Baxter v. St. Louis Transit Co.

• Decision Date: 20 June 1906
• Citation: 198 Mo. 1,95 S.W. 856
• Parties: BAXTER v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

95 S.W. 856

198 Mo. 1

BAXTER v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

June 20, 1906.

1. PARTIES — PLAINTIFFS — ACTION BY CURATOR — WANT OF CAPACITY — OBJECTIONS — MANNER OF RAISING.

Under Rev. ST. 1899, §§ 598, 599, 602, authorizing a defendant to demur to the petition where it appears on the face thereof that plaintiff has no legal capacity to sue, which demurrer shall distinctly specify the ground of objections, and providing that when the matters enumerated in section 598 do not appear on the face of the petition the objection may be taken by answer, and if not so taken, the same is waived, etc., the capacity of plaintiff assuming to sue in a representative capacity can be put in issue by special demurrer where the petition fails to state facts sufficient to show the capacity, and by special denial where the facts showing the capacity are sufficiently stated, but the question is not raised in either case by a general demurrer or a general denial.

2. PLEADING — FAILURE TO DENY ALLEGATIONS.

A petition alleged that plaintiff was a minor, and that a third person, by whom, as his curator, he sued, was his legally appointed and duly qualified curator. There was no special denial of the allegation. Held, that the appointment of the curator would be assumed, and proof thereof was not necessary.

3. TRIAL — INCONSISTENT INSTRUCTIONS.

Where an action for a personal injury, consisting of a fracture of plaintiff's leg, was tried on the theory that there could be a recovery for a second fracture occurring some time after the accident if the same was not caused by plaintiff's own negligence, an instruction that defendant was not liable by reason of the second fracture if the same was caused by the negligence of plaintiff, and that before damages could be allowed plaintiff on account thereof the jury must be convinced that such condition was due to the injury, was not in conflict with an instruction authorizing a recovery for all injuries suffered by plaintiff in consequence of the second fracture, if, at the time of sustaining it, plaintiff was exercising ordinary care.

4. STREET RAILROADS — COLLISION — INJURY TO TRAVELER — NEGLIGENCE.

In an action against a street railway company for injuries to a traveler in a collision with a car, the testimony showed that the traveler's wagon was driven for a distance of 600 feet near the track, and that the motorman could have seen the wagon for at least that distance before he collided with it. The car ran at a speed of 25 miles and hour on a downgrade. No signal was given by the motorman, and he made no effort to check the speed of the car until the collision occurred. Held, that the traveler, though guilty of contributory negligence, was entitled to recover because of the negligence of the company.

In Banc. Appeal from Circuit Court, Audrain County; H. W. Johnson, Judge.

Action by Arthur Baxter, by his curator, against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Geo. W. Easley and Edw. T. Miller, for appellant. James M. Sutherland, for respondent.

VALLIANT, J.

Plaintiff, a minor, received personal injuries in a collision with a street car which was being operated by defendant, and sues to recover damages for the injuries, alleging that the collision was the result of the negligent operating of defendant's street car. He recovered a judgment for $4,750, and defendant appealed.

1. Before entering into a consideration of the merits of the case there is a question at the threshold that demands our attention. The petition alleges that the plaintiff is a minor, and that the St. Louis Trust Company, by whom as his curator he sues, is his legally appointed and duly qualified curator that the defendant is a corporation operating a street railroad, then it proceeds to state the cause of action. The answer of the defendant was a general denial, and a plea of contributory negligence. At the trial there was no proof of the appointment of the alleged curator. It is contended by defendant that the failure of proof on that point is fatal to the plaintiff's right of recovery. At common law the character in which the plaintiff sued was not put in issue unless specially denied. 1 Chitty on Pl. (16th Am. Ed.) p. 464. In such case a special denial was in the nature of a plea in abatement. Stephens on Pl. (1894) p. 467. Such a plea, if sustained, did not bar the cause of action, but abated that suit. The character in which the plaintiff assumes to sue is entirely distinct for the cause of action alleged; for example, a plaintiff assuming to be the administrator sues to recover a debt due the estate, he may not be the administrator and therefore not entitled to maintain the suit, yet a judgment that the plaintiff in that suit is not the administrator would be no bar to an action to recover the same debt when the true administrator should sue. And that is as true under our Code of Procedure as it was at common law. In so far as the science of pleading rests on sound reason for its rules, there is no difference between our system and the system of common-law pleading, the conclusions of reason and common sense are the same, but in each system there are arbitrary rules and the difference between the two systems appears in those rules. For example, it is neither illogical nor unreasonable, nor violation of any scientific principle to allow a defendant to plead in abatement of the suit and in bar of the action at the same time; there is nothing inconsistent or contradictory in those pleas with each other, both may be true or one may be true and the other not, and there is no difficulty in shaping the judgment to suit the facts as they may be found on the trial. Yet the common-law rule is that the two pleas cannot stand together, but under the Code system the defendant not only may but is required to plead them both in one answer if he intends to avail himself of both. The rule on this point is thus stated in Bliss on Code Pleading (3d Ed.) § 345. "In common-law pleading we have the rule that `pleas must be pleaded in due order,' that is, the dilatory pleas must be first made and disposed of, to be followed by pleas in bar. The Code requires the defendant either to demur or answer, and in his answer he is allowed to set up as many defenses as he may have. Only one answer is contemplated and all the defenses which he elects to make must be embraced within it."

Matters in abatement and matters in bar are as essentially different under the one system as under the other, and the effect of matters in abatement is the same under both systems; that is, if the plea is sustained it abates that suit without affecting the cause of action, the only difference is that at common law it is called a "plea in abatement" and must be disposed of before defendant pleads to the merits of the action, while under the Code it goes under the general name of "defense" and may be pleaded in the same answer with a plea to the merits. The author just quoted, discussing the effect of an insufficient statement in the petition of the character in which the plaintiff sues, and holding that such defect is not reached by a general demurrer says: "It is but reasonable, then, that the statute should require the defendant, if he objects to the plaintiff's demand, because he does not show a right to appear in court, to base his objection specifically upon that ground; and I know of no comprehensive phrase that so well describes the ground of objection as a want of legal capacity to sue." Bliss on Code Pl. (3d Ed.) p. 620, § 408. In other words, if the capacity in which the plaintiff assumes to sue is defectively stated, the defect cannot be reached by a general demurrer, which goes to the cause of action, but it requires a special demurrer. Pomeroy, a strong friend of the Code system, after first pointing out the distinction between a plea in abatement and a plea in bar in respect of the order in which they were required to be pleaded says: "There are in the new procedure no such divisions and classes. Defenses still exist of the same essential nature as to those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of the defendant does not forever bar the plaintiff from the further prosecution of his demand." Pomeroy, Code Rem. (4th Ed.) pp. 799, 800. The learned law-writer, although he regards the Code as in itself a complete system depending for nothing to the common law (Id. p. 541, § 409), yet, in the words just quoted he recognizes fully as it is recognized at common law the essential difference between matters that may be pleaded to abate the suit, and matters pleaded to defeat the cause of action, the only difference between the Code and the common law in respect to them being the manner and the order in which they are pleaded, and the issues tried. And on pages 813, 814 he says: "The nonjoinder of necessary parties cannot be proven under the general denial. * * * The defense that the plaintiff is not the real party in interest is new matter, * * * and in an action by an executor or administrator the general denial does not put in issue the plaintiff's title to sue." As we have already above shown when a plaintiff sued at common law in a representative capacity, as executor or such like, and defendant, without any denial of the plaintiff's alleged character, filed his plea to the merits of the action and went to trial, he was presumed to have admitted the character assumed by the plaintiff. There was no injustice to the defendant in that rule of pleading, for, if he really intended to question the matter, he could, by a special plea, require the plaintiff to produce the proof. It is the boast of the advocates of the Code system that it is designed to reach more quickly the merits of a controversy by cutting away from the unnecessary forms and technicalities of the common law, but if our system puts the...