Opinion
March 31, 1931.
1. WORKMEN'S COMPENSATION ACT: Acceptance: No Commission. Notwithstanding the effective date of the Workman's Compensation Act preceded the employee's injury, he cannot be presumed to have elected to accept it, if he had no opportunity to reject it before the accident, and he could have had no such opportunity if there was no commission in existence with which he could have filed his rejection; and in such circumstances, his injury did not come within the provisions of the act.
2. ____: Defense to Suit for Damages. Where the employee's injury occurred before a commission was appointed by the Governor, the Workmen's Compensation Act, though then in effect, was no defense to his suit against his employer to recover damages for personal injuries received during the course of his employment, and it was error to force him to take an involuntary nonsuit on the theory that said act was in force and barred him from maintaining his action.
Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.
REVERSED AND REMANDED.
Bartley Mayfield for appellant.
(1) The provisions of the Workmen's Compensation Act were not in effect at the time of the happening of this accident, which was on November 10, 1926, and was prior to the appointment of the Workmen's Compensation Commission, which took place on November 16, 1926. (a) The Workmen's Compensation Act is not a compulsory law, but is an elective law. Laws 1927, pp. 491, 492, sec. 2. (2) Such law could not be constitutional if plaintiff was denied his right of trial by jury. He had no opportunity to waive his right of trial by jury or reject such law prior to the appointment of the commission. The Constitution guaranteed him a right of trial by jury unless he waived such right or elected to come under said law. He could not elect to come under said law prior to the appointment of a commission. Sec. 28, Art. 2, Constitution of Missouri; Kansas City v. Smith, 238 Mo. 323; Hickox v. McKinley, 278 S.W. 671; Renshaw v. Reynolds, 297 S.W. 374; Frowein v. Poage, 231 Mo. 82. (2) It is the elective feature of this law which makes said law constitutional. Young v. Duncan (Mass.), 106 N.E. 1; Deibeikis v. Link Belt Co., 104 N.E. 211, 261 Ill. 454; Hunter v. Consolidated Coal Co., 154 N.W. 1037, 175 Iowa 245; Anderson v. Steel Co., 99 A. 215; Sayles v. Foley, 96 A. 340, 38 R.I. 484; Shea v. North Butte Min. Co., 179 P. 499. (3) There was no showing that defendant herein had complied with Section 25 of said Workmen's Compensation Act. This section gave plaintiff the right to elect after injury to accept or reject the provisions of the act, if the employer was not insured or was not a self-insurer. Laws 1927, p. 506. (4) The act is an elective and not a compulsory law. State ex rel. v. Comp. Com., 8 S.W.2d 899.
Jones, Hocker, Sullivan Angert and W.A. McCaleb for respondent.
(1) The Workmen's Compensation Act, Laws 1927, pp. 490-522, became effective and was in operation from and after the approval thereof by the voters on Nov. 2, 1926. Art. IV, Sec. 57, Constitution of Missouri; State ex rel. Elsas v. Mo. Workmen's Comp. Comm., 2 S.W.2d 796. (2) The right of trial by jury may be waived and is waived under the terms of the Workmen's Compensation Act unless the parties exercise their right of election. Laws 1927, p. 492, Sec. 2. (a) The "right to elect" to reject the act and the "opportunity to elect" are not synonymous phrases. (b) Where a right is given by law and a means for exercising the right is also given by the same law, but the opportunity to assert the right is denied by reason of the failure of an executive officer to perform a duty cast upon him by the law, no constitutional right is invaded. (c) The opportunity to assert his election was not denied plaintiff by the terms or provisions of the Workmen's Compensation Act, but only by the failure of the Governor to appoint the Workmen's Compensation Commission prior to the injury in question. The unconstitutionality of a law must be predicated upon a denial of constitutional guaranties by the terms of the law itself and cannot be based upon the failure of an executive officer to perform a duty created by the terms of the act. The fact that the Governor did not appoint the Commission until November 16, 1926, may work a hardship on a few litigants who happened to be injured between November 2 and November 16, 1926, but that is no reason for declaring the law unconstitutional. State ex rel. Elsas v. Workmen's Comp. Comm., 2 S.W.2d 796. (3) The failure of the Governor to appoint the commission before November 16, 1926, could at most only defer the time for asserting an election to reject the act, and, inasmuch as plaintiff did not at any time after the appointment of the commission, file his election to reject the act he will be conclusively presumed to have accepted it. (a) Under the law as originally enacted, ample time was afforded for asserting an election under its terms. Laws 1927, p. 516, sec. 56; Laws 1927, p. 522, sec. 79. (b) The Governor was required to appoint the Commission immediately upon the adjournment of the Fifty-third General Assembly. Laws 1927, p. 516, sec. 56. (c) The act itself contemplated that the commission should be appointed and functioning sufficient time before the act became operative to allow an opportunity for an election under its terms. Laws 1927, p. 516, sec. 56; Laws 1927, p. 522, sec. 79. (d) In view of the fact that the operation of the act was suspended by referendum, the provisions of Section 79 of the act became ineffectual and inoperative by lapse of time; but, pursuant to the intention of the Legislature, as expressed by Section 56 and 79, the full force thereof may be given effect by holding that plaintiff had a reasonable time after the appointment of the commission to file notice of election, and as no notice was filed at any time he should be deemed to have accepted the act. (4) The question as to whether the defendant complied with Section 25 of the act requiring it to carry insurance is not in question on this appeal, as no issue was presented by the pleadings. (a) If plaintiff intended to rely upon the failure of defendant to carry insurance as giving him a right to elect to proceed at common law, he was required to plead such fact, either in his petition or reply. Kemper v. Gluck, 21 S.W.2d 922; Steagall v. Iron Coal Co., 87 So. 787; Demopolis Telephone v. Hood, 102 So. 35; Kasulka v. Railroad Co., 105 So. 187; Gunnoe v. Coal Co., 117 S.E. 484; Preno v. Anthracite Mining Co., 284 F. 495.
The petition in this case was filed in the Circuit Court of the City of St. Louis on March 16, 1927. It was alleged that on and prior to November 10, 1926, plaintiff was in the service of defendant as a laborer and that during the course of his employment on said day he sustained injuries as a direct result of the negligence of defendant, to his damage in the sum of $20,000.
The answer was a general denial and a plea in abatement. It was therein alleged that the circuit court was without jurisdiction to hear and determine the cause for the reason the Workmen's Compensation Act was in force and effect on November 10, 1926, and therefore the Workmen's Compensation Commission had exclusive jurisdiction of plaintiff's injury.
Replying, plaintiff admitted said act was referred to a vote of the people on November 2, 1926, and that a majority of the votes cast were in favor of said act, but alleged his injury did not fall within the jurisdiction of the Workmen's Compensation Commission, for the reason there was no such commission with which he could file a written notice rejecting the act, and further alleged that a denial of the right of trial by jury without an opportunity to reject the act would be in violation of Section 28, Article II, Constitution of Missouri. On the trial it was stipulated as follows:
"It is stipulated between the parties to this suit and admitted by the respective attorneys for the plaintiff and defendant, that on the 30th day of April, 1925, the Governor of the State of Missouri, duly approved an act passed by the General Assembly of Missouri, known and designated as the Workmen's Compensation Act, and that, thereafter, in due time said act was referred by the regular procedures under the Referendum Act of the State of Missouri, and was voted on by the voters of this State at the regular November election held on November 2, 1926, and the majority of votes cast at said election were in favor of said act; that the defendant in this case, Fruin-Colnon Contracting Company, had regularly employed more than ten men at the times referred to, and on the date mentioned in this case, and was a major employer within the meaning of said Workmen's Compensation Act, and that the contract of employment in this case took place within the State of Missouri. It is further agreed that no notice of rejection of the Workmen's Compensation Act was filed with the Commission by the plaintiff in this case prior to the happening of his accident which occurred on the 10th day of November, 1926, or subsequent thereto, and that no commission was appointed by the Governor of the State of Missouri, as provided for in said act, until the 16th day of November, 1926, and that was the date of the appointment of the Commission, November 16, 1926."
Thereafter and during the examination of a witness, the court sustained the objection of defendant to the introduction of evidence for the reason the Workmen's Compensation Act was in force and effect at the time of plaintiff's injury, and therefore the circuit court was without jurisdiction to hear and determine the cause. In this situation an involuntary nonsuit was taken by plaintiff, with leave to move to set the same aside. The motion to set aside the nonsuit was overruled, and plaintiff appealed.
In State ex rel. Elsas v. Missouri Workmen's Compensation Commission, 318 Mo. 1004, 2 S.W.2d 796, a mandamus proceeding, we held that the Workmen's Compensation Act went into effect from and after the referendum vote on November 2, 1926, and we directed the commission to take jurisdiction of a compensation claim growing out of an injury sustained on November 4, 1926. The question here presented was not considered and determined in that case.
Did plaintiff's injury fall within the provisions of the Missouri Compensation Act? We do not think so. The act is contractual and elective. [State ex rel. Syrup Co. v. Compensation Commission, 320 Mo. 893, 8 S.W.2d 897.] Therein it is provided as follows:
"Every employer and every employee . . . 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." [Laws 1927, p. 492.]
Now, while the law was in effect at the time of plaintiff's injury, there can be no presumption that he elected to accept the act for the reason he did not have an opportunity to reject it. In other words, the presumption rests on the existence of a commission with which a notice of rejection may be filed. Absent an opportunity to reject, there could not be a meeting of minds on the question.
For this reason no presumption arose from plaintiff's failure to reject the Act. He had no opportunity to do so.
The judgment should be reversed and the cause remanded with directions to set aside the nonsuit and grant plaintiff a new trial. It is so ordered. All concur.