Scott v. Vincennes Bridge Company

• Citation: 299 S.W. 145,220 Mo.App. 1213
• Parties: ARTHUR SCOTT, RESPONDENT, v. VINCENNES BRIDGE COMPANY, A CORPORATION, APPELLANT
• Decision Date: 08 November 1927
• Court: Court of Appeal of Missouri (US)

299 S.W. 145

220 Mo.App. 1213

ARTHUR SCOTT, RESPONDENT, v. VINCENNES BRIDGE COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

November 8, 1927

Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.

AFFIRMED.

Judgment affirmed.

Seymour Riddle and Ralph & Baxter for appellant.

(1) Contract of employment made in Indiana is subject to the provisions of the State Compensation Act. Employer and employee shall be presumed to have accepted the provisions of the act. Section 2, Workmen's Compensation Act of Indiana. (2) The acceptance of the provisions of the Workmen's Compensation Act by either employer or employee is optional and not compulsory. Section 4, Workmen's Compensation Act of Indiana; Hagenbeck v. Leppert, 117 N.E. 531. (3) The compensation act within its ambit excludes actions at common law for damages. Section 6 Workmen's Compensation Act of Indiana. (4) The compensation act is extra-territorial in its operations and is binding alike on employer and employee, although the injury may have occurred in another State. Section 20 Workmen's Compensation Act of Indiana; Hagenbeck v. Leppert, 117 N.E. 531; Rogers v. Rogers, 70 Ind.App. 659. (5) Where a compensation act provides for optional and not compulsory acceptance it has extra-territorial operation. This has the support of the great weight of opinion in those states where the question has been raised. Hagenbeck v. Leppert, supra; Rogers v. Rogers, supra; Rounsaville v. Railroad, 87 New Jersey Law 371; Crane v. Leonard, 214 Mich. 218; Pierce v. Bekins Co., 185 Iowa 1346; Barnhart v. Steel Co., 227 N.Y. 531; Holmes v. Steel Co., 186 N. Y. App. 645; Gooding v. Ott, 77 West Virginia--; Casualty Co. v. Court, 140 Minn. 427; Stansbury v. Stove Co., 183 N.W. 977; McCarty v. District Court, 141 Minn. 61; Anderson v. Iron Co., 35 A. L. R. 1413. Crystallized public sentiment in Missouri finds expression in its compensation act enacted by the General Assembly of 1927, wherein the Missouri Workmen's Compensation Act is given extra-territorial operation. Sec. 12, page 498, Laws 1927.

John T. Manning and E. Mc D. Stevens for respondent.

James T. Roberts, of Counsel.

(1) As the evidence in this case shows that the contract of employment between appellant and respondent was made in Oklahoma, and the work was performed in Missouri, the Indiana Compensation Law can have no application. (2) The matter set up as a defense in paragraph two was properly stricken out. A careful reading of this paragraph two of the answer discloses that while it undertakes to invoke the Indiana Workmen's Compensation Act, it does not set up any part of that act in the answer nor does it set up in the answer anything to show in what manner the act applied to plaintiff's case, but merely refers to the act in most general terms, and then undertakes to file the act as defendant's Exhibit "B" to the petition. This method of pleading is open to the objections. (a) That a foreign law must be pleaded and enough of it set forth to show its application to the issues involved in the case, and at the trial of the case the foreign law properly authenticated is then offered in evidence. McDonald v. Bankers, etc., 154 Mo. 618; Lee v. Mo. Pac. Ry. Co., 195 Mo. 400; Gibson v. C. & G. W. Ry. Co., 225 Mo. 473; State National Bank v. Levy, 141 Mo.App. 228; Bonddurant v. Brotherhood, 199 S.W. 424. (b) There is not enough of the act set up in the answer to enable us to see its application, and its application could only be determined by reading the Exhibit in connection with paragraph two. The general rule is that an Exhibit attached to a petition is not such a part of the petition as to save it from being bad on demurrer, even though, if the petition were aided or eked out by the contents of the Exhibit it would be good against demurrer. This is true even though the petition states the exhibit is made a part of the petition. State ex rel. Fenn v. McQuillin, 256 Mo. 693. (c) The Indiana Workmen's Compensation Act can have no application to the case at bar even though it was found that the contract was made in Indiana. Mitchell v. St. L. S. & R. Co., 215 S.W. 506.

BECKER, J. Daues, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

Plaintiff obtained a verdict for $ 2500 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, Missouri; 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 four or five 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 two 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, Missouri, 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 two 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 plainti...