Jones v. Springfield Traction Company
| Citation | 118 S.W. 675,137 Mo.App. 408 |
| Parties | JONES, Respondent, v. SPRINGFIELD TRACTION COMPANY, Appellant |
| Decision Date | 20 April 1909 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Webster Circuit Court.--Hon. Argus Cox, Judge.
AFFIRMED.
Judgment affirmed.
Delaney & Delaney for appellant.
The action of the Greene Circuit Court in quashing the panel of jurors after issue joined and jury sworn was in legal effect a nonsuit and the court erred in continuing the cause. The court upon review should have dismissed said action. The alleged affidavit upon which said action was predicated is in law no affidavit. It does not allege a single fact, hence refuge cannot be taken behind the claim that it was the exercise of a discretion which cannot be reviewed. State v. Craft, 164 Mo. 631; State v. Grennan, 164 Mo. 487. Even if the alleged affidavit be held to have presented a matter requiring the exercise of a sound discretion, the discretion was abused and appellate courts will afford relief where discretion is exercised arbitrarily. Spigener v. State, 62 Ala. 383; State v Pritchard, 15 Nev. 74; R. S. 1879, sec. 1989; Matter of Bennett, 51 Mich. 71; People v. Carrier, 46 Mich. 442; Vogta v. Pelikan, 15 Mo.App. 471. When the selection, which was attempted, did not result in a panel to plaintiff's wishes, she was permitted to reconsider and reject. Vojta v. Pelikan, 15 Mo.App. 471; Spigener v. State, 62 Ala. 383; Matter of Bennett, 51 Mich. 71; People v. Carrier, 46 Mich. 442; State v. Pritchard, 15 Nev. 74. From the nature of the case we believe the defendant was entitled to a cautionary instruction admonishing the jury to be on guard. Johnson v. St. L. Sub. Co., 173 Mo. 307. By inserting the word "merely" in the instruction, the very purpose defendant had in view in asking said instruction was defeated. And the court emphasized by the strongest of implications that in cases of this character the evidence is weighed differently than in ordinary cases between individuals. State v. Austin, 113 Mo. 538; State v. Hobbs, 117 Mo. 620; State v. Cook, 84 Mo. 40.
O. T Hamlin for respondent.
It was in the sound discretion of the trial court to dismiss the panel and continue the cause, and this court will not disturb it unless discretion was abused to the prejudice of appellant. Vojta v. Pelikan, 15 Mo.App. 478; Liese v. Myer, 143 Mo. 547. If the amended petition was a departure from the first, appellant waived right to raise question of departure by pleading over and trying cause on issues thus joined. Scoville v. Glasner, 79 Mo 449; Liese v. Myer, 143 Mo. 547; Bernard v. Mott, 89 Mo. 402.
The plaintiff is a minor. She sues by her next friend, duly appointed and qualified. The action is for damages alleged to have accrued to the plaintiff through personal injuries received while in the act of alighting from defendant's street car. Plaintiff recovered and the defendant appeals. The case originated in the circuit court of Greene county. It was afterwards transferred by change of venue to the circuit court of Webster county, where the trial was had.
The first complaint on appeal relates to the action of the court in discharging the jury after it was empaneled to try the cause. The case coming on for trial, a jury was assembled and duly examined upon the voir dire; the respective parties made their challenges, and it was sworn to try the cause. The hour for the noon recess having arrived, the court thereupon took a recess until two o'clock. Immediately upon the reconvening of court in the afternoon, the plaintiff filed a motion to discharge the jury theretofore empaneled for the reason the deputy sheriff who selected the entire panel was biased and prejudiced against the plaintiff and was, moreover, under the influence of the defendant. This motion the court sustained and discharged the jury. There is no doubt that a challenge to the entire panel will lie for bias or partiality on the part of the officer who summoned the jury. The grounds therefor, upon which the court proceeded in discharging the panel were entirely proper, and unless it appears the court abused its discretion in the matter, its action should be sustained. It is the rule that appellate courts will not review the rulings of the trial court in matters of discretion unless prejudice appears. [Vojta v. Pelikan, 15 Mo.App. 471, 478.] There is naught in the record indicating prejudice to the defendant. On questions of this nature, there are matters and things which frequently appeal to and properly influence the judgment of the trial court in the exercise of a sound discretion that may not appear in the record on appeal. On a charge so serious as that involved in the present instance, an appellate court should hesitate indeed before entering upon a review of a discretionary matter. From aught that appears, it may have been obvious to the court that the jury was unduly friendly to the defendant. The assignment will be overruled.
There are several amended petitions filed in the cause. The defendant moved to strike out the last amended petition for the reason it changed the cause of action declared upon in the original petition. This motion was overruled and defendant excepted thereto. It is now urged that the court erred in not striking out the last amended petition. It will be unnecessary to examine minutely the question whether or not the last amended petition stated a cause of action other than and different from that declared upon in the original. It appears in the original, and all of the amended petitions thereafter, that plaintiff alleged she was injured while alighting as a passenger from defendant's street car. The negligent act relied upon is that the car was started forward by a sudden jerk while she was in the act of alighting, thus precipitating her to the street and causing her injury. After defendant's motion to strike out the last amended petition was overruled, it filed its answer thereto and proceeded with the trial. This action on its part operated to waive its right to have the ruling of the court on the motion to strike out, reviewed. And this is true notwithstanding the fact that it had properly saved its exceptions to the ruling of the court on the motion. Were the defendant sincere in its motion to strike out the last amended petition, it should have stood thereon and not participated in the trial on the amended pleading. Having chosen to join issues thereon, it ought now to be precluded from making the trial court a place of chance and seek to have the trial on the merits, to which it had voluntarily joined issues, set aside for error committed, if at all, in the ruling on the motion. [Scovill v. Glasner, 79 Mo. 449; Liese v. Meyer, 143 Mo. 547, 45 S.W. 282.]
It is next argued that the judgment should be reversed for the reason the petition fails to state a cause of action. Having answered to the petition and participated in the trial, the question for decision relates to the sufficiency of the petition after verdict. The petition alleges, substantially that the plaintiff became a passenger upon defendant's street car at Doling Park, destined to a point on Commercial street, near the intersection of Grant and Commercial streets, and paid her fare to the conductor for the transportation; that when the car was within a reasonable distance of the point mentioned, plaintiff notified the conductor of her desire to alight at the intersection of said streets. It is averred that before the car reached there and while it was still west of the point mentioned about one hundred feet, in obedience to her request, it stopped for the purpose of allowing the plaintiff to alight therefrom, and while she was, with due care, in the act of alighting, after the car had come to a full stop at the point aforesaid, the employees of the defendant negligently caused the same to start with a sudden jerk, thereby causing her to fall violently to the ground, in consequence of which she was seriously injured, etc. It is urged that the petition is fatally defective in that it omits to formally aver that the defendant's servants knew the plaintiff was in the act of alighting at the time she was injured. Now it appears from the allegations that the plaintiff, when within a reasonable distance therefrom, requested the conductor to stop at the point mentioned, and that the car stopped thereat for the purpose of allowing her to alight therefrom. These averments, besides expressly stating that the car was stopped for the purpose of allowing the plaintiff to alight, essentially imply that it was stopped in obedience to her request. When dealing, then, with the reasonable inferences and implications arising from the facts averred, it is obvious the defendant's servants on the car either knew, or by the exercise of care, might have known that plaintiff was in the act of alighting at the time the car was started forward. This is clear for the reason the car was stopped at her request for the purpose of allowing her to alight therefrom. After answer and verdict, the petition is to be construed by allowing all reasonable intendments and inferences of fact in aid of the verdict. When these are allowed, the petition is certainly sufficient, for though it fails to allege that the car did not stop a reasonable time to allow the plaintiff to alight, or that the servants of the defendant knew, or should have known, that she was in the act of alighting, these facts are clearly implied from those averred. If the car was stopped by the employees for plaintiff to alight and she proceeded immediately to do so, as alleged, it is a reasonable inference that those operating the car knew the fact. [McKinstry...
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