O'Toole v. Lowenstein

• Citation: 160 S.W. 1016,177 Mo.App. 662
• Parties: EDWARD F. O'TOOLE, Respondent, v. SAMUEL M. LOWENSTEIN et al., Appellants
• Decision Date: 04 November 1913
• Court: Court of Appeal of Missouri (US)

160 S.W. 1016

177 Mo.App. 662

EDWARD F. O'TOOLE, Respondent, v. SAMUEL M. LOWENSTEIN et al., Appellants

Court of Appeals of Missouri, St. Louis

November 4, 1913

Appeal from St. Louis City Circuit Court.--Hon. James E. Withrow Judge.

REVERSED AND REMANDED.

Frank A. C. MacManus and Chas. A. Smith for appellants.

The petition in this cause is fatally defective, and does not state a cause of action, as against Friedman, for it in no place alleges that at the time of the alleged conversion "plaintiff was entitled to the possession" or "had the right of possession of the particular goods" described or attempted to be described in the petition; and the refused demurrer offered by defendants at termination of plaintiff's case, should have been given. Bank v. Tiger, T. M. & L. Co., 152 Mo. 145; Schawald v. Brunjes, 139 Mo.App. 672; Chandler v. West, 37 Mo.App. 631; Barnett v. Timberlake, 57 Mo 499.

Kinealy & Kinealy for respondent.

(1) Appellants' point that the petition is defective because it fails to allege plaintiff's possession comes too late after trial and judgment. Merrill v. Mason, 159 Mo.App. 605. (2) The case was tried in the court below on the theory that there were only two questions in it, viz: 1st. Did Lowenstein, assignee, in delivering the blocks to O'Toole, tell him that he was to get all the blocks except 200 in two designated rows; and 2nd, did defendants remove the 1077 blocks after the date of the sale to O'Toole. The case having been tried on that theory it must be considered by this court on the same theory. St Louis v. Cont. Co., 210 Mo. 491; Bank v. Zook, 133 Mo.App. 603.

NORTONI J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

This is a suit in trover as for the conversion of a number of concrete blocks. Plaintiff recovered and defendants prosecute the appeal.

The principal point relied upon for a reversal of the judgment relates to the sufficiency of the petition, in that it fails to aver plaintiff was either in possession, or entitled to the possession, of the property at the time of the conversion. Omitting caption and signatures, the petition is as follows:

"Plaintiff states that at the times hereinafter mentioned he was the owner of a large number, to-wit five thousand three hundred, of concrete blocks located on the premises formerly occupied by the St. Louis Hollow Concrete Block Construction Company on North Broadway near the Wabash Railroad in the said city of St. Louis, and that on or about the--day of May, 1908, the defendants took possession of a large number of said blocks, to-wit, eleven hundred, and unlawfully converted same to their own use to the damage of plaintiff in the sum of eleven hundred dollars.

"Plaintiff therefore prays judgment against the defendants in the sum of eleven hundred dollars together with costs."

There can be no doubt that the action of trover as for conversion lies only when plaintiff has been in possession of the goods or has such property in them as draws to it the right of possession. This being true, the action is bottomed not alone on the ownership, but on the possession or right of possession of the property in plaintiff as well. It is to be observed that while the petition here alleges ownership of the property in plaintiff, it contains no averment to the effect that he was either in, or entitled to, the possession of the property at the time. The Supreme Court has declared pointedly that such a petition is insufficient in that it omits an averment essential to the plaintiff's cause of action for there may be ownership--a right of property--without possession. [See Bank v. Tiger Tail Mill & Land Co., 152 Mo. 145, 156, 157, 53 S.W. 902. See, also, to the same effect, Schwald v. Brunjes, 139 Mo.App. 516, 123 S.W. 472.]

No demurrer was interposed to the petition and it is therefore argued on the part of plaintiff that it must be regarded as sufficient after verdict, even though a substantial averment is omitted therefrom. There can be no doubt that, when a cause of action is but defectively stated in a petition, the omission is waived, if not raised until after verdict, and no demurrer has been interposed. But be this as it may, the statute (Sec. 1804, R. S. 1909) pointedly provides the objection that the petition does not state facts sufficient to constitute a cause of action shall not be regarded as waived by the omission to demur thereto. Indeed, such defect is universally regarded as a fatal one which may be brought forward for the first time in the appellate court, as has been frequently determined. [See Hoffman v. McCracken, 168 Mo. 337, 67 S.W. 878; Peltz v. Eichele, 62 Mo. 171.] So it is the petition must be treated here as insufficient to state facts constituting a cause of action against defendants, for that it omits to allege plaintiff was either in possession of the property alleged to have been converted, or such facts as revealed a right of possession in him at the time.

But it is argued by plaintiff that the petition is sufficient after verdict for the reason it was amendable, even after judgment, in the trial court. It is true amendments have been allowed to supply the identical averment omitted here, in suits of this character, after verdict, as will appear by reference to the case of Merrill v. Mason, 159 Mo.App. 605, 141 S.W. 454, and also on the hearing of the motion in arrest of judgment, as will appear by reference to Golden v. Moore, 126 Mo.App. 518, 104 S.W. 481, and such amendment, so allowed by the trial court, declared entirely proper, when reviewed on appeal. There can be no doubt that the propositions decided in the cases cited are well considered and determined, in view of our statutes authorizing amendments. The Code provisions are liberal with respect to amendments.

Section 1847, Revised Statutes 1909 permits an amendment to the petition when the variance between the allegation and the proof is not material, and section 1848 authorizes an amendment in furtherance of justice by the insertion of allegations material to the cause, when such course does not substantially change the claim or defense and conforms the pleading to the facts proved. Moreover, by section 2026, Revised Statutes 1909, the trial court is commanded, even when a judgment shall be arrested, to allow an amendment in all cases when the same amendment might have been made before trial, and the statute directs that the cause shall again proceed according to the practice of the court. Under this statute last cited, amendments may be allowed even on the hearing of the motion in arrest, as was done in Golden v. Moore, 126 Mo.App. 518, 104 S.W. 481, and the case is to proceed in accordance with the practice of the court, and this, too, without the granting of a new trial, for the reason a motion in arrest, though sustained, does not necessarily result in a new trial. [See Stid v. Mo. P. R. Co. 211 Mo. 411, 415, 109 S.W. 663.] But be all of this as it may, no such amendment was made in the instant case nor was an application to do so presented and denied. The matter therefore stands before us as a judgment resting upon a petition insufficient in substance as its support.

The statute of jeofails (Sec. 2119, R. S. 1909) is not available in aid of the defect in the petition here. It is true that the ninth subdivision of that statute provides that no judgment shall be reversed for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict. But from an early date a narrow construction has been placed upon this provision, and it is said that it is only declarative of the common law that a verdict will aid a cause of action defectively stated, but not a defective cause of action. [See Welch v Bryan, 28 Mo. 30.] In other words an omission of an essential averment of the petition is not cured by this section of the statute. [See Andrews v. Lynch, 27 Mo. 167; Falls v. Daily, 74 Mo. 74; see, also, Munchow v. Munchow, 96 Mo.App. 553, 70 S.W. 386.] It is true the Kansas City Court of...