Martin v. Richmond Cotton Oil Co.

• Decision Date: 11 March 1916
• Docket Number: No. 1533.,1533.
• Citation: 194 Mo. App. 106,184 S.W. 127
• Parties: MARTIN v. RICHMOND COTTON OIL CO.
• Court: Missouri Court of Appeals

184 S.W. 127

194 Mo. App. 106

MARTIN v. RICHMOND COTTON OIL CO.

No. 1533.

Springfield Court of Appeals. Missouri.

March 11, 1916.

Rehearing Denied April 3, 1916.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by Mattie Martin against the Richmond Cotton Oil Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action for damages in which the plaintiff recovered a judgment for $6,250, and defendant appeals. The plaintiff's husband was killed in a cotton seed oil mill while in the employ of defendant on December 17, 1912. The widow appropriated the action and filed her petition in the circuit court within six months thereafter, to wit, April 3, 1913. In that petition, called the original petition, she bases her cause of action upon the alleged negligent failure of the defendant to furnish the deceased a reasonably safe place in which to work. The damages alleged were $10,000.

The defendant appeared on the first day of the June term, 1913, and filed its petition for removal to the federal court, which was granted, and the cause so removed. The cause was continued from term to term in the federal court till September 7, 1914, when, in the vacation of the court, plaintiff filed with the clerk of the federal court a præcipe or memorandum to dismiss said cause, but did not then, nor has she since, paid the costs then accrued.

The clerk of the federal court entered an order in vacation of said court as follows:

"Now at this day comes the said complainant by her attorney and files a præcipe dismissing this cause, which præcipe is in words and figures as follows, to wit: `Now, on this 7th day of September, 1914, comes the undersigned attorney for plaintiff in the above-entitled cause and dismisses said cause at the cost of plaintiff. [Signed] T. R. R. Ely, Attorney for Plaintiff.'"

No subsequent action was taken by the court in term time or at any other time.

Prior, however, to the making of the above order in the federal court, and on April 30, 1914, the plaintiff filed a second suit in the circuit court based upon the alleged negligent failure of the defendant to comply with section 7828, R. S. 1909, requiring defendant to safely guard the machinery of its plant. Plaintiff voluntarily dismissed this suit December 14, 1914. The plaintiff had also filed on September 11, 1914, her third petition, the one now in controversy. It is based on the alleged negligent failure of the appellant to safely guard its machinery as required by said section 7828, R. S. 1909. The damages alleged when this petition was filed were $2,999, $1 less than the amount sufficient to give the federal court jurisdiction. On this third petition, after amendment, the case was tried. Before trial the court permitted an amendment increasing the damages to $10,000.

Thereafter appellant, on December 4, 1914, limiting its appearance, filed its motion to dismiss said third petition for the reason that the cause of action attempted to be stated constituted a departure from the original petition, in that the original petition based its cause of action upon the alleged failure of appellant to furnish the deceased a reasonably safe place in which to work, while the third petition was based upon an alleged failure of the appellant to safely and securely guard its machinery as provided by statute (section 7828, supra), that the third petition was not an amendment or continuation of the original suit, and that therefore the same should be dismissed, and for the further reason that, being a new cause of action, the same was barred by the statute of limitations, having been filed more than one year and eight months after the accident complained of occurred. This motion was overruled.

After the amendment increasing the amount of damages to $10,000, the defendant moved to strike out the same, alleging that the court was without jurisdiction; that the permitting of the amendment would have the effect of defeating justice, and would be in contempt of the federal court in defeating the jurisdiction of said court and permitting the plaintiff to do indirectly what he could not do directly. This motion was overruled.

Thereupon the defendant, still limiting its appearance, filed its answer, containing six counts: (1) That there is a departure from the original suit, and that the present suit is a wholly separate and distinct cause of action requiring different proofs to sustain the allegations in the two petitions, and that the measure of damages is entirely different, and that the present suit is barred by the statute of limitations; (2) that the original suit is still pending in the United States District Court, and has never been dismissed, and that this suit should be abated; (3) a general denial, except admitting defendant's incorporation under the laws of Tennessee; (4) that, if deceased was injured, he was not injured in the performance of any duty imposed upon him by the appellant, that he had specific duties to perform at a fixed place in the plant, and that the performance of his duties did not require that he should be at the place where injured; (5) contributory negligence on the part of deceased; (6) that defendant had complied with section 7828, R. S. 1909, in fully and completely guarding the exposed machinery in so far as possible, and that deceased refused to use the safety appliances provided for his use.

Plaintiff demurred to the first, second, third, and fourth defenses, and the court sustained the same as to the first and second.

Oliver & Oliver, of Cape Girardeau, for appellant. Ely, Pankey & Ely, of Kennett, and J. L. Fort, of Dexter, for respondent.

STURGIS, J. (after stating the facts as above).

I. Preliminary to any discussion of the merits of the case, we will dispose of defendant's insistence that its plea in abatement should have been sustained on the ground of another action pending in the federal court. The plaintiff concedes that the present suit is for the same cause of action as that removed to the federal court, and her right to maintain this suit as against the special statute of limitations of one year is dependent on the fact that this suit was instituted within such time after the dismissal of such former suit. It is also conceded that the pendency in the federal court of an action removed to such court from a state court is pleadable in abatement of a subsequent action in the state court between the same parties for the same cause unless the suit in the federal court has been determined by a voluntary nonsuit or dismissal, in which case the second suit may be maintained. 1 C. J. 89, and cases cited. This rule of law is modified in this state to the extent that, if the first suit is terminated by nonsuit or dismissal before the trial of the plea in abatement, that is sufficient. Warder v. Henry, 117 Mo. 530, 23 S. W. 776; State ex rel. v. Hines, 148 Mo. App. 298, 304, 128 S. W. 250.

Defendant's point is that there was no dismissal of the suit in the federal court in that the vacation order above set out is ineffectual to accomplish that result, though evidently so intended and relied on by plaintiff. The defendant relies on our statute (section 1979, R. S. 1909), as governing the practice in the federal court sitting in this state, and which provides that suit may be dismissed by plaintiff in vacation "upon payment of all costs that may have accrued thereon." It is conceded that plaintiff did not pay the costs. It was also shown, though this evidence was excluded as not being material, that when plaintiff applied to the clerk of the federal court to dismiss this case, the form of præcipe signed by plaintiff's attorney was furnished by the clerk, and that the practice in that court on dismissals in vacation is similar to what was done in this case; that no costs were demanded as a condition of making the order; that at least one term of the federal court was held after the dismissal and before this trial, at which such case did not appear on the docket in the federal court as a live case, which fact must have been known to and acquiesced in by both parties.

The defendant cites, as sustaining its position that the dismissal of a case is a matter within the discretion of the court, and that the dismissal is not final till such discretion is exercised by the court, the remarks of Judge Rombauer in Campbell v. Carroll, 35 Mo. App. 640, 645, as follows:

"We are informed that a practice has grown up in this state sanctioning the dismissal of suits in vacation by the plaintiffs' filing a memorandum * * * with the clerk, but such memorandum necessarily goes for naught except as evidence of an estoppel by matter in pais, or abandonment, unless the court, by some appropriate entry of record at a succeeding term, gives effect to it as a judgment. The court alone is competent to order a judgment, and not the parties litigant or the clerk. It would be a strange anomaly if the plaintiffs in an injunction suit could escape all liability upon their bond by a simple memorandum of dismissal filed with the clerk in vacation."

These remarks must be taken, however, in connection with the subject there in hand, to wit: Whether a dismissal in vacation of an injunction proceeding is such a final disposition of the case as to prevent an assessment of damages on the injunction bond at the succeeding term. The negative was held, and such would be true whether the dismissal in vacation was accompanied with the payment of costs or not. Obviously any dismissal of the case in vacation either with or without payment of costs, or in term time for that matter, is so far held in the breast of the court, at least until the end of the succeeding or concurrent term, that same may be confirmed, or set aside, or opened up for good cause shown, and so far as to permit any proper proceeding based thereon to be had. That the court might have taken any proper action looking to the collection of the...