Laughlin v. Boatmen's Nat. Bank of St. Louis

• Decision Date: 04 September 1945
• Docket Number: 38986
• Citation: 189 S.W.2d 974,354 Mo. 467
• Parties: Marie H. Laughlin, Administratrix of the Estate of Randolph Laughlin, Deceased, v. The Boatmen's National Bank of St. Louis, a Corporation, Executor of the Estate of Hugh W. Thomasson, Deceased, Appellant
• Court: Missouri Supreme Court

189 S.W.2d 974

354 Mo. 467

Marie H. Laughlin, Administratrix of the Estate of Randolph Laughlin, Deceased, v. The Boatmen's National Bank of St. Louis, a Corporation, Executor of the Estate of Hugh W. Thomasson, Deceased, Appellant

No. 38986

Supreme Court of Missouri

September 4, 1945

Rehearing Denied November 5, 1945.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Reversed and remanded as to count one.

Franklin E. Reagan and Lehmann & Allen for appellant.

(1) The action of the circuit court in striking the defense of fraud and conspiracy from defendant's answer and not permitting it to file an amended answer restoring it was contrary to the terms of the mandate which remanded the case for a new trial on count 1 generally. Creson v. Harding, 126 S.W.2d 1179; State v. St. Louis & S.F.R. Co., 10 S.W.2d 918. (2) The doctrine of res adjudicata is in no event applicable to this case because upon the reversal and remand there was no final judgment, even as to the second and third counts: judgment as to these counts was suspended and final judgment on them was not entered until June 25, 1943, after the second trial. The doctrine only applies to final judgments. Gann v. Dearborn, 129 Mo.App. 425; Restatement of the Law of Judgments, sec. 41; 34 C.J. Judgments, sec. 1180, p. 766. (3) Res adjudicata is an affirmative defense and raises mixed questions of law and fact and does not go to the jurisdiction of the court and therefore it was error to strike out defendant's plea of fraud and conspiracy on the ground of res adjudicata. Overcash v. Yellow Transit Co., 180 S.W.2d 678; Squaw Creek Drain. District v. Turney, 235 Mo. 81. (4) If the court grounded his order striking out all of the allegations of the answer setting up fraud and conspiracy upon the grounds a, b or c of plaintiff's motion to strike it was error. Schneider v. Mo. Pac. R. Co., 117 Mo.App. 129; Lindsley v. Caldwell, 234 Mo. 507. (5) Plaintiff, by replying to his answer and going to trial thereon, waived any defect in the form of the answer. State ex rel. v. Trimble, 18 S.W.2d 4. (6) The trial court should have sustained defendant's demurrer to the plaintiff's second amended petition raising the question of the Statute of Nonclaim and the Statute of Limitations as to count one, or should have sustained defendant's demurrer to the evidence as to that count upon those grounds. Count one of the second amended petition was barred by Section 182, R.S. 1939, and Sec. 1014, R.S. 1939. Sandwich Mfg. Co. v. Bogie, 317 Mo. 972, 298 S.W. 56; Arpe v. Mesker Bros. Iron Co., 19 S.W.2d 668; Sims v. Field, 24 Mo.App. 557; Wasson v. Boland, 136 Mo.App. 622; 49 C.J., sec. 420, p. 342; Brennan v. McMenamy, 78 Mo.App. 122; Wehringer v. Ahlemeyer, 23 Mo.App. 277; First Natl. Bank v. Rhodes Produce Co., 37 S.W.2d 986; Arkla Lumber Co. v. Quellnulz Lbr. Co., 252 S.W. 961; Toledo Edison Co. v. McMacken, 103 F.2d 72. (7) The court erred in giving respondent's Instruction 3. This instruction withdrew the issue of conspiracy for any purposes whatsoever in the case; even as to the issue of undivided fidelity. Messer v. Gentry, 290 S.W. 1014. (8) The action of the trial court in permitting the plaintiff to amend her petition to demand interest and in computing the interest and adding it to the verdict after the discharge of the jury was a violation of Section 28 of Article II of the Constitution of Missouri and a violation of Section 1124 of the Revised Statutes of Missouri 1939. Meffert v. Lawson, 287 S.W. 610; Newton v. R.R., 168 Mo.App. 199; Howell v. Bierman, 22 S.W.2d 854; Dyer v. Combs, 65 Mo.App. 148. (9) The trial court, if he had the power, abused his discretion by permitting the plaintiff to amend her petition after verdict for the full amount so as to ask for interest and by computing this interest on the verdict and adding it to the verdict and including it in the judgment. R.S. 1939, secs. 971 and 988; Hannan-Hickey Bros. Const. Co. v. Chicago, Q. & O. Ry. Co., 226 S.W. 881; Rauter Claus & Co., 9 S.W.2d 655; Winchell, Exr., v. Sanger, 73 Conn. 399, 66 L.R.A. 935; Brennan v. McMenamy, 78 Mo.App. 122; Wehringer v. Ahlemeyer, 23 Mo.App. 277; Boughton v. St. Louis, I.M. & So. Ry. Co., 25 Mo.App. 10. (10) The judgment of the trial court having been reversed and annulled and the mandate of this court being silent as to interest on the amount of the verdicts under count 2 and count 3, the entry of the judgment on counts 2 and 3 retroactively as of November 2, 1939, was erroneous. Secs. 1243, 3228, R.S. 1939; Scullin v. Wabash Railroad Co., 192 Mo. 6; Hoelzel v. Chicago, R.I. & P. Ry. Co., 102 S.W.2d 577.

Lon Hocker, Jr., Frank Y. Gladney and Lon O. Hocker for respondent.

(1) The defense of fraud and conspiracy has become adjudicated by the former judgment and the filing of defendant's answer raising this point would have been without effect. Stockham v. Leach, 238 S.W. 853; McGinnis v. Railway, 200 Mo. 347; Hoelzel v. Railway Co., 337 Mo. 61; Southern Pacific Railroad v. United States, 168 U.S. 1; Case v. Sipes, 280 Mo. 110; Rechow v. Bankers Life, 335 Mo. 668; State ex rel. v. Missouri Pub. Serv. Corp., 351 Mo. 961; Re Guardianship of Angela McMenamy, 307 Mo. 98. (2) The judgments on Counts 2 and 3 sufficiently adjudicated the issues as to make them res adjudicata. Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562; same case, second appeal, 331 Mo. 1115, 57 S.W.2d 115. (3) There is no error in striking out defendant's plea. Bushman v. Barlow, 321 Mo. 1052; Collins v. Leahy, 327 Mo. 133. (4) Defendant sustained no prejudice by striking out answer. Ward v. Dry Goods Co., 248 Mo. 348; First Natl. Bank v. Fulton, 28 S.W.2d 368. (5) Defendant is estopped by waiver and not plaintiff. State ex rel. v. Trimble, 18 S.W.2d 4. (6) The Supreme Court ignored the point made under this head of nonclaim and limitations and necessarily disallowed it. The defendant by going to trial waived the point and defendant's petitions are not in the pleadings. Arnold v. Alton Railroad Co., 348 Mo. 516; Liggett v. Kimball, 341 Mo. 223. (7) Plaintiff's Instruction 1 was proper and admitted no essential fact. Bowman v. Rahmoeller, 331 Mo. 868; McDonald v. Kansas City Gas Co., 332 Mo. 356; Jenkins v. Life Ins. Co., 334 Mo. 941; State ex rel. v. Shain, 344 Mo. 57; Evans v. Railway Co., 345 Mo. 147; Griffith v. Meats Products Co., 347 Mo. 28. (8) This instruction was proper on the theory of res adjudicata. Case v. Sipes, 280 Mo. 110. (9) The court properly exercised its discretion in permitting an amendment of the petition to pray for interest, and adding interest to the verdict. Secs. 971, 3226, R.S. 1939; Dyer v. Harper, 336 Mo. 52; Ryans v. Hospes, 167 Mo. 342; Mecartney v. Trust Co., 274 Mo. 224. (10) Plaintiff was entitled to interest from the date of the original judgments under Counts 2 and 3.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

On this appeal Marie H. Laughlin, as the administratrix of the estate of Randolph Laughlin, has recovered a judgment in the principal sum of $ 22,350.00 and $ 12,627.75 interest against the Boatmen's National Bank, the executor of the estate of Hugh W. Thomasson. The suit is for legal services in defending Thomasson in a lunacy proceeding. When the cause was formerly here we affirmed the judgment as to count two for advancements to Thomasson and count three for his funeral expenses but reversed and remanded the cause as to count one for legal services because the trial court failed to submit to the jury whether Laughlin, as a lawyer, had served his client with undivided fidelity, -- in addition to and as well as the separate issue of whether he was a party to a conspiracy to defraud Thomasson. Laughlin v. Boatmen's Nat. Bank of St. Louis (Mo.), 163 S.W.2d 761.

After the cause was remanded the administratrix took the position that our affirmance of the judgment as to counts two and three was res adjudicata of the issue of fraud and conspiracy and that, therefore, the executor was not entitled to a retrial of that issue on count one but, as to that count, was confined solely to the issue of Laughlin's undivided fidelity. Accordingly she filed a motion to strike from the executor's answer all allegations relating to Laughlin's being a party to a fraudulent conspiracy and the trial court sustained the motion. In addition, the administratrix offered and the trial court gave an instruction which told the jury "that Randolph Laughlin was not engaged with Grace Caroline, Wilfred Jones, R. Shad Bennett and Conrad E. Frederich, or any one of them, in a conspiracy to defraud Hugh W. Thomasson, and you shall not find in favor of the defendant on the theory that he was so engaged." Furthermore, the trial court excluded certain evidence which had formerly been admitted on the question of fraud and conspiracy but which the court thought irrelevant on the question of undivided fidelity. The executor urges that the court erred in its rulings in these respects and, furthermore, contends that our former ruling as to counts two and three was and could not be res adjudicata because final judgment as to those counts was suspended until final disposition of the whole cause on all counts.

Whether final judgment was suspended on counts two and three in so far as res adjudicata is concerned we need not decide because the trial court was clearly in error in not trying count one anew, on the merits and on all issues, as though it were being tried for the first time, as our original opinion remanding the cause for a new trial contemplated. Our former opinion did not specifically remand the cause for the retrial of a single issue only as was the case in Denny v Guyton, 327 Mo. 1030, 40 S.W.2d 562 and Hoelzel v. C., R.I. & P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126. Neither...