Adams v. Stockton

• Decision Date: 20 November 1939
• Docket Number: No. 19553.,19553.
• Citation: 133 S.W.2d 687
• Parties: ADAMS et ux. v. STOCKTON et al.
• Court: Missouri Court of Appeals

133 S.W.2d 687

ADAMS et ux. v. STOCKTON et al.

No. 19553.

Kansas City Court of Appeals. Missouri.

November 20, 1939.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be published in State Reports."

Action by John Adams and wife against N. B. Stockton and others for eviction of plaintiffs and their personal property from real estate, damages to personal property, loss of earnings, labor, expense, public disgrace, inconvenience and hardships, and loss of produce from land. Judgment for defendant and plaintiffs appeal.

Affirmed.

Fred A. Benz, of Sedalia, for appellants.

F. M. Brady and Edwin F. Brady, both of Warsaw, for respondents.

SPERRY, Commissioner.

The only question in this case is that of the sufficiency of the petition on demurrer. Plaintiffs, John Adams and Hester Adams, husband and wife, jointly sued defendants. The petition alleges the relationship of plaintiffs as that of husband and wife; that they owned, jointly, a lease on certain real estate and also were the joint owners of personal property; that they jointly owned the personal property, jointly occupied said real estate, and had the joint enjoyment of both; that defendants conspired together and, as a result of said conspiracy and of their joint action, plaintiffs and their personal property were unlawfully evicted from the real estate,

"* * * and defendants, by reason of said unlawful acts did therein and thereby, without just cause or reason therefor, cause plaintiffs to lose their said joint possession and use of said premises, and by reason thereof, to suffer damages; (a) for damages to plaintiffs' said personal property; (b) for labor, expense, public disgrace, loss of self respect, inconvenience and hardships thereby suffered; (c) for loss of past and future earnings; (d) for loss of the fructus of said lands, for actual or compensatory damages in the total sum of $4,000, and as a further result of defendants' said unjust and wrongful acts, plaintiffs jointly have suffered humiliation, anguish, mental pain and disturbed peace of mind and the disrespect of people and the public in general, where plaintiffs are known, and will permanently further so continue to suffer during the remainder of their lives, punitive or exemplary damages in the sum of $3,000.

"Wherefore, said plaintiffs pray judgment against each and all of defendants, for plaintiffs' actual damages in the sum of $4,000, and for their punitive damages in the sum of $3,000, to be stated separately."

To this petition defendants demurred for the following stated reasons:

"1. Because there is a defect of parties plaintiff appearing upon the face of the petition.

"2. Because several causes of action have been improperly united in the petition and in the same count thereof.

"3. Because the petition does not state facts sufficient to state and constitute a cause of action against the defendants or any of them.

"4. Because there is a mis-joinder of causes of action appearing upon the face of the petition."

The trial court sustained the demurrer and plaintiffs appeal. It is the contention of defendants, respondents here, that:

"The third amended petition attempts to set forth several separate and different causes of action, all in one count; in one of which both plaintiffs might have an interest and right of recovery, in another one plaintiff would have the right of recovery, and in another the other plaintiff would have the right of recovery. The petition is objectionable on this ground, not because all these causes of action are set up in one count, but because they cannot be joined and maintained in the same petition in any form.

* * * * * *

"The third amended petition set forth three separate and distinct and different causes of action in one of which both plaintiffs might recover a joint judgment for damages suffered by action of defendants in evicting and dispossessing them of jointly owned property (2) a personal cause of action in which plaintiff, John Adams, might recover a judgment for mental anguish, pain, humiliation, public disgrace, loss of self-respect, inconveniences and hardships, disrespect of people and the public in general and disturbed peace of mind suffered by him, but in which the other plaintiff could have no interest or right of recovery (3) a personal cause of action in which plaintiff, Hester Adams, might recover a judgment for mental anguish, pain, humiliation, public disgrace, loss of self-respect, inconveniences and hardships, disrespect of people and the public in general and disturbed peace of mind suffered by her, but in which the other plaintiff could have no interest or right of recovery."

Reference to Section 770, R.S.Mo.1929, Mo.St.Ann. § 770, p. 1000, discloses that defendants have followed the statute in the wording of the demurrer filed. A demurrer so phrased is sufficient to advise plaintiff of the particulars in which the petition is claimed to be deficient. Wilson v. Polk County, 112 Mo. 126, loc. cit. 134, 20 S.W. 469.

One of the defendant's grounds of attack on the petition is that several causes of action are improperly joined in one count. While this defect, if it be present as charged, might have been reached by other means than demurrer, yet it may be reached by demurrer also. Hallen v. Smith, 305 Mo. 157, loc. cit. 167, 264 S.W. 665; Mack v. Eyssell, 332 Mo. 671, loc. cit. 679, 59 S.W.2d 1049.

We think plaintiffs have attempted to state three separate causes of action in the one count of the petition, to-wit:

(a) For damages accruing to plaintiffs, jointly, by reason of the loss of and damage to their jointly owned property.

(b) For damages accruing to plaintiff, John Adams, because of his mental anguish, pain,...