Belt v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 06 November 1916
• Docket Number: No. 12148.,12148.
• Parties: BELT et al. v. ST. LOUIS, I. M. & S. RY. CO.
• Court: Missouri Court of Appeals

190 S.W. 1002

BELT et al. v. ST. LOUIS, I. M. & S. RY. CO.

No. 12148.

Kansas City Court of Appeals. Missouri.

November 6, 1916.

Rehearing Denied December 20, 1916.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

"Not to be officially published."

Action by Alvin G. Belt and others, receivers, and others, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

James F. Green, of St. Louis, and Ben J. Woodson, of St. Joseph, for appellant. Culver & Phillip, of St. Joseph, and Bruce Barnett and Dayle C. McDonough, both of Kansas City, for respondents.

ELLISON, P. J.

The American Lead Pencil Company was the owner of a lot of cedar logs piled in ricks about 4 feet high near to defendant's track. They were insured in different amounts by the several plaintiffs. The logs were burned by a fire which plaintiffs charge was started by sparks from one of defendant's passing engines. The loss was $7,418.32, the aggregate insurance being much more than that. Plaintiffs paid, each for itself, its proportionate part of the loss, and have jointly brought this action, for the amount so paid. The action is based on the idea that defendant, as the wrongdoer, is liable to them for the amounts they were compelled to pay for the wrongful act. Hartford Ins. Co. v. Railroad, 74 Mo. App. 106. The judgment in the trial court was for the plaintiffs.

Defendant demurred to the petition on two grounds: First, that there was a misjoinder of parties plaintiff; and, second, that the petition on its face shows a cause of action in the Lead Pencil Company and not in either of the plaintiffs. The demurrer was overruled, whereupon defendant filed an answer to the merits.

The answer waived the objection that there was a misjoinder of parties plaintiff. Hudson v. Cahoon, 193 Mo. 547, 91 S. W. 72; Hendricks v. Calloway, 211 Mo. 536, 557, 111 S. W. 60; Hanson v. Neal, 215 Mo. 256, 277, 114 S. W. 1073. An answer is a waiver of a demurrer for any cause save jurisdiction, and a failure to allege facts sufficient to state a cause of action. Defendant insists that the second cause of demurrer was, in effect, a charge that the petition did not state a cause of action. This insistence is upon the idea that the petition does not state a cause of action in the plaintiffs; that is, that while it may state facts showing a cause of action in some one, it does not show such cause in the plaintiffs. It is true that, though facts which compose a good legal cause of action are stated in a petition, yet if it also appears that the plaintiff therein is not entitled to such action, no cause of action is stated. Poor v. Watson, 92 Mo. App. 89, 101. This view is sustained by Overshiner v. Britton, 169 Mo. 341, 351, 69 S. W. 17, and Keller v. St. Louis, 152 Mo. 596, 54 S. W. 438, 47 L. R. A. 391. But in this case a cause of action is stated in the petition for each of the plaintiffs, the only trouble being that they are several causes and not joint. Therefore the only proper objection to the petition was that there was a misjoinder, a defect, as we have said, that is waived by the answer.

This brings us to the question whether there is any substantial evidence in plaintiffs' behalf to support the verdict. Much is said by defendant which is taken from the evidence in its behalf. But on demurrers to testimony we must look to the evidence in the plaintiffs' behalf as establishing the facts. Turner v. Anderson, 260 Mo. 1, 17, 168 S. W. 943; Williams v. Railroad, 257 Mo. 87, 112, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Whiteaker v. Railroad, 252 Mo. 438, 452, 160 S. W. 1009.

It was shown by plaintiff: That the logs were cedar and well seasoned, some of them having been piled about three years. They were piled in ricks, and extended from about 30 feet of the track up the side of what is called the mountain. The weather the summer preceding had been hot and dry, but on the 20th of January, near a month before the fire, there had been a wet snow, but this was gone, and at the time of the fire it was "tolerably dry." There was some grass. A passenger train passed at 12:30 p. m. going south and at upgrade at about 30 miles per hour. The engine was working steam. That while the engine had a spark arrester, in such circumstances it would throw sparks. Two freight trains passed shortly afterwards. There was evidence, further, tending to show that a live spark...