Scott v. Vincennes Bridge Co.
| Decision Date | 08 November 1927 |
| Docket Number | No. 19808.,19808. |
| Citation | 299 S.W. 145 |
| Parties | SCOTT v. VINCENNES BRIDGE CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.
Action for personal injuries by Arthur Scott against the Vincennes Bridge Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Seymour Riddle, of Vincennes, Ind., and Ralph & Baxter, of Clayton, for appellant.
John T. Manning, of St. Louis, and E. McD. Stevens, of Clayton (Jas. T. Roberts, of St. Louis, of counsel), for respondent.
Plaintiff obtained a verdict for $2,500 against the defendant company in his action for damages for personal injuries alleged to have been sustained whilst in the employ of said defendant. From the resulting judgment defendant appeals.
The sole question before us for review in this appeal is the correctness of the trial court's ruling in sustaining plaintiff's motion to strike out the second paragraph of defendant's answer, wherein the defendant attempts to set up the Indiana Workmen's Compensation Act, and the employment of plaintiff in the state of Indiana under the provisions of such act, as a bar to plaintiff's action in the state of Missouri.
Plaintiff's petition alleges that he was employed as engineer and roustabout by the defendant bridge company in the construction of a bridge across the Meramec river in St. Louis county, near the town of Fenton, Mo.; that on the 6th day of July, 1925, he was injured while in the discharge of his duties. The petition contains four assignments of negligence.
The answer of the defendant contains four paragraphs: The first, a general denial; the third, an allegation of contributory negligence; the fourth, a plea of assumption of risk on the part of the plaintiff; and the second paragraph is, in effect, a special plea to the jurisdiction of the court to hear and determine the cause and avers that the defendant, Vincennes Bridge Company, is a corporation organized and existing under the laws of Indiana, with its principal place of business in the city of Vincennes; that it is engaged in manufacturing and fabricating steel bridges and erecting bridges throughout the state of Indiana and in other states within the United States; that, at the time of the action and injuries set out and complained of in plaintiff's petition, said defendant had been conducting its work and operating under a statute of the state of Indiana, duly enacted by the General Assembly of said state. known and cited as "the Indiana Workmen's Compensation Act," which said statute was at that time in force in the state of Indiana, and the answer then states that a copy of said act is filed with the answer and marked Defendant's Exhibit A, and that the act and each and every section thereof is "hereby made a part of the plea," the same as if specifically pleaded therein, and avers further that the provisions of said act apply to defendant and to plaintiff because at the time of the alleged injuries set out and complained of in plaintiff's petition, the plaintiff was in the employ of defendant, and that said acts and injuries arose out of and in the course of said employment; and the said contract of employment by and between the plaintiff and. defendant was made and entered into at the principal office of the said defendant at the city of Vincennes, in the state of Indiana, and that said employment at said time was for the purpose and with the understanding by and between each of them that the plaintiff should go from said state of Indiana to the town of Fenton, in the state of Missouri, as an employee of the defendant, in the construction of the bridge, at which place the plaintiff's injuries are alleged to have occurred. Said second paragraph of the answer contains the further averments that immediately after the injury complained of, the Vincennes Bridge Company made a report to the Industrial Board of the state of Indiana of said accident and injury, and immediately thereafter requested the plaintiff to enter into an agreement on form No. 12, provided by the Industrial Board of the state of Indiana, and that at the end of each week thereafter, for the period of 4 or 5 weeks, it offered and tendered to the plaintiff herein compensation checks in payment of compensation as provided by said Workmen's Compensation Law. Said paragraph 2 of said answer avers further that the said Industrial Board of the state of Indiana has acquired sole and exclusive jurisdiction of all the matters and things alleged in the petition of plaintiff, and that the circuit court of St. Louis county, Mo., in which said cause was pending and tried, had. no jurisdiction, and prayed that said cause be dismissed.
Defendant having filed its answer, plaintiff thereupon filed his motion to strike out paragraph 2 of the answer (which undertakes to set up as a defense to his action the Indiana Workmen's Compensation Act) on the ground that the matters and things therein attempted to be set up do not constitute a defense to the cause of action stated in plaintiff's petition.
Plaintiff's motion to strike out being sustained, the issues were joined by plaintiff filing a reply, and the case proceeded to trial, resulting in a favorable verdict for plaintiff.
The defendant on this appeal has abandoned all points excepting the action of the trial court in striking out the second paragraph of its answer.
We have carefully, examined said paragraph 2 of defendant's answer and have come to the conclusion that the motion to strike out was well ruled.
Plaintiff's motion to strike out is aimed at an entire defense and may be properly stated as in effect a demurrer. As was held in State ex rel. Davis v. Rogers, 79 Mo. 283, the proper method, where the plaintiff desires to reach new matter in defendant's answer claimed to constitute no defense to the action, is to demur to the new matter or move to strike it out. See Paxon v. Talmage, 87 Mo. 13; Houston v. Lane, 39 Mo....
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