WOOD, J.
This appeal is from a judgment in favor of appellee against appellant in the sum of $3,000.
On the 4th day of April, 1918, the appellee filed in the circuit court of Sebastian county his complaint against the appellant, in which he alleged, in substance, that on August 28, 1914, he was a passenger on appellant's train from Joplin, Mo., to Ft. Smith, Ark.; that through the negligence of appellant the coach in which he was riding, with other cars, was derailed and overturned, by reason of which he was thrown with great force and violence to the opposite side of the car, and was mashed, cut, and bruised on his head, face, back and legs, thereby causing him great physical and nervous shock, by which he was rendered unconscious and sustained great and permanent injuries and caused great pain and suffering; that there had been tubercular bacilli in his system for some time prior thereto, but at the time he received the injuries he was in good health and the tubercular germs were encapsulated, innocuous, and inactive. That as a result of the bruises produced by his injuries his strength and vitality were greatly affected, and by reason of his injuries the tubercular germs became active, and tuberculosis developed in his spermatic cords and testicles; that on account of said tubercular condition a surgical operation had to be performed, resulting in the removal
of his testicles; that by reason of the injuries and the results thereof above described he had suffered great physical pain and mental anguish and humiliation, and had been damaged in the sum of $3,000, for which he prayed judgment; that prior to August 28, 1916, he brought suit in this court against appellant for the cause of action and injuries herein sued for, which suit was dismissed by nonsuit without prejudice on April 7, 1917, in the United States District Court, to which it was removed, and this suit is now brought within less than one year from date of said nonsuit and dismissal for the same cause of action. The clerk's certificate shows that summons was issued on the 4th day of April, 1918, and returned duly served on the appellant on the 9th day of April, 1918.
On the 27th day of April, 1918, appellant answered, denying the material allegations of the complaint as to negligence and as to the injuries alleged and the damages sustained. Paragraph 5 of the answer was as follows:
"The defendant alleges that the plaintiff in this case brought suit herein for the same alleged cause of action set forth in the complaint herein, and said cause was tried in the United States District Court, Western District of Arkansas, Ft. Smith Division, and all of the evidence in said cause was heard on both sides. At the conclusion of all of the evidence, and after all the evidence had been introduced, a motion was made by the defendant to direct a verdict in favor of the defendant, in so for as the plaintiff claimed any damages resulting from the development of tuberculosis in his body. After that motion had been argued by both sides, and after the court had taken the same under advisement, the court held that the motion must be sustained. Thereupon and thereafter, and not until then, the plaintiff asked leave to take a nonsuit. This defendant denies that said nonsuit was taken without prejudice, and alleges that the trial of said cause in said United States court was a final determination and final settlement of all matters between the plaintiff and the defendant, growing out of the same alleged cause of action, and the same facts, and that therefore the cause of action which the plaintiff now sets forth in his complaint is res adjudicata.
"Defendant further alleges that by reason of the suit in said United States court, in costs and necessary expenses, in defending said suit, the defendant expended therein the sum of $1,200. The defendant alleges that it is entitled to recover from plaintiff said sum of $1,200 as costs and expenses, incident to the trial of said cause in said United States court."
Paragraph 6 was in part as follows:
"The defendant alleges that the alleged cause of action of the plaintiff has long since been barred by the statute of limitations of three years of the state of Arkansas. In that connection the defendant alleges that the plaintiff, in the year 1917, brought a suit on this same cause of action in the state of Oklahoma in the district court within and for Le Flore county, state of Oklahoma, and thereafter dismissed that suit. The defendant denies that the plaintiff has a right to bring and maintain this suit, and alleges that the statute of limitations of the state of Arkansas has barred the same; and denies that the dismissal of the suit in the United States District Court gave the plaintiff the right to bring and maintain another suit in the state court within one year thereafter; but alleges that said alleged cause of action set forth in the complaint is fully and completely barred by the statute of limitations of the state of Arkansas.
"Premises considered, the defendant prays judgment against the plaintiff in the sum of $1,200.00, costs and expenses, expended in the United States District Court for the Western District of Arkansas, and also for all costs in this action laid out and expended."
On the 21st of June, 1918, the appellee filed a demurrer to appellant's plea of res adjudicata set up in the fifth and sixth paragraphs of its answer.
And, also, on the same day, the appellee filed the following motion:
"Comes the plaintiff, F. M. Akin, and moves the court to strike the following from paragraph 5 of defendant's answer: `Defendant further alleges that by reason of the suit in said United States court, in costs and necessary expenses in defending said suit, the defendant expended therein the sum of $1,200. The defendant alleges that it is entitled to recover from the plaintiff said sum of $1,200, as costs and expenses, incident to the trial of said case in said United States court.'
"And further to strike from its answer its prayer for judgment of any amount exceeding the costs taxed in the case in which judgment was rendered against plaintiff in said suit in said United States court for costs; defendant not being entitled to recover any other sum."
On June 26, 1918, the following order was entered of record:
"Comes defendant by its attorney, J. B. McDonough, and files answer herein; plaintiff's demurrer to the fifth and sixth paragraphs of defendant's answer heretofore filed on June 21, 1918, this day noted of record. Plaintiff's motion to strike certain language from paragraph 5 of defendant's answer heretofore filed on June 21, 1918, this day noted of record. And the court, being well and sufficiently advised in the premises, doth sustain said motion as to paragraph 5, and defendant excepts, and doth overrule said motion as to paragraph 6, and plaintiff excepts.
"Plaintiff moves to strike language between brackets in paragraph 6, which said motion is by the court sustained, and defendant excepts."
On the same day, June 26, 1918, an amended answer was filed, which omitted that part of paragraph 5 of the answer to which the above and foregoing motion to strike was directed.
Paragraphs 6 and 7 of the amended answer contained all that was embraced in paragraph 6 of the original answer except the prayer for judgment against the plaintiff in the sum of $1,200, costs and expenses in the United States District Court for the Western District of Arkansas.
The bill of exceptions shows that after the amended answer was filed the appellee renewed his demurrer and motion to strike paragraphs 5 and 6 from the answer. The court overruled the demurrer and motion to strike except as to certain language set forth in the bill of exceptions. The bill of exceptions further shows that —
"There was no ruling, one way or the other, on the motion to strike out a part of paragraph 5, as the same was omitted in the amended answer which was filed June 26, 1918."
The bill of exceptions, after setting out the amended answer, contains the following recital:
"Thereupon the plaintiff renewed and filed anew the demurrer above mentioned and motion to strike paragraphs 5 and 6 from said complaint above set forth. The court, treating said demurrer both as a demurrer and a motion to strike, sustained the same as to paragraph 5, and struck out said paragraph 5 from said complaint."
First. Appellant contends that the cause of action was barred by the statute of limitations as shown on the face of the complaint. True the complaint alleges that the injury was done on August 28, 1914, and the filing of the complaint and the issuing of the summons shows that this suit was instituted April 4, 1918, more than three years after the cause of action had accrued; but the complaint alleges that —
"Prior to August 28, 1916, plaintiff brought suit in this court against defendant for the said cause of action and injuries herein sued for, which suit was dismissed by nonsuit without prejudice on April 7, 1917, in the United States District Court, to which it was removed, and this suit is now brought within less than one year from the date of said nonsuit and dismissal for the same cause of action."
The appellant, in paragraph 5 of its amended answer, admitted that the appellee had brought this suit "for the same alleged cause of action set forth in the complaint herein," and that a nonsuit and dismissal was taken in the United States District Court, but denied, in paragraph 6, "that the dismissal of the suit in the United States District Court ga...
