Wors v. Tarlton

• Decision Date: 07 July 1936
• Citation: 95 S.W.2d 1199,234 Mo.App. 1173
• Parties: CHARLES W. WORS, JR., APPELLANT, v. G. L. TARLTON AND MIDWEST INDUSTRIAL DEVELOPMENT COMPANY, A CORPORATION, RESPONDENTS
• Court: Missouri Court of Appeals

95 S.W.2d 1199

234 Mo.App. 1173

CHARLES W. WORS, JR., APPELLANT, v. G. L. TARLTON AND MIDWEST INDUSTRIAL DEVELOPMENT COMPANY, A CORPORATION, RESPONDENTS

Court of Appeals of Missouri, St. Louis

July 7, 1936

Motion for rehearing overruled July 20, 1936.

Writ of Certiorari quashed November 15, 1938.

Appeal from Circuit Court of City of St. Louis.--Hon. Frank C O'Malley, Judge.

REVERSED AND REMANDED IN PART.

Foristel Mudd, Blair & Habenicht for appellant.

(1) Since both plaintiff and the Illinois Terminal Company, his employer, were at the time of plaintiff's injury engaged in interstate commerce, the Workmen's Compensation Act is inapplicable in the case. New York Central R. R. Co. v Winfield (U.S.), 60 L.Ed. 1045; Chesapeake etc. R. R. Co. v. Stapleton (U.S.), 73 L.Ed. 61; Lindgreen v. U. S. (U.S.), 74 L.Ed. 683. (2) To so construe sec. 3323 as to hold that "self-insurance," as provided in the section, is not insurance for the employe within the purpose and effect of 3308 (d) would bring the section into conflict with sec. 53, art. IV, subsec. 26 of the Constitution of the State, as vicious class legislation. In re French, 315 Mo. 72, l. c. 82; State ex rel. v. Railroad, 246 Mo. 512; State ex rel. Walker, 326 Mo. 1233; City of Hannibal v. Tele. Co., 31 Mo.App. 23; State v. Loomis, 115 Mo. 307. (3) Since the Illinois Terminal Company, plaintiff's immediate employer, applied to the Workmen's Compensation Commission for, and was granted, leave to carry his own insurance, plaintiff, as its employe, was insured within the intendment of sec. 3308 (d) and, hence, sec. 3308 (a, b and c) was inapplicable to and did not create the relation of a "statutory" employer between Midwest and plaintiff. Midwest was therefore a "third person" within the terms of section 3309 and plaintiff had the right to pursue his cause of action against the Midwest Company as at common law. R. S. Mo. 1929, sec. 3309; Walker v. Sheffield Steel Corp., 224 Mo.App. 849, 275 S.W.2d 44. (4) If 3323 is susceptible of two constructions, one of which would exclude and the other include a self-insurer as efficiently insuring the employe for the purposes of 3308 (d), the latter construction must be adopted because that would bring the section in harmony with the Constitution of the state, while the former would conflict therewith. A construction which would bring the statute in conflict with the Constitution must be avoided in favor of a construction which would be in harmony with the organic law. 25 R. C. L. "Statutes," sec. 243, p. 1000; Vassen v. Monckton, 308 Mo. 641; Roberts v. Kaemmerer, 220 Mo.App. 582. (5) Since nothing in the record gives rise to any master-and-servant relations between plaintiff and defendant Tarlton, the latter is a "third party" within the purpose and effect of Sec. 3309 against whom plaintiff's right of action as at common law remains unaffected by the statute. Sylcox v. Lead Co., 38 S.W.2d 497. (6) Appellant at the time of his injury was engaged in interstate commerce. B. & O. R. R. Co. v. Burtch, 263 U.S. (68 L. Ed.) 433; So. P. Railroad Co. v. Industrial Accident Comm., 251 U.S. (64 L. Ed.) 258; Ill. Central Railroad Co. v. Porter, 207 F. 311; Swain v. Terminal Association, 220 Mo.App. 1088; Clark v. Wheelock (Mo. App.), 293 S.W. 456; Jones v. R. R. Co. (Mo. App.), 48 S.W.2d 123; N. Y. etc. R. R. Co. v. Slater, 23 F.2d 777; Salmon v. R. R. Co., 133 Tenn. 223; Western etc. Ry. Co. v. Mays, 197 Ala. 367; Evans v. U. S. R. R. Administration, 182, N.Y.S. 310; Cox v. R. R. Co., 111 Tex. 8; Ill. Central R. R. Co. v. Kelly, 167 Ky. 745; Vaught v. E. Tenn. R. R. Co., 148 Tenn. 379. (2) Res adjudicata and estoppel. The defense of res adjudicata by respondent, Midwest, cannot prevail because--(a) since appellant, at the time of his injury, was engaged in interstate commerce, the procedure before the Workmen's Compensation Commission was void for want of jurisdiction. Morrison v. Terminal R. R. Co. (Mo. App.), 57 S.W.2d 775. (b) A judgment (if the award of the Compensation Commission may be so called) rendered by a court without jurisdiction is a nullity, and unavailable either as res adjudicata or estoppel. 34 C. J., p. 768, title "Judgments," sec. 1183; Hoppes v. Rowley Co., 200 S.W. 443; Horn v. R. R. Co., 88 Mo.App. 469; Dailey v. Sharkey, 29 Mo.App. 518. (c) But even if the award of the Compensation Commission were regarded as a good judgment, since Midwest was not a party to the proceedings, it is not available to Midwest as res adjudicata. Quigley v. Bank, 80 Mo. 289; National Cypress etc. v. Lumber Co., 325 Mo. 807; Weaver et al. v. Eryan, 225 Mo.App. 385, l. c. 387; Northstein v. Feltman, 298 Mo. 365, l. c. 379. (d) Plaintiff was not barred of his right to pursue Midwest as a third party by taking compensation from his employer. Gieseking v. Litchfield Ry. Co., 94 S.W.2d 375; Markely v. Ry. Co. (Mo.), 90 S.W.2d 409, l. c. 415; Rouchene v. Coal Co. (Mo.), 89 S.W.2d 58; Erie R. R. Co. v. Winfield, 61 L.Ed. 1057, l. c. 1065; N. Y. etc. R. R. Co. v. Tousellito, 61 L.Ed. 1194, l. c. 1197; 63 L.Ed. 532; Id. 1145; 73 L.Ed. 235; 74 L.Ed. 693; Railroad v. Stapleton, 73 L.Ed. l. c. 865; Benson v. R. R. Co., 334 Mo. 851, l. c. 854; Milburn v. R. R. (Mo.), 56 S.W.2d 80, l. c. 86. It is settled law in Missouri that in construction of the Federal Employers' Liability Act, the decisions of the United States Supreme Court are controlling authority in Missouri courts with like effect as if rendered in the Missouri Supreme Court. Peters v. R. R. Co., 328 Mo. 924; Riley v. R. R. Co., 328 Mo. 910; Milburn v. R. R. Co., 331 Mo. 1171.

Anderson, Gilbert & Wolfort for respondent, Midwest Industrial Development Company.

(1) The question of interstate commerce is not before this court, as that was adjudicated by the Workmen's Compensation Commission and no appeal was taken from its assumption of jurisdiction and its finding, hence question is res adjudicata. Hall v. Wilder Mfg. Co., 316 Mo. 812. (2) Even if it were a question open to inquiry, plaintiff, appellant herein, at the time of his injuries, was not engaged in interstate transportation so as to make the Workmen's Compensation Act inapplicable. Benson v. Missouri Pacific Ry. Co., 69 S.W.2d 656; Montgomery v. Terminal R. R. Assn., 73 S.W.2d 236; Industrial Accident Commission of Cal. v. Davis, 259 U.S. 182, 66 L.Ed. 888; Chicago Northwestern Ry. Co. v. Bolle, 284 U.S. 74, 76 L.Ed. 173; Shanks v. Delaware etc. R. R. Co., 239 U.S. 556, 60 L.Ed. 436, L.R.A. 1916; Fenstermacher v. Chicago & Rock Island Ry. Co., 309 Mo. 475, 274 S.W. 718; Hines v. Industrial Accident Comm. et al., 192 P. 859, 14 A. L. R. 720; New York et al. v. Bezue, 52 S.Ct. 24, 77 A. L. R. 1370; Shidlaski v. N. Y. Central etc. Ry. Co., 64 S.W.2d 259. (3) Approval of the Illinois Terminal Company by the Workmen's Compensation Commission of the Terminal Company's application to carry its own liability under the act did not constitute insurance as contemplated by the Workmen's Compensation Act, hence the Workmen's Compensation Commission has jurisdiction and not the Circuit Court, as Wors' right was exclusively under Compensation Act. Secs. 3301, 3308, 3323, 3325, R. S. Mo. 1929. (4) The case of Langston v. Selden Breck Const. Co., 37 S.W.2d 474, is not applicable. If it were, the application appellant seeks to make is contrary to the ruling of the Supreme Court in Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; State v. Mo. Workmen's Compensation Comm., 8 S.W.2d, l. c. 900; Smoot v. Judd, 184 Mo. 508; McCune v. Goodwillie, 204 Mo. 306, l. c. 333, 334; State v. Mo. Workmen's Compensation Comm., 8 S.W.2d 897, l. c. 899; Daggett v. Kansas City Structural Steel Co., 65 S.W.2d 1036, l. c. 1041. The fundamental rules by which a party is governed where he accepts the benefits of a transaction and attempts to repudiate the balance of the effect of the transaction are clearly set out in the case of Hartmann v. C. B. & Q. R. R. Co., 192 Mo.App. 271, l. c. 277; Payne, Executor, v. Cummings, 207 Mo.App. 64; Aldridge v. Wabash, 335 Mo. 588, 73 S.W.2d 401, decided in June, 1934, and in this case the Supreme Court held that where a carload of ties brought from another State was placed on a siding to be unloaded, a section hand, while unloading these ties, was not engaged in interstate commerce.

Green, Henry & Remmers and John L. Harlan for respondent G. L. Tarlton.

Respondent Tarlton, being merely an agent of and under the direction of the respondent Midwest Industrial Development Company, under the admissions in the pleadings of respondents and appellant, the Workmen's Compensation Act bars an action at law as to him also. Absts., p. 2, 10; Sec. 3301, R. S. 1929.

BECKER, J. Hostetter, P. J., and McCullen, J., concur.

OPINION

BECKER, J.

--This is an appeal by the plaintiff from a judgment rendered against him upon an involuntary nonsuit. The action is one at common law for damages for personal injuries, with damages prayed against the defendants in the sum of $ 7500.

Plaintiff an employee of the Illinois Terminal Company, a common carrier by railroad, was injured upon certain premises located in the vicinity of Twelfth and Morgan Streets in the City of St. Louis, where excavation work was in progress preparatory to the laying of the foundation for a large building to be erected at that point. Defendant Midwest Industrial Development Company was the owner of the premises upon which the excavation and foundation work was being done by defendant G. L. Tarlton, a general contractor, who had theretofore entered into a written contract with the former for the work. The Illinois Terminal Company was likewise under contract with the Midwest Industrial Development Company, its contract calling for the installation of temporary railroad tracks upon the...