Emery v. St. Louis, Keokuk & Northwestern Ry. Co.

• Decision Date: 30 April 1883
• Citation: 77 Mo. 339
• Court: Missouri Supreme Court
• Parties: EMERY v. THE ST. LOUIS, KEOKUK & NORTHWESTERN RAILWAY COMPANY, Appellant.

77 Mo. 339

EMERY

v.THE ST. LOUIS, KEOKUK & NORTHWESTERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

[COPYRIGHT MATERIAL OMITTED]

Appeal from Lewis Circuit Court.--HON. JOHN C. ANDERSON, Judge.

AFFIRMED.

Geo. F. Hatch and Geo. W. Easley for appellant.

Conceding that the code has no application to suits before justices of the peace, and that no affirmative relief can be sought in defenses of the character here set up, this case must still be reversed, for no affirmative relief was asked. No good reason can be assigned for saying to a defendant, you have sustained damages to a greater amount than your adversary sues you for, but he has sued you in a court that restricts you to defending beyond the sum of $50, and notwithstanding you are willing to surrender your claim in excess of his demand, and ask nothing therefor, we will let you have the benefit of your damages proven to the amount of $50, bar the remainder of your claim and give judgment against you. This would greatly multiply suits unnecessarily.

A. D. Lewis and N. Rollins for respondent.

The recoupment set up by defendant grows out of alleged injuries to personal property and exceeds $50. 2 Wag. Stat., 808, § 3; Webb v. Tweedie, 30 Mo. 488; Dillard v. St. L., K. C. & N. R'y Co., 58 Mo. 69; Spencer v. Vance, 57 Mo. 427.

MARTIN, C.

This was an action for work and labor, commenced before a justice of the peace of Lewis county in November, 1876. The statement of the plaintiff, after being amended by leave of court, was in the form of an account specifying the number of days for which he claimed wages at the rate of $2 a day, and containing a credit for board, concluding with a balance in favor of plaintiff in the sum of $90. The defendant filed an answer to the original statement, which, according to a recital in the justice's transcript, consisted of a counter-claim in part. This counter-claim was stricken out on motion of plaintiff's attorney, for the reason that it exceeded the jurisdiction of the justice. This original answer was withdrawn by leave of court, and permission given defendant to file an amended answer. A motion requiring defendant to re-file the original answer, was overruled. It is not included in the record of the case.

The amended answer consisted of two parts. In the first, the defendant denied that it was a corporation, or that it was liable to be sued as a corporation, or body corporate, or as an individual or person in law. In the second part of the answer the defendant pleads, that in the performance of the work and labor for which plaintiff sues, it was implied in the law, understood and agreed, that plaintiff should perform such labor with reasonable skill, care and diligence; that he failed to use reasonable skill, care and diligence, but on the contrary, performed said labor in such a careless, unskillful and negligent manner, that by reason of the said carelessness, unskillfulness and negligence, the engines, cars and tools of defendant, then in the keeping and under the control and management of plaintiff, suffered great loss, damage and injury in the sum of $90, and in a greater amount than all the value of plaintiff's services. The answer concludes with a prayer that the sum of damages and injury sustained by defendant by reason of the said careless, unskillful and negligent services, acts and conduct of the plaintiff, be recouped and deducted from the sum claimed by plaintiff, and that defendant have judgment for costs.

It will be observed that there is no denial of the plaintiff's cause of action in the answer, either as to the fact of the labor rendered or its value. The plaintiff filed a motion to strike out this claim of recoupment, and it was sustained by the justice to the extent of reducing the counter demand to $50. On trial before the justice a verdict was rendered in favor of plaintiff in the sum of $34.50, from which an appeal was taken to the circuit court by defendant. The plaintiff in that court renewed his motion to strike out the second part of defendant's answer. This motion was overruled, and the case was tried by the court without the intervention of a jury. When the case came up for trial in the circuit court, the defendant admitted the plaintiff's account, as presented in his petition below, to be correct, and asserted the right to prove the matters set out in his answer, as holding the affirmative of the issues on trial.

From the evidence in the record, it appears that the plaintiff was a workman for defendant at Alexandria, under the charge of one Graham, a bridge carpenter for defendant; that in the month of September, 1876, one Gorham, a master mechanic, reported to Graham that he was ill and had no watchman for his engine that night, a construction engine he had been using; that Graham informed him that he had in his employ the plaintiff, who had at Canton and other places been a “hostler” of engines; the duty of such a person was to take charge of engines as soon as they arrived, take them to the round-house and to prepare them in readiness to go out again; that the plaintiff was hunted up and introduced to Gorham, who told him what he wanted done, telling him that there were three gauges of water in the engine, and not to move the engine at all, and to have it ready by five or six o'clock in the morning; that plaintiff was seen the next morning at six o'clock; that he seemed intoxicated; that the engine was badly smashed up, the pilot and front end torn off, and one flat car pretty badly broken; that it appeared the engine had been run into the cars, with such rapidity and force, that when the forward end of the engine ran under the car, the increased pressure on the trucks of the engine had bent both rails under them; that when asked how it happened, plaintiff remarked that he was pumping her up, and said that he supposed he would be discharged; that upon taking charge of it, the plaintiff was to have credit for the night's work as for a whole day, and that he received such credit; that there was no necessity for moving the engine, as far as witness knew.

A machinist by the name of Ambrose testified that the damage to the engine was at least $100; that water is pumped into the boiler of some engines by running the engine forward and backward, on the track; into others by an injector; the defendant had four engines of the first class mentioned, and two of the latter class; that if the engine stopped at five o'clock in the afternoon with a hot fire in the furnace, and stood till five or six o'clock in the morning, with the fire left up, it might blow off steam so as to require pumping before using the next morning. No evidence was introduced by the plaintiff.

The defendant asked the court to declare that if, while the plaintiff was in the employ of defendant, and in charge of the engine, he, without authority, unnecessarily moved the engine on the track, and in so doing carelessly caused great damage to it, in an amount equal to the amount of plaintiff's wages, then the damage to the engine so occasioned by the carelessness or negligence of the plaintiff is the proper subject of recoupment in this case, and the verdict should be for defendant. This declaration of law was refused by the court. The case was taken under advisement and judgment was rendered for the plaintiff in the sum of $38 and costs. The defendant saved its exceptions and brought this appeal.

It will be seen from this statement that the court, in its judgment, conceded to defendant the benefit of its claim in recoupment to the extent of $50, and interest, and denied all advantage over that amount.

The counsel for defendant insist that the cross demand pleaded in their answer, was in the nature of a deduction or diminution of the plaintiff's claim of $90 for labor, and that it should have been entertained and allowed by the court to its full extent, under the name of a defensive recoupment. After considering the pleadings and evidence, I am unable to accept this view of the case.

The nature of recoupment and counter-claim has received the attention of the Supreme Court of this State in a line of concurring decisions, and it is unnecessary to review the law on the subject, any farther than an intelligent application of well settled principles may require it. Grand Lodge v. Knox, 20 Mo. 433; Jones v. Moore, 42 Mo. 413; McAdow v. Ross, 53 Mo. 199; Ritchie v. Hayward, 71 Mo. 560. The term “recoupment” was anciently applied to the right of deduction from the damages claimed by plaintiff on account of part payment, depreciation or partial failure of consideration, or some analogous fact. 1 Dyer (2 b.); Coulter's case, 5 Co. 31; Sedgwick on Dam., 431; Barber v. Chapin, 28 Vt. 413; Grand Lodge v. Knox, 20 Mo. 433; 2 Par. Cont. 246; Waterman Offset, 468. This right in modern times has been recognized under the name of deduction or reduction of damages, ( Hecksher v. McCrea, 24 Wend. 304,) which is probably the more proper name for it; while the meaning of recoupment has been greatly enlarged and changed. 2 Par. Cont. 246. Pomeroy Remedies, § 733. In modern times the term “recoupment” has been extended and applied to cross demands existing in favor of the defendant, and arising out of the same contract or transaction upon which the plaintiff founds his action.

After reviewing the old cases in Grand Lodge v. Knox, Judge Leonard remarks: “The American cases, however, at least in New York, Massachusetts, Alabama, and some few other states, now go the full length of declaring that all matters of counter-claim arising out of the same transaction, and not technically the subject of set-off, can be set-off by way of recoupment of damages, provided the plaintiff has been properly apprized of the defense.” The courts differ in their views as to how the cross demand must arise from plaintiff's claim, or be connected with it. In some states a strict construction has been adopted, while in others a very liberal one...