Appeal
from District Court, Silver Bow County; Jno. B. McClernan
Judge.
SMITH
J.
This is
an action brought in Silver Bow county to recover damages for
personal injuries alleged to have been received by the
plaintiff while alighting from a car of the defendant company
on which she had been a passenger in the city of Butte. The
defendant McConkey is alleged to have been the conductor, and
the defendant Lang, the motorman, in charge of the car. The
injuries complained of were sustained on May 29, 1907. The
cause of action is based upon the allegation in the complaint
that while the plaintiff had one foot upon the ground, and
was in the act of alighting from the car, which had been
brought almost to a standstill at the corner of Montana and
Platinum streets, where she had previously signified to the
conductor her desire to get off, the defendants negligently
"jerked the car from under her," and caused her to
fall to the ground, whereby she was injured. She alleges
that, "had it not been for the jerk," she could
have alighted with safety. The defendants answered
separately, by (1) denying all of the allegations of the
complaint, except the formal parts thereof, and the averment
that plaintiff was a passenger
on the car in question; and (2) by alleging affirmatively
"that on or about the 1st day of November, 1907, in the
Circuit Court of the United States, Ninth Circuit, District
of Montana, there was an action pending between Sara Dunseth,
plaintiff, and the Butte Electric Railway Company, a
corporation, and August Rundblad, defendants; that the said
Sara Dunseth, plaintiff therein, is the same Sara Dunseth,
the plaintiff herein, who has brought this suit; that the
Butte Electric Railway Company, the defendant therein named,
is the same Butte Electric Railway Company that is made
defendant in this suit; that the plaintiff in and by the
complaint therein, claimed damages for personal injuries upon
the same cause of action as herein set forth in the complaint
filed in this cause; that the injuries alleged to have been
suffered by the plaintiff therein, are the same as the
injuries alleged to have been suffered by the plaintiff in
this cause; and the facts alleged in said complaint therein
are the same as those alleged herein, and the same cause of
action was relied upon as a ground of recovery therein as
that set forth in the complaint herein; that an answer to
said complaint was duly filed by the said defendant Butte
Electric Railway Company therein; that the replication
thereto was filed by the plaintiff, and the said cause of
action, being at issue, came on for trial in said United
States Circuit Court for the Ninth Circuit, District of
Montana, on or about the 1st day of November, 1907, before
the court and a jury of twelve persons, duly impaneled and
sworn to try the issues in said cause; that thereupon
witnesses on behalf of the plaintiff were sworn and
testified, witnesses were sworn and testified on behalf of
the defendant, and witnesses were sworn and testified in
rebuttal; and the evidence being closed, and each party then
and there announcing in open court that it had no further
testimony to offer in said cause, the jury were instructed by
the court, and thereupon returned into court their verdict in
favor of the defendant Butte Electric Railway Company and
against the plaintiff; and thereafter judgment upon the
merits was duly given and made in favor of the defendant
Butte Electric Railway Company and against the plaintiff,
which said judgment so given and made was upon the merits,
and not otherwise, and is as follows, to wit: '(Title of
Court and Cause.) Judgement. The above-entitled cause coming
on regularly to be heard, the respective parties being
present in court, represented by their counsel, and
announcing themselves ready for trial, the said action was
dismissed, on motion of the plaintiff, against the defendant
August Rundblad; whereupon a jury of twelve good and lawful
men was impaneled to hear and try said cause, and evidence
was submitted upon the part of the plaintiff and the
defendant, and at the time when all of the evidence in the
case had been submitted by the respective parties to said
action, on motion of counsel for defendant, the court, having
under consideration all of the evidence introduced in said
action, and being fully informed in the premises, ordered and
directed that a verdict should be rendered in favor of said
defendant and against the plaintiff herein: Now, therefore,
in consideration of the premises, and of said verdict, it is
ordered, adjudged and decreed that the plaintiff herein take
nothing by her said action, and that the defendant Butte
Electric Railway Company go hence without day, and that said
defendant Butte Electric Railway Company have judgment for
its costs and disbursements herein expended.' That by
virtue of said judgment, and by reason of the proceedings
hereinbefore set forth, the cause of action sued upon by the
plaintiff herein has been fully determined and adjudicated by
the judgment upon the merits hereinbefore set forth, and the
plaintiff has no further right to proceed in this case upon
the same cause of action, tried and determined upon the
merits in the former case."
Plaintiff's
replication to the affirmative allegations just quoted is as
follows: "Admits that on or about the 1st day of
November, 1907, in the Circuit Court of the United States,
Ninth Circuit, District of Montana, there was an action
pending between Sara Dunseth, plaintiff, and Butte Electric
Railway Company, a corporation, and August Rundblad,
defendants; that the said Sara Dunseth, plaintiff therein, is
the same Sara Dunseth, the plaintiff herein, who has brought
this suit; that the Butte Electric Railway Company, the
defendant therein named, is the same Butte Electric Railway
Company that is made defendant in this suit; that the
plaintiff in and by the complaint therein, claimed damages
for personal injuries upon the same cause of action as herein
set forth in the complaint filed in this cause; that the
injuries alleged to have been suffered by the plaintiff
therein are the same as the injuries alleged to have been
suffered by the plaintiff in this cause; and the facts
alleged in said complaint therein are the same as those
alleged herein, and the same cause of action is relied upon
as a ground of recovery therein as that set forth in the
complaint herein; that an answer to said complaint was duly
filed by the defendant Butte Electric Railway Company
therein; that the replication thereto was filed by the
plaintiff; and the said cause being at issue, came on for
trial *** before the court and jury of twelve persons, duly
impaneled and sworn to try the issues in said cause; that
thereupon witnesses were sworn and testified on behalf of the
plaintiff, witnesses were sworn and testified on behalf of
the defendant, and witnesses were sworn and testified in
rebuttal; that the following judgment was given
and made (setting forth a copy of the same judgment pleaded
in the answers). Denies, on information and belief, each and
every other allegation in said further and separate answer
contained."
We have
quoted the replication thus at length, for the reason that it
appears to have been drafted with a view of inviting a motion
for judgment on the pleadings, and thus clearly presenting
the question of law involved. It will be observed that the
only denial in the replication is on information and belief,
and relates to the allegation in the answer that the judgment
of the federal court was upon the merits. A motion for
judgment on the pleadings was duly made by the Butte Electric
Railway Company. This motion was denied, the cause was tried,
and a verdict returned in favor of the plaintiff and against
that defendant on April 3, 1909, for the sum of $5,000.
Judgment was entered on the verdict, a new trial denied, and
the defendant company has appealed. The verdict is silent as
to the individual defendants, making no reference to either
of them; neither are they referred to in the judgment. The
record in cause No. 2,794, which was argued and submitted
with this appeal, discloses the fact that on June 25, 1909,
plaintiff's counsel moved the court for an order
dismissing the action as to the defendants McConkey and Lang,
and on July 31, 1909, over objection of the defendant Butte
Electric Railway Company, the order was made. Several
questions are discussed in the briefs of counsel, but the
fundamental one is whether the judgment entered in the United
States court was a judgment upon the merits, and therefore a
bar to the present action. A solution of that question
renders a consideration of others unnecessary, and for the
purpose of arriving at it we shall assume that the issue is
properly presented by the replication.
It is
contended by the appellant's counsel that a judgment on a
directed verdict is always and necessarily a judgment upon
the merits. The following cases are thought to sustain the
position: Briggs v. Waldron, 83 N.Y. 582;
Burnett v. State, 62 N. J. Law, 510, 41 A. 719;
Andrews v. School District, 35 Minn. 70, 27 N.W
303. We, however, are not inclined to go so far in our
ruling; but are rather of opinion that a judgment on directed
verdict may or may not be a judgment upon the merits,
dependent upon the...
