Egan v. Palmer

• Citation: 293 S.W. 460,221 Mo.App. 823
• Parties: ANNA EGAN, APPELLANT, v. GUS PALMER, RESPONDENT. [*]
• Decision Date: 06 July 1926
• Court: Court of Appeals of Kansas

293 S.W. 460

221 Mo.App. 823

ANNA EGAN, APPELLANT, v. GUS PALMER, RESPONDENT. ^[*]

Court of Appeals of Missouri, Kansas City

July 6, 1926

221 Mo.App. 823 at 833.

Original Opinion of July 6, 1926, Reported at: 221 Mo.App. 823. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Motion for rehearing overruled.

OPINION

ON MOTION FOR A REHEARING.

BLAND J.--

In her motion for a rehearing plaintiff insists that the allegation in the petition, taken with the other facts alleged, that defendant's servant "negligently drove said truck into violent collision into the automobile in which plaintiff was riding," is an allegation of a specific act of negligence.

In her reply brief plaintiff stated in reference to this allegation as follows:

"Defendant insists that this instruction is broader than the petition in that the petition charges negligence in driving into collision with the automobile in which the plaintiff was seated while the instruction requires a finding of negligence in driving into collision with the automobile and also negligence in driving into the intersection.

"It is apparent at a glance that there is no merit in this contention. An allegation that one negligently drove a truck into collision with an automobile is as broad and general an allegation as can be conceived of. It would admit proof of any manner of negligence in driving a car into collision with another car. Under such an allegation one could prove that a collision occurred in an intersection or anywhere else in the world while under an allegation of negligently driving into an intersection, one would be confined to proof of negligence resulting in a collision in an intersection. The contention that an instruction requiring a finding that defendant negligently drove into the intersection is broader than an allegation of negligence driving into collision with an automobile is absurd. It is true plaintiff's petition contained many other allegations of specific negligence but proof of one of these acts of negligence is all that is required of the plaintiff and she was entitled to go to the jury on the one specific act of negligence of driving into the intersection when traffic was against him as she did in this case. The instruction was therefore proper."

Plaintiff having submitted the case to us on the theory that said allegation in the petition was general and procured a decision from us on that theory cannot now change her theory and thus obtain a rehearing. There must be some end to litigation...