Smith v. Wallis-McKinney Coal Company

• Decision Date: 20 October 1919
• Docket Number: 146
• Citation: 215 S.W. 385,140 Ark. 218
• Parties: SMITH v. WALLIS-MCKINNEY COAL COMPANY
• Court: Arkansas Supreme Court

215 S.W. 385

140 Ark. 218

SMITH v. WALLIS-MCKINNEY COAL COMPANY

No. 146

Supreme Court of Arkansas

October 20, 1919

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; affirmed.

Judgment affirmed.

Allyn Smith and Jo. Johnson, for appellant.

1. The court erred in striking from the amended complaint the clause alleging negligence. This error appears on the face of the record, and the error was prejudicial. 184 S.W. 456; 123 Ark 119; 165 Ky. 632; 177 S.W. 445.

In an action for personal injury caused by the negligence of defendant, plaintiff may aver the negligence complained of in general terms and may then show any specific acts of negligence which the evidence conduces to support, but if he specifically avers the acts constituting the negligence, he can not prove nor rely on acts constituting negligence not alleged in the pleadings. 205 S.W. 931, 933-4.

The error in striking out this clause entered into and vitiated the whole theory and the trial of plaintiff and forced appellant to submit the case to a jury. The particular mode of the injury and particular negligence need not be stated in the complaint. 51 Kan. 294; 77 Mo. 232, 234. This is the general rule in all Code States. 10 Minn. 418; 62 Ala. 494; 57 Ind. 297; 80 Ky. 82; 49 Mich. 380; Kirby & Castle's Digest, § 7533; Bliss on Code Plead. § 211-a; 80 Ky. 84; 42 Iowa 376; 34 Mo. 235; Bliss Code Pl., § 310-a. See also 45 Mo. 322.

2. The motion for a new trial was filed in due time, overruled and duly excepted to. The minutes of the judge show this, as does the record. 8 Kan. 228-35; 30 Id. 753. Appellee is estopped from disputing the truth of the record made here. The office of a nunc pro tunc order is to make the record speak the truth as to what was actually done.

3. The court erred in its instructions. 39 U.S. S.Ct. 407. Those asked by defendant and refused were contradictory and properly refused. 101 Ark. 117-120; 141 S.W. 763; 208 S.W 765-6.

Evans & Evans, for appellee; J. D. Benson, of counsel.

1. It appears from the record, as well as from the testimony, that there was no motion for a new trial in the case, and there is nothing for the court to consider. 83 Ark. 356.

The power of a court of record to correct its own record to make it speak the truth is settled, and that was done here. 78 Ark. 228. Parol evidence was admissible. 78 Ark. 364; 78 Id. 227-8; 75 Ark. 12; 40 Id. 324; 103 Ark. 4; 82 Id. 188; 86 Id. 90.

The uncontradicted testimony shows that the judgment correcting the record is correct. The judgment of the circuit court amending the record should be affirmed. When this is done, there is nothing for this court to consider on appeal.

2. Counsel for appellant practically concedes that there is no motion for a new trial in the main case and there was no error in sustaining appellee's motion to make more definite and certain the complaint. The action of the court with reference to the motion to require appellant to make his complaint more definite and certain does not appear upon the face of the record and there was no motion for new trial and the error complained of cannot be considered. 93 Ark. 84; 61 Id. 33; 39 Id. 258; 34 Id. 684; 95 Id. 85, 382; 127 Id. 26. See also 132 Id. 9; Simpkins, Federal Suit at Law, p. 104; 92 C. C. A. 253, 527; 167 F. 75; 168 Id. 842.

3. There was no demurrer to the complaint nor the amended complaint, but the court sustained appellee's motion to make more definite and certain.

The rule of pleading in negligence cases is plain and well settled. This is not a case where the rule of "res ipsa loquitur" applies. The mere statement of the transaction does not raise an inference of negligence. The cause of action must be stated in ordinary and concise language of the cause of action. The general rule of pleading in actions of negligence is stated in 29 Cyc. 565. Reasonable certainty as to essential facts is required, facts showing a legal duty and neglect thereof by defendant resulting in injury. Ib., p. 567. On motion to make more definite and certain, the acts or omissions characterized by negligence must be set up in traversable form and in such manner that defendant may be apprised of what it is called on to defend against. 29 Cyc. 564-5, etc.

The allegation in the amended complaint stricken out was not the allegation of any act or omission. It was indefinite and delusive and properly stricken out. 99 Ark. 302; Ib. 314; 102 Id. 187; 20 R. C. L. 173-175.

Defendant here availed itself of its legal remedy, and the court, as was its duty, struck out the paragraph, since plaintiff would not or could not make his complaint more definite and certain. 6 Thompson on Neg. Ch. 199, 482, § 7447. The act or omission must be stated by the pleader. In cases where there is a presumption of negligence from the happening of the act or omission to charge its act or omission is to charge something which warrants a recovery. Supra.

4. The instructions are not made part of the bill of exceptions. 45 Ark. 485; 74 Id. 88; 73 Id. 49; 53 Id. 215.

5. There was no evidence showing any negligence of appellee. He assumed the risk of injury from all sources except the negligence of the employer. It is not alleged, nor is there any evidence, that the company had any knowledge of any dangerous condition of the rock, or that it was negligently ignorant of such dangerous condition, nor that an inspection would have disclosed that the rock was about to fall or was defective or dangerous. No negligence was proved. The doctrine res ipsa loquitur does not apply. 74 Ark. 22. The burden was on appellant to show negligence. 79 Id. 437; 74 Id. 81; 208 S.W. 765; 95 Ark. 477.

OPINION

WOOD, J.

This action was brought in the Franklin Circuit Court by the appellant against the appellee to recover damages which the appellant alleged resulted to the widow and next of kin and to the estate of E. A. Page, deceased, by the negligence of the appellee.

There was a jury trial, a verdict rendered and judgment entered in favor of the appellee as of September 27, 1918, and this appeal.

The record concerning the filing of a motion for a new trial contains the following recital:

"On this September 27, 1918, the plaintiff being present by his attorney, Jo Johnson, and the defendant being present by its attorneys, J. H. Evans and J. D. Benson, and plaintiff files motion for new trial in the action, and the court, being well and sufficiently advised, doth overrule said motion for a new trial, and the plaintiff duly excepts and prays an appeal to the Supreme Court, which is granted and ninety days given to file bill of exceptions."

At a succeeding term of the court, towit, on the 7th of February, 1919, the appellee, defendant below, filed a motion to strike from files of the court the motion for new trial, alleging that same had not been filed at the September term nor after that term had expired in the manner prescribed by law. The appellee further moved the court to correct the record entry made at the September term of the court which recited that a motion for a new trial was filed, that it was overruled, and that the plaintiff below, appellant here, saved his exceptions to the overruling of said motion.

The alleged ground of the motion to strike and to correct the record nunc pro tunc was "that no motion for new trial was filed, considered or overruled by the court in term time and no exceptions thereto were saved by the appellant."

The appellant was duly notified of the motion to strike and to correct the record nunc pro tunc.

On the hearing of this motion the appellee introduced the clerk, who testified to the recitals of the record as above set forth and stated that the record was entered the last day of the September term of court and that the motion for new trial was not filed on that day but some time after that; that the motion for new trial was sent to him through the mail and was marked filed as of the last day of the September term, 1918; it was a month and perhaps longer after that term of the court before witness received and filed the motion. Mr. Johnson, attorney for the appellant, prepared the precedent for the record recital above set forth and called witness' attention to the fact that the court record showed the filing of the motion for new trial.

J. H. Evans, one of the attorneys for appellee, testified that Mr. Johnson, who was the attorney for the appellant, did not file the motion for a new trial during the September, 1918, term of the court; that he prepared a precedent for the entry showing that such motion was filed, overruled and exceptions saved, but none of that happened at the term of court; that he said he would prepare a motion later and would send witness a copy of it and witness never knew that he claimed to have filed a motion until he received a bill of exceptions; that the record entry showing that a motion for new trial was filed on September 27, 1918, was untrue. Witness knew that Mr. Johnson did not file any motion and that the court did not pass on it. Witness was asked by Mr. Johnson, the attorney for the appellant, the following question:

"Q. Don't you recall that while you and Mr. Benson were still sitting over there at the time the court from the bench asked me if I desired to make any further entries at that time and it was at that time that the court asked, in substance, if I wanted to take an entry for a new trial at that time and that the entry was made?"

Witness answered: "Might have occurred, but I have no recollection of it, Mr. Johnson."

Witness J. D. Benson testified that he was one of the attorneys for the appellee; that the case was concluded on the afternoon of the last day of court; that if there was any motion for new trial filed at that time...