Warren v. Am. Car & Foundry Co.

• Decision Date: 11 May 1931
• Docket Number: No. 30036.,30036.
• Citation: 38 S.W.2d 718
• Court: Missouri Supreme Court
• Parties: GARFIELD WARREN v. AMERICAN CAR & FOUNDRY COMPANY, Appellant.

38 S.W.2d 718

GARFIELD WARREN v. AMERICAN CAR & FOUNDRY COMPANY, Appellant.

No. 30036.

Supreme Court of Missouri. Court en Banc.

May 11, 1931.^*

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Hamilton, Judge.

AFFIRMED.

Watts & Gentry and Arnot L. Sheppard for appellant.

(1) Respondent's petition does not state a cause of action for common-law negligence for the reason that it fails to plead facts showing the inapplicability of the Missouri Workmen's Compensation Law. After the effective date of an elective workmen's compensation act, the burden of pleading the facts which remove his cause from the operation of the compensation act rests upon the plaintiff. Buffum v. Woolworth Co., 273 S.W. 176; Russell v. Railroad Co., 83 Mo. 307; Kemper v. Gluck, 21 S.W. (2d) 922; Steagall v. Steel & Iron Co., 205 Ala. 100, 87 So. 787; Kaplan v. Sertell, 217 Ala. 413, 116 So. 112; Gunnoe v. Coal Co., 93 W. Va. 636, 117 S.E. 484; Byrd v. Sabine Collieries Corp., 92 W. Va. 347, 114 S.E. 679; McCoy v. Lumber Co., 38 Ga. App. 251, 143 S.E. 611; Demopolis Tel. Co. v. Hood, 102 So. 38; Kasulka v. Railroad Co., 105 So. 189; Georgia Gas Co. v. Haygood, 210 Ala. 56, 97 So. 87. (2) The Circuit Court of the City of St. Louis had no jurisdiction of this cause for the reason that the rights of respondent and appellant were governed exclusively by the provisions of the Missouri Workmen's Compensation Act, which became effective the day prior to respondent's injury. The record discloses that appellant made every effort, at the earliest possible moment, to comply with all the provisions of said act. Under the doctrine of relation it thereby brought itself clearly within the provisions of the Workmen's Compensation Act, which gives to the Missouri Workmen's Compensation Commission exclusive jurisdiction to determine this controversy. Walker v. Steel Corp., 27 S.W. (2d) 44. (3) A verdict of the jury in favor of Larry and against appellant is contradictory, self-destructive, and is a monstrosity, for the reason that all of the evidence shows that appellant could become liable only through the doctrine of respondeat superior; that the only servant whose negligence could possibly have caused respondent's injury, and upon whom exclusively rested the duty, a breach of which is the foundation of respondent's action, was the defendant Larry, in whose favor the jury brought in a verdict. McGinnis v. Ry. Co., 200 Mo. 347; Doremus v. Root, 23 Wash. 715; Loveman v. Bayless, 128 Tenn. 307, 160 S.W. 841; Wade v. Campbell, 243 S.W. 250; N.O. & N.E. Railroad Co. v. Jopes, 142 U.S. 24; Southern Ry. Co. v. Harbin, 68 S.E. 1103; Morris v. Improvement Co., 53 Wash. 451; Sipes v. Electric Railroad Co., 54 Wash. 47; C. St. P.M. & O. Railroad Co. v. McManigal, 73 Neb. 580, 103 N.W. 305, 107 N.W. 243; Michely v. Steel Co., 299 S.W. 830, 221 Mo. App. 830; Lindman v. Kansas City, 271 S.W. 521. (4) Respondent's counsel was permitted to argue to the jury the law applicable to the facts herein, absent any instruction whatever upon which to base said argument. He not only argued legal propositions without the scope of the instructions, but incorrectly stated the law. Powell v. Union Pacific, 255 Mo. 457; Primmer v. Am. Car & Fdy. Co., 299 S.W. 828.

Mason, Goodman & Flynn for respondent.

(1) Even if it were true that, in order to state a cause of action against an employer for an injury to an employee arising out of the course of his employment and occurring since November 2, 1926, it is necessary to state facts negativing the applicability of the Missouri Workmen's Compensation Law, nevertheless that proposition is of no consequence in this case because the defendant American Car & Foundry Company, instead of demurring to plaintiff's petition, filed an answer expressly averring that the claim was governed by the Compensation Act and setting up facts in relation to the employment, the nature of the work and the injury which, defendant claimed, brought the case within the Compensation Act. Plaintiff replied, denying the applicability of the Compensation Act on the grounds set out in its reply. At the request of the defendant the issue with reference to the jurisdiction of the court and the applicability of the Compensation Act was tried by the court separately and found against the defendant. Therefore, under the doctrine of express aider, the defendant cannot now raise the question as to the insufficiency of the petition on account of failure to negative the Compensation Act. Allison v. Caretaking Co., 283 Mo. 424; Richards v. Johnson (Mo. Sup.), 261 S.W. 54; Grace v. Nesbitt, 109 Mo. 9; Schubach v. McDonald, 179 Mo. 163; Hughes v. Carson, 90 Mo. 399; Allen v. Chouteau, 102 Mo. 309; Henry v. Sneed, 99 Mo. 424; Tucker v. Wadlow, 184 S.W. 70; Lee v. Ry. Co., 195 Mo. 416; Donaldson v. County of Butler, 98 Mo. 166; Wagner v. Railroad, 97 Mo. 512. (a) Inasmuch as the plaintiff's petition on which this case was tried stated a cause of action for negligence, good at common law, and as no facts appeared on the face of the petition sufficient to show that the claim is governed by the Workmen's Compensation Act, it was necessary for the defendant in this case to adopt the course which it actually adopted, that is, to set up by way of affirmative defense the facts on which it relied to defeat plaintiff's action at law by virtue of the Compensation Act. Plaintiff's petition was not demurrable for failure to negative the applicability of the Compensation Act. Secs. 1226, 1230, R.S. 1919; Span v. Mining Co. (Mo. Sup.), 16 S.W. (2d) 198; State ex rel. Syrup Co. v. Compensation Commission, 320 Mo. 899; Madden v. Ry. Co., 242 Fed. 981; Acres v. Frederick & Nelson Co., 79 Wash. 402, 140 Pac. 370; Reynolds v. Day, 79 Wash. 499, 40 Pac. 681, L.R.A. 1916, 432. (2) The circuit court had jurisdiction in this case for the reason that, while the Compensation Act became effective on November 2, 1926, the day prior to plaintiff's injury, the rights of the plaintiff and the defendant with respect to that injury were not governed by the Compensation Act. The Compensation Act is purely elective. It controls the rights of employer and employee with respect to a particular injury only in those cases where both have accepted the act prior to the injury. Neither the plaintiff nor the American Car & Foundry Company had, expressly or by any affirmative act, accepted the Compensation Act before November 3, 1926. Neither of the parties can be regarded as having accepted the act by implication or presumption, because the facts necessary to raise the presumption did not exist. Under Section 2 of the Compensation Act the presumption of acceptance arises solely from failure to file notice of rejection prior to the injury with the Workmen's Compensation Commission. As the injury occurred on November 3, 1926, and the Workmen's Compensation Commission was appointed on November 15, 1926, the presumption of acceptance from failure to file notice of rejection with the Compensation Commission prior to the injury could not arise. Laws 1927, p. 492, sec. 2; State ex rel. Syrup Co. v. Compensation Commission, 320 Mo. 893; Span v. Mining Co. (Mo. Sup.), 16 S.W. (2d) 196; State ex rel. Elsas v. Compensation Commission, 2 S.W. (2d) 796. (a) Our Compensation Act being optional and contractual in its entire scope and purpose, it would be without the power of the Legislature to make it govern the rights of any particular employer or employee as to any particular injury where as to that injury neither the employer nor the employee is given the right or the opportunity to reject the act. The act so construed would be oppressive, would amount to depriving the plaintiff of his liberty and property without due process of the law, and would amount to depriving him of the equal protection of the law. State ex rel. v. Railroad, 246 Mo. 514; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150; Billings v. Illinois, 188 U.S. 97; State v. Loomis, 115 Mo. 314; State v. Swagerty, 203 Mo. 523; Powell v. Sherwood, 162 Mo. 605; State v. Gregory, 170 Mo. 604; State v. Cantwell, 179 Mo. 265. (b) The record discloses that the defendant made no effort whatever, prior to plaintiff's injury, to comply with the insurance requirements of Section 25 and Section 28 of the Compensation Act. Defendant might, at any time after the law was passed by the Legislature, have complied with the insurance provision of the law by taking out a policy of insurance in the form approved by the Superintendent of Insurance. Laws 1927, p. 506, sec. 25; Laws 1927, p. 507, sec. 28. (c) Plaintiff was hurt on November 3, 1926. Whatever rights he had on account of that injury accrued and became complete on November 3. Those rights could in no way be affected or destroyed without his consent by reason of anything which the defendant did fourteen days later, on November 17, Bendyckos v. Lyons Evangelistic Committee, 161 N.W. 945, 195 Mich. 39; Bernard v. Michigan etc. Co., 154 N.W. 565. (3) The verdict of the jury in favor of Larry and against the defendant American Car & Foundry Company is neither contradictory nor self-destructive. The rule announced in the case of McGinnis v. Ry. Co., 200 Mo. 347, and the other cases cited by appellant, only applies where the sole negligence charged against master and servant jointly as defendants is some affirmative act of negligence of the servant alone. In our case there were joint acts of negligence charged against the defendant company and Larry, on which the defendant company would have been responsible only upon the theory of respondeat superior. The pleadings also make separate charges of negligence as against the defendant company alone. The evidence supported these charges and they were properly submitted to the jury under plaintiff's instruction. McGinnis v. Ry. Co., 200 Mo. 347; Michely v. Steel Co., 299 S.W. 830, 221 Mo. App. 830; Lindman v. Kansas City, 271 S.W. 516; Gream v. Ry. Co., 199 Pac. 1059,...