Murray v. De Luxe Motor Stages of Illinois

• Citation: 133 S.W.2d 1074
• Decision Date: 05 December 1939
• Docket Number: No. 24804.,24804.
• Parties: MURRAY v. DE LUXE MOTOR STAGES OF ILLINOIS.
• Court: Court of Appeal of Missouri (US)

133 S.W.2d 1074

MURRAY v. DE LUXE MOTOR STAGES OF ILLINOIS.

No. 24804.

St. Louis Court of Appeals. Missouri.

December 5, 1939.

Appeal from St. Louis Circuit Court; Thomas J. Rowe, Jr., Judge.

"Not to be reported in State Reports."

Action by Mae Murray against De Luxe Motor Stages of Illinois, for injuries received by plaintiff when bus on which she was riding was driven off paved highway. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Thompson, Mitchell, Thompson & Young, R. Forder Buckley, and Richmond C. Coburn, all of St. Louis, for appellant.

William R. Schneider, of St. Louis, for respondent.

BECKER, Judge.

This is an action for damages for injuries alleged to have been sustained by plaintiff on February 10, 1935, while riding as a passenger in one of defendant's buses, when the said bus was driven off the paved highway and into a ditch alongside thereof near the city of Edwardsville, state of Illinois. Plaintiff recovered judgment and defendant in due course appeals.

Plaintiff's petition was filed on August 19, 1935, in the Circuit Court of the City of St. Louis. On September 11, 1935, defendant filed as its answer a general denial.

The case was set for trial on Monday, May 17, 1937. When the case was called for trial in division one of the Circuit Court of the City of St. Louis defendant asked leave of court to file an amended answer, by which answer defendant asserted that the accident had occurred in the state of Illinois and set up that under the decisions of the Supreme Court of the State of Illinois, which were set out in its answer, it was necessary that plaintiff specifically allege in her petition that she was free from contributory negligence at the time of the accident; that plaintiff did not set forth such allegation in her petition, and pleaded a statute of the state of Illinois which barred an action of this character within two years, and pleaded certain Illinois cases which ruled that the filing of a petition does not arrest the running of the statute of limitations, and that inasmuch as the plaintiff had not alleged that she was free from contributory negligence in the case on or before a time two years subsequent to the happening of the accident, her cause of action was barred by the statute of limitations of the state of Illinois, and was, therefore, also barred in the state of Missouri.

The trial court denied the defendant leave to file such amended answer, calling attention to the fact that the petition had been filed in August, 1935, and had been brought to issue at the return term in the month of September, 1935, when defendant filed its answer, consisting of a general denial; that the case had been at issue since that date until May 17, 1937, the day the case was set for trial when defendant asked leave to file an amended answer. The court also adverted to the fact that the defendant's counsel had two weeks notice of the setting of the case "and, further, that the statute of limitations being pleaded as a defense at this time, it is admitted by counsel for the defendant that it could not have been pleaded two years ago at the time the general denial was filed. Because of this situation this court is going to deny the defendant leave to file his amended answer." Counsel for defendant saved his exception to the ruling of the court. On May 18, 1937, the case was assigned by division one to division thirteen for hearing before a jury. Counsel for defendant again asked leave to file the amended answer, which was denied on the ground that the same matter had theretofore been passed upon by the presiding judge in division one. Counsel for defendant again saved his exception.

There is no contention but that under the pleadings upon which the case was tried plaintiff made out a case for the jury. In this situation we do not set out more of the facts in the case. Such facts as are essential for passing upon the assignments of error raised here by appellant will be noted in the course of the opinion.

Appellant contends that the trial court erred in refusing to allow defendant to file its amended answer, and cites in support thereof section 825, Rev.St.Mo.1929, Mo. St.Ann. § 825, p. 1101, which provides that "a party may be allowed, on motion, to file an amended or supplemental petition, answer or reply, alleging facts material to the cause, or praying for any other or different relief, order or judgment."

It has been held repeatedly that amendments under this section of the statute are largely within the discretion of the trial court (State ex rel. Bankers' Life Co. of Des Moines, Iowa v. Reynolds, 277 Mo. 14, 208 S.W. 618; Joyce v. Growney, 154 Mo. 253, 55 S.W. 466), and this discretion will not be interfered with unless it is apparent that there has been an abuse thereof by the trial court. Carr v. Moss, 87 Mo. 447. While both by this statute and by the construction put thereon by courts of last resort, amendments to pleadings are to be liberally allowed, yet always conditioned that the proposed amendment shall result in no substantial change in the defense made necessary, or of the cause of action. Carter v. Dilley, 167 Mo. 564, 67 S.W. 232; Southern Real Estate & Financial Co. v. Surety Co., Mo. Sup., 184 S.W. 1030; Schwab Clothing Co. v. Railway Co., 71 Mo.App. 241.

In the case before us defendant was content to file as its answer a general denial, under which the benefit of any statute of limitations was not available, for a plea of the statute of limitations in defense is an affirmative one and must be pleaded. It is apparent, therefore, that the amended answer sought to be filed by defendant which set up a plea of the statute of limitations was an amendment of such character as to constitute a substantial change in the defense. In this situation, under the record as it stands, the trial court cannot be held to have abused its judicial discretion in denying defendant a right to file such an amended answer.

Next appellant contends that the trial court erred in permitting plaintiff's physician to testify, over defendant's objection, to an item of special damages alleged to have been suffered by plaintiff as the result of her injuries, which item had not been specifically pleaded in plaintiff's petition. The point is well taken.

This assignment of error arises out of the following situation: Plaintiff's petition, upon which the cause was tried, set out that plaintiff suffered the following injuries:

"Her face, chest, right ankle, right knee, left ankle, right mammary gland, were severely bruised, contused, lacerated, sprained, dislocated, swollen and infected; the organs of her chest were injured so that breathing was painful and difficult; her neck and back were wrenched and sprained; her head was struck, and she was caused to become unconscious and suffer a concussion of the brain; she suffered a severe traumatic injury of the soft structures of the chest, causing a large hematoma to form in her right breast, necessitating a painful operation to remove the said...