Scott v. Dickinson

• Decision Date: 06 January 1920
• Docket Number: No. 20556.,20556.
• Citation: 217 S.W. 270
• Parties: SCOTT v. DICKINSON.
• Court: Missouri Supreme Court

217 S.W. 270

SCOTT v. DICKINSON.

No. 20556.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by John H. Scott against J. M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, which transferred the case to the Supreme Court on the ground that constitutional questions were involved. Case remanded to Kansas City Court of Appeals.

This action was commenced by plaintiff, on September 4, 1915, in the circuit court of Jackson county, Mo., against Jacob M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company, to recover damages sustained by him as a car repairer, in defendant's yards at Kansas City, Kan., on July 26, 1915. He recovered a judgment under the Employers' Liability Act (Laws 1911, c. 239) of the state of Kansas, pleaded in petition, for $1,500, on May 5, 1916. The case was appealed to the Kansas City Court of Appeals, and transferred here by said court on the ground that constitutional questions were involved.

Paul E. Walker, of Topeka, Kan., Sebree, Conrad & Wendorff, of Kansas City, Luther Burns, of Topeka, Kan., and Sebree & Sebree, of Kansas City, for appellant.

Atwood & Hill and A. C. Popham, all of Kansas City, for respondent.

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

I. The abstract of record filed in the Court of Appeals shows that the defendant's counsel made the affidavit for appeal, and asked the trial court to send the case to the Kansas City Court of Appeals. It is manifest from this action that the constitutionality of the Kansas statute was no longer to be considered an issue in the case.

The brief filed by appellant in the Court of Appeals is based upon the idea that plaintiff, at the time and place of accident, was not engaged in such service, as came within the purview of either the federal Employers' Liability Act (U. S. Comp. St. §§ 8357-8665) or the Kansas statutes, relating to the same subject. Defendant contended that the common law was in force in Kansas and governed this case; that under the common law plaintiff could not recover for an injury inflicted by a fellow servant engaged in the same general employment, nor could a recovery be sustained where plaintiff had assumed the risk of injury or been guilty of contributory negligence.

Plaintiff claimed in the Court of Appeals that his case fell within the provisions of the Kansas statutes, while defendant contended that the facts of the case brought it within the common law.

Appellant, in its brief, presented to the Court of Appeals its theory of the law and facts relating to the above controversy, and insisted that its demurrer to the evidence should have been sustained.

The Court of Appeals, in its mandate, in transferring the case here, said that—

"On account of the defendant stating that the Railroad Employers' Liability Act of Kansas in the above entitled cause is unconstitutional and in conflict with section 2 and article 4 of . the Constitution of the United States and of the Fifth and Fourteenth Amendments thereto, therefore it is without jurisdiction and orders said cause transferred to the Supreme Court for its determination."

The fact that defendant permitted the case to remain in the Court of Appeals until reached for trial, and briefed it there, without moving to have it transferred here, indicated very plainly that it was not relying upon any constitutional question in the case.

On October 20, 1919, after the case was transferred here, appellant filed a new brief in this court, and on pages 1 and 2 said:

"We abandon the contention made in our original brief that the court committed error in giving instruction 6, and abandon all errors assigned in our motion for new trial, except that the demurrer to the evidence should have been sustained. The case should be reversed outright."

The above brief presented no constitutional question, and argued the case along the same lines as those...