Garber v. Missouri Pac. Ry. Co.

• Decision Date: 01 March 1919
• Docket Number: No. 19574.,19574.
• Citation: 210 S.W. 377
• Parties: GARBER v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

210 S.W. 377

GARBER v. MISSOURI PAC. RY. CO.

No. 19574.

Supreme Court of Missouri, Division No. 1.

March 1, 1919.

Rehearing Denied March 28, 1919.

Appeal from Circuit Court, Benton County; C. A. Calvird, Judge.

Action by Josephine Garber, as widow and as administratrix of the estate of H. S. Garber, deceased, against the Missouri Pacific Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

W. S. Jackson, of Warsaw, and C. W. Prince, E. A. Harris, J. E. Westfall, and J. N. Beery, all of Kansas City, for appellant.

Thomas T. Railey and Jeffries & Comm, all of St. Louis, for respondent.

GRAVES, J.

Action for negligence. Case was tried upon a third amended petition. The only thing in the record as to previous petitions is the following:

"The petition was filed on the 11th day of May, 1912, plaintiff therein being Josephine Garber, the widow of H. S. Garber, deceased. Thereafter, and on the 15th day of December, 1914, the plaintiff filed her second amended petition against the defendant, wherein Josephine Garber, as widow, and Josephine Garber, administratrix of the estate of H. S. Garber, deceased, were plaintiffs."

The accident occurred November 13, 1911. Under the federal act, an action thereon was barred in two years, or on November 13, 1913.

The third amended petition is thus entitled:

"Josephine Garber and Josephine Garber, Administratrix of the Estate of H. S. Garber, Deceased, Plaintiff, v. Missouri Pacific Railway Company, a Corporation, Defendant." This petition is in three counts. The first two is under the state statutes as to deaths occurring by negligence. The third is under the federal Employers' Liability Act (April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. §§ 8657-8665]). The death of plaintiff's decedent (her husband) is alleged to have been on the 13th of November, 1911. The third amended petition was filed December 14, 1915. What became of the first and second amended petitions does not appear. We take it that they were abandoned. The abstract of record before us shows no petition but the third amended petition. The defendant filed motion to strike out the third count of the third amended petition, in form as follows:

"Now comes defendant and moves the court to strike the third count of plaintiff's third amended petition from the files of this court, and as grounds for said motion defendant assigns the following reasons:

"First. Because the proof required under the original petition would be insufficient under the third count of the third amended petition.

"Second. Because the evidence required to support the original petition would not warrant a recovery under said third count.

"Third. Because the original petition is founded on the laws of the state, and the third count of the third amended petition is founded on an act of Congress of the United States, known as the federal Employers' Liability Act.

"Fourth. Because to allow the plaintiff to proceed to trial on said third count would constitute a departure from law to law.

"Fifth. Because the same measure of damages is not applicable to the original petition and to the damages claimed in said third count of the third amended petition.

"Sixth. Because in the said third count of said third amended petition plaintiff has departed from the cause of action set forth in her original petition.

"Seventh. Because to permit plaintiff to proceed to trial on said third count would be to permit her to introduce a new and distinct cause of action, which was barred at the time the said third amended petition was filed, and at the time the prior amended petitions herein were filed, by section 6 of the act of Congress, known as the federal Employers' Liability Act, approved April 22, 1908 [U. S. Comp. St. § 8602].

"Eighth. Because an additional party is made plaintiff by the third amended petition, and the evidence required thereunder is of a different character than that required on the original petition, and the damages are measured by a different standard.

"Wherefore, defendant prays that said third count of said third amended petition be stricken from the files."

On the same day defendant filed its motion to strike out a part of the caption of plaintiff's petition, which motion is as follows:

"Now comes the defendant and moves the court to strike from the caption of plaintiff's third amended petition the following words, `and Josephine Garber, Administratrix of the Estate of H. S. Garber, Deceased,' and for the grounds of said motion assigns the following reasons:

"First. Because the plaintiff has no right under the laws of this state, upon which the first and second counts of plaintiff's third amended petition are based, to sue for the death of her husband in her alleged capacity as administratrix of his estate.

"Second. Because plaintiff, in her representative capacity, is not a necessary party to a complete determination of the matters set forth in the said first and second counts of her third amended petition.

"Third. Because plaintiff cannot, under the laws of this state, sue for the death of her husband in her representative capacity as administratrix of his estate.

"Wherefore, defendant prays that this motion be sustained."

Both of these motions were sustained by the trial court. The bill of exceptions shows no exceptions saved to the action of the court in so sustaining these motions. It is true that in the abstract of record proper it is stated that exceptions were saved to this action of the court, but nothing of the kind is found in the abstract of the bill of exceptions.

The trial court then heard the evidence for plaintiff. The defendant then offered a written stipulation as to facts, and plaintiff followed with rebuttal testimony. At the close of this evidence, the following occurred:

"By Mr. Prince: Plaintiff asks leave to amend first and second counts of their petition, by alleging the fact that Mrs. Josephine Garber has been appointed administratrix of the estate of H. S. Garber, and is now the legally authorized and acting administratrix of the estate of said H. S. Garber.

"By Mr. Corum: Defendant objects for the reason that would constitute a departure from the cause of action alleged in the original petition, and would be the same case which the court has already ruled on, and ruled out on at least two occasions.

"By the Court: Objection sustained. Leave to amend refused.

"To which action of the court the plaintiff then and there excepted and now excepts.

"Plaintiff closes.

"Defendant closes."

The court thereupon gave a peremptory instruction to find for defendant, whereupon the plaintiff took an involuntary nonsuit, and thereafter duly moved to set the same aside, which was by the trial court refused. Plaintiff appealed, and the matters are here. This outlines the case. Other matters of consequence can best be stated in the course of the opinion.

I. The status of the record in this case should be first determined. Appellant urges error upon the part of the trial court in sustaining the two motions, set out in the statement, supra. Of these in order: The motion to strike out the third count is not in the nature of a demurrer to the petition. Its overruling, therefore, became a matter of exception, which must be preserved in the bill of exceptions. A demurrer, or even a motion, which in substance amounts to a demurrer, is a part of the record proper and requires no preservation in the bill of exceptions; but this is not true of other motions. This motion and the exception to its overruling is not preserved in the bill of exceptions. Exceptions have no place in the record proper. It therefore follows that this alleged error has been rendered lifeless by the failure to make and properly preserve the exception. The propriety of the third count in the petition is not really before us for review. The right of review here was lost in the failure aforesaid. Our rulings have been so consistent and of such long standing upon this point that citation of cases may well be omitted.

II. Even if the exception had been well preserved, the action nisi would have to be sustained here, upon the record before us. Nowhere in this record appears either the original petition or any of the amended petitions, prior to the third amended petition. What kind of an action was stated in those petitions (especially in the original one) is totally in the dark, so far as this court is concerned. We are in no position to pass upon the motion without having more before us. There is a presumption of right action upon the part of the trial court, and this presumption must prevail, unless a showing is made which overthrows the presumption. There is no showing in this record. As said, the original petition is not presented...