Sabol v. St. Louis Cooperage Co.

• Decision Date: 03 July 1930
• Docket Number: 28871
• Parties: SABOL v. ST. LOUIS COOPERAGE CO
• Court: Missouri Supreme Court

31 S.W.2d 1041

SABOL v. ST. LOUIS COOPERAGE CO

No. 28871

Supreme Court of Missouri, Second Division

July 3, 1930

Rehearing Overruled October 13, 1930.

See also, 313 Mo. 527, 282 S.W. 425.

John New, Jr., and Earl M. Pirkey, both of St. Louis, for appellant.

Watts & Gentry, of St. Louis, for respondent.

OPINION

BLAIR P. J.

This is an action instituted in the circuit court of the city of St. Louis for damages in the sum of $ 25,000 for personal injuries sustained by the plaintiff while in the employ of defendant. Plaintiff suffered an involuntary nonsuit when defendant's objection to the introduction of evidence was sustained. After the trial court refused to set aside the nonsuit, plaintiff was granted an appeal to this court.

The grounds of defendant's objection to the introduction of evidence were 'that the petition fails to state a cause of action and shows on its face that it is barred by the statute of limitations and that the admissions in plaintiff's reply in connection with the petition and the answer show that the entire controversy has been fully adjudicated.'

Plaintiff's petition was filed July 7, 1926. In so far as it dealt with the relation of plaintiff and defendant as servant and master, and with allegations of defendant's negligence and plaintiff's injury, it need not be examined. The injury was received June 6, 1921, and hence it appeared from the face of the petition and its file mark that such injury occurred more than five years before the present action was commenced. To avoid the bar of the statute of limitations, plaintiff made the following allegation in his petition, to wit: 'That plaintiff recovered a judgment on this same cause of action but the same was reversed by division one of the supreme court of Missouri on appeal in October, 1925, but said division of the supreme court did not examine the facts and pass upon the merits of the case and the merits were not by said division or said court examined into or passed upon and there was no adjudication that upon the facts of the case plaintiff could not recover and plaintiff duly filed a motion to modify said judgment of reversal so as to remand said cause and said motion was denied.'

In its answer, defendant admitted its corporate capacity and its operation of a manufacturing plant in the city of St. Louis and plaintiff's injury while there employed by defendant. The answer also admitted 'that the plaintiff instituted a suit based on the same cause of action as that pleaded in his petition in this case on or about the 21st day of January, 1922, which suit was returnable to the October 1922 Term of the Circuit Court of the City of St. Louis; that the plaintiff obtained a judgment after trial of said cause in said Circuit Court for the sum of $ 15,000.00 and that the defendant appealed from said judgment to the Supreme Court of the State of Missouri and that said court reversed said judgment.'

The answer then denied all other allegations of the petition, and alleged that the present action was not instituted within five years after the injury complained of, and that the cause of action was barred by the statute of limitations. It then alleged that the controversy between plaintiff and defendant had been fully adjudicated in a former action between the parties. The answer then set out in full the following proceedings: The petition filed by plaintiff in the first suit upon the same cause of action; defendant's answer thereto; trial in the circuit court of the city of St. Louis and judgment for plaintiff in the sum of $ 15,000; appeal by defendant to the Supreme Court of Missouri; the assignment of the case to Division 1, and the order of that court reversing the judgment of the trial court, together with the complete opinion of Division 1, as same is reported in 313 Mo. 527, 282 S.W. 425. Then followed appropriate allegations concerning plaintiff's subsequent motion for rehearing; order of Division 1 overruling same; motion for transfer of the case to the court en Banc; order overruling said motion; motion by plaintiff in the Supreme Court en Banc to require Division 1 to transfer the cause to that court; order overruling that motion, and, finally, the going down of the mandate of Division 1.

The answer then contained the following allegation: 'This defendant therefore says that by the final judgment in said above mentioned cause and by all of the proceedings had therein, the plaintiff is barred from maintaining this action and the proceedings and final judgment in said former cause based on the same alleged cause of action as that set up in this case are hereby pleaded in bar of plaintiff's said cause of action.'

Thereafter, plaintiff filed, and the assignment judge sustained, a motion to strike out all that part of defendant's answer beginning with the allegation which pleaded the statute of limitations and ending with that part of said answer immediately above quoted. This motion was directed at all allegations of the answer with reference to the former suit and all proceedings in connection therewith. When the motion to strike out was sustained, defendant stood on such parts of the answer as were not stricken. Plaintiff's reply admitted the institution of the former suit and its trial resulting in a judgment for plaintiff and an appeal by defendant and the reversal of said judgment and subsequent proceedings in Division 1 of this court.

The errors assigned by plaintiff to the subsequent action of the trial court in sustaining defendant's objection to the introduction of evidence must be determined upon the pleadings as they were before that court, after part of defendant's answer had been stricken. It does not follow, however, that we are precluded from considering the opinion of Division 1, because that part of defendant's answer embodying the same was stricken out. That opinion is part of the records of this court, of which we take judicial notice. 23 C. J. 110, § 1918; Keaton v. Jorndt, 259 Mo. 179, 168 S.W. 734.

From the pleadings as finally presented to the trial court, it appears that the first suit was based upon the same cause of action described in the petition in the present suit and that the judgment obtained below in the first suit was reversed by Division 1 of this court. Judicially noticing the opinion written in that case by Division 1, we have before us, not only the propositions of law therein considered and decided, but also the facts stated in that opinion upon which the same was based. Plaintiff pleaded in his petition and now contends that Division 1 did not examine the facts and pass upon the merits, and, hence, 'there was no adjudication that upon the facts of the case plaintiff could not recover.'

The opinion of Seddon, C., upon the appeal in the first suit, defined the issues as follows: 'First, it is contended that the petition itself does not state a cause of action; and, secondly, that the evidence wholly fails to show any negligence whatever on the part of appellant, or that, if appellant were negligent, such negligence was the proximate cause of respondent's alleged injury.'

After considering the sufficiency of said petition, with which we are not here concerned, Judge Seddon addressed himself to defendant's contention that the evidence failed to show any negligence on the part of defendant. Before entering upon a review of the evidence, he announced the conclusion of the court thereon as follows: 'But, regardless of the question whether or not plaintiff's petition herein states a cause of action upon which a valid judgment may be predicated, nevertheless, we believe that plaintiff has failed to prove any actionable negligence on the part of defendant, or that such actionable negligence was the proximate cause of his injuries. The evidence in no sense tends to prove that the pile of staves which fell upon plaintiff was constructed or maintained in a negligent manner.'

The opinion then recited in detail the evidence offered by plaintiff. Defendant offered none and stood on its demurrer to plaintiff's evidence. We need not set out such evidence because it is admitted that the same cause of action is involved in both suits. Following his recital of the evidence and its effect upon plaintiff's right to recover under the res ipsa loquitur doctrine, Judge Seddon said: 'While, in passing upon a demurrer to the evidence, the evidence must be viewed by us in the light most favorable to plaintiff, giving him the benefit of every reasonable inference in his favor which may be fairly and legitimately drawn therefrom, nevertheless such evidence must tend, directly or inferentially, to establish negligence on the part of defendant, and the jury must not be left groping in the realm of speculation and conjecture in arriving at a verdict. Bennett v. Equipment Co. (Mo. App.) 214 S.W. 244; O'Dell v. Lead Co. (Mo. App.) 253 S.W. 397; Weber v. Milling Co. (Mo. App.) 242 S.W. 985; Goransson v. Manufacturing Co. 186 Mo. 300, 85 S.W. 338. We are constrained to hold herein, following the unquestionable weight of authority as announced in the cases cited, that the trial court erred in not sustaining defendant's demurrer to the evidence, provided the demurrer was not waived by defendant, to which question we now address ourselves.' 313 Mo. loc. cit. 548, 282 S.W. 425, 432. The opinion then proceeded to hold that defendant's demurrer to the evidence had not been waived. With that part of the opinion we are not here concerned.

The first suit and the present suit are admittedly based upon the same cause of action. While the language quoted by Judge Seddon from the petition in the first suit, charging negligence on defendant's part, and the allegations of the present suit in that respect are not identical, there is no...