Walker v. Sheffield Steel Corp.

• Citation: 27 S.W.2d 44,224 Mo.App. 849
• Parties: STANLEY WALKER, RESPONDENT, v. SHEFFIELD STEEL CORPORATION, APPELLANT
• Decision Date: 27 January 1930
• Court: Court of Appeals of Kansas

27 S.W.2d 44

224 Mo.App. 849

STANLEY WALKER, RESPONDENT, v. SHEFFIELD STEEL CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

January 27, 1930

Appeal from the Circuit Court of Jackson County.--Hon. Willard P Hall, Judge.

JUDGMENT REVERSED AND CAUSE DISMISSED.

Judgment reversed and cause dismissed.

Atwood Wickersham, Hill & Chilcott for respondent.

Lathrop Crane, Reynolds, Sawyer & Mersereau for appellant.

ARNOLD, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This action, begun on February 7, 1927, is for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 3000 and defendant has appealed.

The amended petition, which was filed on April 24, 1929, alleges that plaintiff, while an employee of the defendant at its manufacturing plant located in Kansas City, was injured on December 4, 1926, by the slipping of an apparatus with which he was working, described in the petition as a crane or derrick having in connection therewith a spreader, lift or carrier, by which apparatus various sheets of metal and other material were moved from place to place in the plant; that when said apparatus had been once attached to such sheets of material it was locked to the same and would ordinarily not become detached therefrom until released at the proper time and place; that in this instance the apparatus failed to remain attached to the material, slipped, came loose and caught and crushed plaintiff's right foot, ankle and leg against a nearby wall. Recovery was sought on the res ipsa loquitur theory.

The amended petition further alleges that:

"At said time and place said defendant had more than ten employees regularly employed and failed and neglected to have its entire liability for injuries to plaintiff and its other employees insured with some insurance carrier authorized to insure such liability in the State of Missouri, and had not satisfied the Workmen's Compensation Commission of the State of Missouri of its ability to carry the whole or any part of such liability without insurance and that said Workmen's Compensation Commission had not authorized the defendant to carry the whole or any part of its liability insurance upon plaintiff and its other employees or to act as such self-insurer and that defendant failed and neglected to report to the Workmen's Compensation Commission of the State of Missouri said injuries to plaintiff and failed and neglected to pay to the State of Missouri the tax required to be paid by employers who insure their own liability or become self-insurers of their own liability to their employees for injuries received by such employees while employed in the service of defendant and that by reason of the defendant's failure so to do, plaintiff elects to sue the defendant as though defendant had rejected said Workmen's Compensation Act."

This allegation was not contained in the original petition and to that petition defendant filed a general denial.

On May 29, 1929, defendant filed a plea to the jurisdiction and an answer to the amended petition, the substance of which was that the court had no jurisdiction over the cause of action or the parties because, on the date of the alleged accident, the parties were under the jurisdiction of the Workmen's Compensation Commission. The plea to the jurisdiction was overruled and the case went to trial upon that part of the answer of the defendant which went to the merits.

At the close of all of the testimony defendant offered an instruction in the nature of a demurrer to the evidence and also declarations of law to the effect that defendant did not "fail to comply" with section 25 of the Workmen's Compensation Act within the meaning of the sentence in said section which contains those words, and that plaintiff was not entitled to recover for the reason that the court was without jurisdiction because, on the date of the accident, the parties were under the jurisdiction of the Workmen's Compensation Commission. The court refused to give the instruction in the nature of a demurrer to the evidence and the declarations of law requested by defendant.

The following stipulation was filed in the cause: (Only the material parts are set forth herein).

"It is hereby stipulated by and between the parties hereto for the purposes of this case that the following facts are true, to-wit:

"That at the time of his injury plaintiff was in the employ of the defendant Sheffield Steel Corporation and that at said time the defendant regularly employed more than ten employees and that on the date of plaintiff's injury, to-wit, December 4, 1926, neither the plaintiff nor the defendant had elected not to come within the provisions of the Workmen's Compensation Act and that on the date that plaintiff was injured the defendant Sheffield Steel Corporation had not insured its liability to its employees, including plaintiff, as required by said Workmen's Compensation Act and had not satisfied the Workmen's Compensation Commission of the State of Missouri of its ability to carry its own insurance and had not been authorized by the Workmen's Compensation Commission to carry the whole or any part of its own insurance or act as a self-insurer of its liability to its employees, including plaintiff; that defendant Sheffield Steel Corporation did not report plaintiff's injury to the Workmen's Compensation Commission; that the Superintendent of Insurance of the State of Missouri made no assessment and that the defendant paid no tax to the Superintendent of Insurance under section 71 of the Workmen's Compensation Act, found on page 405, Laws of Missouri, 1925, for the month of December, 1926, and that on January 4, 1927, defendant Sheffield Steel Corporation made application to the commission, under the Act, to become a self-insurer and that on February 3, 1927, the Workmen's Compensation Commission approved defendant's application to become a self-insurer under said Act and that thereafter on February 7, 1927, plaintiff filed this suit, and that prior to December 4, 1926, defendant Sheffield Steel Corporation had made no application to become a selfinsurer under the Act.

It is further stipulated and agreed by and between the parties hereto for the purposes of this case that the Missouri Workmen's Compensation Law became effective November 2, 1926; that the members of said Workmen's Compensation Commission were appointed by the Governor of Missouri on November 16, 1926; that on November 17, 1926, the Attorney-General of the State of Missouri rendered an opinion to the Governor of the State of Missouri that said Workmen's Compensation Act did not become legally effective until January 9, 1927; that no meeting of the members of the commission as such occurred until January 9, 1927, and that said commission never functioned or attempted to function before that date; that on December 4, 1926, no forms had been prepared by the commission to be used by employers for making application to carry their own insurance; that prior to that day defendant, Sheffield Steel Corporation had not elected to come within the provisions of the Workmen's Compensation Act of Missouri, but had on January 4, 1927, applied to said Workmen's Compensation Commission for the right to carry its own insurance and had on February 3, 1927, been duly authorized by said commission to carry its own insurance and to act as a self-insurer of its liability to its employees."

It is insisted that the court erred in refusing to sustain defendant's plea to the jurisdiction, and its demurrer to the evidence and in refusing its declarations of law referred to. The material parts of the Compensation Law (see Laws of 1925, p. 375) having to do with this controversy are as follows:

Section 2 of the act provides in part as follows:

"Every employer and every employee, 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 presumption of election shall be re-established by filing with the commission a written notice withdrawing the rejection. All such notices shall take effect on the day of their receipt by the commission."

Paragraph "a" section 4 of the act provides as follows:

"A major employer shall mean an employer who has more than ten employees regularly employed."

Paragraph "d" of said section provides as follows:

"If any minor employer, who has been determined to be engaged in an occupation hazardous to employees, or any major employer has elected to reject the provisions of this act, in any action to recover damages for personal injury or death of his employee in the course of his employment, it shall not be a defense that the same was caused by the negligence of a fellow servant, or that the employee had assumed the risk of the injury or death, or that the same was caused in any degree by the negligence of the employee. Such defenses shall not be allowed in such action whether or not the employee accepted this act, nor shall they be allowed in any proceeding for compensation under this act. Such defenses shall be allowed to an employer who has elected to accept this act, if the employee has elected to reject it."

The material parts of section 25 of the act provide as follows:

"Every employer electing to accept the provisions of this act, shall insure his entire liability thereunder except as hereafter provided, with some insurance carrier authorized to insure such liability in this State, except that an employer may himself carry the whole or any part of such liability...