Mason v. Kansas City Belt Ry. Co.

• Decision Date: 01 March 1910
• Citation: 226 Mo. 212,125 S.W. 1128
• Parties: MASON et al. v. KANSAS CITY BELT RY. CO.
• Court: Missouri Supreme Court

125 S.W. 1128

226 Mo. 212

MASON et al. v. KANSAS CITY BELT RY. CO.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. JUDGMENT (§ 570) — RES JUDICATA — INVOLUNTARY NONSUIT — NEW ACTION.

In a suit for death, after the evidence for plaintiff was all in, plaintiff was compelled to take a nonsuit, with leave to move to set it aside. Thereafter a motion to set aside was denied, and judgment was rendered in favor of defendant. Plaintiff then, without appealing from the judgment, started another suit. Rev. St. 1899, § 2868, as amended by Laws 1905, p. 138 (Ann. St. 1906, p. 1652), and section 4285 (Ann. St. 1906, p. 2357), provides that if any action shall have been commenced within the times prescribed in this chapter, and the plaintiff therein "suffer" a nonsuit, such plaintiff may commence a new action within one year after such nonsuit is suffered. Held, that the fact that the court rendered final judgment for defendant after denying the motion for nonsuit, did not make it any the less a judgment of nonsuit, permitting the second action within the statute, since on overruling of the motion to set aside the nonsuit, the case was out of court and no judgment on the merits could thereafter be entered.

2. JUDGMENT (§ 570) — RES JUDICATA — INVOLUNTARY NONSUIT — NEW ACTION — NECESSITY OF APPEAL.

Neither under such circumstances could it be contended that plaintiff had not "suffered" a nonsuit as contemplated by the statute, because he did not appeal from the order overruling the motion to open the nonsuit, since though, if an appeal had been taken, a nonsuit would have been suspended, there was no requirement that he must appeal.

3. JUDGMENT (§ 570) — NEW ACTION AFTER NONSUIT — STATUTES.

Laws 1905, p. 138, amending Rev. St. 1899, § 2868 (Ann. St. 1906, p. 2357), and providing that in an action for tort, if a nonsuit be taken, a new action may be commenced, etc., applies to pending actions.

Appeal from Circuit Court, Jackson County; Jackson L. Smith, Special Judge.

Action by J. A. Mason and others against the Kansas City Belt Railway Company. From a judgment dismissing the cause, plaintiffs appeal. Reversed, and cause remanded.

Plaintiffs brought this suit in the circuit court of Jackson county, Mo., for the recovery of damages sustained by them through the alleged negligence of the defendant in causing the death of their son, at Kansas City, Kan. The petition in this case was filed August 4, 1906, which stated a good cause of action against the defendant; but as no point is made in that regard it will receive no further consideration.

The facts are not disputed, and are stated by counsel for respondent, substantially, as follows: A former suit was instituted by plaintiffs to recover damages on account of their son's death in the Independence division of the circuit court of Jackson county, Mo. The action came on for trial at the June term, 1906, of said court, at Independence, and the following proceedings were had: The trial was begun, and plaintiffs introduced all of their testimony, and at the end of plaintiffs' case they were forced to take a nonsuit with leave to move to set the same aside; and afterwards, during the said June term of the Independence court, the plaintiffs duly moved the court to set aside said nonsuit and at said term the court denied said motion, and thereupon rendered judgment in said action in favor of defendant, against plaintiffs. No appeal was taken, and no further steps whatever were taken in the case at Independence, but plaintiffs filed this, their second action, in the Kansas City division of the same court on August 4, 1906, within one year from the date of the nonsuit. Following the bringing of this second suit, at Kansas City, the defendant in due time filed its motion to dismiss the cause for the reason that the judgment in the Independence division was res adjudicata as between the parties to the second cause. This motion in due time was taken up and considered by the court upon an agreed statement of facts, a portion of which was as follows: "That on the trial of the issues between the parties hereto, based on the same cause of action, at the June term, 1906, of this court, at Independence, Jackson county, Missouri, plaintiffs took a nonsuit, with leave to move to set the same aside; that at said term said plaintiffs duly moved the court to set aside said nonsuit, and that at said term, said court denied said motion, and thereupon rendered judgment in said action in favor of defendant, against plaintiffs, which judgment was not appealed from by plaintiffs, and that at the time of filing of the petition in this cause of action, against which this motion to dismiss is directed, the said June term, 1906, of this court, at Independence, Jackson county, Missouri, had duly ended." And upon these facts the court sustained the defendant's motion to dismiss this cause, to which action of the court plaintiffs duly excepted, and from this ruling and order of court the plaintiffs in due time appealed to this court.

Jamison, Elliott & Ostergard, for appellants. Lathrop, Morrow, Fox & Moore and Geo. J. Mesereau, for respondent.

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

1. The real question presented by this record for determination is, Was the action of the trial court in sustaining respondent's motion to dismiss this suit legal and proper? The correct answer to that question, however, depends upon the proper determination of two or three legal propositions.

The record discloses the fact that plaintiffs brought against defendant a prior suit, setting up the same cause of action that is stated in the petition filed herein. At the June term, 1906, of the circuit court, sitting at Independence, said cause was called for trial, and the following proceedings were then and there had: namely, the plaintiffs introduced their evidence, and at the close thereof the defendant asked an instruction in the nature of a demurrer to the evidence, which was by the court given. Thereupon, the plaintiffs took a nonsuit with leave to move to set the same aside. In due time and in proper form plaintiffs filed their motion to set aside the nonsuit which they were forced to take, on account of the action of the court in giving said instruction, and also asked for a new trial. This motion was, by the court, overruled, and thereupon a judgment of nonsuit was entered against the plaintiffs. No appeal was taken by them from that judgment, but instead thereof, as before stated, they instituted this suit upon the same cause of action in the circuit court of Kansas City. Counsel for defendant contend, by their motion to dismiss this action, that the foregoing facts are res adjudicata, and constitute a complete bar to appellants' right to a recovery herein. In support of this contention, counsel insist that the plaintiffs in this case did not suffer a nonsuit to go against them in the former suit, but that there was a final judgment rendered by the court in favor of the defendant, and against the plaintiffs, and that they having failed to appeal from that judgment, it became res adjudicata, as before stated; and for that reason neither section 2868, as amended by the Act of 1905 (Laws 1905, p. 138 [Ann. St. 1906, p. 1652]), nor section 4285, Rev. St. 1899 (Ann. St. 1906, p. 2357), is applicable to this case, and are only availing where a nonsuit is suffered. In support of that insistence, counsel relies upon the case of Wetmore v. Crouch, 188 Mo. 653, 87 S. W. 954. The statute the court there had under consideration was section 4285, before mentioned, contained in article 2 of chapter 48, entitled "Limitations of Actions." That section reads as follows: "If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a non-suit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such non-suit suffered or such judgment arrested or reversed; and if the cause of action survive or descend to his heirs, or survive to his executors or administrators, they may, in like manner, commence a new action within the time herein allowed to such plaintiff, or, if no executor or administrator be qualified, then within one year after letters testamentary or of administration shall have been granted to him."

In construing this statute, this court, speaking through Judge Lamm, in the case before cited, on page 652 of 188 Mo., page 955 of 87 S. W., said: "A broad view of this section — a view that takes in as well the remedy to be advanced as the mischief to be retarded, and that does not deal in mere `mint and anise and cummin,' but goes to the weightier matter of the law — shows that it was in the legislative mind that a litigant should have a day in court, a trial on the merits of his cause. If the proceedings fell short of that, if the judgment was arrested or if for plaintiff and reversed on error or appeal, or if some interlocutory matter supervened and thwarted a trial on the merits, then the prescribed period of the statute of limitations, ex gratia, should be extended for one year as atonement for the miscarriage of justice. It is apropos to the subject to note that the frosty attitude of courts towards statutes of limitation is attested by the earlier decisions, but all judicial frigidity has dissolved under the benignant sunlight of modern apprehension of the salutary principles underlying such laws and the experiences of commercial people. As said by Wood (Wood on Limitations [3d Ed.] § 4): "These statutes are declared to be "among the most beneficial to be found in our books." "They rest upon sound policy, and tend to the peace and welfare of society;" and are so construed as to effectuate the intention of the Legislature although in individual cases they may produce...