O'Connor v. Koch

• Citation: 56 Mo. 253
• Parties: TIMOTHY O'CONNOR, Appellant, v. THEODORE KOCH Respondent.
• Decision Date: 31 March 1874
• Court: United States State Supreme Court of Missouri

56 Mo. 253

TIMOTHY O'CONNOR, Appellant,

v.THEODORE KOCH Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

John F. Darby, for Appellant.

I. “Motions to strike out parts of pleadings should contain the parts sought to be stricken out; or those parts should be so designated that they can be readily ascertained.” (Pierce vs. McIntyre, 29 Mo., 423.)

II. Again: “All motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reasons not so specified shall be urged in support of the motions.” (Genl. Stat. 1865, ch. 165, § 48, p. 662.)

In the case before the court, no specifications whatever were given in the motion. A mere general indefinite allegation, but no definite specification was given in the motion as was required by law. (Casey vs. Barcroft, 5 Mo., 128; Patterson vs. Hollister, 32 Mo., 478.) Again: “In the construction of a pleading for the purpose of determining its effect; its allegations shall be liberally construed with a view to substantial justice between the parties. (Genl. Stat. 1865, § 37, p. 661; see also McClothlin vs. Hemery, 44 Mo., 350.)

The petition itself shows that it was written in pure English. The sentences were all grammatical. As to what constitutes a “clear and concise statement,” I submit to the court a few illustrations:

Proverbs: Chapter VII, 9th Verse.--“In the twilight, in the evening, in the black and dark night.”

Same book and Chapter, 16th Verse.--“I have decked my bed with coverings of tapestry, with carved works, with fine linen of Egypt.”

Again, Judges:

Chapter V, Verse 27.--“At her feet he bowed, he fell, he lay down; at her feet he bowed, he fell; where he bowed, there he fell down dead.” Then again, look at the first chapter and the first verse of the Gospel of St. John, as contained in the New Testament: “In the beginning was the word, and the word was with God, and the word was God.”

The above examples will suffice. The words “twilight,” “in the evening,” “in the dark and black night,” in the first quotation given are not repetitions, any more than the few adjectives in a few sentences of the plaintiff's petition are repetitions; and so of the other quotations and illustrations, which are so manifest to the court.

We have heard of eminent divines, so fully competent to judge, being carried away and enraptured by the sublime and inspired passages in the writings of the prophet Isaiah; or praising the plea of Judah for Benjamin before his brother Joseph in Egypt, as amongst the finest pieces of eloquence and concise expressive utterances to be found in the English language, which men of less culture and scholarly attainment would be incapable of appreciating.

The plaintiff in this suit would as soon have expected the defendant's counsel to have found fault with, and criticised the passage above quoted from Holy Writ itself, as not being concise, or of their being a “repetition” as for him to have so made the general charge without specification as was done in this case.

As to the general objection made by the defendant that the “petition is merely a statement of the plaintiff's evidence,” there is not the least ground to sustain the objection. The petition itself shows that it was a plain and concise statement of facts constituting the cause of action.

If, in the petition, the plaintiff should have stated that he could prove by one or more witnesses that the defendant, Koch, was driving his horse Tobe (if that was his name), at a furious rate, on and along Broadway, in the city of St. Louis, on the twenty-first day of March, eighteen hundred and seventy-one; that the horses neck was bowed, his tail up, his nostrils distended, his mouth open and foaming, and the froth flying to the wind behind therefrom as rapidly as the sparks from a locomotive on a railroad going at great speed; that Mr. Koch held his horse with a tight rein as he sat in the buggy, still urging, still pressing the spirited animal to greater speed all the while by talking to him and scolding him with such expressions as, “go it my boy,” “spread yourself,” “astonish the natives,” and the like, &c. that the people and foot passengers on Broadway were attracted to him, and astonished at the recklessness of the driver in dashing through the public thoroughfare of a populous city in such a breakneck, careless manner, that a gang of dogs joined in the pursuit, yelping after the rapid driver, unable to overtake him; that men ran from the sidewalk to the middle of the street to keep in full view of the desperate, rapid driver; that everybody on the street, even some of the old market women, partook of the general excitement, and with amazement exclaimed ““goodness gracious,” raising both hands expressive of their surprise, till the general crash and breaking down occurred, when several persons remarked, “I thought that fellow would kill somebody or break his own neck,”--this would have been stating evidence. But nothing of the sort was stated in the petition, and if, as the petition stood and was filed, the evidence as here stated had really been offered, the plaintiff would have been entitled to recover, no doubt.

As a general thing, in all courts when any particular objection or exception to any language, statement or phraseology of proceedings is taken, the party making the exception is bound to bring it to the attention of the court by quoting the particular sentence or phraseology excepted to, in hæc verba, so that the court may see fully and be informed of the nature of the objection.

E. C. Kehr, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the St. Louis Circuit Court to recover damages alleged to have been sustained by the plaintiff from the wrongful act of the defendant, in violently running his buggy against the wagon in which plaintiff was riding along the public streets of St. Louis.

For a proper understanding of the case, the petition, although a long one, will be set out in full. It is as follows: “Timothy O'Connor, the plaintiff in this suit, complains of Theodore Koch the defendant in this suit, and sets forth his complaint in this his petition, as follows: That is to say, he, the said plaintiff, was seated in a spring wagon, belonging to him, said plaintiff, and was driving his horse attached to the same at a moderate and gentle gait on Broadway, one of the free open public streets in the city of St. Louis, in the county of St. Louis and State of Missouri, where he, the said plaintiff, had a right to be, to use and to travel with and in his spring wagon, in said public street and highway, on the twenty-first day of March in the year of our Lord eighteen hundred and seventy-one, when he, the said defendant, Theodore Koch, came driving with great fury, and riding in a buggy-wagon behind and in the rear of said plaintiff, and in such manner that the plaintiff did not know that the said defendant was approaching him, the said plaintiff, and at the time when he, said plaintiff, did not see him, said defendant, and when said plaintiff was entirely unconscious of danger, he, said defendant, who was thus riding and driving rapidly in the rear of and behind said plaintiff, on Broadway, in the city of St. Louis as aforesaid, did drive his said buggy with such force and violence against the spring wagon in which he, the said plaintiff, was sitting and driving at a moderate gait on Broadway as aforesaid, that he, the said defendant, did break down, demolish and upset the said spring wagon of him, said plaintiff; whereby he, said plaintiff, was knocked out of said spring wagon and thrown with such force and violence in and upon the pavement and stones in the street in Broadway as to bruise, hurt and injure him greatly. The sudden shock and violence with which he, the said Timothy O'Connor, was hurled from his said spring wagon and thrown in the street by said defendant as aforesaid, caused great bodily pain and suffering to him, said plaintiff, to relieve which, he, said plaintiff, was necessarily compelled to and did, employ medical aid and assistance to soothe his pain and relieve him from the distress and injuries so inflicted upon him, said plaintiff, by the defendant running over, upon, upsetting and breaking down said plaintiff's spring wagon, as aforesaid; by which said plaintiff incurred great expense, to-wit, the sum of twenty dollars; and said plaintiff was, by reason of the injuries so inflicted upon him as aforesaid by said defendant, and the soreness of his body and the bruises on his limbs, for the space of ten days unable to attend properly to his duties and business pursuits in life, which also resulted in serious loss and...