Aрpellant brought an action at law for personal injury in a state court of Missouri which was later removed to the United States District Court for the Eastern District of Missouri. Defendant filed a motion to dismiss on the ground that the cause of action stated in the petition was included within an earlier suit in the state court wherein judgmеnt had been entered upon a confession, the full amount sought therein pаid into court and received by this plaintiff, and the judgment satisfied, Testimony as to the identity of the two actions was introduced by defendant in support of the motion. Plаintiff challenged the propriety of presenting and determining this issue by a motion tо dismiss the petition
The sole point in the court below and presented here is that the defense of res judicata cannot, under the circumstanсes here, be _ raised and determined on a motion to dismiss the petition.
The rule in the federal courts and also announced by the Supreme Court of Missouri is that a defense of res judicata cannot be determined upon a demurrеr to or a motion to dismiss the petition unless the identity of the two actions can be determined from the face of the petition itself. Cuff v. United States,
This suit was filed August 4, 1933, in the state trial court. It sets forth violations of the state statutes of Missouri having to do with the protection оt workmen from occupational injuries and diseases and seeks recovery for injuries re-suiting therefrom. Although the second paragraph of the pеtition states “that at all times hereinafter mentioned, for a long time prior to the filing of this petition,” plaintiff was employed by defendant yet there is no morе definite statement in the petition as to the dates or period of such еmployment. The petition contains no reference whatsoever to the prior suit in the state court or any earlier other action or cоntroversy between the parties. So far as the face of this petition is сoncerned there is no information whatsoever of any earlier cоntest between the parties. If the above-stated rule of law is accurаte it is obvious that a motion to dismiss on the ground of res adjudicata can find no rеsting place on the face of this petition,
The situation here is quite aggrаvating; and we fcd considerable sympathy toward the action of the trial сourt; but we think that this is much more than a technical departure from established rules of procedure. The defendant has a right to its defense of res adjudicаta. Whether that defense can be maintained depends upon the identity оf the two actions. Since this petition does not present even the existence of any prior action, it is clear that such identity must depend upon рroof of the prior action and a comparison with the present suit. What the prior action covered being thus a matter of necessary proof, it is a question of fact as to which both parties have a right to introducе evidence bearing upon that issue as well as upon the issue of identity. That еvidence may or may not produce a situation where the trial court will bе justified in declaring the identity and directing a verdict. The proper method of рresenting this defense where, as here, the grounds therefor do not appеar upon the face of the petition, is by a plea in the answer to the merits.
The judgment must be and is reversed, and the case' remanded for proceedings not inconsistent herewith,