Landers v. Quincy, O. & K. C. R. Co.

• Citation: 114 Mo. App. 655,90 S.W. 117
• Court: Court of Appeal of Missouri (US)
• Decision Date: 06 November 1905
• Parties: LANDERS v. QUINCY, O. & K. C. R. CO.

90 S.W. 117

114 Mo. App. 655

LANDERS v. QUINCY, O. & K. C. R. CO.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. PLEADINGS—AMENDMENT.

There is no error in allowing an amendment of the petition at the close of the evidence, the evidence justifying it, and there being no affidavit of surprise, as required by the statute.

2. PLEADING — PETITION — SEVERAL COUNTS — REPUGNANCY.

A petition may, without being open to the charge of repugnancy, plead a single cause of action in several counts, to meet any possible state of the proof.

3. APPEAL—AMENDING PLEADINGS.

Where plaintiff voluntarily, and not because required by the court so to do, dismisses a count, making the giving of an instruction relating thereto only error, he may not amend the petition on appeal so as to restore the count, and thus obviate the error: though, if the error be harmless, judgment need not be reversed.

4. SAME—HARMLESS ERROR.

Error in submitting an issue outside the pleadings after the dismissal of a count of the petition cannot be held harmless; it being also outside the evidence.

Appeal from Circuit Court, Grundy County; P. C. Stepp, Judge.

Action by Bert Landers against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Hall & Hall and J. G. Trimble, for appellant. Harber & Knight, for respondent.

BROADDUS, P. J.

While plaintiff and other employés of defendant engaged in repairing its tracks were riding on one of its said tracks in a hand car near Coffeysburg, in Daviess county, at the rate of from five to eight miles per hour, said hand car became derailed, and plaintiff received severe injuries.

The plaintiff's case was set out in two counts in his petition. The first count, in substance, alleges negligence on the part of defendant in furnishing for plaintiff's use an old, worn, dilapidated, and out of repair hand car, wholly unsuitable and unfit for the purposes for which it was provided, and by reason thereof the same became derailed, causing plaintiff's injuries. The second count alleges that, by reason of the defective condition of said car, its unnecessary shaking and wabbling, one of certain lining bars carried upon said car was shaken therefrom, the end thereof catching under the end of a tie, the other striking the wheel on the other end of the car, thus derailing the same. Second. That said lining bars and other tools were negligently and carelessly placed upon said car, and that the carrying of said lining bars in the loose and unfastened manner was the cause of one of them falling in front of said car, thereby causing its derailment, which resulted in injuring plaintiff. At the close of plaintiff's evidence, the defendant moved the court to compel plaintiff to elect on which count he would proceed. The plaintiff insisted that he was not compelled to so elect, and the court said, "motion overruled at this time." At the close of all the evidence, plaintiff was permitted to amend the second count of his petition by inserting the word "aforesaid," which had been omitted, and inserting the following: "And by reason of the unsafe condition of said hand car, the jostling and wabbling thereof." Defendant objected to said amendment, and insists that it was error to permit the same at that stage of the proceedings. But, as there was no affidavit of surprise, as required by the statute, and as the evidence justified the amendment, we do not think the court committed any error in that respect. The plaintiff then, on his own motion, elected to stand on the second count of his petition.

We gather from the record that it was the opinion of the court and both parties to the suit that plaintiff was required under the law to make an election between the two counts of his petition. However, that was a mistake, as the allegations of the first count are entirely consistent with those of the second. "A plaintiff may plead a single cause of action in as many...