Schneider v. Union Elec. Co., WD

• Decision Date: 15 January 1991
• Docket Number: No. WD,WD
• Citation: 805 S.W.2d 222
• Parties: Bron SCHNEIDER and Lori Schneider, Appellants, v. UNION ELECTRIC COMPANY, Respondent. 42850.
• Court: Missouri Court of Appeals

Page 222

805 S.W.2d 222

Bron SCHNEIDER and Lori Schneider, Appellants, v. UNION ELECTRIC COMPANY, Respondent.

No. WD 42850.

Missouri Court of Appeals,

Western District.

Jan. 15, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied March 5, 1991.

Application to Transfer Denied April 9, 1991.

Beverly J. Figg, Jefferson City, for appellants.

James J. Virtel, Ann E. Buckley, St. Louis, for respondent.

Before KENNEDY, P.J., and SHANGLER and GAITAN, JJ.

KENNEDY, Presiding Judge.

Plaintiff Bron Schneider was injured when his foot slipped off the rung of a vertical steel ladder as he was descending the ladder connecting the roofs of two buildings of the Union Electric Callaway Plant. Schneider and his wife, Lori, sued Union Electric for damages, charging Union Electric with negligence in failing to provide a stairway instead of a ladder between the two roofs, and also in failing to provide non-slip surfaces on the rungs of the ladder. Trial resulted in a verdict of a total of $500,000 damages for husband, and a total of $5,000 for wife, with 65 percent of the fault attributable to Union Electric and 35 percent attributable to Bron Schneider.

The trial court granted Union Electric's motion for judgment n.o.v., and alternatively ordered a new trial on all issues. Plaintiffs appeal.

Plaintiff husband was an employee of Burns International Security Services, which furnished guard and security services to Union Electric's Callaway electricity generating plant under a contract with Union Electric. On May 8, 1987, during the final one-and-one-half hours of Schneider's 6 a.m. to 6 p.m. workday, his duties required him once in each half hour to check the louvers on the roof of the auxiliary building. The purpose of the check was to ascertain that the louvers were secure and that no one had tampered with them, and was necessary because the alarm system which should have protected the louvers was inoperative.

In order to inspect the louvers, Schneider had to climb down, on a vertical steel ladder affixed to the wall of the turbine building, from the turbine building roof to the roof of the auxiliary building roof where the louvers were located, then, after the inspection was made, climb back up the ladder to the turbine building roof.

When the Union Electric Callaway Plant was built, there was no plan for the ladder between the roofs of the turbine building and the auxiliary building to be used with any degree of frequency; it would be used only occasionally. The louvers located on the roof of the auxiliary building were protected by an alarm which would warn of any tampering or attempted entry. In the summer of 1984 the alarm was found not to be reliable and the practice of half-hourly visual inspections of the louvers by security personnel was instituted. These inspections were made every day, twice each hour around the clock. Access was from the roof of the turbine building, which was 14 feet higher than the roof of the auxiliary building, by way of a vertical ladder attached to the wall of the higher turbine building. A security guard would climb up or down the ladder four times in each hour, or 96 times a day. This practice continued from the time it was instituted in the summer of 1984 until May 1987, three days after Schneider's injury. At that time the frequency of visual inspections was reduced from once each half-hour to once each day.

On one of these half-hourly checks, Schneider was two-thirds down the ladder when his foot, or his feet, slipped from the rung of the ladder. He did not fall; he hung on with his left hand. His back struck the wall of the building, causing--as it was later discovered--severe and permanent injuries.

I. WHETHER WORKERS' COMPENSATION COGNIZABILITY MAY BE RAISED FOR FIRST TIME ON APPEAL

Respondent Union Electric argues on this appeal for the first time that plaintiff Bron Schneider was a statutory employee of Union Electric, § 287.040, RSMo 1986, and that Schneider is therefore relegated to his workers' compensation remedy, § 287.120, RSMo 1986. There are a number of cases which say that a common law court does not have "subject matter jurisdiction" of a statutory employee's personal injury claim against an employer which is cognizable in a workers' compensation proceeding. See Biller v. Big John Tree Transplanter Mfg. & Truck Sales, Inc., 795 S.W.2d 630, 633 (Mo.App.1990); Wood v. Procter & Gamble Mfg. Co., 787 S.W.2d 816, 818 (Mo.App.1990); McDonald v. Bi-State Dev. Agency, 786 S.W.2d 201, 205 (Mo.App.1990); Crofts v. Harrison, 772 S.W.2d 901, 902-03 (Mo.App.1989); State ex rel. McDonnell Douglas Corp. v. Ryan, 745 S.W.2d 152, 153 (Mo. banc 1988); Asberry v. Bannes-Shaughnessy, Inc., 734 S.W.2d 250, 252 (Mo.App.1987); Craft v. Scaman, 715 S.W.2d 531, 535 (Mo.App.1986); State ex rel. Barnes Hospital v. Tillman, 714 S.W.2d 538, 539-40 (Mo.App.1986); Shaver v. First Union Realty Management, Inc., 713 S.W.2d 297, 300 (Mo.App.1986); Jones v. Jay Truck Driver Training Center, Inc., 709 S.W.2d 114, 115-16 (Mo. Banc 1986); Reinagel v. Edwin Cooper, Inc., 688 S.W.2d 375, 376 (Mo.App.1985); State ex rel. McDonnell Douglas Corp. v. Luten, 679 S.W.2d 278, 279 (Mo. banc 1984); Stonebarger v. Emerson Electric Co., 668 S.W.2d 187, 189 (Mo.App.1984); Zahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 772 (Mo.App.1983); Parmer v. Bean, 636 S.W.2d 691, 695-96 (Mo.App.1982).

If the trial court is indeed deprived of "subject matter jurisdiction" of the Schneider claim (using the term "jurisdiction" in its strict and narrow meaning) by the appearance of facts showing that Schneider's claim belonged to the workers' compensation system, it follows that the entire proceeding resulting in the judgment in the case before us would perhaps be vitiated. The absence of "jurisdiction," in its strict sense, cannot be waived by the parties, nor can it be conferred by agreement or by acquiescence. Bowman v. State, 763 S.W.2d 161, 164 (Mo.App.1988); White v. Ballou, 755 S.W.2d 246, 248 (Mo.App.1988). The trial would have been futile, the judgment would be a nullity. We could only dismiss the appeal, and remand with directions to the trial court to dismiss the proceeding.

It has often been noted that "jurisdiction" is a term which is used imprecisely in judicial opinions and other legal writings, depending for its meaning on the context in which it is used. See In re Marriage of Neal, 699 S.W.2d 92, 94 (Mo.App.1985); Lake Wauwanoka, Inc. v. Spain, 622 S.W.2d 309, 314 (Mo.App.1981); Restatement (Second) of Judgments § 11 comment e (1982); ¹ see also State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889, 893 (Mo. banc 1983) (Blackmar, J., concurring).

It does not appear to us that the term "subject matter jurisdiction" has been used in the workers' compensation defense cases in the strict and narrow sense. Until Parmer v. Bean in 1982, the cases had treated workers' compensation cognizability of a personal injuries claim as an affirmative defense to be pleaded and proved by the defendant. See Greiser v. Western Supplies Co., 406 S.W.2d 13, 16 (Mo.1966); Kearley v. St. Louis Car Co., 111 S.W.2d 976, 979-80 (Mo.App.1938); Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, 334 (1931) (en banc), cert. denied, 284 U.S. 649, 52 S.Ct. 29, 76 L.Ed. 551 (1931). (In Kearley the workers' compensation defense was attempted to be raised for the first time on appeal, as in the present case, and was held untimely.)

Parmer v. Bean does not determine the nature of the defense to be the want of subject matter jurisdiction as opposed to an affirmative defense; it adopts without analysis the subject matter jurisdiction terminology. The subject matter jurisdiction terminology has since Parmer become standard, as the above cases show, and not until the present case has a court been called upon to scrutinize the use of the term. In the earlier cases, the issue was whether the plaintiff was a statutory employee or not. In none of the cases has it made any practical difference whether workers' compensation cognizability was an affirmative defense, or whether it deprived the court of subject matter jurisdiction, for in each case (except Kearley ) the issue was timely raised. In the case before us, however, it becomes critical to determine whether the trial court had actual subject matter jurisdiction of the plaintiffs' claims, for if it did not, Union Electric may raise the issue even on appeal, never having raised it in the trial court. We would, in fact, be obliged sua sponte to raise and determine the question. See Bowman v. State, 763 S.W.2d at 164.

Squarely faced with the issue, we have determined that Union Electric, in order to claim on appeal that plaintiff Schneider was a statutory employee of Union Electric and that his claim was cognizable exclusively by workers' compensation, must have pleaded and proved the same in the trial court; and that, failing to do so, it may not introduce the issue on appeal. Implicit in this holding is our determination that the trial court did not lack subject matter jurisdiction, in the strict and narrow pristine sense, of the Schneiders' claims. A court has subject matter jurisdiction in a case if it has jurisdiction of the class of cases which includes the particular case. The circuit court of Cole County, a court of general and not of limited jurisdiction, Mo. Const. art. V, § 14, has jurisdiction over actions for money damages for personal injuries allegedly caused by defendant's negligence. The Schneiders' claims are of that class. "The test of [subject matter] jurisdiction is to be found in the nature of the case and the relief sought." People ex rel. Person v. Miller, 56 Ill.App.3d 450, 13 Ill.Dec. 920, 926, 371 N.E.2d 1012, 1018 (1977) (citations omitted).

The essential nature of the workers' compensation defense is a claim that exceptional or special circumstances, namely, plaintiff's status as a statutory employee of the defendant, have taken this particular case out of...