Shohoney v. Quincy, Omaha & Kansas City R. Co.
| Decision Date | 30 November 1910 |
| Citation | 132 S.W. 1059,231 Mo. 131 |
| Parties | ORA T. SHOHONEY v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Grundy Circuit Court. -- Hon. Jno. P. Butler, Judge.
Affirmed.
J. G Trimble, Hall & Hall and Willard P. Hall for appellant.
(1) The motion to strike out portions of reply was in effect a demurrer thereto, and should be so treated, and therefore a bill of exceptions was not necessary to preserve said motion or the court's action thereon. Those things are all matters of record, are reviewable without any bill of exceptions, and an exception to such judgment is out of place in the record proper or in the bill of exceptions. Meissner v. Equipment Co., 211 Mo. 112; Mallinckrodt v. Nemnich, 169 Mo. 388; Dysart v Crow, 170 Mo. 275. Under the provisions of our code motions to strike out may be used against "irrelevant or redundant matter" in a pleading (R. S. 1899, sec. 612), or against a pleading guilty of duplicity (R. S. 1899, sec. 613). Such motions can also be used against pleadings improperly filed, for any reason. But in Missouri such motions have also been used, in practice, from time immemorial, for the purposes and in the place of demurrers, to test the sufficiency in law of matters pleaded in petition, answer or reply. Sapington v. Jeffries, 15 Mo. 628; Niedlet v. Wales, 16 Mo. 214; Barley v. Cannon, 17 Mo. 595; Ming v. Suggett, 34 Mo. 364; Phillips v. Evans, 38 Mo. 305; Howell v. Stewart, 54 Mo. 400; Paddock v. Somes, 102 Mo. 226; Mumford v. Keet, 71 Mo.App. 535. The consequence is that in Missouri a motion to strike out a pleading, in legal effect, often is the same as a demurrer. Austin v. Loring, 63 Mo. 19; Paxson v. Talmage, 87 Mo. 13; Jones v. Manly, 58 Mo. 559; Mumford v. Keet, 71 Mo.App. 535; Asphalt Co. v. Benz, 81 Mo.App. 246; Bick v. Dry, 134 Mo.App. 589. This is true in other jurisdictions where a motion to strike out is used for purposes of a demurrer. Camp v. Allen, 12 N. J. L. 1; 31 Cyc. 619; 6 Ency. Pl. and Pr. 331. Wherever a motion to strike out is permitted to be, and in fact is used, to test the sufficiency in law of the allegations of a pleading, then the motion in legal effect is a demurrer, and is to be treated as such and "governed by the law applicable to demurrer." Mumford v. Keet, 71 Mo.App. 536. In such case the motion to strike out and the ruling of the court on it are a part of the record, and may be reviewed on appeal without a bill of exceptions. Bick v. Drv. 134 Mo.App. 589; Asphalt Co. v. Benz, 81 Mo.App. 246. (2) The contract of release pleaded by defendant was neither opposed to public policy nor prohibited by any valid statute. In other words the statute prohibiting said release was unconstitutional and void. Griffiths v. Dudley, 9 Q. B. D. 357; O'Maley v. Gas Co., 158 Mass. 135; Railroad v. Eubanks, 48 Ark. 466; Quinn v. Railroad, 175 Mass. 150; Peterson v. Traction Co., 23 Wash. 637; Railroad v. Voigt, 176 U.S. 498; State v. Loomis, 115 Mo. 307; State v. Julow, 129 Mo. 163; State v. Tie Co., 181 Mo. 536; State ex rel. v. Standard Oil Co., 218 Mo. 378; Matthews v. People, 202 Ill. 389; Lochner v. New York, 198 U.S. 45; Adair v. United States, 208 U.S. 161.
E. M. Harber and A. G. Knight for respondent.
(1) (a) Reversible error cannot be predicated on the court's action in overruling defendant's motion to strike out the paragraphs of plaintiff's replication, for the reason that defendant's answer had set out and pleaded in haec verba the alleged contract of plaintiff releasing defendant from liability. The replication thereto contained a general denial, and under this general denial the plaintiff was entitled to show the invalidity of the contract as fully and completely as he could have done with the added paragraphs. Hence, to have struck them out would in no way have changed the issue. The sustaining or overruling of said motion, therefore, was immaterial, because it did not affect defendant's defense in the least and they were mere surplusage. It cannot be therefore said to "materially," or even at all, affect the "merits of the action," and under the statutes and decisions was harmless. R. S. 1899, sec. 865; Crawford v. Spencer, 36 Mo.App. 78; Conrades v. Spink, 38 Mo.App. 309; Tyrrel v. Milliken, 135 Mo.App. 301; McDearmott v. Claas, 104 Mo. 14; Berkson v. Railroad, 144 Mo. 211; Heman v. Wade, 140 Mo. 340; Holenbeck v. Railroad, 141 Mo. 97; Lamar Light Co. v. Lamar, 140 Mo. 145; Mulherin v. Simpson, 124 Mo. 610; Gordon v. Eans, 97 Mo. 587; Griggs v. Edwards, 78 Mo. 473; Ozark Land Co. v. Hays, 105 Mo. 143; Ivy v. Yancey, 129 Mo. 501; Daggs v. Smith, 193 Mo. 494. We are aware of the rule that where there is nothing on the face of the contract or the petition (in this case the answer) which indicates any other than a valid contract, then the rule is that if the contract is to be invalidated by some extrinsic matter, such matter must be pleaded in order that it may be made issuable at the trial, and that the same, so far as pleading is concerned, is not unlike that of champerty, gaming, usury and the like, Association v. Delano, 108 Mo. 220; McDearmott v. Sedgwick, 140 Mo. 172; Kelerher v. Henderson, 203 Mo. 498; Bell v. Warehouse Co., 205 Mo. 475. But it is equally true that a denial does put in issue the validity of the contract sued upon, and where the illegality of the contract appears from plaintiff's own showing, or upon the face of the contract itself, without the aid of extrinsic evidence, or is in violation of a positive law, that then a general denial is all that is necessary to dethrone such contract, refuse its admission in evidence, or defeat a recovery or defense founded thereon. McDearmott v. Sedgwick, 140 Mo. 172; Association v. Delano, 108 Mo. 220; Kelerher v. Henderson, 203 Mo. 498; Gibson v. Jenkins, 97 Mo.App. 27; McClure v. Ullman, 102 Mo.App. 697; Musser v. Adler, 86 Mo. 445. (b) Ordinarily motions to strike out parts of a pleading are no part of the record proper, are matters of exception, and can only be made a part of the record by a bill of exceptions. Tarkio v. Clark, 186 Mo. 293. (2) The act of 1897 is not in violation of any of the provisions of the Constitution of the United States. Powell v. Sherwood, 162 Mo. 620. Since the decision in the Powell case, supra, the constitutionality of the act of 1897 has twice come before the Supreme Court of this state, In Banc, and each time has been held constitutional. Cambron v. Railroad, 165 Mo. 555; Callahan v. Railroad, 170 Mo. 473; Tullis v. Railroad, 175 U.S. 351. The constitutionality of this statute has been so thoroughly established by the decisions of this court, that such question is no longer a "live one," but is expressly foreclosed by those prior decisions. State v. Campbell, 214 Mo. 362; Railroad v. Mackey, 127 U.S. 205; Railroad v. Pontius, 157 U.S. 209; Railroad v. Mathews, 165 U.S. 1; Frisbie v. United States, 157 U.S. 160; Tullis v. Railroad, 175 U.S. 353; Patterson v. The Eudora, 190 U.S. 169; Insurance Co. v. Needles, 113 U.S. 574; Sinking Fund Cases, 99 U.S. 700; Railroad v. Bristol, 151 U.S. 556; Railroad v. Paul, 173 U.S. 404; Railroad v. Mathews, 174 U.S. 96; Hooper v. California, 155 U.S. 648; Insurance Co. v. Daggs, 172 U.S. 557; Dayton v. Iron Co., 183 U.S. 23; Railroad v. Humes, 115 U.S. 512; Railroad v. Beckwith, 129 U.S. 26; Hissong v. Railroad, 91 Ala. 514; Railroad v. Paul, 64 Ark. 83; Railroad v. Lassiter, 50 So. 428; Coal Co. v. Polland, 158 Ind. 607; Himrod Coal Co. v. Clark, 197 Ill. 514; McGuire v. Railroad, 131 Ia. 340; Railroad v. Peavy, 29 Kan. 169; Newport News Co. v. Eifert, 15 Ky. L. Rep. 575; Willis v. Railroad, 62 Me. 488; Wagner v. Railroad, 188 Mass. 437; Doyle v. Railroad, 162 Mass. 66; Doyle v. Railroad, 166 Mass. 492; O'Niel v. Iron Co., 63 Mich. 690; Johnson v. Fargo, 184 N.Y. 379; Coley v. Railroad, 128 N.C. 534; Railroad v. Spangler, 44 Oh. St. 471; Johnson v. Railroad, 163 Pa. St. 127; Johnson v. Railroad, 55 S.C. 152; Railroad v. Jones, 2 Head (Tenn.) 517; Waters Pierce Oil Co. v. Texas, 19 Tex. Civ. App. 11; Johnson v. Railroad, 86 Va. 975.
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 twenty thousand dollars, 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 five thousand dollars, reversed and remanded (223 Mo. 649, 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 fifteen thousand dollars.
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 employees 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 a car, while plaintiff was adjusting...
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