d) 497 (Mo. App.). In servant's common-law personal injury action, exception respecting liability under compensation act is purely matter of defense and never element of plaintiff's cause of action (Laws 1927, p. 490). Warren v. American Car & Foundry Co., 38 S.W. (2d) 718 (Mo. Sup.). In servant's personal injury action, defendant has burden of proof respecting defense that compensation act was applicable. Warren v. American Car & Foundry Co., 38 S.W. (2d) 718 (Mo. Sup.). (2) Whether one is a servant or independent contractor is question of fact for the jury. Mattocks v. Emerson Drug Co., 3 S.W. (2d) l.c. 144 (St. L. Ct. App.). and cases cited therein.

Carter, Jones & Turney and James E. Garstang for respondent.

(1) Plaintiff-appellant, George Pfitzinger, had no cause of action against the respondent, as he never paid any compensation, and, therefore, could not have been subrogated under the Workmen's Compensation Act of Missouri. 1 Workmen's Compensation Act. Sec. 3309. R.S. 1929, page 992; 1 Schneider Workmen's Compensation Law, sec. 45, and cases there discussed: 25 R.C.L., p. 1318, sec. 6; Henderson T. & T. Co. v. Owensboro Home T. & T. Co., 233 S.W. (Ky.) 743. (2) Plaintiff-appellant, Stotscky, was an employee of respondent. Gorman v. A.R. Jackson Kansas City Show Case Works Co., 19 S.W. (2d) 559; Klaber v. Fidelity Building Co., 19 S.W. (2d) 758; Clayton v. Hydraulic Press Brick Co., 27 S.W. (2d) 52; Maddox v. Emerson Drug Co., 33 S.W. (2d) 142; Hoelker v. American Press, 317 Mo. 64. (3) Being an employee of respondent, plaintiff-appellant Stotscky was subject to the Workmen's Compensation Act of Missouri. 1 Missouri Workmen's Compensation Act, sec. 3302, R.S. 1929, p. 990; Warren v. American Car & Foundry Co., 38 S.W. (2d) 718; Kemper v. Gluck, 21 S.W. (2d) 922; Langston v. Selden-Breck Const. Co., 37 S.W. (2d) 474. (4) Plaintiff-appellant Stotscky is estopped of record to deny that he was an employee of respondent. R.S. 1929, secs. 3339 and 3342; Zimmer v. Massie, 117 Mo. App. 344, 93 S.W. 859; McClure v. Clements, 143 S.W. 82, 84; Barrett v. Stoddard County, 183 S.W. 644; State ex rel. Brewen-Clark Syrup Co. v. Mo. Workmen's Compensation Com., 8 S.W. (2d) 897.

BECKER, J.

In an action for damages alleged to have been sustained by reason of negligence of the defendant the trial court sustained a demurrer offered at the close of plaintiffs' case, and from the resulting judgment plaintiffs in due course appeal.

Plaintiffs' amended petition upon which the case was tried states that "at the time hereinafter mentioned he was in the employ of George Pfitzinger, as a teamster, earning four ($4) dollars per day; that on or about the 23rd day of January, 1929, while he was employed by said George Pfitzinger, as a teamster, at or near Old Kinlock race track, in St. Louis County, Missouri, and while dragging pipe belonging to the defendant corporation, said pipe was being dragged along old corn rows, with ground frozen on each side, and said defendant, its agents and servants, had charge of placing the chain around said pipe, which was to be dragged, and said defendant, its agents and servants, fastened said chain at a point about six or eight feet to the rear of the lead end of the pipe, and while dragging said pipe along said old corn rows, with the ground frozen on each side, when plaintiff turned the horses or team to the right, to haul the pipe where it was to be laid, said pipe, instead of turning to the right with the team, continued straight ahead and struck plaintiff, knocking him to the ground, and causing plaintiff to sustain the serious and permanent injuries hereinafter set forth.

"Plaintiff states further that his employer, George Pfitzinger, had only himself as an employee, and, therefore, had only one employee, and did not come within the provisions of the Workmen's Compensation Act of the State of Missouri, and states further that neither George Pfitzinger nor the plaintiff was working under the Workmen's Compensation Act of the State of Missouri.

"Plaintiff states further that his action is being brought against the defendant herein for the reason that the defendant herein is the third party, and under section eleven (11) of the Workmen's Compensation Act plaintiff has the right to bring his action against the third party causing his injuries, and plaintiff hereby elects not to take any compensation from the defendant herein, and that plaintiff has not received any compensation from the defendant herein, and elects to pursue his cause of action under the common law of this State, and not under the Workmen's Compensation Act of this State, and the action is brought by George Pfitzinger for the use and benefit of the plaintiff herein.

"Plaintiff states further that he had nothing whatsoever to do with the attaching or the placing of the chains about the pipe which was to be dragged to the place where it was to be laid, and that the placing or attaching of the chains around said pipe was done by the defendant, Shell Pipe Line Corporation, a corporation, its agents and servants.

"And, for his cause of action, plaintiff states that on or about said 23rd day of January, 1929, that the defendant, Shell Pipe Line Corporation, a corporation, its foreman, agents and servants, placed and attached a chain around a pipe, which plaintiff was to drag with the aid of a team, to the place where it was to be laid, and that the placing or attaching of said chain was done by the defendant, Shell Pipe Line Corporation, a corporation, its foreman, agents and servants, and was placed about six to eight feet to the rear of the lead end of the pipe, and plaintiff, while having said pipe dragged along some old frozen corn rows, turned his horses to the right, and the pipe, instead of following the lead of the horses, continued straight ahead, knocking plaintiff to the ground, and causing plaintiff to sustain the serious and permanent injuries hereinafter set forth."

The amended petition then sets up three assignments of negligence upon which plaintiff predicates his right to recover.

The defendant's answer consisted of a general denial and the further answer that on the date upon which plaintiff alleges he received his injuries, he was in the employ of the defendant, and that the defendant was a major employer within the meaning of the Missouri Workmen's Compensation Act, and that at all times it was operating under the provisions of said act; and as a further defense set out that the injuries set up in plaintiff's petition were duly and regularly reported, and that the plaintiff filed his claim with the Missouri Workmen's Compensation Commission and adduced evidence in support of his said claim before one of its commissioners, at which hearing plaintiff "affirmed and declared that he was in the employ of the Shell Pipe Line Corporation on the date of said injuries;" that the said commissioner adjudicated and declared that the relationship of employee and employer existed between plaintiff and defendant, but rejected the claim upon the ground that it was filed after the expiration of the time allowed by law for the presentation of claims, and that the finding of the commissioner was affirmed by the full commission and plaintiff's claim dismissed.

Plaintiffs' reply set up a denial of the new matter set out in the answer; and that the Workmen's Compensation Act was unconstitutional, and for further reply "plaintiff states that he was advised by the defendant that they would pay him compensation, if he would take it, and that this was practically agreed upon, but, due to the fact that the settlement was to be made in a lump sum, the time of filing said claim before the Missouri Workmen's Compensation Commission was purposely delayed at the request of defendant, so that plaintiff's application for compensation would be denied, and a lump sum settlement could be effected."

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