Phillips v. Whittom

• Decision Date: 11 March 1946
• Docket Number: 39686
• Citation: 192 S.W.2d 856,354 Mo. 964
• Parties: Earl Phillips, Administrator of the Estate of Audra Phillips, Deceased, Appellant, v. Howard Whittom and the United Biscuit Company of America, a Corporation
• Court: Missouri Supreme Court

192 S.W.2d 856

354 Mo. 964

Earl Phillips, Administrator of the Estate of Audra Phillips, Deceased, Appellant, v. Howard Whittom and the United Biscuit Company of America, a Corporation

No. 39686

Supreme Court of Missouri

March 11, 1946

Appeal from Adair Circuit Court; Hon. Noah W. Simpson Judge.

Affirmed.

Smoot & Smoot for appellant.

(1) The judgment of the court sustaining the plea in abatement was against the court's own finding of facts and for the wrong party and denied appellant the saving granted him under the statute on suffering a nonsuit under the Statutes; and on the contrary; the court further found that the action was filed in Putnam County in good faith, and that is the test to determine whether such a filing will arrest the running of the statutes. Wente v. Shaver, 169 S.W.2d 947; Krueger v. Walters, 179 S.W.2d 615; Conrad v McCall, 226 S.W. 265; Martens v. McMahon, 115 S.W.2d 180; Metzger v. Metzger, 153 S.W.2d 118. (2) The court erred in sustaining the separate pleas in abatement and in denying appellant the savings to which he was entitled under the provision of Section 3656, Revised Statutes of Missouri, 1939, after a nonsuit had been suffered. Authorities supra. (3) Finding of the trial court is inconsistent, contradictory and confusing and is insufficient to support the judgment in this that the court finds that the action brought in Putnam County was brought in good faith and yet finds that it was negligently brought upon a situation and state of facts that was "patent." Authorities supra. (4) The court by its finding and conclusions denied the appellants the right to show by evidence facts which constituted reasonable and prudent grounds for believing that the Circuit Court of Putnam County was the correct forum in which to file an action for damage. Appellant's evidence was uncontradicted and the court held that the matter was "patent," and therefore the court obviously gave no consideration or weight to the testimony to the effect that appellant's source of information was regarded as trustworthy, reliable and dependable. Authorities supra.

Waldo Edwards and D. L. Dempsey for respondents.

(1) When plaintiff requested special findings of fact and separate conclusions of law, he conceded that, as a matter of law, defendants had made a case on the pleas in abatement to be decided as one of fact and admitted that there was evidence sufficient to establish every essential element thereof. Labaddie Bottoms River Protection Dist. of Franklin County v. Randall, 156 S.W.2d 713; Smith v Universal Finance Corp., 137 S.W.2d 489; West v. West, 110 S.W.2d 398. (2) When the plaintiff requested special findings of fact he thereby conceded that the issues raised by the pleas in abatement were proper ones for such findings and he is bound thereby on appeal. Steele v. Johnson, 96 Mo.App. 147, 69 S.W. 1065. (3) Plaintiff's request for special findings of fact and conclusions of law was made pursuant to provisions of Section 1103, Revised Statutes of Missouri, 1939. This section requires the court to find and state in writing every constitutive fact in issue to which his attention is directed, and also to state separately from such finding of facts, his conclusions of law thereon, so that exceptions may be taken thereto. Wisdom v. Keithley, 167 S.W.2d 450; Fruin v. O'Malley, 241 Mo. 250, 145 S.W. 437; Cochran v. Thomas, 131 Mo. 258; Arthur R. Lindburg, Inc., v. Quinn, 123 S.W.2d 215. (4) Plaintiff did not make or file any exceptions to the findings of fact and conclusions of law by the court. The findings of fact in this case, therefore, stand as a special verdict, or an agreed case; and, hence, if the conclusions of law based thereon are correct, the judgment on the pleas in abatement will be affirmed. Leavitt v. Taylor, 163 Mo. 158, 63 S.W. 385. (5) The findings of facts were separate and apart from the conclusions of law reached by the court and, as no exceptions were taken and saved to such findings by the plaintiff, it stands as a special verdict, or an agreed case; and if the conclusions of law under the facts so found by the court were correct, the judgment must be affirmed. State ex rel. United Brick & Tile Co. v. Wright, 95 S.W.2d 804; Hughes v. Ewing, 162 Mo. 261; Loewen v. Forsee, 137 Mo. 38; Emma Snuffer v. Karr, 197 Mo. 182. (6) The trial court having found, as a fact, that plaintiff and his counsel were negligent in investigating the residence of the individual defendant, Whittom, before filing his petition in the Circuit Court of Putnam County, Missouri, on May 13, 1943, and that such negligence was not slight, but amounted to gross negligence inasmuch as ordinary and reasonable diligence on the part of plaintiff and his counsel would have disclosed to them that the defendant Whittom was a resident of Adair County, Missouri, the plaintiff is bound here by that finding. Authorities cited supra. (7) Having found negligence, as a matter of fact, the conclusion of law by the court, stated separately from the conclusions of fact, that the filing by plaintiff of his petition in the Circuit Court of Putnam County, Missouri, on May 13th, 1943, was insufficient to suspend the running of the statute of limitations pertaining to death actions under the death statute, is a correct conclusion of law from the facts found. Negligence of plaintiff in filing his petition in Putnam County when he, the plaintiff, was a resident of Scotland County, Missouri, and the cause of action accrued there and the corporate defendant being a foreign corporation, and the individual defendant not being, and never having been a resident of Putnam County, the Circuit Court of that County was without jurisdiction. Wente v. Shaver, 169 S.W.2d 947; Krueger v. Walters, 179 S.W.2d 615, 618; Mertens v. McMahon, 115 S.W.2d 180; Conrad v. McCall, 205 Mo.App. 640. (8) It was incumbent on plaintiff to establish, by both pleading and proof, a right of recovery under the death statute. The failure of the petition to make the averment is jurisdictional. Without such an averment, the petition wholly failed to state a cause of action under the death statute, as one suing under that statute must bring himself squarely within the provision of it. Chandler v. C. & A.R. Co., 251 Mo. 592; O'Donnell v. Wells, 323 Mo. 1170, 21 S.W.2d 762; Reed v. Jackson County, 142 S.W.2d 862. (9) The filing of this action of September 13, 1943, did not suspend the running of the statute of limitations, first because it was filed more than one year after August 27, 1942, the date the cause of action accrued, and, second, because the alleged action in Putnam County was then pending and continued to pend until October 22, 1943, as shown by the finding of fact. Bank v. Thompson, 284 Mo. 72, 223 S.W. 734; Patton v. Wabash, 283 S.W. 723.

OPINION

Ellison, P.J.

The appellant administrator seeks reversal of an order and judgment of the circuit court of Adair county abating his cause of action under the wrongful death statutes, Secs. 3652-3656 [references to our statutes are to R.S. Mo. 1939 and Mo. R.S.A.] for the negligent killing of his intestate, Audra Phillips, on August 27, 1942, in a collision in Scotland County between the decedent's automobile and a motor truck driven by the respondent Whittom, an employee of the respondent United Biscuit Company, operator thereof.

The ultimate question in the case is whether a prior similar action which appellant had timely brought and later dismissed, tolled the special one year statute of limitations prescribed by Sec. 3656, and validated the instant suit brought thereafter. The trial court sustained respondents' pleas in abatement on written findings of fact and declarations of law, on the grounds that the first action was void, and that while appellant had brought it in actual good faith, yet he had been guilty of patent negligence and want of diligence in so doing, in consequence of which the suit did not keep the cause of action alive. This ruling was based on: Wente v. Shaver, 350 Mo. 1143, 1150(2), 1154, 169 S.W.2d 947, 953(3), 954(4); Krueger v. Walters (K.C. Ct. Apps.), 179 S.W.2d 615, 618(3-8); Metzger v. Metzger (K.C. Ct. Apps.), 153 S.W.2d 118, 123 (10); Mertens v. McMahon (St. L. Ct. Apps.), 115 S.W.2d 180, 183(2, 3); Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265, 266.

The facts and applicable law should be stated a little more fully. The intestate and the plaintiff and his counsel were residents of Scotland county. The respondent Biscuit Company was a foreign corporation but had a resident agent in St. Louis for the service of process. The respondent driver, Whittom, was a resident of Adair county, but appellant thought he lived in Putnam county. That county and Scotland county both adjoin Adair county. Laboring under the foregoing misapprehension, appellant first brought his suit in Putnam county on May 17, 1943, where none of the parties resided, in violation of our venue statute, Sec. 871. The action was void because of that court's lack of jurisdiction over the parties defendant. Hankins v. Smarr, 345 Mo. 973, 137 S.W.2d 499. He ineffectually dismissed that suit on October 22, 1943, without paying the costs, in violation of Sec. 1110. In the meantime he had filed a suit on the same cause of action in Adair county on September 13, 1943, where respondent Whittom lived. Then he dismissed both of these suits on or about February 25, 1944, again failing to pay the costs, at least in the Putnam county suit, and refiled the instant Adair county suit on March 28, 1944, getting service on both respondents.

In the meantime the one year statute of limitations under Sec. 3656 had run on August 26, 1943. But the statute provides if the plaintiff take a nonsuit he may commence a new action within one year thereafter. Appellant...