State ex rel. St. Louis Car Co. v. Hostetter

• Decision Date: 12 September 1939
• Docket Number: 35938
• Citation: 131 S.W.2d 558,345 Mo. 102
• Parties: State of Missouri at the relation of St. Louis Car Company, a Corporation, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals of the City of St. Louis
• Court: Missouri Supreme Court

131 S.W.2d 558

345 Mo. 102

State of Missouri at the relation of St. Louis Car Company, a Corporation, Relator, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals of the City of St. Louis

No. 35938

Supreme Court of Missouri

September 12, 1939

Motion for Rehearing Overruled July 7, 1939, Motion to Transfer to Banc Overruled September 12, 1939.

Opinion filed at September Term, 1938, April 20, 1939; motion for rehearing filed; motion overruled at May Term, 1939, July 7 1939; motion to transfer to Court en Banc filed; motion overruled at September Term, 1939, September 12, 1939.

Writ quashed.

Watts & Gentry and Lehmann & Lehmann for relator.

(1) The St. Louis Court of Appeals failed to follow the last controlling decisions of the Supreme Court of Missouri in the following particulars: (2) The St. Louis Court of Appeals failed to follow the decision of this court in the case of State ex rel. Wors v. Hostetter, 124 S.W.2d 1072 343 Mo. 945, wherein it was held that when a statute plainly can have only one meaning under canons of construction established by this court, it is error for the Court of Appeals to give it another meaning. (3) The St. Louis Court of Appeals failed to follow the decision of this court in the case of State ex rel. Weaver v. Missouri Workmen's Compensation Commission, 95 S.W.2d 641, wherein it was held that the Missouri Workmen's Compensation Act governs if the accident occurs in Missouri, unless the contract of employment otherwise provided. (a) The St. Louis Court of Appeals failed to follow the decision of this court in the case of Span v. Jackson-Walker Coal & Mining Co., 16 S.W.2d 190, wherein it was held that if a general liability is created by statute, an exception to such general liability need not be negatived, but must be asserted as a defense. (4) The St. Louis Court of Appeals failed to follow the decision of this court in the case of Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1, wherein it was held that an instruction which is not based on or authorized by the evidence is misleading, confusing and erroneous.

Geers & Geers for respondents.

(1) Under this rule, petition is demurrable if it discloses on its face facts which would bring the case within an exception created by statute, but, if no such facts are disclosed on the face of the pleading, and if so, that must be asserted by answer. Warren v. Amer. Car & Foundry Co., 327 Mo 755, 38 S.W.2d 718. Since plaintiff's action against defendant is based on common-law negligence, exception from such liability by reason of the provisions of our Workmen's Compensation Act is a matter of defense to be asserted by the defendant in his answer, and need not be negatived in plaintiff's petition. Absence of such a plea, defendant will not be permitted to affirmatively show such exception. Span v. Coal Mining Co., 322 Mo 156, 16 S.W.2d 190; Warren v. Amer. Car & Foundry Co., 327 Mo. 755, 38 S.W.2d 718; Kemper v. Gluck, 21 S.W.2d 922; Kearley v. St. Louis Car Co., 111 S.W.2d 976. (2) Where the meaning of a statute is debatable, the Supreme Court cannot overturn a Court of Appeals construction thereof on certiorari, merely because the court may think it violates some general canon of construction recognized by it. (3) Erroneous instructions, which are immaterial or irrelevant, and could not mislead the jury or prejudice appellant, are not grounds for reversal finding. Valle v. Piston, 3 S.W. 860. The giving of an incorrect instruction is not ground for reversal where no other verdict could have properly been rendered under the evidence. Greer v. Bank, 30 S.W. 319.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Relator, St. Louis Car Company, instituted this certiorari proceeding to quash the opinion and record of the St. Louis Court of Appeals in the case of Kearley v. St Louis Car Co., 111 S.W.2d 976. Relator urges that respondents' opinion is in conflict with the following decisions of this court. [State ex rel. Wors v. Hostetter, 343 Mo. 945, 124 S.W.2d 1072; State ex rel. Weaver v. Missouri Workmen's Compensation Commission et al., 339 Mo. 150, 95 S.W.2d 641; Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190; Gundelach v. Compagnie Generale Transatlantique, 41 S.W.2d 1.] We do not deem it necessary to set forth in full respondents' opinion wherein the facts are stated in detail. Briefly, the suit was an action at common law by Kearley against the St. Louis Car Company to recover damages for personal injuries alleged to have been sustained by Kearley at the plant of the St. Louis Car Company. Kearley was employed by the Electro-Motive Company, an Ohio corporation. The defendant, St. Louis Car Company, was a Missouri corporation with its plant located in St. Louis, Missouri. The Electro-Motive Company maintained a separate and distinct department at defendant's plant for the purpose of electrically equipping locomotives manufactured by the defendant Car Company. One of plaintiff's duties was to aid in moving locomotive trucks from the defendant's plant to the department operated by the Electro-Motive Company, where the trucks would be electrically equipped. Plaintiff was injured while engaged in moving some trucks and while on the premises of the defendant Car Company. His suit was based on the theory that he was injured through the negligence of the defendant's servants. The Car Company filed an answer consisting of a general denial and a plea of contributory negligence. There was a trial which resulted in a judgment for plaintiff, which judgment was affirmed by the St. Louis Court of Appeals.

Defendant Car Company had offered a demurrer to the evidence at the close of the case. This was denied and the ruling of the court thereon was preserved for review. Respondents in their opinion ruled that the demurrer was properly denied. Relator contends that this holding of respondents is in conflict with our rulings in the above cited cases. Relator contends that the evidence introduced by plaintiff disclosed that the case came within the jurisdiction of the Workmen's Compensation Commission and therefore the circuit court did not have jurisdiction and the demurrer should have been sustained. Respondents' ruling can be best understood by quoting that portion of the opinion dealing with this question. It reads:

"Since plaintiff's action against the defendant is based on common-law negligence, exemption from such liability by reason of the provisions of our Workmen's Compensation Act is a matter of defense to be asserted by the defendant in his answer, and need not be negatived in plaintiff's petition. Absent such a plea defendant will not be permitted to affirmatively show such exception. [Span v. Coal & Mining Co., 322 Mo. 158, 16 S.W.2d 190.] If, however, facts which bring the case within an exception created by the statute appear from the face of the petition, it is demurrable. [Warren v. American Car & Foundry Co., 327 Mo 755, 38 S.W.2d 718.]

"In the instant case, though the petition does not allege facts which would bring the case within the exception of the common-law liability as for negligence by reason of the applicability of the Missouri Workmen's Compensation Act, and the defendant failed to set up such exception as an affirmative defense by way of answer, it is defendant's contention that from plaintiff's petition and plaintiff's own evidence it appears, as a matter of law, that defendant's liability, if any, to plaintiff for the injuries which he sustained, came under the provisions of the Missouri Workmen's Compensation Act, and that defendant's obligations, if any, to plaintiff under the provisions of the act have been fully discharged, and therefore the trial court erred in overruling the peremptory instruction offered at the close of the case. Such is the applicable rule of law, if defendant's view of plaintiff's petition and plaintiff's evidence is correct. [Houts, Mo. Pleading & Practice, vol. 1, sec. 358; 64 C. J. 474; Sissel v. St. Louis & S. F. Ry. Co., 214 Mo. 515, 526, 113 S.W. 1104, 1107, 15 Ann. Cas. 429.]

"'This is the reasonable rule and the common sense rule. It matters not upon what ground the plaintiff's evidence discloses the absence of a meritorious cause, if such evidence is made to appear to the court, the court has but one duty to perform, i.e., say so, by proper instruction to the jury. In so doing the court simply says to the plaintiff, "by your own proof you have no standing in a court of justice."' [Sissel v. St. Louis & S. F. Ry. Co., supra.]

"But the rule sought to be invoked does not apply under the facts in the instant case. We concede defendant's contention that the allegation in plaintiff's petition may be viewed as showing that plaintiff met with his alleged injuries as an employee of the Electro Motive Company, doing work under contract on or about defendant's premises, which was an operation of the usual business which defendant there carried on, Section 3308(a), Rev. St. of Mo. 1929, Mo. St. Ann., sec 3308(a), p. 8242, and that plaintiff testified that the Electro Motive Company had a number of employees and had compensation insurance, and that he had...