Williams v. Illinois Cent. R. Co.
| Decision Date | 10 April 1950 |
| Docket Number | No. 41429,No. 1,41429,1 |
| Citation | 360 Mo. 501,20 A.L.R.2d 322,229 S.W.2d 1 |
| Parties | , 20 A.L.R.2d 322 WILLIAMS v. ILLINOIS CENT. R. CO |
| Court | Missouri Supreme Court |
Ninian M. Edwards, Jr., N. Murry Edwards, St. Louis, McHaney & McHaney, Flake L. McHaney, Hal H. McHaney, Kennett, for appellant.
Watts & Gentry, St. Louis, for respondent. Vernon W. Foster, Charles A. Helsell, John W. Freels, Chicago, of counsel.
LOZIER, Commissioner.
Plaintiff sued defendant for damages for personal injuries sustained in a train wreck in Louisiana, December 27, 1946. At the close of all the evidence (defendant offered none), defendant was denied a directed verdict requested by it on the ground the action was barred by the statutes of Louisiana. The verdict was for plaintiff for $12,500. Defendant's motion for new trial was overruled, its motion for judgment notwithstanding the verdict was sustained, judgment was entered in favor of defendant and plaintiff appealed.
On the evening of December 26, 1946, plaintiff purchased from defendant a round trip ticket from St. Louis, Mo., to New Orleans, La., and boarded the train. The next morning, 30 or 35 miles our of New Orleans, the moving train suddenly stopped and the car in which plaintiff was riding was derailed. Plaintiff was injured when thrown against the side of the car.
As plaintiff-appellant was 19 years old when she filed her suit (August 23, 1948, over a year after the derailment), statutes of limitation of actions and the nature of appellant's cause of action are involved. Defendant-respondent contends: That the cause was one ex delicto arising under the statutes of Louisiana (not a 'common law state') which statutes extinguish not merely the right to sue, but the cause of action itself, unless suit is brought within one year, and that, therefore, the action was barred by Sec. 1021. All references herein to Missouri statutes are to both R.S.1939 and Mo.R.S.A. Appellant asserts: That her cause is one ex contractu and that the 5 year limitation provided for in Sec. 1014 is applicable; that even if the cause is one ex delicto, the Louisiana statutes do not extinguish the cause of action; and that the 1 year limitation imposed in that state (if applicable in Missouri at all) is subject to Sec. 1020, suspending the running of the statute during her infancy.
The first issue for determination, then, is the nature of appellant's cause. The carrier-passenger relationship is created by contract, express or implied. Graves v. Mo. Pac. R. Co., 342 Mo. 542, 118 S.W.2d 787, and Thomas v. St. L.-S. F. Ry. Co., Mo.App., 293 S.W. 1051. It is not controverted 'that a passenger injured through the negligence of a carrier may proceed either upon the contract alleging the careless or negligent acts of the defendant as a breach of the contract of transportation, or proceed in tort and make the carelessness and negligence of the carrier the ground of his right of recovery.' 1 C.J.S., Actions, Sec. 49, p. 1119; 10 Am.Jur. 346; Nagel v. Thompson, 237 Mo.App. 1061, 170 S.W.2d 416; and Canaday v. United Rys. Co., 134 Mo.App. 282, 114 S.W. 88.
Generally, it is immaterial whether the cause is upon contract or in tort. However, the nature of the cause may become important for some reason, including whether the particular cause is barred. 1 C.J.S., Actions, Sec. 45, p. 1099; 41 Am.Jur. 338; Matthys v. Donelson, 179 Iowa 111, 160 N.W. 944; Sawyer v. El Paso & N. E. Ry. Co., 49 Tex.Civ.App. 106, 108 S.W. 718; Wells v. Oldsmobile Co., 147 Or. 687, 35 P.2d 232; Gottfried v. Gottfried, 269 App.Div. 413, 56 N.Y.S.2d 50. And, in any suit brought by a party entitled to sue either in tort or upon contract, where it becomes necessary to determine the nature of the cause, that determination is based upon construction of the complaint. 1 C.J.S., Actions, Sec. 46, p. 1100; White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18; Nagel v Thompson, supra; and Tamm v. Ford Motor Co., 8 Cir., 80 F.2d 723.
We thus come to the petition here. Its pertinent allegations were: That defendant was a common carrier for hire; that plaintiff purchased the ticket and 'that the defendant thereby agreed and it became its duty as a common carrier to well and safely carry the plaintiff' to New Orleans and 'return to St. Louis'; that 'through the carelessness and negligence of the defendant and in violation of the aforesaid contract, the car and train in which the plaintiff was being carried was carelessly and negligently caused, suffered, and permitted to become derailed, turn over and come to a sudden stop, causing plaintiff to be thrown from her seat in said car, forward and against the seat in front of her, and causing her to sustain the injuries hereinafter set out'; that 'she had no knowledge of the mechanism or operation of the car and train in which she was traveling, or the track, roadbed and appurtenances thereto upon which she was traveling; that the same was under the sole control, supervision and ownership in charge of the defendant as aforesaid; that the plaintiff relied solely upon the defendant for the proper maintenance and operation of said train, tracks, rights of way, rolling stock and appurtenances thereto'; that 'by reason of and as a direct and proximate result of the neglect and carelessness of defendant as aforesaid, she received the following injuries' (describing them).
Ordinarily, this petition, sounding both in tort and upon contract, would have been construed as stating a tort action. 1 C.J.S., Actions, Sec. 49, p. 1121; White v. Scarritt, and Canaday v. United Rys. Co., supra. However, in its answer, defendant admitted the allegations of the petition quoted above and admitted that 'the train on which plaintiff was riding on the occasion referred to in plaintiff's petition was derailed and that plaintiff suffered some injury as a result thereof, but defendant denies that she was injured as set out in plaintiff's petition.' Further answering, defendant alleged that the derailment occurred in Louisiana; that plaintiff's cause of action was one 'for damages * * * resulting from offenses or quasi offenses' and was, therefore, barred by Articles 3536 and 3537, Louisiana Civil Code, Revision of 1870, requiring her suit to have been filed within 1 year.
In her reply, plaintiff denied that her cause of action was barred by Louisiana law. She alleged that the action was 'governed by the laws and statutes of limitations of the State of Missouri, which allows plaintiff a period of five years after she becomes twenty-one years of age to file suit against the defendant for damages on account of injuries suffered by her on December 27, 1946.' She reiterated these allegations of her petition: As to defendant being a common carrier of passengers for hire; as to her purchase of 'the ticket entitling her to ride as a passenger'; as to defendant's contracting to carry her as a passenger safely from St. Louis, Mo., to New Orleans, La., and return; as to boarding the train; as to defendant, 'in breach of its said contract and in violation thereof,' negligently permitting the derailment. She concluded her reply with this allegation: 'That therefore plaintiff's suit herein is based on a Missouri contract governed and controlled by the laws of Missouri and the laws of Louisiana do not control, govern or affect plaintiff's right to file suit and recover in her petition herein.'
It is noted that defendant, in its answer, construed the petition as sounding in tort. It thereby first made the issue as to the construction of the petition, and thus required, and entitled, plaintiff to state definitely whether her cause was in tort or upon contract. Having the right to sue in either, having filed a petition which sounded in either, and being faced with defendant's interpretation of her petition, she clarified the nature of her cause. She was entitled to elect, and this she did in her reply wherein she made clear that her cause was founded upon contract. See 1 C.J.S., Actions, Sec. 13, pp. 998, 999.
Respondent cites Canaday v. United Rys. Co., supra, and Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029, 74 A.L.R. 1252. In the Canaday case, where the nature of the cause of action was not specifically put in issue, the court of appeals held that an instruction requiring plaintiff (passenger) to prove an express contract was properly refused. In the Barnhoff case, where the allegations of the petition sounded both in contract and tort (malpractice by a physician), the trial court sustained a demurrer to the petition on the ground that the cause was barred by what is now Sec. 1016. We there held that, upon demurrer, that petition was in tort and that the cause was barred by Sec. 1016.
In White v. Scarritt, supra, the petition sounded both in tort (extortion and duress) and upon contract (money had and received). We approve the trial court's action in overruling defendant's demurrer to the evidence, holding that that petition sounded in tort. See also Banks v. Kansas City Rys. Co., 280 Mo. 227, 217 S.W. 488. In the pending case, however, the allegations of the answer and of the reply do not permit this petition to be construed as being other than upon the contract of carriage. It follows that since plaintiff's cause of action was not one created by or arising under the laws of Louisiana, the statutes of that state are not applicable; that the cause was not barred by Sec. 1014; and that the trial judge erred in sustaining defendant's motion and in entering judgment for defendant.
In view of which, we must pass upon respondent's contention that the verdict was excessive. This requires consideration of the evidence in the light most favorable to plaintiff. Plaintiff testified: That when the car was derailed she was thrown violently, the right side of her head and body striking the side of the car; that she sustained external bruises upon her right shoulder, arm, hip and thigh; that she was dizzy, could not walk and had to be assisted out...
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