Fisher v. St. Louis Transit Company

• Decision Date: 03 July 1906
• Citation: 95 S.W. 917,198 Mo. 562
• Parties: FISHER, by next friend, v. ST. LOUIS TRANSIT COMPANY, Appellant
• Court: Missouri Supreme Court

95 S.W. 917

198 Mo. 562

FISHER, by next friend, v. ST. LOUIS TRANSIT COMPANY, Appellant

Supreme Court of Missouri, Division Two

July 3, 1906

Appeal from St. Louis City Circuit Court. -- Hon. John A. Blevins Judge.

Reversed and remanded.

Boyle & Priest, J. W. Jamison and Crawley & Gose for appellant.

(1) The requirements of the Code, section 592, that a plaintiff's petition shall contain a plain and concise statement of the facts constituting his cause of action, does not affect the fundamental requirements of good pleading, but only the form of such pleading. Sidway v. Stock Co., 163 Mo. 372; Ruebsam v. Railroad, 108 Mo.App. 437. When the supposed defect is called to the attention of the trial court in an objection to the introduction of any evidence under the petition, the rule that a pleading is to be construed most strongly against the pleader will be applied in the appellate court. Vivian v. Robertson, 176 Mo. 219. The objection that the cause of action is defective is never waived, nor is it cured by verdict or judgment. Jordan v Railroad, 61 Mo. 53; State v. Hoyt, 123 Mo 348; Smith v. Burns, 106 Mo. 94; Munchow v. Munchow, 96 Mo.App. 593; Walker v. Point Pleasant, 49 Mo.App. 244. Where the cause of action is defective, oral objection to any evidence is sufficient. Syme v. Steamboat, 28 Mo. 335; Hallan v. Randall, 48 Mo.App. 203. Every substantial fact which plaintiff in order to recover must prove, he must also allege so that an issue may be made thereon. Sidway v. Stock Co., 163 Mo. 342. The omission of an essential averment is not cured by verdict. Staley v. Wallace, 21 Mo.App. 128; Story v. Insurance Co., 61 Mo.App. 534. If a recovery of money be demanded, the amount thereof shall be stated, or such facts as will enable the defendant and the court to ascertain the amount demanded. R. S. 1899, sec. 592. In an action at law the plaintiff is limited to the damages which he claims in his petition and which must be stated at a definite sum. Coles v. Foley, 13 Mo.App. 249; Horton v. Railroad, 83 Mo. 541; Carter v. Shotwell, 42 Mo.App. 663. The damages awarded cannot exceed the amount claimed in the petition. Carter v. Shotwell, 42 Mo.App. 663; Horton v. Railroad, 83 Mo. 541; Smith v. Royce, 165 Mo. 654. A verdict for a fixed sum cannot be sustained where there is nothing in the petition showing definitely the amounts of plaintiff's claim. Carter v. Shotwell, 42 Mo.App. 663; Hyatt v. Legal Ass'n, 106 Mo.App. 610. In the plaintiff's pleading in this suit, no damages are claimed; and if any issue properly triable in this court should be here joined on such pleading and the jury should render a verdict for plaintiff and give him damages, those damages could not be legally collected, because no damages are claimed in the pleading. Brownson v. Wallace, 4 Blatchf. (U.S.) 467; Sidway v. Stock Co., 163 Mo. 372; Chem. Wks. v. Nemnich, 169 Mo. 397. (2) When a petition alleges damages as resulting from defendant's act, but the evidence discloses that the damages were caused in part by something for which defendant was not responsible, then a judgment can only include that part of the damages resulting from defendant's act alone. Durgin v. Neale, 82 Cal. 595; Buddington v. Shearer, 20 Pick. (Mass.) 477; Russell v. Tomlinson, 2 Conn. 206. There might be some difficulty in ascertaining the quantum of damage done by the one and that by the other, but whatever the difficulty might be, it could be no reason why the party liable for the one should be held for the other. Buddington v. Shearer, 20 Pick. (Mass.) 477; Russell v. Tomlinson, 2 Conn. 206. When the damages caused by one are increased by the intervention of an independent cause, the author of the first is responsible for the damage caused by his own wrong if separable from those produced by the intervening cause. Railroad v. Meech, 163 Ill. 314. If the injury may have resulted from either of two causes, for one of which, and not for the other, defendant is liable, plaintiff must show, with reasonable certainty, that the result was produced by that cause for which defendant is responsible, and if the evidence leaves this to conjecture, the plaintiff fails. Smart v. Kansas City, 91 Mo.App. 586. Where an effect has been produced by two independent causes and it cannot be determined whether, without the happening of both, the effect would have been produced at all, and a particular party is responsible for the consequences of one of such causes, in such case no recovery can be had, because it cannot be judicially determined that the effect would have been produced without the effect of both. Railroad v. Renney, 42 Md. 136; Houston v. Traphagen, 47 N. J. L. 23. (3) As the trial issues must be within the paper issues, instructions must be framed with regard to the paper issues. Whipple v. B. & L. Assn., 55 Mo.App. 554. It is error for the court by instructions to change the issues made by the pleadings. Wright v. Fonda, 44 Mo.App. 634; State v. Kaufman, 51 Mo.App. 252. An instruction which refers the jury to the pleadings to find the issues is erroneous. Shaw v. Dairy Co., 56 Mo.App. 521; Railroad v. McGrew, 104 Mo. 282; Dassler v. Wisley, 32 Mo. 498. It is not only the office of instructions to inform the jury as to the law of the issues raised, but where the evidence is such that false issues might easily be raised, the court ought to guard against such an issue by appropriate instructions. Estes v. Shoe Co., 155 Mo. 577; Budd v. Hoffheimer, 52 Mo. 297; Fry v. Estes, 52 Mo.App. 1; McAtee v. Vanlandingham, 75 Mo.App. 45; Mansur v. Botts, 80 Mo. 651; Little v. Macadoras, 29 Mo.App. 332; Matthews v. Railroad, 26 Mo.App. 75; Morgan v. Rice, 35 Mo.App. 591.

Cocke & Trigg and C. D. Francis for respondent.

(1) (a) A petition is not subject to attack by general demurrer because, perchance, in addition to items of injury upon which a recovery may be had, it also sets up other items upon which no liability of the defendant can be predicated. Only by special demurrer, or a motion to strike out, can such latter items be assailed. The defendant who neglects to avail himself of the remedies last mentioned may still fully protect himself by an objection to the introduction of any evidence upon the items for which he is not liable. 6 Ency. Pl. and Pr. 301-4; Robrecht v. Marlin, 29 W.Va. 765; Leland v. Tousey, 6 Hill (N. Y.) 336; Railroad v. Hardin, 107 Ga. 379; Packard v. Slack, 32 Vt. 9; Hayden v. Sample, 10 Mo. 215; Ancell v. Cape Girardeau, 48 Mo. 80; Justice v. Lancaster, 20 Mo.App. 559; Railroad v. McLiney, 32 Mo.App. 166. (b) A fortiori, a demurrer of the evidence, on the ground that the petition states no cause of action, will not be sustained in such a case. Roberts v. Walker, 82 Mo. 200. (c) The practice of delaying attack upon a pleading till the trial of the cause has been repeatedly condemned by the appellate courts of this State, and only where the complainant, by a liberal construction, fails wholly to set out any cause of action whatever, will a demurrer to the evidence be sustained. Haseltine v. Smith, 155 Mo. 404; Spalding v. Nesbit, 104 Mo.App. 447; Duerst v. Stamping Co., 163 Mo. 607. (d) It is not requisite, in the enumeration of the various items of injury suffered by a complainant, that his petition should specify the sum demanded as damages for each separate item; an ad damnum clause, naming a sum in the aggregate, being all that is required. A failure, therefore, to separately aver the measure of recovery demanded for each item will not expose the petition to the objection that it states no cause of action. Montgomery v. Locke, 11 P. 74; Sedberry v. Verplanck, 37 S.W. 242; Helbrandt v. Donaldson, 69 Mo.App. 92. (e) It constitutes no valid objection to a complainant's right to recover such damages as his evidence shows he has suffered, that his petition alleges injuries which the evidence does not support. Cole v. Sprowl, 35 Me. 161; Ankrum v. Marshalltown, 105 Ia. 493. Where, therefore, a petition alleges several injuries to have been received through the tortuous acts of defendant; naming a gross sum as the measure of damage; and the evidence tends only to establish a portion of the injuries; plaintiff is, nevertheless, entitled to have his case go to the jury, and the latter may find for him any amount as the adequate compensation for his loss, within the amount claimed. Walsh v. Dolan, 15 N.Y.S. 96. (2) (a) No error can be predicated upon the mere presence in the petition of the allegations relating to the diphtheria which plaintiff contracted whilst at the hospital. This item of alleged injury having been wholly abandoned by plaintiff at the trial -- he having introduced no evidence on the subject, nor carried the same into the instructions -- it was not one of the issues which went to the jury. Musser v. Hill, 17 Mo.App. 171; Powell v. Bosard, 79 Mo.App. 627; Thomas v. Herrall, 18 Or. 546; Muth v. Railroad, 87 Mo.App. 433; Kingsburry v. Railroad, 156 Mo. 379; Mirrielees v. Railroad, 163 Mo. 491; Grady v. Railroad, 102 Mo.App. 215. (b) Appellant will not be heard to object that evidence of the diptheria was given at the trial, when the same was only drawn out by it on cross-examination. Volenti non fit injuria. Carpenter v. Wilmot, 24 Mo.App. 589; Fullerton v. Railroad, 84 Mo.App. 498. Nor will appellant be heard to complain of its failure to offer an instruction negativing a recovery upon the item of diphtheria thus placed in evidence by it. Taylor v. Iron Co., 133 Mo. 364; Geismann v. Electric Co., 173 Mo. 679; Logan v. Weltmer, 180 Mo. 335. (3) (a) The criticism that instructions 1 and 3 referred the jury to the petition is unmerited. Such objection only lies when the jury are referred to the pleadings to ascertain the issues. The various items of injury enumerated in the petition...