*1 yet defer, try novo, so, if reasonable do we de we to tbe it< al., finding v. Russell et below. et al. [Blackiston (2d) cases there Tbe chancellor below l. c. cited.] company bad ice present tbe boobs tbe before bim. plaintiff’s petition. and dismissed Tie tbe witnesses saw beard overturning judgment tbe grounds justify We find that will affirmed, judgment follows, therefore, that the should be It below. Ferguson GG., concur. Hyde, ordered. is so foregoing by Bradley, C., adopted opinion PER CURIAM: The judges All opinion of court. tbe concur. tbe as tbe Chicago Davis, Appellant, Eastern Rail Illinois Frank way Corporation. 370. Company, April Two, 23, 1936. Division (cid:127)1249 *2 Moore, Noell, L. Charles P. McLaughlin Charles Wm. C. and Wm. Allen H. appellant. for Gladney Hooker, Jones, Sullivan, Finley, Reeder & Wm.
Jones, Finley respondent. Ralph T. for Reeder and O. *3 judgment and verdict a B. Davis obtained
BOHLING, C. Frank Railway, Company, Illinois & Eastern Chicagо $12,500 against The of corporation engaged common carrier commerce, for personal injuries by plaintiff by sustained reason of the violation of .defendant the Federal statute known as Inspection the Boiler Act' (45 A., 23), U. S. C. prosecutes see. this appeal from an order granting trial. new analysis
In final the main controversy revolves plead- around the ings, possibly instructions, rather than the facts on the merits. Defendant makes contention now that failed to make a submissible ease at common law Inspection under said Boiler Act. Therefore, briefly but of the facts: Plaintiff employed yard aas brakeman of defendant West p. Frankfort, Illinois, injured ten-twenty and was about m. of that day, engaged in performance while of standing his duties and on footboard of one of engines, front defendant’s reason of a cinder twenty-five piece, about the size of a cent emitted from the engine of hitting smokestack leading running and- step engine board of the within few inches and below immediately plaintiff’s eyes, level of bursting striking both eyes, of resulting blinding eye right eye. injuring left There was substantial evidеnce to the effect that the emission of cinders twenty-five size of equipment engine cent piece showed proper provisions to be in condition within said Section Inspection said Boiler Act. litigants plaintiff’s petition- (consisting admit count) charges
but one a violation of said Section 23 said Boiler Inspection injury Act occurred while en defendant was gaged, it, commerce, while bringing paper within Li case (45 ability A., 51-59). reads, alleging Act S. U. C. secs. It after de *4 carrier, plain- fendant to be a . . respect: -common in this “. and tiff day that January, 1931, states on the 27th while defend- the engaged ant in was commerce between or more the several two States, by States employed of the he in United was commerce, severely such permanently injured. he was . . .” this, petition And so stands the upon appeal. Defendant’s answer put allegations in readily issue the as to interstate commerce. Plaintiff that, admits undisputed plaintiff the at the time evidence establishes injured, engine engaged making question was an in- the in was in movement, engaged trastate at that time and that was not in commerce. interstate plaintiff was allegation injury
With the while that the occurred good commerce, in employed plaintiff’s petition good law; eliminated, cause with it of action the Federal law. would stated under the common cause of action have been Pass7 ing May plaintiff, petition whose unquestioned issues, quaere is: the ’ Act, Employers Liability up sets of action under the establishing undisputed the upon the evidence that at time of the engaged commerce, injury position in intrastate shift his was (that change is, recover under the common law the State law), amending petition by striking from law without position to allegations plaintiff’s being engaged with reference to therefrom the commerce, in the of a demurrer filed at the in" interstate face close by defendant; and, so, under what circumstances of the>evidence shifting upheld. following law The law to be cases such from should issue. bear the Ry. 220 Mo. App. v. St. Louis-San Francisco
In Hilderbrand 1236, 1071(5), allegations 298 S. “. . the of the enough hypothesis petition broad to include that defendant were commerce;” appearing engaged and it also in intrastate “that allegation petition respecting in interstate commerce was by surplusage both either as mere treated court (italics ours), having been the St. Louis Court of or as eliminated” upheld practice, to the local Appeals, giving effect rules any shifting law the Federal law to common without amend from being sought рetition party. or demanded either The of the ment charges plain at petition specifically case that time in the instant commerce, injured in interstate tiff was he no although enough, it is as the Hilder petition, broad where said engaged hypothesize that defendant was also in in to brand might commerce, any specific which is there trastate plaintiff’s injury engaged at time be inferred any service rendered defend commerce other than the interstate But, may. ant. that as it be Ry. Co., 705, 12 F. v. St. Louis-S. Sullivan during progress amended his by striking employ- as to his interstate the averments out trial recovery from changing of basis of the Federal ment, this against contention the amend- defendant’s upheld law State changed action. In that cаse the amendment the whole cause of ment any on the defense. effect did have Hayes, Sup. 234 U. S. Ct. Railroad Co. In Wabash Illinois, proof failing arising Ed. L. case commerce, the court, injury occurred that the show jury request, the Federal Em instructed the the defendant’s case; treated, application to the over had no ployers’ Act allegation respecting interstate commerce objection, the defendant’s practice, of local and, rule submitted eliminated, giving effect as Hayes quoted the State. case law of the common ease under *5 case, supra. Sullivan the are referred and others B., Co., 433, 327 Mo. Q. 37 Railroad Chicago, v. In Jarvis right to recover 602, 603(2), plaintiff predicated (2d)W. S. at the commerce time employed ground the
1253 injury, pleaded the defendant that neither nor defend engaged ant was plaintiff’s interstate commerce at the time in jury and Act Compensation the Workmen’s of the State of Illinois pleaded, as defenses. That case' was tried and submitted under the Act; Liability Employers’ Federal the action of the trial court upon motion, allegations setting up in striking, the said Workmen’s Compensation upheld, from Act defendant’s answer was because said clearly pleaded act constituted no defense to a cause of action as not, arising Liability under Employers’ the Federal Act other also, Co., wise. T. & 307 [See, Louis, Carter St. E. Bailroad Mo. v. 595, 606, 271 S. W. 360(8).] allegation Although time T)e peti injury
of his commerce stricken from the case, supra, certain granted (as tion leave in the Sullivan under conditions) (as case, or treated in the Hilderbrand allegation supra) case, from surplusage as eliminated general legal acceptance is not term surplusage within of that applied stating good pleadings; is, petition, as where negligence ordinance (for instance, statutory eause action and/or negligence) stating unnecessary averments an additional cause makes (for negligence) unnecessary action instance, or other common-law facts, if case he need pleader establishes facts sufficient to make a grounds recovery or the alleged not establish for each of the several following unnecessarily alleged cases: facts as was the situation 204 (en 689, 693(3), Ry. banc), v. Callicotte Rock Island Co. Ry. Co., 332 529, 530(4); Cleveland, v. C. & St. L. Henry C. ; Chicago & E. (2d) 340, 341(4) Mo. 61 Noel v. 1076(4), W. there Ry. (Mo. 937) 943(12) and cases/ App.), (2d) I. 21 S. W. Co. proof are allegation and its cited—cited here. The of action re material a cause and essential to a statement of covery Liability Nat. Act Employers’ under Federal [Midwest 408(3)]. 233 S. W. Davis, Bk. & Trs. Co. v. Mo. at common allegation from one distinguishes of action the cause supra]., and Hayes, cases¡ Hildebrand Jarvis,
law Sullivan and [the to the cause may preclude asserting certain defenses defendant law statutory or of action the common otherwise available under v. We know governing plaintiff’s eаuse of action. State [Davis ; Wentz 1115(8) v. McColl, App. 198, 204, 166 S. 463, 168 S. W. Q. Co., B. Chicago, & Bailroad negligence contributory is not for instance, the defense 1170(5)], recovery seeking to a under a available might have extent Act to the same common been stated under been available of action had the cause Valley Gerahty Lehigh supra; law of this State. Carter [The Thus, 300, 304(12).] Rаilroad 70 Fed. a material only but of action material *6 1254 precluding
averment presentation of defenses available in an ac tion case, under the supra, common law. fully demon Jarvis [The against strates its Compensa effectiveness the defense aof Workmen’s Court, tion What Supreme States the, the United said in con Act.] cluding paragraph Hayes 234 easе, supra, U. l. is S. c. worthy of shifting note: “As it not claimed that reason from one law the other presenting the defendant was cut off from any open only which latter, defense course under the or that the plaintiff taken by deprived right of a of removal n existing, otherwise opinion we intimate no in either connection.” (as (and Where supra) the Hildebrand both court) allеgation eliminated, treat an surplusage and as as. litigant thereby unsuccessful pursued, becomes bound the course waiving right upon, becoming estopped to insist and from assert ing, materiality judgment. of the defeat [Flint v. 317 Sebastain, 1344, 1362(2), 798, 805(5); Bragg Mo. 300 S. W. v. Metropolitan Ry. Co., 527, 534; St. 192 91 Mo. S. W. Century and see Twentieth Springs Mch. Co. v. Excelsior Min. W. B. Co., 273 142, 148(2), But, Mo. 200 S. W. where 1080(4).] .voluntarily join defendant does plaintiff’s theory not of the case tenders such have, estopped assert, not defenses as he is waive, nor rights does he Co. Norwich [Kenefick-Hammond 205 Co., Union F. Ins. 307 103 (I, a, b, c), 960(1), Mo. cited; Wright, eases Donnell v. 49 W. Mo. 874, 876(2); Mount Mfg. Rolling Car M. Vernon Co. v. Hirsch 669, 694(111), 227 S. W. The Keneflick-Ham 74(111)]. Company (205 310) mon fights case l. c. “He states: who trial, away runs from a position be taken on his answer at the away by court, may fight ap cause driven day live to another on peal same'posi in the trial court motion for -in the new [or if trial] tion, spot he marked an exception';- .the but he who is in battle is, place voluntarily, legally slain—that- who selected his and who (speaking figure) in- theory-, dies in his tracks can on. his-selected fight appeal no more on in. court],' the trial because: . [or fairly dead, once always dead.” new the instant case the trial was awarded because of error in overruling defendant’s demurrer to the evidence. How then stood put case? Plaintiff’s issue defendant’s answer plaintiff’s employment in interstate commerce at the of the in time jury. undisputed engaged evidence showed that time in intrastate Plaintiff to avoid this fаilure commerce. seeks n proof allégation during the claim he- abandoned said the' progress during-the of the trial. Plaintiff’s' counsel"stated examination plead any-' of witnessés that: “We not interstate [commerce], 'do nothing how.” has ‘'‘Interstate commerce to do with this other case (cid:127) engine traffic, than and that is all I want used controlling. orally to know.” We dеem what petition being should con amended, Without what defendant did agree trol. Nor do we that the fact with learned counsel for of plaintiff’s defendant’s counsel showed on cross-examination wit (defendant’s employees) nesses examination of his own on direct engine engaged at the witnesses that the in intrastate commerce *7 plaintiff’s injury unimportant. time of It established defend to be of plaintiff’s case; ant’s no action de defense to stated and we find ruling in record, up fendant time of the on defendant’s to the with evidence, establishing voluntary joinder plain demurrer to the a injured tiff was plaintiff in the of the issue that elimination tendered Therefore, employed while hold defend in commerce. we light pleadings аnt in of the entitled to have the ruled demurrer on the demurrer and the case made as it when the issue existed Q. 327 Co., supra, Chicago, & Railroad .tendered. Jarvis v. B. although pleaded,
l. 37 the case c. S. W. l. c. Act, Employers’ Federal tried and submitted under the demurrer, ruling stated: court, in defendant’s Division One of this arising Federal “Having pleaded under the of action as prove to upon plaintiff Employers’ Liability Act the burden was in in at the time that he was interstate commerce be study the record jured. ... from a careful We conclude evidence proof either on fore us this was not made in the requested instructions ease, or on the whole and defendant’s given.” The have been should nature of demurrers to the evidence correct; if from but case, supra, is law stated in the Hilderbrаnd is to reached herein than facts there set forth a conclusion different inferred, longer followed. be no that ease should be distinction, amounting There is a difference, position to in the occupied in a lawsuit. The (here chooses battle field Liability Act), —the and forces defendant into upon conflict that field. Should defendant attempted have in the instant case to shift the scene of the conflict to law, the common and asserted there, otherwise, defenses but not avail- able, cases, under the Carter supra, and Jarvis the trial court would parried have the thrust. Under circumstances, such inis position successfully to complain if accepts a defendant his writ- pleadings engages ten in combаt plaintiff’s choice; on the field of at plaintiff, least until such upon leave, time as amends his plead- ing (as in ease, join the Sullivan supra) and forces defendant to issue on a new may front where defendant assert new and different de- fenses, available; (as or until in case, supra) the Hilderbrand de- fendant clearly shifts, acts and plaintiff, conduct with field pleаdings. injustice battle without an amendment of the The of a stringent less rule is by plaintiff’s upon evidenced ap- insistence this peal that since plead defendant did not attempt plead or to the Work- may court this of.Illinois Compensation Act of State
men’s any judicial act base cognizance said of the existence take ruling being de theory of defendаnt upon favor defendant’s common law. plaintiff’s action been prived of said defense had voluntarily acquiesces party given think, "We where neither a situation if, ap law, then law shifting to the other’s of the.issue below, the same paper case peal, defendant is to be held to its paper case. his stated reasoning held to requires plaintiff be definitely tender, in .is to requirement good pleading fundamental existing between language, issues plain and the real concise proof kind of litigants the nature they apprised be other, to refute and, establish, hand, required, on the one Williams v. pleadings so the issues tendered [Mark the written 24(1); Huston Cooperage 242, 261(1), 103 S. W. Co., 204 Mo. with, accord This is 654, 656], Tyler, procedure. our code civil permit litigant
Plaintiff’s contention pleading would amend a ore terms or voce. This pleading permissible viva method of very old common law Blaekstone* our 293]; but [3 code con- *8 templates pleadings writing signed shall in 792, be S.R. [Sec. 1929, Ann., p. 1043], City Mo. Stat. Kansas of Appeals, Court Empire (Mo. Texas Pipe (2d) Line Co. 35 S. App.), v. Stewart 627, may petition orally. ruled a not bе amended al- “No legation in pleading shall be made a which the require law does not to proved 1929, Ann., . . .” 1037, be R. S. Stat. p. [See. among for, possible reasons, prevention the other of deception], irrelevant be matter stricken-out on motion R. S. [Sec. Ann., p. difficult, great Mo. Stat. It is matter how de- the 1039]. sire, asking to attorney conceive of an a for a dеfendant court to designation strike an essential to the of the law under which recovery. Although pleading may seeks a be amended to proved, with amendment, conform the facts an under the stat- such ute, only change is when amendment “does not allowable the sub- stantially Ann., the or R. claim S. Stat. [See. defense” p. provisions of are to construed to 1077], The оur code be so “as deceit, discourage, negligence as ... possible, as far parties being misled, place fault as party secure the if nearly possible as same no mistake in the condition would be known, certain re- made, had been . . afford fixed and and to judge quisitions in the or thereof” place of the discretion of court Ann., The term of p. R. Mо. Stat. “courts 1108], S. [Sec. making imports record, of record is the record” and nowhere justice, framing the Courts appropriate issues. more than in frank, encourage open contemplated by code, as' our should ’ signed by pleadings presentation definite of the real issues ambushing discourage attorneys or should their otherwise) litigants permitting pleading (bе of a loose it oral or ease; recovery upon paper a law in the un- not declared voluntarily join adversary procedure. less the in such If case, instant situation. had control allegations pleader prove the entertained doubt of his ability Act, recovery essential to a under the Federal have seeking recovery cоmmon law would been second count under the 489(1); proper (Mo.), 488,W. Milbum v. Schaff [Miller 1171, 1196, Chicago, M. P. & St. Railroad jury to the have been submitted 91(11)] and the issues could conflicting or on one or the other of both counts if the evidence one of counts tended to establish but the counts the evidence by striking allega ; ease, Miller or amendment supra] [the forced defendant tо question from the he could have tion Sullivan common law issues under the battle and submitted the [the to maintain ; course, plaintiff was not entitled case, unless, supra] the action. unnecessary deem we the view we
Under entertain presented. other issues to rule the (cid:127) awarding new trial trial court in It follows that the action of Cooley Westhues, (7(7., affirmed. It is so ordered. should be concur. adopted C.,
PEE foregoing opinion Bohling, CUEIAM: The judges concur. as All opinion of the court.