McAdow v. Kansas City Western Ry. Co.

• Decision Date: 02 March 1914
• Citation: 164 S.W. 188,192 Mo. App. 540
• Parties: McADOW v. KANSAS CITY WESTERN RY. CO.
• Court: Missouri Court of Appeals

164 S.W. 188

192 Mo. App. 540

McADOW v. KANSAS CITY WESTERN RY. CO.

Kansas City Court of Appeals. Missouri.

March 2, 1914.

1. PLEADING (§ 420)—CURE BY SUBSEQUENT PLEADING—DEPARTURE BY AMENDMENT.

In an employé's action for injuries, in which the original petition alleged a cause of action under the common law, conceding that amended petitions alleging causes of action under a Kansas statute and under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), respectively, constituted a departure, and that ordinarily it would have been a fatal error to have rendered judgment on the second amended petition, defendant waived this objection by answering such petition on the merits, and going to trial thereon.

2. COURTS (§ 97)—DECISIONS OF UNITED STATES COURTS AS AUTHORITY IN STATE COURT.

The decisions of the United States Supreme Court are controlling in actions under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

3. PLEADING (§ 420)—CURE BY SUBSEQUENT PLEADING—DEPARTURE BY AMENDMENT.

Whether an objection to an amended petition stating a cause of action under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), on the ground that it was a departure from the original petition alleging a common-law cause of action, was waived by answering to the merits, and going to trial on the amended petition, was governed by the rules of

practice and pleading of the state in whose courts the action was brought.

4. COMMERCE (§ 27) — ELECTRIC CARS — "INTERSTATE CARRIER."

Where, though a traffic contract between an interurban electric railway company and a street car company provided that the street car company would receive the interurban company's cars at a point in Kansas, and transport them over its tracks into Missouri, and then back to the point of receiving them, where they were to be delivered to the interurban company, the street car company merely furnished the electric power, and placed one of its conductors in charge of the car, and the interurban company's motorman, employed, discharged and paid by it and under its orders, ran the cars over the street car tracks into Missouri, and back again, passengers were received in each state for points in the other, and the interurban company ran the cars over the whole line on its schedule and time-table, the interurban company was an interstate carrier engaged in interstate commerce within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]).

5. APPEAL AND ERROR (§ 1050)—HARMLESS ERROR—ADMISSION OF EVIDENCE.

In an action for injuries against an electric railway company which denied that it was engaged in interstate commerce, the testimony of the president of a street railway company over whose tracks the cars of the electric railway company were run into Missouri, that he did not hire plaintiff, who operated his car over the street car tracks, as motorman, could not have harmed defendant, where the traffic agreements between the two companies were afterwards admitted in evidence, and expressly provided that the electric railway company should pay the wages of its trainmen while operating its cars on the street railway tracks, though as between the companies they were to be regarded for the time being as employés of the street railway company.

6. COMMERCE (§ 27)—ELECTRIC RAILROAD— EVIDENCE.

Where an electric railway company whose cars were run into Missouri over a street car company's tracks denied that it was engaged in interstate commerce, the traffic agreements between the two companies, though they provided that the street car company should operate the cars with its own servants over its tracks, did not prevent evidence that in fact the electric railway company operated the cars with its own motormen.

7. COMMERCE (§ 27)—ELECTRIC RAILROAD— STATUTORY PROVISIONS—"RAILROAD."

An interurban electric railroad running through more than one state, carrying passengers or freight, is engaged in interstate commerce, and is a railroad within the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), and, while it is doubtful whether a street railway is a railroad within that act, an electric interurban railway which transfers its cars, with passengers therein, from its track to the track of a street railway, and transports them over such track into another state, dividing the fare collected for that part of the transportation covering the street railway tracks, is a railroad within the act; the use of the street railway tracks being no more than the use of a terminal facility.

Appeal from Circuit Court, Jackson County; Jas. Slover, Judge.

Action by George B. McAdow against the Kansas City Western Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

C. F. Hutchings and McCabe Moore, both of Kansas City, for appellant. Atwood & Hill, of Kansas City, for respondent.

ELLISON, P. J.

Defendant is a corporation, and, as plaintiff charges, is maintaining and running a line of cars between Kansas City, in the state of Missouri, and Leavenworth, in the state of Kansas, which cars are propelled by electricity, and are known as electric cars. Plaintiff was motorman engaged in operating one of the passenger cars, and was injured in a collision with another car coming in an opposite direction to that in which plaintiff was going. He brought this action for damages, charging that defendant was negligent in giving such orders as caused the cars to meet at full speed. He recovered judgment in the trial court.

An important preliminary question, regardless of the merits, has been presented for determination. The original petition appears to be an ordinary common-law action. It is alleged therein that defendant was "a common carrier of passengers for hire, owning, operating, and maintaining a line of electric railway extending from Leavenworth, Kan., in a southeasterly direction through the town of Wolcott, Kan., south into and through Kansas City, Kan., and into Kansas City, Jackson county, Mo." It was also alleged in that petition that on the 18th of December, 1911, plaintiff "was operating a car belonging to defendant known as passenger car No. 21, running in a northerly direction between Kansas City, Kan., and Leavenworth, Kan.," when the collision occurred.

Afterwards plaintiff filed an amended petition, in which he alleges that his cause of action accrued in the state of Kansas, and that it was founded upon the statute of that state which is duly pleaded. Defendant moved to strike out this amended petition, on the ground that it was a departure from the original. But before a ruling was had he asked and obtained leave to file a second amended petition, in which he alleged that defendant was an interstate railroad, and based his cause of action on the law of Congress known as "An act relating to the liability of common carriers by railroads to their employés in certain cases," commonly known as the "Employers' Liability Act." Defendant then filed a motion to strike out this petition, on the ground that it was a departure from the original and from the first amended petition. This motion was overruled, and defendant took and preserved its exception to the ruling. Afterwards defendant filed its answer to the last petition, consisting of a general denial, a plea of contributory negligence, and the departure, and the cause was tried with the result as stated above.

Defendant now insists that plaintiff's first amended petition was a departure from law to law, that is, from the common law in the original to the statute of Kansas in the amendment, and again a departure from law to law, in that the second amendment was an abandonment of the causes of action as alleged in the two preceding petitions.

We will concede the departure as claimed by defendant, and that ordinarily it would be a fatal error to allow plaintiff to recover judgment on a cause of action different from that originally set up. But, under the rules of practice and pleadings in this state, defendant waived the objection by answering to the merits of the action finally pleaded, and going to trial thereon. Scovill v. Glasner, 79 Mo. 449; Liese v. Meyer, 143 Mo. 547, 556, 45 S. W. 282; Dakan v. Chase Mercantile Co., 197 Mo. 238, 270, 94 S. W. 944; Cook v. Globe Printing Co., 227 Mo. 471, 525, 127 S. W. 332.

That such objection may be waived, and a proper trial be had, and a valid judgment be rendered would appear to be clear. The court had jurisdiction of the action as finally alleged, and the parties appeared. If the defendant had made no objection to the second amended petition, or, if making objection, had not taken any exception to the court's ruling, as by the rules of practice it is required to do, such course would certainly have been a waiver of any error in that respect. And, under the rules of practice and pleading in this state, defendant in effect did that.

But defendant insists that the judgment rendered was obtained under the provision of the law of Congress, and that the decision of the Supreme Court of the United States, and not the state court, must be regarded in determining the question. We grant this, and our opinion that, in matters of pleading and practice, the rule applied in the state court where the trial is had controls is founded on...