State v. Smith

• Decision Date: 05 December 1939
• Docket Number: No. 25255.,25255.
• Citation: 134 S.W.2d 1061
• Parties: STATE ex rel. NATIONAL LEAD CO. v. SMITH, Judge.
• Court: Missouri Court of Appeals

134 S.W.2d 1061

STATE ex rel. NATIONAL LEAD CO. v. SMITH, Judge.

No. 25255.

St. Louis Court of Appeals. Missouri.

December 5, 1939.

Rehearing Denied January 2, 1940.

"Not to be reported in State Reports."

Original proceeding in prohibition by the State of Missouri, on the relation of the National Lead Company, against Honorable Taylor Smith, Judge of the Circuit Court of St. Francois County, Mo., to restrain defendant from further proceeding to hear and determine a certain case.

Provisional writ discharged, and permanent writ denied.

Boyle & Priest, of St. Louis, and Harry O. Smith, of Farmington, for relator.

I. N. Threlkeld, of Flat River, and W. E. Coffer, of Farmington, for respondent.

HUGHES, Presiding Judge.

This is an original proceeding in prohibition to restrain the respondent as judge of the Circuit Court of St. Francois County, Missouri, from further proceeding to hear and determine the case styled, James W. Banister v. National Lead Corporation, and being file marked in said court as case No. 10471.

The application was made on the theory that respondent has in a previous judgment exhausted his jurisdiction over the parties and the subject matter of the case, and is without jurisdiction to proceed further.

A full statement of the proceedings had in the circuit court is necessary to an understanding of the questions involved. On July 13, 1936, James W. Banister brought suit against relator in the circuit court, the case bearing file No. 10025 of said court, in which he sought to recover damages from relator because of alleged injuries in the nature of an occupational disease allegedly caused by the negligence of relator while plaintiff worked in its mines. The first petition in that case alleged that for a period of about fifteen years prior to the month of January 1933 he was continuously employed by the defendant in its said mines; that he was required to work in injurious powder smoke, fumes and gases and inorganic dusts which were negligently and continuously caused to be produced and disseminated where plaintiff worked, and that he was caused all the time to inhale such smoke, fumes, gases and dusts in harmful and injurious quantities into his respiratory organs and his blood stream, and as a direct and proximate result thereof he was caused gradually to acquire and suffer from enlargement and weakness of his heart; Chronic Bronchitis, peribronchitis, pneumonoconiosis (silicosis) of his lungs and injuries to his blood and circulatory system; all of which said injuries are permanent and are growing worse and were directly due to and caused by the negligence of defendant.

On April 24, 1937, relator filed a plea to the jurisdiction of the circuit court setting up the Workmen's Compensation Act and amendments thereto, Mo.St.Ann. § 3299 et seq., p. 8229 et seq., and that said Act had been accepted by both employer and employee on September 14, 1932, and that plaintiff had continued under the same employment up to January 1933, and that the Workmen's Compensation Commission had exclusive jurisdiction to hear and determine the cause then pending in the circuit court.

On the same date, to wit; April 24, 1937, an Agreed Statement of Facts (to apply in this and another case) was filed, which, omitting caption and signatures, is as follows:

"Come now the plaintiffs and defendant in the above entitled causes, by their attorneys of record, and file this their agreed statement of facts, and submit same to the Court for its convenience and use in determining and ruling on the plea to the jurisdiction filed herein and agree and stipulate as follows, to wit:

"1. It is agreed by the plaintiffs and defendant in these causes that on October 14, 1932, both plaintiffs and the defendant accepted the occupational disease amendment to the Workmen's Compensation Act of Missouri.

"2. It is further agreed by the plaintiffs and defendant that the plaintiffs continued to work for the defendant under the same employment and under the same conditions of employment after October 14, 1932.

"3. It is agreed that each plaintiff in these causes claim a compensable occupational disability arising out of and in connection with their employment with the defendant and that the said disability, compensable under the Workmen's Compensation Act, occurred after October 14, 1932.

"It is understood and agreed between the parties that this stipulation and agreement is filed and may be considered by the Court in lieu of evidence in support of the plea to the jurisdiction filed herein, and is not to be used as evidence for any other purpose."

Thereafter, on May 24, 1937, plaintiff filed an amended petition which was substantially the same as the original except that it alleged "that for the period of fifteen years next before the 14th day of September 1932 plaintiff was working constantly in its employ;" and that "he was caused to and did on and prior to September 13, 1932 acquire" the disease complained of.

And thereafter, on May 26, 1937, the plaintiff filed a motion to withdraw paragraph three of the Agreed Statement of Facts which motion does not appear by the record to have been ruled.

And thereafter on July 20, 1937, a judgment was rendered by the circuit court on relator's plea to the jurisdiction which, omitting the caption, is as follows: "Now on this day the Court having considered the plea to the jurisdiction filed herein, having heard arguments of counsel and received and considered Brief filed by both parties, and having considered the agreed statement of facts filed herein, the original as well as the amended petition, not only sustains the plea to the jurisdiction as filed, but on its own motion finds this Court has no jurisdiction of this cause of action and it is, therefore, dismissed."

An appeal was taken by plaintiff from this judgment to the Supreme Court, and on May 13, 1938, the Supreme Court dismissed the appeal.

While these proceedings were taking place, and on January 4, 1938, the cause now pending in the circuit court, being file No. 10471 was filed, and the petition in that case is substantially the same as the petitions in case No. 10025, except for the statement, "that in 1931 and for several years prior thereto, he was employed by and worked under the direction of defendant," and "plaintiff was caused to and did on and prior to the _____ day of December 1931 acquire and suffer from" the diseases complained of, and, "that all of said ailments and diseases are progressive and permanent".

And on June 4, 1938, plaintiff filed an amended petition, which is the petition now pending in the circuit court, and which is substantially the same as the prior petitions, except that plaintiff alleges, "and that for a period of twenty years next before the 14th day of September 1932 he worked regularly in the employ of the defendant," and that the same "did, on and prior to September 14, 1932, cause him to become afflicted" etc., and "that said ailments and diseases are permanent and progressive."

And on November 14, 1938, relator filed its answer in said case No. 10471 among other things setting up the judgment of said circuit court in said former cause No. 10025, in which the Court held that the Workmen's Compensation Commission of Missouri and not the Circuit Court of St. Francois County, Missouri, had exclusive jurisdiction over the alleged cause of action, as a bar to plaintiff's recovery in the Circuit Court of St. Francois County, Missouri, in cause No. 10471.

And relator, on said last named date, filed its motion for separate hearing on the question of law set forth in its answer as cited above. And on November 18, 1938 the court sustained relator's motion for separate hearing on the question of law and took up and heard the parties and found against the defendant (Relator), and designated his intention to assume further jurisdiction of the parties and subject matter of the cause.

Respondent has filed return to the provisional writ, wherein he states the facts in more abstract form but substantially as herein above stated, and says the judgment in cause No. 10025 is not a bar to further proceedings in cause No. 10471.

So much for the facts out of which the controvery arises. What are the issues to be determined? Relator's sole contention is that the judgment in case No. 10025 constitutes res adjudicata of the cause of action attempted to be stated in cause No. 10471. But in order to arrive at a correct determination of that contention it is necessary to give some thought to the proceedings in cause No. 10025, and the effect on plaintiff's rights of the judgment in that case. The actual facts surrounding the rendition of that judgment must be considered, not with a view that a trial court acting within the limits of its jurisdiction has not as great power to decide a question wrong as it has to decide it right (a principle evidently founded on the common knowledge of the frailty of the human mind, and which may as well be applied to judges as to others), but rather in view of an ancient maxim that should never be eliminated from any cause before a court, which is, that "out of the facts the law arises." "Ex facto jus oritur."

The Workmen's Compensation Act is a complete code governing all questions of substantive right under its terms; and in cases cognizable before the Commission its jurisdiction is exclusive; it is not cumulative to or supplemental of common law but is wholly substitutional; it is contractual and an integral part of the employment contract. These expressions have become axiomatic by repetition in opinions of the appellate courts. And, so, it has been said that if a plaintiff has an action against a defendant under the Workmen's Compensation Act he could not have his action also against the defendant under the common law. Pfitzinger v. Shell Pipe Line Corp., 226 Mo.App. 861, 46 S.W. 2d 955. And by the same process of reasoning it could with equal logic be said that if a...