108 P. 567 | Mont. | 1910
delivered the opinion of the court.
This is an action brought in Silver Bow county to recover damages for personal injuries alleged to have been received by the plaintiff while alighting from a car of the defendant company on which she had been a passenger in the city of Butte. The defendant McConkey is alleged to have been the conductor, and the defendant Lang, the motorman, in charge of the car. The injuries complained of were sustained on May 29, 1907. The cause of action is based upon the allegation in the complaint that while the plaintiff had one foot upon the ground, and was in the act of alighting from the car, which had been
Plaintiff ’s replication to the affirmative allegations just quoted is as follows: “Admits that on or about the first day of November, 1907, in the circuit court of the United States, ninth circuit, ■district of Montana, there was an action pending between Sara Dunseth, plaintiff, and Butte Electric Railway Company, a corporation, and August Rundblad, defendants; that the said Sara Dunseth, plaintiff therein, is the same Sara Dunseth, the plaintiff herein, who has brought this suit; that the Butte Electric Railway Company, the defendant therein named, is the same Butte Electric Railway Company that is made defendant in this suit; that the plaintiff, in and by the complaint therein, claimed damages for personal injuries upon the same cause of action as herein set forth in the complaint filed in this cause; that the injuries alleged to have been suffered by the plaintiff therein are the same as the injuries alleged to have been suffered by the plaintiff in this cause; and the facts alleged in said complaint therein are the same as those alleged herein, and the same cause of action is relied upon as a ground of recovery therein as that set forth in the complaint herein; that an answer to said complaint was duly filed by the defendant Butte Electric Railway Company therein; that the replication thereto was filed by the plaintiff; and the said cause being at issue, came on for trial # # before the court and jury of twelve persons, duly impaneled and sworn to try the issues in said cause; that thereupon witnesses were sworn and testified on behalf of the plaintiff, witnesses were sworn and testified on behalf of the defendant, and witnesses were sworn and testified in rebuttal; that the following judgment was given and made (setting forth a copy of the same judgment pleaded in the answers). Denies, on information and belief, each and every other allegation in said further and separate answer contained.”
We have quoted the replication thus at length, for the reason that it appears to have been drafted with a view of inviting a motion for judgment on the pleadings, and thus clearly pre
Several questions are discussed in the briefs of counsel, but the fundamental one is whether the judgment entered in the-United States court was a judgment upon the merits, and therefore a bar to the present action. A solution of that question renders a consideration of others unnecessary, and for the purpose of -arriving at it we shall assume that the issue is properly presented by the replication.
It is contended by the appellant’s counsel that a judgment on a directed verdict is always and necessarily a judgment upon the merits. The following cases are thought to sustain the position: Briggs v. Waldron, 83 N. Y. 582; Burnett v. State, 62 N. J. L. 510, 41 Atl. 719; Andrews v. School District, 35 Minn. 70, 27 N. W. 303. We, however, are not inclined to go so far in our ruling; but are rather of opinion that a judgment on a directed verdict may or may not be a judgment upon the merits, dependent upon the question decided by the court and the scope-of the ruling. It is not necessary that a question of fact should actually have been decided/in order to constitute a thing adjudi
But we have no difficulty in arriving at the conclusion, from a mere inspection of the judgment of the federal court, in the light of admissions in the pleadings, that the question determined was that, upon the facts in the ease, the defendant as a matter of law was entitled to a final decision in its favor. The admissions in the pleadings, supplemented by a copy of the judgment of the federal court, supply all of the information that could be derived from an inspection of the judgment-roll. Section 6717,. Revised Codes, declares: “A final judgment dismissing the complaint, either before or after trial, does not prevent a new action for the same cause of action, unless it expressly declares, or it appears by the judgment-roll, that it is rendered upon its merits.” This judgment does not expressly declare that it was rendered upon the merits. Neither does it in terms dismiss the complaint. Considerable eonfu
There is nothing in the pleadings or upon the face of the judgment to indicate that it was rendered because of a mere •defect of form; or because of any technical omission in the
Under tbe practice in vogue in this state now and at tbe time of tbe trial in tbe federal court (see section 6761, Revised Codes), tbe judge may direct tbe jury to render a verdict in favor of tbe party entitled thereto, where, upon the trial of an issue by sueb jury, tbe case presents only questions of law. It was intimated by this court, in McKay v. Montana Union Ry. Co., 13 Mont. 15, 31 Pac. 999, Creek v. McManus, 13 Mont. 152, 32 Pac. 675, and Cummings v. Helena & L. S. & R. Co., 26 Mont. 434, 68 Pac. 852, that the action of tbe court in directing a verdict is, in effect, tbe same as granting a non-suit. This statement is true so far as it goes; that is to say, directing a verdict may have tbe same effect as granting a nonsuit. But tbe two modes of procedure differ in principle. A motion for a directed verdict may reach a situation which could not be reached by a motion for a nonsuit. For instance: The plaintiff may be able to establish a prima facie case; the defendant offers in bar affirmative matter which tbe plaintiff is unable to contradict or disprove. A motion for a directed verdict is properly interposed in such ease, and this, we believe to be tbe usual and ordinary practice. A motion for a directed verdict is sometimes made after tbe close of tbe evidence, in order to again raise tbe same point involved in the motion for a nonsuit, and sustained, tbe court having changed its mind in tbe meantime. In such case tbe motion serves tbe same purpose as a motion for a nonsuit. But tbe practice is not technically proper. It will be observed that section 6761,
It is contended by the appellant that the federal courts have-greater latitude in dealing with the weight of the evidence than have the state courts, and this is perhaps true. (See Sloss I. & S. Co. v. South Carolina & G. R. Co., 85 Fed. 133, 29 C. C. A. 50; Hodges v. Kimball, 104 Fed. 745, 44 C. C. A. 193; Turnbull v. Ross, 141 Fed. 649, 72 C. C. A. 609.) But the difference in procedure, while it may serve to emphasize counsel’s argument, does not affect the merits of the question weave considering. A determination by a court that, upon all the facts in the case, the plaintiff is not, as a matter of law,. entitled to recover, is just as binding and conclusive upon him as a determination by the court or jury that his witnesses are-not entitled to credit, and that he ought not to recover for-that reason. In its ultimate effect we can see no difference in principle between a directed verdict and one not directed. It is only when the vital, deciding facts 'stand proven, and undisputed in effect, as well as in terms, that the court may direct. a verdict. Another way to reach the same result is for the court. to tell the jury that if they find the facts as so proven (which they necessarily must), then their verdict should be for plain-tiff or defendant, as the case may be. But such verdict no more determines the cause on the merits- than does a verdict dictated by the court. The result in principle is exactly the same. It expresses the judgment of the court and not that of' the jury. So that it is not necessary in this case to predicate our decision, in any degree, upon any difference in practice or-procedure between the federal courts and the state courts. The circuit courts of the United States are courts of general. jurisdiction, corresponding in authority, in a general way and. in their wider spheres, with the district courts of this state. Full faith and credit must be given to their records and pro-ceedings. (2 Black on Judgments, see. 938.)
We conclude, therefore, that the appellant’s motion for judgment upon the pleadings should have been granted. The judgment appealed from and the order denying a new trial are therefore reversed, and the cause is remanded to the district court of Silver Bow county, with directions to enter a judgment in favor of the appellant.
Reversed and remanded.