State ex rel. Loving v. Trimble

• Decision Date: 22 October 1932
• Docket Number: No. 31027.,31027.
• Citation: 53 S.W.2d 1033
• Parties: STATE OF MISSOURI at the relation of CHARLES T. LOVING, Relator, v. FRANCE H. TRIMBLE, EWING C. BLAND and HENRY L. ARNOLD, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

53 S.W.2d 1033

STATE OF MISSOURI at the relation of CHARLES T. LOVING, Relator, v. FRANCE H. TRIMBLE, EWING C. BLAND and HENRY L. ARNOLD, Judges of the Kansas City Court of Appeals.

No. 31027.

Supreme Court of Missouri, Division One.

October 22, 1932.^*

Certiorari.

WRIT QUASHED.

Irwin & Bushman for relator.

(1) A motion to dismiss may fill the office of a demurrer, and be so treated, where it is, to all intents and purposes, a demurrer and dispositive of the whole case as a matter of law, and the rulings thereon will be reviewable without motion for new trial and bill of exceptions. State ex rel. v. Ellison, 266 Mo. 430; Mayes v. United Garment Workers of America, 6 S.W. (2d) 334. (2) The opinion of the Kansas City Court of Appeals in holding that it assumed that the trial court heard evidence establishing that defendant had complied with Section 25 of the Workmen's Compensation Act, when that question was not in issue under the motion to dismiss, is in conflict with the following controlling decisions of the Supreme Court: State ex rel. v. Ellison, 266 Mo. 430; Hecker v. Bleish, 3 S.W. (2d) 1019; State ex rel. v. Muench, 217 Mo. 138.

Ira H. Lohman for respondents.

(1) The law is well settled that the Workmen's Compensation Act went into effect November 2, 1926. The injury complained of occurred December 31, 1926, and suit brought on that injury must be brought before the Workmen's Compensation Commission. State ex rel. Elsas v. Missouri Workmen's Compensation Comm., 2 S.W. (2d) 796. After the act went into effect the parties could not confer jurisdiction upon the court over the subject-matter even by agreement. If the court had no jurisdiction over the subject-matter, then the parties could not by appearance or by agreement confer that jurisdiction upon the court. (2) The motion to dismiss presented to the circuit court which tried this case questions of fact which were determined by the trial court, and in absence of exceptions made at the time to the evidence thereon, properly preserved in a motion for new trial in the bill of exceptions, and as there is none of that evidence preserved in the bill of exceptions there was nothing before the Kansas City Court of Appeals for review. Cockran v. Britton, 14 Mo. 446; Sickles v. Abbott, 21 Mo. 443; Ames v. Bircher, 22 Mo. 586; Collins v. Compton, 31 Mo. 529; Mehl v. Waldorf, 35 Mo. 466; Jameson v. State, 45 Mo. 332; Wortman v. Campbell, 48 Mo. 509; Berry v. Smith, 54 Mo. 148; Czezewzka v. Benton-Bellefountaine Ry. Co., 121 Mo. 201; Sarazan v. Union Railroad Co., 153 Mo. 483; Clelland v. Clelland, 235 S.W. 817. If the motion to dismiss be considered more as a judgment on the pleadings, then it must be preserved by exceptions. Leahy v. Mercantile Trust Co., 247 S.W. 401, 296 Mo. 561; Stearnberg v. Levy, 159 Mo. 629; Coffey v. Carthage, 200 Mo. 629; Godfrey v. Godfrey, 228 Mo. 507; Interstate Ry. Co. v. Railroad, 251 Mo. 717; Equitable Life Assur. Society v. National Bank, 197 S.W. 117; Hodson v. McAnerney, 192 S.W. 424. (3) The court, in passing on the motion to dismiss, had to determine from the evidence whether the defendant was a major employee, whether he had insured the risk as provided by Section 25, and the court had to pass upon questions of facts and hear evidence, and when no exceptions were saved the action of the trial court could not be reviewed on appeal. Cockran v. Britton, 14 Mo. 446; Sickles v. Abbott, 21 Mo. 443; Ames v. Bircher, 22 Mo. 586; Collins v. Compton, 31 Mo. 529; Mehl v. Waldorf, 35 Mo. 466; Jameson v. State, 45 Mo. 332; Wortman v. Campbell, 48 Mo. 509; Berry v. Smith, 54 Mo. 148; Czezewzka v. Benton-Bellefountaine Ry. Co., 121 Mo. 201; Sarazan v. Union Railroad Co., 153 Mo. 483; Clelland v. Clelland, 235 S.W. 817. (4) Rulings on motions directed at pleadings must be excepted to at the term when made; unless such exceptions are taken, they cannot be made the subject of review on appeal. Wentzville Tobacco Co. v. Walker, 123 Mo. 669; Ray v. Brown, 80 Mo. 230; Singer Mfg. Co. v. Stephens, 169 Mo. 1; McMurry v. McMurry, 258 Mo. 415; Wilson v. Haxby, 76 Mo. 345; Abbott v. Billum, 146 Mo. 176; Casler v. Chase, 160 Mo. 418.

FRANK, J.

Certiorari. Relator seeks to have the court quash an opinion of the Kansas City Court of Appeals in the case of Charles T. Loving v. E.A. Becker. The trial court dismissed said cause for want of jurisdiction, and the Court of Appeals affirmed the judgment. The opinion of the Court of Appeals follows:

"This is an action for damages for personal injuries. There was no trial on the merits but the court sustained defendant's plea to the jurisdiction. An appeal was allowed to the Supreme Court. However, that court transferred the cause here on the ground that this court had jurisdiction of the appeal.

"The facts relative to the matters presented for determination here are well stated, as far as they go, in plaintiff's brief. Said facts are as follows:

"`In this cause the plaintiff filed his petition for injuries received on the 31st day of December, 1926, as he alleged, through the carelessness and negligence of the defendant and prayed judgment in the sum of $7,500.

"`In due season the defendant filed his answer, a general denial, which was at the September Term of the court, 1927.

"`At the May Term, 1928, the defendant filed an amended answer alleging that at that time, to-wit at the filing of the petition, the defendant was a major employer under the Workmen's Compensation Act; that he was an employer of more than ten regular employees; and alleged that the Employees' Liability Act became effective November 2, 1926, and since the injury occurred December 31, 1926, the court had no jurisdiction over the subject-matter. The answer further denied the common-law liability of the defendant.

"`To defendant's amended answer plaintiff replied and set up matters of estoppel against the defendant; alleging that the defendant appeared generally in court, had filed a general denial and had permitted the plaintiff to proceed in the cause to the point where he had no rights under the Workmen's Compensation Act in that more than six months had elapsed since the accident and that therefore the Statute of Limitations had run against his claim before the Compensation Commission. Plaintiff further replying alleged that the defendant had at the time of the injury failed to comply with the provisions of Section 25 of the Workmen's Compensation Act by failing to insure his liability as provided by said Section 25 of the Act; and had failed to furnish to the Commission satisfactory proof of his ability to carry his own insurance, and that by reason thereof the plaintiff elected to recover from the employer, the defendant, as though he, the defendant, had rejected said act.

"`At the time of the filing of his amended answer the defendant filed a plea to the jurisdiction and motion to dismiss wherein he alleged the court was without jurisdiction over the subject-matter because, as the plea and motion stated, the defendant was at the time (at the time of filing motion) a major employer under the Workmen's Compensation Act and alleged that both parties plaintiff and defendant had accepted the terms of the Act, Section 2 of the Act, Session Laws 1925, page 375, except as in this Act otherwise provided, shall be conclusively presumed to have elected to accept the provisions of this Act and respectively to furnish and accept compensation as herein provided, unless prior to the accident he shall have filed with the Commission a written notice that he elects to reject this Act.

"`The court sustained the defendant's plea to the jurisdiction and motion to dismiss and on the same day, the 10th day of May, 1928, ordered the plaintiff's action dismissed. From this judgment of dismissal the plaintiff has appealed.'

"It is insisted that the court erred in sustaining defendant's plea to the jurisdiction and motion to dismiss. Defendant says that he `thinks the motion itself raised an issue of fact, nevertheless the court undertook to sustain the motion without hearing any evidence.'

"There was no admission in the pleadings that defendant had complied with Section 25 of the Workmen's Compensation Act (See Laws 1927, p. 506) which provided that the employer either insure his liability or show to the Commission that he is able to carry his own liability. Under the provisions of said section, unless the employer complies therewith, the employee is entitled to elect, after the injury, to recover from the employer as though the latter had rejected the act. There is no controversy that, unless defendant complied with Section 25 of the Act, plaintiff is entitled to bring this suit. The main controversy is over the question as to whether or not there was a compliance by defendant of said section of the act.

"Plaintiff has not brought here in his abstract of the record any bill of exceptions, the abstract consisting merely of the record proper.

"Plaintiff insists that the motion to dismiss and the answer containing the plea to the jurisdiction must be considered as nothing other than pleas to the jurisdiction and, therefore, it was not necessary to incorporate the motion to dismiss in the bill of exceptions but that motion is properly shown in the record proper. We may assume, for the purposes of this case, that plaintiff's contention is well taken but it does not follow that we may adjudge that the trial court committed error in sustaining the plea to the jurisdiction without our having the benefit of a bill of exceptions showing the testimony the trial court heard in reference to the matter. As before stated, defendant contends that the trial court heard no testimony of any kind. Plaintiff does not agree with this assertion of defendant but stated that evidence was heard. The only part of the record that is before us which throws any light upon this controversy is as follows: That part of the judgment appealed from which is material...