Taylor v. Cleveland, C., C. & St. L. Ry. Co.

• Citation: 63 S.W.2d 69,333 Mo. 650
• Decision Date: 12 August 1933
• Docket Number: 30358
• Parties: O. D. Taylor, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, a Corporation
• Court: United States State Supreme Court of Missouri

63 S.W.2d 69

333 Mo. 650

O. D. Taylor, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, a Corporation

No. 30358

Supreme Court of Missouri

August 12, 1933

Rehearing Overruled June 24, 1933.

Respondent's Motion to Transfer to Banc Overruled August 12, 1933.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Rosskopf, Judge; Opinion filed at October Term, 1932 April 20, 1933; motion for rehearing filed; motion overruled June 24, 1933; motion to transfer to Court en Banc filed motion overruled at May Term, June 24, 1933.

Reversed and remanded (with directions).

C. O. Inman, Elliott W. Major and James A. Rector for appellant.

(1) The authority of a trial court to grant a new trial under the statutes is conditioned on the fact that motion therefor be made within four days after trial, and the court erred in ordering a new trial on grounds set out in an affidavit filed forty-four days after trial. Secs. 1002, 1005, R. S. 1929; Maloney v. Ry. Co., 122 Mo. 106; Brinton v. Thomas, 138 Mo.App. 64; Central Liberty Trust Co. v. Roy, 212 Mo.App. 680; Bank v. Porter, 148 Mo. 176; Mirrielees v. Railway Co., 163 Mo. 470; Marsala v. Marsala, 288 Mo. 501; State v. Brooks, 92 Mo. 542. (2) The power of a trial court to grant a new trial by inherent common-law authority is lost after adjournment of the judgment term, and the court erred in ordering a new trial on grounds suggested in respondent's motion to set aside the verdict and judgment with accompanying affidavit, filed at a succeeding term of court. Mid-West Natl. Bank v. Parker Corn Co., 211 Mo.App. 413; Lamb v. Stubblefield, 245 S.W. 351; Central Liberty Trust Co. v. Roy, 212 Mo.App. 680; Glitzke v. Ginsberg, 258 S.W. 1004; Herbert v. Howley, 32 S.W.2d 1095; Inzerillo v. Ry. Co., 35 S.W.2d 44; Marsala v. Marsala, 288 Mo. 501; Thurman v. Wells, 251 S.W. 75; Landau v. Consumer Mill Co., 36 S.W.2d 921; Smith v. K. C. Public Serv. Co., 43 S.W.2d 548; Ford v. Pieper, 24 S.W.2d 1054. (3) Motion for a new trial cannot be amended in substance by supplemental motion or affidavit after expiration of the four days fixed by statute, and the court erred in its refusal to strike the affidavit of Joseph Hall from the files and erred in ordering a new trial based solely upon the facts stated therein. State ex rel. Iba v. Ellison, 256 Mo. 644; Thurman v. Wells, 251 S.W. 75; Gray v. Lumber Co., 177 S.W. 595; State ex rel. Conant v. Trimble, 311 Mo. 128; State v. Brooks, 92 Mo. 542; Bank v. Bennett, 138 Mo. 494; Mirrielees v. Railway Co., 163 Mo. 470; State v. Dusenberry, 112 Mo. 277; Gray v. Nations, 23 S.W.2d 1080. (4) The court, in effect, overruled respondent's motion for a new trial timely filed in its entirety, but erroneously granted respondent a new trial on grounds not properly before the court and not suggested in respondent's motion for a new trial timely filed. Sec. 1003, R. S. 1929; Buehler v. Waggoner Co., 231 S.W. 283; Arkla Lumber Co. v. Quellmalz, 252 S.W. 961; Thomas v. Woodmen of America, 260 S.W. 552; State ex rel. v. Thomas, 245 Mo. 65; Kersten v. Hines, 283 Mo. 634; Bradley v. Reppel, 133 Mo. 545.

Charles A. Houts for respondent; H. N. Quigley and S. W. Baxter of counsel.

(1) While the court predicated its order sustaining defendant's motion for new trial upon the ground that perjury upon a material point had been committed, and that the perjured testimony had been procured by the plaintiff himself, its action in so doing, if justified on grounds other than the one given by the court, may be sustained in this court. Chandler v. Gloyd, 217 Mo. 406. (2) It should have been sustained upon the ground that the petition, charging merely that "the train was suddenly, violently and negligently stopped with unusual, extraordinary and violent force" did not state facts sufficient to constitute a cause of action; this because: (a) Freight trains are often, in response to an obligation to the public, required to stop with "sudden, unusual, extraordinary and violent force." Railroad v. Smith, 42 F. 111. (b) This being a case under the Federal Employers' Liability Act, a plaintiff is required to both allege and prove an act of negligence causing his injuries. Railroad v. Ambrose, 280 U.S. 486; Railroad v. Allen, 276 U.S. 165; Mo. Pacific v. Aeby, 275 U.S. 426; Railroad v. Harris, 247 U.S. 367. (c) The allegation of the petition, that the train was stopped with sudden, unusual and extraordinary violence, is not enough to charge the defendant with a violation of a duty which it owed to the plaintiff; and the further allegation that such stopping of the train was negligent does not cure the defect. Waldheier v. Railroad, 71 Mo. 514; McPeak v. Mo. Pacific, 128 Mo. 617; State ex rel. v. Hardy, 296 Mo. 594; Zasemowich v. Mfg. Co., 213 S.W. 799; Sabol v. Cooperage Co., 282 S.W. 425; Kramer v. Power & Light Co., 279 S.W. 43; Hopkins v. Amer. Car & Fdry. Co., 295 S.W. 841; Saxon v. Mo. Pacific, 98 Mo.App. 494. (3) It should have been sustained upon the ground that plaintiff's Instruction 1 was erroneous, in that it submitted to the jury, not only the question whether the stopping of the train was sudden, unusual and extraordinarily violent, but the further question, whether such stopping of the train was "unnecessary." The petition contained no charge that the stopping of the train was unnecessary. It was therefore erroneous to submit that question to the jury. Kellogg v. Kirksville, 132 Mo.App. 519; Bank v. Stewart, 136 Mo.App. 24; Christian v. Insurance Co., 143 Mo. 469. Moreover, the instruction was erroneous in leaving the jury to decide whether or not the stopping of the train was "necessary," without guidance from the court as to the word "necessary." Rowen v. Railroad, 82 Mo.App. 24; Day v. Railroad, 81 Mo.App. 486; Jordan v. Weber, 72 Mo.App. 325; Beggs v. Shelton, 173 Mo.App. 127; Donnegan v. Briggs, 170 Mo.App. 691. (4) The defendant having filed a timely motion for new trial which was continued to a subsequent term, the court had the power to sustain such motion at the subsequent term upon the ground that the plaintiff had procured perjured testimony to be given upon a material point, even though the ground upon which the motion was sustained was not included in the motion for a new trial; this because: (a) The filing of the motion, and its continuance to a subsequent term, continued the jurisdiction of the court over the parties and over the judgment, and empowered the court to deal with the judgment as justice might require. 1 Black on Judgments, sec. 310; Goddard v. Ordway, 101 U.S. 745; Walker v. Moser, 117 F. 230; Ricketts v. Finkelston, 211 S.W. 390; Sutton v. Anderson, 318 S.W.2d 1026; McGurry v. Wall, 122 Mo. 614; Chandler v. Gloyd, 217 Mo. 394; State v. Trimble, 311 Mo. 139; Nogalsky v. Foundation Co., 199 S.W. 176; Parker v. Britton, 32 Mo.App. 270; Lamb v. Stubblefield, 245 S.W. 351; Pullen v. Eugene, 77 Ore. 320; Hartman v. Viera, 133 Ill.App. 216; Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079; Railroad v. Muse, 109 Tex. 352; Townes v. Larimore, 114 Tex. 511; Lovell v. Davis, 52 Mo.App. 342; Fine v. Rogers, 15 Mo. 315; Leahey v. Dugdale, 41 Mo. 517; 34 C. J., pp. 210-214; Utz v. Dormann, 39 S.W.2d 1053. (5) It would be a fraud upon the court and a fraud upon the defendant to permit the plaintiff to conspire with a witness to secure an unjust judgment through perjured testimony, and the court has inherent power to prevent itself from being so prostituted, so long as it has jurisdiction over the cause. Zeitinger v. Hargardine-McKittrick, 244 F. 719.

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

OPINION

COOLEY

This is an appeal by the plaintiff, Taylor, from an order of the Circuit Court of the City of St. Louis sustaining the defendant's motion for new trial. The case comes to the writer on reassignment. We shall refer to the parties as plaintiff and defendant respectively.

The suit was brought under the Federal Employers' Liability Act to recover for personal injuries sustained by the plaintiff on December 5, 1925, while engaged in performance of his duties as conductor on a through freight train of defendant's running eastward from East St. Louis to Mattoon, Illinois. Plaintiff and defendant were engaged in interstate transportation. Plaintiff's injuries resulted from the sudden and violent stopping of defendant's train at or near Venice, Illinois. Plaintiff was at the time seated at a table in the caboose making out reports in the line of his duty. The train was stopped by the engineer with such suddenness and violence that the table at which plaintiff was seated, which had been securely fastened to the wall of the caboose, was torn loose and other fixtures in the caboose, such as the stove, water cooler, stationery cabinet and coal box, all of which had been securely fastened to the walls or floor of the car were torn loose from their fastenings and hurled forward toward the east end of the car. A brakeman who had started out of the rear door was hurled to the east end of the car. Some cattle in the car ahead of the caboose were killed. Witnesses testified that they had never seen such damage caused by the stopping of a train except, perhaps, in cases of head-on collisions. Plaintiff's evidence tended to show that he was thrown violently against the table at which he sat, his head striking a cabinet on the opposite side thereof, and was also struck by some of the equipment of the caboose loosened from its moorings by the sudden stop, and that he sustained serious and permanent injuries. He recovered a verdict for $ 33,000. Since this appeal presents no question as to the sufficiency of the evidence to sustain the verdict nor as to the amount of the verdict it is unnecessary to make a detailed statement of the evidence.

The verdict was...