Bindley v. Metropolitan Life Ins. Co.

• Decision Date: 12 July 1948
• Docket Number: 40638
• Citation: 213 S.W.2d 387,358 Mo. 31
• Parties: Glayds L. Bindley, Appellant, v. Metropolitan Life Insurance Company, a Corporation; Lewis P. Clothier and L. v. Murray, Respondents
• Court: Missouri Supreme Court

213 S.W.2d 387

358 Mo. 31

Glayds L. Bindley, Appellant, v. Metropolitan Life Insurance Company, a Corporation; Lewis P. Clothier and L. v. Murray, Respondents

No. 40638

Supreme Court of Missouri

July 12, 1948

Rehearing Denied September 13, 1948.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded.

Paul E Bindley and Martin J. O'Donnell for appellant.

(1) Sec. 1026, R.S. 1939, was not repealed by the 1943 Code, and the court erred in holding that it was repealed by Section 101 of said Civil Code, and this whether the dismissal of April 1, 1946, was voluntary or involuntary. Code of Civil Procedure, 1943, pp. 355-397; Supreme Court Rule 3.01; Missouri Constitution Sec. 5, Article V. (2) The court erred in ignoring the provisions of the Code of 1943, which secured to appellant the substantive right to that day in court which the court denied her. Wetmore v. Crouch, 188 Mo. 647; Adcox v. Southern R., 184 S.W.2d 37; Sec. 1026, R.S. 1939. (3) The court erred in dismissing the case because the facts in the memorandum opinion shown in the record did not authorize the dismissal of August 14, 1947. Secs. 99, 101, Civil Code, 1943. (4) The phrase "dismissed for want of prosecution" has always meant, and still means, "dismissed without prejudice," and is a specification "without prejudice" within the meaning of the words "shall otherwise specify" in Section 101, Civil Code, 1943. C.I.T. Corporation v. Teague, 169 S.W.2d 593; Meddis v. Wilson, 175 Mo. 126; Wetmore v. Crouch, 188 Mo. l.c. 654.

Roy P. Swanson and Blackmar, Newkirk, Eager, Swanson & Midgley for Metropolitan Life Insurance Company and P. L. Edwards for Lewis P. Clothier and L. V. Murray, respondents.

(1) The order sustaining respondents' motions to dismiss was correct. Sec. 847.101, R.S. 1939; Laws, 1943, p. 385, sec. 101; Hannibal v. St. Louis Pub. Service Co., 200 S.W.2d 568; Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Rule 41 (b), Federal Rules of Civil Procedure, 28 U.S.C.A.; American Natl. Bank & Trust Co. of Chicago v. United States, 142 F.2d 571; Cleveland v. Higgins, 148 F.2d 722; Fenton v. Thompson, 176 S.W.2d 456; Note No. (92(1)), Judgments, 50 C.J.S., p. 64; Sec. 5, Art. V, Constitution of Missouri; Rule 3.05, Rules of Supreme Court of Missouri; Rule 14, Rules of Circuit Court, Jackson County; State ex rel. Van Hafften v. Ellison, 226 S.W. 559; Beil v. Gaertner, 197 S.W.2d 611; State ex rel. Bair v. Producers Gravel Co., 111 S.W.2d 521; Davis v. Morgan Foundry Co., 23 S.W.2d 231; Hill v. United States ex rel. Wampler, 298 U.S. 460. (2) Plaintiff's cause of action is barred by "Limitations," Sec. 1014, R.S. 1939. Sec. 1014, R.S. 1939; Brown v. Irving-Pitt Mfg. Co., 292 S.W. 1023; 316 Mo. 1023; Foster v. Petrie, 141 S.W.2d 131, 235 Mo.App. 414, transferred to 149 S.W.2d 851, 347 Mo. 992; Siler v. Kessinger, 149 S.W.2d 890; Briece v. Bosso, 158 S.W.2d 463.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Plaintiff has appealed from a judgment of dismissal entered after defendants' motion to dismiss plaintiff's amended petition had been sustained. On March 26, 1947, plaintiff instituted this suit for $ 10,000 actual and $ 115,000 punitive damages. The action is based upon an alleged unlawful conspiracy entered into by the insurance company, its agent and its physician, for the alleged purpose of cheating and defrauding the plaintiff by depriving her of her property and rights, towit, a cause of action for the wrongful death of her husband and a right to recover penalty and attorney fees on account of the insurance company's vexatious refusal to pay to plaintiff-beneficiary the amount due on a double indemnity (in case of accidental death) policy of life insurance, which had been issued to plaintiff's husband. It is alleged that plaintiff's husband died on August 26, 1939, as the result of the negligent and unexpected administration by named physician of an excessive amount of ether; that plaintiff had a cause of action against the physician for the wrongful death of her husband and a cause of action against the insurance company under the policy and, subsequently, a right to recovery from the insurance company a penalty and attorney fees for vexatious refusal to pay; and that plaintiff was deprived of her property and rights as to these matters by fraudulent misrepresentation and concealment of defendants pursuant to the unlawful conspiracy.

Plaintiff further alleged that the action was theretofore filed on January 6, 1943; that on November 24, 1945, while same was pending in said court, the court ordered the cause put on the 'Hold Docket'; that said cause was so placed and was never thereafter placed on the trial docket; and that while said cause was so pending on said 'Hold Docket', the court, on April 1, 1946, ordered and adjudged that the same be dismissed for want of prosecution and that defendants have and recover of plaintiff their costs. Plaintiff also alleged "that said order placing said cause on the Hold Docket was made because witnesses in the case were in the armed forces, and is still in force. That said court was without jurisdiction, for said reason, to make and enter the order made on April 1, 1946. That plaintiff was never notified of said order by the court or defendant, and that one of defendants' counsel, on or about March 20, 1947, informed plaintiff's counsel that said order had been made."

Defendants' motion to dismiss the present action was based on two grounds: (1) that "the petition shows on its face that the alleged cause of action is barred by the Statutes of Limitations"; and (2) that "the petition shows on its face that the cause of action alleged therein has been adjudicated upon its merits pursuant to Section 101 of the Laws of Missouri for 1943." It will be noted that the motion to dismiss the present action was directed solely to the allegations appearing on the face of the amended petition. No evidence was heard and the motion was sustained and judgment of dismissal was entered.

In sustaining defendants' motion to dismiss, the trial court relied upon Section 101 of the Civil Code, Laws 1943, page 385; and Hannibal v. St. Louis Public Service Company (Mo. App.), 200 S.W.2d 568. The court held that, since the original cause was dismissed "without an order stating that the dismissal was without prejudice," the court's "order for dismissal did not otherwise specify," as required by Section 101, supra; and, therefore, that the dismissal was with prejudice and conclusive on the merits.

The Civil Code, Laws 1943, p. 357, Sec. 2, provides that, "This code . . . shall govern the procedure . . . in all suits and proceedings of a civil nature . . . unless otherwise provided by law."

Section 100, Laws Mo. 1943, p. 385, provides: "For failure of the plaintiff to prosecute or to comply with this code or any order of court, a defendant may move for dismissal of an action or of any claim against him. . . ."

Section 101, Laws Mo. 1943, p. 385, provides: "A dismissal without prejudice permits the party to bring another action for the same cause, unless the action is otherwise barred. A dismissal with prejudice operates as an adjudication upon the merits. Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify."

Appellant contends that Section 1026, R.S. 1939, which authorizes the plaintiff to commence a new action within one year after suffering a non-suit, was not repealed by the new Code of Civil Procedure, Laws 1943, p. 353; that dismissal for failure to prosecute an action is a non-suit within the meaning of Section 1026, supra (Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84; Meddis v. Wilson, 175 Mo. 126, 74 S.W. 984; Wetmore v. Crouch, 188 Mo. 647, 654, 87 S.W. 954; State ex rel. Union Electric Light & Power Co. v. Sevier, 339 Mo. 732, 737, 98 S.W.2d 980); that the phrase "dismissed for want of prosecution," as used in the order, has always meant, and still means, "dismissed without prejudice"; and that the record of dismissal of the original suit by the use of said words shows a specification of dismissal without prejudice within the meaning of the words "shall otherwise specify" appearing in Section 101, supra.

Respondents' brief states that Rule 14 of the Rules of the Circuit Court of Jackson county, in force at the time this case was dismissed, provided: "Any case on the active trial list which is not ready for trial for any reason other than engaged counsel, as defined above, will be by the Presiding Judge taken off of the active trial list and placed on the Hold Docket unless continued for statutory grounds, in which event it shall be returned to the general docket. . . . Any case on the Hold Docket undisposed of for a period of 120 days shall on the next day be dismissed by the Court."

Respondents say that the original cause "was dismissed by the court of its own motion for want of prosecution on April 1, 1946, pursuant to Circuit Court Rule No. 14." Respondents further say that the "plaintiff . . . left the case on the Hold Docket for more than 120 days thereby making it mandatory on the court to dismiss the case. . . . The court had no alternative, but to dismiss the case."

No such rule was referred to in the amended petition and it does not appear in the record, but by letter, dated May 18, 1948, appellant advises "that, if the court has power to do so, it may consider that that rule was in force, at the time mentioned in respondents' brief, in the Circuit Court of Jackson county."

This court cannot take judicial notice...