Finnell v. Metropolitan St. Ry. Co.

• Decision Date: 04 December 1911
• Citation: 159 Mo. App. 522,141 S.W. 451
• Parties: FINNELL v. METROPOLITAN ST. RY. CO.
• Court: Missouri Court of Appeals

141 S.W. 451

159 Mo. App. 522

FINNELL v. METROPOLITAN ST. RY. CO.

Kansas City Court of Appeals. Missouri.

December 4, 1911.

1. PLEADING (§ 64)—CAUSES OF ACTION — JOINDER—DUPLICITY.

Plaintiff in a single count alleged that, notwithstanding he had paid his fare, defendant's conductor demanded it a second time, assaulted him, and forcibly ejected him from the car; that afterwards defendant caused plaintiff to be arrested for disturbing the peace, prosecuted him on that charge; and that plaintiff was acquitted by the jury. Held, that the petition improperly joined in a single count, causes of action for assault, false arrest, and malicious prosecution.

2. PLEADING (§ 406)—DUPLICITY—WAIVER OF OBJECTION.

Where plaintiff improperly joined in a single count a cause of action for assault, false arrest, and malicious prosecution, it was defendant's duty to move to compel separation or election, and, having failed to do so, he waived the objection; the actions being capable of joinder in different counts.

3. TRIAL (§ 330) — VERDICT — SUFFICIENCY— SEPARATE ISSUES.

Where plaintiff improperly joined, in a single count, three causes of action which might

have been joined in the same petition in different counts, and all of them were good and supported by evidence, the verdict was not subject to objection on the theory that it could not be told on which cause of action it was based.

4. APPEAL AND ERROR (§ 701)—INSTRUCTIONS —MODIFICATION—REVIEW.

Alleged error in modification of a request to charge cannot be reviewed in the absence of the evidence.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by William M. Finnell against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

John H. Lucas, for appellant. Stubbs & Stubbs, for respondent.

JOHNSON, J.

Plaintiff claims that, after he became a passenger on one of defendant's street cars and had paid his fare, the conductor attempted to collect the fare again, and, on plaintiff's refusal to pay a second time assaulted him with verbal abuse and physical violence and forcibly ejected him from the car; that afterward defendant caused plaintiff to be arrested on a charge of disturbing the peace and prosecuted him on that charge; and that plaintiff was acquitted by the jury before which the case was tried. Plaintiff brought this suit to recover compensatory and exemplary damages, and in his petition alleged, in a single count, causes of action for wrongful assault, false arrest, and malicious prosecution. Defendant did not attack the petition by demurrer or motion, but answered to the merits, and, at the trial, interposed the general objection that the petition failed to state a cause of action, and renewed that objection by motion in arrest of judgment. The cause was submitted to a jury, and a verdict was returned for compensatory damages only. After unsuccessfully moving for a new trial and in arrest of judgment, defendant appealed.

The only reference to the evidence in the abstract of the record filed by defendant is that "there was evidence tending to prove the several allegations of the petition and evidence tending to disprove each and every one thereof." The principal contention of defendant in this court is that the petition is fatally defective and will not support a single verdict because it contains in one count statements of two or more separate and distinct causes of action.

We do not agree with the view of defendant that a cause for slander is pleaded. The verbal abuse suffered by plaintiff was a part of the cause inuring to him from the wrongful assault, and, as we construe the petition, it pleads causes for assault and for false arrest and malicious prosecution.

We shall concede these causes were improperly joined in one count, and the question for our...