Blanchard v. Olds Gasoline Engine Works

• Decision Date: 07 March 1910
• Citation: 126 S.W. 828,142 Mo. App. 319
• Parties: BLANCHARD v. OLDS GASOLINE ENGINE WORKS.
• Court: Missouri Court of Appeals

126 S.W. 828

142 Mo. App. 319

BLANCHARD v. OLDS GASOLINE ENGINE WORKS.

Kansas City Court of Appeals. Missouri.

March 7, 1910.

Rehearing Denied April 4, 1910.

1. TRIAL (§ 127) — CONDUCT OF TRIAL — MISCONDUCT OF COUNSEL.

In an action for the negligent destruction of property, it is improper for defendant's counsel to undertake before the jury to prove that the property was insured, and that plaintiff had collected the insurance.

2. ABATEMENT AND REVIVAL (§ 46) — TRANSFER OF INTEREST — NECESSITY OF PLEADING.

In an action for the negligent destruction of property, defendant cannot show without pleading it that the property was insured, that since the beginning of the action the insurance

has been collected, and plaintiff has assigned his cause of action to the insurance company.

3. APPEAL AND ERROR (§ 1170) — HARMLESS ERROR — PLEADING.

Under the statute providing that a judgment shall not be reversed except for errors materially affecting the merits of the action, a judgment will not be reversed for error in proving a special defense without pleading it, where a new trial on an amended answer could only result in the same judgment.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by A. D. Blanchard against the Olds Gasoline Engine Works. Defendant bad judgment, and plaintiff appeals. Affirmed.

Burnham & Dashiel, Berger & Hicks, and Fyke & Snider, for appellant. Merservey & German, for respondent.

BROADDUS, P. J.

This is an action by plaintiff to recover damages alleged to have been sustained by him by reason of the negligence of defendant in installing a gasoline engine in plaintiff's elevator building at Bennington, Kan., by reason of which negligence he claims his elevator building and machinery were destroyed by fire on July 1, 1905.

On March 28, 1905, plaintiff and defendant entered into a contract, whereby the latter undertook to install for the former in his elevator building a gasoline engine to take the place of a steam engine theretofore in use. By the terms of the contract defendant agreed to furnish with the engine a complete equipment of "wrenches, oilers, battery, gasoline tank, muffler exhaust and gasoline pipes." The defendant completed the work about May 22, 1905. The claim of plaintiff in a general way is that defendant in installing said engine used a defective pipe, which allowed the gas to escape, which found its way into a pit near by, and which exploded when it came in contact with a lighted lamp. The result of the explosion was a complete destruction of the elevator building and machinery. The answer of defendant was a general denial. The plaintiff introduced evidence tending to support the allegations of his petition, and defendant introduced evidence tending to rebut that of plaintiff. The judgment was for defendant, and plaintiff appealed. We will only notice one question presented by the record, which arises out of the testimony of the plaintiff.

The defendant, on cross-examination of plaintiff, asked him if the property was insured. The plaintiff objected to the question, as it was wholly immaterial. The court...