Span v. Jackson, Walker Coal & Mining Co.

• Decision Date: 02 March 1929
• Citation: 16 S.W.2d 190,322 Mo. 158
• Parties: Matt Span v. Jackson-Walker Coal and Mining Company, Appellant
• Court: Missouri Supreme Court

16 S.W.2d 190

322 Mo. 158

Matt Span v. Jackson-Walker Coal and Mining Company, Appellant

Supreme Court of Missouri

March 2, 1929

[Copyrighted Material Omitted]

Rehearing Overruled. April 5, 1929.

Appeal from Jackson Circuit Court; Hon. Fred W. Coon Judge.

Affirmed.

Morrison, Nugent, Wylder & Berger and C. C. Byers for appellant.

(1) Plaintiff was required, under the statute, to file a new notice with the Secretary of State, and file copy of same, at the same time, with this defendant. Curran v. Wells Bros. Co., 281 Ill. 615; Larson v. Trageser, 150 Minn. 182; Benjamin v. Ins. Co., 152 La. 874; McCune v. Pell, 192 Ky. 22; O'Rourke v. Percy Vittum Co., 166 Minn. 251; Pope Min. Co. v. Brown. 194 Ky. 714; Bannon v. Watson, 207 Ky. 23; Great Northern Ry. Co. v. King, 165 Wis. 159; Young v. Duncan, 218 Mass. 346; Paucher v. Coal Min. Co., 182 Iowa 1084; Barnes v. Fuel Co., 283 Ill. 173; Powley v. Vivian & Co., 154 N.Y.S. 426; White v. Fuller Co., 226 Mass. 1. (2) Plaintiff cannot recover on the ground of waiver of notice or estoppel. Bannon v. Watson, 207 Ky. 23; Pope Mining Co. v. Brown, 194 Ky. 714; Larson v. Trageser. 150 Minn. 182. (3) The trial court erred in not sustaining defendant's motion in arrest of judgment, for the reason that plaintiff's petition failed to state facts sufficient to constitute a cause of action, which failure could not be and was not cured by plaintiff's reply, and in any event petition and reply together did not state a cause of action. Mathieson v. Railroad, 219 Mo. 542; Hill v. Coal Min. Co., 119 Mo. 9; Rhodes v. Holladay-Klotz Co., 105 Mo.App. 279; Milliken v. Comm. Co., 203 Mo. 654; Moss v. Fitch, 212 Mo. 484; Daniel v. Pryor (Mo.), 227 S.W. 102; Smith v. Smith, 206 Mo.App. 646; Davis v. Coal Co., 286 Ill. 64; Walters v. City of Ottawa, 240 Ill. 259; McCoy v. Southern Lbr. Co., 143 S.W. 611; Synkus v. Coal & Iron Co., 190 Ill.App. 602; Barnes v. Fuel Co., 283 Ill. 173; Wasilewski v. Sugar Refining Co., 149 N.Y.S. 1035; Means v. Term. Railroad Assn., 202 Ill.App. 591; England v. Coal Co., 214 Ill.App. 270; Beveridge v. Fuel Co., 283 Ill. 31; Palmieri v. Coal Co., 208 Ill.App. 405; Benjamin v. Accident Ins. Co., 152 La. 874; Great Northern Ry. Co. v. King, 165 Wis. 159; Fuller v. Wright Bros., 106 Kan. 676. (4) The court erred in admitting the notice of election filed by plaintiff under the Session Laws of 1911, which law was not before the court and judicial notice could not be taken of it. Crary v. Inv. Co., 285 S.W. 459. (5) The court erred in admitting alleged admissions of McDivitt that plaintiff was not under the Compensation Law. (a) These alleged admissions were conclusions of law, hence inadmissible as evidence. Polk v. Robertson, 19 Fed. Cas. 11250; Brooks v. Isbell, 22 Ark. 488; Kidwell v. Kettler 146 Cal. 121; Solomon v. Solomon, 2 Ga. 18; Craig v. Baker, 3 Ky. (Hard.) 281; Rice v. Ruddiman, 10 Mich. 125; Crockett v. Morrison, 11 Mo. 3; Rawlings v. Neal, 122 N.C. 173; Colt v. Selden, 5 Watts, 525; Co-Operative Building Bank v. Hawkins, 30 R. I. 171; Berryhill v. McKee, 1 Hump. (Tenn.) 31. (b) Statements made during discussions and negotiations for settlement are inadmissible. Marshall v. Taylor, 168 Mo.App. 248; St. Louis Railroad Co. v. Brick Co., 198 Mo. 698; Bassett v. Brick Co., 268 S.W. 645; Sterrett v. St. Ry. Co., 225 Mo. 115; Jacks v. Link, 291 Mo. 282; Landsbaum v. Janet Realty Co., 226 S.W. 604; Engel v. Powell, 154 Mo.App. 233; Gr. Northern Ry. Co. v. King, 165 Wis. 159; Fuller v. Wright Bros., 106 Kan. 676. (6) The court erred in admitting oral testimony as to the notice served on Western Coal & Mining Co., and the alleged agreement or waiver as to notice by this defendant. Cases under Points 1 and 5. (7) The court erred in refusing defendant's Instruction D-3 withdrawing the question of waiver from the jury. Authorities under Points 4 and 5. (8) The court erred in refusing defendant's Instruction D-4 withdrawing the question of estoppel from the jury. Authorities under Points 4 and 5. (9) The court erred in refusing defendant's Instruction D-6 which specifically stated that recovery could not be had because the action is one for which compensation is recoverable under the Workmen's Compensation Law of Kansas. Authorities under Point 1. (10) The verdict is excessive. Gordon v. Railroad Co., 222 Mo. 516; Taylor v. Mo. Pac. Ry. Co., 311 Mo. 604; Mount v. Coal Co., 294 Mo. 603; Ternetz v. Lime & Cement Co., 252 S.W. 65; Bond v. Railway Co., 288 S.W. 777; Finnegan v. Mo. Pac. Ry. Co., 261 Mo. 481; Greenwell v. Railway Co., 224 S.W. 404; Varley v. Taxi Cab Co., 240 S.W. 218; Trowbridge v. Fleming, 269 S.W. 610; Meeker v. Union Electric Co., 279 Mo. 574.

Horace Griffin, C. O. Pingry, W. H. Senner and Madden, Freeman & Madden for respondent.

For theory of trial, see Maurizi v. Western Coal Co., 11 S.W.2d 270. (1) Plaintiff, under the specific provisions of the Kansas Compensation Act, was not required to file a new declaration of rejection with the Secretary of State under each contract of employment. Secs. 44-552, 3, R. S. Kan. 1923; Curran v. Wells Brothers Co., 281 Ill. 615; Double v. Coal Co., 198 Iowa 1351; McMillen v. Ellis, 107 Kan. 514; Paucher v. Coal Mining Co., 182 Iowa 1084; Bateman v. Coal Co., 188 Ill.App. 357; Synkus v. Coal Co., 190 Ill.App. 602; State ex rel. Cobb v. Thompson, 5 S.W.2d 59; Johnson v. Barham, 99 Va. 305; Piatt v. Swift, 188 Mo.App. 584; Volin v. Coal Co., 203 Ill.App. 126; Sipes v. Barlow, 197 Ill.App. 239; Laws of Kansas 1927, pp. 410, 411, sec. 51. (2) Under the facts appellant is estopped from setting up the defense that respondent was at the time of injury within the provisions of the Compensation Act. Fuller v. Wright, 189 P. 142; Shellberg v. McMahon, 98 Kan. 46; Kusnetzky v. Ins. Co., 281 S.W. 47. (3) The motion in arrest was properly overruled since it did not reach any alleged defect apparent on the face of the record or the pleadings and further since (a) the respondent's petition stated a cause of action; and (b) the pleadings of respondent disclosed on their face a right of recovery against appellant. McGannon v. Ins. Co., 171 Mo. 143; State ex rel. Conant v. Trimble, 311 Mo. 143; Bennett v. Lohman, 292 Mo. 477. (a) The respondent's petition stated a cause of action. Bennett v. Lohman, 292 Mo. 477; 31 Cyc. 115; Ansell v. Boston, 254 Mass. 212; Raison v. Board of Education, 137 A. (N. J.) 847; Grand Trunk Railway v. United States, 229 F. 116, 241 U.S. 681; Wallace v. United States, 243 F. 300; Cronch v. Traction Co., 181 Ill.App. 74; 28 R. C. L. 833; Salvuca v. Ryan, 129 Md. 235; Daniels v. Boldt, 78 W.Va. 124; Frere v. Railway, 94 Kan. 57; Schweitzer v. Hamburg Co., 134 N.Y.S. 812; Nash v. Railroad, 141 Minn. 148; Johnson v. Nelson, 128 Minn. 158; Mitchell v. Refining Co., 202 Mo.App. 251; Rhodes v. Land Co., 105 Mo.App. 314. (b) The pleadings of respondent disclosed on their face a right of recovery against appellant. (4) The admission of the 1915 election cannot constitute error. Ernst v. Term. Ry. Co., 256 S.W. 222; Larabee Flour Mills v. Comm. Co., 262 S.W. 391; Harmon v. Ins. Co., 170 Mo.App. 316; Enyeart v. Peterson, 184 Mo.App. 519; Powell v. Frisco Railroad, 229 Mo. 273; Friedman v. Griffith, 196 S.W. 75; 1 Wigmore, Evidence (2 Ed.) sec. 18, p. 189; 6 Jones's Comm. on Evidence (2 Ed.) sec. 2524; Gaty v. United Railways Co., 251 S.W. 64; Sec. 1513, R. S. 1919; Vette v. Hackman, 292 Mo. 146; Boyajian Bros. v. Reinheimer, 229 S.W. 441; International Harvester Co. v. Capps, 205 S.W. 254; Gould v. Railroad Co., 315 Mo. 725. (5) The statements of McDivitt, with reference to the Compensation Act, constituted admissions of fact, and were not made as part of an offer of compromise or during negotiations for compromise; as a result, they were properly admitted in evidence. (a) The statements were clearly admissions of fact and as a result unquestionably competent. 22 C. J. 299; Hege & Co. v. Tompkins, 121 N. E. (Ind.) 680; Harper on Workmen's Compensation (2 Ed.) sec. 14, p. 35; Garrett v. Provision Co., 205 Ill.App. 411; Brookfield v. Drury College, 139 Mo.App. 366. (b) The statements were not made during discussions or negotiations for settlement, and, as a result, were clearly admissible. 2 C. J. 312; Krummenacher Drug Co. v. Chouteau, 296 S.W. 255; Lehmann v. Ins. Co., 183 Mo.App. 696; Moore v. Gaus, 113 Mo. 111; Hilburn v. Ins. Co., 140 Mo.App. 363; January v. Harrison, 199 S.W. 935; Farber v. Boston Ins. Co., 215 Mo.App. 564; Paris v. Waddell, 139 Mo.App. 288; Realty Co. v. Markham, 163 Mo.App. 327; Love v. Scott, 179 Mo.App. 355; Akers v. Kirke & Co., 91 Ga. 590; Smith v. Whittier, 95 Cal. 279; Miller v. Kinsel, 20 Colo.App. 346; Cherry Bros. v. Rock Island, 214 P. 559. Injuries and damages, see: Unterlachner v. Wells, 296 S.W. 764; Pulliam v. Wheelock, 3 S.W.2d 374; Lovett v. Railroad, 295 S.W. 89.

OPINION

Walker, J.

This is an action for personal injuries sustained by the plaintiff as a coal miner while in the employment of the defendant in a coal mine in the State of Kansas. The case was tried to a jury in the Circuit Court of Jackson County, Missouri, resulting in a verdict in favor of the plaintiff in the sum of fifty thousand dollars, from which the defendant appeals.

The action was based upon the statutes of the State of Kansas, which require that "every mine shall be supplied with sufficient prop timber of suitable length and size for the places where it is to be used, and kept in easy access to." [Sec. 6276, G. S. Kansas; Sec. 49-205, R. S. Kan. 1923.]

The plaintiff went to work in defendant's mine in February 1921, and continued in its service to the date of his injury, September 7, 1921. His injury was due to the failure of defendant to supply him with props of suitable length to support the roof of the room where he...