O'Brien v. St. Louis Transit Co.

• Decision Date: 13 May 1908
• Citation: 212 Mo. 59,110 S.W. 705
• Parties: O'BRIEN v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

110 S.W. 705

212 Mo. 59

O'BRIEN v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri.

May 13, 1908.

1. DEATH—ACTIONS FOR CAUSING DEATH OF PASSENGER—PLEADING.

A petition in an action against a carrier for the death of a passenger, founded on Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), authorizing recovery where death is "occasioned by the negligence * * * or criminal intent" of defendant's servants, which charges both negligence and criminal acts, is sustained by proof of either.

2. PLEADING—WAIVER OF DEFECTS.

A petition in an action against a carrier for the death of a passenger, based on Rev. St. 1899, § 2864 (Ann. St. 1906, p. 1637), authorizing recovery where death is "occasioned by the negligence * * * or criminal intent" of defendant's servants, which charges in one count that the acts causing death were done negligently and with criminal intent, though objectionable as stating a single cause of action doubly and inconsistently, is not so contradictory as to be self-destructive, and, if defendant answers and goes to trial on the issue of criminal intent, the objection that two causes of action are stated in one and the same count is waived.

3. PLEADING—REPUGNANCY—"FELO DE SE."

The doctrine of felo de se is operative only where one cause of action stated is destroyed by another, which shows that no cause of action exists in fact, and does not apply where petition states that deceased was negligently shot, if as a fact he was shot with criminal intent.

4. SAME—DEFECTS AND OBJECTIONS—WAIVER.

Faults in a petition barring the two cardinal ones of stating no cause of action and lack of jurisdiction are waived by joinder of issue on the facts pleaded.

5. EVIDENCE—EVIDENCE AT FORMER TRIALS.

The provision of Rev. St. 1899, § 2904 (Ann. St. 1906, p. 1669), that the deposition of a witness may be read in evidence where he resides in a county other than that in which the trial is had, governs the right given to parties by section 3149 (Ann. St. 1906, p. 1788), providing that evidence preserved in the bill of exceptions may be used in the same manner and with like effect as if the testimony had been preserved in a deposition, and, as there is no presumption that a witness whose testimony is preserved in a bill of exceptions resides in the county where the trial took place, it is error to permit it to be read in evidence in a subsequent trial after the venue has been changed, without showing that he is not a resident of the county to which the cause was sent.

6. CARRIERS — ACTIONS FOR CAUSING DEATH — DEFENSES.

That a passenger brought on the altercation in which he was shot and killed by the conductor in charge of defendant's street car will not preclude a recovery against the carrier under Rev. St. 1899, § 2864, for the passenger's death.

Valliant, P. J., dissenting in part.

In Banc. Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Kathryne O'Brien against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.

The following is the opinion of WOODSON, J., in division No. 1:

"This case was here once before on a former appeal, and is reported in the 185 Mo. 263, 84 S. W. 939, 105 Am. St. Rep. 592. The pleadings are the same now as they were then; but they were not set out in that opinion; but, since the sufficiency of the petition has been assailed in this appeal, we will have to give it space in this statement, which is as follows (caption and signatures omitted): The plaintiff states that the defendant is and at the times herein stated was a corporation by virtue of the law of Missouri, and owned, used, and operated the railway and car herein described for the purpose of carrying passengers for hire from one point to another within the city of St. Louis as a common carrier of passengers by street railway; that on the 29th day of October, 1900, the defendant, by its servants in charge of its north-bound car, received as a passenger upon said car at or near Tenth and Franklin avenue plaintiff's husband, Michael O'Brien, and for a valuable consideration paid by plaintiff's said husband to the defendant defendant undertook and agreed with him to safely carry him to his point of destination upon defendant's line of railway, to wit, Twelfth and Hebert street, and to there stop said car and give plaintiff's husband time and opportunity to alight in safety from said car. Yet the plaintiff avers that the defendant, unmindful of its said undertaking and of its duty in the premises, did by its servants in charge of its said car wholly fail to stop said car at Hebert and Twelfth street in the city of St. Louis, though requested by plaintiff's husband to do so, but on the contrary carried plaintiff's husband past his said destination to Thirteenth and Hebert street for the plaintiff's husband to alight from said car, and whilst said car was so stopped at said place, and whilst plaintiff's husband was alighting from said car at said place, defendant's conductor in charge of its said car, whilst undertaking to serve the defendant as such conductor, wrongfully struck and beat the plaintiff's husband upon the head and body with a pistol, and wrongfully shot the plaintiff's husband with said pistol, inflicting such injuries upon him that he died from said injuries at the city hospital of St. Louis on the 31st day of October, 1900. And the plaintiff avers that said beating of her husband and said shooting of her husband was done by defendant's said conductor whilst in charge of its said car as its driver and controller, negligently and with criminal intent. That by the death of her husband, caused as aforesaid, an action has accrued to the plaintiff to sue for and recover the sum of $5,000, according to the statutes in such cases provided, for which sum the plaintiff prays judgment.' The suit was begun in the circuit court of the city of St. Louis, and a change of venue was had to the circuit court of St. Louis county. The cause was tried and resulted in a verdict for the plaintiff in the sum of $5,000, from which this defendant now appeals.

"The evidence disclosed by the record is substantially the same as it was when the case was here before, and for that reason it is useless to state it here. At the trial of the case below the plaintiff offered to read to the jury a transcript of the evidence of a witness by the name of Fick, who testified at the former trial, which was preserved in the bill of exceptions. The following is what occurred upon that occasion, as shown by this record: Mr. Taylor: I will read the evidence of August Fick, a resident of the city of St. Louis, given at the last trial of this case. Mr. Kiskaddon: I object to it as incompetent. He hasn't shown where the witness lives now. The Court: Objection overruled. Mr. Kiskaddon: Note our exception. To which action and ruling of the court defendant by counsel then and there duly excepted, and at the time saved exception. The transcript of Mr. Fick's testimony was then read to the jury. At the close of all the evidence the court instructed the jury for plaintiff and defendant in conformity to the law enunciated in the opinion delivered when the cause was here before, and refused several instructions asked by the defendant, which will be noticed hereafter.

"1. The first insistence of the appellant is that the petition does not state facts sufficient to constitute a cause of action, for the reason that it charges `that said beating of her husband and said shooting of her husband was done by defendant's said conductor whilst in charge of its said car as its driver and controller, negligently and with criminal intent,' etc.

"The appellant contends that the two allegations that the beating and shooting were `negligently' done and that they were done with `criminal intent' are inconsistent and contradictory of each other, and for that reason cannot stand together. In other words, that each allegation kills the other, and that the petition is therefore a felo de se. The Supreme Court of Iowa, in passing upon a similar question in the case of Ruter v. Foy, 46 Iowa, 132, used this language: `There can be no contributory negligence except where the defendant has been guilty of negligence to which the plaintiff's negligence could contribute. An assault and battery is not negligence. The former is intentional; the latter is unintentional.' Now the allegations being considered state acts as being both...