Doster v. Chicago, M. & St. P. Ry. Co.

• Citation: 158 S.W. 440
• Court: Missouri Court of Appeals
• Decision Date: 05 May 1913
• Parties: DOSTER v. CHICAGO, M. & ST. P. RY. CO.

158 S.W. 440

DOSTER v. CHICAGO, M. & ST. P. RY. CO.

Kansas City Court of Appeals. Missouri.

May 5, 1913.

Rehearing Denied June 30, 1913.

1. CARRIERS (§ 315) — INJURIES TO PASSENGERS — ACTIONS — VARIANCE.

Where a passenger sued two connecting carriers for injuries received while the car in which she was riding was being transferred from one railroad to the other, she can recover against one of them on proof of a negligent act after having dismissed as to the other, whether her action is based upon a joint act or upon the several concurring and co-operating acts of the carriers.

2. DAMAGES (§ 158) — PLEADING AND PROOF — PERSONAL INJURIES.

Where a complaint for personal injuries alleged serious injury to the hips, evidence of a fracture of the hip bone was within the averment of the complaint.

3. CONTRIBUTION (§ 5) — JOINT TORT-FEASORS.

In an action for personal injuries, received while a passenger car was being transferred from one carrier to another, where the complaint had been dismissed as to one of the carriers, recovery could be had against the other company only upon proof that its wrongful act caused the injury, and such carrier could not claim contribution from the other carrier.

4. TRIAL (§ 127) — MISCONDUCT OF COUNSEL — IMPROPER ARGUMENT.

In such a case it was prejudicial error for the plaintiff's counsel to argue to the jury that the defendant company could litigate with the other the question whether its action caused the injury.

5. TRIAL (§ 133) — MISCONDUCT OF COUNSEL — ACTION BY COURT.

Such error was not cured by an instruction that the jury should not consider that question, where the court refused the defendant's request to instruct them that the defendant could not recover against the other carrier in any circumstances.

Error to Circuit Court, Jackson County; James H. Slover, Judge.

Action by Elizabeth Doster against the Chicago, Milwaukee & St. Paul Railway Company. Judgment for the plaintiff, and defendant brings error. Reversed and remanded on rehearing.

Elijah Robinson and Kimbrough Stone, both of Kansas City, and E. M. Harber, of Trenton, for plaintiff in error. Edw. J. Anderson, of Lathrop, and Lathrop, Morrow, Fox & Moore, of Kansas City, for defendant in error.

JOHNSON, J.

Elizabeth Doster, of Doster, Mich., was injured December 3, 1907, while a passenger in a tourist sleeping car operated successively over the connecting lines of the Chicago, Milwaukee & St. Paul Railway Company and the Missouri Pacific Railway Company. She was one of a family party starting on a pleasure trip from Michigan to California. Fare for the through trip was paid to the agent of the Michigan Central Railway at Doster, though he had no tickets to California. He gave her an order for a through ticket reading over the Chicago, Milwaukee & St. Paul Company's line from Chicago to Kansas City and thence westward over the line of the Missouri Pacific Company. She received the ticket at Chicago and proceeded on her journey as a passenger in a sleeping car bound for San Diego. In transferring the car to the Missouri Pacific line at Kansas City it was necessary to switch it over many side tracks, and it was finally left standing on a transfer track. Before the Missouri Pacific Company took it in charge, it was struck by an engine of the Milwaukee Company with such violence as to throw Mrs. Doster to the floor and injure her. She brought an action for damages against both companies, alleging that they "carelessly and negligently caused, permitted, and suffered the car upon which plaintiff was a passenger as aforesaid, to be jerked, thrown about, bumped into, and collided with in the yards or on the tracks of defendants at or near Kansas City, Mo., and on or about December 4, 1907, with such force and violence that plaintiff was by reason thereof thrown on, over, and against the seats and onto the floor of said car in which she was a passenger with great force and violence, and all by reason of the negligence of the defendants herein." At the close of the evidence a peremptory instruction directing a verdict for the Missouri Pacific Company was given, when plaintiff dismissed the action as to that company. The remaining defendant thereupon objected to the submission of the cause against it alone for the reason that the plaintiff had charged a joint wrong in her petition and should not be allowed to recover on proof of a single wrong. The objection was overruled, and the case was submitted to the jury by instructions for the plaintiff on the theory of a single or separate wrongful act committed by the remaining defendant, and a verdict was returned in favor of the plaintiff for $7,500. By direction of the court a remittitur was entered and judgment was rendered for $6,000. The cause came to this court by writ of error sued out by the Milwaukee Company. During its pendency in this court Mrs. Doster, the plaintiff, died, and the administrator of her estate was substituted as party plaintiff.

Counsel for defendant argue that, since the petition alleges a joint tort and the proof of plaintiff shows, not a joint tort committed by the two companies, but a single tort committed by the Milwaukee Company, there is a fatal variance between allegation and proof and the court erred in submitting the case to the jury.

Conceding for argument that a joint act for negligence is alleged and a recovery was allowed against the Milwaukee Company alone on proof that its sole negligence was the proximate cause of the injury, still we must hold there is no substantial variance between the cause alleged and that submitted to the jury.

The Supreme Court in two very late cases have gone into this subject exhaustively and reached the conclusion that, since the liability of joint tort-feasors is both joint and several, "it follows that allegations alleging a joint relationship and the doing of negligent acts jointly are divisible, and that a recovery may be had where the proof establishes the connection of but one defendant with the acts averred." Winn v. Railroad, 245 Mo. 406, 151 S. W. 98; Hutchinson v. Richmond Safety Gate Co. (Mo.) 152 S. W. 52. Defendant endeavors to draw distinction between the facts of those cases and of the case in hand,...