Van Bibber v. Willman Fruit Co.

• Decision Date: 07 November 1921
• Docket Number: No. 13325.,13325.
• Citation: 234 S.W. 356
• Parties: VAN BIBBER v. WILLMAN FRUIT CO.
• Court: Missouri Court of Appeals

234 S.W. 356

VAN BIBBER v. WILLMAN FRUIT CO.

No. 13325.

Kansas City Court of Appeals. Missouri.

November 7, 1921.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by R. E. Van Bibber against the Willman Fruit Company. Petition dismissed for failure to make more definite and certain, and plaintiff appeals. Affirmed.

Mytton & Parkinson, of St. Joseph, for appellant.

Robert A. Brown and Richard L. Douglas, both of St. Joseph, for respondent.

BLAND, J.

This is an appeal from the action of the trial court in dismissing plaintiff's petition for failure to comply with its order requiring plaintiff to make his petition more definite and certain.

The petition alleges:

That plaintiff was the owner of a one-horse delivery wagon, one black mare, and a set of harness; that on August 22, 1918, "* * * said horse, harness and wagon were upon Sixth street, a public thoroughfare and street in the city of St. Joseph, Buchanan county, Mo., and while the driver of the same was driving the horse attached to the wagon in the exercise of care and caution, the defendant company, its agents and servants, carelessly and negligently ran a large automobile truck, being then and there used in its business, against and upon the wagon, horse and harness"; that the wagon was totally destroyed, the harness damaged, and the horse injured.

Plaintiff prayed judgment in the sum of $200. To this petition defendant filed a motion to make more definite and certain—

"by stating specifically the facts which plaintiff claims showed that the defendant carelessly and negligently ran its automobile truck against plaintiff's horse and wagon, and by pointing out specifically wherein and in what manner such acts caused or contributed to the accident complained of. As grounds for this motion the defendant states that plaintiff in his petition merely alleges in a general way that the defendant carelessly and negligently ran an automobile truck against his horse and wagon, and that such allegations are so general, indefinite, and uncertain as to be wholly insufficient to apprise the defendant of the nature of the acts which plaintiff claims were negligently done, by reason whereof the defendant is wholly unable to properly prepare its defense to plaintiff's supposed cause of action."

Plaintiff insists that defendant's motion was insufficient: First, because "defendant asks that more facts be stated showing that the defendant carelessly and negligently ran its truck against plaintiff's property, and to point out specifically wherein such acts contributed to the accident complained of," seeking to have plaintiff plead the evidence; and, second, the motion did not specify how or by what means said petition should be amended.

We do not think that the motion asks that plaintiff be required to plead his evidence. The motion clearly complains that the facts are not stated, that defendant was not apprised of the nature of the acts of negligence complained of. It was proper for the defendant to ask that the facts which plaintiff claimed to constitute negligence should be pleaded. Bliss on Code Pleading, §§ 135, 140 (3d Ed.); Sidway v. Missouri Land & Live Stock Co., 163 Mo. 342, 375, 63 S. W. 705; Shohoney v. Railroad, 223 Mo. 649, 671, 122 S. W. 1025. The petition does not state the facts, but alleges general negligence on the part of defendant. We think that under such circumstances it was not necessary for defendant's motion to specify in what way the petition failed to apprise defendant of the facts constituting plaintiff's cause of action. It was the duty plaintiff under section 1220, R. S. 1919, to give a "plain and concise statement of the facts constituting a cause of action without unnecessary repetition," and, plaintiff failing to allege any facts except the mere statement that the defendant ran into his which was not a statement of any fact constituting negligence, defendant had a right to have plaintiff state the facts as required by the statute. In support of his contention plaintiff cites the case of O'Conner v. Koch, 56 Mo. 253. This case is also cited in connection with a further contention of plaintiff to the effect that the order of the court sustaining defendant's motion was general, and "did not specify in what respect the amendment should be made, although repeatedly requested by plaintiff's counsel to do so." We think that the last case cited sustains neither proposition advanced.

In that case the facts were, in the words of the learned judge who wrote the opinion in summing up the facts pleaded:

"* * * That on a certain day named the plaintiff was riding in a spring wagon upon a public street in the city of St. Louis, and was driving along the street, as was his right to do, at a moderate gait, and that the defendant came up behind the plaintiff without his knowledge, driving a...