Kansas City Southern Railway Co. v. Akin

WOOD, J. This appeal is from a judgment in favor of appellee against appellant in the sum of $3,000. On the 4th day of April, 1918, the appellee filed in the circuit court of Sebastian County his complaint against the appellant in which he alleged, in substance, that on August 28, 1914, he was a passenger on appellant’s train from Joplin, Missouri, to Fort Smith, Arkansas ; that through the negligence of appellant the coach in which he was riding, with other cars, was derailed and overturned, by reason of which he was thrown with great force and violence to the opposite side of the car and was mashed, cut and bruised on his head, face, back and legs, thereby causing him great physical and nervous shock, by which he was rendered unconscious and sustained great and permanent injuries and caused great pain and suffering. That there had been tubercular bacilli in his system for some time prior thereto, but at the time he received the injuries he was in good health and the tubercular germs were encapsulated, innocuous and inactive. That as a result of the bruises produced by his injuries his strength and vitality were greatly affected and by reason of his injuries the tubercular germs became active and tuberculosis developed in his spermatic cords and testicles. That on account of said tubercular condition a surgical operation had to be performed, resulting in the removal of his testicles. That by reason of the injuries and the results thereof above described he had suffered great physical pain and mental anguish and humiliation, and had been damaged in the sum of $3,000, for which he prayed judgment. That prior to August 28, 1916, he brought suit in this court against appellant for the cause of action and injuries herein sued for, which suit was dismissed by nonsuit without prejudice on April 7, 1917, in the United States District Court, to which it was removed, and this suit is now brought within less than one year from date of said nonsuit and dismissal for the same cause of action. The clerk’s certificate shows that summons was issued on the 4th day of April, 1918, and returned duly served on the appellant on the 9th day of April, 1918. On the 27th day of April, 1918, appellant answered, denying the material allegations of the complaint as to negligence and as to the injuries alleged and the damages sustained. Paragraph 5 of the answer was as follows: ‘ ‘ The defendant alleges that the plaintiff in this case brought suit herein for the same alleged cause of action set forth in the complaint herein, and said cause was tried in the United States District Court, Western District of Arkansas, Port Smith Division, and all of the evidence in said cause was heard on both sides. At the conclusion of all of the evidence, and after all the evidence had been introduced, a motion was made by the defendant to direct a verdict in favor of the defendant, in so far as the plaintiff claimed any damages resulting from the development of tuberculosis in his body. After that motion had been argued by both sides, and after the court had taken the same under advisement, the court held that the motion must be sustained. Thereupon and thereafter, and not until then, the plaintiff asked leave to take a nonsuit. This defendant denies that said nonsuit was taken without prejudice, and alleges that the trial of said cause in said United States Court was a final determination and final settlement of all matters between the plaintiff and the defendant, growing ont of the same alleged cause of action, and the same facts, and that therefore, the cause of action which the plaintiff now sets forth in his complaint is res adjudicaba. “Defendant further alleges that by reason of the suit in said United States Court, in costs and necessary expenses, in defending said suit, the defendant expended therein the sum of $1,200. The defendant alleges that it is entitled to recover from plaintiff said sum of $1,200 as costs and expenses, incident to the trial of said cause in said United States Court.” Paragraph 6 was, in part, as follows: ‘ ‘ The defendant alleges that the alleged cause of action of the plaintiff has long since been barred by the statute of hmitations of three years of the State of Arkansas. In that connection, the defendant alleges that the plaintiff, in the year 1917, brought a suit on this same cause of action in the State of Oklahoma in the District Court within und for LePlore County, State of Oklahoma, and thereafter dismissed that suit. The defendant denies that the plaintiff has a right to bring and maintain this suit, and alleges that the statute.of limitations of the State of Arkansas has barred the same; and denies that the dismissal of the suit in the United States District Court gave the plaintiff the right to bring and maintain another suit in the State court within one year thereafter; but alleges that said alleged cause of action set forth in the complaint is fully and completely barred by the statute of limitations of the State of Arkansas. “Premises considered, the defendant prays judgment against the plaintiff in the sum of $1,200, costs and expenses, expended in the United States District Court for the Western District of Arkansas, and also for all costs in this action laid out out and expended.” On the 21st day of June, 1918, the appellee filed a demurrer to appellant’s plea of res adjudicaba seb up in the 5th and 6th paragraphs of its answer. And, also, on the same day, the appellee filed the following motion: “Comes the plaintiff, F. M. Akin, and moves the court to strike the following from paragraph 5 of defendant’s answer: “ ‘Defendant further alleges that by reason of the suit in said United States Court, in costs and necessary expenses in defending said suit, the defendant expended therein the sum of $1,200. The defendant alleges that it is entitled to recover from the plaintiff said sum of $1,-200, as costs and expenses, incident to the trial of said case in said United States Court.’ ■ “And further to strike from its answer its prayer for judgment of any amount exceeding the costs taxed in the' case in which judgment was rendered against plaintiff in said suit in said United States Court for costs, defendant not being entitled to recover any other sum.” On June 26, 1918, the following order was entered of record: “Comes defendant by its attorney, J. B. McDonough, and files answer herein; plaintiff’s demurrer to the 5th and 6th paragraphs of defendant’s answer heretofore filed on June 21, 1918, this day noted of record. Plaintiff’s motion to strike certain language from paragraph 5 of defendant’s answer heretofore filed on June 21, 1918, this day noted of record. And the court being well and sufficiently advised in the premises, doth sustain said motion as to paragraph 5, and defendant excepts, and doth overrule said motion as to paragraph 6, and plaintiff excepts. “Plaintiff moves to strike language between brackets in paragraph 6, which said motion is by the court sustained, and defendant excepts.” Ón the same day, June 26, 1918, an amended answer was filed, which omitted that part of paragraph 5 of the answer to which the above and foregoing motion to strike was directed. Paragraphs 6 and 7 of the amended answer contained all that was embraced in paragraph 6 of the original answer except the prayer for judgment against the plaintiff in the sum of $1,200, costs and expenses in the United States District Court for the Western District of Arkansas. The bill of exception^, after setting out the amended answer was filed the appellee renewed his demurrer and motion to strike paragraphs 5 and 6 from the answer. The court overruled the demurrer and motion to strike except as to certain language set forth in the bill of exceptions. The bill of exceptions further shows that “there was no ruling, one way or the other, on the motion to strike out a part of paragraph 5, as the same was omitted in the amended answer which was filed June 26, 1918.” The bill of exceptions, after setting out the amended answer, contains the following recital: “Thereupon the plaintiff renewed and filed anew the demurrer above mentioned and motion to strike paragraphs 5 and 6 from said complaint above set forth. The court treating said demurrer both as a demurrer and a motion to strike, sustained the same as to paragraph 5 and struck out said paragraph 5 from said complaint.” First. Appellant contends that the cause of action was. barred by the statute of limitations as shown on the face of the complaint. True the complaint alleges that the injury was done on August 28, 1914, and the filing of the complaint and the issuing of the summons shows that this suit was instituted April 4, 1918, more than three years after the cause of action had accrued; but the complaint alleges that “prior to August 28, 1916, plaintiff brought suit in this court against defendant for the said cause of action and injuries herein sued for, which suit was dismissed by nonsuit without prejudice on April 7, 1917, in the United States District Court, to which it was removed, and this suit is now brought within less than one year from the date of said nonsuit and dismissal for the same cause of action.” The appellant, in paragraph 5 of its amended answer, admitted that the appellee had brought this suit “for the same alleged cause of action set forth in the complaint herein” and that a nonsuit and dismissal was taken in the United States District Court; but denied, in paragraph 6, “that the dismissal of the suit in the United States District Court gave the plaintiff the right to maintain another suit in the State court within one year thereafter,” and alleged that the said cause of action “was completely barred by the statute of limitations.” But counsel for appellant contends that paragraph 5 of the amended answer, supra, was stricken out and that, therefore the "burden was upon the appellee to support the' allegations of his complaint as to the nonsuit in the Federal Court. The recitals of the record proper show that certain 'language was stricken from paragraph 5 of the original answer as set out in the motion to strike; but the language containing the admission as to the nonsuit for the same cause of action was not stricken from paragraph 5 of the- original answer, and the language containing this admission was brought, as the bill of exceptions shows, into paragraph 5 of the amended answer. While the recital of the bill of exceptions shows that the court sustained the motion “as to paragraph 5 and struck out said paragraph 5 from said complaint,” yet, when this recital is taken with the further recital in the bill of exceptions that “there was no ruling, one Avay or the other, on the motion to strike out a part of paragraph 5, as the same was omitted in the amended answer which Avas filed June 26, 1918,” it is obvious that the whole of paragraph 5 of the amended answer was not stricken out, and the prior recital to that effect had reference to the language of paragraph 5 of the original answer which was stricken out on motion of the appellee, as shown by the order of the court to that effect entered on the judgment roll or record proper, which is controlling. The language in paragraph 6, to-wit: “That the alleged cause of action of the plaintiff has long since been barred by the statute of limitations of three years of the State of Arkansas,” and the further language, to-wit: “This defendant denies that the plaintiff has a right to bring and maintain this suit,” does not constitute a denial of the allegations of appellee’s complaint as to nonsuit in the Federal Court of a suit on the same cause of action for which this suit was brought and the bringing of this suit within “less than one year from date of said nonsuit.” "We conclude, therefore, that the pleadings show that the present suit was instituted within one year after the nonsuit in the Federal Court of a suit based on the same cause of action. The present suit was commenced when the complaint was filed in the office of the circuit clerk and the summons was issued thereon. The endorsement and notation of the clerk shows that the complaint was filed, and the summons was issued on the 4th day of April, 1918. Section 6033, Kirby’s Digest; Burleson v. McDermott, 57 Ark. 229; Railway v. Shelton, 57 Ark. 459; Barker v. Cunningham, 104 Ark. 627. Section 5083 of Kirby’s Digest gives a plaintiff who has suffered a nonsuit the right to commence a new action “within one year after such nonsuit suffered.” But for this statute appellee’s cause of action would have been barred within three years from August 28, 1914. See section 5064, Kirby’s Digest; Emrich v. Little Rock Traction & Electric Co., 71 Ark. 71; St. L., I. M. & S. Ry. Co. v. Mynott, 83 Ark. 6. The pendency of the suit in the Federal Court for the same cause of action had the effect to toll the general statute of limitations of three years, and when nonsuit was taken in the Federal Court and the present suit was begun for the same cause of action within one year after such nonsuit, ’appellee had the right to maintain.the same under the express provisions of section 5083 of Kirby’s Digest, supra. The language of the statute is exceedingly comprehensive. There are no restrictions to causes of action begun in the State courts. There is nothing to indicate a purpose to so confine it. The language is broad enough, and was doubtless so intended, to cover any action in any court having jurisdiction within the State. The doctrine applicable here, which is supported by practically all the modern authorities upon the subject, is forcefully stated in the case of Gassman v. Jarvis, 100 Fed. 146-7, as follows: “The State court possesses original jurisdiction of all such causes of action. The removal of the ease, and its subsequent dismissal, untried and undetermined, cannot, under any known rule of law, be held to be a merger of the cause of action; nor can the removal or dismissal of the cause be pleaded in abatement of the new suit brought in the State court. When a cause of action removed into a court of the United States is dismissed therefrom without any trial or determination of the merits, the right of action still remains in full force and vigor, unaffected thereby, and the party having such right of action may bring suit thereon in any court of competent jurisdiction, the same as though no previous suit had been brought.” Stevenson’s Admr. v. Illinois Central R. R. Co., 117 Ky. 855, 4 Ann. Gas. 890, and case note; McIver v. Florida Central Ry. Co., 110 Ga. 223; Hooper v. Atlanta, K. & N. Ry. Co., 106 Tenn. 28, 53 L. R. A. 931; Baltimore & Ohio R. R. Co. v. Larrill, 83 Ohio State 108, 93 N. E. 619, 34 L. R. A. (N. S.) 1195; Southern Ry. Co. v. Miller, 217 U. S. 209; 9 R. C. L. 212-13; Carr v. Howell, 97 Pac. 885. See, also, Dressler v. Carpenter, 107 Ark. 353. The appellant contends that this nonsuit statute (section 5083, Kirby’s Digest) cannot toll the general statute of limitations because the three years had not yet expired at the time the nonsuit was taken and there was some time remaining before such expiration in which appellee might have brought this suit. The nonsuit statute very plainly says that “the plaintiff may commence a new action within one year after such nonsuit suffered. ’ ’ The limitation of one year, therefore, cannot be construed to apply to causes only where, the time of limitation under the general statute shall have expired at the date of the dismissal. As said in Love v. Cahn, 93 Ark. 215, this statute “instead of shortening the period of limitation, really extends the period provided by the general statute of limitations applicable to the cause of action.” See, also, Dressler v. Carpenter, supra; Knox v. Henry et al., 55 Pac. 668; Meek v. Norfolk & S. R. R. Co., 42 S. E. 333; Bates v. S. D. & C. R. R. Co., 12 Ohio State 620. Second. The appellant contends that there was no evidence tending to prove that the injuries received in the wreck were the proximate cause of the tuberculosis which thereafter developed and became active in appellee’s body for which he alleged, and was allowed to recover, damages. The appellant, in several of its prayers for instructions, requested the court to withdraw from the jury the issue of damages alleged to have accrued to appellee from tuberculosis caused from the injuries received by reason of the derailment. The court refused these prayers, and appellant now insists that this ruling was erroneous. Over the objection of appellant the following hypothetical question was propounded to four physicians who qualified as experts: “Q. In June, 1904, the plaintiff had his right elbow scraped for tuberculosis. He was not relieved, and in August, 1906, the arm was amputated above the elbow on account of the tuberculosis in that joint. He made a good recovery from the operation and was in good health up till August 28, 1914, at which time he weighed 165 pounds, his normal and usual weight, and had no active tuberculosis. In August, 1914, while riding on a train the coach in which he was riding was derailed, while he was asleep and while it was being overturned he was thrown from his seat to the opposite side of the car in or on the parcels rack, by which he was injured on his head and other parts of the body to the waist line. And he received at the time a bruise on the right groin beginning about here, indicating, and extending about four inches up the groin about the width of my two fingers. Both of his legs between his ankles and his knees were bruised and skinned so that his underclothing stuck to the flesh for about sixteen hours. He didn’t know of the injury to his. shins above described till after he had been taken back into one of the cars as heretofore stated. When he attempted to extricate himself from the position in which he had been thrown, he was in a dazed condition, and somewhat nauseated. He extricated himself from this position and walked with difficulty to the end of the overturned coach, during which time he was suffering severe pain, and about the time he attempted’ to get out of the door of the'car he became unconscious or fainted, and when he recovered from this condition he was lying on the railroad embankment from which place he was removed to a coach near the coach which was derailed. While in this car he suffered intense pain, became nauseated and it was then that he discovered the injuries below his knees. He was carried to Fort Smith, arriving there about four or five o ’clock p. m. of that day. He received a bruise on his back and on his groin, and after-wards suffered severe' pain from the injury to the groin. He received a severe shock, nervous shock, as well as the injuries above described. He was in bed about four or five days, during all of which time he suffered severe pains, and at times was forced to get up on account of pains and then go back to bed. While sitting up he suffered as much pain as while sitting or lying down. His urination which was normal before the accident became frequent, causing him to go to the toilet five or six times each night. That he began to lose weight soon after the accident and injuries described which he never regained, and was 25 pounds lighter at the time of the operation for the removal of the first testicle. At said operation the testicle was found by examination and incision' after removal to contain tuberculosis nodules and was in an aeacious "or cheesy condition. He doen’t know whether there was any injury to his testicles at the time of the accident. He discovered no bruises on the scrotum, and felt no pain in the testicles at the time of the accident. In December afterwards he felt an occasional pain in his groin where it was injured, or where it had been bruised. He noticed no pain in his testicles till about June, 1915, ■when there was pain, a sort of pulling down pain. In July following the testicle became enlarged to the extent that it was in the way and the pain was more continuous. In August following, which was just one year after the accident, he had his testicle, which was on the same side that the groin was bruised, removed, and when removed it was found full of tubercular nodules and in an acacious or cheesy condition. In April, 1916, another operation was performed, removing a part of the spermatic cord; when removed it was found to be full of tubercular nodules and in an acacious, cheesy condition. In July, 1916, the other testicle became affected and was removed and when removed was found in an acacious, cheesy condition. He received no injury from the time of the accident in the railroad wreck up to the time of the operation and suffered no illness or symptoms except those produced by the accident before described. But never recovered his normal condition after the accident and before the operation. Now, doctor, assuming those facts to be true as stated, give your opinion as to whether the injury received in the railroad accident caused or produced the tubercular condition of his testicles or spermatic cord or either of them?” The witness answered that the injuries caused the condition of tuberculosis found in the appellee’s testicles and spermatic cord at the time of the operation, when same were removed. Some of these witnesses further testified, in answer to questions, “that tuberculosis was not like any other disease. It does not run on schedule time. Tubercular bacilli lie in the latent condition for different lengths of time; sometimes they manifest themselves within a few weeks, and sometimes a year. No one can say that they manifest themselves in a certain time. They are not like typhoid bacilli or the smallpox germ.” They further testified that any injury to a person which impaired his physical condition, causing him to lose in weight, vitality and strength, would tend to cause the inactive bacilli to become active. The witnesses answered further that any excitement or nervous shock which would cause the condition of a person to become ‘ ‘ devitalized, to lose his strength and vigor and his vitality,” would set inactive tubercular bacilli into activity; that where a person had the bacilli of tuberculosis in his system that had become arrested, if such person received an injury that affected his general physical condition and impaired his vitality, such injury would hasten or aggravate an attack of tuberculosis. Giving the evidence its strongest probative force in favor of the appellee, which the court must do, there was testimony tending to prove the facts upon which the hypothetical questions were grounded. These questions conformed to the rule announced in Taylor v. McClintock, 87 Ark. 243-294; Arkansas Midland Ry. Co. v. Pearson, 98 Ark. 399; Ford v. Ford, 100 Ark. 518; Williams v. Fulks, 103 Ark. 196; Williams v. Cantwell, 114 Ark. 542; Scullin v. Vining, 127 Ark. 124. The appellant propounded substantially the same question to some expert introduced in its behalf, and also other hypothetical questions based upon the testimony in its most favorable light from the viewpoint of appellant, and the answer to these questions was in effect that the injuries caused by the wreck did not cause the tuberculosis afterwards developed in appellee’s testicles. Counsel for appellant contends that the issue as to the approximate cause of the tuberculosis in the testicles of appellee was put at large in the realm of speculation and conjecture by the testimony of the experts. Now as to whether or not the appellee was afflicted with active tuberculosis in his arm, which was arrested by amputation in 1906; and whether or not the germs of tuberculosis may be arrested, become encapsulated, inactive and innocuous, and remain in this condition in the system for several years, and then, by reason of some injury to the person, be revived and become active and hurtful, are questions which would require scientific knowledge for their correct solution. These are matters beyond the grasp of the ordinary layman, but peculiarly appropriate for expert knowledge and opinion. Because the experts differ in their opinions upon the same state of facts, assuming them to he true, is no reason for relegating to the realm of conjecture and speculation the issue as to whether or not the injury was the proximate cause of the tuberculosis thereafter developed in appellee. The theory upon which all expert testimony rests is that, where facts are established with reference to the subject-matter of inquiry which the common observation and experience of the jury would not enable them to correctly understand and interpret, then they may have the benefit of the opinions of those who, by reason of their special study and learning, have peculiar knowledge of the subject. Boger’s Expert Testimony, page 19, sec. 6. Because experts differ in their opinions as to the conclusion to be drawn from the facts proved does not render the ultimate result to be determined by the jury one of speculation or conjecture. In such cases the question is one not of conjecture and speculation on the'part of the jury but rather a question of the weight and credit to be given to the conflicting opinions of experts. As is said in Buling Case Law, vol. 11, p. 578, sec. 10, “Each party has the right to lay before the jury the scientific inferences properly deducible from the facts which he claims to have proved, subject to the contingency that the jury shall find such facts to be as claimed. * * The solution of this problem which has been worked out by the courts is to permit counsel to put to the expert, after his competency has been established, a question in which the things that counsel claims to have proved are stated as an hypothesis, and the witness is asked to state and explain the conclusion which in his opinion results. ’ ’ If the experts differ in their opinion as to results, then it is the province of the jury to determine which has reached the correct conclusion. A contrary doctrine would result in the elimination of the opinions of all experts, unless they happened to be of one mind, and abrogate the rule of evidence permitting'the introduction of such testimony. Applying these principles to the facts of this record it was, therefore, an issue for the jury as to whether or not the injuries produced by the alleged wreck were the proximate cause of the tuberculosis for which the appellee claimed damages, and the court did not err in refusing prayers for instructions which' sought to withdraw that issue. “Where fair-minded men might honestly differ as to the conclusion drawn from the facts, whether controverted or uncontroverted, the question of issue should go to the jury.” St. L., I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112-119. The doctrine announced by this court in the case of M. D. & G. R. R. Co. v. Steel, 108 Ark. 14, is applicable here. See, also, St. L., I. M. & S. Ry. Co. v. Steel, 129 Ark. 521-527; Rieff v. Interstate Business Men's Acc. Assn., 127 Ark. 254-259; Biddle v. Jacobs, 116 Ark. 82; Sterling A. Cor. Co. v. Strope, 130 Ark. 435; Hurley v. New York & Brooklyn Brewing Co. et al., 43 N. Y. Supp. 259. Counsel for appellant presents many assignments of error in the rulings of the court in granting and refusing prayers for instructions. The injury occurred in the State of Oklahoma. The issue of negligence was sent to the jury under instructions which declared the law in substantial compliance with the statute of Oklahoma and in conformity with the doctrine announced by the Supreme Court of that State. See St. L. & S. F. R. R. Co. v. Posten, 124 Pac. 2; Lusk et al. v. Wilks, 172 Pac. 929; sec. 800, Revised Laws Okla. 1910. Only a general objection was reserved at the trial, to the rulings of the court, and we find no inherent defect in any of the instructions. The errors, if any, were merely those of verbiage which could have readily been corrected-if the attention of the court had been specifically called to same. The charge of the court taken as a whole on this issue and on the issue as to the proximate cause of the tuberculosis in the testicles of appellee correctly declared the law, and fully and fairly submitted these issues to the jury, and there was testimony to sustain the verdict. We find no error in the rulings of the court in the admission or rejection: of testimony. The judgment is, therefore, affirmed.