Merrill v. City of St. Louis

• Decision Date: 31 October 1884
• Citation: 83 Mo. 244
• Parties: MERRILL et al. v. THE CITY OF ST. LOUIS et al., Appellant.
• Court: Missouri Supreme Court

83 Mo. 244

MERRILL et al.

v.THE CITY OF ST. LOUIS et al., Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Leverett Bell for appellants.

(1) The verdict was excessive. In such case the judgment will be reversed. Benson v. Railroad Co., 78 Mo. 504; Marshall v. Railroad Co., 78 Mo. 610. (2) It was error to admit John Merrill as a party plaintiff during the progress of the trial. He was a necessary party (R. S. § 3468) and could have been brought in by an amendment of the petition. R. S. § 3568. But it was evident Mrs. Merrill was engaged in perpetrating a fraud upon the court in posing as a single woman, and she should have been punished by compelling her to submit to a nonsuit and to resort to a new action. (3) Upon the introduction of John Merrill as a party plaintiff, defendants were entitled to an amendment of the petition. R. S. § 3568. It was error to proceed with the trial under the original petition. (4). The defendants were entitled to a continuance as a matter of course, on a new plaintiff being introduced into the cause. (5) The jury should have been re-sworn after John Merrill was made a party plaintiff. The verdict was not given under the sanctity of an oath and was no verdict. No judgment can be entered upon it. Constitution of Mo., Art. 2, § 28; Bank v. Anderson, 1 Mo. 244. (6) The judgment is a general one against all of the defendants, one of whom, Mrs. Duffer, is a married woman. It is void under the doctrine that a personal judgment against a married woman is void. Higgins v. Peltzer, 49 Mo. 152; Corrigan v. Bell, 73 Mo. 53. The judgment is an entirety, and being bad as to one defendant is bad as to all. Ins. Co. v. Clover, 36 Mo. 392. (7) Judgment should have been arrested. The petition does not state a cause of action in favor of plaintiffs and against Lucinda M. Duffer. (8) The jury were not properly instructed as to the relation borne by John Merrill to the controversy.

Charles T. Noland for respondent.

(1) Appellate courts will not reverse a judgment on the ground that the verdict is excessive, unless it is manifest that injustice has been done. The verdict must be such as to clearly indicate that the jury acted in disregard of the evidence, or from passion, or prejudice, or corrupt motives. Woodson v. Scott, 20 Mo. 272; Barth v. Merritt, 20 Mo. 567; Wells v. Sanger, 21 Mo. 354; Goetz v. Ambs, 27 Mo. 28; Kennedy v. North Mo. R. R., 36 Mo. 351; Graham v. Pacific R. R., 66 Mo. 536; Porter v. Hannibal & St. Joe R. R., 71 Mo. 66; and the cases cited by appellant in 78 Mo. 504 and 610 also sustain this doctrine. (2) Defendants should have raised the point of a defect of parties in their answer or by demurrer. They cannot be relieved here. R. S. §§ 3515, 3519; Reugger v. Lindenberger, 53 Mo. 364; Kerr v. Bell, 44 Mo. 124. Amendments being largely in the discretion of the trial court, this discretion will not be disturbed unless abused. Ensworth v. Barton, 67 Mo. 622; Chauvin v. Lownes, 23 Mo. 223; Taylor v. Ladew, 33 Mo. 205. (3) No amendment of the petition by interlineation or otherwise was necessary, the court having ordered the record to show all that was necessary. Underwood v. Bishop, 67 Mo. 374. (4) The court did not abuse its discretion in refusing a continuance. State v. Klinger, 43 Mo. 127; Calhoun v. Crawford, 50 Mo. 458. The application was not in writing as required by statute. R. S. §§ 3593, 3595, 3597. (5) The defendants did not ask to have the jury re-sworn, and their objection that it was not done will not be heard now. Williams v. Miller, 10 Iowa 344; Arnold v. Arnold, 20 Iowa 273; Hinkle v. Davenport, 38 Iowa 235; Scott v. Moore, 41 Vermont 205; Hardenbough v. Crary, 15 How. Pr. 307; Knowles v. Rexroth, 67 Ind. 59. (6) A judgment against husband and wife for the wife's tort when it is strictly her tort and not done by the husband's coercion is an exception to the rule that a general judgment against a married woman is void. 2 Kent Com. 149; 4 Blackstone Com. 29 m; Meegan v. Gunsollis, 19 Mo. 418; Bishop on Married Women, § 905; Schouler on Husband and Wife, § 134; Wagner v. Bibb, 19 Barb. 321; Keen v. Hartman, 48 Pa. St. 497; Marshall v. Oakes, 51 Me. 308; Hildreth v. Camp, 41 New Jer. L. 306; Cassin v. Delany, 38 N. Y. 178; Daily v. Houston, 58 Mo. 361; Simmons v. Brown, 5 Rhode Island 299. If Lucinda Duffer was a necessary party then the judgment must stand, for the only judgment that could be rendered against her was rendered. But if she was not a necessary party then this court will simply strike out her name from the judgment and allow it to stand. This it has the power to do. R. S. § 3570; Weil v. Simmons, 66 Mo. 617; Cruchan v. Brown, 57 Mo. 38; LaRiviere v. LaRiviere, 77 Mo. 512; Jackson v. Bowles, 67 Mo. 609; Thompson v. Mosely, 29 Mo. 477; Parry v. Woodson, 33 Mo. 347. (7) A judgment will not be reversed in a civil case for want of proper instructions when they were not asked. Express Co. v. Kountz, 8 Wall. 342.

PHILIPS, C.

This is an action to recover damages for injuries sustained by the plaintiff, Hannah M. Merrill, from falling through a coal hole in the sidewalk on one of the streets of St. Louis city. The action was brought in the name of said Hannah alone, as if she were a feme sole. The petition alleged that the legal title to the real estate adjoining the sidewalk, where the injury occurred, was in James M. Duffer, who held the same in trust to the sole use of his wife, Lucinda M. Duffer, who were made co-defendants with the city of St. Louis. It was further alleged that said premises were used by said Duffer and wife, and the hole or opening in the sidewalk was used by them in conveying coal to the cellar under the house; that said coal hole was defective, etc., whereby Mrs. Merrill fell into the same, and was greatly injured. The answer tendered the general issue.

The plaintiffs' proof showed that Mrs. Merrill received injury as alleged; but not of a serious character. In the progress of the trial, it was developed on cross-examination of Mrs. Merrill, that she was at the time of the institution of the suit, and yet is, a married woman. She stated that long prior to the institution of this action her husband had gone off, and she was under the impression that he was dead, and did not know the contrary until on the morning of that day, when he unexpectedly appeared in the city and court house. She did not mention the fact, however, of his appearance. On the development of the fact on cross-examination, the plaintiff, by her attorney, asked leave of the court to amend the petition by making the husband a co-plaintiff. The defendants objected. Thereupon the defendants asked for a continuance of the case, when the following colloquy occurred between the court and defendants' counsel. “The court: Upon what ground do you ask for a continuance? Counsel: Because John Merrill is made a party plaintiff to this action. The court: If you are surprised in any way, or if it will change your defence, or if you are injured in any way in making any defence you may have in this case, I will continue the case, otherwise the trial will proceed. Counsel: We cannot say that. The court: Mr. Clerk, enter the fact upon the record that John Merrill, by order of the court, is made a party plaintiff to this suit as the husband of Hannah Merrill. Let the case proceed.”

The clerk made entry accordingly in the court minutes; but the amendment was not formally made in the petition. Thereafter the trial proceeded without further objection on this account. The jury was not re-sworn after the admission of John Merrill as a co-plaintiff. The jury returned a verdict in favor of plaintiffs against the defendants for the sum of $2000. After ineffectual motions for new trial and in arrest, the defendants appealed to the St. Louis court of appeals, where the judgment of the circuit court was affirmed; and defendants prosecute their appeal to this court.

The controlling questions of law were carefully considered and determined in this case by the court of appeals (12 Mo. App. 466). We are urged to review that decision by appellants' counsel in an argument of much force. Out of respect to him, as well as the importance of the questions of practice involved, we have thought proper to yield to the invitation.

I. It is urged that the circuit court erred in admitting the husband of Mrs. Merrill as a co-plaintiff, especially without terms. It is not disputed that the husband was a necessary party plaintiff as declared in section 3468, R. S.; nor that the trial court had the power, at any stage of the proceedings, in furtherance of justice, to order such necessary party to be brought in by a simple amendment of the petition, as provided by section 3568, R. S. But the contention of counsel is, that although Mrs. Merrill may not have known her husband was living, and may have believed him to be dead when she instituted the action, yet her continued prosecution of it in her name as a feme sole after the discovery of his existence and presence in the city, was a fraud on the court and the administration of justice, which should have been punished by a discontinuance of the action. We admit the apparent justice and force of the suggestion. And had the court seen fit, on this state of the proof to rebuke her misconduct by dismissing her action or continuing it at her costs, we would not have been disposed to reverse the action of the court. But this was a matter resting, in large measure, in the sound discretion of the judge. He saw and heard the plaintiff, and had a better opportunity than this court of judging of her good or bad faith, and determining whether the ends of justice would be promoted by continuing or discontinuing her action. We cannot say that the discretion as exercised was unjudicial. Especially so in view of the fact that we do not perceive that the defendants were in any wise injured or prejudiced by the amendment. They would...