Berry v. Majestic Milling Co.

• Decision Date: 08 May 1922
• Docket Number: No. 2934.,2934.
• Citation: 240 S.W. 829
• Parties: BERRY v. MAJESTIC MILLING CO.
• Court: Missouri Court of Appeals

240 S.W. 829

BERRY v. MAJESTIC MILLING CO.

No. 2934.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Lawrence County; Chas. L. Henson, Judge.

Action by Benjamin R. Berry, by Laura A. Berry, next friend, against the Majestic Milling Company. Judgment for plaintiff, and defendant appeals. Reversed.

Allen & Allen, of Springfield, and John L. McNatt, of Joplin, for appellant.

I. V. McPherson and J. A. Potter, both of Aurora, for respondent.

COX, P. J.

Action for damages for injuries received by Benjamin R. Berry, a minor under 16 years of age, while in the employ of defendant. Verdict and judgment for plaintiff for $4,500, and defendant has appealed.

The petition in this case places the ground of recovery on the alleged facts that defendant was operating a roller mill at Aurora, Mo., grinding wheat into flour, corn into meal, and using machinery therein that would be dangerous to one unfamiliar with its use, and that plaintiff was employed by defendant to run and operate, and assist in running and operating, one of the mills used in grinding corn, and that, by reason of the youth and inexperience of plaintiff, which was known to defendant, it was the duty of defendant to have warned plaintiff of the dangers to be encountered by him in doing the work, and that defendant did not do so, and that its negligence in that particular caused the alleged injury.

The answer was: First, a general denial; second, a plea of contributory negligence; third, a plea of former adjudication. The reply denied the charges of contributory negligence and former adjudication.

In the view we take of this case, it will only be necessary to consider the question of former adjudication. There was no dispute as to the facts upon which the plea of former adjudication was based, as they were all shown by the pleadings and records of a former suit between the same parties. From these it is shown that plaintiff by next friend filed a suit against defendant at the May, 1917, term of the Lawrence county circuit court to recover damages for the same injury alleged in the present action. The petition in that action was in two counts. The first count alleged that defendant was guilty of negligence in employing plaintiff to work in its mill while he was under 10 years of age, in violation of the act of the Legislature of 1911 (Laws 1911, p. 132) forbidding such employment. The second count was based on common-law negligence, and was practically the same as the petition in this case. The answer in that case was a general denial and plea of contributory negligence, and an allegation that the statute of 1911 forbidding the employment of plaintiff to work in its mill was unconstitutional. At the trial the plaintiff, after the evidence was all in, dismissed the second count of the petition, and went to the jury on the first count alone. This count only charged negligence by employing plaintiff in violation of the statute. A verdict and judgment went in plaintiff's favor for $5,000 and defendant appealed to the Supreme Court. That court reversed without remanding the case, on the ground that the statute of 1911, so far as it affected the question involved in that case, was unconstitutional. See Berry v. Majestic Milling Co., 284 Mo. 182, 223 S. W. 738.

Plaintiff's contention is that the reversal without remanding by the Supreme Court in the former appeal is not res adjudicata because the reversal was based solely on the ground that the statute of 1911 as applied to this case was unconstitutional, and therefore the case was not disposed of on its merits. Defendant's contention is that there could be but one cause of action for the alleged injury to plaintiff, and, he having chosen his own ground in the former trial, and lost by a reversal without remanding, all grounds are now foreclosed, and hence the case was disposed of on its merits and the judgment of the Supreme Court is res adjudicata.

The first step in reaching a conclusion on the question of res adjudicata in this case is to determine what is plaintiff's cause of action, if he ever had one. Clearly it is the injury resulting from the negligence of defendant. Clark v. R. R., 242 Mo.. 570, 595, 148 S. W. 472.

If the statute of 1911, which the Supreme Court held unconstitutional, had been valid, and plaintiff's first verdict had been upheld, the ground of recovery would have been negligence. The statute referred to did not provide a civil remedy for its violation, and hence his action would have been a common-law action, and the only value the statute would have been to plaintiff in the trial of his case would have been that the violation of the statute by defendant would be negligence per se. The ground of recovery would have been negligence, and the violation of the statute would have been the act of negligence which rendered defendant liable. Dortch v. Reichel Motor Co. (K. C. C. of App.) 223 S. W. 675; Walden v. Stone (K. C. C. of App.) 223 S. W. 136, 138; Dahlstrom v. Railroad, 108 Mo. 525, 538, 18 S. W. 910; Gratiot v. Railroad, 116 Mo. 450, 463, 21 S. W. 1094. 16 L. R. A. 189.

Whether the statute of 1911 was valid or invalid can make no difference as to the character of plaintiff's action to recover for the injury received. His action was a common-law action in any event, and his ground of recovery was negligence. This being true, he could, in his first suit, have charged in one count in his petition all the acts of negligence of which he claimed the defendant was guilty. There was no necessity for pleading the different acts of negligence in several counts. Any number of acts contributing to the same injury, and not inconsistent with each other, so that proof of one will not disprove another, may be pleaded in one count. Haley v. R. IL, 197 Mo. 15, 23, 93 S. W. 1120, 114 Am. St. Rep. 743; Clark v. St. Joseph Terminal Co., 242 Mo. 570, 593, 598, 148 S. W. 472; Craine v. Metropolitan Street Ry. Co., 246 Mo. 393, 403, 152 S. W. 24; Hanson v. Springfield Traction Co. (Mo. Sup.) 226 S. W. 1.

It has been specifically held that a charge of negligence by violating some law or ordinance and an act which is negligence at common law, if not inconsistent, may be united in the same count. Sluder v. Transit Co., 189 Mo. 107, 128, 136, 88 S. W. 648, 5 L. R. A. (N. S.) 186; Rapp v. Transit Co., 190 Mo. 144, 153, 88 S. W. 865; White v. Railroad, 202 Mo. 539, 559, 560, 101 S. W. 14.

Plaintiff, then, could have united in one count in his first suit the charge that defendant had violated the statute and also the charge that it had failed to instruct plaintiff as to the dangers connected with his work. This he did not do, but, after the answer was filed, and after he knew that the constitutionality of the statute upon which the first count of his petition was based was challenged, he voluntarily dismissed the other count and stood solely on the allegation of the violation of the statute. Necessarily, then, when the Supreme Court reversed without remanding the judgment obtained on that allegation, he was out of court. He now insists that he should be permitted to get back into court by a new suit based on the allegation which he once had in the original suit, but which he voluntarily abandoned. Had he taken a nonsuit In that case, and gone out of court without a trial on either count, he would not have been barred, but, having gone to trial on an allegation which he could not sustain, no matter why he could not sustain it, the judgment in that case is final as to every ground of negligence which he could have asserted in that action. The fact that the judgment in that case was reversed because of the unconstitutionality of the statute leaves him in no better position than he would have been if the judgment had been reversed for failure of proof. He had his day in court on his right of action against defendant for having negligently caused him injury, and after final judgment in that case, he cannot relitigate any question that could have been made a ground of recovery in that action. To permit a proceeding of that kind would allow a party to split up his one cause of action for having negligently caused injury to him into as many separate and distinct causes of action as there may have been separate acts of negligence, and prosecute one after another until he secured a favorable verdict, or until he tried each in a separate suit. This cannot be done. All issues which might have been litigated in the former action are as completely barred as if they had been included and adjudicated. Land & Mfg. Co. v. Realty & Dev. Co., 205 Mo. App. 474, 482, 226 S. W. 43; Donnell v. Wright, 147 Mo. 639, 646, 49 S. W. 874; Sprott v. Early, 199 Mo. 491, 500, 502, 97 S. W. 925; St. Louis v. United Railways...