Cushulas v. Schroeder & Tremayne

Decision Date07 January 1930
PartiesNICK CUSHULAS, DEFENDANT IN ERROR, v. SCHROEDER AND TREMAYNE, INCORPORATED, A CORPORATION, PLAINTIFF IN ERROR
CourtMissouri Court of Appeals

Error to the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.

AFFIRMED.

Judgment affirmed.

Jones Hocker, Sullivan & Angert for plaintiff in error.

(1) Under our code, in order to state a cause of action, the petition must state the facts upon which the plaintiff depends for recovery and advise the defendant of the basis of his alleged liability. Sec. 1220, R. S. 1919; N.Y. N.H. & H. R. Co. v. Hungerford, 75 Conn. 76, 52 A. 487; Mitchell v. City of Clinton, 99 Mo. 153; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 397; Bliss on Code Pleading (3 Ed.), sec. 211a. (2) While negligence may be pleaded generally, and a petition so charging negligence will be held good after verdict, yet the facts or acts of the defendant complained of must be stated before they can be characterized as negligent. It is not sufficient to state mere conclusions of the pleader without facts to support them. Timmerman v. Iron Co., 1 S.W.2d 791; State ex rel. Hopkins v. Daues, 6 S.W.2d 893; Sackewitz v. American Biscuit Mfg. Co., 78 Mo.App. 144; Price v. Railway Co., 220 Mo. 435; State ex rel. v. Railroad, 240 Mo. 50; Musser v Musser, 281 Mo. 664; Zasemowich v. American Mfg. Co., 213 S.W. 802; Beam Co. v. Bakewell, 224 Mo. 222; Dieter v. Zbaren, 81 Mo.App. 614; Wyler v. Ratican, 150 Mo.App. 479; Heckfuss v. American Packing Co., 224 S.W. (Mo. App.) 100; Reuter v. Terminal R. Ass'n, 261 S.W. (Mo. App.) 713; Finn v. United Rys. Co., 267 S.W. (Mo. App.) 420; Bailey v. St. L. S. F. Ry. Co., 296 S.W. (Mo. App.) 479. The same rule is applicable as against defendants in pleading contributory negligence. The facts must be stated, and a mere allegation that the plaintiff's injuries were caused by plaintiff's own fault or negligence is insufficient. Benjamin v. Railroad, 245 Mo. 613-614; Keppler v. Wells, 238 S.W. 429; Harrington v. Dunham, 273 Mo. 429-430; Hanke v. St. Louis, 272 S.W. 928. (3) No inference of negligence can arise from the mere statement that the plaintiff was injured. Facts must be stated authorizing the conclusion that the injuries resulted from some act or omission of the defendant. Orris v. Rock Island, 279 Mo. 1; State ex rel. v. Cox, 298 Mo. 434. (4) Our statute (Sec. 1257, R. S. 1919) requiring pleadings to be liberally construed, and our Statute of Jeofails (Sec. 1500, R. S. 1919) do not authorize the court to hold plaintiff's petition good after verdict. Sharp v. Railway Co., 213 Mo. 525; Overton v. Overton, 131 Mo. 566; Sidway v. Missouri Land & Live Stock Co., 163 Mo. 373; Pattison's Missouri Code Pleading (2 Ed.), sec. 1005; O'Toole v. Lowenstein, 177 Mo.App. 667. (5) In order to render it valid, a judgment must be based upon a sufficient petition. The judgment in this case is void because the petition wholly fails to state a cause of action against the defendant below. Walrath v. Crary, 222 S.W. (Mo. App.) 895; McCrosky v. Burnham, 282 S.W. (Mo. App.) 158; Bell v. Johnson, 207 Mo. 281; Cole v. Parker-Washington Co., 276 Mo. 266. (6) The objection that the petition fails to state facts sufficient to constitute a cause of action is never waived and may be made for the first time in the appellate court. Pattison's Missouri Code Pleading (2 Ed.), sec. 1005; La Rue v. La Rue, 294 S.W. 723; Stonemets v. Head, 248 Mo. 252; Hudson v. Cahoon, 193 Mo. 557-558; Metropolitan Paving Co. v. Investment Co., 309 Mo. 661; Cole v. Parker-Washington Co., 276 Mo. 266.

Douglass & Inman and John H. Bradley for defendant in error.

(1) If the petition states any cause of action whatever, no matter how defectively, it must be held good after verdict. Bianchetti v. Luce, 2 S.W.2d 129; State ex rel. Hopkins v. Daues et al., 6 S.W.2d (Mo. Sup.) 893; Lowder v. Railroad, 221 S.W. (Mo. App.) 800; Kramer v. Kansas City Power & Light Co., 311 Mo. 369, 279 S.W. 43; Geninazza v. Leonori Auction & Storage Co., 252 S.W. (Mo. Sup.) 417; Mack v. Railroad, 77 Mo. 232; Phillips v. Railroad, 226 S.W. (Mo. Sup.) 863; Lynch v. Railroad, 111 Mo. 601; Anderson v. Lusk, 202 S.W. (Mo. App.) 306; Mason v. Wilks, 288 S.W. 936. (2) The petition charges negligence generally, and in the absence of demurrer or other attack is good after verdict. Negligence is a fact, not a conclusion of law. See cases cited under Point 1, supra. Also: Bliss on Code Pleading (3 Ed.), section 211a, p. 331; L. & N. R. R. Co. v. Wolff, 80 Ky. 84; Rueter v. Terminal R. R. Ass'n, 261 S.W. 713; Barber v. Boiler Works Co., 297 S.W. 124. (3) In the absence of any objection to the introduction of evidence it will be presumed that the petition was amended to conform to the evidence. Treece State Bank v. Wade, 283 S.W. (Mo. Sup.) 714; Ehrlich v. Mittleberg, 299 Mo. 284, 252 S.W. 671; State ex inf. v. Gromer, 252 S.W. (Mo. Sup.) 705; Rock et al. v. Keller et al., 278 S.W. (Mo. Sup.) 759; State ex rel. Smith v. Trimble et al., 285 S.W. 729; Solomon v. Moberly Light & Power Co., 262 S.W. 367; Ford v. Wabash R. R. Co., 300 S.W. 769. (4) In the absence of an attack upon a petition by motion, demurrer or otherwise, it is sufficient to support a judgment after verdict, although only conclusions are pleaded. State ex inf. v. Arkansas Lumber Co., 260 Mo. 212; Karr & Conn v. Drainage Dist., 297 S.W. 730; Ehrlich v. Mittleberg, 252 S.W. 671. (5) Considering the rule that the petition will be presumed to be amended to conform to the proof, together with the rule that a petition in the absence of attack is good after verdict, it necessarily follows that a pleaded conclusion is on a par with conclusion evidence, and it will not be denied that conclusion evidence unobjected to will support a judgment. Headdy v. Tie Co., 262 S.W. 447, and cases there cited; Gulledge v. Davis, 264 S.W. 441; City v. Construction Co., 184 S.W. 939, and cases cited. (6) Since the petition was not attacked below, every intendment must be indulged in its favor, and if, by a most liberal construction, omitted material facts necessary to plaintiff's cause of action may be implied from its express averments, the petition must be held to state a cause of action. Bowie v. Kansas City, 51 Mo. 105; Vaughan v. Day, 274 S.W. 969; Cabool v. U.S. F. & G. Co., 9 S.W.2d 2103; Timmerman v. Iron Co., 1 S.W.2d 791; Swift v. St. Louis-San Francisco Ry. Co., 15 S.W.2d 964; Kern v. United Railways Co., 259 S.W. 821; Hoffman v. Ins. Corp., 16 S.W.2d 716; Doty v. Life, 16 S.W.2d 712; Munoz v. Amer. Car & Foundry Co., 296 S.W. 228; Railroad v. Petty, 20 Ind. 261; Applegate v. Railroad, 252 Mo. 173; Tiller v. Ins. Co., 296 S.W. 464. (7) The petition states as facts the manner in which plaintiff was injured and the cause of his injury. The general charge of negligence must be deemed to relate to and qualify said acts as negligent, thereby stating a cause of action. Kitchen v. Schleuter Mfg. Co., 20 S.W.2d 676; Weber v. Terminal R. R. Ass'n, 20 S.W.2d 601. (8) No judgment should be reversed unless the trial court committed error prejudicial to the rights of the complaining party. Since plaintiff in error filed no pleading, and did not attempt to contest the case, its rights could not be materially affected by any insufficiency of the petition. Secs. 1276, 1513, 1515, R. S. 1919; Ehrlich v. Mittleberg, 252 S.W. 671.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action to recover damages for personal injuries sustained by plaintiff while in the employ of defendant. The petition charges: "That plaintiff at the time of his injury herein alleged was employed by defendant, and was at work within the scope of his employment; that, in February, 1924, he was at work for defendant in the basement of its plant on North Fourth street, in the city of St. Louit, engaged in assisting to move a large heavy press; that while thus engaged, he was caused to fall to the floor of said basement, and said heavy press fell upon him, whereby he sustained serious and permanent bodily injuries; . . . and that said injuries were directly caused by the negligence of the defendant." Judgment by default was given for plaintiff for $ 4,000. Defendant has brought the case here by writ of error, and urges the reversal of the judgment on the ground that the petition wholly fails to state a cause of action, and is therefore insufficient to support the judgment.

Defendant made no attack upon the petition in the court below, but was content to lie by until the suit went to final judgment, and then sued out this writ. According to the petition, as we must in this state of the record, the grace of every fair implication and reasonable intendment arising from its express averments, it is obvious that it does not wholly fail to state a cause of action. [State ex inf. Major v Arkansas Lumber Co., 260 Mo. 212, 282, 169 S.W. 145; Kern v. United Railways Co., 214 Mo.App. 232, 259 S.W. 821; Kieth v. American Car & Foundry Co. (Mo. App.), 9 S.W.2d 644; Rueter v. Terminal R. Ass'n (Mo. App.), 261 S.W. 713; Lindsey v. American Car & Foundry Co. (Mo. App.), 16 S.W.2d 615; State ex rel. Hopkins v. Daues (Mo.), 6 S.W.2d 893; Kramer v. Kansas City Power & Light Co., 279 S.W. 43, 49; Winn v. Kansas City Belt Ry. Co., 245 Mo. 406, 151 S.W. 98; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Simpson v. Wells, 292 Mo. 301, 237 S.W. 520; Munoz v. American Car & Foundry Co. (Mo. App.), 296 S.W. 228; Davidson v. Chicago & Alton Ry. Co., 98 Mo.App. 142, 71 S.W. 1069; Quinley v. Springfield Traction Co., 180 Mo.App. 287, 298, 165 S.W. 346; Le May v. Missouri Pacific Ry. Co., 105 Mo. 361, 16 S.W. 1049; Conrad v. De Montcourt, 138 Mo. 311, 39 S.W. 805; Schneider v. Missouri Pacific Ry. Co....

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2 cases
  • Taylor v. Cleveland, C., C. & St. L. Ry. Co.
    • United States
    • Missouri Supreme Court
    • 12 Agosto 1933
    ...in a petition or answer is sufficient unless such pleading is properly assailed before verdict for want of definiteness. In Cushulas v. Schroeder & Tremayne, supra, a petition definite than the one in this case was held sufficient after verdict. A number of decisions of this court and our C......
  • Brown v. Terminal R. R. Ass'n of St. Louis
    • United States
    • Missouri Court of Appeals
    • 19 Julio 1935
    ...App.) 261 S. W. 713; Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W. (2d) 654, loc. cit. 658; Cushulas v. Schroeder & Tremayne, 225 Mo. App. 567, 22 S. W.(2d) 872. In this case, it is true, the act of the defendant in backing its train over the crossing without giving the stat......

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