Fenton v. Thompson

• Citation: 176 S.W.2d 456
• Decision Date: 06 December 1943
• Docket Number: No. 38626.,38626.
• Parties: EDITH FENTON v. GUY A. THOMPSON, Trustee for MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.
• Court: United States State Supreme Court of Missouri

176 S.W.2d 456

EDITH FENTON v. GUY A. THOMPSON, Trustee for MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Appellant.

No. 38626.

Supreme Court of Missouri.

Division One, December 6, 1943.

Rehearing Denied, January 3, 1944.

Appeal from Johnson Circuit Court. — Hon. Leslie A. Bruce, Judge.

REVERSED AND REMANDED (with directions).

Leslie A. Welch, Ludwick Graves and Jacob Brown for appellant.

(1) The defendant (appellant here) is aggrieved and has the right of appeal from the judgment below. Sec. 1111, R.S. 1939; State ex rel. v. Homer, 150 Mo. App. 325, 130 S.W. 510; State ex rel. v. Newburg, 217 S.W. 605; Richards Brick Co. v. Wright, 231 Mo. App. 946, 82 S.W. (2d) 274; State ex rel. v. Hall, 246 S.W. 35, 296 Mo. 201; Scott v. Parkview R. & I. Co., 241 Mo. 112, 145 S.W. 48. (2) No motion for new trial or motion in arrest of judgment is necessary to procure a review on this appeal, because the errors assigned appear upon the face of the record. St. Louis v. Senter Comm. Co., 340 Mo. 663, 102 S.W. (2d) 103; Sec. 1229, R.S. 1939. (3) Errors patent on the face of the record will be reviewed on appeal though not objected to at the trial. Clevenger v. Odle, 226 Mo. App. 176, 49 S.W. (2d) 267; Arcadia Timber Co. v. Harris, 285 S.W. 428; Hecker v. Bleish, 3 S.W. (2d) 1008. (4) If the dismissal is without prejudice when it should have been on the merits, the judgment may be corrected on appeal. 27 C.J.S. 256; Railroad v. Seibold, 169 S.W. 610; Dodd v. Railway, 110 S.W. 588. (5) A dismissal by plaintiff after the cause has been finally submitted to the jury must be with prejudice to any right to further prosecute the cause of action. 27 C.J.S., pp. 174, 175, 255, 256; Dodd v. Railway, supra; Railroad v. Seibold, supra; Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954; Cummings v. K.C. Pub. Serv. Co., 334 Mo. 672, 66 S.W. (2d) 920; Mayer v. Old, 51 Mo. App. 214; Houston v. Thompson, 87 Mo. App. 63; Keane v. Strodtman, 18 S.W. (2d) 896, 323 Mo. 161; State ex rel. Winkley v. Welsch, 131 S.W. (2d) 364; St. Louis v. Coal Co., 137 S.W. (2d) 668; Suess v. Motz, 220 Mo. App. 32, 285 S.W. 775, should be disapproved.

Lawrence E. Goldman and Clay C. Rogers for respondent.

(1) This court does not have jurisdiction over this appeal because, on the face of the record, appellant is neither aggrieved nor is there a final judgment from which an appeal may be taken. The attempted appeal does not come within the terms and limitations of Sec. 1184, R.S. 1939. McClain v. Kansas City Bridge Co., 338 Mo. 7, 88 S.W. (2d) 1019; Kinealy v. Macklin, 67 Mo. 95; Thurman v. Smith, 39 S.W. (2d) 336, 327 Mo. 894; Hooper v. Wineland, 131 S.W. (2d) 232; W.A. Ross Const. Co. v. Chiles, 130 S.W. (2d) 524, 344 Mo. 1084; Chitwood v. Jones, 45 S.W. (2d) 893; McCormack v. Dunn, 106 S.W. (2d) 933, 232 Mo. App. 371; Cox v. Boyce, 54 S.W. 467, 152 Mo. 576 Simplex Paper Box Corp. v. Standard Corrugated Box Co., 97 S.W. (2d) 862, 231 Mo. 764; State ex rel. Kansas City Stock Yards Co. v. Trimble, 62 S.W. (2d) 473, 333 Mo. 5; Bonfils v. Martin's Food Service Co., 253 S.W. 952, 299 Mo. 500; Arcadia Timber Co. v. Evans, 264 S.W. 810. (2) No appeal allowable from voluntary nonsuit. Arp v. Rogers, 99 S.W. (2d) 103; International Harvester Co. v. McLaughlin, 52 S.W. (2d) 227, 227 Mo. App. 221; McCormack v. Dunn, 106 S.W. (2d) 933, 232 Mo. App. 371; Piatt v. Heim & Overly Realty Co., 117 S.W. (2d) 327, 342 Mo. 772; Stith v. J.J. Newberry Co., 79 S.W. (2d) 461, 336 Mo. 467. (3) If the order of dismissal was without authority, the case is still pending in the trial court. Cox v. Boyce, 54 S.W. 467, 152 Mo. 576; Simplex Paper Box Corp. v. Standard Corrugated Box Co., 97 S.W. (2d) 862, 231 Mo. 764. (4) This court is without power to enter judgment for defendant. U.S. Fidelity & Guar. Co. v. Calvin, 17 S.W. (2d) 675; Weiss v. Wanstrath, 149 S.W. (2d) 442; Mullen v. Lowden, 124 S.W. (2d) 1152, 344 Mo. 40; Security Bank of Elvins v. Natl. Surety Co., 62 S.W. (2d) 708, 333 Mo. 340; Piatt v. Heim & Overly Realty Co., 117 S.W. (2d) 327, 342 Mo. 772; Cooper v. Associated Laundries, 83 S.W. (2d) 591; Stith v. J.J. Newberry, 79 S.W. (2d) 461, 336 Mo. 467. State ex rel. Mills v. Allen, 128 S.W. (2d) 1040, 344 Mo. 743; Sayles v. Kansas City Structural Steel Co., 128 S.W. (2d) 1046, 344 Mo. 756; State ex rel. Am. Asphalt Corp. v. Trimble, 44 S.W. (2d) 1103, 329 Mo. 495; State ex rel. Motz v. Killoren, 271 S.W. 544; Suess v. Motz, 285 S.W. 775. (5) Jury, after being discharged from further consideration of the case, before verdict, cannot be legally reconvened. Suess v. Motz, 285 S.W. 775; Mattice v. Maryland Casualty Co., 5 Fed. (2d) 233.

DALTON, C.

Action at law for $50,000 damages for personal injuries alleged to have been sustained by plaintiff on account of the negligence of defendant. Plaintiff was injured on June 2, 1941, in a collision between an automobile she was driving and one of defendant's trains at a street crossing in Carthage, Jasper County. By answer defendant admitted his trusteeship and the operation of the train, but denied other allegations. He alleged that the collision resulted from specified negligence of plaintiff, which directly contributed to the collision and injuries, and prayed "to be discharged with his costs." Plaintiff filed a reply and the cause was duly tried and submitted to a jury. Before the jury had returned a verdict, the plaintiff took a voluntary nonsuit. The court entered a judgment of dismissal and defendant appealed.

The judgment appealed from recites that "after hearing the instructions of the court and argument of counsel in the case, the jury retires to consider its findings and afterwards, on the same day, and before the jury returns a verdict, comes the plaintiff, by her attorneys of record, and in open court files a written voluntary nonsuit in this cause. It is therefore ordered and adjudged by the Court that said cause be and the same is hereby dismissed; that the jury in this cause be and the same is hereby dismissed and excused, and that the defendant have and recover of and from the plaintiff all costs of this cause laid out and expended for which execution may issue."

Section 1111, R.S. 1939, Mo. R.S.A., Sec. 1111, provides: "The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury, or to the court sitting as a jury, or to the court, and not afterward."

Appellant assigns error as follows: (1) The court erred in failing to recite that the dismissal was with prejudice to plaintiff's right to further prosecute the cause, since the court was without power or jurisdiction, after final submission, to either a judgment of dismissal not barring a new action; (2) The court erred in entering the judgment, unless the judgment entered does bar the filing of a new action on the same cause.

[1] Do we have jurisdiction of this appeal? Appellant contends he is entitled to a dismissal with prejudice, barring a further prosecution of the cause, and in effect to a judgment for defendant on the merits. The legal effect of the dismissal as entered was to grant plaintiff the right to another trial and to leave her claim unadjudicated. The sole issue on this appeal is whether her claim for $50,000 was adjudicated or was not adjudicated by the proceedings in the trial court. If appellant's contention is sustained, the detriment to plaintiff will be the extinguishment of her claim for $50,000. See, Frank Schmidt Planing Mill Co. v. Mueller, 347 Mo. 466, 147 S.W. (2d) 670, 671. The amount in dispute exceeds $7500 and we have jurisdiction of the appeal. Sec. 2078, R.S. 1939, Mo. R.S.A., Sec. 2078; Constitution of Missouri, Art. VI, Amendment of 1884, Sec. 3; Johnston v. Ramming, 340 Mo. 311, 100 S.W. (2d) 466; Sofian v. Douglas, 324 Mo. 258, 23 S.W. (2d) 126; Carnes v. Thompson (Mo. Sup.), 48 S.W. (2d) 903, 904; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142.

[2] We are next confronted by respondent's motion to dismiss the appeal. Respondent contends (1) that there is no final judgment from which an appeal could be taken and this court is without jurisdiction to entertain the appeal; and (2) that, since the cause was dismissed and costs assessed against plaintiff, appellant is not "aggrieved" within the meaning of Sec. 1184, R.S. 1939, Mo. R.S.A., Sec. 1184.

Section 1184, supra, provides: "Any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constitution, may take his appeal ... from any final judgment in the case... ." Appellant contends that Sec. 1111, supra, under the facts shown, expressly prohibits dismissal without prejudice and in effect, provides that "any judgment rendered after final submission must be a final judgment"; that no judgment after final submission could fail to be one "materially affecting the merits of the action"; that, if the judgment does not on its face have the effect of a final judgment against plaintiff, "error was committed by the court" against appellant; and that, the judgment being erroneous and failing to give appellant all he was entitled to have under the statute, appellant may appeal to this court to secure a correct and proper judgment, particularly, since Sec. 1229, R.S. 1939, Mo. R.S.A., Sec. 1229, provides that "the supreme court ... in appeals ... shall examine the record and... reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law...." See, City of St. Louis v. Senter Commission Co., 340 Mo. 633, 102 S.W. (2d) 103; Kinealy v. Macklin, 67 Mo. 95, 98.

Respondent argues (1) that there is no final judgment, because the judgment of dismissal determined no issues; (2) that "the determination of the issues was wholly within the province of the jury alone"; and (3) that no verdict was reached and the issues are undetermined. Respondent, in effect,...