Cohn v. Metropolitan St. Ry. Co.

• Decision Date: 14 June 1904
• Parties: COHN v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

81 S.W. 846

182 Mo. 577

COHN v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 2.

June 14, 1904.

NONSUIT — SETTING ASIDE — DISCRETION OF COURT — PLEADING — SUIT BY NEXT FRIEND — APPOINTMENT.

1. A defect in a petition by an infant, suing by next friend, because of failure to allege that the person acting as next friend had been duly appointed, may be raised by answer.

2. Where the court on motion set aside a nonsuit without assigning a reason for sustaining the motion, the court on appeal will not consider the evidence, but it will be presumed, in the absence of any showing to the contrary, that the court's action was warranted by the facts disclosed by the record.

3. Where the court sets aside a nonsuit on motion of plaintiff, it devolves on defendant on appeal to show that the court abused its discretion; and that the evidence may have shown that plaintiff was not entitled to recover will not establish the fact; otherwise the court on appeal must consider the evidence.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by Gilbert Cohn, by his next friend, M. Cohn, against the Metropolitan Street Railway Company. From an order sustaining a motion to set aside a nonsuit, defendant appeals. Affirmed.

John H. Lucas, for appellant. Robert E. Rooney, for respondent.

BURGESS, J.

This is an action by plaintiff, who sues by his next friend, for $5,000 damages alleged to have been sustained by him by reason of the carelessness and negligence of defendant.

The petition alleges that on the 3d day of February, 1901, at about 10 a. m., while plaintiff was crossing the tracks of defendant at a point about 125 feet west of Wyoming street on Ninth street, a car of defendant, running at the rate of 15 or 20 miles an hour, negligently and carelessly struck the plaintiff. The specific allegations are that the bell was not rung; that the rate of speed was in excess of 12 miles an hour, in violation of an ordinance of Kansas City; that they failed to stop the car in time to avoid injuring plaintiff, when they knew, or by the use of ordinary care might have known, of the danger in which plaintiff was. After the introduction of plaintiff's evidence, the defendant interposed a demurrer thereto, and, on suggestion being made that the same would be sustained, the plaintiff took a nonsuit, which on motion was afterwards, over the objection of defendant, set aside, and defendant then and there excepted at the time, and brought the case to this court on appeal. So that the only question presented by this appeal is the action of the trial court in sustaining the motion to set aside the nonsuit. Appellant's contention is that the trial court erred in so doing: First. Because the petition does not state facts sufficient to constitute a cause of action against defendant. Second. Because no reason exists for such action, there being no evidence in the case on which plaintiff could recover.

The contention of defendant is that the court committed error in setting aside the nonsuit, because the petition does not state a cause of action, in that it does not show any legal capacity on the part of M. Cohn to maintain this action on behalf of Gilbert Cohn. It is true that the petition nowhere alleges that M. Cohn had been appointed next friend by the circuit court, nor the clerk thereof in vacation, but plaintiff claims that the answer is merely a general denial, hence that issue was not raised. If the answer is merely a general denial, this position is clearly sustained by the authorities cited by plaintiff. Rogers v. Marsh, 73 Mo. 64; Randolph v. Han. & St. Joe R. R., 18 Mo. App. 609; Taylor v. Pullen, 152 Mo. 434, 53 S. W. 1086; Clowers v. Railroad, 21 Mo. App. 213. The answer, however, "specifically denies that M. Cohn is the next friend of the plaintiff herein," and is responsive to the allegation of the petition in that regard. The defect in the petition was apparent upon its face. It showed that the plaintiff had no legal capacity to sue, while it should have alleged that the appointment of M. Cohn as next friend had been duly made in the mode...