Drolshagen v. Union Depot R. Co.
| Decision Date | 22 December 1904 |
| Citation | 85 S.W. 344,186 Mo. 258 |
| Parties | DROLSHAGEN v. UNION DEPOT R. CO. |
| Court | Missouri Supreme Court |
1. In an action against a street railroad company for the death of plaintiff's son the petition charged in the first count that deceased was forcibly ejected from the car by the negligence of the motorman; the second count charged an ejection by the motorman unlawfully striking deceased; the third, that the boy was on the public street, and that the motorman negligently ran over him; the fourth, that the boy was run over because the motorman failed to observe the requirements of the vigilant watch ordinance of the city. Held that, owing to repugnancy, it was proper to require plaintiff to elect on which count he would proceed.
2. In an action against a street railroad company for the death of plaintiff's son, a count of the petition charged that the "motorman and driver" in charge of the car, "to further the business of the defendant as his employer," ejected the boy from the car, etc. Held, that objection to the petition that it did not state that the act of the motorman was within the scope of his employment, not having been made except by an objection to evidence, the petition would be held sufficient on appeal.
3. Where the master is sought to be held for the servant's tort, the burden of showing that it was committed in the scope of the servant's duties is on plaintiff.
4. The motorman of a street car, whose only duty is to operate the machinery, was not within the scope of his employment in ejecting a boy who was trying to ride on the running board of the car.
5. The motorman of a street car is not a "driver," within Rev. St. 1899, § 2864, giving an action for death from the negligence of any "driver of any stage coach or other public conveyance."
Appeal from Circuit Court, St. Louis County; Jno. W. McElhinney, Judge.
Action by William Drolshagen against the Union Depot Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.
Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. A. R. Taylor, for respondent.
Plaintiff sues to recover the penalty prescribed by the statute (section 2864, Rev. St. 1899) for the death of his minor son, caused by being run over by a street car of defendant. The petition is in four counts. In the first it is stated that the boy was on the car, and was forcibly ejected therefrom by the negligent act of the motorman; the second, that the boy was on the car, and was ejected therefrom by the motorman striking him unlawfully, willfully, and with criminal intent; the third, that the boy was on the public street, and the motorman negligently ran the car against him and over him; the fourth, that the boy was run over because the motorman failed to observe the requirements of the vigilant watch ordinance of the city. The answer was a general denial and a plea of contributory negligence. Before the beginning of the trial defendant moved the court to require the plaintiff to elect upon which count he would go to trial, because they were inconsistent. The motion was overruled, and defendant excepted.
1. The motion to elect should have been sustained. A plaintiff may state his cause of action in different forms in separate counts to meet any phase of the case which it is anticipated the evidence might show, but in doing so he must not in one count make statements which are so inconsistent with his statements in another count as that the proof of the case as stated in one count disproves that as stated in the other. Repugnancy is as bad in a petition as it is in an answer. Roberts v. Ry. Co., 43 Mo. App. 287; Enterprise Soap Co. v. Sayers, 51 Mo. App. 310; Brownell v. Ry. Co., 47 Mo. 243; Brady v. Connelly, 52 Mo. 19; St. Louis v. Allen, 53 Mo. 49; Owens v. Ry., 58 Mo. 386, loc. cit. 394; Rinard v. Ry., 164 Mo. 270, loc. cit. 284, 64 S. W. 124, 128. The statements in the first and second counts of the petition are so inconsistent with those of the third and fourth counts that, if those in the first two are true, those in the last two must be untrue. If the accident occurred in consequence of the motorman striking the boy on the hand with a blunt instrument, thereby breaking his handhold, and causing him to fall off the running board on which he was riding, as stated in the first and second counts, then it did not occur by running the car against him and over him while he was on the street, or by the failure of the motorman to keep a vigilant watch for him as he approached the car, as stated in the third and fourth counts. Section 626, Rev. St. 1899, authorizes a party to plead alternatively, but these contrarieties are not so pleaded. But as the finding and judgment were for the defendant on the second, third, and fourth counts, perhaps the error in overruling the motion to elect was not prejudicial.
2. The verdict and judgment were for the plaintiff on the first count for $5,000, and that is the judgment from which defendant has prosecuted this appeal. The first assignment of error is that the first count does not state facts sufficient to constitute a cause of action, in that it fails to state that the act of the motorman which it is alleged caused the injury was within the scope of his employment. This point was made at the trial in the form of an objection to any evidence under this count for that reason. The objection was overruled, and exception taken. The averments of the first count are that the plaintiff's son was standing on the running board of the moving car, holding with his hands to a bar running lengthwise along the side of the car, when the "motorman and driver" in charge of the car, "to further the business of the defendant as his employer," ejected the boy from the car by striking him upon the hand and arm with a blunt instrument, thereby causing him to lose his hold, and to be thrown and fall from the car and be run over and killed. The words above quoted, "to further the business of the defendant as his employer," are the only words in the petition which it is claimed charge that the act alleged to have been done by the servant was within the scope of his employment. If the pleader, when he wrote those words, was intending to make a positive declaration that the act was within the scope of the servant's employment, he could have found other words that would have expressed the idea with more certainty. But we have frequently said that where objection is not made to a petition until the trial is about to begin, if the petition is susceptible of a construction that will constitute it a good pleading, it will be so construed; and we are inclined to take that view of this petition. But if it should be conceded to the plaintiff that his petition, under the circumstances, is sufficient, still the defendant's objection arises again in another form; that is, that there was no evidence on the...
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