Lindsey v. American Car & Foundry Co.

• Decision Date: 07 May 1929
• Docket Number: No. 20510.,20510.
• Court: Missouri Court of Appeals
• Parties: LINDSEY v. AMERICAN CAR & FOUNDRY CO.

16 S.W.2d 615

LINDSEY v. AMERICAN CAR & FOUNDRY CO.

No. 20510.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by John S. Lindsey against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

SUTTON, C.

This is an action for personal injuries. The original petition was filed on October 1, 1926. Afterwards, plaintiff, by leave of court, filed an amended petition. Defendant filed a motion to strike out the amended petition. The court overruled this motion. Defendant declined to plead further. Upon inquiry of damages, the court gave judgment in favor of plaintiff for $3,000. Defendant appeals. No bill of exceptions was filed. The original petition, appearing in the abstract here as of the record proper, alleges: "That on or about the 3d day of June, 1926, plaintiff was an employé of defendant, and while engaged within the line and scope of his employment for said defendant at its factory and place of business in the city of St. Louis, Missouri, working as a car carpenter on a Gondola car at said place, he was seriously and permanently injured as a direct and proximate result of the negligence and carelessness of the defendant in failing to exercise ordinary care to furnish plaintiff a reasonably safe place in which to work, and in failing to exercise ordinary care to furnish plaintiff reasonably safe tools and appliances with which to do said work, and in negligently and carelessly failing and omitting to warn plaintiff of the danger of a door on one of defendant's said Gondola cars not being hinged, and that same was likely to fall upon and injure plaintiff while engaged in doing his said work for defendant." The ground of the motion to strike out the amended petition, as shown in the abstract, is that the original petition wholly fails to state facts sufficient to constitute a cause of action, and that, therefore, any cause of action stated in the amended petition must necessarily be and is a new cause of action.

As the sole ground for reversal of the judgment defendant urges here that, since the original petition wholly fails to state a cause of action, it is therefore not subject to amendment. No bill of exceptions having been filed, the question raised is not properly before us for review. Bick v. Dry, 134 Mo. App. 589, 114 S. W. 1145; Moore v. Leach (Mo. App.) 14 S.W.(2d) 21; Briscoe v. Metropolitan Street Ry. Co., 222 Mo. 104, 120 S. W. 1162; Westinghouse Electric & Mfg. Co. v. Tweedle, 210 Mo. App. 510, 240 S. W. 863. We are of the opinion, however, that the original petition does not wholly fail to state a cause of action; indeed, we regard it as good against a general demurrer. That it is amendable there ought to be no doubt. Mack v. St. Louis, Kansas City & Northern Ry. Co., 77 Mo. 232; State ex rel. Hopkins v. Daues (Mo. Sup.) 6 S.W.(2d) 893; Kramer v. Kansas City Power & Light Co., 311 Mo. 369, 279 S. W. 43, loc. cit. 49; McMath v. Holekamp Lumber Co. (Mo. App.) 259 S. W. 843; Rueter v. Terminal R. Ass'n (Mo. App.) 261 S. W. 713; Timmermann v. St. Louis Architectural Iron Co. (Mo. Sup.) 1 S.W.(2d) 791; Kieth v. American Car & Foundry Co. ...