Austin v. Simon
| Decision Date | 10 June 1918 |
| Docket Number | No. 12902.,12902. |
| Parties | AUSTIN v. SIMON et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.
"Not to be officially published."
Action by Howard A. Austin against David Simon, Oscar Simon, and Samuel Simon, doing business under the name and style of the Simon Bros. Manufacturing Company. Judgment for plaintiff, and defendants appeal. Affirmed.
Russell Garnett, of Kansas City, for appellants. F. C. Wilkinson, of Kansas City, for respondent.
Plaintiff, the owner of an automobile, delivered the same to defendants for the purpose of having seat covers made for it. While the car was in their possession defendant Samuel Simon was in the act of taking it to the second floor of their place of business upon an elevator and when the elevator reached "a certain distance the elevator slipped a little bit down and while it slipped the car moved a little bit forward," striking the side of the elevator and damaging the car. Plaintiff sued defendants in a justice court, and alleged that the latter "allowed the car to become unblocked, throwing it against the side of the elevator and injuring it." At the close of the evidence in the circuit court plaintiff amended his statement to conform to the evidence by alleging that defendants "negligently allowed the car to become injured by reason of the fact that the elevator fell, throwing the car against the side of the elevator and injuring it" Plaintiff recovered a verdict and judgment in the sum of $64.67, and defendants have appealed.
Defendants' first point is that the original statement was a suit ex contractu on a contract of bailment, while the amended statement was one in tort, and that therefore when the amendment was made there was a change in the cause of action tried before the justice. See section 7585, R. S. 1909. We are unable to agree with this contention. The allegation in the original statement that defendant allowed the car to become unblocked, etc., under the liberal construction that must be given statements in justice courts, alleged facts constituting negligence, although the word "negligence" is not used.
Defendants contend that the statement as amended alleged specific acts of negligence, and that there was no proof of such negligence. We are unable to agree with this contention. The amended statement alleged that the car was injured by defendants' negligently allowing the elevator to fall. This was an...
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... ... but the cause of action was not changed. Doyle v ... Southern P. Co., 56 Or. 495, 522, 108 P. 201; Austin ... v. Simon (Mo. App.) 204 S.W. 193 ... The ... court refused to permit M. J. Canari, the warehouse foreman, ... ...
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Walters v. Adams Transfer & Storage Co.
...to return said semi-trailer. 8 C. J. S., under Sec. 50, p. 339, sub-sec. C, p. 341; Freeman v. Foreman, 141 Mo.App. 359, 366; Austin v. Simon, supra, 204 S.W. 193; Hartford v. Tabor, 21 S.W.2d 207, 208; Corbin Cleaning, 181 Mo.App. 151, 153, 154, 155; Hartnett v. May (Mo. App.), 85 S.W.2d 6......
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Chiodini v. Terminal R. Ass'n of St. Louis
...v. Metropolitan St. R. Co., 243 Mo. 305, 147 S.W. 1032; Nagel v. United Rys. Co. of St. Louis, 169 Mo.App. 284, 152 S.W. 621; Austin v. Simon, Mo.App., 204 S.W. 193; Berfeld v. Kansas City Rys. Co., 285 Mo. 654, 227 S.W. 106; Porter v. St. Joseph Ry. Light, Heat & Power Co., 311 Mo. 66, 77 ......
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Walters v. Adams Transfer & Storage Co.
...to return said semi-trailer. 8 C.J.S., under Sec. 50, p. 339, sub-sec. C, p. 341; Freeman v. Foreman, 141 Mo. App. 359, 366; Austin v. Simon, supra, 204 S.W. 193; Hartford v. Tabor, 21 S.W. (2d) 207, 208; Corbin v. Cleaning, 181 Mo. App. 151, 153, 154, 155; Hartnett v. May (Mo. App.), 85 S.......