177 Mo. App. 699 | Mo. Ct. App. | 1913
Plaintiff commenced Ms action before a justice of the peace in the city of St. Louis against the defendant, there filing an amended statement in wMeh it is set out that he had entered into a contract with defendant for the removal of Ms (plaintiff’s) furniture and household goods from one house in the city to two others; that defendant had delivered one load of the goods but refused to deliver another at the house designated, hauling tMs load to a vacant lot some 295 feet from destination and leaving them there over night and part of the next day, from which plaintiff himself afterwards removed them; that on account of defendant’s refusal and of his leaving the goods, household furniture, on the vacant lot, exposed to the rain and to a blistering sun, various articles, were damaged. It is further set out in this statement, that by reason of defendant’s neglect to deliver the goods, plaintiff was obliged to hire men to carry them to Ms house and find board and lodging for himself and family for four days; that he had lost three days time in consequence of this, the latter items amounting to a sum of $19.75, the statement alleging that “for wMch plaintiff asks judgment in the sum of $19.75.” The first count, as it may be called, of the statement following this concludes: “Wherefore plaintiff on account of the damage to his goods aforesaid and for Ms lodging, prays judgment against the defendant in the sum of $221.” The further sum of $279 pumtive damages is asked, it being charged that the acts complained of were committed wantonly, negligently and maliciously.
Defendant filed an answer to this in the justice’s court, consisting of a general denial as also of a counterclaim of six dollars for hauling the two loads of furniture.
It is very earnestly argued that it appears on the face of the statement that the amount sued for was beyond the jurisdiction of the justice and that two causes of action, one in contract and one in tort, were improperly united in one action. We do not think that either proposition is tenable. It is true that plaintiff asks judgment for $19.75, for $221 and for $279, a total of $519.75, which is $19.75 above the jurisdiction of the justice. It is true, as argued, that the same cause must be tried in the circuit court that was tried before the justice but we do not think the circuit court committed any error in allowing the amendment which struck out the prayer for judgment for the $19.75. Statements of causes of action filed with justices of the peace are to be construed with great liberality. Parties bringing their actions in those courts are not supposed to be learned in the law and the niceties, of pleading required in the circuit court are not required before the justice. An examination of the items of damages claimed to the goods shows that they total $189.25 ; add to this the $19.75, which is itemized as the amount of expense
That count of the petition which seeks punitive damages appears to have been abandoned, not only in the justice’s court but in the circuit court, and as shown by the record in the case, as we read it, is out of the case. No instructions were asked or given on this
The learned counsel for appellant very strenuously insists that having recovered a judgment for fifty dollars before the justice of the peace and not having appealed, plaintiff was limited to that amount of recovery in the circuit court, citing for this section 7579, Revised Statutes 1909; Bridle et al. v. Grau, 42 Mo. 359; Gerber v. McCoy, 23 Mo. App. 295. Without pausing to consider whether this contention, which must proceed on the theory that the justice did have jurisdiction, is consistent with the challenge to the jurisdiction of the justice, as made by counsel for appellant, we hold that the section of the statute referred to does not support this claim. That section very distinctly provides that a case on appeal to the circuit court from that of the justice shall be tried anew “ without regarding any error defect or other imperfection in the original summons or the service thereof, or on the trial, judgment or other proceedings of the justice or constable in relation to the cause. ’ ’ This section of the statute has been construed in many cases .and we know of no case which holds that either party •on appeal was limited to the amount or concluded by the judgment of the justice in any manner whatever. It is true that in the Bridle case it is said: ‘ ‘ There was no appeal taken from the judgment of the justice by the plaintiffs, and it may very well be assumed that the excess was remitted,” the court adding, “At all events, they (plaintiffs) seem to have been satisfied with the .amount of the judgment rendered, and the circuit court •ought not to have gone beyond it. ’ ’ That expression is ■not only not necessarily within the decision in that case, but the decision itself, in seeming to hold that the question of the jurisdiction of the justice may be determined by the.amount of judgment rendered, is so contrary to many decisions of our Supreme Court that we
This disposes of the principal errors relied upon by the learned counsel for appellant, and it is hardly necessary to notice the other propositions further than to say that the objections to the testimony, and to the tendency of that testimony to support the verdict, are not tenable. There is another error assigned on the action of the trial court in refusing instructions asked by appellant. There was evidence in the case tending to show that plaintiff knew of the condition of the road over which the load of goods, the nondelivery of which was complained of, was hauled; that it was a new street and rendered soft by recent .rains, and that while' plaintiff knew of this, condition of the street, he did not advise defendant of the fact. Defendant asked instructions to the effect that if plaintiff was aware of this condition and did not inform defendant of it and that it was in consequence of. this that the goods could not be hauled to the place designated, then plaintiff could not recover. The court refused instructions along this line, and, as we think, correctly. The street was a public street and its condition at the time was as open to-the knowledge of defendant as to that of plaintiff. There is no pretense of any misrepresentation in the matter on the part of plaintiff, and no pretense that he-in any manner whatever, by his actions, words or conduct,; misled the defendant. The latter undertook to-haul the goods from one place to another for a stipulated price and to deliver them to a place designated and at a time designed. He failed in this. That his team became stalled in the new street and the wagon broke down—in point of fact it had broken down even before it started on the' trip—seems to have beén true. That plaintiff owed no duty to defendant as to inform
That defendant’s- driver unloaded the goods on a vacant lot and left them there that night and the next day, is clear. That they were damaged by reason of exposure to the action.of the rain and of the sun, is also clearly in evidence.
Appellant complains that proper and legal proof of the amount of damage was not made. We cannot agree to this proposition. It is true that testimony as to the amount of damage came from plaintiff alone. But he showed to the satisfaction of the trial court that he was a competent witness as to the damage, and certainly showed by his testimony sufficient knowledge of the value of the goods and of the amount of loss and damage he had sustained to warrant the jury in accepting his testimony on that. The verdict is within the amount testified to as the amount of damage.
We find no reversible error in the case. The judgment of the circuit court is affirmed.