*1 TERM, 1925. Yol. Empire
Mosely & Gas Fuel Co. the instruction under consideration. These .observations view are made in of another trial of the cause. Appellant assigns plain- giving
III. error the as tiff’s instructions two and three. The first numbered degree of a mere abstract statement law as to the knowledge as who holds himself skill which one out discharge specialist bring duty must to the in treat- patients. ing no direction kind which contains jury intelligent application would enable to make an the rule stated to issues the case. The second negligence simply instruction defines a failure ex- as ordinary degree applied ercise As to the of care that care. treating defendant was bound to exercise in they given, two in the form in instructions, were contradictory apparently consequently were were jury. calculated confuse complaints
Appellant numerous other makes instructions and refused toas admission plainly evidence. Bint his as to these are contentions so opinion devoid merit an should not be encumbered their consideration. plaintiff’s giving Because of the error in Instruction 1 the is reversed cause remanded. All concur. & Appellant, GAS EMPIRE MOSELY,
ROBERT H. FUEL COMPANY. One, 12, 1926. March
Division Supreme Acceptance. The ACT: COMPENSATION WORKMEN’S employee ac both decided that Kansas has Court of Compensation Act cept the Workmen’s accept provisions; they a declaration file do not State if acceptance, non-acceptance to file a declaration a failure employment. part contract the statute makes Supreme Remedy. Kansas Court of -: Exclusive -:2. employee injuries afforded that the has decided Compensation is exclusive. Act of that State the Workmen’s tort, dеpends out arises liability employer’s no sense Sup 313 Mo. —15. SUPREME COURT OF MISSOURI, & Fuel contract, the terms of which And are embodied in the statute. statute, parcel that construction becomes far so concerned, determining Missouri courts are the nature of *2 employee’s injuries right personal to recover for received in his employment. --— n : Right Transitory 3. to Sue in Another State: and Domestic transitory Cause of Action. A cause action maintained in can be state, though another creating even action the statute the cause of provides brought that the domestic action must be in the local courts; part damages right the venue is no for of the to recover personal injuries by negligence, inflicted and a state common-law ' cannot, Constitu- und'er the full-faith-and-credit clause U. S. of the tion, transitory a and time de- cause of аction at the same create stroy right transitory the to sue on that action cause of jurisdiction. controlling having court But those rules not contract, right compensation the where to recover arises out of and by remedy creating the the the action afforded statute cause of is ex- clusive, employee accepted and the statute both and have contract, prescribes procedure as a their the statute a and compensation enforcing adjusting for the and -tribunals for the proceeding right, entirely proceedings different from the of courts law, according and the statute itself to the course the common says brought proceeding that or it can outside under be no
the state. Right Remedy. United -:-: and creat- 4. Where the statute remedy, ing right provides an be enforced in a exclusive tо party tribunal, aggrieved particular way, special before a or creates, remedy the statute which be will left to Compensation right. Act cumu- of Kansas not The Workmen’s law, substitutional, lative, supplemental common butt is or n gives special prescribes accepted, and, an and ex- when pursuit and, terms, remedy, its result of clusive pro- right, remedy with with the and is so interwoven exclusive right, designated to and tribunal enforce to the visions as tribunal, granted powers special to that as to make remedy impractical. the-right and the exclusive disunion of injured employee the act maintain cannot under of Kansas a common-law courts for common-law action in the lump judgment which he al- tort, for a sum to final and recover statute; maintain leges as he cannot under said he is entitled compelled by Kansas, this State arе not courts of suit such 1919) (Sec. such entertain a suit. it. S. to statute Missouri. Injuries Kansas: Suit Plaintiff instituted -: .5. damages under (cid:127) court and asked a Missouri suit Yol. 313] OCTOBER TERM, &Gas Fuel Co. injuries Compensation personal the Workmen’s Law of alleged have been him in the sustained in Kansas course employment allega- petition his defendant. His contained negligence. alleged drilling tions of cable He that a well slipped flange arm, from a drum which which had no broke permanently disabled, has been he com- and he asked that pensated according prescribed to the and in terms of the amounts formally accepted statute, said He said statute. had not nor refusing accept it, Supreme filed a declaration Court Kansas had a failure file a construed the statute to mean that accept acceptance, declaration that the statute was an afforded statute was of all other exclusive accepted it, employers employees, remedies had all who employee compensation arising and that out of contract, prescribed did not arise out of tort. The statute proceeding brought it outside the state. no action could be tribunals, courts, to determine also created different injured employee amount was entitled prescribed procedure. Held, Missouri own *3 case, try jurisdiction compelled to be cannot to exercise by plea sustaining defendant and its a in abatement filed order
affirmed. -: -: -: Different Tribunals and Procedure. 6. Compensation a Workmen’s of Kansas contains multitude Act employee injured provides compensation to of a details. for earning percentage wages injury, he at the time of his of"the dependent upon per being in- his resultant cent the extent of week, paid lump sum, capacity, for a in a or and. to be n partial, years a if disabilities are and for named number of they permanent,-, prescribes longer the amount and time if representative committee, by agreement by may or be determined agreement by arbitration, an the em- in default of or and injured arbitrate, ployer’s com- to workman’s refusal to compen- any may pensation court of and enforced be determined applied sation, to or has consented to arbitration he by jury arbitrator, be in such action trial shall the court for an jury, waived, un- the court without and the case tried deemed judgment jury, days party and the ten demand either within less incapacity, during payments lump periodical sum shall be for a lump judge, for a sum but in no case trial discretion in the may objective examination, injury and ascertainable for applica- expiration six months after reviewed party court reduced or allowed the amount of either tion prescribes all make raised; that “such court shall it further carry provisions appropriate necessary out the rules SUPREME COURT OF MISSOURI, &Gas Fuel Co. judgment, Held, act.” can no such courts Missouri render necessary appropriate carry make and cannot rules out compelled
purpose statute, assume of said Kansas is not employee injured seeks re- of a case which the alleges lump is en- cover final for the sum to which he he foreign titled under the of said statute. Actions, 67, 101, 989, J., 100, p. 988, 68; p. Section n. C. n. Section 37, 737, 77; 15», p. 133, Courts, J., p. 23; n. 18. 15 C. Section n. Section 60; 316, 74, p. p. 927, n. Section Section n. Appeal from. Jackson Circuit Allеn Court.—Hon. G. Judge.
Southern, Affirmed. Berry
G. Prince, W. E. A. N. for Harris James appellant.
(1)
injuries
Plaintiff’s action
for
arising
Compensation
under the
Kan-
Act of
Workmen’s
can
sas,
standing
Ibemaintained in
Missouri,
the courts of
notwith-
Compensation
of the Workmen’s
limiting
bringing
Act
actions
it to the courts
“venue,
Kansas; reason that
is no
right, and
transitory
state cannot create a
ac-
cause of
time-destroy
and at
tion
the same
sue on that
transitory
having jurisdiction.
cause
action in
George,
App.
Tenn. Coal Co. v.
354;
Ga.
U. S.
Ry.
A. &T.
F. S.
Kenney
Sowers,
55;
U. S.
.Co.
Supreme Lodge,
(2)
Compensation
252 U. SI.411.
*4
Law of
can have
Kansas
no
the
extra-territorial effect;
provision
goes
place
filing
therein,
to the
of
suit
applies merely
right
to the manner in which'the
be
shall
binding upon
yet
exercised,
because
is
the courts of that state,
only,
beyond
the
affects
it has no force
the
pertaining
of
boundaries
the State of Kansas, matters
remedy being
to
by
the
Ry.
controlled
the lex
v.
fori.
Sowers,
230
OP
SUPREME COURT
MISSOURI,
& Fuel
v.
Co.
In
court for
enforce-
toi
denying
plaintiff process
ment of
1
2
safeguards
said
of Sections
right,
4
Article
United
are vi-
Constitution
States
olated
a refusal
to enforce
disregarded,
rights
established
Act
tantamount
failure to
to a
give.fnll faith and credit
all
substantial
those
of the statute which inhere in the cause of action. The
‘‘
presence in
said law of the restrictive
action or
for in
shall be
this Act
proceeding
’’
brought or maintained
outside of the State of
an invalid territorial
restriction affecting
tO'
only,
adequate
furnishes no
reason for failure
substantia]
give full faith and credit
provi-
to all those
sions in the statute
which inhere
of action.
cause
v.
252:
Supreme Lodge,
U. S.
Tema.
411;
C'o.
Kenney
Coal
v. Georgе, 233 U.
P.
354;
Ry.
Sowers,
S.
A. T. &
v.
S.
n
Guy G. for respond- ent.
(1) The court did not err in overruling plaintiff’s
demurrer
to defendant’s
plea
abatement.
v.
Harbis
Cudahy
241
Co.,
S.
960.
Packing
(2)
W.
court did
not err in sustaining
Har
plea
defendant’s
abatement.
bis v. Cudahy
241 S. W.
Packing Co.,
960; Shade v. Lime
&
Co.,
Cement
260;
Kan.
Daley
Building
Peoples
178 Mass.
Assn.,
Mittenthal
13;
v. Mascagni,
Missouri, statutory (c) specifically direction confers make and district clerks to district of Kansas courts *6 legislatively provisions necessary decreed rules and inoperative legislative authority necessary, and said statutory authority are and in Missouri. have must Rules W. binding 253 S. Slussman, v. like Robinson statutes. being (d) Kropp, act 181 86. Said v. S. W. 86; Bank exclusively having con Kansas as binding and been construed in and this court, construction is on such tractual, binding. embracing is likewise the contract local venue Eighme Co., v. 719; v. 249 S. Cement W. Shade Railroad, Cudahy Packing 241 S. W. Co., 260; 93 v. Kan. TIarbis (e) Right inseparably In united. 960. foreign such event, where act is consistent policy appellant are author local ity cited cases of here, respondent point. for Railroad v. on this Sowers, ' George, 353; v. I. 233 U. S. U. S. T. & Railroad Co. 54; C. having (f) Kansas Railroad, Dennick v. 11. U. S. accept judicially determined that contracted claimant acceptance in all the terms such contractual act, conclusively question ven cluded venue and settles the ue. Fed. Co., 812; Wenzler Robinline Shade S. S. 260. Cement Kan. plaintiff asks whiсh
LINDSAY, a suit in C.—This is damages Com- for under the Workmen’s pensation personal in- Kansas, Law of State of juries alleged Kansas, been sustained him, have employment by com- while of his defendant in the course drilling’ pany, in the Kansas, State of business corpora- gas. alleged for oil and to be a The defendant gas drilling engaged for oil tion business incorpo- other states, Kansas state plaintiff’s alleged, place residence. ration is not nor the assisting petition alleges was that casing- said well; that in the removal of iron from a wrap, long a. work was caused to cable used, provided a revolving that defendant drum; around a SUPREME COURT OF MISSOURI, Empire Gas & Fuel flange drum without a fastened the end thereof; flange, reason of the absence of while such the cable, being* slip drawn around the drum, caused off plaintiff, whereby the bones of arm strike plaintiff’s right wеre “that the use broken, and arm permanently alleges expendi- has been disabled,” and he money injury, pain ture of on account of his suffered allegation negligence the like. There is-no on the of defendant. pleaded
Plaintiff forth set certain Chapter then in found in force, YI, law 61, Article of the General amended, and as Statutes- Chap. Laws Kansas plea alleging The defendant filed abatement, plaintiff ought not to have or maintain his action in *7 provisions Missouri court, and set the forth of Sections Chapter and 20, 23, 2é of 226, Laws of Kansas 1917. pleaded by plaintiff The sections were those concern- ing liability employer injuries the sustained employees, operating Ins and the terms of the law, rights employees the pleaded by of such thereunder. The sections provided
defendant were-those which that proceеding brought action or under the could law be defining outside of the State of and Kansas, the conditions employer employee under which the and the would be accepted provisions deemed to have the of the law. The plaintiff’s plea trial court overruled demurrer to the plaintiff reply. reply pleaded and abatement, filed a The attempt that the law, insofar as it an Kansas con- to arising fine to the State of trial un- Kansas causes der law of that was in contraven- state, tion of Article V Article XLY of to the Amendments the Constitution of the United States and violative of provisions of Section of Article IY and Section 10 attempt abridge'the privileges Article I, to plaintiff, deprive property immunities of the to him of'his (cid:127) process deny equal protec- without due of law, to him the deny right tion of the laws, him in that fixed TERM, 1925. Yоl. & Fuel Y. litigate his deny plaintiff the to
undertook having defendant, on service cause of obtained action, he stat- admitted Missouri. It was the State of. utory provisions pleaded sus- The court in force. were plaintiff’s plea mo- overruled abatement, tained involuntary nonsuit taken him, tion to set aside the granted appeal was motion arrest. overruled his City Appeals, that court, to the Kansas Court of questions raised, trans- the constitutional consideration of provisions court. Under the the cause to this ferred Chapter pleaded by Laws defendant, 23, 226, Section presumed have of accepted be Kansas, shall provisions if has not filed the act he accept thereunder; he written elects not to statement employee presumed similarly, Section accepted provisions in- have of the act unless before jury, he has written thаt he elects not filed a declaration accept by him be declaration is to thereunder. The Secretary duplicate State, filed and also a with employer. thereof presented by pleadings here, ease proceeds theory declaration briefs, that no accept thereby filed and that either,
not to
both
accept
and defendant did
bring
provision, a
As to
the action,
law.
part 20 of said
follows: “No
act, is as
Section
brought
proceedings
or
for in
act
be
shall
and notice
maintained outside
the State
by publication against
may
thereof
non-residents
*8
provided,”
gen-
state in the manner
of the
under certain
concerning
eral statutes. The sections
created
relation
by
employer
respect
employee in
of
act,
through
accept
pro-
failure to file declaration not to
by
Supreme
visions, have been construed
Court
following
among
Kansas,
cases,
others:
v.
Shade
Railway
&
93
Co.,
257;
Fuller,
Lime Cement
Kan.
v.Co.
Wegele
Milling
Kan.
v.
608;
Co.,
The Ismert-Hincke
optional
Mosely v. & Fuel Gas Co. provision employment, a of the contract forbidding therein an action outside maintenance of binding, judgment was was and the reversed. That case came here ex review, certiorari, State proceeding, rel. v. 333. In Trimble, Mo. that Harbis distinguished in this from those court the Harbis case support a volved in decisions of cited in court, this quashed doing ex of conflict, so, claim the writ. In pression upon validity views court imposing condition Kansas law brought only of Kansas, action could in the courts opinion was withheld. Reference madе in was- expression Ry. Mo. used in Lessenden Mo. Pac. why l. c. state effect that seen reason impose creates such of action could not expression and that condition, declared to he obiter. was plaintiff The relies certain decisions of Su preme particularly Court States, of the United those Topeka in Atchison, & Santa Fe Railroad Sowers, Railway U. S. 55, and Iron & Tennessee Coal, George, original In S. 354. Sowers case the U. plaintiff injured riding pilot en while of an gine Gallup, alleged, near New Mexico, as was and, through negligence brought of the defendant. He suit in Texas, in his favor affirmed supreme that state. statute The Territory of New Mexico that such an brought only could be in the courts of New Mexico. plaintiff to maintain his action all, at upon compliance the New statute, Mexico was conditioned prescribed requirements. required, with certain He was ninety days injury, within after to make a. state verified damages, required ment thereof, demand his- and also year to sue injury. within one after the occurrence requires The Kansas Act demand to be made within permit employee three months, and does not sue if the willing- petition al- to arbitrate. The leges made re- the demand and defendant fused to arbitrate. MISSOURI, COURT OF SUPREME & Fuel Co. V. wheth- case was Sowers question presented *10 the full-faith-and-credit
er Texas violated the court had of The contention Federal clause the Constitution. had credit that full faith the in error was, New the statute provision to the been given New courts to sue to the right the Mexico, restricting given had Texas The was that the court ruling Mexico. that, in statute, full the New Mexico faith and credit to court had observed recovery in the Texas permitting to action, right the imposed upon the conditions time suit within the claim, verified making bringing an by limited. the suit was onе as was said that such any in the law could be maintained common the had on where service could be general jurisdiction, defendant. conclusion was that Mexico had New in suits for brought therein, to other states right require con- the Mexico, sustained in New to observe injury although action, such causes of imposed upon ditions that and, controlled common-law principles, otherwise by the court of observed, when such conditions were reason state, other not defeated jurisdiction brought suit could only that such provision New Mexico. & Railroad v. George,
In Tennessee Iron Co. Coal, and sued plaintiff, George, injured Alabama, was based Georgia. had His cause action right Alabama code, provision gave a defect injury “caused reason action con ways, works, or machinery plant condition of master or em in the nected with usеd business of the Alabama provision There was another ployer.” sue, courts of Alabama. right code limiting :9 The issue U. S. l. c. 358-35 was thus stated full- whether question single record raises clause prohibited faith-and-credit Constitution a cause enforcing courts of Georgia master, code, against servant by the Alabama when an- machinery, occasioned defective injuries ' TERM, 1925. Yol. Empire Gas & Fuel en suits of the same
other section code compe brought liability force in a court of such ‘must be and not else tent of Alabama within the State ” Immediately following said: the court that, where.’ many so “There are cases where except enforced cannot be united that the designated act. the tribunal manner before provision for ‘where the well settled that For rule is special coupled for a liability employed.’ remedy, remedy, must be alone, аnd that Ry. v. Bailey, 527; Galveston Wall. [Pollard R., & O. R. v. B. Wallace, 481, 490; U. S. Stewart Francklyn, 753.] 120 S. 747, U. National 445; U. S. Bank arising application to a case But that rule has no injuries relating caused to suits for Alabama code *11 machinery. be the statute For, whether defective removing prohibiting com defenses, certain treated as upon a imposing master or the mon-law restrictions liability, larger is event evident that in either new and part bringing place cause is not suit inseparably right not so and the action—the being right dependent upon en- make the united as to particular action tribunal. The cause a forced transitory transitory any be action can other and like jurisdiction competent any within ‘in court enforced de- . . .’ But the owner of the Alabama State may machinery injury causing removed have fective deprivation fixed a and it would be from the State a plaintiff right Al- the defendant in not sue if could nor him where had left the State sue because abama he property or could be found because the defendant his permit suit elsewhere than Al- a did not statute may injured likewise have moved abama. may have other, or reason that, and for Alabama bring suit it to interest to attachment found personam injury in- other than where the was in a state trying would state the case The courts the sister flicted. give all sub- those full faith and credit to bound to be SUPREME COURT OF MISSOURI, & Fuel Co. stantial of the statute 'which inhered in cause action or which name conditions on right depend. right; to sue But venue is transitory and a a state cannot create cause of and at the transitory destroy same time to sue on that having jurisdic- cause of action in jurisdiction tion. That determined the law the court’s creation cаnnot extra- be defeated operation territorial of a statute another even state, ’’ though it created the of action. ruling the Sowers case also considered and'it was l. said, c. 361: “The decision Sowers put upon case, however, was not fact that the suit liability. based on common-law an The court there general transitory ac nounced the rule that cause though can be tion maintained in another state even creating provides statute the cause of action that the ac ’’ brought tion must be in local domestic courts. The court thereby place seems to common-law action one particular footing created statute same under consideration.
This, court
ex
in State
rel. Harbis v.
Trimble,
l.
holding
Mo. c.
heretofore
referred
mentioned,
to the
George
question
saying
in the
and after
case,
had
presented
been considered here
it,
record which
and that outside this
there was some con
authority,
referring
George
flict of
said,
“It
case:
(Tenn.
is held
George,
Coal, Iron & Railroad
v.
*12
354)
U. S.
that the enforcement of such a cause of action
by
infringe
the
of
courts
a sister state does not
the full-
faith-and-credit clause of the Federal Constitution, holding
preclude
that
ing
does not
state courts
refus
gen
to enforce it.” Reference
also
was
made to the
policy
eral
announced in in
State
Section 1162, Re
vised
in
Co.
and Cement
Statutes
v. Gas
255 Mo.
other cases.
y
by
Another case cited
counsel for
is Kenne
Supreme Lodge,
been Illinois of negligently causing: death the dered in Alabama creating plaintiff’s statute The Alabama intestate. provided'that maintained could be of suit the cause action competent jurisdiction Alabama, but in in of ac that A Illinois no elsewhere. statute of not damages oc state tion should be maintained occurring conse state in casioned quence wrongful death another de court, and the Illinois conduct, beyond ciding on, looked sued case, original action, cause character of the considered the jurisdiction had Illinois and held that the courts Supreme judgment. upon Court, Federal suit ruling, reversing could that the of Illinois held State obligation full- escape under the its constitutional not respect judgment ren clause faith-and-credit jurisdiction denying own state, dered in another its. competent in such a It was said case. courts, otherwise original action could that the fact that the cause not an answer Illinois, have maintained in been Eeferring rulings judgment. suit George c. 415: case, сase, said, Sowers it was l. argument statute based the fact that the “Some an action to be in court Alabama allowed niiaintained jurisdiction competent else within state ‘and not in where.’ But when the cause of action is created the attempts validity other to limit the been states to enforce it established the decisions has George [Citing cases.] this court.” Sowers and George respective rights In the Sowers cases, parties were not created accepted option, them .nor statute in the exercise of an giving right attempt the statutes did of action to unite beyond remedy, special or exclusive with the only that the sue existed in the limitation courts right, giving the of action. state creating right of at the statute b'ar, In the case law, and that not on, sued one under the common *13 MISSOURI, SUPBEME COUBT OP Empire Mosely & Fuel Y. Gas Co. accepted by оption parties, statute under their
accept, reject, acceptance in included adoption remedy. Supreme of the exclusive Court United States has effect to the exclusiveness Compensa the character of the under Workmen’s admiralty. damages brought in in In Laws, tion suits for Ship U. Grant Co. S. Rohde, Smith-Porter admiralty damages in claimant sued on account injuries carpenter upon an working sustained while navigable lying unfinished on waters in the State vessel, Oregon. accepted claimant and had Compensation Law Workmen’s opinion that state. The said, the course of the injury l. 476: c. “The was suffered within whose a state positive prescribed remedy there enactment an exclusive general admiralty jurisdic for.” was held that the proceedings damages tion ing result extended to recover process from а tort committed on a con vessel navigable lying struction, when on waters within state. But, was further held that “the exclusive features Oregon Compensation apply Workmen’s Act would abrogate damages to recover in an admiral ty question, court, otherwise would exist.” A like arising* presented similar a like hold facts ing Indemnity made, Millers Underwriters v. Braud (46 Sup. Rep. 194), Supreme Ct. error Court of Texas, a case decided at term, 1925, October question shown in In sheets. advance those cases the whether the jurisdic courts one state must exercise tion to enforce a claimed Com Workmen’s pensation Law of another state, not, course, issue, but these cases are referred to as illustrations universally the view, held, that statutes the nature Compensation the Workmen’s Act of those Kansas, as to persons accepting provisions, their re exclusive spect right given, remedy prescribed, and the emphasis also because par is laid the fact that the option, accepted pro ties, in the exercise of had visions of state act. TERM, 1925.
Vol. y. & Fuel *14 multi- contains a elaborate, act The Kansas is Act, Bly paragraph 1 of 3 of tude of details. Section Chapter provided that is Laws it exceeding pay employer, not demand, cost, on shall surgical hospital physician treat- for a and all $150, re- of his in event like, medicines and but ment, he liable excess stated. not in amount fusal, Paragraph shall be compensation provides be shall what the Paragraph injury. 3 makes death results where from disability permanent provision from results total where injury, disability temporary where total results disability, partial injury, character, in and also where injury. permanent quality, In results from the provision in- “the is that last-named instance the compensation pro- jured to the workman shall be entitled paragraph en- but shall be section, vided in of this during compensation further for, titled other or following injury; thereafter, week but that first provided lump paid compensation in a shall be as sum average following, percentage his schedule weekly computed wages, provided to be as Section compensation less to be no case Act, and the ’’ per per nor than week. There than more week, $12 $6 compensation providing then for the follows a schedule paid member, of a “For the loss as, be for the loss during weekly wages fifty per average cent of the hand, during fifty one hundred weeks.” The number weeks compensation paid according varies, shall be Payments permanent injury. nature of thе total dis- years. beyond period eight ability cannot extend permanent of the use of is a loss There injury, result shall be a. direct hand, arm, etc., equivalent hand, of the loss of such considered closing provision section, arm or member. compensation among things, other as follows: “The injuries, foregoing specific all lieu shall be in for the par- compensation, except provided benefits other this,section.” agraph 1 of Sup Mo. —16. SUPREME COURT OP MISSOURI, &Gas Fuel Co. setting
There are detail, other sections, further weekly average governing rules the. calculation vary- average wages employee annual ing circumstances. There are for medical ex- employee if the amination, and' refuses to submit request, himself for examination and as payment compensation act, shall be and suspended remain shall until he submit to examination. рrovisions whereby, There are if be settled by agreement, may by any be determined committee representative requirement, if and the may such committee exists; or, otherwise, be determined may ap- agreed upon, an arbitrator,, who or if not, *15 pointed upon application to the district court. authorizing' provides:
Section 20 in act, suit, compensation may, “A workman’s to under this act agreement in default of or if the shall have re- fused to consent to an arbitration of the workmen’s claim compensation, by for be determined and enforced any competent jurisdiction, in court but no such action shall be maintained until and unless shall the workman applied have consented an to arbitration or to the court every for hereinbefore an arbitrator. In by jury such action the trial to shall be deemed by waived and the jury, case tried the court without a un- party days less either shall within ten after issues joined jury judgment demand a trial. The in action, plaintiff, lump if favor equal shall be for a sum payments to-the amount then due under act, this payments with interest on the in or, overdue, discre- periodical judge, tion of payments, the trial for, an in provided, lump- judgment award; case shall sum any injury by be objective rendered for not ascertainable may pe- but examination, in such the court cases order payments during incapacity may riodical of such sums as provisions be due under the Section of this Act judgment may such reviewed at time after the ex- piration upon application party of six months either Yol. TERM, & Fuel raised reduced and- the allowed amount time accordance introduced at the with the evidence ’ ’ pro- on in that section is of such Further review. brought of Kansas. vision that action cannot be outside an allegations of plaintiff, claim of petition, the act, his reason of the is, that injury, refusal his and of the of the defendant to arbi adjust damaged lie has been claim, trate and his $6240, he for that sum. sum of asks pur theory according terms, the law own and its Supreme pose is, as stated Court of require provide payment damages, wages be made for workman disability earning prevented re is from reason injury. sulting' Duart The definition appropriate: (Mass.) 121 N. E. l. c. Simmons, ‘compensation’ in the connection in which “The word according money means relief afforded act, used in the designated persons the scale established and compensatory damages and not the recoverable act, wrong contract bro law done or a action at for a ’’ ken. pоint observe is not irrelevant to- at this recovery alleges asking damages, plaintiff, in as an great physical element his case that he “has suffered during anguish continue to suffer and will so- mental *16 plaintiff lost, his natural life—that has remainder of the future, lose, and will in much of natural rest and his sleep obligated plaintiff and himself expended has —that spend obligate expend him will future to large expend medical attention medicine, sums to self and nurse ’’ seeking al for relief. These hire in remedies wholly legations re inconsistent with the measure of compensation covery prescribed [Mc statute. 364-369.] 93 Kan. If cannot v. Zinc Roberts maintain an action damages general in Kansas for result distinguished compensation injury, ing. from his as wages during solely by a limited loss of measured SUPREME COURT OF MISSOURI, Gas & Fuel Co. time, calculated) according to certain fixed rules eompеnastion he main- statute, then to is not entitled tain such an action here the provisions of Section 1162, Revised Statutes 1919.
The question at issue here is different materially from the question Sowers case or case. in the George In those cases there or consideration of question, an option, or choice on part and em- ployee, whereby they might voluntarily themselves bring within the provisions act, or reject it. Here statute involved is not cumulative or supplemental to the common law, but ac- when substitutional, and, cepted, gives special right and an exclu- prescribes sive and, terms, as result remedy, the pursuit exclusive so interwoven with the right, and provisions as to the tribunal enforce designated to the right., special and the powers granted to that tribunal as to make a disunion of the right and the exclusive rem- edy impractical. might what
Passing tribunal, be termed the first if committee, such act one is authorized exists for the employer and employee involved, and passing the next or alternative tribunal, agreed an arbitrator upon, if or, agreed upon appointed court, last coming resort, direct we find court, among provisions in force in following at the time volved this forth action, set in Revised Statutes 1923, Kansas act: “Pro cedure and jurisdiction court. —All reference hereinbe fore to a district court of the State having of Kansas a civil action between the parties shall be construed as to the then of civil relating existing code procedure. shall Such court make all rules necessary and appropriate carry out the act. [L. ” 1911, [S;ec. oh. p. Jan. 1,1912.] 44-533, R. S. Kan. This statute cannot have the extra-territorial ef 1923.] fect a court оf all authorizing Missouri “make rules necessary carry appropriate out the provisions *17 TERM, Vol. & Gas Fuel Co. Railway Wallace, H. & A. In Galveston S. act.” “At one time there
223 U. l. was said: 490, S. c. try duty power question civil some both as to arising solely state. of another statutes cases jurisdiction recognized state that the But it is now any hearing and determination courts extends to the foreign transitory cause created a of action civil and opposed provided it is not of a character statute, brought. public policy suit is state in creating provides exclu an the statute Where way, remedy, particular a before enforced in or sive to be aggrieved party special will be left tribunal, right.” remedy given which created the statute quoted Recurring heretofore Chapter there of 1917: It Act Section ‘‘ provided judgment may lump or, sum that the be for payments judge periodical the trial the discretion оf ‘‘ ’’ judg- is further that a in an And it as award. injury any lumpi sum cannot rendered for ment in a by objective such cases examination, ascertainable payments in- periodical during may order the court may capacity 4 of be due under such sums Section judgment may time at act, such be revieived expiration application months six after party reduced the court either amount allowed with the introduced at or in accordance evidence raised time such review only judgments such can render in Missouri Courts may they they modify after are rendered so them juris- laws Missouri. The do be authorized to its crea- the law of is determined diction of the court upon a Missouri A Kansas cannot confer statute of tion. power money, and a suit procedure. wholly code of Such to the Missouri unknown directly, in- can it do so nor, cannot do a statute through directly attempted Mis- authorization of the necessary appropriate to rules court to make souri By that carry purpose statute. Kansas out the SUPREME COURT OF MISSOURI, *18 State ex rel. Railroad Bland. remedy pro-
statute the united, so liability'is coupled vision for so special remedy designated to be administered tri- specific powers given, bunal with certain that the sought designated must be in the tribunal. opinion
We are of the neither under Section principles of comity, statute, our which is founded statutory and is also of the nature of a submis requirements (Ce sion to the of the Federal Constitution cited), ment Co.v. Gas 255 Mo. l. c. and cases there nor, under the of the Federal Constitution as construed the cases herein mentioned, and others, County compelled Court of Jackson exer Circuit cise its in this case, and its there fore is affirmed. Seddon, G., concurs. oregoing PER opinion CURIAM:—The f Lindsay, hereby adojited opinion
isC., the court. All judges concur. THE rel. STATE ex WABASH RAILWAY COMPANY
and EDGAR H. RAGSDALE v. EWING C. BLAND Judges City Appeals. et al., of Kansas Court One,
Division March Crossing: Sounding 1. MEG-LICENCE: Railroad Whistle: Humanitarian Conjecture: Doctrine: deceased, Nice driving Calculations. The automobile, country crossing. was killed a train aat railroad danger, warning signals She was oblivious of her were trainmen, running twenty-five the train was fifteen to miles per hour, per hour, the automobile ten miles the fireman saw her fifty forty when she feet and the train feet one hundred crossing, stopped from the and the automobile could have been speed within four or five feet. The of the train was therefore automobile, speed they twice that of and at the rate were traveling crossing both would have reached the within less than peril three and half seconds after her was discovered. The Court held, Appeals effect, in the fireman three and a half