State ex rel. Loving v. Trimble, 31027.

• Court: United States State Supreme Court of Missouri
• Citation: 53 S.W.2d 1033
• Docket Number: No. 31027.,31027.
• 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.
• Decision Date: 22 October 1932

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

53 S.W.2d 1034

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,...