Favorite v. Minneapolis St. Ry. Co.

• Decision Date: 11 July 1958
• Docket Number: No. 37124,37124
• Parties: Thomas A. FAVORITE, by his father and natural guardian, Andrew Favorite, Appellant, v. MINNEAPOLIS STREET RAILWAY COMPANY et al., Respondents.
• Court: Minnesota Supreme Court

Page 459

91 N.W.2d 459

253 Minn. 136

Thomas A. FAVORITE, by his father and natural guardian, Andrew Favorite, Appellant, v. MINNEAPOLIS STREET RAILWAY COMPANY et al., Respondents.

No. 37124.

Supreme Court of Minnesota.

July 11, 1958.

Syllabus by the Court

1. Where the right of appeal from an unvacated appealable order has expired, the right of appeal is not revived by a negative order on a second motion for the same relief.

2. The general rule is that an order granting or denying the right to revive an action is a final decision and hence reviewable by appeal.

3. It is proper for a court to issue a permanent injunction to restrain the initiation of successive suits and proceedings to relitigate a cause of action--based on the same facts and with identical issues and parties--which has already been adjudicated with finality.

Carroll, Thorson & Anderson, Rolland L. Thorson, Minneapolis, Thomas Burke, St. Paul, of counsel, for appellant.

Cary, Welsh & Roseen and John F. Dulebohn, Minneapolis, for respondents.

MATSON, Justice.

Appeal from an order (dated October 1, 1956) granting defendants' motion for a permanent injunction restraining plaintiff from initiating any further proceedings in the case, and denying plaintiff's motion for an order vacating a former order of June 11, 1948, which former order had in turn denied a motion to vacate and set aside an order of November 28, 1942, approving a settlement of an infant's claim for damages for personal injuries.

This case, involving an attempt to renew a 1948 motion to set aside a 1942 settlement of a minor's injuries, arises out of the following facts: Plaintiff was injured when struck by a streetcar of the defendant company in 1942, which he (plaintiff) was two and one-half years of age. An action for damages was commenced in 1942, but upon the petition of the father and natural guardian, with the medical statement of the doctor attached thereto, the trial court on November 28, 1942, ordered that the settlement reached between the parties be approved and allowed and ordered that the defendants 'shall be finally absolved and acquitted from any further claims and demands by any person whomsoever, on account of the said accident and injuries to the said minor.' (Italics supplied.) The parties stipulated that the action, having been compromised and settled, 'shall be, and is hereby dismissed with prejudice' (italics supplied) and that, upon the filing of the stipulation by either party, the clerk of the court, or the court, is authorized and directed To discharge said cause of record.

Subsequently on May 7, 1948, the plaintiff moved to vacate the order of 1942 which approved the settlement, to set aside the settlement, to reinstate the action, and for leave to amend the complaint (of 1942). Plaintiff's motion of May 7, 1948, was accompanied by affidavits to support the claim that the settlement of 1942 did not take into consideration all the injuries plaintiff incurred from the accident. The attached affidavits were from the attorney representing plaintiff in 1942 and 1948, the father and natural guardian of the minor plaintiff, the original attending physician, and a physician specializing in neurology. These affidavits establish that by May 7, 1948, it was clear that plaintiff had developed epilepsy, probably post-traumatic epilepsy, as a result of the 1942 injuries. The 1942 medical statement (attached to the petition of the father and natural guardian) had concluded, 'There is no evidence of epilepsy At present time.' (Italics supplied.) This 1948 motion to vacate the 1942 order made by plaintiff was in all respects denied by an order of the trial court dated June 11, 1948. On June 16, 1948, on the exparte motion of defendant, a judgment of dismissal on the merits of the action was ordered pursuant to the 1942 stipulation of dismissal with prejudice.

In 1956 defendants were served with a notice of motion for an order granting leave to renew the motion of May 7, 1948, with an attached amended complaint dated July 24, 1956. The motion was grounded upon the claim that the settlement agreement and order approving same of 1942 was made under a mutual mistake of fact. Part of the evidence of this mistake included the affidavits attached to the 1948 motion as well as a new affidavit describing the physical condition of the plaintiff.

An examination of the record dispels any doubt that the present 1956 motion is made upon exactly the same facts and upon the same ground--namely, mutual mistake of fact--as the motion which was denied in 1948. In examination of the affidavits of 1948 by two physicians reveals that post-traumatic epilepsy of a permanent nature was discovered at that time.

An affidavit of Dr. James F. Corbett, the attending physician, dated April 5, 1948, states:

'* * * the outlook for the child is very grave and * * * he will continue to suffer from the convulsive disorder for the rest of his life. The post traumatic epilepsy has definitely retarded the child's mental development, and will continue to retard his mental development in the future * * *.'

The affidavit of Dr. Harold N. Noran, a specialist, dated April 6, 1948, states:

'* * * Affiant believes that the mental retardation and the rather severe personality inadequacy and the behavior problem are all related to the injury of the brain. * * * It is my opinion that the outlook is very grave in this case. I believe the child will become very difficult to manage. From the psychiatric standpoint I can see very little future for him. He may very well continue to suffer from the convulsive disorder for the rest of his life.'

The affidavits submitted in connection with plaintiff's motion of 1956 disclose that the plaintiff's present condition is essentially that found by the doctors in 1948 and alleged in the 1948 motion. The mutual mistake alleged in both motions is a mistake made in 1942. Nothing appears to suggest that injuries of a permanent nature have been discovered since 1948. Moreover, the affidavit of the plaintiff's present attorney reveals that in the latter part of 1948 a doctor at the Mayo Clinic at Rochester examined the plaintiff and predicted that his physical and mental impairment was permanent, and subsequent examinations in 1951 and 1955 established that his condition was 'essentially the same.' Upon these facts we cannot escape the conclusion that the 1948 motion was grounded upon exactly the same facts and grounds as plaintiff's present 1956 motion. It follows that the order appealed from in this proceeding is nothing more than a denial of the same relief that was initially denied by the court in 1948.

1. Defendants have moved for a dismissal of this appeal on the ground that the order appealed from, in so far as it denies plaintiff's motion to vacate the earlier order of June 11, 1948, is nonappealable. If the 1948 order which denied a vacation of the 1942 order approving the settlement was a final and appealable order, defendants' contention is correct. It is unquestionably the law that, where the right of appeal from an unvacated appealable order has expired, the right of appeal is not revived by a negative order on a second motion for the same relief. ¹

2. Clearly the 1942 approval-of-the-settlement order, by its very terms, terminated all liability of the defendants to the plaintiff for damages. That order, until vacated for cause, stood as a bar to any further action for recovery of damages resulting from minor's injuries. As a part of, and in recognition of, such final settlement, the parties stipulated in writing that the action 'shall be, and is hereby dismissed with prejudice.' (Italics supplied.)...