American Packing Co. v. Neece

• Decision Date: 29 September 1925
• Docket Number: No. 18954.,18954.
• Citation: 277 S.W. 605
• Parties: AMERICAN PACKING CO. v. NEECE et ux.
• Court: Missouri Court of Appeals

277 S.W. 605

AMERICAN PACKING CO. v. NEECE et ux.

No. 18954.

St. Louis Court of Appeals. Missouri.

September 29, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by the American Packing Company against James O. Neece and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

F. H. Blades, of St. Louis, for appellants.

Walter L. Roos, of St. Louis, for respondent.

BENNICK, C.

This suit was originally brought by plaintiff in a justice's court to recover for damages to its automobile truck occasioned by a collision with defendants' automobile on September 6, 1921, at Grand and McRee avenues, in the city of St. Louis. The case was tried on appeal in the circuit court, wherein the verdict was for plaintiff in the sum of 8380 against defendant Mrs. James O. Neece, and judgment entered thereon, from which she has appealed.

The statement filed with the justice, and upon which the case was tried de novo in the circuit court, alleges that the damage to plaintiff's truck was "occasioned by the carelessness and negligence of the defendants in causing and permitting their automobile to run into and collide with the automobile truck of the plaintiff."

The evidence disclosed that Grand avenue runs north and south and McRee avenue east and west. There is an offset in McRee avenue at its intersection with Grand; the south curb of McRee west of Grand being even with the north curb east of Grand. Plaintiff's truck was being driven south on the west side of Grand avenue, and at the intersection with McRee was struck by defendants' automobile being driven west on McRee. Plaintiff's evidence was to the effect that Mrs. Neece, who was driving defendants' automobile, in crossing Grand, and in attempting to continue west on McRee, did not pass to the right of and beyond the center of the intersection, and was driving her machine at a greater speed than 10 miles per hour in violation of Ordinances Nos. 1270 and 1301 of the Revised Code of the city of St. Louis. Over the objection of defendant these ordinances were introduced in evidence and read to the jury, and instructions asked and received upon them as well as upon defendant's alleged failure to maintain a vigilant watch and observe the humanitarian rule.

Appellant first assigns as error the action of the trial court in admitting irrelevant, immaterial, and incompetent evidence offered by the plaintiff over the objection of defendant. Such a general assignment fails to comply with rule 18 of this court, and in reality, presents nothing for review. Cavanaugh v. Dyer (Mo. App.) 215 S. W. 481. However, by searching the abstract of the record and by reading appellant's argument we are able to determine that this assignment is directed at the admission in evidence of the two ordinances of the city of St. Louis. It is appellant's contention that, inasmuch as plaintiff's cause of action was based in part directly upon alleged violations of duties imposed by these ordinances, it was error to permit them to be introduced in evidence, for the reason that they were not pleaded in plaintiff's statement.

The argument of appellant would be well taken were this case one which had originated in the circuit court. As a general rule of law, it is well established that, if a cause of action is based directly on a violation of a municipal ordinance, the pleading must set forth the specific ordinance. It is only where the ordinance is to be used as a mere matter of evidence that it need not be pleaded. Bailey v. Kansas City, 189 Mo. 503, 87 S. W. 1182; Lackey v. United Railways Co., 288 Mo. 120, 231 S. W. 956; State ex rel. v. Reynolds, 279 Mo. 493, 214 S. W. 369; St. Mary's Mill Co. v. Oil Co. (Mo. App.) 254 S. W. 735.

But this case originated in a justice's court where no formal pleadings are required. Section 2735, R. S. 1919. The statement of the cause of action in a suit filed in such court is sufficient if it serves reasonably to apprise the defendant of the nature of the claim asserted against him, and is sufficiently specific and definite to bar another action on the same demand. Steinbruegge v. Prudential Ins. Co., 196 Mo. App. 194, 190 S. W. 1018; Wandling v. Leintz (Mo. App.) 191 S. W. 1108; Connelly v. Parrish, 189 Mo. App. 1, 176 S. W. 546; Rundelman v. Boiler Works Co., 178 Mo. App. 642, 161 S. W. 609; City of La Grange v. Packet Co. (Mo. App.) 201 S. W. 631. By the statement filed in this case defendant was clearly advised that she would be required to meet the allegation of negligence in the operation of her automobile, whether denominated so by the common law or by the municipal ordinances in question.

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