Taylor v. Missouri Pac. R. Co.

• Decision Date: 06 October 1925
• Docket Number: No. 24739.,24739.
• Citation: 279 S.W. 115
• Parties: TAYLOR v. MISSOURI PAC. R. CO.
• Court: Missouri Supreme Court

279 S.W. 115

TAYLOR v. MISSOURI PAC. R. CO.

No. 24739.

Supreme Court of Missouri, Division No. 2.

October 6, 1925.

Motion for Rehearing Denied Dec. 22, 1925.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

Action by J. A. Taylor against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition of remittitur.

James F. Green, of St. Louis, and W. C. Russell, of Charleston, for appellant.

Spradling & Dalton, of Cape Girardeau, Homer F. Williams, of Marble Hill, and Chas.

Revelle, of St. Louis, for respondent.

WHITE, J.

The appeal is from a judgment in favor of the plaintiff rendered September 29, 1922, in the circuit court of Cape Girardeau county, for $50,000, for personal injuries.

On February 20, 1921, the plaintiff, at the, town of Lutesville, in Bollinger county, took passage on one of the defendant's trains for the purpose of going to Marquand. When the train stopped at Marquand, the plaintiff, in attempting to alight from the car, slipped upon the steps and fell, incurring severe injury, for which he sued. The train came north through Charleston, in Mississippi county. It had snowed the day before. Plaintiff introduced evidence to show that at different points on the road, particularly at Lutesville, Marquand, and stations between, the steps were covered with a thick coating of ice and snow.

The defendant introduced evidence tending to show that the car in which plaintiff rode was a vestibule car, so constructed that the steps were protected and snow could not fall upon them; that any snow which was upon the steps on that day was carried there on the feet of the passengers entering the train; that at Charleston the steps were thoroughly cleaned, and at other places on the road wherever necessary.

On a former trial of the cause a verdict was returned and judgment rendered in favor of the plaintiff for $50,000, which the trial judge set aside, on the ground that the verdict was excessive. The facts in relation to the alleged negligence of the defendant and the extent of plaintiff's injuries will be considered in determining the law affecting those facts.

The petition originally was filed June 2, 1921, in Bollinger county, and entitled J. A. Taylor v. Missouri Pacific "Railway" Company. The summons was issued to the Missouri Pacific Railway Company, and the sheriff's return showed service June 3, 1921, by delivering a copy of the writ and petition to "P. R. Bailey, station agent at Lutesville, in said county, of said defendant corporation; he being then and there in said defendant's usual business office and in charge thereof; the president or other chief officer of said Missouri Pacific `Railway' Company not having been found in the county of Bollinger."

On September 12, 1921, the defendant named in the petition, the Missouri Pacific Railway Company, filed an application for a change of venue from Bollinger county. On the same day that defendant, appearing only for the purpose, filed a plea in abatement, alleging that the court was without jurisdiction of the defendant. In that plea it was alleged that all the property of the Missouri Pacific Railway Company had been sold by decree of the federal court, and that company had not, since March 19. 1917, owned, controlled, nor operated any railroad in the state of Missouri, and on the 3d day of June, 1921, had no agent in Bollinger county, Mo., nor for four years prior to said date had maintained or operated any railroad through Bollinger county.

Change of venue was awarded to Cape Girardeau county. In the Cape Girardeau court, January 6, 1922, the plaintiff filed a motion asking leave to amend his petition, and the summons correcting a clerical error in the name of the defendant, changing it from the Missouri Pacific Railway Company to the Missouri Pacific Railroad Company. It was alleged in the motion that the Missouri Pacific Railroad Company was in truth the corporation sued and intended to be sued by the plaintiff, and it was actually served with process; that the Missouri Pacific Railroad Company was the corporation operating the trains mentioned in plaintiff's petition; that neither at the time the plaintiff was injured, nor at the time the suit was filed, nor when the original writ was issued and served, was there any corporation by the name of Missouri Pacific Railway Company operating a railroad or trains, or maintaining offices in Bollinger county or in the state of Missouri; that the Missouri Pacific Railroad Company was the successor of the Missouri Pacific Railway Company, had acquired its assets, and assumed all its liabilities, and at the time the plaintiff was injured was operating the trains which prior thereto had been operated by the Railway Company. The abstract of respondent recites that the court took evidence offered by the plaintiff in support of the motion. No objection appears to that recital. The plaintiff also filed a motion asking leave to have the sheriff amend his return. The court sustained the motions, and allowed the plaintiff to amend his petition and the summons by the substitution of the word "Railroad" instead of "Railway" as it appeared in the name of the defendant. The sheriff also by leave amended his return so as to show, as in the original return, that the service was had on P. R. Bailey, station agent at Lutesville, of the Missouri Pacific Railroad Company. The appellant, the Railroad Company, then filed a motion to strike out its name as it appeared by amendment in the petition and summons, and also a motion to quash the sheriff's return showing service upon it. These motions were overruled.

I. Appellant claims that this is a case where suit was brought against one party, service had upon that party, and the plaintiff permitted to substitute another party against whom no cause of action was alleged in the original petition; that this amounts to the substitution of one cause of action for another.

Section 1274, R. S. 1919, provides that the court, at any time before final judgment in furtherance of justice, may amend any record, pleading, process, entry, return, or other proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party. In case of Green v. Supreme Lodge, National Reserve Association, 79 Mo. App. 179, it was held, quoting from an earlier case, that service upon a defendant by the wrong name did not invalidate the judgment. In State ex rel. Fabrico v. Trimble, No. 24860, 274 S. W. 712, decided at the present term and not yet [officially] reported, court in banc, in opinion written by Judge Graves, held that where the petition, summons, and sheriff's return mentioned a defendant, who was actually served, by a name not his real name, judgment against him by default was good.

In the principal case cited by appellant, Jordan v. Railroad, 105 Mo. App. loc. cit. 455, 79 S. W. 1155, 1158, the Court of Appeals said:

"If the Railway Company was the corporation in truth and in fact sued and the summons was actually served upon its agent, in such event, upon due proof of those facts, the action of the lower court might have been justified [in amending as to the name]; but the court was not warranted in assuming the truth or existence of the averments of plaintiff's motion to amend without proper proof and erred in sustaining it without hearing testimony."

In this case the very facts which were wanting in the Jordan Case were supplied.

In his motion to amend the plaintiff alleged that the company sued was the Missouri Pacific Railroad Company; that process was actually served upon the Missouri Pacific Railroad Company, copies of the writ and petition were delivered to the agent by the Railroad Company, and by him delivered to attorneys for the Railroad Company, who appeared for defendant in the circuit court of Bollinger county.

The appellant in its plea to the jurisdiction alleges that the Missouri Pacific Railway Company, since 1917, had not owned or operated or maintained any station and had no agents in Bollinger and Madison counties, Mo., or in the state of Missouri. This is an admission that no process was served or could have been served on the "Railway" Company. It is not disputed that service was actually had upon the agent of the "Railroad" Company, as the amended return stated.

Evidence taken upon this motion to amend does not appear in the abstract of the record, although it is stated by respondent that it is incorporated in the bill of exceptions. From the order of the court allowing the amendments, we must assume that the evidence supported the allegations of the motion. The allegations of plaintiff's motion are sufficient to permit evidence that the "Railway" Company had ceased to be a going concern, and existed, if at all, in name only.

II. Appellant assigns error to the refusal of the trial court to sustain a demurrer to the evidence. Appellant's position is this: If snow was on the steps and was the occasion of the plaintiff's fall, such snow had not fallen there, but was carried there by passengers getting on the train. The steps were cleaned from time to time during the day before the injury occurred. The defendant discharged its full duty in that respect and was not bound to keep up a continuous inspection of the steps.

Under the instructions, the plaintiff was allowed to recover whether the snow and ice which was said to be on the steps had fallen there the day before or had been tracked on by the passengers.

While the defendant was not under obligation to keep up continuous inspection of the steps, it was bound to exercise the care required of a carrier to provide for the safety of its passengers. The law in respect to the matter is stated by White on Personal Injuries on Railroads, vol. 2, § 681, p. 1035. After saying that it is impossible to lay down any general rule applicable to all circumstances respecting the care to be observed by a...