Wente v. Shaver

• Decision Date: 02 March 1943
• Docket Number: 38144
• Citation: 169 S.W.2d 947,350 Mo. 1143
• Parties: Margaret Pollard Wente, Executrix of the Estate of Anna L. Pollard, Deceased, Appellant, v. Nellie Shaver, Respondent
• Court: Missouri Supreme Court

169 S.W.2d 947

350 Mo. 1143

Margaret Pollard Wente, Executrix of the Estate of Anna L. Pollard, Deceased, Appellant, v. Nellie Shaver, Respondent

No. 38144

Supreme Court of Missouri

March 2, 1943

Rehearing Denied April 6, 1943.

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Reversed and remanded.

Lashley Lashley, Miller & Clifford for appellant.

(1) On a review of a ruling on a demurrer to the evidence, the question to be determined is whether, under any possible view of plaintiff's evidence, a case of liability on the part of the defendant is made out; and in ruling that question the appellate court is required to view the evidence in the light most favorable to the plaintiff. Berry v. Kansas City Pub. Service Co., 343 Mo. 474, 121 S.W.2d 825; Kelso v. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84. (2) The action of the trial court in sustaining a demurrer to plaintiff's evidence, and dismissing plaintiff's action, cannot be upheld upon the theory that plaintiff's cause of action is barred by the applicable Statute of Limitations (R. S. of Mo. 1939, Section 3656). (a) Because plaintiff duly commenced an action against defendant within one year after plaintiff's cause of action accrued and thereafter took or suffered a nonsuit in said action and within one year after said nonsuit was suffered commenced the instant action, all within the meaning, intent, purpose and proper interpretation of Section 3656, R. S. of Missouri 1939, providing that: "Every action instituted by virtue of the preceding sections of this article shall be commenced within one year after the cause of action shall accrue: . . . and provided, that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit . . . such plaintiff may commence a new action from time to time within one year after such nonsuit suffered." And this is so, notwithstanding the fact that it later developed that the venue of the first action was not properly laid. Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954; Mason v. Kansas City Belt Ry. Co., 226 Mo. 212, 125 S.W. 1128; State ex rel. v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521; St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504; Gaines v. City of N. Y., 215 N.Y. 533, 109 N.E. 594; Pittsburgh, C. C. & St. L. Ry. Co. v. Bemis, 64 Ohio St. 26, 59 N.E. 745; McKittrick v. Bates, 47 R. I. 240, 132 A. 611; Tompkins v. Pacific Mut. Ins. Co., 53 W.Va. 479, 44 S.E. 439; Little Rock, M. R. & T. Ry. Co. v. Maness, 49 Ark. 248, 4 S.W. 778; Smith v. McNeal, 109 U.S. 426, 27 L.Ed. 986. (b) Because plaintiff duly commenced an action against defendant within one year after plaintiff's cause of action accrued, and thereafter took or suffered a nonsuit in said action, and within one year after said nonsuit was suffered commenced the instant action, all within the meaning, intent, purpose and proper interpretation of Section 3656, R. S. of Missouri 1939, even though it might be contended that the petition in the first action failed to state a cause of action. Importers & Exporters Ins. Co. v. Farris, 73 P.2d 831; Webb v. Hicks, 125 N.C. 201, 34 S.E. 395; Haack v. Pollei, 134 Minn. 78, 158 N.W. 908; Manhattan Oil Co. et al. v. Mosby, 72 F.2d 840. (3) Where, as here, plaintiff pleads and proves a cause of action against defendant, and there is evidence introduced by plaintiff from which the jury could reasonably conclude that plaintiff is entitled to recover either substantial or nominal damages from the defendant, it is reversible error for the trial court to sustain a demurrer to plaintiff's evidence and dismiss plaintiff's action. Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718; Bullmore v. Beeler, 33 S.W.2d 161; Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463; Berry v. Kansas City Pub. Service Co., 343 Mo. 474, 121 S.W.2d 825; Smelser v. Missouri, K. & T. Ry. Co., 262 Mo. 25, 170 S.W. 1124; King v. St. Louis, 250 Mo. 501, 157 S.W. 498; Lampert v. Judge & Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095; Lampert v. Judge & Dolph Drug Co., 119 Mo.App. 693, 100 S.W. 659; Puutio v. Roman, 76 Mont. 105, 245 P. 523.

Karl P. Spencer and Harry S. Rooks for respondent.

(1) This statutory action for wrongful death (which did not exist at common law) was instituted more than one year after the death and is barred by the statute requiring suit to be brought within one year as a condition for recovery. R. S. 1939, sec. 3656. (2) The provision in Section 3656 permitting suit within a year after nonsuit does not apply because: (a) The court was without jurisdiction of the prior suit in the City of St. Louis, since neither plaintiff nor defendant resided in said city. The action was not "commenced," since it was not filed in the "proper" court, as required by the statute, and no valid process was or could be issued therein. R. S. 1939, secs. 871, 876, 3656; Mertens v. McMahon, 115 S.W.2d 180; Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265. (b) The judgment on the plea in abatement in the prior suit is res adjudicata of the lack of jurisdiction of that court. (c) The petition in the prior suit stated no cause of action, and, hence, this suit is on a different cause of action, if any. The prior petition could not have been amended to state a cause of action after a year from the death and thereby avoid the bar of the statute. Reed v. Jackson County, 142 S.W.2d 862; American Const. Fire Assur. Co. v. O'Malley, 113 S.W.2d 795. (d) The prior petition did not allege that decedent was not survived by a husband or minor children, or was an unmarried minor without surviving parents, and failed to show any right of executrix to sue. R. S. 1939, secs. 3652, 3653, 3654; O'Donnell v. Wells, 323 Mo. 1170, and cases cited. (e) The prior petition failed to allege that any person survived for whom a recovery could be had, and stated no cause of action. Martin v. S.W. Bell Tel. Co., 344 Mo. 83, and cases cited; Johnson v. Dixie Min. & Dev. Co., 187 S.W. 1; Newell v. St. L. Transit Co., 205 Mo.App. 543. (3) The petition fails to state a cause of action for the following reasons: (a) It shows that the action is barred by the statute limiting the time to sue. (b) It fails to allege any damages, or that anyone was damaged by the decedent's death, and fails to state facts showing that anyone is entitled to a recovery for the death. Damage to plaintiff is an indispensable element of actionable negligence which must be pleaded and proved. 45 C. J., "Negligence," secs. 31, 671, pp. 661, 1097. (4) The allegation in the petition in the present case and in the prior case that the plaintiff is the "sole surviving heir at law of Anna L. Pollard, deceased," is the statement of a mere legal conclusion and not a statement of fact, and cannot be considered, but must be wholly disregarded, in construing the sufficiency of the petitions to state a cause of action. Stewart v. Coshaw, 238 Mo. 662. (5) The evidence merely showed that decedent was rendering plaintiff services in exchange for room and board, without showing the extent or value of either, which was insufficient to authorize a recovery of damages.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action under the compensatory section of the death statute to recover $ 10,000 damages for the alleged wrongful death of Anna L. Pollard. At the close of plaintiff's case, the court gave a peremptory direction to the jury to find for defendant. Thereupon plaintiff took an involuntary nonsuit with leave to move to set the same aside. Motion to set aside was overruled and plaintiff appealed.

The cause was first filed in the circuit court of the City of St. Louis, and a nonsuit taken in that case. Thereafter, the cause was filed in the circuit court of St. Louis County, resulting in a nonsuit, as stated.

Deceased was struck and killed in St. Louis County on July 4, 1939, by defendant's automobile, driven at the time by her. At that time deceased resided with her daughter, plaintiff executrix here, in Richmond Heights, St. Louis County. Defendant also was a resident of Richmond Heights, St. Louis County. January 16, 1940, the cause was filed in the circuit court of the City of St. Louis, and process issued on the following day. The original summons was returned not served. April 3, 1940, alias summons was issued and served in the City of St. Louis on the following day. June 3, September 6, and September 7, 1940, respectively, defendant, limiting her appearance, filed in the St. Louis circuit court a motion to quash the alias summons and the return thereon, a plea in abatement, and an amended plea in abatement. All these were based on the alleged ground that the St. Louis circuit court did not have jurisdiction of the cause for the reason that both plaintiff and defendant were residents of St. Louis County. The motion to quash was overruled September 6, 1940, but the amended plea in abatement was sustained September 18, 1940, and on same day plaintiff took a voluntary nonsuit.

October 15, 1940, the cause was filed in the circuit court of St. Louis County. January 14, 1941, defendant filed a demurrer to the petition. The demurrer was directed to the proposition that the cause was, under Sec. 3656, R. S. 1939, Mo. R. S. A. Sec. 3656, barred by limitation because not filed within one year from the accrual of the cause of action. January 27, 1941, the demurrer was overruled and defendant filed answer on February 5, 1941. The cause went to trial on February 9, 1942, and plaintiff took the involuntary nonsuit at the close of her case next day.

These questions are presented: Did the petition filed January 16 1940, in the circuit court of the City of...