Strottman v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 13 May 1910
• Citation: 228 Mo. 154,128 S.W. 187
• Court: Missouri Supreme Court
• Parties: STROTTMAN v. ST. LOUIS, I. M. & S. RY. CO.

128 S.W. 187

228 Mo. 154

STROTTMAN v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

May 13, 1910.

1. LIMITATION OF ACTIONS (§ 130)—PENDING OF ACTION—"REVERSAL."

Rev. St. 1899, § 639 (Ann. St. 1906, p. 658), provides that plaintiff may dismiss or take a nonsuit at any time before the suit is submitted to the jury or to the court, and not afterward. Acts 1905, p. 138, enacted in lieu of Rev. St. 1899, § 2868 (Ann. St. 1906, p. 1652), provide that every action instituted under the preceding sections of the chapter shall be commenced within one year after the cause of action accrues, provided that if any action shall have been commenced within the prescribed time, and plaintiff suffer a nonsuit, or after verdict for him, the judgment be arrested or reversed on appeal or error, plaintiff may commence a new action, from time to time, within one year after such nonsuit suffered or judgment arrested or reversed. Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), authorizes the appellate courts to examine the record and award a new trial, reverse or affirm the judgment, or give such judgment as the trial court should have given. Held, that where the Supreme Court has rendered a judgment merely reversing the judgment for plaintiff on the law and the facts, plaintiff cannot within a year bring another action on the same cause of action; such judgment not being equivalent to a nonsuit, the "reversal" mentioned in the statute meaning a reversal in which the merits were not passed on.

2. DISMISSAL AND NONSUIT (§ 7)—TIME FOR NONSUIT.

While at common law plaintiff can take a nonsuit at any time before verdict, under the direct provisions of Rev. St. 1899, § 639 (Ann. St. 1906, p. 658), plaintiff may take a nonsuit any time before the suit is finally submitted, but not afterwards.

3. STATUTES (§§ 174, 175) — CONSTRUCTION — UNREASONABLE CONSTRUCTION.

A statute should not be given an unreasonable construction.

4. APPEAL AND ERROR (§ 1180)—REVERSAL AND DISMISSAL.

A reversal of judgment for plaintiff, and dismissal of the petition, finally determines the cause of action.

In Banc. Appeal from St. Louis City Circuit Court; Geo. C. Hitchcock, Judge.

Action by Magdalena Strottman against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for defendant on demurrer to the petition, plaintiff appeals. Affirmed.

Block & Sullivan, for appellant. J. F. Green and R. T. Railey, for respondent.

GRAVES, J.

This cause is here for a second time. There was at least an attempted adjudication of it in Strottman v. Railway Co., 211 Mo. 227, 109 S. W. 769. We have purposely used the word "cause" instead of the word "case." The cause when first here came by appeal from Jefferson county. Plaintiff, the widow of an engineer in the employ of defendant, sued for the alleged negligent killing of her husband. The negligence charged was the failure of a telegraph operator to deliver a train dispatcher's message, through which failure a collision occurred and plaintiff's husband was killed. When that case came on for hearing in this court, by majority opinion it was held that the deceased engineer and telegraph operator were fellow servants under the act of 1897 (Laws 1897, p. 96), but further held that such act of 1897 did not give the widow a right of action. This court upon an examination and hearing upon both the facts and the law entered a simple judgment of reversal, in words as follows: "Now at this day come again the parties aforesaid, by their respective attorneys, and the court here being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment aforesaid, in the form aforesaid, by the said Jefferson county circuit court rendered, be reversed, annulled, and for naught held and esteemed, and that the said appellant be restored to all things which it has lost by reason of the said judgment. It is further considered and adjudged by the court that the said appellant recover against the said respondent its costs and charges herein expended, and have execution there for. (Opinion filed.)"

The present case was instituted in the circuit court of the city of St. Louis by a petition containing two counts. The two counts are the same save and except in the second there is an allegation of wanton and willful negligence and a prayer for punitive as well as other damages. Both counts of said petition contain the following allegations: "Within six months next after said accident, injury, and death of the plaintiff's husband, she brought her action against the defendant in the circuit court of Jefferson county to recover damages therefor, and to recover upon the cause of action sued for herein, and subsequently, on May 14, 1903. recovered a judgment against the defendant therein, and said cause was thereupon taken by the defendant to the Supreme Court of Missouri, on appeal, and said judgment was by the Supreme Court of Missouri on the 20 day of April, 1908, reversed, to the damage of the plaintiff in the sum of five thousand dollars ($5,000), for which she prays judgment." Other allegations in the two respective counts of the petition were such in substance as are found in the petition when the cause was formerly here. In this count actual damages for $5,000 and additional punitive damages for $5,000 are claimed.

To this petition, the defendant filed a demurrer in this language: "Now comes the defendant in the above-entitled cause and demurs to the first count of the amended petition filed therein for the reasons following: First. Because said first count of said amended petition fails to state facts sufficient to constitute a cause of action against this defendant. Second. Because it appears on the face of said first count that plaintiff has no cause of action against this defendant. And defendant demurs to the second count of said amended petition for the reasons following: First. Because said second count of said amended petition fails to state facts sufficient to constitute a cause of action against this defendant. Second. Because it appears on the face of said second count that plaintiff has no cause of action against this defendant."

This demurrer, the trial court sustained, and entered its judgment for the defendant, and from such judgment the plaintiff has appealed. The cause was briefed and argued here both upon the merits and upon the question of res adjudicata. Such sufficiently states the case.

1. In our judgment the present case is determined without a rediscussion of the merits of the cause. The present case, whilst here upon petition and demurrer, is as if it were here upon all the original facts with an answer pleading former adjudication. The petition was evidently so drawn as to force this situation. It avers all the facts necessary to be set out in an answer pleading former adjudication, and the demurrer raises the issue by conceding the pleaded facts. The demurrer performs a further office by raising a clear issue of law, i. e., that the petition upon its face shows a former adjudication of the cause of action stated, and for that reason discloses no right of action in the present case. We are therefore brought to the single question as to the force and effect of a simple judgment of reversal in an appellate court in a case where such court passed upon the entire cause, including both the law and the facts. The exact question is here for the first time. In all the history of the court, this is the first time a judgment of reversal in a case of this character has been treated as a nonsuit, and a suit reinstituted, carried to judgment, and appealed to this court. It is therefore interesting because of its novelty, if for no other reason.

The question must turn somewhat upon our statutory provisions. The various statutes are: Rev. St. 1899, § 639 (Ann. St. 1906, p. 658) which reads: "The plaintiff shall be allowed to dismiss his suit or take a nonsuit at any time before the same is finally submitted to the jury or to the court sitting as a jury, or to the court, and not afterward." Rev. St. 1899, § 866 (Ann. St. 1906, p. 815): "The Supreme Court, St. Louis Court of Appeals, and Kansas City Court of Appeals, in appeals or writs of error shall examine the record and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given as to them shall seem agreeable to law; but it shall not be necessary, for the review of the action of any lower court on appeal or writ of error, that the motion for new trial in arrest of judgment or instructions filed in the lower court, shall be copied or set forth in the bill of exceptions filed in the lower court: Provided, the bill of exceptions so filed contains a direction to the clerk to copy same, and the same are so copied into the record sent up to the appellate court. When the facts in a special verdict are insufficiently found, they may remand the cause and order another trial to ascertain the facts." Rev. St. 1899, § 2868 (Ann. St. 1906, p. 1652): "Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of such action shall accrue."

Acts 1905, p. 138, which were enacted in lieu of Rev. St. 1899, § 2868, read thus: "Every action instituted by virtue of the preceding sections of this chapter shall be commenced within one year after the cause of action shall accrue: Provided, that if any action shall have been commenced within the time prescribed by this section, and the plaintiff therein suffer a nonsuit, 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 nonsuit suffered or such judgment arrested or reversed." Rev. St. 1899, § 4285 (Ann. St. 1906, p. 2357): "If any action shall have been commenced within the...