Draper v. Louisville & N. R. Co.

• Decision Date: 12 June 1941
• Docket Number: 36563
• Citation: 156 S.W.2d 626,348 Mo. 886
• Parties: Robert Draper v. Louisville & Nashville Railroad Company, Appellant
• Court: Missouri Supreme Court

156 S.W.2d 626

348 Mo. 886

Robert Draper v. Louisville & Nashville Railroad Company, Appellant

No. 36563

Supreme Court of Missouri

June 12, 1941

Rehearing Denied July 25, 1941. Motion to Transfer to Banc Overruled October 30, 1941. Motion to Reconsider Order of October 30, 1941, Overruled December 12, 1941.

Appeal from Circuit Court of City of St. Louis; Hon. Robert J Kirkwood, Judge.

Reversed.

James E. Garstang and Harold R. Small for appellant.

(1) It was an undue burden on interstate commerce and against due process of law to subject defendant to the jurisdiction of the court under the facts as shown under defendant's plea in abatement. State ex rel. v. Rutledge, 56 S.W.2d 28, and federal cases therein cited. (2) The demurrer at the end of plaintiff's case should have been sustained. The demurrer at the close of the whole case should have been sustained, as plaintiff, as an alleged invitee or licensee was shown not to be such, and it was shown that there was no duty on the operatives of the engine to maintain a lookout at the time and place of his injury. No case was made under Kentucky law, under the pleadings and evidence, against defendant, whether as an invitee or trespasser. L. & N. Ry. Co. v. Langford's Admr., 259 Ky. 670, 83 S.W.2d 18; L. & N. Ry. Co. v. Brush's Admr., 263 Ky. 538, 92 S.W.2d 760; L. & N. Ry. Co. v. King, 12 S.W.2d 860; Cincinnati, N. O. & T. P. Ry. Co. v. Wallace's Admr., 267 Ky. 661, 103 S.W.2d 91; English v. Wabash Ry., 341 Mo. l. c. 560; Angelo v. Baldwin, 343 Mo. 310, 121 S.W.2d 731; Smith v. Terminal Railroad Assn., 83 S.W.2d 425; Ducoulombier v. Baldwin, 101 S.W.2d 96; Ducoulombier v. Thompson, 124 S.W.2d 1105; Barney v. Hannibal & St. J. Ry. Co., 126 Mo. 372; 52 C. J., p. 557.

N. Murry Edwards, Robert A. Harris and Douglas H. Jones for respondent.

(1) Plea to dismiss is not well taken. There was no authorized prior suit pending in Kentucky. Suit in Missouri is not a burden on interstate commerce. State ex rel. v. Rutledge, 331 Mo. 1038, 56 S.W.2d 28; 1 C. J. S., p. 97, secs. 63, 65; Silent Automatic Sales Corp. v. Stayton, 45 F.2d 476; Knott v. Evening Post Co., 124 F. 342; Kansas City Gas Co. v. Kansas City, 198 F. 500. (2) Demurrer. (a) No variance or departure between pleadings and instructions. Rogers v. St. Louis-S. F. Ry. Co., 31 S.W.2d 546; Reardon v. Mo. Pac. Ry. Co., 114 Mo. 384, 21 S.W. 731; Owens v. Kansas City, C. C. & St. J. Ry. Co., 225 S.W. 234. (b) User. There was proof plaintiff was an invitee; that there was definite user; and that defendant owed duty to keep lookout. L. E. Meyers' Co. v. Logue's Admr., 280 S.W. 107; Chesapeake & O. Ry. Co. v. Honaker, 226 S.W. 394; Chesapeake & O. Ry. Co. v. Banks' Admr., 137 S.W. 1066; Louisville & N. Ry. Co. v. Lankford's Admrs., 83 S.W.2d 18; Louisville & N. Ry. Co. v. Philpot's Admr., 215 Ky. 682, 286 S.W. 1078; Chesapeake & O. Ry. Co. v. Ball, 125 S.W. 246; Southern Ry. Co. in Ky. v. Sanders, 141 S.W. 77; Angelo v. Baldwin, 121 S.W.2d 736. (c) On demurrer plaintiff is entitled to all favorable inferences. Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Becker v. Aschen, 131 S.W.2d 534; Clark v. Atchison & Eastern Bridge Co., 24 S.W.2d 143, 324 Mo. 544; Neal v. Caldwell, 34 S.W.2d 104, 326 Mo. 1146; Perles & Stone v. Childs Co., 84 S.W.2d 1052, 337 Mo. 448; Gorman v. St. L. Merchants Bridge Term. Ry. Co., 28 S.W.2d 1023, 325 Mo. 326; Ingram v. Mobile & O. Ry. Co., 30 S.W.2d 989, 326 Mo. 163; Clason v. Lenz, 61 S.W.2d 727, 332 Mo. 113; Weston v. American Natl. Assur. Co., 32 S.W.2d 789; Haney v. Security Ben. Assn., 34 S.W.2d 1046, 225 Mo.App. 872; Mattingly v. Broderick, 36 S.W.2d 415, 225 Mo.App. 377; Jackson v. Mo. Pac. Ry. Co., 42 S.W.2d 932, 226 Mo.App. 29. (d) Demurrer was waived by submission of identical issues to jury. Wielms v. St. Louis County Gas Co., 37 S.W.2d 454; Cantley v. Am. Surety Co. of N. Y., 38 S.W.2d 739, 225 Mo.App. 1146; Corbin v. Kansas City, C. C. & St. J. Ry. Co., 41 S.W.2d 832; Callahan v. Kansas City, 41 S.W.2d 894, 226 Mo.App. 408.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for damages for personal injuries. Plaintiff obtained a verdict for $ 55,000. Defendant has appealed from the judgment entered.

Plaintiff was run over and his legs were cut off by defendant's switch engine at Louisville, Kentucky, in August, 1937. A suit was filed there and also in St. Louis in 1938. Defendant's answer contained a plea in abatement on the ground that this same cause of action was pending in the Circuit Court of Louisville, and a plea to the jurisdiction upon the ground that the prosecution of the cause in St. Louis would place an undue burden upon interstate commerce, in violation of Article 1, Sec. 8 of the Constitution of the United States. The trial court, after separate hearing, found that the signature on the contract authorizing the Kentucky suit was not plaintiff's and that he was not bound thereby. The plea in abatement (and also to the jurisdiction) was overruled by the court's order to proceed to trial on the merits. Defendant assigns this action as error. After the first hearing of this appeal, we handed down an opinion (at the May Term, 1940) holding that, while the plea in abatement was properly overruled, the plea to the jurisdiction should have been sustained. However, on motion of plaintiff, a rehearing was granted.

We adhere to our ruling that the plea in abatement was properly overruled both because there was substantial evidence to support the finding that plaintiff never signed nor authorized the signing of the contract authorizing the Kentucky suit; and because "the general rule, that the pendency of a prior action, between the same parties, for the same cause of action, whether at law or in equity, may be pleaded in abatement of a subsequent action therefor, . . . applies only where two courts have concurrent jurisdiction of the same cause of action and where the prior action is pending in one of such courts, and the subsequent action in another; and therefore such a plea, ordinarily, will not be sustained where the prior action is pending in a court of foreign or different jurisdiction, or, as otherwise expressed, where the two actions are pending in courts of different sovereignties, such as in courts of different states, . . . or countries, or in a federal and also in a state court." [1 C. J. S., p. 97, sec. 63, also sec. 65. See also 1 C. J., p. 84, sec. 113; 1 Am. Jur., p. 42, sec. 39; Kansas City Gas Co. v. Kansas City et al., 198 F. 500; Silent Automatic Sales Corp. v. Stayton, 45 F.2d 476; Chicago, R. I. & P. R. Co. v. Schendel, 279 U.S. 611, 46 S.Ct. 420, 70 L.Ed. 757, 53 A. L. R. 1265.]

The relevant facts on the plea to the jurisdiction are that plaintiff at the time of his injury in Kentucky was a resident of Chattanooga, Tennessee; and that, at the time of the trial, he resided at Paducah, Kentucky. Defendant is a Kentucky corporation, not licensed to do business in Missouri, and has no railroad line in Missouri. Defendant's Missouri business, both passenger and freight, is entirely interstate. However, defendant has a ticket office and a freight depot in St. Louis, and its trains, both passenger and freight, run into St. Louis, but are handled from East St. Louis, Illinois, by engines of the Terminal Railroad Association over its tracks. Defendant's freight trains, departing from St. Louis, are likewise handled by engines of the Terminal to East St. Louis. Its passenger trains enter and depart from the Union Station. Defendant brought 19 witnesses, mostly its employees, from Louisville to St. Louis. Defendant did not actually pay out money for transportation of its witnesses, but the daily cost of their maintenance was about $ 157. The trial commenced on Monday, November 21, and closed Saturday, November 26.

Section 874, R. S. 1939, Section 723, Mo. Stat. Ann., p. 936, provides: "Suits against corporations shall be commenced either in the county where the cause of action accrued, or in case the corporation defendant is a railroad company owning, controlling or operating a railroad running into or through two or more counties in this state, then in either of such counties, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business." (Italics ours.) The italicized part of Section 723, under the facts, authorized, we think, the commencement of this cause in St. Louis, unless jurisdiction is denied under the theory that to prosecute the cause in St. Louis would place an undue burden on interstate commerce.

In Busch v. L. & N. R. Co., 322 Mo. 469, 17 S.W.2d 337, certiorari denied 280 U.S. 569, 50 S.Ct. 27, 74 L.Ed. 622, it was held that the plaintiff, who was not a resident of Missouri, could sue this same defendant in this State for damages for personal injuries sustained elsewhere. This court, in that case (17 S.W.2d l. c. 339) said:

"Defendant admits that it was engaged in interstate commerce within the state, and 'the presence of a corporation within a state necessary to the service of process is shown when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the state, although the business transacted may be entirely interstate in its character.' [International Harvester Co. v Kentucky, 234 U.S. 589, 34 S.Ct. 947, 58 L.Ed. 1484. (234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479.) . . . This case is clearly distinguishable from Davis v. Farmers' Co-operative Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996.] A foreign corporation must submit, if there is jurisdiction, to the requirements of orderly, effective administration of justice, although thereby interstate commerce is incidentally...