Kuether v. Kansas City Light & Power Co.

• Decision Date: 15 June 1925
• Citation: 276 S.W. 105,220 Mo.App. 452
• Parties: RUTH KUETHER, RESPONDENT, v. KANSAS CITY LIGHT & POWER COMPANY, A CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

276 S.W. 105

220 Mo.App. 452

RUTH KUETHER, RESPONDENT, v. KANSAS CITY LIGHT & POWER COMPANY, A CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

June 15, 1925

Appeal from Circuit Court of Jackson County.--Hon. O. A. Lucas Judge.

AFFIRMED.

Judgment affirmed.

Ryland Boys, Stinson & Mag for respondent.

Wm. C Lucas, John H. Lucas and Ludwick Graves for appellant.

ARNOLD, J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an action in damages for personal injury. Defendant is a corporation engaged in the manufacture and distribution of electricity in the City of Kansas City, Missouri, and maintains electric light poles upon which are stretched wires with necessary appliances, consisting of cross-arms and insulators, for conveying power to various parts of the city.

Plaintiff is a married woman, for many years a resident of Kansas City and lived in the near vicinity of the place where the accident recited in the petition occurred. It is alleged that on August 14, 1922, shortly before noon, plaintiff was walking north on the east side of Main Street between Thirty-sixth and Thirty-seventh streets in said city and that she was injured by the falling of an object from the cross-arms of an electric light pole owned by defendant. The testimony shows that said pole was located between the sidewalk and the curbing within the parking space, the cross-arms extending over the sidewalk. Prior to the date of the injury, defendant had been moving the poles to a new position as a result of the widening of Main Street. Shortly before the accident on said day plaintiff had passed upon the sidewalk to the home of a friend at the southeast corner of Thirty-sixth and Main Streets, and had gone with her friend to a grocery store near the corner of Thirty-seventh and Main Streets. As they reached a point directly under the second pole on the east side of Main Street south of Thirty-sixth, an object fell from the pole striking plaintiff on the arm and wrist.

The evidence shows that prior to and at the time of the injury, employees of defendant were working upon the cross-arms attached to said pole; that they were engaged in tying a wire to a glass insulator, a part, or all of which fell and struck plaintiff. It is in evidence that the east cross-arm extended nearly across the sidewalk, and at the time carried three insulators of dark colored glass; that defendant's employees were tying the insulator farthest east from the pole; that while plaintiff was passing thereunder, the object fell which first struck her in the arm and then on the wrist and on the back of her right hand and completely severed the tendons leading to the first and second fingers; that it partly severed the tendon of the third finger, producing a deep cut across the back of her hand, and there was testimony to the effect that her arm and hand are permanently crippled.

The negligence charge in the petition is: ". . . the defendant negligently caused and permitted an object to fall from one of its poles, which plaintiff is informed and believes to be a glass insulator; that said object struck this plaintiff on the back of her right hand and wrist with great force and violence. . . ."

Defendant filed an answer which it afterwards withdrew and moved the court to require plaintiff to make her petition more definite and certain, seeking to require her "to state how and by what means and in what manner the object mentioned fell and what the object was, giving the size and description of the same, and to specify specifically the negligent acts upon which she bases her petition."

This motion was overruled and defendant then filed answer admitting its corporate status and otherwise making general denial. Further the answer pleads contributory negligence in that plaintiff "knew or ought to have known, and saw, or ought to have seen, in due time the conditions as mentioned in said petition, and so knowing and so seeing, said fact directly caused her injury." Upon the pleadings thus made the cause went to trial to a jury. Verdict was for plaintiff in the sum of $ 5000. Motions for new trial and in arrest of judgment were unavailing and defendant appeals.

In support of its appeal defendant urges that the court erred in refusing to sustain its motion to make the petition more definite and certain, in that the petition wholly fails to state a cause of action and fails to charge any negligence of defendant.

We think that by filing its answer and later, by permission of the court, filing its motion to make more definite and certain (which was overruled), then filing its term bill of exceptions and thereupon answering over, defendant has placed itself outside the right to urge this point now. This question arose and was determined against defendant's contention in Ewing v. Vernon County, 216 Mo. 681, 685, 116 S.W. 518. The court therein stated that an answer waives such motion whether filed before or after the motion. The opinion states: "But, taking the answer as withdrawn before the motion, and as refiled after the motion was overruled, the defendant should have stood on his motion as to the second count. By refiling his answer he took the life out of his exception on appeal; for it has become a commonplace of appellate procedure that answering over waives a motion to make more specific." [White v. Railroad, 202 Mo. 539, 101 S.W. 14, and cases cited.]

It has been held and is the rule that faults in a petition except the cardinal one of stating no cause of action and lack of jurisdiction, are waived whenever in the evolution of a lawsuit, the case once advances to the stage of joinder of issue on the facts pleaded. Such joinder, in effect, is a challenge on the facts alone and is a notice that defendant accepts the gauge of battle on the facts, as presented by the petition, and accepts the chances of a trial on such issue. When defendant, as in the case at bar, refused to stand on its motion to make more definite and certain, it took the chance of winning or losing on the issue presented by the petition. There is a long line of decisions in support of this rule.

Defendant seems to place much dependence upon the ruling in Van Bibber v. Fruit Co., 234 S.W. 356, but we do not find that case to be a counterpart of the one at bar. There the court sustained a motion to make the petition more definite and certain and plaintiff refused to amend, whereupon the trial court made an order dismissing the petition. The judgment was affirmed on appeal. Clearly that case is not in point here.

We think the point urged was determined in Sperry v. Hurd, 267 Mo. 628; where it is said:

"Plaintiffs in error are not now in a position to urge as error the action of the court in overruling their motion to make the petition more definite and certain. This point was waived when they answered over and went to trial upon the merits. [Sauter v. Leverige, 103 Mo. 615; State ex rel. v. Bank, 160 Mo. 640; Dakan v. Chase & Son Mer. Co., 197 Mo. 238; Ewing v. Vernon County, 216 Mo. 681.] In the main opinion in the case of Shohoney v. Railroad, 223 Mo. 649, l. c. 673, an attempt was made to overrule the above cases on the point in question, but since the opinion as to that point did not receive a majority vote the above cases cited are to be considered as announcing the correct rule."

However, as above stated, answering over after motion to make more definite and certain is overruled, does not waive the objection to the petition to the effect that it states no cause of action. This objection is urged in the case at bar as one of the reasons why judgment should be reversed. This objection reverts to the wording of the charge of negligence in the petition that defendant "negligently caused and permitted an object to fall from one of its poles which plaintiff is informed and believes to be a glass insulator; that said object struck this plaintiff on the back of the right hand and wrist with great force and violence," etc.

It must be conceded this is a proper pleading as a general allegation of negligence. The petition does not charge, nor does it attempt to charge, specific acts of negligence. A similar situation arose in the case of Price v. Railway Co., 220 Mo. 435, and in that case the Supreme Court said, l. c. 454:

"Does this petition charge specific acts of negligence? We think not. The only charge is that 'the defendant carelessly, negligently caused and permitted the train on which plaintiff was riding as a passenger, to come in violent collision with another train of defendant's, said other train being on said Twelfth Street and on said incline as aforesaid; that said collision was occasioned without any fault on the part of the plaintiff, but by reason of the negligence as aforesaid of the defendant.' "This to our mind is a charge of general negligence. Had the petition averred a negligent collision of the two trains, and then proceeded to state that such collision was occasioned by the negligence of the gripman in the operation of the car, or the negligence of the conductor in the operation of the train, and pointed out wherein they or either of them had been negligent, or had it charged a negligent failure to use proper appliances and pointed out the insufficient appliances; or had it charged that the collision was due to some negligent condition of the track, naming, and pointing out such, or other similar specific acts, then there would have been specific negligence." [See, also, Johnson v. Railway Co., 104 Mo.App. 588, 78 S.W. 275.]

In the latter case the plaintiff was engaged in hauling trash from the ground floor of a building. Carpenters were working on the upper floors using a crow bar as one of the tools therefor. The crow bar fell from...