Finnell v. Metropolitan Street Railway Company
| Decision Date | 20 December 1911 |
| Citation | 141 S.W. 451,159 Mo.App. 522 |
| Parties | WILLIAM M. FINNELL, Respondent, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
AFFIRMED.
Judgment affirmed.
John H Lucas for appellant.
The petition does not state facts sufficient to authorize a verdict herein. Flowers v. Smith, 214 Mo. 129, 130; Boyd v. St. Louis Transit Co., 108 Mo.App. 303. The court erred in overruling appellant's motion for a new trial and motion in arrest of judgment. McMurray v Transit Co., 225 Mo. 272; Jordan v. Transit Co., 202 Mo. 418; Flowers v. Smith, 214 Mo. 141.
Stubbs & Stubbs for respondent.
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 decision is whether that defect in the pleading was one defendant could and did waive or was one of such vital character that it could not be cured by verdict. The argument of defendant concedes, in effect, that the different causes pleaded could be properly joined in one action if stated in separate counts, and, further, it must be conceded that there is no repugnancy or inconsistency between these causes. Proof of one would not tend to disprove the other. It could be true that defendant wrongfully assaulted plaintiff and followed up that wrong with a false arrest and a malicious prosecution. We hold that by answering to the merits without attacking the petition defendant waived the objection of a misjoinder of causes in a single count, and we find that the cases cited by defendant do not support the contrary view.
In Flowers v. Smith, 214 Mo. 98, 112 S.W. 499, the petition in a libel suit alleged eighteen causes in one count, five of which were bad. The court held that the defect was so vital the objection could be raised for the first time in the motion in arrest. We quote from the opinion:
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