Vitale v. Duerbeck ( 1936 )

ON MOTION FOR REHEARING AND SUGGESTIONS OF DEATH. On motion for rehearing, it is contended that a question decisive of the case, duly submitted by counsel has been overlooked by the court, namely: Plaintiff's theory was that there was an air pocket in the joint over the bedroom radiator (because it was the high point of the system and had no air vent); defendant says that if this was true, then the radiator in the shop could not have been warm, on the day of the explosion, according to plaintiff's experts, because there could be no circulation if there was such an air pocket; but that plaintiff's evidence was that the radiator in the shop was warm; therefore, defendant claims that the water must have been circulating and that there could not have been an air pocket. In other words, defendant contends that plaintiff's experts did not base their opinions as to the cause of the explosion upon facts actually testified to by plaintiff's witnesses (that this radiator was warm), but, on the contrary, they based their opinions upon an assumed fact (that this radiator was cold) which, according to plaintiff's witnesses, was not true.

This proposition has not been overlooked but was considered in both of the opinions, handed down concurrently during this present term, in the two cases arising from the explosion in the Vitale apartment. [Bloecher case, 338 Mo. 535, 92 S.W.2d 681, and Vitale case, 338 Mo. 556, 92 S.W.2d 691.] In both opinions, it was noted that defendant contended that the testimony of Vitale and Carter had been so contradictory as to destroy its probative value. Both opinions recognized that there were to some extent inconsistent statements and contradictions, but held that these were such as to make the matter a question for the jury, and that there was sufficient other competent evidence in the record to make a jury case. One of the inconsistencies urged in both cases was this specific proposition now stated. The hypothetical question set out in the Bloecher case, however, contained the assumption "that the radiators furthest away, being that one in the shop, some 30 feet away from the Arcola, were warm." Therefore, it is evident that all opinions of plaintiff's experts as to the cause of the explosion were not based on the theory that the radiator in the shop was cold. Apparently alleged contradictory statements about this matter arise to some extent, because of differences in meaning of witnesses in the use of the term "warm." Perhaps the term "lukewarm" once used would better describe what the witnesses meant, and be more likely to reconcile their statements, because there was evidence that, even though there was an air pocket which would prevent normal circulation, there could be some reverse circulation through the return line which would cause at least part of the shop radiator to be warm; and that, even though hot water would not circulate through the upper pipes, some steam could go through the air pocket which would warm the radiator to some extent. We, therefore, adhere to the conclusion, heretofore reached in four opinions in these two cases, that there was a case for the jury on plaintiff's theory of a steam explosion due to negligent installation of the heating system.

Defendant has also filed suggestions of death, supported by affidavit, stating that plaintiff died on November 23, 1935. Plaintiff obtained the judgment appealed from herein, in the Circuit Court of the City of St. Louis, on February 24, 1934. This court's opinion, affirming this judgment was handed down on November 12, 1935, during the present September (1935) term, at which the cause was argued and submitted. Defendant filed a motion for rehearing, on November 22, 1935, the day before plaintiff died. Defendant claims that the cause of plaintiff's death was cancer, which the evidence herein tended to show was caused by trauma and resulted from the injuries received in the explosion. Defendant contends that plaintiff died from the injuries for which she sued; that her cause of action therefore abated and died with her; and that this would be the result "if her death occurred at any time before final adjudication and settlement of the judgment." Defendant urges that a rehearing should be granted on this ground so that the matter of whether plaintiff died of the injuries sustained in the explosion, or from other causes, may be determined. [Citing Sec. 3280, R.S. 1929; Adelsberger v. Sheehy, 336 Mo. 497, 79 S.W.2d 109; Jordan v. St. Joseph Ry., L., H. P. Co., 335 Mo. 319,73 S.W.2d 205.] It is true, as defendant claims, that under these authorities, if before she obtained this judgment in the circuit court, plaintiff had died from the personal injuries received in the explosion, for which she brought this suit, then no action therefor would have survived her; and that the only cause of action anyone could have would be the new, separate and distinct cause of action created by our wrongful death statute. [See Cummins v. Kansas City Public Service Co., 334 Mo. 672,66 S.W.2d 920, and cases cited.]

There is considerable difference, however, between the effect of death of a party before judgment and thereafter. Before the enactment of Section 3280, the death of a plaintiff did abate his cause of action for personal injuries, whether sued on or not, and there could be no revival. [Jordan v. St. Joseph Ry., L., H. P. Co., supra; Heil v. Rule, 327 Mo. 84, 34 S.W.2d 90; State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51; Greer v. St. Louis, I., M. S. Railroad Co., 173 Mo. App. 276, 158 S.W. 740.] But even before its enactment, if a plaintiff died after a judgment, his cause did not abate because the cause of action had become merged in the judgment. [Lewis, Admr. v. St.. L., I.M. S. Railroad Co., 59 Mo. 495; Lewis v. McDaniel, 82 Mo. 577; Crawford v. C., R.I. P. Railroad Co., 171 Mo. 68, 66 S.W. 350; Behen v. St. Louis Transit Co., 186 Mo. 430, 85 S.W. 346; Siberell v. St. Louis-San Francisco Railroad Co., 320 Mo. 916, 9 S.W.2d 912.] A judgment is a debt, a property right which goes, upon the owner's death, to his personal representative regardless of what may have been the cause of action upon which it was obtained. [1 C.J. 169, secs. 288-289, p. 263, sec. 584; 1 R.C.L. 38,. sec. 35; 52 L.R.A. (N.S.) 1217 note; 14 A.L.R. 694 note; 62 A.L.R. 1048 note; see, also, Lewis v. St. L., I.M. S. Railroad Co., supra; Crawford v. C., R.I. P. Railroad Co., supra; Millar v. St. Louis Transit Co., 216 Mo. 99, 115 S.W. 521.] It has been well stated that "after the giving of the judgment, the controversy is over the judgment, not over the original wrong." [Fowden v. Pacific Coast S.S. Co. (Cal.), 86 P. 178.] An appellate court does not try the cause of action but determines whether or not the trial court committed error when it tried the cause of action.

From the very first compilation of our statutes down to the present time, there have been provisions for final determination of appeals and writs of error pending, whether one or all parties died before hearing. [See Sec. 53, Chap. II, p. 635, R.S. 1825, and Secs. 1054-1057, R.S. 1929.] It may be noted that it is there said that "the appeal or writ of error shall not thereby abate," instead of "causes of action upon which suit has been or may hereafter be brought . . . shall not abate" as in Section 3280, Revised Statutes 1929, or "no action shall abate by the death . . . of a party," as in Section 891, Revised Statutes 1929. When a judgment is affirmed by an appellate court, the cause of action which became merged in it, when it was rendered, merely remains merged therein. When a judgment is reversed it ceases to exist and the merger is terminated because there remains nothing in which the cause of action could be merged. The reversal is really a determination that it was never properly merged because of prejudicial error in rendition of the judgment and, therefore, it reverts to its original status of merely a cause of action. [1 C.J. 171, sec. 292; 1 R.C.L. 39, sec. 35.] As provided in the statutes above quoted for revivor on appeal, if the sole party or all parties (either appellant or respondent) die after judgment and before submission of the case in the appellate court, there must be suggestions of death and substitution of heirs or personal representatives. This is not because such deaths affect the judgment, but it is because "where a party to an action dies after judgment, the authority of his attorney is terminated, and to prosecute an appeal, or otherwise act in the case so as to bind any one, he must obtain authority by employment by the deceased's personal representative;" and because "no judgment or other order affecting the merits can be entered, before revivor, which would be binding upon those who are the successors in interest of the deceased party." [Carter v. Burns,332 Mo. 1128, 61 S.W.2d 933.] If such party or parties die after submission of the appeal in this court, no revivor is necessary because all that the parties are required to do has been done under proper authority, and to protect all rights, "it is our rule that judgment will be entered as of the date of submission." [Batson v. Peters (Mo.), 89 S.W.2d 46, and cases cited; as to provisions usually controlling date of appellate court judgment see State ex rel. and to Use of Park National Bank v. Globe Indemnity Co. (Mo.), 62 S.W.2d 1065.] By entry before date of death, the judgment becomes binding upon all, who from or after the time of submission could claim under the deceased party. Our conclusion must be that, since plaintiff had recovered a judgment for her own injuries which had the status of a debt due to her from defendant, the death of plaintiff, after submission of defendant's appeal therefrom and after this court had handed down an opinion affirming that judgment, does not make necessary any revival, cannot in any way affect the judgment, and does not constitute grounds for granting a rehearing.

It is ordered that the final judgment of this court be entered as of the date of handing down the opinion herein and that the motion for rehearing be overruled. Ferguson and Bradley, CC., concur.