Appeal from Circuit Court, Jasper County; Ray E. Watson, Judge.
"Not to be published in State Reports."
Action by Charles Roberts against the City of Lamar, a municipal corporation. From an adverse judgment, plaintiff appeals.
Judgment reversed and cause remanded, with directions.
SMITH, Judge.
The appellant's abstract of the record concisely states the matters at issue in this case, therefore we quote the abstract of the record as set out therein, as follows:
"This cause was duly instituted on November ___, 1934, by filing petition in the Circuit Court of Barton County, summons being duly issued and served, returnable to the regular January, 1935, term of the said court. On January 18, 1935, during said term, change of venue was duly taken and said cause transferred to the Circuit Court of Jasper County, at Carthage. Thereafter, defendant moved to require plaintiff to state more definitely the facts concerning his employment as a relief worker. Thereafter plaintiff filed his Second Amended Petition, which is as follows, caption and signature omitted:
"Petition
"Plaintiff states that defendant is a municipal corporation and city of the fourth
class in Barton County, Missouri; that on or about October 8, 1934, he was engaged under the direction and superintendency of an employee of the defendant, trimming trees so as to keep them from coming in contact with electric light wires, owned, operated and controlled by the defendant, and while he was in a tree near the sidewalk along Walnut Street in said city, engaged in sawing off a limb, the defendant, its agent, foreman and superintendent over him and other workmen, carelessly and negligently caused, allowed and permitted the large limb which he was sawing to rebound and be thrown against him and injure him as hereinafter set out.
"Plaintiff states that at said time he was employed by the emergency relief committee for Barton County, which committee was appointed by the Missouri emergency relief administration pursuant to the Federal Emergency Relief Act of 1933, 15 U.S.C.A. §§ 721-728, whereby plaintiff was employed at a stipulated wage to perform labor for such committee wherever it might designate; that the defendant arranged with said committee to have plaintiff and other workmen similarly employed to perform work for defendant in connection with the operation of its electric light plant as above set out, and that the defendant furnished a foreman who directed their labor therein and places thereof, and that said foreman was at all times acting within the scope of his employment for defendant. Plaintiff states that defendant had nothing to do with the administration of the relief funds, by either the federal, state or county committee, and had no control over said committees or funds; that plaintiff's wages came entirely from said committee and not from defendant; that at said time the defendant was not performing any governmental function, but was performing a proprietary function in the operation of its said light plant. Plaintiff further states that in performing such work he was not receiving charity, but was receiving a daily wage for labor performed. Plaintiff further states that his injuries were not caused by any negligence on the part of the committee which employed him, but solely from the negligence of the defendant.
"Plaintiff further states that he has notified the mayor of the defendant, in writing, of said accidental injuries, and that he would claim damages from the defendant for the same.
"(The petition then alleges in detail the acts of negligence of defendant, in negligently directing plaintiff to take a position of danger, in failing to take proper precautions to prevent the limb from falling upon him, and in failing to warn plaintiff of such danger known to defendant and unknown to plaintiff, and that plaintiff was injured as a result of such negligence. The petition further sets out the injuries in detail, and prays for damages in the sum of $30,000.00. Said amount was later by amendment reduced to $7,000.00.)
"Thereafter, defendant filed motion to strike parts of said petition, which motion is as follows, caption and signature omitted:
"Motion to Strike
"Comes now defendant and moves to strike from plaintiff's second amended petition the following matter, to-wit:
"`That at said time the defendant was not performing a proprietary function in the operation of its said light plant. Plaintiff further states that in performing such work he was not receiving charity but was receiving a daily wage for labor performed.'
"For cause defendant says that said matter states mere conclusions of the pleader and does not aver facts.
"Motion to Strike Sustained
"Thereafter, on July 20, 1935, during the June, 1935 term of said court, said motion to strike was duly taken up and considered by the court, and sustained, to which ruling plaintiff duly excepted and still excepts.
"Thereupon, defendant filed its demurrer to said petition as follows, caption and signature omitted:
"Demurrer
"Comes now the defendant and demurs to plaintiff's second amended petition for the reason that said petition does not state facts sufficient to constitute a cause of action.
"Demurrer Sustained
"On November 18, 1935, during the November, 1935, term of said court, said demurrer was duly taken up and considered by the court and sustained, to which ruling plaintiff duly excepted and still excepts. The court further made order that plaintiff have leave to plead further on or before November 27, 1935. On November 25, 1935, during the same term, plaintiff amended his petition by interlineation by changing the damages prayed for to $7,000.00
and refused to plead further. The court thereupon on the same day dismissed said petition and rendered judgment for defendant, to which ruling plaintiff duly excepted and still excepts.
"Appeal Allowed
"On November 23, 1935, during the same term, plaintiff duly filed application and affidavit for appeal, and on December 10, 1935, during said term, appeal was duly allowed and taken to the Springfield Court of Appeals.
"The foregoing is a true and correct Abstract of the Record in this cause as the same appears from the records of the Circuit Courts of Barton County and Jasper County."
The case is presented to us on two assignments of error, namely: First, "The court erred in striking out parts of the petition." Second, "The court erred in sustaining the demurrer and rendering judgment for defendant."
Respondent contends that the first of these assignments is not properly before us, because no motion for new trial was filed and no bill of exceptions was presented to the trial court. The contention is that the appeal in this case brings up the record proper only and does not bring up the defendant's motion to strike parts of the second amended petition nor the court's ruling thereon. In support of respondent's position on this point we are cited to rule 10 of this court. We are also cited to Marsden v. Nipp, 325 Mo. 822, 30 S.W.(2d) 77, loc. cit. 81; First National Bank v. Fulton (Mo.App.) 28 S.W. (2d) 368; Birmingham v. Warren (Mo. Sup.) 34 S.W.(2d) 115 and Hampe v. Versen (Mo.App.) 32 S.W.(2d) 797.
The plaintiff in his reply brief admits that the defendant is right in this contention. So that leaves for our consideration, solely, the question of whether or not the demurrer to the...
