Tockstein v. Bimmerle

Decision Date01 October 1910
PartiesTOCKSTEIN v. BIMMERLE.
CourtMissouri Court of Appeals

Rev. St. 1899, § 4656 (Ann. St. 1906, p. 2536), prescribing when a married woman may testify, does not render a wife competent to testify in an action against herself and her husband for negligently maintaining a fence adjacent to a sidewalk, where the husband offered the wife as a witness after the suit was dismissed as to her.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Belle Tockstein against Christ Bimmerle. From a judgment for plaintiff, defendant appeals. Affirmed.

John O. Marshall, for appellant. Albert E. Hausman, for respondent.

NORTONI, J.

This is a suit for damages alleged to have accrued on account of defendant's negligence in maintaining a defective fence adjacent to the highway. Plaintiff recovered, and defendant prosecutes the appeal.

The action originated in the justice's court, and a recovery of $20 is sought as damages to plaintiff's skirt, which was caught and torn on a wire protruding from defendant's fence over the granitoid sidewalk. The first argument for a reversal of the judgment is to the effect that the statement of the cause of action is insufficient to support the judgment. After formal matters, the statement recites substantially that defendant owns a certain property, describing it, in the city of St. Louis, adjacent to a public street thereof, and that he had some time theretofore constructed and then maintained a wire fence in such a manner as to cause two barbs or ends of the wire to protrude over and upon the sidewalk, and on May 31, 1908, while plaintiff was passing on the sidewalk adjacent to said premises, her dress was caught on a barb or wire projecting from said fence and torn, to her damage in the sum of $20, wherefore judgment is prayed for that amount.

The point made against the sufficiency of the statement is that it nowhere alleges the wire fence was dangerous, nor that it was either negligently constructed or maintained. The omission of express averments to the effect suggested is wholly unimportant, for they are both implied or may reasonably be inferred from the facts stated. The statement was challenged ore tenus...

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12 cases
  • Waldmann v. Skrainka Construction Company
    • United States
    • Missouri Supreme Court
    • 23 Julio 1921
    ... ... sufficient to defeat the right of recovery. Bentley v ... Hat Co., 144 Mo.App. 612; Tockstein v. Bimmerly, 150 ... Mo.App. 491 ...          M. N ... Hayden and John P. Griffin for respondent ...          (1) ... There ... ...
  • Garber v. Spray
    • United States
    • Wyoming Supreme Court
    • 7 Mayo 1917
    ...sufficient. (Hanson v. Gronlie, 115 N.W. 666; Morrison v. Railroad Co. (Ark.), 112 S.W. 975; Milholland v. Pence, 11 Ind. 203; Fockstein v. Bimmerle, 131 S.W. 126.) omission of allegations of negligence will not warrant reversal. (Atlantic Coast Line Co. v. Lane and Autry (Ga.), 71 S.E. 918......
  • Gottschall v. Geiger
    • United States
    • Missouri Court of Appeals
    • 2 Mayo 1921
    ...At common law, the husband was not a competent witness in his wife's lawsuit. Joice v. Branson, 73 Mo. 28; Tockstein v. Bimmerle, 150 Mo. App. 491, 131 S. W. 126. And he cannot be a competent witness for her except where the statute (section 5415, R. S. 1919), has modified the common-law ru......
  • Gottschall v. Geiger
    • United States
    • Kansas Court of Appeals
    • 2 Mayo 1921
    ... ... Tockstein v. Bimmerle, 150 Mo.App. 491, 131 S.W ... 126.] And he cannot be a competent witness for her except ... where the statute, section 5415, Revised ... ...
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