96 Mo. 168 | Mo. | 1888
This is an action to recover damages for injuries alleged to have been sustained by Sarah Hurst (wife of her co-plaintiff) in consequence of the negligence of defendant in allowing an obstruction on Main street in said city. On the trial, plaintiffs obtained judgment for five thousand dollars, from which defendant has appealed, and while the record shows that during the progress of the trial a number of objections were made by defendant and exceptions saved, the only points made in the brief of counsel are, that the petition does not state a cause of action in that it fails .to allege defendant had notice of the obstruction that caused the injury or to allege facts or circumstances from which notice might be legally inferred ; and that the defective petition is not cured by the verdict and judgment.
The points made we will proceed to consider,’ and so much of the petition as is necessary to their consideration is as follows : It alleges that defendant is a city of the fourth class * * * and by the laws of its creation has fulí and absolute control • over the streets
The answer of defendant set up contributory negligence on the part of plaintiffs and denied every allegation of the petition not admitted by the answer. On the trial, defendant objected to the introduction of any evidence on the ground that the petition did not state a cause of action. • This objection was overruled and the trial proceeded with the result above announced. In the case of Bowie v. Kansas City, 51 Mo. 454, the allegation of the petition was that plaintiff’s father, while exercising ordinary care in wálking on a street of said city, fell into an opening or excavation in said sidewalk which was negligently and carelessly suffered to be left open by the defendant. It is held that the petition, though defective, was good after verdict,- and in the disposition of the question it is said: ‘ ‘ The petition in this case was inartificially drawn and a motion to make
It is clearly indicated in the above case that for such a defect in the petition as defendant complains of, it should have resorted either to a motion to make the petition more definite, or to a demurrer. In the case before us defendant did not resort to either of these methods, but on the trial objected to the introduction of any evidence because of such defect, and it is expressly held in the case of Grove v. City of Kansas, 75 Mo. at p. 675, that this cannot be done. It is there said, after referring to the cases of Bowie v. Kansas City, 51 Mo. 454, and Elfrank v. Seiler, 54 Mo. 134, that “the doc-, trine of these cases taken together is, first, that ‘ if a material matter be not expressly averred in the pleadings but is'necessarily implied from what is expressly stated therein, the defect is cured by verdict in favor of the party so pleading, on the presumption that he has proved on the .trial the facts insufficiently averred ; ’ and, secondly, that if the defendant, in such cases, pleads to the merits he thereby waives objections to mere formal
Judgment affirmed.