Finnegan v. Missouri Pacific Railway Co.

• Decision Date: 02 July 1912
• Parties: MITCHELL FINNEGAN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

149 S.W. 612

244 Mo. 608

MITCHELL FINNEGAN v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant

Supreme Court of Missouri

July 2, 1912

244 Mo. 608 at 662.

Original Opinion of July 2, 1912, Reported at: 244 Mo. 608.

Motion overruled.

OPINION

ON MOTION FOR REHEARING.

PER CURIAM.

-- On motion for rehearing and to modify judgment.

It is suggested that to remand a cause for a new trial because of suggestions made of the existence of facts not fully disclosed in the record is an innovation. But appellant is in error in that contention. In Rutledge v. Railroad, 123 Mo. 121, the judgment was reversed in Division and again in Banc and yet, on motion to modify, it was reversed and remanded by a full bench because of suggestions in that motion of further pertinent proof on a crucial issue. [p. 140.] A hiatus in the proof likely to be supplied is good reason to remand. [Berning v. Medart, 56 Mo.App. 443, 449-450; Ordelheide v. Railroad, 80 Mo.App. 357 -- separate opinion of Briggs, J.] In Gatewood v. Hart, 58 Mo. 265, mark the reason given for reversing without remanding, viz.: "The judgment is reversed, and as it is evident that a new trial will be of no avail to the plaintiffs, their petition is dismissed, . . ." In Strottman v. Railroad, 228 Mo. 154, the Rutledge case is quoted from [p. 190] and its reasoning approved. Before leaving the Strottman case we refer to the doctrine established thereby to the effect that where all the facts are fully developed on a fair trial on the law, a reversal is res adjudicata and plaintiff may sue no more, hence the need of caution in refusing to remand where the facts are left dark by a hiatus in the proof. [Vide, Stid v. Railroad, 236 Mo. 407.]

Moreover, plaintiff had judgment below. Therefore, the laboring oar to reverse outright was with defendant. Now, a majority of the court was not won over to that view. So, while the views of the majority were divergent, yet no case was presented for calling in a special judge, hence the only practical solution was a reversal with a remanding. That course has a precedent, a late case in Banc, Phelan v. Granite Bituminous Paving Co., 227 Mo. 666, 127 S.W. 318.

The motion is overruled.