Watson v. St. Paul City Ry. Co.

• Decision Date: 22 May 1899
• Citation: 79 N.W. 308,76 Minn. 358
• Parties: WATSON v. ST. PAUL CITY RY. CO.
• Court: Minnesota Supreme Court

76 Minn. 358

79 N.W. 308

WATSON

v.ST. PAUL CITY RY. CO.

Supreme Court of Minnesota.

May 22, 1899.

Appeal from district court, Ramsey county; Hascal R. Brill, Judge.

Action by Albert N. Watson, administrator of Lena E. Watson, against the St. Paul City Railway Company. Verdict for plaintiff. From an order denying a new trial, defendant appeals. Reversed.

Syllabus by the Court

1. In an action by an administrator to recover under the provisions of Gen. St. 1894, § 5913, in which there was a trial by the court without a jury, and on findings of fact judgment was ordered for plaintiff, it is held that the finding that the cause of the death of plaintiff's intestate was the accident complained of was supported by the evidence.

2. Held, that the judgment in a former action between these parties (Watson v. Railway Co., 73 N. W. 400, 70 Minn. 514), is not a bar to a recovery in this, because a cause of action was not stated in the complaint in the former action.

3. The general rule is that the admissibility, on the trial of a second action, of a deposition taken in a former one, is made to turn upon the identity of the matters in issue, and the opportunity of the party against whom the deposition is offered to cross-examine the witness, rather than upon the perfect mutuality of the parties.

4. In the former action, judgment on the merits was ordered, on the pleadings, against the defendant, for the reason stated in subdivision 2 of these head notes. In effect, the judgment amounted to a dismissal. Held, that the deposition of a nonresident, taken in the former action, was admissible on the trial of this, under the general rule, and by virtue of the provisions of Gen. St. 1894, § 5681.

5. The party offering evidence taken by deposition is not obliged to offer or to read the whole deposition. He may offer and read parts, subject to the order of the court that the whole be read at the same time. Munn & Thygeson, for appellant.

F. D. Larrabee and M. A. Spooner, for respondent.

COLLINS, J.

This action, to recover under the provisions of Gen. St. 1894, § 5913, was tried by the court without a jury; and, upon findings of fact, judgment was ordered for plaintiff in the sum of $1,000. The defendant's appeal is from an order denying a new trial.

1. It is contended that the court erred in finding that the accident complained of was the cause of the death of plaintiff's intestate. This, of course, involves the sufficiency of the evidence to support the challenged finding. It is true that the evidence tended to show that the deceased had been suffering from what the physicians called ‘pernicious, progressive anaemia,’ prior to the accident; but there was also evidence tending to establish plaintiff's claim that she had nearly recovered from her illness when she was injured while a passenger on one of defendant's electric cars, and that this injury brought on another attack of the disease. There was a large amount of evidence upon the question as to what was the cause of the death, and undoubtedly it was very carefully examined and weighed by the learned trial judge who heard the same and made the findings. An examination of the evidence compels us to say that we cannot set aside the finding upon the ground that there was no evidence to support it.

2. It is also contended that the trial court erred in holding that the judgment in an earlier case between these parties was not res judicata in this action. The judgment referred to was that affirmed in Watson v. Railroad Co., 70 Minn. 514, 73 N. W. 400. It is true, as was set forth in the answer herein, and as was admitted on the trial, that the former action was, by mutual agreement, submitted to the court below on the merits, on motion for judgment on the pleadings; such motion being made by defendant's counsel. But the decision turned upon the right of a widower to have the benefit of Gen. St. 1894, § 5913; and it was held that he was not entitled,-that he was not next of kin. In effect, the ruling was that the complaint failed to state facts sufficient to constitute a cause of action. The motion for judgment on the pleadings was nothing more, practically, than a general demurrer to the complaint, and the decision simply amounted to holding that a cause of action was not stated. In the complaint in this action sufficient facts were averred, and plaintiff's right to recover under the statute was made to appear, because it was alleged that deceased left surviving her, as next of kin, a daughter aged 11 years. The plaintiff failed in the first action because he omitted an essential allegation in his complaint, which omission was fully and adequately covered in the complaint in the second suit. The point made as to the...