25 S.W. 587 (Mo. 1894), Fullerton v. Fordyce

Citation:25 S.W. 587, 121 Mo. 1
Opinion Judge:Macfarlane, J.
Party Name:Fullerton v. Fordyce et al., Receivers, Appellants
Attorney:Sam H. West for appellants. Wilson Cramer for respondent.
Judge Panel:Macfarlane, J. Barclay, J., is absent.
Case Date:March 05, 1894
Court:Supreme Court of Missouri

Page 587

25 S.W. 587 (Mo. 1894)

121 Mo. 1



Fordyce et al., Receivers, Appellants

Supreme Court of Missouri, First Division

March 5, 1894

Appeal from Scott Circuit Court. -- Hon. H. C. O'Bryan, Judge.

Reversed and remanded.

Sam H. West for appellants.

(1) The court had no jurisdiction to hear and determine this case, the suit being against receivers of the United States court. It is not alleged in the petition or shown at the trial, that the United States court which appointed the receivers, defendants herein, had given permission for them to be sued in this case in the state court. The court erred in overruling defendants' plea to the jurisdiction. The defendants objected to the admission of any testimony for the want of jurisdiction, and the court erred in overruling their objection. Barton v. Barbour, 104 U.S. 126; Cooley's Const. Lim. [5 Ed.], 10; U. S. v. Hudson, 7 Cranch, 32. (2) The court erred in overruling defendants' plea in abatement, setting up the final discharge of defendants as receivers, which plea was set up in the motion and in the answer. That part of the answer was stricken out and the error in so doing was made the second ground in the motion for new trial. Upon the final discharge of a receiver by the court appointing him, suits pending against him abate. This plea of defendants sets up a good and valid defense, and should not have been stricken out. Beach on Receivers [1 Ed.], sec. 720; Fordyce v. Beecher, 2 Tex. Civ. App. 29. (3) The defendants objected to the introduction of any testimony on the part of the plaintiff because the petition did not state that the defendants had knowledge of the existence of the hole in the platform or that they had such knowledge sufficient length of time to have repaired it or that the platform had been in a dangerous condition long enough to have charged the defendants with knowledge of its defects. The court erred in overruling this objection and in admitting the evidence. Ray on Negligence of Imposed Duties [1 Ed.], sec. 33, p. 94; sec. 34, p. 96; Railroad v. Fairbairn, 48 Ark. 491; Moore v. Railroad, 84 Mo. 481. (4) The court erred in overruling defendants' demurrer and objections to plaintiff's evidence, on the ground that the petition did not allege that the defendants, who were officers of the federal court, had been authorized and empowered by the court appointing them to keep the depot platform at New Madrid in good repair. Beach on Receivers [1 Ed.], secs. 249, 257 and 282; High on Receivers [1 Ed.], secs. 134, 142 and 180. (5) The court erred in refusing and overruling the defendants' application for a physical personal examination of plaintiff by skilled physicians and surgeons. Shepherd v. Railroad, 85 Mo. 629; Sidekum v. Railroad, 93 Mo. 403: Owens v. Railroad, 95 Mo. 177. (6) The court erred in giving its first and third instructions to the jury, which were given on its own motion. These instructions assume, as a matter of law, and affirmatively assert that the hole was unsafe and dangerous, and its existence was negligence, instead of submitting the question for the determination of the jury as an issue of fact. Whether the hole was unsafe or dangerous, and whether there was negligence in not repairing it was a question of fact for the jury to determine. The defendants were entitled to have the jury pass upon the question of fact. Buswell on Personal Injuries [1 Ed.], p. 129, sec. 93; 2 Thompson on Trials [1 Ed.], sec. 2295, and cases cited; Matthews v. Railroad, 26 Mo.App. 89; State v. Wheeler, 79 Mo. 366; Wilkerson v. Thompson, 82 Mo. 328; Bank v. Crandall, 87 Mo. 212; Childrey v. Huntington, 12 S.E. 536; James v. Railroad, 107 Mo. 480. (7) The court erred in its instructions given, as to the measure of damages. Wilburn v. Railroad, 36 Mo.App. 215; Railroad v. Cotes' Adm'r, 15 Am. & Eng. R. R. Cases, 265; Railroad v. Sykes' Adm'x, 96 Ill. 162-174; Rolling Mill Co. v. Morrissey, 18 Am. & Eng. R. R. Cases, 47; Hawes v. Stock Yards Co., 103 Mo. 60. On the latter part of the first and third instructions, see Willis v. McNeil, 57 Texas, 478. (8) The court erred in its instructions to the jury in this, that the jury were not told the duty, if any, the defendants owed the plaintiff and did not tell the jury the degree of care required by law of defendants in reference to keeping the station platform in repair. By the instructions, the jury were in effect told that if the plaintiff fell into a hole in the platform, the defendants were liable to him in damages. Ray on Negligence of Imposed Duties [1 Ed.], sec. 33, p. 94; sec. 34, p. 96. (9) The court erred in refusing instructions asked by the defendants. Ray on Negligence of Imposed Duties [1 Ed.], sec 33, p. 94; sec. 34, p. 96; City v. Dolan, 34 Ill.App. 199; 2 Thompson on Trials [1 Ed.], sec. 2295. (10) The verdict is excessive and should have been set aside on defendants' motion. 2 Thompson on Trials [1 Ed.], secs. 2299, 2300; Britton v. Railroad, 51 N.W. 276; Goetz v. Ambs, 27 Mo. 28; Sawyer v. Railroad, 37 Mo. 240; Honeycutt v. Railroad, 40 Mo.App. 674; Furnish v. Railroad, 102 Mo. 438; Hanlon v. Railroad, 104 Mo. 381; Railroad v. Hall, 78 Texas, 657. (11) The court erred in admitting improper testimony against the objections of the defendants. (12) The court erred in its instructions given to the jury. They...

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