Jackson v. Kansas City Bolt & Nut Co.

• Decision Date: 29 November 1911
• Parties: JACKSON et al. v. KANSAS CITY BOLT & NUT CO.
• Court: Missouri Supreme Court

141 S.W. 1128

238 Mo. 656

JACKSON et al. v. KANSAS CITY BOLT & NUT CO.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

Rehearing Denied December 23, 1911.

1. APPEAL AND ERROR (§ 194) — PLEADINGS — REVIEW — QUESTIONS NOT RAISED AT TRIAL.

Where no demurrer was filed or motion to strike out special matter pleaded in the answer in connection with a general denial, the sufficiency of defendant's answer as a pleading is not in issue.

2. PLEADING (§ 409) — INSUFFICIENCY — OBJECTIONS TO EVIDENCE.

Where an improper defense is coupled with a general denial, and the new matter is put in issue by a reply, plaintiff, though not having attacked its sufficiency by demurrer or motion to strike, may raise the question by objecting to evidence to prove the same, or to instructions grounded on such defense.

3. APPEAL AND ERROR (§§ 289, 292, 501, 502) — RECORD — PRESERVATION OF ERROR — BILL OF EXCEPTIONS.

Errors, if any, in giving instructions overruling a motion for a new trial, or excluding competent proof, are mere matters of exception, and can only be preserved by bill of exceptions and then only when covered by a motion for a new trial and by exception saved in the bill to the overruling of such motion.

4. APPEAL AND ERROR (§ 584) — RECORD — ABSTRACT — CONTENTS.

An abstract of record on appeal mingling matter of exception and matter of record without earmark, caption, headnotes, or any suggestion of where the one or the other begins or leaves off is insufficient.

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by John T. Jackson and another against the Kansas City Bolt & Nut Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

L. T. Collier, for appellants. Lathrop, Morrow, Fox & Moore, for respondent.

LAMM, J.

Arthur Jackson (unmarried) and Grover Hammond were minors in defendant's employ on March 27, 1907. On that day in defendant's shop at Sheffield, Grover in anger smote Arthur above the ear with an iron bolt, wherefrom Arthur languished and presently died. Plaintiffs, parents of Arthur, sue defendant in three counts, each praying judgment for $10,000 and sounding in tort. The gravamen of the first is defendant's wrongful and negligent employment of Grover to work with Arthur (said Grover being a person of weak and unsound mind, incompetent, dangerous, and apt to do bodily harm to others), he, Grover, being negligently retained in defendant's employ, for that it knew him to be incompetent, unsafe, and dangerous and apt to do bodily harm to others, etc. The third is like unto the first with variation of allegation immaterial here. The court took the first and third counts from the jury by instructions in the nature of demurrers at the close of plaintiffs' case; but at the same time refused to take the second count from the jury. Attending to the second count, it charges, in substance, that Arthur was employed by defendant at the same time it employed Grover; that the latter was of a weak and unsound mind, incapable of judging between right and wrong, and that defendant was well aware of such mental unsoundness and incapacity at the time; that on or about March 27, 1907, defendant through its superintendents and foremen, having authority over both youths, negligently ordered and directed Grover to "hit and knock down any of the employés of defendant" molesting him in the performance of his duties as servant of defendant, or any one who should interfere with the performance of such duties. Thereupon, on the direction of such agents, then and there engaged in the prosecution of the business of defendant, Grover slipped behind Arthur while the latter was in the line of his duty as defendant's servant, and dealt him a mortal wound on the head with an iron bolt. Defendant answered by a general denial and other defenses immaterial to a determination of this appeal. Plaintiffs' reply denied the new matter in the answer. On issues so framed by that answer on the second count, the jury found for defendant, and plaintiffs come up by appeal, assigning error (1) in the giving of instructions; (2)...