Abernathy v. Missouri Pac. Ry. Co.

• Decision Date: 20 December 1920
• Docket Number: No. 21263.,21263.
• Citation: 228 S.W. 486,287 Mo. 30
• Parties: ABERNATHY v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

228 S.W. 486

287 Mo. 30

ABERNATHY v. MISSOURI PAC. RY. CO.

No. 21263.

Supreme Court of Missouri, Division No. 2.

December 20, 1920.

Rehearing Denied December 30, 1920.

Motion to Modify Opinion Denied March 9, 1921.

Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.

Suit by Ward Abernathy, by James J. Shepard, curator of his estate, against the Missouri Pacific Railway Company. From judgment for plaintiff, defendant appeals. Reversed.

This suit was instituted on the 13th day of February, 1917, in the circuit court of Benton county, Mo., by Ward Abernathy, by the curator of his estate, James J. Shepard. The action was to recover damages for personal injuries sustained by plaintiff by being gun over by a car being operated by the Missouri Pacific Railway Company at Cherokee, Kan. The injury occurred on the 10th day of September, 1905. The petition states a common-law action for negligence, in that defendant negligently and carelessly backed a string of its cars on a side track with such force against a stationary car as to run it against and over plaintiff and so injure him that both of his legs had to be amputated, all of which, it is alleged, was done without the exercise of ordinary care which, had it been exercised, would have disclosed plaintiff's presence and his situation of imminent peril. Recovery was sought under the humanity rule. The petition alleges that plaintiff was a minor, 19 years of age, when the present action was brought, and that he was 7 years of age when the accident happened, thus disclosing a lapse of 12 years from the date of the accident to the date of the suit.

Defendant answered by general denial, a plea of contributory negligence that defendant railway was defunct and plaintiff's father Burl Abernathy, desiring to make a settlement with defendant, arranged with it to pay plaintiff the sum of $250 and costs of a friendly suit which was to be in full acquittance of all liabilities of defendant in the premises. To this end Burl Abernathy, father of plaintiff, was appointed guardian of plaintiff by the probate court of Crawford county, Kan., the county in which the accident happened, and the subsequent proceedings were had, on the 17th day of May, 1907, with full power under the laws of said state to collect, manage, and dispose of said estate under the order of the court and to do and perform such acts as might be required of him by law or the decree, order, or judgment of any court of competent jurisdiction. Said guardian duly qualified in this behalf and was authorized to, and did, institute suit on May 17, 1907, in the district court of said county, and, upon due appearance of both parties to said cause, the plaintiff by Curran & Curran, his attorneys, and defendant by J. J. Campbell, J. J. Richards, and C. E. Benton, a hearing was had thereon (a jury being waived) upon the pleadings, evidence, and agreement entered into between the parties judgment was rendered in favor of plaintiff and against defendant for the sum of $250 and $8.40 costs. This sum was paid by defendant to the clerk of said court, for the use of plaintiff to his guardian.

Defendant pleaded all the foregoing facts in bar of the present action.

Some other matters, alleged to be defensive to the action, are pleaded by defendant; but in the view we take of the matter they are immaterial and will not be further referred to.

Plaintiff's reply was a general denial of the averments of the answer; a plea that the action of the probate court, in appointing plaintiff's guardian, and of the district court of Crawford county, Kan., in rendering judgment for plaintiff, were both void and were procured by fraud, deception, and misrepresentation practiced upon them by defendant; that Curran & Curran did not represent the plaintiff in the Kansas courts, and that the judge did not sign the judgment rendered.

J. F. Green and C. D. Corum, both of St. Louis, for appellant.

C. W. Prince, E. A. Harris, and James N. Berry, all of Kansas City, and W. S. Jackson, of Warsaw, for respondent.

MOZLEY, C. (after stating the facts as above).

1. Plaintiff filed a Motion to dismiss the appeal herein on the ground that the assignments of alleged error were not sufficiently specific and distinct in alleging what the supposed error was and, hence, is too general to justify review by us.

Under the holding of the later cases, it is not necessary for assignments of error to be more specific and distinct than those of the instant case. Wampler v. Railroad, 269 Mo. loc. cit. 483, 190 S. W. 908; State ex rel. United Rys. Co. v. Reynolds et al., Judges, 278 Mo. 554, 213 S. W. 782.

We overrule said motion.

2. Defendant assigns as error the refusal of the court, nisi, to give its instruction, at the close of the testimony, directing a verdict in its favor.

If this position is correct, it will dispose of all other questions raised.

3. The judgment of the district court of Crawford county, Kan., where the cause originated and was tried, omitting caption, reads as follows:

"Now on this the 17th day of May, 1907, that being a day of the regular May term, 1907, of said court, the above-entitled case comes on for trial, plaintiff appearing by Curran & Curran, his attorneys, the defendant appearing by J. J. Campbell, J. J. Richards, and C. E. Benton, its attorneys, and a jury having been waived, said cause is submitted to the court upon the pleadings, evidence, and agreement of the parties, on consideration whereof the court finds for the plaintiff, and finds that plaintiff is entitled to recover the sum of $250 and costs of suit. It is therefore considered, ordered, and adjudged by the court that said plaintiff have and recover of and from said defendant, the Missouri Pacific Railway Company, the sum of $250 and...