Williams v. Payne
| Decision Date | 07 October 1939 |
| Docket Number | 34648. |
| Citation | 94 P.2d 341,150 Kan. 462 |
| Parties | WILLIAMS v. PAYNE et al. |
| Court | Kansas Supreme Court |
P. E Nulton and R. L. Letton, both of Pittsburg, and Douglas Hudson, of Fort Scott, for appellants.
Sylvan Bruner and Pete J. Farabi, both of Pittsburg, and Louis N Wolf, of Joplin, Mo., for appellee.
This is an appeal from a judgment of the district court of Crawford County denying an injunction to retrain the plaintiff from prosecuting an action in Missouri founded on the same cause of action as one which the Crawford County district court had already taken jurisdiction of at the instance of the plaintiff.
The pertinent facts were these:
On October 6, 1936, on the premises of the Santa Fe railway company in the city of Pittsburg, there was a collision of motor trucks, one of which was operated by plaintiff, John Williams, and the other by an employe of defendant, Lee Payne. The latter operated a number of trucks under license. On the alleged ground that the fault lay with Payne, Williams brought an action in the district court of Crawford County against Payne and his insurance carrier for damages to his person and property in the sum of $15,000. The action was filed on April 16, 1937. On June 29, defendants filed their answer, and on December 31, plaintiff filed his reply. On February 26, 1938, plaintiff filed an amended petition to which defendants answered on April 11.
While the cause and issues thus stood in the Kansas district court in the forum of plaintiff's own choice, on July 1, 1938, he filed another suit on the same cause of action in the circuit court of Jasper County, Missouri, making Payne alone defendant therein; his insurance carrier was not impleaded; the recovery sought was $10,000.
From this point forward our statement of facts will require us to keep track of both the Kansas lawsuit and the Missouri lawsuit.
On July 9, 1938, defendants filed in the Crawford County, Kansas, district court, an amended answer to plaintiff's amended petition of February 26, and on July 13, plaintiff filed their reply thereto.
On September 19, plaintiff filed in the Jasper County, Missouri, circuit court, a motion for a change of venue which was granted; and on October 4, the Missouri case was certified to the circuit court of Barton County, Missouri; and in the latter court plaintiff then filed an amended petition raising his prayer for damages to $20,000.
(At the oral argument before this court on appellants' application for a stay of proceedings, counsel for both parties intimated that through some further manuever in procedure another change of venue has occurred or is shortly to occur, whereby another transfer of that case will be ordered and will be triable in the circuit court of Vernon County, Missouri.)
On October 4, 1938, plaintiff filed a second amended petition in the original action in the Crawford County, Kansas, district court, to which defendants answered on January 16, 1939, and plaintiff replied on January 23.
The Kansas lawsuit was thus at issue on the amended pleadings, and on January 23 it came on for trial before a jury, resulting in a mistrial by the failure of the jury to reach a verdict. The jury was discharged on January 27 and a new trial ordered.
At the next setting of cases for trial, in the Crawford County district court, on March 20, counsel for defendants requested the court to set the cause for trial. Counsel for plaintiff objected, stating to the court that they intended to try the case in Missouri. Counsel for defendants asked the court to set it for trial or dismiss it. No ruling was made on this request. Later at another setting of cases at the same term of court, in April, counsel for defendants again requested that the case be set for trial. Counsel for plaintiff again objected, saying "They were going to try the case in Missouri and didn't want it set down in Pittsburg." Counsel for defendants insisted the case either be set for trial or dismissed. No formal order of court was made pursuant to that colloquy of counsel.
On April 28, 1939, plaintiff filed in the Crawford County district court his third amended petition.
On July 10, 1939, the defendants, Payne and his insurance carrier, filed in the Crawford County district court their application for an injunction to restrain plaintiff from prosecuting the action in Missouri. They pleaded the prior jurisdiction of the Kansas court over the subject matter and the parties, the fact that the cause of action arose in Pittsburg, Kansas, that the principal litigants resided in Pittsburg, that their witnesses all lived in or around Pittsburg, that the chief counsel for the litigants resided in Pittsburg, that the concurrent prosecution and maintenance of another lawsuit in Missouri necessitated the employment of additional attorneys versed in Missouri law and practice and was an unjustifiable hardship on defendants, that under the Kansas statute, G.S.1935, 40-220 the defendant insurance carrier was entitled to contest its legal liability in a Kansas district court in any such action as that alleged by plaintiff and was immune from the hazards of such litigation elsewhere. In the application it was also alleged that in the Kansas court defendants were entitled to the privilege of propounding special questions to the jury and to a judgment based on a jury's unanimous verdict, whereas in Missouri they had no such privilege, and that in Missouri a money judgment could be recovered on a verdict of three-fourths of the jury.
To this application for an injunction, counsel for plaintiff filed an answer on September 6, alleging that defendant Payne had voluntarily submitted to the jurisdiction of the Jasper County (Mo.) circuit court, by filing a demurrer to plaintiff's petition and a motion to dismiss plaintiff's action for failing to give the prescribed statutory security for costs. It was further answered that the applicant Payne had resisted plaintiff's motion for a change of venue; and that subsequently when the change of venue to Barton County, Mo., was granted, the applicant filed a motion to strike out parts of plaintiff's amended petition, and had also filed a motion for a continuance on the ground that one of his Missouri attorneys was a member of the legislature--that being a statutory ground for a continuance in that state. For all of which reasons plaintiff Williams alleged that the applicant Payne had waived any right he might have had to enjoin the prosecution of the Missouri action, and that he had been guilty of laches in not filing proceedings to enjoin said Missouri action until more than a year had elapsed nor until the trial of the...
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Philp v. Macri
...L. & W. R. Co. v. Ashelman, 1930, 300 Pa. 291, 150 A. 475, 69 A.L.R. 588. "The power is not to be lightly exercised." Williams v. Payne, 1939, 150 Kan. 462, 94 P.2d 341. The remedy, of course, being an equitable one, is discretionary with the trial judge. Wehrhane v. Peyton, 1948, 134 Conn.......
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