Rider v. Julian
| Decision Date | 12 September 1955 |
| Docket Number | No. 43330,43330 |
| Citation | 365 Mo. 313,282 S.W.2d 484 |
| Parties | Charline RIDER, Appellant, v. Vance JULIAN, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Respondents. |
| Court | Missouri Supreme Court |
Thomas C. Swanson, James Daleo, Roy P. Swanson, George H. Gangwere, Richard G. Poland, Kansas City, for appellant.
John Dalton, Atty. Gen., Robert F. Sevier, Sp. Asst. Atty. Gen., for respondent Julian.
Charles L. Carr, Kansas City, for respondent Kansas City Public servicE co.
Powell C. Groner, Kansas City, John H. Hendren, Jefferson City, of counsel, for leave to file suggestions.
Roy P. Swanson, George H. Gangwere, Richard G. Poland, Kansas City, of counsel, amici curiae.
Swofford, Schroeder & Shankland, Homer A. Cope, Sprinkle, Knowles & Carter, Rogers, Field & Gentry, O'Sullivan & Killiger, Kansas City, amici curiae.
This is a suit to recover damages in the sum of $15,000 for personal injuries alleged to have been sustained by the plaintiff on November 14, 1950, in Kansas City due to the negligence of the operator of a motorbus upon which she was a fare-paying passenger. The trial court dismissed the plaintiff's action and she appealed. The amount involved vests this court with jurisdiction. Section 3, Article V, V.A.M.S., Constitution of Missouri 1945.
In 1949, as it had been for years, the Kansas City Public Service Company was engaged in the operation of the mass transit system in Kansas City and adjoining portions of the State of Kansas. Its collective bargaining agreement with its operating employees was scheduled to expire on December 31, 1949. The company and union representatives negotiated but failed to agree upon a new contract. Shortly before the contract termination date the State Board of Mediation took jurisdiction and the company and its employees continued to operate the transit system. A public hearing panel was established, hearings were had, and on March 25, 1950, the panel handed down its report which, among other things, recommended a reduction of five cents per hour in the employees' rate of pay. The transit company notified the union representing the employees that if a settlement could not be reached by May 1st the company proposed to put into effect the wage reduction as recommended by the hearing panel. An agreement was not reached and a work stoppage was definitely threatened. On April 29, 1950, the day before the proposed wage reduction was to become effective, the governor of Missouri issued a proclamation and two executive orders invoking the provisions of what is commonly known as the King-Thompson Act. This act, Laws of Mo.1947, Vol. 1, p. 358, is chapter 295 of the Revised Statutes of Missouri 1949, Secs. 295.010 through 295.210, V.A.M.S. By his Executive Order No. II the governor authorized and directed Vance Julian, Chairman of the State Board of Mediation, to take possession of all or such parts of the plants, offices, facilities and equipment of the Kansas City Public Service Company as may be necessary to insure the operation of the utility in the public interest. Mr. Julian acted pursuant to the appointment, and the transit system continued to operate. The governor's proclamation and executive orders remained in effect until December 11, 1950, at which time the transit company and its employees agreed upon a new contract. It is during this period that the plaintiff claims to have been injured.
The plaintiff's suit was directed against 'Vance Julian, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Defendants.' The defendant Vance Julian will herein sometimes be referred to as Julian and the defendant Kansas City Public Service Company as the company or the transit company. In the alternative, the plaintiff alleged either (1) that Julian was the operator and manager of the transit company on the date of the injury, or (2) that Julian was not such manager or in control of the transportation facilities but that the transit company 'was in sole and complete control and management of its facilities,' or (3) that both Julian and the transit company 'were in control and operation of the defendant public service company's transportation facilities'; and that she does not know which alternative is true.
The transit company filed its separate answer denying liability because, among other reasons, the casualty occurred at a time when the governor of Missouri had taken 'possession of the plant, offices, equipment and facilities of this defendant for use and operation by the State of Missouri in the public interest' under Sec. 19 of the King-Thompson Act, Section 295.190, and that at the time of the casualty Julian, pursuant to the governor's orders, and not the transit company, was in full possession and control of transit company's property and was operating the public utility business, and that the operator of the motorbus was not 'at said time and place employed by this defendant or acting for or on behalf of this defendant within any scope of employment of this defendant, or in any capacity for this defendant.'
Defendant Julian filed his separate motion to dismiss as to him. Among other things, he alleged that if he operated or possessed the property of the transit company he did so for the sole purpose of securing the continued operation of the property in the public interest, health and welfare pursuant to the proclamation and executive orders of the governor, and that for all other purposes at all times mentioned in plaintiff's petition, the transit company was operating streetcars and motorbusses in Kansas City for the transportation of persons for hire and was in sole and complete control and management of its facilities and business; and that the defendant transit company 'was the master of the operator of the motorbus mentioned in plaintiff's petition and was liable as such for any negligence, if any, as alleged in plaintiff's petition.' Further, Julian alleged that if he did operate and manage the property he was acting on behalf of the State of Missouri which had not consented to be sued.
Pursuant to the motion of defendant transit company there was a separate trial of the issues as to whether the transit company or Julian and the State of Missouri was operating the bus in question, and whether or not the operator and driver of said bus was the employee of the transit company or the employee of said Vance Julian and the State of Missouri. The hearing on the issues was without a jury and the trial court found that the motorbus involved in the accident was in the exclusive possession, control and operation of the State of Missouri acting by and through its state agent and representative, Vance Julian. The judgment was that both defendants, the transit company and Julian, be 'dismissed with prejudice.'
The primary question involved is whether the employer-employee relation existed between the motorbus driver and one or both of the defendants. Our first consideration is whether the legal status exists by operation of law, that is, by legislative fiat, and, if not, whether the relation was in fact created assuming the statute authorized it.
Authority for the proclamation and executive orders of the governor must be found in V.A.M.S. Secs. 295.180-295.210, since the authority of the executive and his representatives cannot exceed the power granted by the General Assembly. Section 295.180 provides in substance that if the effective operation of a public utility is threatened or interrupted by a lockout, strike or work stoppage, the governor is 'authorized to take immediate possession of the plant, equipment or facility for the use and operation by the state of Missouri in the public interest.' The governor's power and authority may be exercised through such department or agency of the government as he may designate. The section specifically provides that the properties of the utility 'shall be returned to the owners thereof as soon as practicable after the settlement of said labor dispute, and it shall thereupon be the duty of such utility to continue the operation of the plant facility, or equipment in accordance with its franchise and certificate of public convenience and necessity.' Section 295.200 provides penalties for unlawful acts by persons, employees or representatives of the public utility designed to interfere with the operation of the utility and gives the courts power to enforce by injunction and other legal and equitable remedies any provision of the chapter or any rule or regulation prescribed by the governor. Section 295.210 contains clauses expressly preserving the constitutional privileges of an individual employee and safeguarding his right to quit his work.
The proclamation of the governor and his executive orders must all be within the grant of authority from the General Assembly. Likewise, acts of any representative appointed by the governor must be within the authority granted him by the governor. Acts in excess of the grant of power and authority would be invalid. There is no contention that either the governor or his representative Julian exceeded their authority in what was done.
The material evidence is largely documentary. The proclamation issued by the governor April 29, 1950, found that there was a threatened interruption of the operation of the Kansas City Public Service Company, a public utility, as a result of a labor dispute, and that the public interest, health and welfare were jeopardized thereby, and proclaimed that 'the exercise of the authority vested in me by Section 19 of an Act of the 64th General Assembly found in Laws of Missouri, 1947, Vol. 1. pages 359 to 366, both inclusive, is necessary to insure the operation in Missouri of the Kansas City...
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