Strauss v. St. Louis Transit Co.

• Decision Date: 17 November 1903
• Citation: 102 Mo. App. 644,77 S.W. 156
• Court: Missouri Court of Appeals
• Parties: STRAUSS v. ST. LOUIS TRANSIT CO.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 156

102 Mo. App. 644

STRAUSS v. ST. LOUIS TRANSIT CO.^*

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

STREET RAILROADS—INJURY TO PASSENGER— ASSAULT BY CONDUCTOR — PETITION — DEMURRER—WAIVER—STATUTES—APPEAL AND ERROR—VERDICT.

1. An appeal on the record, in the absence of a bill of exceptions, restricts the court to a review of questions arising on the face of the record.

2. Where a demurrer to a petition on the ground that defendant is not a necessary party to a complete determination of the action is overruled, an answer on the merits is equivalent to a withdrawal or abandonment of the demurrer, under Rev. St. 1899, § 602, relating to waiver of objections.

3. A carrier is liable where plaintiff, after a street car had stopped for the purpose of receiving passengers, and while still, or slowly moving, attempted to get on, and was violently and without provocation assaulted by the conductor, causing plaintiff to fall from the car, whereby he sustained injuries.

4. By pleading to the merits defendant waives all objections to the petition except that it fails to state facts sufficient to constitute a cause of action and the objection that the court has no jurisdiction over the subject-matter of the action.

5. Any defects in a petition alleging that plaintiff, after a street car had stopped for the purpose of receiving passengers, and while still, or slowly moving, attempted to get on, and was violently assaulted by the conductor, causing plaintiff to be thrown and fall from the car, whereby he sustained injuries, such assault being without provocation or justification, and committed while plaintiff was on the car or step thereof, are cured by verdict, under Rev. St. 1899, § 629, requiring pleadings to be liberally construed with a view to substantial justice between the parties.

Appeal from St. Louis Circuit Court; David G. Taylor, Judge.

Action by Edward Strauss against the St. Louis Transit Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Boyle, Priest & Lehman, for appellant. A. R. Taylor, for respondent.

REYBURN, J.

In view of the conclusion reached in this cause, we deem it best to exhibit the pleadings intact. Plaintiff's cause of action was thus set forth: "The plaintiff states the defendant is, and at the time herein stated was, a corporation by virtue of the law of Missouri, and used and operated the railway and car herein mentioned for the purpose of carrying passengers for hire from one point to another as a public carrier of passengers. That on the evening of June 18, 1902, the defendant, by its servants in charge of its car, stopped its car at Broadway and Catlin streets, in the city of St. Louis, for the purpose of receiving passengers on said car, and as the plaintiff at such invitation was proceeding to get upon said car as a passenger whilst stopped, or slowly moving, defendant's conductor in charge of said car violently, wickedly, willfully, and maliciously assaulted the plaintiff, kicked him in the breast and on the body, causing him to be thrown and fall from said car and sustain a compound and comminuted fracture of his right arm and dislocation of the elbow and other injuries and bruises on his body. And plaintiff avers that his said injuries and said assault were without any provocation or justification, whilst he was a passenger on said car and the step thereof. That by said injuries the plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from labor, and has lost and will lose the earnings of his labor; has incurred and will incur large expenses for medicines, medical and surgical attention; and nursing—to his actual damages in the sum of ten thousand dollars; and as said injuries were wrongfully, willfully, and maliciously inflicted, the plaintiff claims ten thousand dollars by way of punishment for said wrongful acts. The plaintiff prays judgment in the...