State of Kansas ex rel. and to Use of Winkle Terra Cotta Co. v. U.S. Fidelity & Guar. Co.

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 1050,328 Mo. 295
• Parties: State of Kansas at Relation and to Use of Winkle Terra Cotta Company v. United States Fidelity & Guaranty Company, Appellant
• Court: Missouri Supreme Court

40 S.W.2d 1050

328 Mo. 295

State of Kansas at Relation and to Use of Winkle Terra Cotta Company v. United States Fidelity & Guaranty Company, Appellant

Supreme Court of Missouri

July 3, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Affirmed.

Eugene S. Quinton, W. Frank Carter, William T. Jones and John R. Turney for appellant.

(1) The rule of stare decisis, or "law of the case," is well stated by the Supreme Court of Kansas, in Henry v. Railway Co., 83 Kan. 104. (2) No cause of action is stated in favor of the State of Kansas, under the laws of Kansas, in the third amended petition. There can be no right of action without a cause of action. The cause of action in this case is not a common-law cause of action, but the statutory cause of action, given solely, to the materialman in this case. The State of Kansas is without authority to prosecute any right of action for a private individual. No private individual has a right to assert his individual right of action in the name of the State of Kansas. (3) The statutory cause of action, and the statutory right of action thereon, to the individual materialman in this case, arose in the State of Kansas, under the laws of the State of Kansas, and must be governed and controlled by the laws and decisions of the State of Kansas construing the same, under Article IV, Section 1, of the Constitution of the United States. If no cause of action is stated in favor of the State of Kansas upon the statutory bond sued on in the third amended petition, then it must follow, that an action commenced in the name of the State of Kansas, the State of Kansas would not be the real party in interest under the laws of the State of Kansas and the decisions of the Supreme Court controlling; neither would the State of Kansas be the real party in interest under the laws of Missouri in a statutory right of action upon a statutory cause of action that exists only and by virtue of the laws of the State of Kansas. A T. & S. F. Ry. Co. v. Commissioners of Jefferson County, 11 Kan. 66; State of Kansas v. Anderson, 5 Kan. 115; State ex rel. Wells v. Marston, 6 Kan. 524; Crowell v. Ward, 16 Kan. 60; Laws 1909, Chap. 182 R. S. Kan. 1923, Sec. 60-401; Secs. 1162, 1155, R. S. Mo. 1919; McGinnis v. Car & Foundry Co., 174 Mo. 225; Jones v. Railroad Co., 178 Mo. 540; Woodward v. Bush, 282 Mo. 173.

Harry E. Sprague and Franklin Miller for respondent.

(1) The law of this case is written in the decision in the first appeal, 14 S.W.2d 576, 322 Mo. 121, and, in the absence of gross error or manifest injustice, is controlling of the issues there decided. Chambers, Admr., v. Smith's Admr., 30 Mo. 156; Overall v. Ellis, 38 Mo. 209; State ex rel. v. Judges, 41 Mo. 574; Chouteau v. Allen, 74 Mo. 56; Atkison v. Dixon, 96 Mo. 577; Keith v. Keith, 97 Mo. 223; Gwin v. Waggoner, 116 Mo. 143; Chapman v. Railroad Co., 146 Mo. 481; Baker v. Railroad Co., 147 Mo. 140; May v. Crawford, 150 Mo. 504; Bealey v. Smith, 158 Mo. 515; State ex rel. v. Spencer, 166 Mo. 271; State ex rel. v. Lbr. Co., 170 Mo. 7; Taussig v. Railroad Co., 186 Mo. 269; Bagnell Timber Co. v. Railroad Co., 242 Mo. 11; Viertel v. Viertel, 212 Mo. 562; Williams v. Butterfield, 214 Mo. 412; Gracey v. St. Louis, 221 Mo. 1; Meriwether v. Publishers, 224 Mo. 617; United Shoe Machy. Co. v. Ramlose, 231 Mo. 527; McLure v. Bank, 263 Mo. 128; Drainage Dist. v. Bates Co., 216 S.W. 949; Lewis v. Barnes, 220 S.W. 487; Miss. Vall. Tr. Co. v. Begley, 275 S.W. 540, 310 Mo. 287; Matthews v. Austin, 297 S.W. 367; Bushman v. Barlow, 15 S.W.2d 331; Reed v. Mo. Mut. Assn., 33 S.W.2d 988; Sabol v. Cooperage Co., 31 S.W.2d 1044. (2) The lex fori governs the remedy, the form of the action, the procedure and the form of the judgment. 1 C. J. 984; 12 C. J. 445; 49 C. J. 33; 5 R. C. L. 1042; Wharton's Conflict of Laws (3 Ed.), secs. 736B, 747; Scudder v. Nat. Bk., 91 U.S. 406; Pritchard v. Norton, 106 U.S. 124; Willard v. Wood, 135 U.S. 309; Tenn. Coal, Iron & Railroad Co. v. George, 233 U.S. 354; A. T. & S. F. Railroad v. Sower, 213 U.S. 55; Hefferlin v. Sinsinderfer, 2 Kan. 401; Hoggett v. Emerson, 8 Kan. 262; Denny v. Faulkner, 22 Kan. 98; Otey v. Railroad, 108 Kan. 755; Ruhe v. Buck, 124 Mo. 178. (3) Under Missouri statutes the action was required to be brought in the name of the State of Kansas, as obligee in the bond. R. S. 1929, secs. 2855, 2858, 2861, 2891, 2883, 2885; United States to the use of Hayes v. Ferguson, 16 Mo. 258; Stearns on Suretyship (3 Ed.), 231, sec. 142. (4) Under Kansas decisions the six months limitation provided in the Kansas Statute (60-1414, R. S. Kan. 1923) runs from the actual completion of the building. Hull v. Mass. Bonding Co., 86 Kan. 342; Dickey v. U.S. F. & G. Co., 107 Kan. 605. (5) The full-faith-and-credit clause of the United States Constitution (Art. IV, Sec. 1) has no application to the instant case. 5 R. C. L. 1042; 13 C. J. 445-447. 1 Willoughby on Const. of United States, 272; Augusta Bank v. Earle, 13 Pet. (U.S.) 589; Scudder v. Nat. Bk., 91 U.S. 406; Pritchard v. Norton, 106 U.S. 124; Willard v. Wood, 135 U.S. 309; Tenn. Coal, Iron & Railroad Co. v. George, 233 U.S. 354; A. T. & S. F. Ry. v. Sower, 213 U.S. 55.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

This is the second appeal in this case, the former opinion being reported in 322 Mo. 121, 14 S.W.2d 576.

The State of Kansas is a nominal party plaintiff. The real party plaintiff, the Winkle Terra Cotta Company, a corporation, brought this suit on a contractor's bond for the balance due for materials furnished for the construction of a building. Olson & Johnson Company, a corporation, was the principal in the bond. The name was later changed to Olson-Magee Company. The defendant, United States Fidelity & Guaranty Company, was surety on this bond.

The State of Kansas entered into a contract with Olson & Johnson Company for the erection of a certain building at Lawrence, Kansas. Plaintiff was a subcontractor and furnished the terra cotta. The Kansas statute provided in part (Sec. 60-1414, R. S. Kan. 1923): "Any person to whom there is due any sum for labor and material furnished, as stated in the preceding section, or his assigns, may bring an action on said bond for the recovery of said indebtedness; Provided, That no action shall be brought on said bond after six months from the completion of said public improvements or buildings." The cause of action is based on plaintiff's contract, the bond and the Kansas statutes. [Secs. 60-1413, 60-1414, R. S. Kan. 1923.] For a full and complete statement of the case, the reader is referred to the former opinion. It is tacitly admitted in this case that the Winkle Terra Cotta Company was a subcontractor under Olson & Johnson Company, and furnished the material as alleged in the petition under a contract with the original contractor Olson & Johnson and that the amount sued for has not been paid. No evidence was offered at either the first or second trial by defendant to dispute plaintiff's claim. In the answer it is expressly admitted that the plaintiff furnished the material between March 6th and October, 1918. The answer further alleges that the building was completed December 2, 1918, and the state architect made his final monthly estimate of the completion of the said building on January 14, 1919. The suit was filed October 22, 1919. The defendant pleads the Kansas statute of limitations, supra, as a bar to this action. It is also pleaded in the answer that under the Kansas laws the plaintiff is not entitled to and has no right to sue in the name of the State. The defendant pleads in full the Kansas statute and decisions applicable to the issues according to defendant's theory.

At the first trial, judgment was entered for defendant apparently on the theory that the building was completed prior to January 14, 1919, the date of the final estimate of the state architect. The lower court held the case barred by virtue of the Kansas limitation statute, Section 60-1414, supra.

The case on appeal was reversed and remanded in an opinion written by Commissioner Higbee and concurred in by all of the judges and commissioners in Division Two of this court.

The case was retried before the court sitting as a jury, a jury having been waived by both parties. Plaintiff offered evidence of the furnishing of the materials and of the balance due and unpaid, also the contract entered into with Olson & Johnson, and in general offered evidences in support of the allegations of its petition. The court found in favor of the plaintiff and entered judgment for $ 32,275.31 and interest $ 21,961.86. The defendant, failing in his motion for a new trial, appealed.

The issues raised by the answer in this case are identical with those disposed of on the former appeal. During the second trial no new issues were presented to the court that were not fully considered and disposed of in the former opinion.

We are not authorized to disturb the rulings in the former opinion unless we find it manifestly erroneous, or that an injustice has been done. [Northstine v. Feldmann, 8 S.W.2d 912.] The circuit court on the retrial followed the rulings in the former case, which became and is the law of the case. Those questions therefore adjudicated in the former opinion are not open for re-examination on this appeal. [Chambers' Admr. v. Smith's Admr., 30 Mo. 156; Mullins v. Mt. St. Mary's Cemetery Assn., 168 S.W. 685, 259 Mo. 142; State ex rel. Dolman v. Dickey, 231 S.W. 582, 288 Mo. 92; Seibert v. Harden, 8 S.W.2d 905, 319 Mo. 1105; Gracey v. St. Louis, 221 Mo. 1; Bagnell v. Railway, 242 Mo. l. c. 21. For other cases see Mo. Digest, Appeal and Error, sec. 1097.]

The defendant earnestly insists, however, that the full-faith-and-credit...