Trokey v. U.S. Cartridge Co.
| Decision Date | 08 November 1948 |
| Docket Number | 40709 |
| Citation | 214 S.W.2d 526 |
| Parties | Theodore Trokey, Appellant, v. United States Cartridge Co., a corporation, et al, Respondents |
| Court | Missouri Supreme Court |
From the Circuit Court of the City of St. Louis, Civil Appeal Judge F. E. Williams
Appeal Transferred
On December 28, 1943, appellant, Theodore Trokey, plaintiff and claimant below, was an employee of the United States Cartridge Company, defendant-respondent. He appeals from a decree of the Circuit Court in an equity action wherein the lower court dismissed his petition and dismissed his appeal from an award of the Workmen's Compensation Commission declining to set aside a lump sum compromise settlement made under Mo. R.S.A. § 3723.
At the outset we are confronted with the question of our jurisdiction. That we must first resolve. In the briefs filed by the above named appellant and respondent neither questioned our jurisdiction. Contrary to the spirit and purpose of our Rule 1.08 (Maxwell v. Andrew County, 347 Mo. 156, 146 S.W.2d 621, Hicks v. La Plant (Mo Sup.) 145 S.W.2d 142), appellant contented himself with the recital in the "Jurisdictional Statement" of his brief that the appeal "involves an amount in excess of $7,500" and that "the Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri is a party to this action." But we again refrain from imposing the harsh penalty of dismissal. At the time of the argument and submission here, we raised the question of our jurisdiction sua sponte and requested briefs upon that question. Respondent Cartridge Company filed such brief.
The appeal arose upon these facts. On January 11, 1944 plaintiff reported to his employer that he had sustained an accidental injury by bumping his knee against a table while at his duties on December 28, 1943. Defendant thereafter rendered medical aid at the cost of $105.50. Over about a six months period plaintiff was paid $305.58 in Workmen's Compensation. On July 13, 1944, plaintiff and an attorney representing the insurance carrier of defendant went before Referee Clark of the Workmen's Compensation Commission in St. Louis. Plaintiff and defendant and its insurance carrier, with the approval of the Referee, there entered into a lump sum compromise settlement under Mo. R.S.A § 3723. Plaintiff was thereupon paid the $250.00 agreed consideration of that settlement. That settlement was approved by the entire Commission.
On May 3, 1945 plaintiff filed a claim before the Workmen's Compensation Commission for additional compensation alleging permanent disability. Employer and insurer filed a motion to dismiss that claim alleging final settlement. Plaintiff thereupon filed a motion to set aside the settlement of July 13, 1944, alleging mistake, fraud and inadequacy. The Commission in a Final Award, on February 25, 1946, ruled that it was without jurisdiction to set aside the award, again approved the final settlement of July 13, 1944, and denied additional compensation. Plaintiff appealed from that Final Award to the circuit court.
On May 23, 1946, plaintiff filed the present equity action in the circuit court, naming as defendants, the Cartridge Company, his employer; Travelers Indemnity Company, its insurance carrier; the Missouri Workmen's Compensation; and Edgar C. Nelson, R. Robert Cohn and Frank J. Lahey, members of said Commission. Plaintiff's petition prayed that the compromise settlement of July 13, 1944 be set aside; and that the Commission and its members be directed to hear his claim filed May 3, 1945, and make an award thereon. The petition alleged inadequacy of consideration, no advice of counsel or physician, mistake, misunderstanding, ignorance of his rights and fraud by his employer, the insurer and their agents.
In the circuit court the appeal from the Final Award of the Commission which refused to set aside the compromise settlement was consolidated with this equity suit. Upon the trial the "Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri" was substituted for the Workmen's Compensation Commission. The new members of the Industrial Commission of Missouri were not substituted for Messrs. Nelson, Cohn and Lahey. The Department of Labor and Industrial and the respondents Edgar C. Nelson, R. Robert Cohn and Frank J. Leahy neither filed any brief nor made any appearance in this court. It is obvious they have no interest in the outcome of this litigation.
As to the amount in dispute here. It does not affirmatively appear that such amount exceeds $7500. In his claim for additional compensation plaintiff claimed an injury to his right leg. The amount in dispute here falls far short of our jurisdictional amount. Mo. R.S.A § 3705. Our jurisdictional amount must affirmatively be determined as of the date of this appeal, October 20, 1947. Platies v. Theodorow Baking Co., 334 Mo. 508, 66 S.W.2d 147, Shroyer v. Missouri Live Stock Com. Co., 332 Mo. 1219, 61 S.W.2d 713, 716. We find nothing at all in this record which under any method of calculation as to amount here in dispute shows we have jurisdiction. Plaintiff's statement in his brief to that effect does not prove itself and we find nothing to support it. This contention must be ruled against appellant.
We consider now the plaintiff's other assertion as to our Jurisdiction. His...
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