State ex rel. Ebert v. Trimble

• Decision Date: 24 August 1933
• Docket Number: 32332
• Parties: State of Missouri at the Relation of Arley Ebert, Relator, v. Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

63 S.W.2d 83

333 Mo. 711

State of Missouri at the Relation of Arley Ebert, Relator, v. Francis H. Trimble, Ewing C. Bland and Henry L. Arnold, Judges of the Kansas City Court of Appeals

No. 32332

Supreme Court of Missouri

August 24, 1933

Opinion quashed.

W. W McCanles for relator.

(1) A case will not be reviewed on a theory different from that on which it was tried in the court below. Meyer v. Am Folding Chair Co., 130 Mo. 188; Fiel v. Wells, 282 S.W. 25; Snyder v. Am. Car & Foundry Co., 14 S.W.2d 603; Linn County Bank v. Clifton, 172 S.W 338, 263 Mo. 200; Chicago, R. I. & P. Ry. Co. v. Lydik, 187 S.W. 891; Mecartney v. Guardian Trust Co., 202 S.W. 1131, 274 Mo. 224; Grott v. Show Co., 2 S.W.2d 785. (2) Whether or not the Workmen's Compensation Law of the State of Missouri applies in any case is a question of fact, and the burden of proof is upon the one asserting said application. Casper v. Gluck, 39 S.W.2d 330; Warren v. Am. Car & Foundry Co., 38 S.W. 721; Barz v. Fleischmann Yeast Co., 271 S.W. 361, 308 Mo. 288; State ex rel. Mo. Gas & Elec. Serv. Co. v. Trimble, 271 S.W. 43, 307 Mo. 536. (3) A minor is incapable of making a contract except for necessities of life. Curr v. Bell, 44 Mo. 120; Dillon v. Boles, 77 Mo. 603; Robinson v. Floesch Const. Co., 236 S.W. 332. (4) Plaintiff is not required to include in his instructions to the jury matters of affirmative defense. State ex rel. Ins. Co. v. Cox, 307 Mo. 197; State ex rel. Jenkins v. Trimble, 291 Mo. 227, 236 S.W. 651. (5) A party litigant is estopped to deny admissions made in the pleadings. Grott v. Shoe Co., 2 S.W.2d 785; Andrus v. Business Men's Assn., 223 S.W. 30; Parsons v. Harvey, 221 S.W. 21. (6) Where defendant erroneously joins the plaintiff in submitting a matter to the jury any error in so doing is thereby waived. Coleman v. Rightmeyer, 285 S.W. 405; Flanigan v. St. Louis Ry. Co., 297 S.W. 263; Christian v. Ins. Co., 143 Mo. 467; Kane v. St. Louis-S. F. Ry. Co., 254 Mo. 175. (7) That a petition will not be considered and treated as amended to conform to the proof for the purpose of destroying a verdict. Kitchen v. Schleuter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676; Gandy v. Railroad Co., 44 S.W.2d 634.

C. W. German, Lee C. Hull and C. Z. German for respondents.

Section 3305, Revised Statutes 1929, which is a part of the Workmen's Compensation Act, provides: ". . . The word 'employee' shall also include all minors who work for an employer, whether or not such minors are employed in violation of law, and all such minors are hereby made of full age for all purposes under, in connection with, or arising out of this chapter." This court, in Pruitt v. Harker, 43 S.W.2d 769, had occasion to refer to this provision of the act, and at l. c. 773, said: "For the purpose of receiving and being entitled to compensation for injuries received while performing services for an employer, no distinction is made between adults and minors, but for the purpose of the act in question 'minors are hereby made of full age.' In cases arising under the Compensation Act, minors are deemed emancipated by operation of law." The statute says "for all purposes under, in connection with, or arising out of this chapter." These are broad terms, comprehensive in character, sweeping in their all-inclusiveness, and it would seem that the expression "all purposes" was intended by the Legislature to include all purposes. That we are dealing with a situation "under," "in connection with," or "arising out of" the act must be conceded. Otherwise the whole discussion amounts to nothing. This court held, in Leilich v. Chevrolet Motor Co., 40 S.W.2d 601, and approved in Teague v. Laclede-Christy Clay Products Co., 52 S.W.2d 880, that the language of the Compensation Act, couched as it is in plain, ordinary and everyday words, should not be technically construed, but that the words should be given their plain, usual and ordinary meaning. It is important in this connection to refer briefly to the decisions in reference to the purpose, effect and construction of the Compensation Act. Lally v. Morris, 26 S.W.2d 52. It is held that if an employer has more than ten regular employees, and has not rejected the act, whatever damages or compensation to which one is entitled are governed and controlled by the provisions of the act, which are exclusive. Mayberry v. Fruin-Colnon Contracting Co., 37 S.W.2d 574, this court held that the act is contractual and elective. In Kemper v. Gluck, 39 S.W.2d 330, this court held that the act, when accepted by employer and employee, became a part of the contract of employment. State ex rel. v. Mo. Workmen's Compensation Comm., 8 S.W.2d 897; Oren v. Swift & Co., 51 S.W.2d 59. While the evidence is not clear and direct on the subject, nevertheless it appears from Mr. Kasper's testimony that the business here was a branch of the defendant company, its headquarters being in Chicago. Of course, from this it follows that the defendant had other employees outside of Missouri, so that instead of its employees being limited to eleven, it must have had many more, the eleven testified to by Mr. Kasper being those having immediate connection with the Kansas City branch. In view of this it is important to note that this court, in Elsas v. Montgomery Elevator Co., 50 S.W.2d 130, expressly held that for the purpose of determining whether an employer came within the act, all of the regular employees must be counted and not only those working under contracts of employment in this State.

OPINION

Frank, P. J.

Certiorari to quash an opinion of the Kansas City Court of Appeals in the case of Arley Ebert v. A. J. Kasper Co., reported in 49 S.W.2d 653. In that case plaintiff, Ebert, recovered judgment against A. J. Kasper Company for alleged personal injuries. On appeal to the Kansas City Court of Appeals that judgment was reversed and the cause remanded with directions, in an opinion written by Arnold, J., Trimble, P. J., concurring in result in separate opinion, and Bland, J., dissenting in separate opinion.

The action was one at common law based on certain allegations of specific negligence. The answer contained (1) a general denial, (2) a plea of contributory negligence, (3) a plea of assumption of risk, and (4) a plea of estoppel to claim further damage because of the compliance by both parties with the terms of a settlement agreement which the answer sets out.

Plaintiff was in the employ of defendant, and on the day of his injury was operating a freight elevator when his foot was caught between the elevator platform and the second floor of the building. A statement of facts showing the cause and extent of plaintiff's injuries is not essential to a determination of the questions raised by relator.

The pertinent parts of the principal opinion of the Court of Appeals follows:

" . . The testimony tends to show defendant regularly employed eleven men in its business. A short time after the accident. Mr. Kasper, who was vice president and treasurer of defendant corporation and manager of the Kansas City branch, discussed with plaintiff and his father the question of paying plaintiff, regardless of liability, as testified to by Kasper, on the basis of the Workmen's Compensation Law of Missouri. Plaintiff and his father went to the office of the Compensation Commission in Kansas City, Missouri, and investigated the matter. Thereupon an agreement was made between the parties that defendant would pay and plaintiff would accept compensation under said law. A first payment of $ 42.68 was made, as stated in the 'temporary agreement and first receipt' in evidence, 'this receipt for compensation beginning May 6, 1927, . . . to and ending June 2, 1927,' at the rate of $ 10.67 per week. Receipts signed by plaintiff for the said weekly payments, aggregating $ 416.13, were introduced in evidence. The receipts are identical, each reciting it is in full compensation for the particular week specified under the Missouri Workmen's Compensation Act. The testimony shows that in addition to the weekly payments, defendant paid expenses and charges, a total of $ 315.35, making in all $ 731.48, which defendant paid in full satisfaction of the alleged agreement. The said temporary agreement and first receipt is made out on 'Revised Form 4' issued by the Missouri Workmen's Compensation Commission. It is signed by the A. J. Kasper Company by Frank P. Kasper, Treasurer, and Arley Ebert. This contract is in evidence. Payments were made pursuant to the terms of the contract, up to and including the week ending January 7, 1928, at which time plaintiff's foot had recovered.

"On January 13, 1928, defendant tendered plaintiff a draft for $ 4.80, together with a receipt for his signature which recited:

"'I, Arley Ebert, hereby acknowledge receipt of four dollars eighty cents only dollars, ($ 4.80), being full compensation due from A. J. Kasper Co., for the period of compensation in full. Compensation in full compensation under the Missouri Workmen's Compensation Act.

"'

"'Witness:

"'Claimant must sign this receipt or draft will not be paid.'

"Plaintiff refused to sign said receipt and the draft was not delivered. His refusal was for the reason he did not want to sign it as worded, because he did not know at that time just whether the offered voucher paid him in full.

"This suit was filed February 21, 1928. The testimony shows five of the $ 10.68 checks were cashed March 2, 1928, after the suit was instituted. . . .

"In support of the appeal, defendant urges eleven men were regularly employed in its business and they came automatically under the Workmen's Compensation Law, but notwithstanding this, the agreement between the parties was made that compensation should be paid and received under that law; that...