*1 721 city municipal imposes on a or 'other or a statute the Constitution advantage to something doing providing corporation the .of means necessarily incurring power provide to expense, the city, an applied-here it be implied, will cannot expense to meet that be for. injtiries arising liability personal such as torts reason that for Constitution, by by statute, negligence imposed from is not. persons, general negligence applicable alike all but law to quoted to provisions similar the one Statutory or artificial.' natural class, Sections other cities and towns—cities 'of relate to third .the 6783, 1929, and towns and Section villages, Revised Statutes Legislature no has 7108, Revised Statutes 1929—but in case shown municipalities power levy on to rates of disposition confer 11, X, fixed Section Article taxation in excess of the limits pay judgments Constitution, in rendered order cities enable it against personal injury so, may When we them in does actions. 11, fixing X, Section Article further consider whether maxi-
have to binding lawmaking municipalities, rates is on the mum tax on power actions, exception judgments an- favor permits torts. may noted, however, cities of fourth class and others judgments given power pay bonds to are issue such as the 70.03, 1929; R. people. 6835, S. See. one here -vote [Sec. 1929; See, R. S. also, R. S. Sec. Sections Revised 1929.] legislation authorizing seq., cities, etc., 1929 et Statutes become debt,” in excess of the “contract annual revenues indebted, pro- year, etc. vided for event, wrong trial
In court reached conclusion rel. v. Willow Springs, this court did State ex Poole ease, supra, rel, Pyle supra, v. University City, State and those eases are ex. judgment is disapproved and here reversed. foregoing C., opinion PER CURIAMThe in Division Sturgis, Franje, adopted opinion J., Bane. G. as the One Court..en Atwopd,HJ., concur; Leedy, Tipton Gcmtt, Hays, Ellison and JJ., dissent. ..... Corporation, Contracting
George Klasing H. Company, Fred Schmitt v. (2d) S. W. 1011. Appe llant. —73 One, July 17, 1934. Division *2 Jones, Mocker, Sullivan, Gladney & JReeder Jones, and James G.
Jr., appellant. Eagleton Allen, D. <&Marsaleh Reardon, Dan Marie Moser respondent. *3 injuries damages for
FERGUSON, personal sus- C.—Action employ in The by plaintiff defendant. trial while tained judgment $15,000 in sum of in a-verdict and resulted contends, that the Workmen’s appeals. Appellant and defendant Workmen’s applies; Act that the Com- jurisdiction court, had alone, plain- not’ the circuit mission if it be held that the Workmen’s tiff’s claim and that judgment is excessive. apply Act does petition alleges, substance, plaintiff, on December employ bricklayer of the defendant as a 1927, while building streets, city at Ninth and Benton the erection of a Louis, Missouri, injured as the of a fall collapse result of St. was, time, portion working, on of a of a scaffold which due negligence failing and carelessness of the defendant in prop- *4 flooring scaffold; erly or fasten the boards or of the and that secure injury plaintiff’s average prior “at and the time of said $3600, (Sec. provided ás in 7 exceeded Section R. 3305, 1929) Compensation Workmen’s S. of the Act.”’ The answer awas general plea affirmative coupled denial with an- that at the of time 27, 1927, plaintiff’s- injury, Compensation December the Workmen’s effect; plaintiff both Law was and the defendant had provisions of the act and accept operating elected to -were under and that the at the time of accident Workmen’s Compensa- same jurisdiction and not the circuit court tion Commission had of the controversy. bricklayer
Plaintiff a had worked was and at that trade for more twenty prior years injury. to the date of the than Defendant com- building contractor and at the was bf pany time the accident was filling engaged construction of station. Plaintiff was em- bricklayers. Defendant as one of the ployed had erected scaffolds along plaintiff wall for the use of the west and the other bricklayers getting off” as “was the scaffold plaintiff and one of the floor boards ground below, a dis- causing fall tlie Mm to planks “tipped” customary to that it was was five feet. The evidence tance about proper construction scaffolds, and boards nail floor nailed had been or otherwise boards required, but the floor so employees de- by other had erected been The scaffolds fastened. charge foreman in supervision of the defendant’s fendant, in the construction job, plaintiff part had no particular of that work until did not return to about thereof. Plaintiff erection job another where he worked a few sent week when he was later Schmitt, employer, days. of Mr. However, upon the advice days” Dr. some “four or five after Babler plaintiff consulted had sustained a “double hernia” fall. doctor found he hospital opera- for an thereafter went to about two weeks hospital operation performed was and he remained tion. The away, from a total of fifteen weeks weeks. He was work about three injury, which to work and after he returned reason do, did, kind and character of work in which able the same formerly engaged wages. apparently he at the same Pie does had injury any wages not claim that the caused loss of other than for period injury fifteen-week He does claim that since the mentioned. in the left pain
has continued to suffer shoulder and the back. major operating was a employer Defendant under the Workmen’s rejected Act and admitted had it is never 3300, and, accepted pursuant act Section same and there- had requirements unless, upon fore came under the thereof facts, operation he was excluded from the of the act subdivi- (a) sion presently of Section which we shall set out. Defend- controverting ant plaintiff’s offered no evidence evidence as to injured apparent manner in which he and it that if is the Work- injury “by applies plaintiff’s men’s Act was caused arising employment” accident out and in course his. within the 3301. meaning of Section All references herein to sections of Compensation Act are to the numbers thereof Workmen’s in Revised 1929. But contends Statutes that he was not an meaning of Law Workmen’s “employee” term therein and (a) used defined subdivision ‘employee’ which is as follows: Section “The word as used (Chapter 1929) chapter R. S. shall be construed to mean under, every any . employer- in the service . . person hire, express implied, contract of oral or written . . . but *5 persons average shall include not whose exceed three (Italics ours.) six hundred thousand dollars.” injured 27,-
Plaintiff was by December and his earnings, way wages paid of by company, during him defendant year the injury aggregated the date of $3642.25'which plain is the basis for that, tiff’s by foregoing contention virtue of the statutory provision, be is excluded operation from the of the Workmen’s damages. Law entitled this action for to maintain common-law being company varied employed The number of men defendant which com dependent on construction for the the work volume pany contracts; varied employed was able so obtain the number sixty than from “about was “never less to about four hundred” but sixty.” time, was hours, employment Likewise work term or years date uncertain and indefinite. or seventeen before the Sixteen injury plaintiff brick this to Mr. Schmitt for work as a applied layer He given capacity. and was in that work defendant time, jobs company, worked at such as from time to construction paid by obtained and worked was the hour for the time he on assignments. during plaintiff various also worked period It this seems for other However, testified that companies. plaintiff construction years” “four five not preceding the trial he had worked “for next any any one No Plain else.” definite contract of kind ever existed. employed any tiff never fixed was definite term or at a time or salary wage per year. Mr. Schmitt week, month or “Whenever job” go had a plaintiff for him call” him to a “he would “and tell job.”- certain paid by Plaintiff was the hour on basis of wages. Union plaintiff injured paid scale of At the time was he was wage bricklayer designated allowdd a foreman as he had been years jobs much time in on recent as foreman the various injured was which he sent. time At the he was was working bricklayer as foreman as it was custom when a foreman job already sent which had been commenced under another assigned foreman, instance, foreman first continued charge. bricklayer seems a foreman worked as a but had added responsibility supervising bricklayers working the other on the job. wage bricklayer Union specified $1.75 The per scale hour for a $1,87% per bricklayer hour for a foreman. no con There was agreement, tract or express implied, whereby defendant was bound plaintiff any to furnish specific amount of work or for matter employment any any length kind or for of time. Defendant could time cease employ to call and cease to further him. There was a during wide and fluctuation variation the course of week, year month or work performed in the number of hours of plaintiff. might The employed during any number of hours given wholly upon time dependent defendant had the work during under contract preference such time and such as defendant might calling accord him first instance and in making assignments Too, when called. weather and other conditions interrupt regularity continuity would often of work after way. paid it workmen, was under Defendants their who worked weekly; weekly the hour, payment covering such aggregate num ber had during wages hours worked week.
727 during years 1925, 1926 and for the and plaintiff defendant paid 1925 During weeks in 1927 thirteen and twelve weeks in were shown. wages. work and of course received no plaintiff did no during years range with a
earnings the three fluctuate amount $82.50 week to $14.05 from as low as in the course of one one week. $2564.10; earnings aggregated and, plaintiff’s $2739.35 In 1925 1927. In 1927 stated, supra, $3642.25 he worked some time yet employed each had defendant him a few work week hours during year aggregate earnings year less his for that would have apparent fallen It is that number $3600. below of hours of work might year, week, assuming which be afforded him in a a month or a give work; that call him him defendant continued to was uncer advance; impossible aggregate tain of ascertainment and the earnings year for a amount of his would remain undetermined and undeterminable until jured the end the year. plaintiff Had in been would, in 1925 according at some time or 1926 theory, his Compensation being been under the Act for there no contract have time, as to a definite term or number of hours of work to be afforded during year him computing earnings no basis existed for his year earnings year or to determine that his for the would exceed earnings during year $3600. His $3000. neither amounted to Had he injured been the first week or second week in December, 1927, the same situation would plaintiff have existed. But contends, in order action, aggregate to maintain this that earnings when his during the year 1927, period year or within the of one whole preceding next injury, date his exceeded $3600 he was thereupon and there operation after excluded from the By Act. reasoning during same if following period the next or year of one aggregate of his should be less again $3600 than he would come within Following Act. plaintiff’s theory plaintiff’s had one of workmen, fellow employed under the same con plaintiff, doing ditions as work, the same wrage the same per hour, but who had worked few hours plaintiff less during than year, injured been also same accident in which injured, such fellow workman would be Act while plaintiff -would be excluded from operation. The construction application excluding provision Section supra, which uncertainty undertakes tends to Though confusion. plaintiff had worked for company, pursuant defendant arrange described, ment above years for three consecutive next preceding the injury date of aggregate earnings, year for each shown nevertheless does not consider the earnings during years adopts the other “average but as his earnings” aggregate earnings during year of his the one next preceding the injury. granted If it though be there be no definite contract of employment for year the term of a or more specified at a salary or earnings of the
wage from it be determined which could $3600 and year would exceed during the course should determined earnings,” case, in such “average annual *7 injury earnings it would prior the to upon the basis of claimant’s for has worked when, case, the employee in this seem that as then employer for prior injury the the years to or consecutive two more or arrangement claim, his under the same against he makes whom injury, prevailed at time of his employment which the of conditions shown, earnings during years each of said aggregate of his the and earnings average “average earnings” the of the would be his in this employed so which during years he had been the number within $3600 therefore instance would less than n ' Compensation Act. the only which Act is the There few states are specified than employees to workmen who earn' less limited 34) (See Compensation Haw, sec. Schneider’s Workmen’s amount having language a limitation varies though of the statutes such the agree legislative as to the few decisions to be found somewhat concerning The Workmen’s Act of intent same. Kelley’s Dependents provided, at the time the case State Vermont Co., 50, 818, arose,' 113 Atl. that the act did v. Hoosac Lumber Vt. per apply $2000 a workman whose exceeded not to remuneration year. Kelley was killed in accident claimed that who an arising employment lumber out of and in course for company not under the act because his did come remuneration death, time year, computed on basis of his of his to employment par “ran no $2000. would exceed The contract of any Supreme ticular but could be terminated at time.” time The Court of Vermont said: question depénds upon
“The whole the construction of statute. Legislature pointed proper procedure The has out the method of remuneration, give to ascertain the and there are no decisions proper problem. much aid solution In circum- these stances, liberty meaning provision we are at full to ascribe to this which, intent, judgment, general best with legislative our accords purposes into effect the best carries beneficent requires adopt This act. us to such a as will its construction extend largest provisions possible employees, to the class of ‘and to restrict from possible those excluded its smallest class. ought give it a construction as will ap- We also to such its make plication possible employer as as to the end that both certain may regulate whether it is workman know'in advance their rela- tions or not. .only hold, therefore, employees
“We from excluded working under section those under act this are a contract’the definite more, year is-one at a term of which full determined other $2,000; that ail amounting more than wage determinable earned, regardless amount are of the total employees, . act. ‘1 work provision simple and adopt makes the The we. construction spirit the act itself and the able, with the harmonizes both and. Legislature. prompted passage times which spirit of the Kelley rule, was within act.” Tested “employee” Island defines an Act Rhode of, or works
“any employment entered into the person who has . -. employer, . with and whose of service contract year.” dollars a At does-not exceed three remuneration thousand (cid:127) continuously Toop his death A. had em- James time been ployed by Livingstone Company twenty Worsted more than died-August years dyeing.” He “as “as the overseer injuries employment.” Toop result of sustained in the course of his *8 employed paid wages “was In 1920 his the -week.” were in- a $70 creased to and “continued at that week amount until his dependent sole “claimed death.” His widow and her husband that ‘employee’ subject was not an to of the Workmen’s Compensation Act, year.” his $3000 because remuneration exceeded a Supreme (Livingstone Of this Court of Island contention Rhode 183) v. Toop, 368, Worsted 48 R. I. 138 Atl. Co. said: “In construing Compensation the Workmen’s Act we have held liberality that it interpreted is to 'be with a calculated to effectuate purpose, and that it should receive-such construction as will largest extend possible its benefits to the class of employees and restrict possible those excluded smallest class. . .
“On appearing the facts opinion this-cause we are that ‘employee’ an meaning deceased was of said act. The petitioner deceased had no wages Contract of service with .for exceeding year. $3000 á His employment term of bywas the week. any
At the end working week could for petitioner cease or the petitioner discharge could him.” [See, also, Corporation Walker, 509, O’Bannon v. 46 R. I. 129 Atl.
599; v. Antimony Mining Co., 621, Hauter Coeur D’Alene Idaho, 39 228 Pac. discussing We find no Missouri decision '259.] the ex cluding provision Compensation applied of our Act as ato state of facts similar to that in the instant case. Russell Ely v. & Walker Dry Co., 44, 332 (2d) Goods 60 Mo. W. S. cited appellant, provision construes such applied to a much different state facts.
However in that (a) case subdivision 3305 arranged Section- stated in this manner: “The word ‘employee’ . . . shall every construed to mean person in any service of employer n . . .. under contract hire, express implied, or or oral writ ans*- ten ... (the . but word ‘employee’) shall not persons include whose' average earnings (under any annual hire, express contract of hundred thousand six written) three implied, oral or exceed or ’ dollars.’ legislative intent is that it Our conclusion only apply employment provision in should excluding our statute year more at of one full or for a definite term a contract employ if the term of salary wage so that determinable or fixed or earnings specified year only thereby minimum be for one ment or if the term year $3600 exceed or would for the whole fixed years, year, for two more employment be for more than one em or term of average earnings period, for the whole of such yearly basis, $3600 would be excess of ployment, computed on confusion, avoid con year. think construction tends to We such certainty and extends benefits tributes restricting “largest possible employees” while class Act to possible class.” We the “smallest excluded” therefrom to “those within Workmen’s hold that therefore against employer, on the in claim his account of Act and his cognizable by Com juries sustained, the Workmen’s properly is one jurisdiction Commission thereof. pensation which has exclusive (2d) v. 327 Mo. S. W. Gluck, [Kemper 330.] ordinary an action petition common-law pleaded Plaintiff’s injuries alleged against employer, damages, personal his employment, as a been sustained him in the course of have alleged negligence. petition further result of defendant’s plaintiff’s “average provided” $3600 exceeded” “as en by the Workmen’s Act and that he therefore “is facts, allege bring petition action.” The did not titled facts, evidence, manner, shown as to terms and *9 employment showing of plaintiff’s parties conditions or facts that the Compensation good Act. a action were under the stated cause of jurisdiction law at common and since want of of the circuit court the by controversy properly cognizable a Workmen’s to determine the Compensation appear petition Commission did not on the face the of by by a therefore, not be met Defendant it,could demurrer. its pleaded applicability Compensation answer the of Workmen’s the not, Act, reason, jurisdiction the that circuit court did for that 'have controversy cognizable to hear and determine the and that same was Compensation by respondent the Workmen’s Commission. But ar gues, though effect, in undisputed plaintiff that under the was facts Compensation precluded within the Act nevertheless defendant is deny right try the of the circuit court and submit the case as a by going common-law demanding action because to trial without first separate preliminary hearing of some sort a and and determination invoking of the averments in its answer the Workmen’s jurisdiction challenging Act and the of upon the circuit court that ground objections it waived its to a trial and submission of the ease we However discover by court as a common-law action. circuit tbe procedure fol by defendant or the nothing pursued course in the contention or supporting such lowed, presented, situation upon the part the of defendant of its a waiver on which could be construed as was answer, that an claim, up in its set Act. Whether the case came within
meaning of the upon facts and lack of dependent the the of the act claim jurisdiction adjudicate plaintiff’s be the circuit court to facts, Compensation Commission cause, the Workmen’s affirmative defense which de cognizance alone thereof an had Gluck, in answer. v. [Kemper made its properly up fendant set and supra.] by reply pleaded admitted the matter Had up plaintiff’s employment facts of shown the answrer or set in the trial of the ease the court would then plaintiff’s evidence Compensa position applicability have been a to rule the reply pleaded tion affirmative in the Act but denied the matter pleadings answer and made were for trial. the issues thus pleaded applicability Compensa In its defendant answer jurisdic tion Act thereof court and reason was without controversy; posi tion to was its determine contention and every stage ground tion at and the the trial of its demurrers of plaintiff’s fered at the close of case at the and close all the evi dence; again preserved and the same contention was made and ground its motion for new trial therefor. as We cannot conceive anything defendant could have interpose further done to and preserve pleaded certainly the defense bar ansiver and pursued theory course does support not lend to the of waiver by respondent. upon advanced trial, evidence other than relating severity plaintiff’s to the extent and injury, was and concerning uneontroverted the facts plaintiff’s adduced em ployment, manner, thereof, terms and earnings, conditions and his were in part substance effect the same on the of both defendant, therefore defendant’s demurrers at plain the close of calling ruling by court, tiff’s case for a of law, matter upon applicability Act, facts, again under the evidence, at the timely all the sufficiently close of raised question'of jurisdiction of the court plaintiff’s to determine claim. Plaintiff testified that after he from fell the scaffold he “was stayed days taken home at home few and the pain left I me and went out and notified Mr. Schmitt said he would notify the *10 people insurance and let their I doctor me .examine and waited for they doctor come out see their me and didn’t and Mr. Schmitt ” said, ‘you go examined;’ had better be pursuant that to such Schmitt, direction of Mr. his employer, doctor, he went to a then, examined him and without further notice or communication employer, hospital with his went to the for the operation. Respond- treat- provide medical employer did
ent now asserts that the not thereby estopped required by Compensation Act and is the ment showing that falls short of invoking from the act. The evidence only refer- medical treatment. The employer provide the refused to direct It did employer is above. seems the ence to the matter set out showing de- that There is no to be examined doctor. denied, meet, liability under fendant refused to assume ex- at its own provide the Act medical treatment claim, against his em- pense. no It seems rather that made granted position act to him the but took the ployer, to the benefits upon this common-law action. he was without the act and relied the time appear employer It not asserted does liable to apply Act did not or that it plain- according provisions thereof. Nor was compensation employer to by any of, by, the position tiff act taken induced Compensation Act. pursue proceeding this action instead of employer provide think refused to We are inclined to that had any liability only effect therefor the medical treatment denied employ physician would to authorize thereof be expense choosing of medical treatment own recover neg- proceeding employer the commission. Where the before act, provide required lects or refuses to medical treatment obviously then, treatment, within costs such against Compensation Act, employer should assessed such proceeding before the commission. Defendant’s should have sustained and it follows demurrers been judgment court be reversed. therefore the circuit must Sturgis CC., Hyde, is concur. so ordered. foregoing- FergusoN, 0., PER opinion by adopt- CURIAMThe opinion judges’ ed as All of the court. concur.
Sylvia Employer, Corporation, v. Ruth Bolin & Company, Swift Security Casualty Insurer, Corporation, Company, Mutual (2d) S. W. 774. Appellants. —73 July One, 1934.
Division