Baker Mfg. Co. v. Oklahoma Hide Co.

• Decision Date: 12 June 1922
• Docket Number: No. 14383.,14383.
• Citation: 242 S.W. 134
• Parties: BAKER MFG. CO. v. OKLAHOMA HIDE CO.
• Court: Missouri Court of Appeals

242 S.W. 134

BAKER MFG. CO. v. OKLAHOMA HIDE CO.

No. 14383.

Kansas City Court of Appeals. Missouri.

June 12, 1922.

Appeal from Circuit Court, Jackson County; James H. Austin, Judge.

"Not to be officially published."

Action by the Baker Manufacturing Company, a corporation, against the Oklahoma Ride Company. From a judgment for plaintiff, defendant appeals. Affirmed.

W. R. Moore and A. P. Leacy, both of Kansas City, for appellant.

Ed. E. Aleshire and Warner, Dean, Langworthy, Thomson & Borders, all of Kansas City, for respondent.

ARNOLD, J.

This is a suit for an injunction and damages. The petition alleges that plaintiff owned and occupied certain property located in Kansas City, Mo., and that defendant was the lessor and occupant of certain adjoining property and the buildings thereon; that defendant used its buildings for the purpose of curing and sorting hides, and that, in the process of curing said hides, it used large quantities of salt water which was allowed to seep through the walls of the building so occupied by defendant, into the building occupied by plain, tiff, causing great injury to plaintiff's said property and damage to the machinery and other articles stored therein. The prayer was for an order enjoining defendant from allowing said brine to flow upon plaintiff's premises and for damages in the sum of $3,000 for injuries to its building and the contents thereof. Defendant demurred to the petition upon four grounds, i. e. (1) that the petition does not state facts sufficient to constitute a cause of action; (2) because plaintiff has a full and complete remedy at law; (3) that several causes of action have been improperly united; and (4) that the several causes of action do not belong to one class, as required by law.

The demurrer was overruled, whereupon defendant filed an amended answer admitting its corporate existence and denying each and every other allegation contained in the petition; and especially denying that plaintiff is a corporation, as alleged in the petition, and that it is duly admitted and licensed to do business in this state, and avers that plaintiff has no right to prosecute this suit.

Further answering, defendant declares:

"It occupies the building on lots 5 and 6 in block 25, an extension of West Kansas addition No. 1. to Kansas City, Jackson county, Mo., under a lease from one Georgia Strawbridge; and that it has, together with other lessees, who occupied said premises before this defendant, conducted a hide business in the same manner as defendant conducts its hide business for a long period of time, to wit, for more than 15 years. And the said property was occupied and used as a hide business as same is now occupied and used at the time and long prior to the time plaintiff acquired its alleged ownership to the property in plaintiff's petition described."

The issues thus joined, the cause came on for trial January 7, 1921, at which time it was discovered that plaintiff in its petition had alleged that it was a corporation "organized under the laws of the state of Wisconsin." The testimony tended to show that the word "Wisconsin" was a typographical error and that the word "Missouri" should have been used in its stead. The evidence further tended to show that, in 1916, the property in question had been owned by the Baker Manufacturing Company of Wisconsin, but that it was at that time conveyed to the Baker Manufacturing Company of Missouri, which had been the owner and occupant of the building since that date.

At this point in the trial, plaintiff obtained leave of court to amend its petition by interlineation, by striking out the word "Wisconsin" and substituting therefor the word "Missouri." Defendant thereupon filed a motion in the nature of a plea in abatement on the ground that such amendment created an entirely new cause of action against it and that this was not allowable under the statute. This motion was overruled by the court, and the cause was set for trial on February 11, 1921, and was tried on that date. The court found the issues for plaintiff, enjoined defendant from using said premises, and assessed plaintiff's damages at $1,250. From that part of the judgment assessing damages, defendant appeals.

The injunction, by order of the court, was stayed until March, 1921, so that defendant might have time to remove from the premises, which was done. There is only one point urged by defendant in support of its appeal, to wit, that the court erred in allowing plaintiff to amend its petition over the objection of defendant, and in refusing to sustain defendant's motion in the nature of a plea in abatement. Therefore, upon the solution of this question will depend the determination of this appeal.

In support of its position, defendant urges that the action of the court sustaining plaintiff's motion to amend its petition resulted in the substitution of an entirely new cause of...