O'Leary v. Illinois Terminal R. Co.

• Decision Date: 11 March 1957
• Docket Number: No. 45557,45557
• Citation: 299 S.W.2d 873
• Parties: Judith O'LEARY, a Minor, by Margaret O'Leary, Respondent, v. ILLINOIS TERMINAL RAILROAD COMPANY, a Corporation, Appellant.
• Court: Missouri Supreme Court

Page 873

299 S.W.2d 873

Judith O'LEARY, a Minor, by Margaret O'Leary, Respondent, v. ILLINOIS TERMINAL RAILROAD COMPANY, a Corporation, Appellant.

No. 45557.

Supreme Court of Missouri, En Banc.

March 11, 1957.

Ely, Ely & Voorhees, Robert C. Ely, Alphonso H. Voorhees, St. Louis, for appellant.

Glennon T. Moran, St. Louis, for respondent, George J. Moran, Granite City, Ill., of counsel.

HOLLINGSWORTH, Judge.

Plaintiff recovered judgment against defendant in the Circuit Court of the City of St. Louis for the sum of $7,000 for personal injuries sustained when an automobile in which she was a passenger was struck by defendant's electric railway train in Granite City, Illinois. Upon appeal by defendant to the St. Louis Court of Appeals, the several assignments of error there asserted were decided adversely to defendant and the judgment of the trial court was affirmed. 288 S.W.2d 393. Among the assignments considered by the Court of Appeals was defendant's contention that the trial court erred in giving plaintiff's Instruction No. 10, which casts upon defendant the burden of proving its affirmatively pleaded defense of contributory negligence on the part of plaintiff in bar of any right of recovery she otherwise might have.

In determining that question, the Court of Appeals took judicial notice that the law of Illinois made it incumbent upon plaintiff to allege and prove that she was in the exercise of ordinary care for her own safety at the time of the collision. See Hanson v. Trust Co. of Chicago, 380 Ill. 194, 43 N.E.2d 931, 933; Prater v. Buell, 336 Ill.App. 533, 84 N.E.2d 676, 678; Newell v. Cleveland, C., C. & St. L. Ry. Co., 261 Ill. 505, 104 N.E. 223, 224. It then undertook to determine 'whether the Illinois requirement that the plaintiff allege and prove that she was in the exercise of due care was a substantive and essential element of her right to recover or was merely a procedural matter to be determined by the law of Missouri.' At that point, the court was confronted with a situation which it aptly described as 'difficult and delicate'. It discovered that on December 13, 1954, Division One of this Court, after a somewhat extended study of whether the Illinois requirement was substantive or procedural, had held that certain former decisions of this court, beginning with the case of Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053, were erroneous in holding that the Illinois requirement was procedural rather than substantive, and that said cases should be and were overruled. See Redick v. M. B. Thomas Auto Sales, Inc., 364 Mo. 1174, 273 S.W.2d 228, 232-235. The Court of Appeals also discovered that shortly prior to the decision in the Redick case this Court, en Banc, in the case of Sanders v. Illinois Central Railroad Co., 364 Mo. 1010, 270 S.W.2d 731, 735, had said:

'While neither party makes any suggestion that the law of Illinois has either been invoked or must be applied, the question of the submission of the defense of contributory negligence, being a matter of procedure, would in any event be governed by the law of Missouri. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Williams v. East St. Louis Ry. Co., Mo.App., 100 S.W.2d 51.'

It was, of course, apparent that the pronouncement made in the Sanders case, supra, could not be overruled by the divisional opinion in the Redick case. The Court of Appeals of its own motion, therefore, transferred the case here to the end 'that the law on the subject should be re-examined'. The parties have briefed the question anew. The importance of the question impels us to give it first consideration before discussion of the other assignments of error asserted by defendant in this court.

Plaintiff insists that the overwhelming weight of authority is that the burden of proof is a rule of evidence and as such is procedural, not substantive, citing Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279, ¹ cases from several states ², and several Missouri cases which the Redick case had purported to overrule and to which reference will be hereinafter made. Plaintiff has also invoked the rule of stare decisis and insists that 'under this time-honored rule this court should refrain from disturbing the existing law until an authoritative court of Illinois should declare that the burden of proof as to contributory negligence is substantive and not procedural, and thereby demonstrate that the present law is 'clearly erroneous or manifestly wrong."

Defendant has adopted the reasoning of and the authorities upon which the Redick case was decided, and in addition thereto has cited Francis v. Humphrey, D.C.Ill. 1938, 25 F.Supp. 1, 5, wherein that court said:

'My conclusion is that the absence of contributory negligence is made an essential part of plaintiff's cause of action by the substantive law of Illinois and this substantive rule, declared by the courts of Illinois, must be recognized and followed by the federal courts. Being substantive law neither the Congress nor the Supreme Court has power to declare it to be other than the courts of Illinois have established it nor to undermine or destroy it by procedural requirements. Erie R. Co. v. Tompkins, supra [304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188].'

Plaintiff cites the case of Sampson v. Channel, 1 Cir., 110 F.2d 754, 757, 128 A.L.R. 394, wherein that court said that if the Federal Rules of Civil Procedure, 28 U.S.C.A. could be construed as imposing upon defendant the burden of proof of contributory negligence, they would be binding 'despite the contrary intimation in Francis v. Humphrey', supra. (Emphasis ours.) However, that court then went on to say, 110 F.2d loc. cit. 757:

'Rule 8(c) speaks of contributory negligence as an 'affirmative defense', a phrase implying that the burden of proof is on the defendant. Yet the only rule laid down is one of pleading; the defendant must affirmatively plead contributory negligence. It is not inconsistent to require the defendant to plead contributory negligence if he wants to raise the issue, and yet to put the burden of proof on the plaintiff if the issue is raised. Since Rule 8(c) contains no prescription as to burden of proof, we must look elsewhere for the answer.'

Clearly, the italicized comment above set forth does not aid plaintiff. See also Fort Dodge Hotel Co. of Fort Dodge v. Bartelt, 8 Cir., 119 F.2d 253, 258, quoted infra.

Plaintiff also cites certain language of the writer of the opinion in the Sampson case, supra, as set forth in footnote 2, page 755, wherein a portion of Section 595 of American Law Institute Restatement of Conflict of Laws on this subject (quoted with approval in the Redick case) is criticised. In reply defendant cites a further statement in the same footnote, wherein it is said: 'Nevertheless, because of the influence which the incidence of burden of proof often has on the outcome of litigation, the better view would seem to be that in these conflict of laws cases, the forum should apply the rule of the locus delicti as to burden of proof.'

We have carefully considered the cases and authorities cited by both of the parties in the instant case and the cases and authorities upon which the Redick case was decided. Unquestionably, there is a conflict of authority upon this subject. Oftentimes, however, a careful analysis of the precise question presented in these cases reveals that the conflict is more seeming than real. The rule applied in the more closely reasoned cases is thus stated in 11 Am.Jur., Conflict of Laws, Sec. 203, p. 523:

'Even in those jurisdictions which recognize that ordinarily matters concerning presumptions of evidence and burden of proof relate to the remedy, where the remedy prescribed by that rule of the lex loci, which attaches the burden of proof to one of the parties, is so inseparably connected with, and incorporated in, the substantive rule creating the right that to ignore that remedy and substitute therefor the rule of the forum would destroy, prejudice, or render ineffective the right to which it is attached, substituting a local cause of action for the one arising in another state, the lex loci in its entirety will be given effect in preference to the contrary rule of the lex fori. It is sometimes stated that the burden of proof is not determinable by the lex fori if it is made a substantial part of the right of action by the laws of the jurisdiction under which it arose.'

No purpose will be served by further discussion. We are convinced that the authorities upon which the decision in the Redick case was reached are sound. Hence we affirm that portion of the Redick case, 273 S.W.2d loc. cit. 233-234, reading:

'Is the Illinois requirement that plaintiff prove he was in the exercise of due care substantive or merely procedural? In Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371, 378, we quoted with approval from Jones v. Erie R. Co., 106 Ohio St. 408, 140 N.E. 366, 368, as follows: 'The distinction between substantive law and procedural law is that 'substantive law relates to rights and duties which give rise to a cause of action,' while procedural law 'is the machinery for carrying on the suit.''

'We think that the Illinois requirement is substantive, just as much so as is the requirement that plaintiff plead and prove the negligence of defendant. No one would argue that the latter was not substantive. Both are essential elements of plaintiff's right to recover under the law of Illinois. Plaintiff suggests, however, that our courts are not obligated to involuntarily have the laws of another state engrafted into our jurisprudence, citing Hughes v. Winkleman, 243 Mo. 81, 147 S.W. 994, 997[5, 6], L.R.A.1916A, 1007; and that it will be Missouri rules of law that determine whether a given question is substance or procedure, citing Hopkins v. Kurn, 351 Mo. 41, 171 S.W.2d 625, 626, 149 A.L.R. 762. But certainly we should not determine the matter by mere whim or fiat. 'In...