State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland

• Decision Date: 02 July 1945
• Docket Number: 39465
• Citation: 188 S.W.2d 838,354 Mo. 97
• Parties: State of Missouri at the Relation of Long-Hall Laundry & Dry Cleaning Company, and Employers Mutual Liability Insurance Company, Relators, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

188 S.W.2d 838

354 Mo. 97

State of Missouri at the Relation of Long-Hall Laundry & Dry Cleaning Company, and Employers Mutual Liability Insurance Company, Relators, v. Ewing C. Bland, Nick T. Cave and Samuel A. Dew, Judges of the Kansas City Court of Appeals

No. 39465

Supreme Court of Missouri

July 2, 1945

Original Proceeding in Certiorari.

OPINION OF COURT OF APPEALS QUASHED.

Opinion of Court of Appeals quashed.

Leo T. Schwartz for relators; Thomas E. Hudson of counsel.

(1) Under Section 3, Article VI, of the Constitution of Missouri of 1875, and Section 8 of Article VI of the amendment of 1884, and Section 10 of the New Civil Code, this court should construe and clarify the rules of the Supreme Court under the existing facts hereinafter shown. Sec. 3, Art. VI, Mo. Const of 1875; Sec. 8, Art. VI, Amend. to Const. of 1884; Sec. 10 Civil Code of Mo.; Laws, 1943, p. 371, Civil Code of Mo.; Rules 1.19 and 2.06, Rules of Practice and Procedure in the Supreme and Appellate Courts; Sec. 10, Art. V, Const. adopted Feb. 27, 1945. (2) In ruling that the adaption, alteration, erection, installation and repair of the additional water softener unit was not an improvement to realty, the decision and opinion of the respondents conflicts with these controlling decisions of this court: Progress Press-Brick & M. Co. v. Gratiot B. & Q. Co., 151 Mo. 501, 52 S.W. 401; Thomas v. Davis, 76 Mo. 72; Havens v. Germania Fire Ins. Co., 123 Mo. 403, 27 S.W. 718; and Rogers v. Crow, 40 Mo. 91, holding that under such facts such erection and installation is an improvement to realty. State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 124 S.W.2d 1194; Sec. 3698a, R.S. 1939; Progress Press-Brick & Machine Co. v. Gratiot Brick & Quarry Co., 151 Mo. 501, 52 S.W. 401; Thomas v. Davis, 76 Mo. 72; Havens v. Germania Fire Ins. Co., 123 Mo. 403, 27 S.W. 718; Rogers v. Crow, 40 Mo. 91. (3) Respondents' opinion recognized that the adaption, erection, repair, and installation of this additional water softener was a rare occurrence and in holding that such work was an operation of the usual business of the laundry, respondents construed Section 3698 contrary to and in conflict with this court's construction of the same statute in Perrin v. American Theatrical Company, 352 Mo. 484, 178 S.W.2d 332, ruling that "usual business" meant the business customarily carried on and did not include work which is only incidental, ancillary or auxiliary. Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332; Secs. 3693, 3698, R.S. 1939; Rucker v. Blanke Baer Extract & Preserving Co., 162 S.W.2d 345. (4) Sec. 3698, R.S. 1939, can have only one meaning under canons of construction established by this court and respondents' opinion in giving this statute another meaning violated the canons of construction established by this court holding that statutes are to be given their plain, ordinary and usual meaning and that provisions not plainly written therein, or necessarily implied from what is written should not be interpolated therein by judicial construction and an impractical, confusing or speculative application or construction of a statute should be avoided. State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877; Sec. 3698, subsec. (a), R.S. 1939; Sayles v. K.C. Struc. Steel Co., 334 Mo. 756, 128 S.W.2d 1046; Allen v. St. L.-S.F. Ry. Co., 338 Mo. 395, 90 S.W.2d 1050, 105 A.L.R. 1222; Elsas v. Montgomery Elev. Co., 330 Mo. 596, 50 S.W.2d 131; State ex rel. Amer. Asphalt Roof Corp. v. Trimble, 392 Mo. 495, 44 S.W.2d 1103; State ex rel. Taylor v. Daues, 313 Mo. 200, 281 S.W. 398; State ex rel. v. Pub. Serv. Comm., 326 Mo. 1169, 34 S.W.2d 486; State ex rel. Emmons v. Farmer, 271 Mo. 306, 196 S.W. 1106; E.R. Darlington Lbr. Co. v. Mo. Pac. Ry., 216 Mo. 658, 116 S.W. 530; Bassen v. Monckton, 308 Mo. 641, 274 S.W. 404; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; State ex rel. v. St. Louis-S.F. Ry. Co., 318 Mo. 285, 300 S.W. 274; Sec. 3698, R.S. 1939. (5) In holding that the burden of proving the non-applicability of the compensation act was on the relators, the opinion conflicts with these controlling decisions of this court: Delille v. Holton-Seelye, 334 Mo. 464, 66 S.W.2d 834; Allen v. St. Louis-S.F. Ry. Co., 338 Mo. 395, 90 S.W.2d 1050; Ulman v. Chevrolet St. L. Div. of Gen. Motors Corp., 349 Mo. 906, 163 S.W.2d 778; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; and Doughton v. Marland Ref. Co., 331 Mo. 280, 53 S.W.2d 236, holding that the burden is on the claimant to bring herself within the provisions of the compensation act. Delille v. Holton-Seelye, 334 Mo. 464, 66 S.W.2d 834; Allen v. St. Louis-S.F. Ry. Co., 338 Mo. 395, 90 S.W.2d 1050; Ulman v. Chevrolet St. L. Div. of General Motors Corp., 349 Mo. 906, 163 S.W.2d 778; Adams v. Cont. Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; Doughton v. Marland Ref. Co., 331 Mo. 280, 53 S.W.2d 236; Sec. 3698, R.S. 1939.

John M. Langsdale and Clyde Taylor for respondents.

(1) Since the petition for certiorari was filed within thirty days after the overruling of the first motion for rehearing there is no occasion for the court to interpret its rules as to the effect of subsequent motions upon the time for filing certiorari. Supreme Court Rules 1.19 and 2.06. (2) The scope of review by the Supreme Court is under the law as it existed at the time the petition was filed and the writ was issued, which was before the effective date of the new Constitution, March 29, 1945. (3) For the facts in the case the Supreme Court is confined to the opinion of the Court of Appeals which cannot be contradicted, amplified or restricted by other portions of the record. State ex rel. v. Reynolds, 257 Mo. 19, 165 S.W. 7; State ex rel. v. Ellison, 200 S.W. 1042, 273 Mo. 218; State ex rel. v. Ellison, 278 Mo. 42, 210 S.W. 881; State ex rel. v. Ellison, 278 Mo. 649, 213 S.W. 459; State ex rel. v. Trimble, 322 Mo. 360, 20 S.W.2d 17; State ex rel. v. Trimble, 327 Mo. 773, 39 S.W.2d 372; State ex rel. v. Haid, 328 Mo. 327, 40 S.W.2d 611. (4) The Supreme Court is concerned only with conflicts; the question is limited to whether the opinion of the Court of Appeals is contrary to the latest controlling opinion of the Supreme Court. If not, then the Supreme Court does not determine whether the Court of Appeals otherwise erred in its decision. State ex rel. v. Robertson, 197 S.W. 79; State ex rel. v. Ellison, 204 S.W. 396; State ex rel. v. Haid. 323 Mo. 9, 18 S.W.2d 478; State ex rel. v. Trimble, 323 Mo. 458, 20 S.W.2d 46; State ex rel. v. Haid, 324 Mo. 130, 22 S.W.2d 1045; State ex rel. v. Haid, 325 Mo. 949, 30 S.W.2d 100; State ex rel. v. Haid, 328 Mo. 729, 21 S.W.2d 806. (5) The Supreme Court on certiorari will not review an opinion of the Court of Appeals construing a statute unless such construction is in direct conflict with the prior construction of said statute made by the Supreme Court. State ex rel. v. Haid, 325 Mo. 949, 30 S.W.2d 100; State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694; State ex rel. Jones v. Robertson, 262 Mo. 535, 172 S.W. 21; State ex rel. v. Trimble, 31 S.W.2d 783; State ex rel. v. Hughes, 173 S.W.2d l.c. 878. (6) The decision by the Court of Appeals is not in conflict with any prior decision by the Supreme Court. The decision is squarely within the purpose and spirit of the Workmen's Compensation Act as construed and declared by this court. Kenny v. Union Ry. Co., 152 N.Y.S. 117, and numerous other cases cited in Workmen's Compensation Law, Schneider (2 Ed.), sec. 1, p. 2; Utah Cooper Co. v. Industrial Comm., 57 Utah 118. 193 P. 24; McFall v. Barton, 333 Mo. 110, 61 S.W.2d 911; Kennedy v. Carson, 149 S.W.2d 424; Stone v. Blackmer, 27 S.W.2d 459; Glaze v. Hart, 36 S.W.2d 684; Caldwell v. Melbourne, 116 S.W.2d 232; Maltz v. Jackoway, 82 S.W.2d 909; State ex rel. v. Haid, 61 S.W.2d 950; Sayles v. Kansas City Co., 128 S.W.2d 1046; Howes v. Stark, 22 S.W.2d 839; Klasing v. Schmitt, 73 S.W.2d 1011; Stone v. Blackmer, 27 S.W.2d 459; Rue v. Eagle Co., 38 S.W.2d 487; Leonard v. Fisher, 137 S.W.2d 604; Renfro v. Pittsburg Co., 130 S.W.2d 165; Harder v. Thrift Co., 53 S.W.2d 34; Elsas v. Montgomery, 50 S.W.2d 130; Heisey v. Tide Co., 92 S.W.2d 922; McClintock v. Skelly, 114 S.W.2d 181; Decker v. Raymond Co., 82 S.W.2d 267. (7) The respondents' opinion is in strict accord with the decisions by this court and in practically the same language as to the question of a statutory employee. Particularly is it not in conflict with the case of Perrin v. American Theatrical Co., 178 S.W.2d 332. (8) Analysis of the decisions by this court in Perrin v. American Theatrical Co., 178 S.W.2d 332, and Rucker v. Blanke Baer Extract & Preserving Co., 162 S.W.2d 345, and Cummings v. Union Quarry Co., 87 S.W.2d 1039, and showing that none thereof is in conflict with respondents' opinion. (9) Respondents' opinion that the work being performed was not an improvement to the real estate under the provisions of Sec. 3698 (c) is not in conflict with any controlling decision by the Supreme Court. Progress Brick Co. v. Gratiot, 151 Mo. 501, 52 S.W. 401; Thomas v. Davis, 76 Mo. 72; Havens v. Germania Fire Ins. Co., 123 Mo. 403, 27 S.W. 718; Rogers v. Crow, 40 Mo. 91. (10) Considerations to be had in mind in determining whether in the respect under consideration respondents' opinion that the work was not an improvement to the real estate is in conflict with the controlling Supreme Court decision. 22 Am. Jur. 724; Planters' Bank v. Lummus, 126 S.E. 875, 41 A.L.R. 592; Montague v. Dent, 67 Am. Dec. 573; Thomas v. Davis, 78 Mo. 72; Havens v. Germania Fire Ins. Co., 123 Mo. 403, 72 S.W. l.c. 722; 22 Am. Jur. 798; Grand Lodge v. Knox, 27 Mo. 315; Elliott v. Black, 25 Mo. 372; Goodin v. Eileardsville, 5 Mo.App. 290; O'Bryan v. Hanson, 9 Mo.App. 545; Burgess...