Boyd v. St. Louis Transit Co.

• Decision Date: 15 November 1904
• Citation: 83 S.W. 287,108 Mo. App. 303
• Parties: BOYD v. ST. LOUIS TRANSIT CO.
• Court: Missouri Court of Appeals

83 S.W. 287

108 Mo. App. 303

BOYD v. ST. LOUIS TRANSIT CO.

St. Louis Court of Appeals. Missouri.

November 15, 1904.

STREET RAILROADS — INJURIES TO PROPERTY — ACTIONS — NEGLIGENCE — WILLFULNESS — JOINDER — PLEADING — DEMURRER — OBJECTIONS — WAIVER — INSTRUCTIONS.

1. Where a petition for injuries to plaintiff's horse and wagon by defendant's street car alleged that the injury was negligently, willfully, and carelessly done and inflicted, and that defendant's agents and employés willfully, carelessly, and intentionally ran the car upon plaintiff's horse and wagon, etc., the petition was demurrable for improper joinder of causes of action, as provided by Rev. St. 1899, § 598, since negligence and willfulness cannot concur in a single act, and evidence tending to show one would disprove the other.

2. Under the express provisions of Rev. St. 1899, § 602, where defendant joined issue and proceeded to trial without objecting to the petition on the ground of misjoinder of causes of action, the objection was waived.

3. A sole instruction for plaintiff that, if the jury found the issues for him, they should consider, in estimating his damages, such injury as he sustained in the striking of his horse and wagon by defendant's car, and the expense he necessarily incurred in repairing the wagon, if the injury was inflicted, not exceeding the sum sued for, was defective, in failing to indicate the issues in the case, or specify the facts necessary to warrant a verdict for plaintiff.

Appeal from St. Louis Circuit Court; R. M. Foster, Judge.

Action by Perlie M. Boyd against the St. Louis Transit Company. Judgment was rendered in favor of plaintiff, and defendant appeals. Reversed.

Boyle, Priest & Lehman, for appellant. Storts & Jamison, for respondent.

REYBURN, J.

1. Plaintiff brought this action to recover for loss sustained in the destruction of his horse and wagon by a street car of the defendant near Twelfth street and Washington avenue, in the city of St. Louis. In detailing his cause of action, the plaintiff stated that the injury "was negligently, willfully, and carelessly done and inflicted," and that the "agents, servants, and employés of the defendant willfully, carelessly, and intentionally ran said car upon and on the wagon and horse of the said plaintiff." The defendant answered that the collision was caused without fault on its part, by the team of plaintiff pulling into the side of defendant's car. At the threshold of the trial, before the introduction of any evidence, defendant moved that the plaintiff be required to elect which cause of action he intended to press, assigning that the petition contained averments of both trespass and negligence; but the court overruled the application, and the trial proceeded.

The petition confused and united inconsistent and repugnant allegations, as negligence and willfulness cannot concur or co-exist in a single act. Testimony tending to sustain the charge of negligence and carelessness would negative and disprove willfulness or intentionality, and proof that the wrongdoing on the part of defendant was deliberate would exclude negligence, and contributory negligence would be no defense available to defendant for injury wantonly committed. Raming v. Ry., 157 Mo. 477, 57 S. W. 268; Holwerson v. Ry., 157 Mo....