Illinois Cent. R. Co. v. Seibold

• Decision Date: 07 October 1914
• Citation: 169 S.W. 610,160 Ky. 139
• Parties: ILLINOIS CENT. R. CO. v. SEIBOLD.
• Court: Kentucky Court of Appeals

169 S.W. 610

160 Ky. 139

ILLINOIS CENT. R. CO. v. SEIBOLD.

Court of Appeals of Kentucky.

October 7, 1914

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Ernest Seibold against the Illinois Central Railroad Company and another. From an order permitting plaintiff to dismiss without prejudice, the defendant named appeals. Reversed, and cause remanded, with directions to dismiss petition.

Trabue Doolan & Cox, of Louisville, Blewett Lee and R. V. Fletcher both of Chicago, Ill., for appellant.

S. L. Trusty, Chas. B. Seymour, and Popham, Trusty & Roose, all of Louisville, for appellee.

CLAY C.

In December, 1911, plaintiff, Ernest Seibold, a car repairer, was struck and injured by a wrench which he charged was negligently permitted to fall upon his head and shoulders by another employé of the defendant on another train. Subsequently he amended his petition and made the other employé a party defendant, and also alleged that the defendants were engaged, and he himself was employed, in interstate commerce at the time of the injury. A jury was impaneled and evidence heard, and what thereafter took place is best shown by the following order entered by the trial court:

"At the conclusion of the testimony for the plaintiff, defendant, Illinois Central Railroad Company, by counsel, moved the court to peremptorily instruct the jury to find a verdict for it, to which the plaintiff objects. The court, being advised, ordered said motion be and is sustained, to which the plaintiff excepts.

At the conclusion of the evidence for the plaintiff, the defendant, Illinois Central Railroad Company, moved the court to instruct the jury peremptorily to find a verdict in its behalf, to which motion plaintiff objected and after argument, and while said motion was under consideration, the plaintiff moved the court to withdraw and dismiss without prejudice so much of plaintiff's action as sought a recovery under the federal Employers' Liability Statute (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), to which withdrawal and dismissal without prejudice the defendant, Illinois Central Railroad Company, objected, and the court overruled its objections and sustained plaintiff's said motion, and so much of said action as seeks recovery under the federal statute against the defendant, Illinois Central Railroad Company, is now withdrawn and dismissed, without prejudice to a future action, to which order of the court the defendant, Illinois Central Railroad Company, excepts.

Thereupon the court, being advised, sustained defendant's motion to peremptorily instruct the jury to find a verdict for the defendant, Illinois Central Railroad Company, upon the issues remaining in the case. and instructed the jury accordingly in these words: 'After a careful consideration of the arguments advanced by counsel, on the state of facts as made by the plaintiff, in his proof here, the court is satisfied that the plaintiff has not sustained the burden which the law places upon him to show certain facts. So much of plaintiff's action as asserts his right of recovery under the federal statute has been withdrawn by the plaintiff. As the amendment was filed which asserted that right, and which brought in Mr. Ben Flood as a defendant in this case, was filed more than a year after the time the injuries complained of were received, and as the plaintiff has undertaken to withdraw from the consideration of the court and the jury his rights under that statute, it necessarily follows that Mr. Flood, who could not be sued, except within a year's time, must go out of the case, and the court therefore instructs you peremptorily, for that reason, to find in his favor. As to the right of the plaintiff to recover under the state law, the court, after careful consideration, is satisfied that the plaintiff has not sustained the burden placed upon him by law, and it is my duty, in view of that fact, to instruct you peremptorily also to find in favor of the defendant, the Illinois Central Railroad Company.'

To which the plaintiff excepted, and after the verdict had been written out by the clerk in these words, 'We, the jury, under peremptory instructions, from the court, find for the defendants, Illinois Central Railroad Company and Ben Flood,' and while it was being signed by Herman Ohmann as foreman, and as the clerk was waiting for the foreman's signature to be completed, the plaintiff moved the court to dismiss the action without prejudice as to the issues submitted to the jury under above instructions, to which motion the defendant, Illinois Central Railroad Company, objected, and it moved the court to receive the verdict and to dismiss said action absolutely, to which plaintiff objected, and the court overruled said motion of defendant and sustained the motion of plaintiff to dismiss said action without prejudice as to the issues submitted to the jury, to all of which the defendant, Illinois Central Railroad Company, objected and excepted, in so far as its motions were overruled and plaintiff's motions were sustained, and the action was dismissed without prejudice as above.

The court, on motion of defendant, Illinois Central Railroad Company, now enters upon the record fully the matters above set forth for use on appeal.

Judgment.

It is therefore now adjudged, in accordance with the motions aforesaid by the plaintiff, that his action be dismissed without prejudice, and that the defendants, Illinois Central Railroad Company and Ben Flood, each separately recover herein against the plaintiff, Ernest Seibold, its or his costs herein expended, and may have execution therefor.

To so much of the order and judgment herein entered as denies the motion of the Illinois Central Railroad Company to receive the verdict of the jury, and to dismiss said action absolutely, and as provides for a dismissal of said action without prejudice, upon the motion of the plaintiff, the Illinois Central Railroad Company objects and excepts, and it prays an appeal to the Court of Appeals, which is granted."

Section 371, Civil Code, provides:

"An action, or any cause of action, may be dismissed without prejudice to a future action--(1) By the plaintiff, before the final submission of the case to the jury, or to the court, if the trial be by the court. (2) By the court--(a) If the plaintiff fail to appear at the trial. (b) For the want of necessary parties. (c) On the application of a defendant, if there be others whom the plaintiff fails to prosecute with diligence. (d) For disobedience by the plaintiff of an order concerning the proceedings in the action. In all other cases, upon the trial of the action, the decision must be

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