Rosemann v. United Rys. Co. of St. Louis

• Decision Date: 23 November 1915
• Docket Number: No. 14168.,14168.
• Parties: ROSEMANN v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Court of Appeals

180 S.W. 452

ROSEMANN v. UNITED RYS. CO. OF ST. LOUIS.

No. 14168.

St. Louis Court of Appeals, Missouri.

November 23, 1915.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by David J. Rosemann against the United Railways Company of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Boyle & Priest, Geo. T. Priest, and Elmer C. Adkins, all of St. Louis, for appellant. Wm. A. Kane, of St. Louis, for respondent.

NORTONI, J.

This is a suit for damages accrued to plaintiff on account of personal injuries received through the alleged negligence of defendant. Plaintiff recovered, and defendant prosecutes the appeal.

The sole question presented for consideration relates to the action of the court in denying defendant's right to have the petition made more definite and certain with respect to the facts of negligence relied upon. So much of the petition as is relevant to this question is as follows:

"That on the morning of January 11, 1912, the plaintiff was lawfully driving a horse attached to a loaded wagon westward on Farrar street at its intersection with Twenty-Fifth street, when defendant's servants in charge of a street car carelessly and negligently ran said car against and upon said loaded wagon then being driven by plaintiff, and in which he was then riding, whereby said wagon was violently shaken, overturned, and broken, and plaintiff was violently jarred and greatly injured as follows: * * * That by reason of the aforesaid negligence, carelessness, and recklessness of said servants and employés of defendant, in running, conducting, and managing said car, whereby it was run upon and against said wagon, in which plaintiff was thrown and injured as aforesaid, he has been damaged in the sum of seven thousand five hundred dollars, for which he asks judgment."

Defendant moved the court in. Writing under the provisions of section 1815, R. S. 1909, to require plaintiff to make the allegation of negligence more definite and certain so as to disclose the precise nature of the charge which it was called upon to meet. This motion the court overruled, and defendant duly saved its exception. Defendant, moreover, declined to appear further in the case and saved its term bill of exceptions touching the matter. No answer whatever was filed, and in due time the court, on motion of plaintiff, gave a judgment by default against defendant, and thereafter an inquiry of damages was had. On this inquiry of damages plaintiff was awarded a recovery of $750, and final judgment was given to that effect. The point with respect to the ruling of the court on defendant's motion to require that the petition be made more definite and certain was duly saved in the motion for a new trial and is presented here for review.

The law tolerates such general allegations of negligence where it appears the issue has been tried and no proper exceptions saved. See Sommers v. St. Louis Transit Co., 108 Mo. App. 319, 83 S. W. 268. But here the point is not only saved, but it was not waived thereafter by the further appearance of defendant at the trial. No answer was interposed, and defendant stood on its motion to...