F. H. Hesse Printing Co. v. Travellers Protective Ass'n of America

81 Mo. App. 467 | Mo. Ct. App. | 1899

Lead Opinion

BOND, J

This is the second appeal in this case, the former appeal being reported in a cause between the same parties in 72 Mo. App. 598. It is admitted in the brief of the learned counsel for appellant that the facts developed on the present trial “are in all respects similar to those before the court on the former appeal.” As the facts and issues were fully stated by us at that time they need not be again recited. There was a trial. Plaintiff again had judgment, and defendant again appealed.

It is insisted on this appeal, as it was when the case was here .the first time, that the record contains no evidence direct or inferential, tending to show a ratification by defendant of the employment of plaintiff to do certain printing, to recover compensation for which this suit is brought. This point was decided adversely to the contention of appellant on the former appeal.. See Hesse Printing Company v. Travellers Protective Association of America, 72 Mo. App. loc. cit. 603. It is therefore res adjudicata, unless it can be shown that essentially different evidence was adduced on the second trial or that the court overlooked a former controlling decision, and was thus led into error as to the legal effect of the facts. Baker v. Railroad, 141 Mo. loc. cit. 152; Vaughn v. Railroad, 78 Mo. App. loc. cit. 643. But it is not contended that there was any material change in the proof adduced on the two trials, nor has it been shown that the intendment of the proof was misconceived according to the doctrine of some controlling decision inadvertently overruled in the former opinion. The result is that the point made by appellant is not again open for review, and the judgment for plaintiff which was obtained under instructions in conformity to the former opinion of this court, must be affirmed.

All concur.

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Concurrence Opinion

CONCURRING OPINION BY

JUDGE BIGGS.

On the former appeal the plaintiff had judgment which we reversed. I was of the opinion that the cause should be dismissed, as there was no substantial evidence tending to show that defendant was liable. My associates differed with me. The case is here now on substantially the same evidence. Under repeated decisions the question decided by this court on the former appeal are res adjudicata. It is for this reason that I now concur in affirming the judgment.