Shohoney v. Quincy, O. & K. C. R. Co.

• Citation: 132 S.W. 1059,231 Mo. 131
• Court: United States State Supreme Court of Missouri
• Decision Date: 30 November 1910
• Parties: SHOHONEY v. QUINCY, O. & K. C. R. CO.

132 S.W. 1059

231 Mo. 131

SHOHONEY v. QUINCY, O. & K. C. R. CO.

Supreme Court of Missouri, Division No. 1.

November 30, 1910.

Rehearing Denied December 23, 1910.

1. APPEAL AND ERROR (§§ 295, 705)—QUESTIONS REVIEWABLE—RECORD—EVIDENCE.

A verdict in a personal injury action regular on its face and within the pleadings will not be disturbed as excessive in the absence of the evidence and a motion for new trial, raising the point of excessiveness, though on a prior trial the jury rendered a verdict for a third of the amount awarded.

2. EVIDENCE (§ 11)—JUDICIAL NOTICE—MATTERS OF HISTORY.

Courts take judicial notice of matters of public history.

3. APPEAL AND ERROR (§ 1042)—HARMLESS ERROR — ERRONEOUS RULINGS ON PLEADINGS.

Where, in an action for injuries to a servant of a railroad company caused by the negligence of a fellow servant, the company relied on the servant's contract of release, and a reply alleged matters avoiding the contract, a refusal to strike out such matters in the reply was not prejudicial to the company, since, though the matters had been stricken out, it could offer the contract in evidence, and plaintiff could raise the question of its illegality.

4. APPEAL AND ERROR (§ 919) — PRESUMPTIONS.

The court on appeal must assume in the absence of a motion for new trial, preserved in a bill of exceptions, and of an exception saved in the bill to the overruling of the motion, that the party complaining acted within its rights, and that the ruling of the trial court while he was so acting was correct, and the court on appeal will not disturb the judgment merely because the trial court by a ruling on a motion to strike matter from a pleading indicated a hostile attitude to the defeated party's position, so long as the ruling left to him the right to maintain in an orderly way its position on the issues as framed.

5. EVIDENCE (§ 29)—JUDICIAL NOTICE—PUBLIC STATUTES.

Courts take judicial notice of public statutes.

6. CONTRACTS (§ 138)—ILLEGALITY—EFFECT —RELIEF—ISSUES.

Where a contract relied on shows on its face that it is in contravention of a statute, the statute need not be pleaded to raise the question of illegality.

7. CONTRACTS (§ 342)—ILLEGALITY—ISSUES.

Where the illegality of a contract arises from extrinsic matter not appearing on the face of the petition, a plea raising the illegality is proper.

8. ACTION (§ 4)—ILLEGALITY.

Where one cannot open his case or sustain some particular defense without showing that he has broken the law, the court will not assist him, though the defense of illegality is not pleaded.

9. APPEAL AND ERROR (§ 173)—RESERVATION OF GROUNDS—WAIVER.

Where, in an action for injuries to a servant of a railroad company caused by the negligence of a fellow servant, the company relied on the servant's contract of release of the company from liability for injuries through the negligence of fellow servants, and the court refused to strike out the reply alleging waiver, estoppel and that the contract was void because against public policy and in violation of a statute, and the company did not offer the contract in evidence, challenge the ruling of the court on it and save an exception if adverse, and it failed to ask instructions on the constitutionality of the statute, or to file any motion for a new trial challenging the ruling and disallowing the instruction or evidence, it waived the question of the constitutionality of the statute.

10. CONSTITUTIONAL LAW (§§ 46, 48)—STATUTES —VALIDITY—PRESUMPTIONS.

A statute is presumptively valid, and the court will not decide a constitutional question when a litigant has abandoned it.

11. PLEADING (§§ 192, 362) — MOTION TO STRIKE OUT—AVAILABILITY.

Matter in a pleading stating no cause of action or defense is open to a motion to strike out as well as to a demurrer.

12. APPEAL AND ERROR (§§ 285, 518)—QUESTIONS REVIEWABLE—RULINGS ON DEMURRER —BILL OF EXCEPTIONS.

A demurrer not waived by pleading over preserves itself without the aid of a bill of exceptions or motion for new trial.

13. APPEAL AND ERROR (§§ 285, 518)—QUESTIONS REVIEWABLE—RULINGS ON MOTION TO STRIKE—MATTER IN PLEADINGS.

Where a motion to strike out matter in a pleading fills the office of a demurrer, the ruling preserves itself without the aid of a bill of exceptions or motion for a new trial, but, where a motion to strike out is not essentially a demurrer because it does not dispose of the case, it, with the exception to the ruling thereon and the motion for a new trial bringing forward the error for the final consideration of the trial court, must be preserved in a bill of exceptions or it cannot be considered on appeal.

14. APPEAL AND ERROR (§ 518)—QUESTIONS REVIEWABLE — RULINGS ON MOTION TO STRIKE—MATTER IN PLEADINGS.

Where, in an action for injuries to a servant of a railroad company caused by the negligence of a fellow servant, the company relied on the servant's contract of release of it from liability for injuries caused by fellow servants, and the reply alleged matters avoiding the contract, a motion to strike such matters was not in effect a demurrer, and the ruling thereon, to be reviewable on appeal, must be preserved in a bill of exceptions.

15. CONSTITUTIONAL LAW (§ 89)—LIBERTY OF CONTRACT—RESTRICTIONS.

The liberty to contract may be reasonably limited within the police power of the state.

16. CONSTITUTIONAL LAW (§ 89)—FREEDOM OF CONTRACT—STATUTES—VALIDITY.

Rev. St. 1909, § 5437, providing that no contract made between any railroad company and any of its servants limiting the liability of the company for any damages caused by fellow servants shall be valid, does not violate the constitutional liberty to contract, and a contract between a railroad company and a servant, whereby the latter agreed in advance of his employment to relieve the company from liability for injuries caused by fellow servants, is invalid.

17. STATUTES (§ 236)—REMEDIAL STATUTES —CONSTRUCTION—LEGISLATIVE INTENT.

The court in construing a remedial statute must consider the common law, the mischief and defect for which the common law did not provide, the remedy the statute sought to cure, and the reason of the remedy, and so construe the statute as to suppress the mischief and advance the remedy.

Appeal from Circuit Court, Grundy County; Jno. P. Butler, Judge.

Action by Ora T. Shohoney against the Quincy, Omaha & Kansas City Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. G. Trimble, Hall & Hall, and Willard P. Hall, for appellant. E. M. Harber and A. G. Knight, for respondent.

LAMM, P. J.

Plaintiff lost his right foot and ankle while in the line of duty as a switchman in defendant's yards and employ in Milan in June, 1904. He sued, laying his damages at $20,000, grounding his action on, first, negligence in furnishing defective machinery (couplers, drawheads, and coupling apparatus); and, second, on the negligence of a fellow servant, to wit, the engineer of the switch engine in that without any proper order or direction so to do he ran his engine against a car and plaintiff's leg, plaintiff being at the time engaged in manipulating and adjusting the coupling apparatus of the car to the end of presently effecting a coupling with the engine for switching purposes. Commenced in Sullivan, removed to the federal court, there dismissed, brought anew in Grundy, appealed once before from a judgment for $5,000, reversed and remanded (223 Mo. 649, 122 S. W. 1025, q. v.), then taken on a change of venue to Linn, the case now comes here again on defendant's appeal, this time from a judgment of $15,000. When the case went down, defendant moved to strike out all allegations pertaining to defective appliances. This motion was sustained, and plaintiff went to trial upon a petition bottomed alone on the duty of defendant to handle its switch engine with care, having regard to the safety of employés required to work about the same, and a negligent violation of that duty in that the engineer, as said, without order or direction, negligently ran his engine with force and violence against the car, while plaintiff was adjusting the coupling appliance, catching plaintiff's right foot between the drawheads, and so mashing it that amputation followed four inches above the ankle. The amended answer, after a formal admission or two, and a denial, as a further defense, set up a written contract, whereby plaintiff, in consideration of his employment and receipt of one dollar in hand paid, released defendant from liability for any and all injuries received while in its employ by or through the negligence or want of care and caution on the part of any other employé or employés of defendant, and acknowledged full satisfaction and payment of all claims for damages against defendant which may accrue to him, or to any other person on account of any such injury to him while in such employ. By replication plaintiff denied all and singular the allegations of new matter, next alleging affirmatively that the contract plead as a defense in the answer was against public policy, in violation of the policy and laws of the state, and therefore void. To further break and avoid its effect, the reply pleaded waiver and estoppel, in that, with knowledge of the injury of plaintiff and the negligence and wrongful acts of its own causing the same, defendant had not only fully investigated the same, but litigated with plaintiff for years in different courts of this state its liability, and now, for the first time, undertook to set up, plead and seek advantage of said instrument. (Nota bene: Defendant filed answer to plaintiff's petition as amended on the 23d day of February, 1910, for the first time pleading a release by virtue of the contract of employment, and on the same day plaintiff replied as above.) On the same day defendant filed a motion to strike out those parts of the reply setting up waiver, estoppel, that the contract was void, against public policy, and in...