Klinge v. Southern Pac. Co.

The plaintiff and the respondent brought this action under the Safety Appliance Act (45 U.S.C.A. § 1 et seq.) and the Federal Employers' Liability Act (chapter 2, title 45, U.S.C.A. §§ 51-59) against the defendant and appellant, first in the district court of the Third judicial district of the state of Utah, to recover damages for a permanent injury sustained by plaintiff in the course of his employment as a brakeman in the employ of the defendant. As shown by the record, the plaintiff in attempting to board a moving freight car and taking hold of the handhold of the car, the handhold, which was defective, gave way, causing the plaintiff to be thrown under the car and so injured his right arm as to require amputation of it several inches below the shoulder, and caused him great pain and suffering from which he continued to suffer at the time of the trial.

He was at the hospital receiving treatment for about a month, and thereafter received further treatment at the doctor's office for a month or six weeks. He at the time of the accident was 33 years of age, and had a life expectancy of 33 years. Prior to the accident he was in good health, strong, and able-bodied. He had been in the employ of the defendant for about 18 years, for the first 8 years doing carpenter and bridge work, earning from $5 to $7 a day, and the last 10 years prior to the accident as a brakeman in the transportation service, and during such period, as testified to by him, he earned on an average each year $2,400, and as shown by evidence of the defendant at least $154 a month, or about $1,850 a year.

The only experience or training the plaintiff had was in railroading. He had no education, training, or experience to follow any other occupation or vocation, and was not capable of doing any kind of manual work requiring the use of two hands and arms, and since the accident, and up to the time of the trial, he was unable to earn and had not earned anything; that another had to wash his hand, cut the meat he ate, tie his shoes, and assist him in putting on and buttoning some of his wearing apparel, etc.

The case was tried to a jury. The liability of the defendant under the act was not disputed at the trial. The only question submitted to the jury was the amount of damages to be awarded. In such particular the court charged the jury that in determining the amount of damages they should take into consideration all the facts and circumstances in evidence bearing on the nature and extent of the injuries, the pain and suffering, if any, endured by the plaintiff, his loss of time and inability to work, the extent to which his injuries impaired his future earnings, and that:

"In considering the element of loss in wages, if any, which the plaintiff may sustain in the future on account of the loss of his arm, you are instructed that it is proper to consider plaintiff's expectancy of life. You are further instructed, however, that such loss must be figured on the basis of the present value of a yearly income equivalent to the probable reduction of plaintiff's earnings. The most the plaintiff would be entitled to as compensation for the impairment or loss of future earning power would be, not the total amount in wages which he would probably earn during his life expectancy, but the value or equivalent if paid now in a lump sum by the defendant in advance instead of being earned and received in monthly installments during the remaining years of his life.

"You are further instructed that the legal rate of interestfixed by the law of this state is eight per cent, and incomputing the present worth of money as recited in the foregoing paragraph of thisinstruction you may figure it on the basis of eight per cent perannum." (Italics ours.)

Plaintiff took exception to the italicized portion of the charge, and especially to the statement that in computing the present worth the jury "may figure it on the basis of 8 per cent. per annum," the legal rate of interest fixed by the laws of Utah. Rev. St. 1933, 44-0-1.

The jury, on May 13, 1931, rendered a verdict for $12,000 in favor of the plaintiff and against the defendant, upon which judgment was entered accordingly. In due time the plaintiff served and filed a motion for a new trial on the ground of errors of law occurring at the trial and excepted to by the plaintiff; and that the amount of the verdict rendered was inadequate. Upon argument and submission of the motion, the matter was taken under advisement, and on due consideration thereof, and being sufficiently advised, the court, on February 15, 1932, granted the motion and ordered a new trial of the case. Thereafter, and on February 17, 1932, the plaintiff filed a motion dismissing the action without prejudice, and on April 1, 1932, the action on the prior motion of the plaintiff over the objection of defendant was ordered dismissed without prejudice.

On the filing of his motion of dismissal, plaintiff commenced a new second action against the defendant, but planted the same in the federal District Court of Utah to recover damages for the same injury heretofore sought to be recovered in the state district court. On a trial there had to a jury, a verdict was rendered, June 1, 1932, in favor of plaintiff and against defendant for $27,000. A motion for a new trial in the federal court was filed by defendant June 7, 1932. Pending a disposition of that motion, defendant, on July 20, 1932, served and filed a notice of appeal appealing to the Supreme Court of Utah from the order dismissing the action in the state district court. The motion for a new trial in the federal court was denied August 27, 1932, and on October 29, 1932, the defendant took an appeal from the judgment in the federal court to the Circuit Court of Appeals upon grounds, among others, that the verdict of $27,000 was excessive; that the federal court abused its discretion in refusing to grant a new trial; and that the court erred in refusing the defendant's request to charge on the subject of the present worth of money. The Circuit Court of Appeals refused to disturb the judgment on any of such grounds, but reversed the judgment and ordered a new trial of the case on the sole ground of alleged misconduct of the jury. Southern Pac. Co. v.Klinge, 65 F.2d 85, 87.

The case now before this court is on the appeal taken by the defendant from the order of dismissal of the action without prejudice in the state district court, and while the case in the federal court was and still is pending on the order of the Circuit Court of Appeals granting a new trial. The principal contentions of the appellant are that after the new trial was granted in the state district court, plaintiff without the consent of the defendant was without right to dismiss the action without prejudice, and the court without authority on motion of the plaintiff to so dismiss the action; that the charge which the state district court gave on the subject of present worth of money stated the law applicable in such case; that the verdict of $12,000 rendered by the jury was adequate and that the court abused its discretion in granting a new trial; and, hence, the appellant on this appeal prays that the dismissal of the action be vacated, the granting of the new trial set aside, and that the judgment in favor of the plaintiff and against defendant on the verdict of $12,000 be reinstated as the final judgment in the cause.

On the contrary, it is contended by the respondent that the granting of the new trial set aside both the verdict and judgment and left the case exactly in the position it occupied before there had been a trial and in the same condition as if no previous trial had been had; that the order or judgment of dismissal of the action, though without prejudice, terminated the litigation in that action, sent the case out of court without a judgment of any kind against the defendant, and thus there was no existing adverse judgment affecting the defendant from which an appeal properly could be prosecuted by it; that the respondent after the new trial was granted had the absolute right to dismiss the action without prejudice and the court authorized to so dismiss it on plaintiff's motion; that the charge of the state court on the subject of present worth, to which the plaintiff had excepted, was erroneous and prejudicial to him, and that upon such ground alone the state district court was justified and authorized in granting the new trial; that the verdict was inadequate; and that no abuse of discretion was shown by the granting of the new trial, the burden of which was on the appellant to show such abuse.

In the first place, if the portion of the charge to which exception was taken, and which the court gave on the subject of present worth, was erroneous and prejudicial to the rights of the plaintiff, there is no merit to this appeal, though all other questions be resolved in favor of the appellant. The case being one brought under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), whether in a state or in the federal court, the doctrine and measure of damages are as announced and ruled by the federal courts, and such rulings are binding on the state courts. Such is the established doctrine generally. In notes in 12 A.L.R. 711, the annotator says:

"The question of the proper measure of damages is inseparably connected wth the right of action, and, in cases arising under the Federal Act (the Federal Employers' Liability Act [45 U.S.C.A. §§ 51-59]) it must be settled according to general principles of law as administered in the Federal Court."

In support thereof, cases are there cited both from the federal and the state courts. The same principle is stated in annotations to U.S.C.A. title 45, Railroads, pages 350, 351, and cases there cited. To that effect is the ruling of the Supreme Court of the United States in the case of Chesapeake O.R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630,60 L. Ed. 1117, L.R.A. 1917F, 367. In the case of Laughlin v. KansasCity Southern R. Co., 275 Mo. 459, 205 S.W. 3, it was held that, in actions arising under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), the measure of damages is to be determined according to the provisions of the act itself and the general common law as administered by the federal courts, unaffected by state legislation or decisions of state courts. In the case ofSt. Louis-San Francisco R. Co. v. Floyd, 146 Okla. 42,293 P. 250, 253, 77 A.L.R. 1431, the court said:

"The question of the proper measure of damages in cases arising under the Federal Employers' Liability Act [45 U.S.C.A. §§ 51-59] must be settled according to principles of law administered in the federal courts."

The cases are numerous to that effect. Such doctrine falls within the well-established rule that state courts are governed in their construction, application, and interpretation of the Federal Employers' Liability Act by the decisions of the federal courts. Notes 12 A.L.R. 715. Thus the rule 1 laid down by some of the state courts in cases where the Federal Employers' Liability Act was not involved, concerning the subject of present worth of money and what rate of interest may be employed in computing the present worth, of which some such cases are cited by appellant, has no application to the instant case.

The rule as to the measure of damages applicable to cases like the case at bar has been before the Supreme Court of the United States in several cases (Chesapeake Ohio R. Co. v. Kelly,241 U.S. 485, 36 S. Ct. 630, 633, 60 L. Ed. 1117 L.R.A. 1917F, 367;Gulf, C. S.F.R. Co. v. Moser, 275 U.S. 133, 48 S. Ct. 49,50, 72 L. Ed. 200, 203), and the identical question here involved considered and determined by the Circuit Court of Appeals in the case of Southern Pac. Co. v. Klinge, supra. In none of these cases is the rule as to computation of present worth of money supported or approved as stated in the italicized portion of the charge of the state district court, and by the Circuit Court of Appeals is expressly repudiated. In the Chesapeake-Kelly Case, the Supreme court of the United States said:

"That where future payments are to be anticipated and capitalized in a verdict the plaintiff is entitled to no more than their present worth is commonly recognized in the state courts. We cite some of the cases, but without intending to approve any of the particular formulae that have been followed in applying the principle; since in this respect the decisions are not harmonious, and some of them may be subject to question." (Citing cases.)

The court there further stated that:

"As a rule, and in all cases where it is reasonable to suppose that interest may safely be earned upon the amount that is awarded, the ascertained future benefits ought to be discounted in the making up of the award.

"We do not mean to say that the discount should be at what is commonly called the ``legal rate' of interest; that is, the rate limited by law, beyond which interest is prohibited. It may be that such rates are not obtainable upon investments on safe securities, at least, without the exercise of financial experience and skill in the administration of the fund; and it is evident that the compensation should be awarded upon a basis that does not call upon the beneficiaries to exercise such skill, for where this is necessarily employed, the interest return is in part earned by the investor rather than by the investment. This, however, is a matter that ordinarily may be adjusted by scaling the rate of interest to be adopted in computing the present value of the future benefits; it being a matter of common knowledge that, as a rule, the best and safest investments, and those which require the least care, yield only a moderate return.

"We are not in this case called upon to lay down a precise rule or formula, and it is not our purpose to do this, but merely to indicate some of the considerations that support the view we have expressed that, in computing the damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only. * * * But the question of the proper measure of damages is inseparably connected with the right of action, and in cases arising under the Federal Employers' Liability Act it must be settled according to general principles of law as administered in the Federal courts."

In the Moser Case, supra, the Supreme Court of the United States stated that, in the Chesapeake-Kelly Case,

"We distinctly stated that: ``In computing the damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money; in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only.' The interpretation approved by us has become an integral part of the statute. It should be accepted and followed."

Whatever doubt, if any, there may be as to the application of such cases to the instant case is set at rest by the Circuit Court of Appeals in the Southern Pac. Co.-Klinge Case, supra. As is seen, the state district court on the subject of computing the present worth of money charged:

"You are further instructed that the legal rate of interest fixed by the law of this state is eight per cent, and in computing the present worth of money as recited in the foregoing paragraph of this instruction you may figure it on the basis of eight per cent per annum."

In the case brought in the federal District Court to recover on account of the same injury, the defendant requested that court to charge, which request was refused, that:

"You are instructed that the legal rate of interest fixed by law of this state is eight per cent per annum, and in computing the present worth of money as explained to you in these instructions you may, but are not required to figure the present worth of money at eight per cent. You may use any per cent figure which you may find fairly represents the percentage which an investment carefully made may be fairly expected to yield by way of interest."

It thus is seen that the requested charge in the federal District Court is much more favorable to the plaintiff than is the charge as given by the state district court. On appeal from the judgment of the federal District Court to the Circuit Court of Appeals, the defendant, among other grounds, urged that the federal District Court erred in refusing the defendant's said request. As to that, the Circuit Court of Appeals said:

"Error is assigned because the trial court declined to charge the jury that their verdict should be computed on the assumption that money could safely be invested at eight per cent., the legal rate in Utah. The trial court was clearly right. The jury should determine from the evidence what interest could be fairly expected from safe investments which a person of ordinary prudence, but without particular financial experience or skill, could make in that locality. Chesapeake Ohio Ry. Co. v.Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. Ed. 1117, L.R.A. 1917F, 367. Whether the statutory rate on judgments is even evidentiary might be questionable; but certainly it is not conclusive."

What the Circuit Court of Appeals in such case involving the Federal Employers' Liability Act, so stated, is binding on the state courts and on this court. The Circuit Court of Appeals, by citing the Chesapeake-Kelly Case in support of the conclusion reached, in effect, if not expressly, held that the request of the defendant was not in accordance with the rule announced inthe Chesapeake-Kelly Case, and if the request was not in harmony therewith, it clearly follows that the charge of the state district court was not. Such interpretation given the Chesapeake-Kelly Case by the Circuit Court of Appeals is likewise binding on this court. Certainly this court may not give a different interpretation to that case than was given it by the Circuit Court of Appeals. It would be highly presumptuous and against the well-established rule if this court should undertake to do so. There thus is a binding decision on the question that the charge given by the state district court was not in harmony with the rule announced on the subject by the federal courts, and therefore was erroneous, and thus the state district court was not only justified in granting the new trial complained of, but was required to do so.

It is urged by the appellant that, by the use of the word "may" in the charge of the state district court, no binding or mandatory instruction was given the jury to compute the present worth at the rate of 8 per cent per annum. But the court instructing the jury that the legal rate was 8 2 per cent, and that in computing the present worth the jury "may figure it on the basis of 8 per cent per annum," at least gave the jury to understand that they could do so. As to the rate of interest to be employed, no rate or guide was given the jury, except the legal rate at eight per cent., and not anything indicated or suggested that the jury was at liberty to employ any other rate, or any rate by them thought reasonable under the circumstances of the case. From the language employed, the ordinary jury would understand that in computing the present worth the proper rate to use was the legal rate, and since the jury were told that it was proper to do so, it may well be presumed that the rate of 8 per cent was employed by them in computing the present worth. Besides, the word "may" has a wide scope of meaning, has various meanings, sometimes employed as "must," and often interchangeably with "should." 39 C.J. 1392.

It is also common knowledge that for some time prior to the trial and subsequent thereto, 8 per cent interest was not obtainable on reasonably safe loans or other investments, and that banks handling savings accounts and time deposits paid only 3 1/2 to 4 per cent, and since paid only a little better than half that, and that what loans had been made were difficult of collection and the value of property given as security greatly depreciated. If, by the charge, the trial court viewed the matter that the jury in computing the present worth may have and probably did base the computation on the legal rate, and as the court charged they could do, there certainly was no abuse of discretion in the granting of the new trial. And as shown by the authorities under the rule announced by the federal courts, it would have been error against the plaintiff had the court refused to grant the new trial.

By argument it is conceded that the rule as to the measure of damages, in a case as here involving the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), is as announced and ruled by the federal courts; but it in effect is said that, in the absence of evidence as to the prevailing rate of interest, the jury in computing the present worth of money may do so at the legal rate of 8 per cent. The import of such an argument is not in accordance with the decisions of the federal courts. Here there is evidence to show and it is not disputed that the plaintiff was without education, training, and experience, except what experience he had in doing rough carpenter work and working as a brakeman; and, hence, was without experience in investing funds or loaning money and without experience or knowledge as to the kind of investments or loans that might or could be made with reasonable safety. All that is in the record. In the Kelly Case, supra, it is said that legal rates might not be obtainable upon investments without financial experience and skill in the handling of funds, and that compensation should be awarded upon a basis that does not call for returns which in part are earned by the investor rather than by the investment; and then the court further said that:

"It being a matter of common knowledge that, as a rule, the best and safest investments, and those which require the least care, yield only a moderate return."

So, too, it is common knowledge which this court must judicially know and may not disregard that, at the time of the trial and at all times subsequent thereto, the legal rate of interest at 8 per cent was not obtainable upon any kind of reasonably safe investments or loans, that interest paid on government bonds was only from 2 to 3 per cent, interest paid by banks on time deposits was only from 2 to 3 per cent, and that thousands and millions of dollars are and have been lying idle in banks because such moneys could not be safely invested in any kind of reasonably safe securities or loans, except at a very small rate of interest, and in many instances could not be safely invested on any kind of securities. And in this very case the Circuit Court of Appeals in reviewing the judgment of $27,000 from the federal District Court held that the court did not abuse its discretion in refusing to grant a new trial upon the grounds that the verdict was excessive, and stated that figured at 4 per cent return, which a jury might fairly find to be all that might reasonably be expected from a safe investment, the verdict was based on a loss of an earning power of $1,500 a year, and that the contention that the verdict was excessive was wholly without merit; and expressly held that the request of the defendant in the federal court as to the rate of interest in computing the present worth was properly refused and was not in accordance with the rule announced by the Supreme Court of the United States in the Kelly Case.

Because of such holding, this court may not now say that the charge of the state district court on the subject, which is many times more flagrant than the refused request of the defendant in the federal court, is in accordance with the Kelly Case. This court may not, in a case as here, in one breath say that it, as to the rule or measure of damages, and as to the computation of present worth of money, is bound by the decisions of the federal courts, and in the next breath put a construction or interpretation on the Kelly Case different from that put upon it by the federal Circuit Court of Appeals and by the Supreme Court of the United States itself in the Moser Case.

To reverse the judgment in this case would mean an approval of the charge of the court below and to establish a precedent for all future cases involving the present worth of money. To establish such a precedent would, in the main, be unreasonable and harmful, for the reason that it is common knowledge that most beneficiaries, receiving compensation or funds involving the present worth of money, are unskilled and inexperienced in the use of funds, and in the great majority of cases can hope to get only a very moderate return from the use of them.

The court also within its discretion was justified and authorized to grant a new trial on the ground that the verdict was inadequate, in view of the undisputed evidence that the earning capacity of the plaintiff during the last 10 years prior to the accident was about $2,000 a year, that since his disability he was unable to follow or be employed in his usual occupation of railroading or in any other employment of gain or profit or of any substantial remuneration, and since his injury he was unable to earn and had not earned anything. Under all the authorities, great latitude is accorded the trial court in such matter. Cases are cited by appellant where verdicts of $10,000 or less for the loss of an arm were regarded as adequate compensation; but in most such cases the earning capacity of the injured plaintiff was much less than that of the plaintiff in the instant case. In such particular, each case is dependent upon its own facts, and what may be adequate compensation in the one may be inadequate in the other. Hence, a wide discretion is given the trial court in such matter and rarely is interfered with by an appellate tribunal whether the awarded compensation by the court below was held adequate or inadequate. In 46 C.J. 207, the rule is stated that inadequate compensation for an injury sustained is generally ground for a new trial, and that a statute providing that "the jury may give such damages as under all the circumstances of the case may to them seem just," does not affect the court's right to grant a new trial where it deems the damages inadequate. In the case of Dorset v. Chambers,187 Mo. App. 276, 173 S.W. 725, the court said that in tort cases the trial judge is as much a trier of facts as the jury and is charged with the final duty of doing justice between the parties. The question before him for solution where the plaintiff asks for a new trial on the ground of an inadequate verdict is not whether the assessment is so inadequate as to shock the judicial concience, and bespeak passion or prejudice on the part of the jury, but whether it is out of line with the evidentiary facts and circumstances as the judge sees and understands them.

That no abuse of discretion in the instant case was committed by the trial court is clearly indicated by the Circuit Court of Appeals in reviewing the judgment of $27,000 for the same injury, and where it was held that no abuse of discretion was committed by the federal District Court in refusing to grant a new trial on the ground that the verdict was excessive, and where the court said that, "figured on a 4 per cent return, which a jury might fairly find to be all that could reasonably be expected from safe investments, the verdict was based on a loss of earning power of about $1,500 a year. This assignment is entirely without merit." If, therefore, there was no abuse of discretion in refusing to grant a new trial on the ground that the verdict of $27,000 was not excessive, there certainly was no abuse of discretion in the state court granting a new trial on the verdict of $12,000 for the same and identical injury. To say there was no abuse of discretion in the one case, but an abuse in the other, is not only illogical, but an irreconcilable inconsistency. The rule is well established that a presumption exists that a trial court did not err or abuse his discretion in granting or refusing a new trial, and that the burden is upon him complaining of the ruling to show a clear abuse of discretion. Utah State Nat. Bank v.Livingston, 69 Utah 284, 254 P. 781; Thomas v. Ogden RapidTransit Co., 47 Utah 595, 155 P. 436; Hirabelli v. Daniels,44 Utah 88, 138 P. 1172; White v. Union Pac. R. Co., 8 Utah 56,29 P. 1030; Alt v. Chicago N.W. Ry. Co., 5 S.D. 20,57 N.W. 1126, 1128; Koch v. Imhof, 315 Pa. 145, 172 A. 672, 673;O'Barr v. Pioneer Life Ins. Co., 172 S.C. 72, 172 S.E. 769; 4 C.J. 798. In the case of Alt v. Chicago, etc., Ry. Co., supra, that court, in a personal injury case, stated that:

"It requires a court as well as a jury to try causes of this nature, and, while the jury is the judge of the facts viewed in the light of the law, as a rule no verdict should stand when, in the sound judgment of the trial court, it operates as a wrong between the parties which might be remedied upon a retrial."

I am also of the opinion that the respondent is entitled to prevail as to the other points urged by him. The effect of the granting of the new trial set aside both the verdict and the judgment and placed the case exactly in the position it occupied before there had been a trial, and that the 3 case in contemplation of law was in the same position as if no previous trial had been had. 20 R.C.L. 313, and cases there cited; 20 Standard Encyo. of Proc., 628; notes 44 L.R.A. (N.S.) 346, and cases.

After the new trial was granted, the plaintiff, in pursuance of R.S. Utah 1933, 104-29-1, subsec. 1, filed a motion and moved a dismissal of the action without prejudice, and upon such motion the action was so dismissed. The statute provides that an action may be dismissed without prejudice "by the plaintiff himself at any time before trial, upon the payment of costs, if a counterclaim has not been made or affirmative relief sought by the answer of the defendant," none of which was here made or filed. It is the contention of the appellant that plaintiff then was without right to dismiss without prejudice and the court without authority to order such a dismissal. If that be true, then the case is still pending in the state district court, in which event the appellant is not entitled to a reinstatement of the judgment vacated by the granting of a new trial. But the plaintiff under the statute had the undoubted right to dismiss the action without prejudice. The only inhibition interposed by the statute preventing him from so doing is when a counterclaim has been made or affirmative relief sought by the answer of the defendant. Neither such was made or sought. The appellant, however, urges that such right entitled the plaintiff to dismiss only "before trial," and that here a previous trial was had. But as shown by the authorities heretofore referred to, the effect of granting the motion for a new trial ipso facto vacated the verdict and judgment and left the case in the same condition as if no previous trial had been had. In the case of Phelps v. Winona St. P.R. Co.,37 Minn. 485, 35 N.W. 273, 275, 5 Am. St. Rep. 867, the court under a similar statute as that of ours, and where, as here, a voluntary dismissal was taken after the trial court had set aside a verdict and ordered a new trial, said:

"The award of a new trial wipes out the verdict. Setting aside a verdict is as if it had never been, and it cannot be used for any purpose. It is a mistrial, and the plaintiff has the same right to dismiss or discontinue as if no trial had ever been had."

To that effect are the cases of Gardner v. Michigan CentralR. Co., 150 U.S. 349, 14 S. Ct. 140, 37 L. Ed. 1107, a case on its facts very similar to the instant case; Goin v. Chute,126 Or. 466, 260 P. 998, 270 P. 492; Bleckley v. White,98 Ga. 594, 25 S.E. 592; Hayden v. Main Central R. Co., 118 Me. 442,108 A. 681.

The case cited and relied on by defendant on this point,Reagan v. Dyrenforth, 87 Colo. 126, 285 P. 775, when considered in connection with the particular question before the court and the observations made and the conclusion reached with respect thereto, as shown on a careful reading, is not applicable to the facts of the instant case; and even though it should be regarded as applicable, such a ruling as applied to the particular subject under consideration would be against the undoubted weight of authority.

The appellant, however, urges that, as the result of the previous trial, it acquired an interest in and to the judgment and in the action, which, by permitting the plaintiff without the consent of the defendant to dismiss the action and by the commencement of a new action before another court of competent jurisdiction to recover damages for the same injury, deprived the defendant to its prejudice of such interest and right. Such contention is well answered against the appellant in the case ofWilliams v. Breitung, 216 Ill. 299, 74 N.E. 1060, 1063, 3 Ann. Cas. 506, where the court said:

"``It is not regarded as prejudice to the defendant that the complainant dismisses his own bill, simply because the complainant may file another bill for the same matter.' Bates v. Skidmore, supra [170 Ill. 233, 48 N.E. 962]. The only prejudice to his own interests which the appellant here insists upon is likely to occur from the dismissal of the bill without prejudice is that another bill may be filed against him for the same matter. If such were the case, there would be no such prejudice to his right under the authorities as to justify this appeal."

As is seen, the statute does not on any such ground, as urged by defendant, forbid a dismissal by the plaintiff of an action without prejudice and without the consent of the defendant. Such a contention on alleged prejudice would prevent a plaintiff "at any time before trial" from dismissing an action without prejudice and without the consent of the defendant. Should the contention of the defendant prevail in case of a previous trial resulting in a judgment in favor of the plaintiff and a new trial granted, then the defendant choosing to claim the result of the trial a victory could prevent the dismissal of the action without prejudice; on the other hand, if he chose to claim the result of the trial a defeat, then the plaintiff would be entitled to dismiss without prejudice; and thus the defendant and not the statute would determine the right of a dismissal without prejudice after a new trial is granted. A dismissal of an action without prejudice and the commencement of a new action on the same claim or demand before another court of competent jurisdiction may or may not result to the advantage of the plaintiff or to the disadvantage of the defendant. But the plaintiff and not the defendant has the choice of forum to which the defendant is amenable both as to subject-matter and person. The right of the plaintiff to have an action for the same claim or demand pending at the same time in two different forums, each of competent jurisdiction of subject-matter and person, may not be doubted. Here, no appeal was taken by the defendant from the dismissal of the action in the state district court until after the judgment was rendered in the federal District Court. Then it was that the defendant chose the judgment in the state district court to be of binding effect and to have it so declared, notwithstanding the granting of the new trial and a dismissal of the action, in order to wipe out the effect of the judgment in the federal District Court. Had the judgment in the federal District Court been of an amount less than the judgment set aside in the state court, then the defendant, no doubt, would have urged and claimed the judgment in the federal District Court of binding effect, in which event no claim would have been made that the dismissal of the action in the state court was without right, and no appeal would have been taken therefrom. Such but illustrates the proposition that the right of plaintiff to dismiss an action without prejudice when a new trial is granted and a new action commenced before another court of competent jurisdiction, and as to the binding effect of the judgment set aside, is not dependent upon the statute and the law, but upon the will and choice of the defendant. Moreover, whatever prejudice resulted from the judgment rendered in the federal District Court was dissipated by the reversal of the judgment and the granting of a new trial by the Circuit Court of Appeals, on which new trial, if there be one, a judgment may result in an amount less than that set aside by the state court. Thus, the claimed right of prejudice asserted by defendant is more fantastic than real.

This brings us to the further and last point (which could have been considered first), as to whether there was an adverse judgment against the defendant from which an appeal could properly be prosecuted by it. The general rule is well settled that a plaintiff or defendant cannot prosecute an appeal from a judgment or decree in his own favor, and ordinarily cannot appeal from an order or judgment dismissing the complaint, bill or petition, nor from a voluntary dismissal, since the defendant is not aggrieved thereby. 3 C.J. 621, 636; 2 R.C.L. § 36, p. 56; 2 Standard Encyo. of Proc. 194; Ottenheimer v. Mountain StatesSupply Co., 56 Utah 190, 188 P. 1117; In re Tarnowski,191 Wis. 279, 210 N.W. 836, 49 A.L.R. 686. The last expression of this court on the subject is in the case of Commercial Block Realty Co. v.United States F. Guar. Co., 83 Utah 414, 28 P.2d 1081,1082, wherein the court in considering section 6993, Comp. Laws of Utah 1917, now R.S. Utah 1933, 104-41-4, among other things, said:

"Not only must one be a party to a judgment before he can appeal, but the judgment must be adverse to his interests. In other words, he must be aggrieved or affected by the judgment. Although there are exceptional cases, the general rule is that a party may not appeal from a judgment which is in his favor. Thus a defendant cannot ordinarily appeal from a judgment or decree dismissing a complaint since he is not aggrieved or affected adversely by the judgment of dismissal."

In support of the claim of appealable interest, defendant chiefly relies on the cases of Hawkins v. Nuttallburg Coal Coke Co., 66 W. Va. 415, 66 S.E. 520, and Hirabelli v.Daniels, 44 Utah 88, 138 P. 1172. A reading of the cases shows neither is here applicable. In the Hawkins Case, an order denying or granting a new trial in that jurisdiction was appealable. In this jurisdiction such an order is not appealable. In the Hawkins Case, there was an appeal from an order granting a new trial. The case there was not dismissed nor put out of court nor the litigation of the action terminated. Here no such appeal may be or was taken. Here, the case was dismissed and by the dismissal the litigation of the action ended and terminated, without any kind of a judgment against the defendant, and as was prayed by it in its answer, that the plaintiff take nothing by his complaint and that it be dismissed.

The Hirabelli Case was one brought to recover damages for an assault and battery. It was tried three times to a jury. The judgment on the first trial on appeal was reversed and a new trial granted. On the second trial, a judgment was rendered in favor of the plaintiff and against the defendant for $35. On motion of the plaintiff and against the objection of the defendant, a new trial was granted. On the third trial, a judgment was rendered in favor of the plaintiff and against the defendant in the sum of $119 and costs. From that judgment, the last judgment, the defendant prosecuted an appeal. There was not there, as here, a dismissal of the action. There, different from here, was a specific and definite judgment against the defendant in the sum of $119 and costs from which the appeal was taken. Here the appeal is taken from an order of dismissal of the action without a judgment of any kind against the defendant, the action by the dismissal terminated, and the parties left in the same situation as they were before any action was commenced.

But it is asserted by the defendant, since in this jurisdiction no appeal lies from an order granting or refusing a new trial, that, unless the defendant be permitted to appeal from the order dismissing the action, it has no remedy to have reviewed the order of the court granting a new trial to the plaintiff over the objection of the defendant. It is elementary that to review intermediate rulings and orders in a cause there must be a final and a definite and an adverse judgment against the party complaining and from which an appeal may properly be taken. Unless there is such a judgment, there is no right of appeal to review intermediate rulings and orders in the cause. There was such a judgment in the Hirabelli Case and from which the appeal was taken, and hence on such appeal the defendant was in position to have reviewed every alleged and prejudicial ruling and order made against him in the cause and properly preserved by a bill of exceptions. Here, the appeal was not from any such a judgment, but from one, and as stated in Williams v.Breitung, supra, where the defendant obtained everything that he claimed, that the plaintiff take nothing, and thus the defendant has no adverse or appealable interest entitling it to a review of any intermediate or alleged erroneous rulings in the cause. Passing strange would it be if any other rule should be adopted or followed merely to enable the defendant indirectly to circumvent or render ineffectual the proceedings, or whatever result therein obtained in the federal District Court of competent jurisdiction both of subject-matter and of person, which the defendant may not and could not accomplish directly. The contentions of the respondent may not easily be dismissed. They go to the very roots of appellate procedure. Under the authorities and in reason, I think they should prevail. To permit an appeal in case of a dismissal of the action and send out of court with no judgment of any kind against the party prosecuting the appeal is but to present a discussion of a mock law case for the sake of practice.

The argument that a dismissal of an action, sending it out of court, is a final judgment, and that under the Constitution all final judgments are appealable, does not meet or dispose of the pertinent questions here involved. The argument overlooks the essential that one may appeal from a judgment, though final, only when it is adverse to him, and as announced by this court in the case of Commercial Block v. United States F. G. Co., supra, and as shown by the texts and cases heretofore cited. As shown by the authorities, the dismissal of the action left the case in the same situation as though no action had been brought against the defendant; left it in a condition without any judgment of any kind against the defendant, much less a judgment adverse to it. In such respect it matters not whether the dismissal was with or without prejudice, for in either event the dismissal sent the case out of court without any kind of a judgment against the defendant. Hence, the cited Hirabelli Case, where there was no dismissal and where the appeal was taken by the defendant from a final judgment against him for a definite and specific sum of money and costs, has here no application. Here there is no such judgment from which the appeal is taken. In the Hirabelli Case, the appeal, being from a definite and specific judgment against the defendant, presented for review all alleged prejudicial and intermediate rulings in the case, including the granting or refusing to grant a new trial properly preserved by a bill of exceptions. But an attempted appeal as here from a judgment, though final, but not adverse to the appellant, does not present any intermediate ruling for review; and presents nothing but moot practice.

The argument further overlooks the proposition that a dismissal of an action without prejudice, taking nothing against the defendant, is not, and as shown by the authorities heretofore referred to, prejudicial to the defendant because the plaintiff may commence a new action on the same matter. It further overlooks the proposition, and also as shown by the authorities, that the granting of a new trial wiped out the verdict and set it aside as though it had never been, and that the plaintiff had the same right to dismiss or discontinue the action as though no trial had ever been had, and in such particular, and as shown by the authorities, it matters not whether the new trial was granted on an appeal or by the trial court itself.

There is a motion to dismiss the appeal on the ground that the defendant, for the reasons heretofore stated, had no appealable interest. But aside from the motion, jurisdiction of this court must appear on the record. State ex rel. Snell v. Third Dist.Court, 36 Utah 267, 103 P. 261. It may not be waived. Davidson v. Munsey, 27 Utah 87, 74 P. 431. This court will, sua sponte (Hardy v. Meadows, 71 Utah 255, 264 P. 968), determine its own jurisdiction, though not challenged (Farmers' Cash Union v.Elswood, 67 Utah 501, 248 P. 477), and will notice want of jurisdiction whether the parties raise the question or not (McCashland v. Keogh, 32 Utah 11, 88 P. 680), and for want of jurisdiction will dismiss an appeal on its own motion (LoganCity v. Blotter, 75 Utah 272, 284 P. 333).

From what has been said, of course, it follows that the appeal should be dismissed, which necessarily leads to an affirmance of the dismissal of the action in the court below. We also are of the opinion that the court below, for the reasons hereinbefore stated, did not err in granting the motion for a new trial, nor on plaintiff's motion in dismissing the action without prejudice, which holdings, if followed by this court, also lead to an affirmance of the dismissal of the action in the court below. Thus, the order or judgment appealed from is affirmed, with costs to the respondent.