Ginocchio v. Illinois Cent. R. Co.
| Decision Date | 30 March 1915 |
| Docket Number | No. 17268.,17268. |
| Citation | 175 S.W. 196,264 Mo. 516 |
| Parties | GINOCCHIO v. ILLINOIS CENT. R. CO. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; W.B. Homer, Judge.
Action by Domenico Ginocchio, administrator of Francisco Paolo Finazzo, against the Illinois Central Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Joseph Wheless, of St. Louis, for appellant. Watts, Gentry & Lee, of St. Louis (John G. Drennan, of Chicago, Ill., of counsel), for respondent.
Action by plaintiff, in his representative capacity as administrator, for the death of his decedent. The history of the case runs thus: Plaintiff, as the administrator of Francisco Paolo Finazzo, sued defendant for the alleged negligent killing of decedent, and had judgment in the circuit court of the city of St. Louis. Defendant appealed to the St. Louis Court of Appeals, wherein the judgment of the circuit court was reversed outright. Ginocchio, Adm'r, etc., v. Illinois Central Railroad Co., 155 Mo. App. 163, 134 S. W. 129. Thereafter plaintiff brought this action, which is the second suit for the identical injury growing out of the identical cause of action set out in the first suit. Plaintiff, among other things set out in his petition herein, pleaded in the instant action this:
"And plaintiff avers that heretofore, on the 16th day of January, 1908, and within one year after the cause of action herein stated accrued, he filed his suit as administrator of the deceased, Finazzo, against the defendant corporation in this court, and upon the trial of the said action on the 26th day of February, 1909. the plaintiff duly recovered a verdict and judgment against the defendant corporation in the sum of $5,000; that defendant in due course appealed from the said judgment to the St. Louis Court of Appeals, and the said Court of Appeals, on the 7th day of February, 1911, reversed the said judgment; for which reason the plaintiff now and within one year after the said judgment of reversal files this, his other suit, as permitted in the statute in such case made and provided."
Because of the above allegation, since it thereby appeared that this was a second action upon the same facts following an outright reversal, the trial court sustained a demurrer to the petition of plaintiff, and he appealed.
I. There is but one single question in the case; that is: May a second action be brought for the identical tort upon the identical facts involved in a cause, which cause was heard by an appellate court, and by that court reversed outright?
This precise point was up in this court in the case of Strottman v. Railroad, 228 Mo. 154, 128 S. W. 187, 30 L. R. A. (N. S.) 377, and there ruled in such wise as to be absolutely adverse to the contentions of appellant here. Appellant, who was plaintiff below, urges with much of ability and some fervency, however, that there is a distinction to be drawn between the case at bar and the Strottman Case. We have carefully examined the record before us, the cases cited to us, and the position of learned counsel, and are not able to appreciate this distinction ; no more was the learned trial judge whose memorandum upon the point in issue is pertinent and persuasive, even though it does not conclude us. The learned trial court, touching this alleged distinction, said:
In the Strottman Case, supra, at page 186 of 228 Mo., at page 193 of 128 S. W. (30 L. R. A. [N. S.] 377), it was said:
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