State ex rel. Anderson v. Hostetter

• Decision Date: 07 May 1940
• Docket Number: 36774
• Citation: 140 S.W.2d 21,346 Mo. 249
• Parties: State of Missouri at the relation of James G. Anderson, Relator, v. J. D. Hostetter, William Dee Becker, and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

140 S.W.2d 21

346 Mo. 249

State of Missouri at the relation of James G. Anderson, Relator, v. J. D. Hostetter, William Dee Becker, and Edward J. McCullen, Judges of the St. Louis Court of Appeals

No. 36774

Supreme Court of Missouri

May 7, 1940

Writ quashed.

Edward D'Arcy and James T. Blair, Jr., for relator.

(1) In all cases of variance between the petition and the proof a party objecting to evidence as not within the issues made by the pleadings must file his affidavit of surprise in the trial court, under Section 817, Revised Statutes 1939, so as to give the court an opportunity to order the pleadings amended. Failing to do this, the objection is waived and cannot be heard on appeal. Talbert v. C., R. I. & P. Ry Co., 321 Mo. 1080, 15 S.W.2d 762; North Nishnabotna Drain. Dist. v. Morgan, 323 Mo. 1, 18 S.W.2d 438; Lepchenski v. M. & O. Ry. Co., 332 Mo. 194, 59 S.W.2d 610; Young v. Levine, 326 Mo. 593, 31 S.W.2d 982; Harrison v. Slaton, 49 S.W.2d 36. (2) The allegation in the petition that defendant had negligently parked his car in the highway was a sufficient pleading of general negligence, without any further pleading by plaintiff that defendant could have moved his car off the highway. Plaintiff, in pleading a cause of action, is not required to anticipate that the defendant will raise a certain defense and, as a result, is not required to negative such defense. Warren v. Amer. Car. & Foundry Co., 327 Mo. 755, 38 S.W.2d 718; Span v. Jackson, 322 Mo. 158, 16 S.W.2d 190; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893; Zichler v. St. L. Pub. Serv. Co., 332 Mo. 902, 59 S.W.2d 654; Winn v. K. C. Belt & Ry Co., 245 Mo. 406, 151 S.W. 98; Hornsby v Fisher, 85 S.W.2d 589. (3) Whenever a petition might have been amended in the trial court, without changing the basic nature of the cause of action, the petition, when its sufficiency is first questioned on appeal, and where no objection was made to the evidence which bore on said omitted allegation, is to be considered as though it had been actually amended in the trial court to correspond to the evidence so introduced. Congregation B'Nai Abraham v. Arky, 323 Mo. 776, 20 S.W.2d 904; Sawyer v. Wabash Ry. Co., 156 Mo. 468, 57 S.W. 108; State ex inf. v. Gromer, 252 S.W. 705; Ehrlich v. Mittelberg, 299 Mo. 284, 252 S.W. 671; Twentieth Century Mach. Co. v. Bottling Co., 273 Mo. 142, 200 S.W. 1099. (4) The following amendments to petitions do not change the basic nature of the cause of action: Amendment basing petition on a city ordinance, instead of on common-law negligence. Hanson v. Springfield Traction Co., 226 S.W. 1. Amendment basing petition on common-law negligence, instead of on Federal Employers' Liability Act. Sullivan v. St. L. & S. F. Ry. Co., 321 Mo. 697, 12 S.W.2d 735. Amendment basing petition on a municipal ordinance instead of on municipal building code. Oakley v. Richards, 275 Mo. 266, 204 S.W. 506.

Wilbur C. Schwartz and Orville Richardson for respondents.

(1) The plaintiff's petition did not contain any charge of general negligence so as to bring the opinion of respondents into conflict with Zichler v. St. Louis Pub. Serv. Co., 332 Mo. 902, and similar cases cited by relator. Beave v. St. Louis Transit Co., 212 Mo. 352, 111 S.W. 57; Richardson v. K. C. Rys. Co., 288 Mo. 268, 231 S.W. 941. (a) In any event, the petition having charged specific acts of negligence, any general charge could not furnish the basis for the submission of any specific issue not pleaded. Zasemowich v. Amer. Mfg. Co., 213 S.W. 802; Beave v. St. Louis Transit Co., supra; Richardson v. K. C. Rys. Co., supra; McGrath v. St. Louis Transit Co., 197 Mo. 105, 94 S.W. 874; Farm & Home Savs. & L. Ass'n v. Armstrong, 337 Mo. 355, 85 S.W.2d 464. (2) Respondents' opinion is not in conflict with the case of Warren v. American Car & Foundry Co., 327 Mo. 755, holding that defendant must plead and prove affirmative defenses. To the contrary, the opinion recognizes the rule that any party, including plaintiff, who has the burden of proving an issue, must plead that issue before instructions thereon may be given. (3) No question of departure through actual amendment is involved, and therefore there is no conflict with Hanson v. Springfield Traction Co., 226 S.W. 1, and similar cases cited by relator. Having attempted to plead the violation of statutes, plaintiff could not submit by instruction the violation of a Public Service Commission order. Hirst v. Ringen Real Estate Co., 169 Mo. 199, 69 S.W. 369; Hogan v. Citizens Ry. Co., 150 Mo. 52, 51 S.W. 478; Latapie-Vignaux v. Askew Saddlery Co., 193 Mo. 14, 91 S.W. 500; Lowery v. Kansas City, 337 Mo. 53, 85 S.W.2d 107; Davis v. C. & C. I. Ry. Co., 338 Mo. 1254, 94 S.W.2d 374. (4) A party cannot sue upon one cause of action and recover upon another, but can only recover upon the case made by his pleadings. The issues cannot be enlarged either by the introduction of evidence or the giving of instructions. Scrivner v. Mo. Pac. Ry. Co., 260 Mo. 432, 169 S.W. 85; Gary v. Averill, 321 Mo. 847, 12 S.W.2d 750. (a) Respondents' opinion is not in conflict with any case applying the statute relating to variances, Revised Statutes 1929, Section 817, since that statute applies only where there is a variance in some particular only of a pleaded issue, and not where an instruction submits a wholly new, foreign and unpleaded issue. Waldhier v. Hannibal & St. J. Ry. Co., 71 Mo. 519; Price v. St. L., K. C. & No. Ry. Co., 72 Mo. 418; Hibler v. K. C. Rys. Co., 292 Mo. 26, 237 S.W. 1017. (b) Respondents' opinion is in harmony with the latest controlling decisions of this court in announcing the rule that instructions may not broaden the issues beyond the pleadings by submitting an unpleaded charge of negligence, even though evidence in support thereof was admitted without objection. Iron Mountain Bank v. Murdock, 62 Mo. 73; Buffington v. A. & Pac. Ry. Co., 64 Mo. 248; Waldhier v. Hannibal & St. J. Ry. Co., 71 Mo. 519; Edens v. Hannibal & St. J. Ry. Co., 72 Mo. 213; Price v. St. L., K. C. & No. Ry. Co., 72 Mo. 418; Edy v. St. L., K. C. & No. Ry. Co., 77 Mo. 36; Mansur v. Botts, 80 Mo. 658; Yarnell v. K. C., Ft. S. & M. Ry. Co., 113 Mo. 579, 21 S.W. 3; Nugent v. Kauffman Milling Co., 131 Mo. 257, 33 S.W. 432; Koening v. Union Depot Co., 173 Mo. 724, 73 S.W. 644; Heinzle v. Met. St. Ry. Co., 182 Mo. 559, 81 S.W. 857; Tinkle v. St. L. & S. F. Ry. Co., 212 Mo. 470, 110 S.W. 1094; Beave v. St. L. Transit Co., 212 Mo. 353, 111 S.W. 58; Crow v. Houck's Mo. & Ark. Ry. Co., 212 Mo. 610, 111 S.W. 584; Black v. Met. St. Ry. Co., 217 Mo. 686, 117 S.W. 1146; Degonia v. St. L., I. M. & S. Ry. Co., 224 Mo. 589, 123 S.W. 816; Schumacher v. K. C. Breweries Co., 247 Mo. 162, 152 S.W. 18; State ex rel. Natl. Newspapers' Assn. v. Ellison, 176 S.W. 13; Hoyt v. K. C. Stockyards Co., 188 S.W. 108; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 655, 195 S.W. 723; Kirkland v. Bixby, 282 Mo. 469, 222 S.W. 464; Daniel v. Pryor, 227 S.W. 105; Crone v. United Rys., 236 S.W. 658; Hibler v. K. C. Rys. Co., 292 Mo. 26, 237 S.W. 1017; Kuhlman v. Water, L. & T. Co., 307 Mo. 635, 271 S.W. 797; Talbert v. C., R. I. & Pac. Ry. Co., 314 Mo. 370, 284 S.W. 504; Allen v. Mo. Pac. Ry. Co., 294 S.W. 87; Kleinlein v. Foskin, 321 Mo. 902, 13 S.W.2d 655; Kitchen v. Schlueter Mfg. Co., 323 Mo. 1195, 20 S.W.2d 682; Krelitz v. Calcaterra, 33 S.W.2d 911; Gandy v. St. L.-S. F. Ry. Co., 329 Mo. 468, 44 S.W.2d 638; Gilliland v. Bondurant, 332 Mo. 896, 59 S.W.2d 679; Fletcher v. Henderson, 333 Mo. 349, 62 S.W.2d 853; State ex rel. Ebert v. Trimble, 333 Mo. 721, 63 S.W.2d 88; Lowery v. Kansas City, 337 Mo. 53, 85 S.W.2d 107; Davis v. C. & E. I. Ry. Co., 338 Mo. 1254, 94 S.W.2d 374; Rucker v. Alton Ry. Co., 343 Mo. 934, 123 S.W.2d 26; Grosvener v. N. Y. Central Ry. Co., 343 Mo. 622, 123 S.W.2d 178.

OPINION

Hays, J.

Certiorari to review the decision of the respondent Judges of the St. Louis Court of Appeals in the case of James G. Anderson v. William L. Kraft, an action for damages growing out of a collision of motor vehicles and brought by the present relator as plaintiff. Upon trial in the Circuit Court of the City of St. Louis, plaintiff secured judgment for $ 5,000. Defendant appealed therefrom to the St. Louis Court of Appeals, which reversed and remanded. Our writ was granted upon the alleged ground that the opinion and judgment of the Court of Appeals contravenes certain prior controlling decisions of this court to be hereafter noted.

The collision in question happened on U.S. Highway 40 near Kingdom City in Callaway County. Defendant, the owner and operator of a truck which was licensed by the Public Service Commission under the Motor Carriers' Act, was driving it along said highway in an easterly direction, when one of its dual wheels became detached and caused the truck to stop on the pavement. This occurred at about 3 o'clock in the morning. Plaintiff was riding in another automobile as a guest therein and was proceeding along the highway mentioned in an easterly direction. The car in which he was riding approached and drove into the back end of the defendant's trailer, plaintiff receiving personal injuries as the result of such collision.

The portion of plaintiff's petition in which he assigns negligence of the defendant is set out in the opinion of respondents and is as follows:

"The said defendant negligently and carelessly caused and permitted his said motor truck to be stopped or parked on the traveled portion of said highway, at or about the hour of half-past 3 o'clock in the morning of December 10, 1935 and contrary to the provisions of the statutes of the State of Missouri made and provided; that said defendant negligently and carelessly failed to give warning to travelers, and especially to said ...