Kansas City Southern Railway Company v. Akin

• Decision Date: 03 March 1919
• Docket Number: 129
• Citation: 210 S.W. 350,138 Ark. 10
• Parties: KANSAS CITY SOUTHERN RAILWAY COMPANY v. AKIN
• Court: Arkansas Supreme Court

210 S.W. 350

138 Ark. 10

KANSAS CITY SOUTHERN RAILWAY COMPANY v. AKIN

No. 129

Supreme Court of Arkansas

March 3, 1919

Appeal from Sebastian Circuit Court, Fort Smith District; Paul Little, Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant.

1. The cause of action was barred by the statute of limitations.

The complaint was filed April 4, 1918. It shows on its face that the injury was done on August 28, 1914. The file mark on the complaint is a part of the record and conclusive. 41 Ark. 53. The answer and hence the record shows that the suit was brought more than three years after the cause of action accrued and that the bar of the statute was claimed. The complaint showed that the action was barred and defendant could raise that question by demurrer because no cause of action was stated. 108 Ark. 219; 112 Id. 572. The filing of an answer does not waive the demurrer. Kirby's Digest, §§ 6096, 6119; 65 Ark. 495; 67 Id 184; 64 Id. 510; 44 Id. 205; 8 Id 74; 49 Id. 277. The beginning of the introduction of the evidence is a "stage of the proceedings" and hence defendant had the right to object to the introduction of any evidence on the ground that the action was completely barred. The court erred in admitting any evidence. 41 P. 400; 116 Id. 782, 944.

Unless there exists some reason to stop or toll the operation of the statute of limitations plaintiff is barred as a matter of law. Kirby's Digest, § 5064. The statute applicable to torts and the bar is three years. 83 Ark. 6; 71 Id. 71. Unless plaintiff shows that the statute of limitations was suspended as to him, the judgment below must be reversed. He can not claim any exception to the running of the statute unless that claim is founded on some act of the Legislature. The Legislature has made no such exception and the courts can make none. 6 Ark. 14; 13 Id. 291; 16 Id. 671; 24 Id. 487. Statutes of limitation are favorably regarded by the courts. 6 Id. 513. Plaintiff attempts to allege facts relieving him of the bar i. e., that he brought suit in the circuit court of the Fort Smith District which was removed to the United States District Court, that a nonsuit was taken without prejudice. But the allegation is not sufficient to toll the statute. It is not alleged that the United States court had jurisdiction and it had none unless the controversy exceeds $ 3,000 exclusive of interest. 4 Fed. Stat. Ann., p. 842. Besides there is no allegation of diversity of citizenship and the fact does not appear of record. The jurisdictional facts must be alleged and shown. A State court can not take judicial knowledge of the contents of pleadings in other or the same cases in its own record. 15 Ark. 84. The State court could not take knowledge of the contents of the pleadings in the Federal court and the objection to the introduction of any evidence was well taken because the cause of action was shown to be barred as matter of law. The burden was on the plaintiff to rebut the defense of the bar of the statute. 69 Ark. 311. But if mistaken on this point, plaintiff must fail for lack of proof.

2. Plaintiff introduced no proof to sustain his allegation of nonsuit in the United States court. There is no evidence that this same suit was pending in the United States court and was dismissed without prejudice. The exhibit of a record entry does not prove itself or the fact. If the Arkansas statute giving plaintiff the right to bring a new suit within one year applies to a nonsuit taken in the Federal court, before plaintiff can avail himself of it he must prove the allegations of his complaint, as the allegations do not prove themselves. He must prove that it was the same cause of action. 69 Ark. 311. The burden was on him to prove this by a duly authenticated copy of the record. The complaint is the only evidence. 156 P. 955; 54 N.E. 200. The identity of the suits must be shown by the record and not aliunde. 79 Ill.App. 22.

Paragraph 5 of the answer did set up the fact that suit has been brought in the Federal court, but that part was stricken out on motion of plaintiff, and he is precluded from claiming any benefit of it. 64 Ark. 213. In addition he did not offer this answer in testimony. Pleadings are not evidence unless offered in testimony. 102 Ark. 640. The answer was amended by the court on motion of plaintiff and the original can not be evidence. 33 Ark. 251; 58 Id. 490. State laws have no power over procedure in the Federal courts. They do not control Federal court procedure. Kirby's Digest, § 5083, only applies to Arkansas courts. The law of the forum governs. 99 Ark. 105; see also 3 Id. 409. A nonsuit in a Federal court is not governed by the Arkansas statutes. 62 A.D. 56; 4 Fed. C. No. 1960; 63 S.E. 135; 120 Ga. 104; 110 Id. 223; see also 246 F. 236; 247 Id. 478; 232 Id. 288; 236 Id. 419; 90 S.E. 1040; 67 Id. 668; 97 Ga. 722; 122 Id. 608.

4. Plaintiff can not avail himself of the nonsuit because there was some time left of the three years after the nonsuit was taken. There is no legal proof as to when the nonsuit was taken. It is alleged it was on April 7, 1917. The tort was committed August 2, 1914, and hence the three years statute of limitations did not expire until August 27, 1918. Therefore according to the allegations at the time the nonsuit was taken the three years statute had not barred the cause of action. The clear purpose of meaning of these limitation statutes saving the right to sue after a nonsuit is to preserve the right of suing in cases where the statute of limitations has expired before the nonsuit and while the case was pending. The legislative purpose was to give parties the right to bring suit over again when they had brought it within the period and the period had expired and a nonsuit was suffered thereafter. If plaintiff still has time to sue after the nonsuit there is no reason for applying the statute.

If the action is not barred and still in existence and plaintiff still has time to bring suit after his nonsuit the reason for the law does not exist. When the reason for a law ceases, the rule of law ceases to exist. 10 Ark. 184; 77 Id 535; 23 Id. 684; 11 Id. 28; 93 Id. 215; 102 Id. 65; 91 Ill.App. 20. The cases in 93 Ark. 215; 102 Id. 65, and 107 Id. 353 do not apply here, and the point here has not been decided by this court. See 171 P. 928; 47 Ark. 170.

5. Plaintiff did not bring this second suit within the year named in the saving clause. The summons and return are parts of the record. The burden was on plaintiff to show by the record that this second action was brought within the year. 47 Ark. 479; 27 Id. 343; 103 Id. 601. If the record fails to show that the summons was placed in the sheriff's hands on or before April 7, then plaintiff fails and no evidence could be introduced and a directed verdict for defendant was required. The new complaint was filed April 4, 1918, and summons issued on that day which was served on the local agent of appellant on the second day after the year had expired. There is no showing when the summons was placed in the sheriff's hands unless the date of the service is the day it came to him. The law requires the sheriff to endorse thereon the time when a writ comes to his hands (Kirby's Digest, §§ 6883, 7815-16). This essential fact can not be shown except by the record. The statute must be observed and an oral return is not sufficient. 60 Ark. 182. The object of the return is to show the manner and time of the service. Kirby's Dig., § 6043. Therefore on the face of the return the service was after the year had expired and the burden was on plaintiff to show affirmatively by the record that the writ was placed in the sheriff's hands before the year expired, so as to show that the suit was brought within the year. 47 Ark. 479. It was plaintiff's duty to see that the sheriff did his duty. Kirby's Digest, § 6040.

The presumption that public officers have done their duty does not supply proof of a substantive fact. 92 U.S. 281; 2 Ark. 26; 3 Id. 505; 95 Id. 188; 145 F. 273; 99 Mass. 605; 100 U.S. 693; 200 Id. 480; 45 N.E. 463; 68 P. 58.

The mere signing and sealing a summons by the clerk is not sufficient. It must be delivered to the sheriff or some one for him. 62 Ark. 401. From the above it is clear that plaintiff did not commence his second action until two days after the year expired and he is barred.

6. The evidence is insufficient to show that the injury was the proximate cause of the "flaring up" or development of tubercular germs in plaintiff's body. 108 Ark. 14, relied on by plaintiff below, will not support the judgment here. This case is more like 119 Ark. 349. The case here rests much on conjecture. 116 Ark. 36. No damages can be recovered for injuries due to tuberculosis. The court below refused to take that question from the jury and erred in so doing. Outside the damage from tuberculosis plaintiff's damages were very small. It was error to refuse to instruct that plaintiff could not recover for damages caused by tuberculosis and it was error to refuse defendant's requests withdrawing this question from the jury. The evidence on that question was insufficient to take that issue to the jury. 122 Ark. 445; 99 Id. 69; 119 Id. 349.

There was error in allowing the hypothetical questions asked and the testimony given in response thereto over the objections of defendant. 108 Ark. 14. The law does not allow mere conjectures or inferences to go to a jury as evidence. 116 Ark. 82. This court takes judicial knowledge of the circulation of the blood. 16 Cyc. 856; 79 Ark. 608. Blood does not follow gravity down the circulating medium, hence it can not be that tubercular bacilli come down the circulating medium to the sheath and into the testicle. The positive evidence of Doctor Foster, who is plaintiff's...