Drake Ex Rel. Imes v. Kansas City Public Service Co.Drake Ex Rel. Imes v. Kansas City Public Service Co.
The case has been tried twice. The first trial resulted in a judgment for plaintiff for $5000. On appeal by defendant to the Kansas City Court of Appeals that court reversed the judgment and remanded the case because the trial court had excluded proof offered by defendant of a certain justice of the peace court judgment pleaded by defendant as a bar to plaintiff’s action. The Court of Appeals opinion is reported in 41 S. W. (2d) at page 1066. Thereafter plaintiff filed an amended or supplemental petition upon which the cause was tried the second time. The proceedings relative to said supplemental petition first call for consideration.
The suit was filed in the Circuit Court of Jackson County on April 5, 1928. Plaintiff being a minor, T. W. Imes was regularly appointed by that court next friend for plaintiff for the purpose of instituting and prosecuting the suit which was then brought by the same attorneys who have since prosecuted it. On the next day plaintiff’s
After the rendition and satisfaction of said judgment in the justice’s court defendant filed in the circuit court an amended answer in this case in which it pleaded said judgment of the justice of the peace court as a bar to plaintiff’s action. As we are advised by the opinion of the Court of Appeals, the plaintiff pleaded by reply the facts tending to show that the justice’s judgment was procured by defendant’s fraud and therefore void but did not ask to have it set aside nor, it seems, did he offer proof of the alleged fraud. It appears that the trial court, upon plaintiff’s objection to defendant’s offer of the justice’s judgment in evidence, excluded it. The Court of Appeals held that the justice’s judgment, being regular upon its face, was conclusive on the parties and a bar to the prosecution of plaintiff’s action “until set aside,” and that the trial court had erred in excluding it, for which reason the judgment of the circuit court was reversed and the cause remanded.
Following that reversal the plaintiff tendered and by leave of court filed in the circuit court the supplemental petition now in controversy. It is in two counts. The first is in equity, challenging the validity of the justice’s judgment and alleging facts showing its fraudulent character and praying that it be set aside. The second count is at law, pleading plaintiff’s cause of action for damages substantially as
The court heard evidence on said first count and at the conclusion thereof found the issues thereon for the plaintiff, gave interlocutory judgment declaring the justice’s judgment fraudulent and void and ordered that the cause proceed to trial and final judgment on the second count of the petition as though the justice’s judgment had not been rendered. After verdict thereon the court entered final judgment on the whole case, setting aside the justice’s judgment and for plaintiff on the verdict.
I. No contention is made that either count of the petition fails sufficiently to plead facts authorizing the relief sought if the matters pleaded in the first count can be brought into the case by supplemental petition under the circumstances, nor is it urged that the evidence introduced under said first count does not sustain the court’s finding thereon. It unquestionably does. Appellant’s sole contention here relating to the supplemental petition and the court’s action thereon is that by said first count it brings into the case a new and different cause of action not existing when the suit was filed but based upon facts which occurred thereafter, which appellant asserts cannot be done by supplemental petition in the original suit. In this connection appellant concedes that had the alleged fraudulent judgment been rendered prior to the filing of plaintiff’s suit in the circuit court he could properly have joined in his petition a count in equity for cancellation thereof with one at law for his damages. That he could do so was correctly decided by this court in Robison v. Floesch Construction Co., 291 Mo. 34, 236 S. W. 332, 20 A. L. R. 1239. [See, also, Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668.]
We do not agree with appellant’s contention. It may be conceded that a plaintiff cannot recover on a cause of action which did not exist when he sued and that he cannot abandon the cause of action sued on and by supplemental petition substitute another and different cause of action that has arisen since the filing of the suit. But, as will be pointed out more fully hereinafter, he may bring forward subsequently occurring facts that tend to strengthen or reinforce the cause of action originally pleaded. In this case plaintiff was not by his supplemental petition asserting or seeking recovery upon a new cause of action or one different from that originally pleaded. What he sought by both petitions was the recovery of a judgment for his
By statute,
In Childs v. The Kansas City, St. J. & C. B. Ry. Co., 117 Mo. 414, 436, 23 S. W. 373, it is said that supplemental pleadings were well known in equity “and as many of the sections of our practice act are
In Nave v. Adams, 107 Mo. 414, 421, 17 S. W. 958, 28 Am. St. Rep. 421, it is stated that it is permissible to bring forward by supplemental petition facts that have transpired since the institution of the suit, “which may tend to strengthen or reinforce the cause of action, or defense stated in the pleadings before the court.” This principle appears to be well established. In the Nave case the plaintiff sued to enjoin the enforcement of a deed of trust. Shortly thereafter another suit, West v. Bundy, was instituted. The parties in Nave v. Adams were parties to West v. Bundy. The case of Nave v. Adams was continued from time to time until West v. Bundy had been decided. Then by supplemental petition the judgment in West v. Bundy was brought in as a controlling fact to sustain the application for a permanent injunction. It was given effect by the trial court in granting the permanent injunction and this court affirmed the judgment.
The court applied the same principle in Cohn v. Souders et al., 175 Mo. 455, 75 S. W. 413. Plaintiff there sued to procure a permanent injunction restraining the sale of certain land under a deed of trust. After suit was filed the defendants sold other land covered by the deed of trust and released some personal property also included in said instrument. Plaintiffs then filed an amended petition in which they alleged such subsequent sale and release and that the money realized from the sale together with the value of the released property satisfied the debt secured by the deed of trust. It was contended that the amended or supplemental petition alleged a different cause of action. This court denied the contention, saying that the purpose of both the original and the amended petitions was the same, viz., to obtain a permanent injunction restraining the sale of the lot under the same deed of trust; that the relief sought was confined to the same subject matter and was the same in each; that the new facts alleged were not inconsistent with those alleged in the original petition and had arisen since the filing of the suit, and that our statute recognizes the right to bring before the court matter arising after the filing of the petition. Other cases, such as Childs v. Ry. Co., supra, recognize the right of a plaintiff to bring into the case by supplemental petition matters occurring after the filing of the suit and which show a continuation of the wrong alleged in the original petition. For further examples of the permissible scope of amended and supplemental pleadings, see Graef v. Bernard, 162 Mass. 300, 38 N. E. 503; Montague v. M. & K. Interurban Ry. Co. (Mo.), 233 S. W. 189; Fire Assn. of Philadelphia v. Strayhorn (Tex. Civ. App.), 165 S. W. 901; Muglers’ Iron Works v. City of New York, 115 N. Y. Supp. 916; Rio Grande Dam & Irr. Co. v. United States, 215 U. S. 266, 30 Sup. Ct. 97, 54 L. Ed. 190; Walker v. Wab. Railroad Co., 193 Mo. 453, 92 S. W. 83.
Defendant in this case invoked the principle stated in Nave v. Adams, supra, when it pleaded the justice’s judgment as a bar to plaintiff’s action but it attempts to deny plaintiff the right effectively to dispute that plea. That it may not do. We think plaintiff clearly had the right to maintain his cause of action by pleading and proving that the judgment interposed as a bar was fraudulent and void and having it so adjudged. The trial court ruled correctly in permitting the supplemental petition to be filed and refusing to strike it out.
Appellant cites in support of its contention on this point Childs v. Railway, supra; Clothing Co. v. Steidemann, 120 Mo. App. 519, 97 S. W. 220; Heman v. Glann, 129 Mo. 325, 31 S. W. 589; Heard v. Ritchey, 112 Mo. 516, 20 S. W. 799; Payne v. School Dist., 87 Mo. App. 415, and Jennings v. Cherry, 301 Mo. 321, 332, 257 S. W. 438. Those cases are distinguishable from this case on the facts and in our judgment do not sustain appellant’s contention here. The Jennings case, however, requires somewhat further notice. It was ejectment. The petition is not set out in the opinion. The defendants, to justify their possession, relied upon a deed and a judgment. By reply the plaintiffs pleaded that the deed and judgment were collusive and fraudulent, but apparently they did not offer to amend their petition or ask to have the deed and judgment canceled and set aside. The court held that under the facts shown the deed could not have been fraudulent and that the judgment was res adjudicata of the fact affecting the issue involved in the ejectment suit, but further observed:
“This was a departure in pleading; ‘the statement of matter which is not pursuant to the previous pleading of the same party and which does not support and fortify it. The reply or replication must not depart from the complaint, petition or declaration, and it follows that the new cause of action cannot be set up in the reply.’” [301 Mo. l. c. 332.]
Had plaintiffs in that case sought to amend their pleading and attack by an appropriate plea the validity of the deed and judgment relied upon by the defendants as a defense to the plaintiffs’ cause of action we think they would have been entitled to do so. We do not think such amendment would have been obnoxious to the rule forbidding amendments changing the cause of action.
II. Appellant contends that reversible error was committed in permitting the testimony of Norman Brown, given at the first trial, to be read from the bill of exceptions then taken and filed. The trial on the second count of the petition was scheduled for and began on April 20, 1932. It sufficiently appears that Brown resided in Kansas
(a) We think that as against the objection offered by defendant the plaintiff made a sufficient prima facie showing to authorize the admission of the transcript. Objections to evidence must be specific and are to be determined upon the grounds stated therein. [See State v. Click (Mo.), 57 S. W. (2d) 1077, and cases cited.] The only objection offered was that the witness was within the jurisdiction of the court and was under subpoena, the suggestion that he was within the court’s jurisdiction being based, as defendant’s counsel admitted, solely upon the fact that he had been subpoenaed in Kansas
In Gaul v. Wenger, 19 Mo. 541, cited by appellant, the witness had stated in his deposition that he expected to go to Europe. At the trial more than three months later the deposition was offered and was admitted without any further showing. The court held the statement insufficient to show that he did go or that he went and had not returned, but said that “the court might have been satisfied, after such declaration upon oath, with very slight evidence that he had actually gone and that he had not returned.” [See, also, Averitt v. Met. St. Ry. Co., 151 Mo. App. 265, 131 S. W. 752.]
In O’Brien v. St. Louis Transit Co., 212 Mo. 59, 110 S. W. 705, chiefly relied upon by appellant, the objection was that there had been no showing that the witness whose testimony as preserved in a bill of exceptions was offered, was not a resident of the county in which the trial was had. It appears there was no showing of any kind made by the party offering the transcript for not having the witness present.
In Francis v. Willits (Mo. App.), 30 S. W. (2d) 203, the objection offered challenged the failure to show that the witness was not within forty miles of the place of trial, a statutory ground for using the transcript, and it does not appear that an attachment had been unavailingly issued for the witness. We think that case and the other cases cited by appellant are distinguishable from the instant case.
In our instant case in determining this point we are not taking into consideration evidence heard by the court of its own motion upon the hearing of defendant’s motion for new trial. The motion was not acted upon at the trial term but was continued to the succeeding term. At that time the court called Brown before it and heard his explanation for his absence from the trial, from which it appeared that on the twentieth of April, the day he should have appeared in answer to the subpoena, he was in fact in Kansas on business for his employer; that upon returning that night he got the message left
(b) In considering this objection on its merits we have not overlooked respondent’s contention that it is not preserved in the motion for new trial so as to present it for review, a contention in which we are inclined to think there is merit.
The only allegation in the motion for new trial that could have reference to it is: “The court erred in admitting improper, illegal and incompetent testimony upon the part of the plaintiff, over the objection and exception of defendant.” That allegation seems to us to strike at the competency of the testimony itself rather than at the manner in which it was introduced. There is a material difference between an objection to evidence as incompetent and an objection as to the competency of a witness to testify, and it has been held that an allegation in a motion for new trial such as that here is not sufficient to present for review an objection to the competency of the witness to give the testimony. [See Howard v. Hurst, Admr., 163 Mo. App. 641, 147 S. W. 496; Alexander v. Sov. Camp Woodmen of the World, 193 Mo. App. 411, 186 S. W. 2; Big Tarkio Drainage Dist. v. Lamar (Mo. App.), 199 S. W. 727.] In the latter case such allegation in the motion for new trial was held insufficient to assign error in overruling an objection made at the trial that tax books offered in evidence had not been returned to the collector and had not been verified as required by statute; that while assignments in the motion may be in general terms, as held by this court in Wampler v. Railroad, 269 Mo. 464, 190 S. W. 908 (and, we may add, in subsequent cases), yet such general terms must cover the point of objection made in the appellate court, and that the points urged for reversal were not by fair intendment embraced in the motion. In In re McMenamy’s Guardianship, 307 Mo. 98, 126, 127, 270 S. W. 662, 671, it is in effect held that an objection to the competency of evidence does not challenge the competency of the witness.
(c) Even if the transcript of Brown’s testimony was erroneously admitted we are not persuaded that its admission was prejudicial. Brown corroborated plaintiff as to the location and description of the hole in the pavement and as to the fact that the motorcycle ran into it. Brown’s testimony was somewhat more explicit than that of plaintiff as to the exact location of the hole with reference to its distance from the next street intersection north, which is not
The erroneous admission of evidence which is merely cumulative when without it there is ample uncontradicted evidence to support the judgment and it is apparent that the result would have been the same without such evidence erroneously admitted, will not justify reversal. [
III. Appellant contends that plaintiff’s principal Instruction, No. 1, is prejudicially erroneous, in that it imposes upon the defendant the duty to use ordinary care to keep the pavement in an absolutely safe condition rather than in a reasonably safe condition,
“The court instructs the jury that it was the duty of defendant Kansas City Public Service Company to pave the streets between its tracks and between the rails thereof and to exercise ordinary care to keep the same in good condition and repair so that the same would in nowise obstruct or hinder travel upon the street or any part thereof upon which said track or tracks might be located and that any failure on the part of Kansas City Public Service Company to observe and perform this duty would be negligence.
“You are therefore further instructed that if you find and believe from the evidence that on or about February 26, 1928, Summit Street at the time and place referred to in evidence was a public street in and of Kansas City, Missouri, and that defendant’s street car tracks were laid thereon and therein and that at said time the paving thereof was broken and cracked and there was a cavity or a hole therein between the northbound car track and the southbound car track at the place referred to in evidence between Twenty-fifth Street and Twenty-sixth Street and between seventy-five and a hundred and fifty feet south of the intersection of said Summit Street with said Twenty-fifth Street, if you so find, and that said broken place or hole, if any, extended along and upon the surface of said street for several feet north and south and was several inches deep, if you so find, and that by reason thereof said street at said point was dangerous and not reasonably safe for the ordinary use of the public while traveling thereon and thereover in the exercise of ordinary care for their own safety, if so, and that said condition in said street existed for a number of days before said date and long enough prior thereto that defendant knew or by the exercise of ordinary care would have known thereof and all the facts aforesaid, if you find them to be the facts, before plaintiff was injured, if so, and in time by the exercise of ordinary care to have repaired or remedied said conditions and dangers, if any, before said time and thereby could have prevented plaintiff being injured, if so, and that the defendant failed to exercise ordinary care so to do and was thereby guilty of negligence (as the term ‘negligence’ is defined in other instructions herein), if so, and that on said February 26, 1928, plaintiff was riding northwardly on said Summit Street on a motorcycle at said place above described, if so, and that then and there said motorcycle ran into the aforesaid hole, if so, and plaintiff was thereby jarred and shaken and his right foot caused to be caught and entangled in the rear wheel of said motorcycle, if so, and that plaintiff was thereby injured, if so, and that his said injuries, if any, resulted directly from said negligence, if any, on the part of defendant, if you so find, and that plaintiff was at all the times referred to in evidence in the exercise of ordinary care for his
own safety, if so, then your verdict must be for plaintiff and against defendant.” (Italics ours.)
By another instruction, No. 2, given for plaintiff, the court told the jury that “ordinary care,” as applied to defendant, meant “such care as would usually be exercised by an ordinarily careful and prudent person under the same or similar circumstances as those referred to in the evidence,” and appropriately defined the term as applied to plaintiff, and that “negligence means any failure on the part of such respective parties to exercise ordinary care.” No criticism is offered of Instruction No. 2 or of the second paragraph of Instruction No. 1. The objection is to the first paragraph of Instruction No. 1.
The franchise granted defendant and the ordinance passed pursuant thereto require defendant to keep the pavement between its tracks “in good condition and repair,” etc., in the language of said first paragraph of the instruction. They were pleaded by plaintiff but we think the effect of such pleading was to show defendant’s duty to maintain the street rather than to state violation thereof as the basis for recovery. The petition charges that defendant was negligent “in suffering and permitting said hole to exist . . . and in not keeping said street ... in a reasonably safe condition for public use.” We shall therefore, as appellant insists should be done, treat defendant’s duty in the premises from the same standpoint as would govern if the city were defendant, holding defendant only to the duty of using ordinary care to keep the street in a reasonably safe condition. Measured by that standard, paragraph 1 of the instruction, standing alone, probably states defendant’s duty too broadly. [See Clardy v. K. C. Pub. Serv. Co. (Mo. App.), 42 S. W. (2d) 370; Cooper v. City of Caruthersville (Mo. App.), 264 S. W. 46; Albritton v. Kansas City, 192 Mo. App. 574, 188 S. W. 239.] Appellant cites those cases and a number of others, mostly master and servant cases stating in general terms the doctrine that a master is bound only to use ordinary care to furnish the servant a reasonably safe place to work or reasonably safe appliances; also cases such as State ex rel. Long v. Ellison, 272 Mo. 571, 199 S. W. 984, holding that where the plaintiff’s instruction, purporting to cover the whole case and directing a verdict upon a finding of the hypothesized facts, omits an element of negligence essential to recovery, the omission is not cured by a correct instruction given for defendant, there being then irreconcilable conflict in the instructions. The point under consideration in the case at bar, however, is not the same as that decided in State ex rel. v. Ellison.
In Bradley v. C. M. & St. P. Ry. Co., 138 Mo. 293, 307, 39 S. W. 763, an instruction was given for plaintiff, the first part of which told the jury that it was the defendant’s duty to use ordinary care and diligence to provide the plaintiff a “safe place to work.” The subsequent part of the instruction, however, pointed out the facts
In Munden v. Kansas City, 225 Mo. App. 791, 38 S. W. (2d) 540, an instruction, No. 2, for the plaintiff, directing a verdict on a finding of the facts hypothesized therein, stated defendant’s duty too broadly in the first paragraph, as does the one here complained of; but it was held that subsequent portions of the instruction, directing the facts to be found to entitle the plaintiff to a verdict, cured the error. The opinion was written by the same learned Commissioner who wrote the Clardy case. In the Clardy case the court did not decide whether or not the error in the first paragraph of the instruction was so cured, because of other and fatal error therein.
The principle stated in the Bradley case was applied to instructions containing similarly erroneous general statements in Garard v. Manufacturers’ Coal & Coke Co., 207 Mo. 242, 105 S. W. 767; Schulte v. Carmichael-Cryder Co. (Mo. App.), 282 S. W. 181; Hutson v. Missouri Stair Co. (Mo. App.), 296 S. W. 216; Schroeder v. Wells (Mo.), 298 S. W. 806, 810, 811.
In the Clardy, Cooper and Albritton cases, supra, there were no curative directions in the instructions complained of or in other instructions, qualifying and explaining the erroneous general statements and correctly telling the jury the facts to be found to create liability. In the instant case, after the abstract general statement in the first paragraph of the instruction, the second paragraph requires the jury to find certain facts as to the condition of the street and that by reason thereof it was “dangerous and not reasonably safe” (in the conjunctive) and that the defendant knew or should have known thereof in time by the exercise of ordinary care to have repaired it, and failed to exercise such care and was thereby guilty of negligence (as the term negligence is defined in other instructions), etc. The facts required to be found to establish liability and the measure of defendant’s duty are correctly set forth in that part of the instructions which purports to tell the jury what they must find in order to return a verdict for plaintiff. The first paragraph is thus explained and qualified and the error therein, if it is error, rendered harmless.
Appellant argues that the word “negligence” used in the second paragraph refers or may have been understood by the jury to refer to the “negligence” mentioned in the first paragraph. We think it clearly refers to the negligence described in the second paragraph, predicated upon the facts therein required to be found and as defined in Instruction No. 2, and that the instruction was not misleading.
PER CURIAM:—The foregoing opinion by Cooley, C., is adopted as the opinion of the court. Ellison, P. J., and Tipton, J., concur; Leedy, J., not sitting.