Sheen v. DiBella, 24232

• Citation: 395 S.W.2d 296
• Decision Date: 04 October 1965
• Docket Number: No. 24232,24232
• Parties: George E. SHEEN, Employee, Claimant-Appellant, v. Joseph DiBELLA, Employer, Respondent, Massachusetts Bonding and Insurance Company, Insurer, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 296

395 S.W.2d 296

George E. SHEEN, Employee, Claimant-Appellant, v. Joseph DiBELLA, Employer, Respondent Massachusetts Bonding and Insurance Company, Insurer, Respondent.

No. 24232.

Kansas City Court of Appeals, Missouri.

Oct. 4, 1965.

Richard A. Erickson, Donald W. Johnson, Kansas City, for appellant.

Joseph B. Bott, Kansas City, for respondent.

MAUGHMER, Commissioner.

This is a Workmen's Compensation case. The award of the Commission, following a full hearing on the merits, denied compensation and was on review affirmed by the circuit court. Claimant has appealed on the sole ground that the determinative issues decided by the Commission and upon which the award was based had become res judicata by reason of a prior judgment entered by the circuit court in a common law action for damages.

To determine this appeal requires a review of the factual evidence heard by the Commission or Referee, including the statements made and evidence submitted in the common law action based upon negligence, which was brought by claimant against the named employer, as the same were incorporated into the transcript of the proceedings before the Commission.

The defendant in the common law action and the alleged employer in the compensation claim is Joseph DiBella. He was the owner and operator of a tavern or restaurrant located in Kansas City, Missouri, d/b/a El Serena Buffet. Some time prior to February 17, 1957, the date of the accident, he had extensively remodeled and renovated the premises in which his business was housed. The claimant George E. Sheen, then 72 years of age, was a contractor or construction superintendant. He supervised this remodeling and for his services was paid a fee amounting to ten percent of the cost and totaling more than $3,000. This work had been entirely completed before the accident occurred.

According to the evidence a catalpa tree, about 15 feet in height and 18 inches in diameter, stood close to the buffet building. Its leaves fell into the gutters and defendant wanted it removed. He expressed this desire in the presence of plaintiff and plaintiff offered to remove the tree. On Sunday, February 17, 1957, plaintiff, bringing his electric saw, came onto the premises and assisted by one Virgil McGee, who was at the time regularly employed by defendant as a porter, cut down the tree. During the process a tree limb fell or rolled against and struck plaintiff, thereby allegedly injuring his leg and back.

It is conceded that DiBella employed regularly less than ten persons but had elected to operate under the provisions of the Missouri Workmen's compensation Act. His liability thereunder was fully insured by the Massachusetts Bonding and Insurance Company, which corporation had duly filed its notice of such coverage with the Commission. Mr. DiBella also carried personal liability insurance. His insurer for this coverage was the Western Casualty and Surety Company of Fort Scott, Kansas.

We quote from Section 287.120(1) V.A.M.S., Workmen's Compensation:

'If both employer and employee have elected to accept the provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person.' (Italics ours).

The statutory provisions just set forth mean and it is generally understood and it is true, that where the employer-employee relationship exists and where the accident 'arising out of and in the course of his employment', Workmen's Compensation applies and is the exclusive remedy. In such a situation the common law action for damages, based upon negligence, will not lie. Conversely, if for any valid reason, the accident is not covered by the Act, then the common law action, if negligence can be shown, remains unaffected by the Compensation Act and available as a remedy for the injured person. In other words, the Compensation Act is not supplemental of the common law, but is wholly substitutional.

We shall mention two factual situations (there are others) which will take a claim for benefits out of compensation coverage. Stated otherwise, there are two requirements which must be proved before the employer becomes liable. It must be shown (1) that the employer-employee relationship existed and (2) that the accident arose out of and in the course of the employment. Neither for formal judgment of the circuit court as entered in the common law action and upon which claimant relies, nor the Court's comment made prior to entry of the judgment, includes specifically either of these factual findings although such conclusions might be inferred therefrom. Both the formal judgment and the comment are set forth later in this opinion.

We shall attempt to relate the developments in this controversy chronologically. On March 28, 1957, the plaintiff Sheen filed in the Circuit Court of Jackson County, Missouri, Independence Division, a common law action for damages, allegedly arising out of the accident which we have described. In plaintiff's petition in that suit it is alleged that plaintiff's injuries were caused by the negligence of Virgil McGee, defendant's porter and employee, who was assisting in the removal of the tree.

On December 17, 1959, this common law action came on for trial in the circuit court. Plaintiff appeared with the same lawyers who are now representing him. Since this suit sought to burden defendant with personal responsibility and did not assert any Workmen's Compensation liability, it was to be expected that defendant's personal liability insurer, the Western Casualty and Surety Company of Fort Scott, Kansas, would defend the suit and would conduct such defense by and through its attorneys. That is exactly what did happen. It should here again be noted that Western Casualty is a different insurance company from Massachusetts Bonding, the compensation insurer, and was represented by other and different attorneys. So far as is revealed by the record, Massachusetts Bonding had neither notice nor knowledge of the common law action until after its termination, nor did it take any part in that litigation.

A transcript or at least a partial transcript of the proceedings in the common law action was incorporated into the record of the Compensation hearing. It is short and we summarize a part of the contents. Preliminary to the trial or hearing before the circuit court, Mr. Deacy, representing Western Casualty (and ipso facto the defendant) stated to the Court that their preliminary defense was that DiBella 'was a qualified employer under the Workmen's Compensation Law with an approved insurer under the Act, and I will either prove this up in the process of the trial, which I am, of course, prepared to do, or, on the other hand, I am also prepared, to keep it from being introduced before the jury, to stipulate and agree with counsel as to those facts as to which I do not think there is any dispute.' The answer filed set forth such defense.

MR. JOHNSON: (representing plaintiff): 'We will stipulate.

MR. DEACY: 'It is, then, stipulated and agreed that at the time of this occurrence in question the defendant, Joseph DiBella, was a qualified employer under the Missouri Workmen's Compensation Act, and that if the plaintiff were an employee of defendant at the time of the injury as defined by the Act he and the defendant would be covered by the Act, and that at the time of the occurrence in question the defendant as an employer under the Act was covered by a policy issued by an approved insurer under the Act?

MR. JOHNSON: 'We will stipulate to that with the understanding that we are not stipulating that Sheen was an employee.

MR. DEACY: 'I am not asking you to stipulate that.'

We conclude from the statements of counsel as above set forth that both groups of attorneys knew that DiBella was (a) a qualified employer, (b) had 'an approved insurer under the Act', and (c) Mr. Deacy said he was prepared to prove these facts. However, these very pertinent facts were not proved, but were in part stipulated by Mr. Deacy, representing Western, and by counsel for plaintiff. Did these attorneys have the authority to so stipulate on these matters which so vitally concerned Mr. DiBella and his compensation insurer Massachusetts Bonding if it resulted in establishing liability under the Act? Moreover, there was neither stipulation nor proof that that the accident and injury arose out of and in the course of any employment of plaintiff by DiBella.

The colloquy as set forth occurred out of the presence of the jury panel. A jury was then examined, qualified and selected. After that came a noon recess. There is partial agreement and partial disagreement as to what transpired during the noon recess. All parties agree that it was agreed to waive a jury and this was done in open court. Mr. DiBella says the case was 'settled' by the attorneys during the noon recess. Counsel for plaintiff deny or at least do not admit this. Mr. Deacy for Western was not heard from on this point. We shall quote later on in part, verbatim, as to just what was said on this subject.

We incorporate additional remarks by counsel which were made in open court:

MR. DEACY: 'This is a hearing on the issue of whether or not the plaintiff was an employee and the defendant was an employer and both of them were under the Missouri Workmen's Compensation Law which has been asserted as a defense in this case?

THE COURT: 'That is the issue you asked the Court to try.

MR. DEACY: 'Yes, we will ask the Court to try that issue and that issue alone.

THE COURT: 'Very well.

MR. DEACY: 'Preliminary to a trial on the other issues. And of course if the Court finds that the plaintiff and defendant are subject to the Act and that it is an exclusive remedy of the...