Berry v. St. Louis, M. & S. E. R. Co.

Decision Date25 November 1908
Citation214 Mo. 593,114 S.W. 27
CourtMissouri Supreme Court
PartiesBERRY v. ST. LOUIS, M. & S. E. R. CO.

Appeal from Circuit Court, Butler County; W. N. Evans, Judge.

Action by Cecil Berry, by his next friend, David W. Hill, against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment for plaintiff, defendant appealed. Affirmed.

W. F. Evans and James Orchard, for appellant. N. C. Whaley and David W. Hill, for respondent.

LAMM, J.

In the Butler circuit court, Cecil, a child of four years, sued by his next friend in an action sounding in tort. He had judgment for $6,583.33, for personal injuries received on defendant's turntable. Failing to get a new trial or arrest the judgment, defendant appeals.

1. The St. Louis & San Francisco Railroad Company was made a codefendant at the institution of the suit. Appellant insists that the cause was not dismissed as to its said codefendant; contra, respondent insists it was so dismissed prior to submission. Appellant's abstract does not show a dismissal; neither does it purport to be a full transcript of all the record entries; neither does respondent furnish a counter or additional abstract. In this fix, with no claim that a full transcript of the record entries is here, and with no counter abstract furnished, the parties litigant assert, in their respective statements of the case, on the one hand there was no such dismissal, and on the other that there was a dismissal.

The record sufficiently shows the St. Louis & San Francisco Railroad Company took no appeal. It shows affirmatively that no judgment was rendered against it, that there was no proof offered tending to show Cecil was injured through its negligence, or that it owned or operated the railroad to which the turntable was appurtenant. The instructions show that no issue was submitted to the jury touching the liability of the St. Louis & San Francisco Railroad Company. To the contrary, the issues submitted involved appellant by name, and appellant only. As we see it, while appellant complains in its statement of the above condition of the record, yet it does not in its brief proper press the point as reversible error. However, if it does, the position is unsound, because: (a) Absent a record showing one way or the other, the presumption is in favor of the regularity of the judgment of a court of general jurisdiction, i. e., a dismissal would be presumed, or that such antecedent steps were taken as made a judgment against one of two defendants regular. (b) Moreover, at the very worst, on the record before us the matter complained of does not a particle affect the rights of the appellant on the merits of the case. If it is liable at all, it is liable for the whole harm done the child. Therefore, the presence or absence of its codefendant as a party to the judgment or to the suit cuts no figure on the merits; for it is primer law that if A. and B. negligently injure C., C. may recover his damages from one or the other or both. Newcomb v. R. R., 169 Mo. 409, 69 S. W. 348. "A person," says Bishop (Bishop on Noncontract Law, § 573), "who has done any part of a wrong working harm to another, or even contributed his will to do it, is responsible to him in damages for the entire harm, however many other individuals, forces, and things may have co-operated in bringing about the mischief." Neff v. City of Cameron (not yet officially reported) 111 S. W., loc. cit. 1141 et seq.

The matter complained of is no concern of appellant; it causes its liability to neither shrink nor swell, wax nor wane. It impairs appellant's defenses not a whit. It is ordained by statute that only harmful error will work a reversal. Before we can reverse a judgment, we must "believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action." Rev. St. 1899, § 865 (Ann. St. 1906, p. 812). Not believing such to be the case, the point, if point it be, is ruled against appellant.

2. As one ground for arresting the judgment, it was alleged in the motion for arrest there was no proof offered that the Honorable David W. Hill was duly appointed next friend. This is so. Appellant assigns error in overruling the motion in arrest. Counsel do not press the point in hand as reversible error, as we gather from their brief. But if we are mistaken in this, there is no soundness in it. This is so, because: The answer was a general denial, coupled with affirmative allegations not material to the question now up. With the pleadings in this fix, was there a call for respondent to prove the due appointment of his next friend? The answer to that query is, No. Undoubtedly the general rule is that a general denial puts plaintiff on his proof. But there are exceptions grafted on the stock of the general rule, and the particular in hand is controlled by one of them. In the philosophy of the science of pleading, the issue of the appointment of next friend cannot be raised by a mere general denial. If the defect struck at appears in the petition, it might (possibly) be raised by special demurrer. Otherwise, it should be raised by a special plea in the answer. Therefore, it is the established practice that where the petition alleges a given person is a lawfully appointed and duly qualified next friend,...

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