Rinard v. Omaha, Kansas City & Eastern Railway Co.

• Decision Date: 29 June 1901
• Parties: RINARD v. OMAHA, KANSAS CITY & EASTERN RAILWAY COMPANY, Appellant
• Court: Missouri Supreme Court

64 S.W. 124

164 Mo. 270

RINARD v. OMAHA, KANSAS CITY & EASTERN RAILWAY COMPANY, Appellant

Supreme Court of Missouri, First Division

June 29, 1901

Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

Hall & Hall, Virgil Conkling and J. G. Trimble for appellant.

(1) Plaintiff's amended petition contains separate inconsistent counts or causes of action and the circuit court erred in overruling defendant's motion to compel plaintiff to elect upon which count she would proceed to trial, and in refusing to instruct the jury which count they should take into consideration. Roberts v. Railroad, 43 Mo.App. 289; Enterprise Soap Works v. Sayers, 51 Mo.App. 314; Seiter v. Bischoff, 63 Mo.App. 158; Deering v. Collins, 38 Mo.App. 86; Clements v Yeates, 69 Mo. 625; Nelson v. Brodhack, 44 Mo 599; Ledbetter v. Ledbetter, 88 Mo. 60; Cahny v. Lehman, 93 Mo. 583; Byington v. Railroad, 147 Mo. 673. (2) The second and third counts of plaintiff's amended petition are inconsistent with, a departure from, and state entirely different causes of action from the cause of action stated in the original petition, and the circuit court erred in overruling defendant's motion to strike out said counts. Lumpkin v. Collier, 69 Mo. 170; Stephens v. Railroad, 86 Mo. 221; Parker v. Rodes, 79 Mo. 88; Fields v. Malony, 78 Mo. 172; Scoville v. Glasner, 79 Mo. 452; Heman v. Glann, 129 Mo. 334. (3) The court erred in overruling defendant's motion to require plaintiff to make the several counts in the amended petition more definite and certain. In no count was there a statement of the facts relied upon to establish negligence as required by law. Murdock v. Brown, 16 Mo.App. 548; Wills v. Railroad, 44 Mo.App. 53; Benham v. Taylor, 66 Mo.App. 311; Waldhier v. Railroad, 71 Mo. 514; Curren v. Railroad, 86 Mo. 62; Gurley v. Railroad, 93 Mo. 445. (4) The petition does not state the negligent acts complained of nor whose acts they were, which should be done with a reasonable degree of certainty in order that the defendant may know what charge he is called upon to meet. The petition is therefore fatally defective and the objection to the introduction of any evidence and the motion in arrest of judgment should have been sustained. Wills v. Railroad, 44 Mo.App. 51; Gurley v. Railroad, 93 Mo. 450; Waldhier v. Railroad, 71 Mo. 514; Sullivan v. Railroad, 97 Mo. 113; Benham v. Taylor, 66 Mo.App. 308; Palmer v. Railroad, 76 Mo. 219; Harrison v. Railroad, 74 Mo. 369; Edens v. Railroad, 72 Mo. 212; Troth v. Norcross, 111 Mo. 630; Jacquin v. Cable Co., 57 Mo.App. 340; Pier v. Heinrichoffen, 52 Mo. 333; Moss v. Railroad, 49 Mo. 167. (5) Although in this State a general allegation of negligence is held to be sufficient, yet the petition must state what acts the defendant negligently performed or omitted to perform. The allegation in the petition that defendant was negligent is merely a conclusion of law and not a statement of the negligent act complained of, which is essential and the petition therefore fails to state facts sufficient to constitute a cause of action and the motion in arrest of judgment should have been sustained. Mack v. Railroad, 77 Mo. 232; Chubbuck v. Railroad, 77 Mo. 591; Crane v. Railroad, 87 Mo. 595; Curren v. Railroad, 86 Mo. 62. (6) It can not be inferred that defendant was guilty of some negligent act because the trains collided, but such act must be alleged and proved in order to render defendant liable. There was no such allegation and proof in this case and the demurrer to the evidence should have been sustained. Smith v. Railroad, 113 Mo. 70; Scott v. Robards, 67 Mo. 292; Fuchs v. St. Louis, 133 Mo. 199. (7) The telegraphic orders were improperly admitted as well as all the testimony in relation thereto, for the reason that there was no allegation in the petition of negligence on the part of defendant's train dispatcher in giving them. Evidence should have been required to correspond with the allegations -- been confined to the point in issue (negligence in handling the train), and all evidence not relative to that excluded. Eddy v. Baldwin, 32 Mo. 369; Frederick v. Allgaier, 88 Mo. 598; Hicks v. Railroad, 68 Mo. 329; Buffington v. Railroad, 64 Mo. 246; Gurley v. Railroad, 93 Mo. 455. (8) Plaintiff's instruction number 1 is erroneous for the reason that it permits a recovery if the jury should find that the dispatcher was negligent in giving the orders -- an issue not made by the petition. Fairgrieve v. City of Moberly, 29 Mo.App. 141; Fenwick v. Bowling, 50 Mo.App. 516; Waddingham v. Hulett, 92 Mo. 528. Instruction number 1 is also erroneous in permitting a recovery for $ 5,000 if the collision occurred on account of improper orders. If the orders were improper the negligence was that of defendant in adopting that kind of an order, not of the men handling the train, and recovery could be for compensatory damages only, under sections 2865 and 2866, Revised Statutes 1899, not for a forfeiture under section 2864. Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423; DeBolt v. Railroad, 123 Mo. 496; Senn v. Railroad, 135 Mo. 518. (9) Defendant's refused instruction number 3 submitted to the jury the question of deceased's contributory negligence, and should have been given. Ridens v. Ridens, 29 Mo. 470; Devitt v. Railroad, 50 Mo. 302; Maupin v. Va. Lead Co., 78 Mo. 24; Standifield v. Phoenix Loan Assn., 53 Mo.App. 595; Cameron v. Hart, 57 Mo.App. 142; Evers v. Shumaker, 57 Mo.App. 454; Laughlin v. Gerardi, 67 Mo.App. 372.

Harber & Knight for respondent.

(1) It is well settled in this State, and elsewhere, that the petition may allege the same cause of action in different counts so as to meet any possible state of the proof, and the court will not compel an election between them. Brownell v. Railroad, 47 Mo. 244; Brinkman v. Hunter, 73 Mo. 178; Gas Light Co. v. St. Louis, 86 Mo. 495; Light and Heat Co. v. Doud, 47 Mo.App. 439; Straub v. Eddy, 47 Mo.App. 193; Burbridge v Railroad, 36 Mo.App. 684; Seeter v. Bischoff, 63 Mo.App. 157; Velie v. Newark City Ins. Co., 12 Abb. N. Cas. 309; Blank v. Hartshorn, 37 Hun (N. Y.) 101; Rothchild v. Railroad, 30 N.Y. 642; Smith v. Douglas, 15 Abb. Pr. 266; Collingwood v. Merchants Bank, 15 Neb. 118; Wilson v. Smith, 61 Cal. 209; DeMartin v. Albert, 68 Cal. 277; Cramer v. Oppenstein, 16 Col. 504; Sterns v. Dubois, 55 Ind. 257; Caviness v. Rushton, 101 Ind. 500; Snyder v. Snyder, 25 Ind. 399; Whitney v. Railroad, 27 Wis. 327; Bishop v. Railroad, 67 Wis. 610; La Pointe v. O'Malley, 46 Wis. 35; Bassett v. Shares, 63 Conn. 39; 5 Ency. Pl. and Prac., p. 321. And a general verdict in such case is good if there is one good count. Brownell v. Railroad, 47 Mo. 244; Brady v. Connelly, 52 Mo. 19; St. Louis v. Allen, 53 Mo. 49; Owen v. Railroad, 58 Mo. 394; McKee v. Calvert, 80 Mo. 348; Lancaster v. Ins. Co., 92 Mo. 460. The grounds of recovery in this case were the same in each count, to-wit, that the deceased was rightfully upon the train and that defendant, in the management, handling and running thereof, carelessly and negligently collided the trains thereby injuring and killing plaintiff's husband. The counts must differ, "As the object of more than one count for a single cause of action is to set forth the facts in different lights and aspects. It is not error to sustain a demurrer to a count which is a mere copy of another, or, which requires neither more nor less evidence to establish it than is necessary to establish the former count." Railroad v. Craft, 62 Ind. 390; Leiter v. Jackson, 8 Ind.App. 98; Nevada County, etc., Canal Co. v. Kidd, 37 Cal. 282; Van Lenven v. Lyke, 1 N.Y. 515; Freet v. Railroad, 63 Mo.App. 548. Again, it is urged that the second and third counts of the petition stated different causes of action than the first and was therefore not an amendment but a departure. If this were true, the objection was waived by answering over. Scovill v. Glasner, 79 Mo. 454. But it is not true that the different counts stated different causes of actions. They each stated the same cause of action; for a verdict on either count or a general verdict would be "a complete bar to the prosecution of an action on the others, and where such is the case the cause of action must necessarily be the same." Brownell v. Railroad, 47 Mo. 244. It is apparent that there was no merit in any or all of the defendant's various preliminary motions, but if there had been they were waived by answering. Sanguinett v. Webster, 54 S.W. 570; Holt Co. v. Cannon, 114 Mo. 514; Sauter v. Leveridge, 103 Mo. 615; Scovill v. Glasner, 79 Mo. 449; Frygle v. Hobbs, 42 Mo. 537; Liese v. Meyer, 143 Mo. 547; Cofer v. Riseling, 153 Mo. 633; Paddock v. James, 102 Mo. 226; Bender v. Zimmerman, 80 Mo.App. 137; School Dist. v. Wallace, 75 Mo.App. 317. (2) There was an allegation on the part of the agents, servants and employees of defendant, whilst running, conducting and managing said trains, which covered the acts and orders of defendant's train dispatcher made for the movements of said trains, he being the agent, servant and employee of the company in the management and operation of said trains. The objection that witnesses Shields, Cox and McConnell were not shown to have had the requisite experience to testify as experts, is without merit. These witnesses had each an experience of from seventeen to twenty-five years; this was sufficient. (3) There is no dispute that the trains were conducted, moved and managed by telegraphic orders, from the dispatcher, and that by these orders the trains were controlled. To manage, is defined by Webster, to be "to have under control and direction; to conduct; to guide; to administer; to handle." 6 Am. and Eng. Ency. of Law (2 Ed.), p. 518; 14 Am. and Eng. Ency. of Law (1 Ed.), p. 87; ...