Robison v. Floesch Construction Co.

• Decision Date: 19 December 1921
• Parties: DEWEY ROBISON, By Next Friend, v. FLOESCH CONSTRUCTION COMPANY, Appellant
• Court: Missouri Supreme Court

236 S.W. 332

291 Mo. 34

DEWEY ROBISON, By Next Friend, v. FLOESCH CONSTRUCTION COMPANY, Appellant

Supreme Court of Missouri, First Division

December 19, 1921

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. John A Snider, Judge.

Affirmed.

Oliver & Oliver for appellant.

(1) The judgment of the justice court, having been made in open court in the presence of both parties, will not be vacated nor declared void except upon the most positive, clear and satisfactory proof of fraud in its procurement, and that it was a fraud upon the court as well as upon the other party to the suit. No such proof was made in this case. Leiber v Leiber, 239 Mo. 31, 45; McDonald v. McDonald, 242 Mo. 172; Payne v. O'Shea, 84 Mo. 129; 23 Cyc. 726, 920, 1049; Obermeyer v. Einstein, 62 Mo 341; Oxley Stave Co. v. Butler Co., 121 Mo. 630; Murphy v. DeFrance, 101 Mo. 151; Hancock v. Blackwell, 139 Mo. 453; Cantrell v. Johnson, 236 Mo. 575, 600; Wolf v. Brooks, 177 S.W. 337. In this case plaintiff neither pleaded nor proved any material facts represented to plaintiff by defendant, false or otherwise. Coal Co. v. Holterman, 254 Mo. 639; Southern Dev. Co. v. Silva, 125 S.W. 250. (2) "Judgment are impeachable only for fraud, 'extrinsic to the merits of the case.' 'They are not impeachable for fraud relating to the merits of the case.'" Cantwell v. Johnson, 236 Mo. 575, 601; Ritche v. McMullen, 79 F. 522, 531; McDonald v. McDonald, 242 Mo. 172; Leiber v. Leiber, 239 Mo. 42; Railroad v. Mirrielees, 182 Mo. 140. (3) Defendant's demurrer to plaintiff's petition should have been sustained. (a) There is no allegation of diligence on the part of plaintiff nor that he was prevented or hindered by any act of defendant in exercising such diligence. Carolus v. Koch, 72 Mo. 645; Railroad v. Mirrielees, 182 Mo. 140; Cantwell v. Johnson, 236 Mo. 600; 23 Cyc. 1042. (b) There is no averment of any artifice, trick, promise or concealment of any fact whereby plaintiff was deceived. Railroad v. Mirrielees, 182 Mo. 140; Traction Co. v. Dent, 140 S.W. 610. (c) The bill nowhere sets out any facts which plaintiff now knows which he did not know at the time of the former trial. Carolus v. Koch, 72 Mo. 645; Railroad v. Mirrielees, 182 Mo. 140; 23 Cyc. 1022. (d) There is no allegation of what facts, if any, were misrepresented. It is necessary that the facts and not conclusions be set out. Travelers Protective Assn. v. Gilbert, 111 F. 269; Wilkinson v. McGee, 265 Mo. 580; 23 Cyc. 1040, 1041; Magnuson v. Casualty Co., 125 Mo.App. 206; Carroll v. United Rys., 157 Mo.App. 249. (e) The failure of the petition to plead a tender of the amount received under the former judgment and settlement, prior to the institution of this suit, is fatal. Reid v. St. Louis Railroad Co., 187 S.W. 15; Althoff v. St. Louis Transit Co., 204 Mo. 170; Wessel v. Waltke Co., 196 Mo.App. 582. (4) If any wrong is done, "although rendered in his favor, as if for a less sum than he is entitled to the tribunal where the wrong was done should furnish the relief." Downing v. Still, 43 Mo. 318; Blessing v. Varnish Co., 107 A. 601. (5) When a money judgment is paid, the judgment is performed and that is the end of it. It will not be reopened by that or a higher court whether obtained by fraud or not. Davis v. Blair, 88 Mo.App. 372; Weston v. Clark, 37 Mo. 568; 23 Cyc. 893, 1465. (6) Neither coveture nor infancy are grounds for equitable interference with a judgment, the defect not being jurisdictional. Wyman v. Hardwick, 52 Mo.App. 621; 23 Cyc. 993. (7) "Equity will no entertain a bill for relief against a judgment, founded on any matters which were tried and determined in the action at law, or which were there so put in issue that they might have been adjudicated, however unjust the judgment may appear to be." 23 Cyc. 1017; Cantrell v. Johnson, 236 Mo. 601; Summer v. Whitley, 1 Mo. 708; Matson v. Field, 10 Mo. 100. (8) The plaintiff was so plainly guilty of contributory negligence that it was the duty of the trial court to have directed a verdict for defendant. Wood v. St. Louis Railroad, 187 S.W. 11; Boesel v. Wells Fargo & Co., 260 Mo. 463; Henry v. Railroad, 141 Mo.App. 351; Carson v. Railroad, 96 Iowa 583, 65 N.W. 831. Plaintiff's own testimony proves his contributory negligence. (a) He knew there was a ladder on the framework; he had used it that very night. (b) The ladder was at the same place when he was hurt as it was when he went up it that same night. (c) When he stepped on to the framework he did not look for the ladder. (d) When he was on the apron -- a step higher up -- he says there was no use to look. (e) He went to a corner of the framework and sitting on it with his legs on the outside of the frame, felt for the ladder with his legs; not feeling it, he did the same thing on the other side of the same corner. (f) It had been suggested to him by his foreman that same night -- less than six hours before -- not to go down on the inside of the framework -- that he always went down on the outside. Notwithstanding this admonition when he saw the boom approaching him, he tried to get his body and legs down on the inside of the framework. (g) He got his body, arms, head and one leg inside. His only excuse for not getting both legs down into this place which he thought was safe was that he didn't have time. Henry v. Railroad, 141 Mo.App. 358. (9) Plaintiff thought the fair lead shive would clear his leg and that he was therefore safe with this one leg left up on the beam of the framework. R. G. Nunn testified that plaintiff admitted this to him on October 7, 1918, and plaintiff when he took the stand in rebuttal did not deny it. Under such conditions he cannot recover. Roesel v. Wells Fargo & Co., 260 Mo. 476; Henry v. Railroad, 141 Mo.App. 351. (10) Where there is an obviously safe and an obviously unsafe way to do a thing, both open to the plaintiff and he chooses the obviously unsafe and is injured, he cannot recover. Wolff v. Steel Co., 217 S.W. 571; McCarty v. Hood Hotel Co., 144 Mo. 397.

Hardesty & Limbaugh for respondent.

(1) The judgment of the justice having been rendered without a hearing, without any inquiry as to what was for the best interest of the plaintiff and without any judicial determination of the rights of the parties, and being for a sum grossly inadequate, was properly set aside on those grounds. (a) Equity will set aside judgments rendered in violation of the law of procedure by or against infants. Thornton v. Thornton, 27 Mo. 302; Sec. 1739, 1744 1745, 1747, R. S. 1909; Scott v. Royston, 223 Mo. 568, 123 S.W. 454; Neenan v. St. Joseph, 126 Mo. 89; State ex rel. v. Gawronski, 110 Mo.App. 414; Weiss v. Coudrey, 102 Mo.App. 65; McMurtry v. Fairley, 194 Mo. 502. (b) That neither an infant nor anyone for him can consent to a judgment is one of the cardinal rules of such procedure. Revely v. Skinner, 33 Mo. 98; McClure v. Farthing, 51 Mo. 109; Collins v. Trotter, 81 Mo. 281; Tyler on Infan. and Covert, pp. 175, 211; Tuttle v. Garret, 15 Ill. 354; Holden v. Hearn, 1 Beav. 445; Le Bourgeoise v. McNamara, 82 Mo. 189. (c) In practically all jurisdictions, equity uniformly sets aside judgments rendered in violation of said rule and of the substantial rights of an infant. Mo. Pac. Ry. Co. v. Lasca, 99 P. 616; Kingsbury v. Buckner, 134 U.S. 650; Walsh v. Walsh, 116 Mass. 377; Tripp v. Gifford, 155 Mass. 108; Ewing v. Ferguson, 33 Gratt. 563; Cralle v. Meem, 8 Gratt. 530; Bank of Alexander v. Patton, 1 Rob. (Va.) 535; 1 Minor's Inst. 520, 521; 1 Dan. Ch. Pr. 189; Daingerfield v. Smith, 83 Va. 81; Ferrel v. Broadway, 126 N.C. 258, 261; Crapster v. Taylor, 74 Kan. 771; Pittsburg Ry. Co. v. Haley, 170 Ill. 610; Long v. Mulfurd, 17 Ohio St. 484; Waterman v. Lawrence, 19 Cal. 210; Kromer v. Friday, 10 Wash. 621; Gooch v. Green, 102 Ill. 507; Ralston v. Lohee. 8 Iowa, 17; Leslie v. Proctor & Gamble Mfg. Co., 102 Kan. 159; Tenn. Coal Co. v. Hayes, 97 Ala. 201; Burke v. Northern Pac. Ry. Co. 86 Wash. 37; Thompson v. Land Co., 168 U.S. 451; Rankin v. Schofield, 70 Ark. 83; Coal Co. v. Donaldson, 123 Ill.App. 196; Day v. Johnson, 32 Tex. Civ. App. 107; Knight v. Waggoner, 214 S.W. 690. (2) The infant's tender of the check prior to suit was unnecessary, defendant having failed to make legal delivery of same to him and he being powerless to make a legal tender except through the regular court procedure for infants. Ridgeway v. Herbert, 150 Mo. 606; Craig v. Van Bebber, 100 Mo.App. 584; 22 Cyc. 557-559; Coal Co. v. Donaldson, 123 Ill.App. 196; Mo. Pac. Ry. Co. v. Lasca, 99 P. 616; Tenn. Coal Co. v. Hayes, 97 Ala. 201; Leslie v. Proctor & G. M. Co., 102 Kan. 159; Lumber Co. v. Warner, 93 Mo. 388; Carrol v. Railway, 157 Mo.App. 247, 137 S.W. 303. (3) This action to set aside the judgment of the justice was brought in the proper court. Leslie v. Mfg. Co., 102 Kan. 159; 1 Black on Judgments, par. 297; Leith v. Shingleton, 42 Mo.App. 499; Langford v. City of Doniphan, 61 Mo.App. 288; Weiss v. Coudrey, 102 Mo.App. 65; Lillibridge v. Ross, 59 Mo. 217; Neenan v. City of St. Joseph, 126 Mo. 89. (4) The verdict of the jury should be upheld. Wellman v. Railway, 219 Mo. 126, 118 S.W. 31; O'Connell v. St. Louis Cable Co., 106 Mo. 482. (a) The court could not declare plaintiff guilty of contributory negligence as a matter of law. Dowling v. Allen & Co., 74 Mo. 13; Vanesler v. Moser Cigar Co., 108 Mo.App. 621; 26 Cyc. 1176; Ranson v. Union Depot Co., 142 Mo.App. 361, 126 S.W. 785; Hull v. Transfer Co., 135 Mo.App. 119, 115 S.W. 1054; McFern v. Gardner, 121 Mo.App. 1, 97 S.W. 972; Boyce v. Railway, 120 Mo.App. 168, 96 S.W. 670; Lang v. Railway, 115 Mo.App. 489, 91 S.W. 1012; Brown v. Railroad Co., 180 P. 211 (Kansas) ; Coal Co. v. Love, 153 Ky. 323, 155 S.W. 746. (b) The court could not declare defendant free of negligence as a matter of law. Nash...