*1 1923. Vоl. OCTOBER Blythe ex rel. v. Trimble. State plaintiffs think the of tlie case we view right to sne. Accordingly All concur. is affirmed. Deeds, Cye. Trusts, 2: 18 C. J. sec. Headnote Headnote 1: 633. Instruments, Head- of 188. Cancellation C. J. sec. Headnote 3: 130. 17; Equity, Instruments, J.'C. 4: Cancellation of J. sec. note 9 C. secs. 265. FRAN- J. BLYTHE v. ex rel. SAMUEL THE STATE City Judge of Kansas et al., H. TRIMBLE CIS Appeals. Court Two, 1924.
Division March Discharged Ad- in Name DEATH OF Bevivor 1. PLAINTIFF: plaintiff of his suit the institution ministrator. dies after Where has who the name of his administrator it cannot be revived in finally discharged. been made final settlement and Where, Surprise. plaintiff al- Answer: -: -: Amended legally appointed, leged that he was the in his amended plaintiff, original acting and qualified and administrator representa- plaintiff’s has denied in his answer thereto defendant plaintiff proves had in capacity fact trial and at tive discharged previously nearly year madе final settlement and conforming administrator, filing amended answer as such surprise upon plaintiff, proof leave to can work no to such granted. should be the same file Against One Two Suits: Suit Bond: Dissolution: INJUNCTION: dissolution, injunction, upon plaintiff Obligors. its in an therefrom, resulting damages all to defendant for on his bond subsequent wrong, they plaintiff’s or the own arise from whether bringing wrong, concurring wrongs with his his sureties suing suit; cannot for bond defendant and the action; split and recovered on if he has sued his cause alone, plaintiff against maintain another he cannot a suit alone, against plaintiff against or the sureties the bond suit on might sureties, have been recovered in for ruling especially suit; this be the where should his first acting in concert. The defendant were his sureties dissolution, may wrongdoers injunction, sue all its jointly, separately injury, contributing or- but for either to his wrong one satisfaction. trespass have but he can one Certiorari. Ahpeals
Opinion quashed. of Ooubt MISSOURI, OP COURT ex rel. Waggenor, Challis & Crane relators. refusing
(1) to abate the The court erred action *2 showing upon upon the motion of defendants made George A. had a final court that made Woolston A. B. Woolston, deceased, settlement of the estate of discharged administrator. v. been as such Goebel Grayson App. 8 63 Weddle, Mo. v. Mo. 443; 539; Foster, (2) 308. The court erred in over- Prior v. 96 Kiso, Mo. ruling defendants, demurrers of each upon no for the reasons there evidence them, for the reason there had been a verdict, to base plaintiff upon by recovery bond which an damages. v. Mo. 83 Kansas, covered same James City Railway, v. Smith v. 567; 414; Bunten 50 Mo. Railway 159 107; 244 Mo. Powers v. Mo. ’Sedalia, Co., (3) giving 87. The court erred in the instruction re- quested damages by plaintiff, for the reasons the as- injunction bond in the case of B. F. Moore sessed on the adjuclicata against et al. et of this al., was res the.injunc- payment judgment and the of the action, in this case was satisfac- tion bond the defendants a plaintiff herein. The court erred tion of the claim of the ruling, rulings sustaining because its on the mat- contradictory Supreme ter were to the decisions of the rulings complained in the of: Court. There was error (a) before tem- Missouri, Because under the laws granted porary and become can be effective, given by plaintiffs must favor of the bond be damages plaintiffs pay will all de- defendants, temporary of the in- the issuance fendants junction. damages all to cover The bond is intended Holloway, Holloway every v. kind or nature. damages injury (b) 284. for done caused The action for upon wrongfully, injunction, of an issuance given cannot be maintained and a suit action, injunction wrongfully the issuance of without brought maliciously. Louis St. unless the suit bond, Gaslight App. v. 4 354; Bank, Keber v. 1923. OCTOBER v.
State ex
Trimble.
App.
Campbell
195, 505; Teasdale v. Jones, 40 Mo.
243;
App.
Hayden
Carroll, Mo.
640;
20 N. W.
Keeth,
(e)
recovery
and its satis-
adjudicata
faction
present
res
action for dam-
ages.
single
recovery
wrong.
There can be but one
for a
Barton v.
30 Y.
Fish, N.
Ellis v.
166;
Crowl, Kan.
;
(d)
Crockett
Miller, 112 Fed.
Under the bond,
A. B. Woolston and A.
could
G. Woolston
have recovered
damages
sued
in this
on their
action,
motion
damages
to have the
assessed
the action
Platt Coun-
ty.
Meysenburg,
Alexander v. Colcord, 85 111.
Schlieper,
(e)
Trustee v.
bond,
up,
recovery
part
and the
of a
bars the
*3
Ill;
action for
v. Dent,
thé balance. Stewart
24 Mo.
Savings
Franke,
Railroad Co. v.
Mo. 355;
59
Bank v.
Tracy,
McReynoldsV. Railway
the but the independent, intervening, proximate of an the result namely, the tort of cause, relators. Before sole one wrongful respond damages, in made to his act must proximate injury been the cause of the suffered. have Depot Stepp Stanley Company, v. Union 606; Cavanaugh, Railroad, Butz v. 137 Mo. party (4) a assumé both that Moore was to Relators joint opin- suit and a tortfeasor The the relators. party not that Moore a to the ion does was ever state petition, The the court will refer to as- action. parties, party does name de- certain not Moore as party Moore had been fendant. Relators contended that respondent beginning, suit in case to the while respondents opin- it. denied And the statement of originаlly “It no if Moore was makes difference ion, go party jury against not suit; made a it did to the go in answer to con- him we that,” so need into aof counsel, and not the statement fact tentions previously party. been Moore had opinions and to review C. Certiorari
HIGBEE, Appeals City Kansas Court of Wool to recover al., an action 145, et S. W. ston v. plaintiff, by damages alleged have sustained Sugar by waters of diversion of Woolston, A. B. consequence plaintiff’s of which farm, Creek 1908, 1909 years for the lost the use thereof insti- A brief will suffice. The suit statement August relators, 1911. It asserted tuted joined plaintiff, B. F. Moore but denied petition later ac- and that a co-defendant as is obscure on tion dismissed as him. original point; petition in the abstract. was re- trial, before the cause died Gfeorge administra- A. vived the name of filеd a second amend- tor The administrator estate. plaintiff, February on which ed *5 MISSOURI, COURT OF Blythe ex rel. v. Trimble. State punitive for recovered actual and verdict, damages, appeal. on affirmed
Plaintiff huilt levee on the east side of his farm protect year 1907to from the overflow of the waters Sugar year In the fall of that a freshet caused Creek. April, plaintiff this levee. undertook break 1908, proceeded repair far this but break, before injunc- temporary B. F. Moore sued out a work repairing restraining him from it. Moore filed the tion injunction with four of the relators as sure- bond, usual day served, after ties thereon. On this writ thirty employees, cut their a swath relators, with twenty-five-acre through forty feet wide the willows on plaintiff’s lying a section of farm, tract plaintiff’s east of removed - at the west and cut swath, fence end end thereof, bank of the creek at the east down west descended, so when and the rains the floods came plaintiff’s farm was and he lost use thereof flooded, years for 1910. The 1909 and 1908, year plaintiff at re- when once dissolved 1910, paired his levee. Plaintiff’s paid. were These assessed at and same
bond were $1600 the farm. the use did include loss August 17, suit was thereafter instituted on This Greorge petition, alleging amended second qualified appointed, legally and act- A. Woolston was the ing de- Woolston, of A. B. the estate administrator of February day 12, ceased, filed allegation was denied trial. The recites day. at It states that answer also filed on the same “suggested plaintiff’s case, defendant close of proved April had filed that on discharged finally ad- and had been final settlement deceased,” Woolston, of the estate of A. B. ministrator motion action, which court to abate the and moved the offered,'and was refused was overruled. defendant facts, up setting those file leave, to an amended answer TEEM, OCTOBEB ex reí. *6 jury they court The instructed “that should dis- regard judgment assessing damages all evidence of the upon injunction Moore Case; that said judgment constituted no defense this case.” At paragraph opinion, close of 20 of the learned the court said: respondent’s
“The witness as shown in Barnes, ad- ditional abstract of the testified record, that there nowas running through water the swath at the time the willows placed. being damages were cut and No to the land or crops upon were asked or assessed the bond. However, permitted repair during Woolston was not levee his pеndency of the suit, and no doubt he damages, any, could have recovered in that suit for by resulting prevention, to him reason of such but he any damages against not could recover defendants they parties bar the case at for the reason that were not to the and, before suit, stated, as this cause of action is by caused their acts alone. The only damages, plaintiff’s jury asked for those instructions were confined to such as were suf- by plaintiff’s fered intestate, the affirmative pleaded petition. acts think, defendants We agginst present- was then, this suit maintainable defendants in the case, that the action of the court orig- proper. was It makes no difference if Moore was inally party go jury made to this suit; did not against go we need not that. him, so into judicata.” in suit [251 res ad S. W. l. c. opinion, page
In thе learned at it is also said: plaintiff’s suggested “At the close of defendant case, proved April 4, 1917, filed finally discharged final settlement and had been A. B. administrator of estate of Woolston. De- fendants then the court to abate the action moved because George A. Woolston not then such administrator. The motion to abate overruled where- court, Sup. 302 Mo. —45.
70C COURT OF MISSOURI, ex rel. v-. Trimble. asked defendants leave to amend their answer facts. an- up said first setting court ruled that could be so and that amended, swer the plaintiff might amendment, move to out the strike and this was done.” I. It .opinion the learned that at appears defendants, plaintiff’s close of evidence sug- chief, that on the admin- gested “proved” April
istrator had filed his final settlement and discharged and moved the court BfeuV°^^£^ame abate the because action A. Wool George Administrator. ston then administrator. court counsel, the refused leave to file arguments After *7 the final answer settlement averring the amended and April administrator 4, 1917, of the con- discharge proofs admitted evidence. formity already this refusal Appeals justifies The learned Court of under 1919, Revised 1351, Sections Statutes 1346,1347 in case deal with the revival actions mar- death, a riage or to an action. disability party Obviously, no or application of the statutes have rele- these sections case in hand. vancy
The death of A. B. was suggested "Woolston A. in the name of George was Woolston cause revived and the second deceased, as administrator amended 1918, he averring that February filed was and acting ad- appointed, qualified then the legally was year hе after had ministrator said deceased, nearly no such pretended There then ad- been discharged. was George existence. A. administration ministrator personal representative no longer had B. no authority A. Woolston the deceased therefor. The or to act administra- his estate represent The order closed; tion had been functus officio. and unauthorized revival without warrant “The ad Kiso, the statute. 314.] [Prior discharged, therefore ministrator (Banter) Weddle, [Grayson no act.” could longer Hetherlin, also See Wright 99.] OCTOBER State ex Tel. v. Trimhle.
In the circumstances of this case there can be no granting merit in the contention that the leave to file the conforming proof already amended answer to the ad- surprise plaintiff, would work duced who was mas- querading filing that its administrator, was dis- cretionаry original with the court. The answer denied representative capacity. opin- We think the learned clearly ion is in conflict with the decisions court this supra. cited opinion approves given
II. The an instruction jury “they disregard should all evidence of the
judgment assessing damages upon, the in- injunction bond in the Moore Case; said Damagesnt no constituted defense in this case.” [Par. on the bond were assessed and paid before suit this was instituted. protected
A. B. Woolston’s land overflow Sugar water from Creek a levee on the east line of his farm. A freshet 1907 had caused washout this levee. The Moore pairing restrained him from re- gap. injunc- opinion, this As stated in the repair permit gap did him tion during this break in the pendency. its On its dissolution in he im- repaired gap. mediately tied his *8 proximate and was the cause оf the of the hands loss use during years of his farm the 1909 and 1910. It is repaired, not contended that the if would levee, not have injunction averted from his farm. The the water required by in the is in the form referred to the (Sec. 1919); R. it is in $2000, statute S. the sum of obligors pay that the shall all sums and is conditioned damages money, adjudged that shall and costs be against injunction if the be dissolved. them said shall damages general be
The rule that the assessed injunction of the on the bond on the dissolution “are only proximate the as are actual and re- such and restraining Holloway, [Holloway v. sult of order.” Schlieper, Meysenburg 48 Mo. Al- 431; 103 Mo. v. 284; OF MISSOURI, COURT ex v. Trimble. Spencer, Kennedy’s Mo. 630; Comm. Co. v. Ad- bers obligors 341.] The ministratrix v. Hammond, damages directly clearly occasioned for all were expressly by restrained which "Woolston closing from the break in the levee. direct and inevitable result of this that water continued to years during the use of his farm and lost flood by loss caused mentioned. This clearly might that have been element considered damages on the bond. This is assessment con- opinion. ceded in the argued, damages
III. that however, It is suf- hy use the farm were fered caused loss turning onto the the water acts defendants that can claimed farm. most
Woolston respect they in this tributing is that what did was a con- per- cause. If Woolston had been splitting repair his levee water mitted to could not land and the acts of the reached his defendants have conceding But, him. have harmed would independently Moore, whether acted con- defendants currently subsequently, or their acts contributed consequence damages in- sustained repairing junction restrained from his him levee. all Moоre hable his bond for case In either flowing onto the the waters farm [Bragg through Ry. v. Met. St. the broken levee. Co., Railway 169 Mo. Newcomb City l.Mo. c. Cameron, it is In Neff said: elementary law that the common one
“It wrong may have his indem amends, who has suffered participating reparation nity one wrong. seq.] [Bragg c. Mo. l. 359 et Railroad, wrong C recover C, A and B Thus, put Bishop from both. A or B or from either As person 573), ‘A (Bishop sec. Law, who on Non-Contract *9 wrong working any part harm to of another, has done OCTOBER State ex rel. Trimble. responsible will Mm
or even contributed Ms is it, damages many in- for tbe entire however other barm, things co-operated may forces and have dividuals, ” bringing the mischief.’ about quote City also Brash of We St. Louis, : 437 general question in “The on the issue on doctrine & is thus stated in Shearman instructions Redfield (5 Negligence agreed Ed.) universally 'It is sec. concurring damage if is caused force of negligence other force which defendant’s some or responsible, including Glod,” not “the act of he is superMiman intervening, force defendant nevertheless is proximate responsible, negligence his one damage, already given. the definition causes within agreed negligence if the of the defendant It is also injury point the other cause of time concurs with directly place, or otherwise so contributes to the damage, plaintiff’s reasonably certain that it is that the produce not have sufficed to it, other cause alone would notwithstanding the defendant is have liable, superior anticipated force, interference produced negligence concurring his dam- own superior age. produced But damage force would have if the negligent had been same whether defendant negligence the cause or deemed not, his ” injury.’ ' concededly being his for all Moore injunction, upon damages dis- occasioned its have all such was entitled to solution Woolston split his cause of not allowed assessed. He was part By recovery of his action. judgment. merged in the
entire of action was cause Savings Tracey, Bank [Wheeler cited.] cases wrongdoers might all the
IV. have sued jointly, separately injury, contributing either to his *10 710 SUPREME COURT OF MISSOURI, Blythe
State ex rel. prosecuted his action or actions to onsalisfaction judgment, trespass wrong but tor one [Page can have but one satisfaction.” Freeman, v. 19 having “A 422.] sufficient atonement been made trespass, for the the whole matter is at an end. It is as though wrong [Dulaney had never been donе.” Buffum, Mo. l. c. sev 16, 17.] release A of one of joint operates eral discharge tortfeasors as a of the Railway [Hubbard others. cited App. Judd v. Walker, Mo. foregoing
V. Aside from the considerations, there' ample opinion, as shown the learned to evidence, findin'g by jury suing warrant out the writ of Moore and the re- concertofaction acting lators were in concert. Four of the re- day lators are sureties bond. On the pursuant previous after the service of the writ, to ar- rangement, appeared upon twenty-five- the relators protection injunction, acre tract under the and, of the through cut the swath willows later did the other complained jury might acts of. At least a have so found. giving paragraph of the instruction to in referred prejudicial 2 was error. opinion Ap-
We think the learned Court of peals previous rulings contrary is to the last this court accordingly quashed. Bailey, and its C., concurs. foregoing opinion
PER of IIigbee, CURIAM:-The adopted hereby as the court. All C., judges paragraph concur; White, J., result. Rehearing. Motion
On eob respondents earnestly in for HIGBEE, J. -Counsel sist that trial at the close of court, the refusal of the (defendants plaintiff, permit evidence relators court) pleading in the trial an amended answer file ' 302]' OCTOBER Trimble. ex Wools- plaintiff, estate A. B. administrator prior final settlement had filed ton, trial, dis discharged, sound matter within the was a They appeal. not reviewable cretion the court and (251 c.W. l. court of the trial S. refer to 149) statement judge, said: alia, inter learned ‘£ per position Iif here; the court is Therefore my notion under mit this answer be filed case, *11 compellеd that suit; abate the I will to will have and be matter it comes down to a Therefore would follow. pure simple This amendment and discretion. goes noth that has or case;
amendment to merits adju parties justice ing between to do with the these dicating: rights if ... fact that, In view of the their automatically I goes case refuse this answer to be filed, will be out on on, and case tried and tried I merits. issues, and decided on its On other as hand, inevitably permit it said, filed, be I to then follows , court that the must . . abate, case Therefore the ’’ grant will not leave file the amended to answer. right pleading I. to Our decisions on to amend a proved conform to the facts are uniform so and numerous opinion, in our that we did not discuss them but coun- privilege discretionary sel insist that the of amendment is subject appeal, and is to to reviеw on we will refer some our decisions.
Respondents Mfg. call attention Co. v. to Beattie S. W. Gerardi, Levels v. Railroad l. Co., Dudley c. v. Railroad 238 Mo. and 184, cited Appeals. [See considered Court of also Gross In neither Watts, 392.] of these cases was the pleading amendment offered be conform to to made proved. Dudley the facts Case, Yalzjant, J., said, page 186: “It been that an has held amendment made proof.’ after the close the evidence ‘to conform to the App. [Baltis v. Friend, amendment This granted ground, was asked and on that ‘to conform the MISSOURI, COURT OF
State ex rel. pre- proof.’ proof in form a But there no the case to ” . . for the amendment. text Appeals opinion the Court states February day George trial, A. on the petition alleging- an amended that he had 1918,filed ‘ ‘ appointеd duly qualified acting ad- then the and was ministrator of the estate of B. Alfred At Woolston. suggested plaintiff’s defendant case, close proved April that on final 4, 1917, filed his finally discharged settlement had been as administra- tor of the B. estate of A. Woolston.” appear objec- any
It does not from the tion evidence, was made to admission of this nor is there contention that the administration not been discharged closed and administrator more ten than months before the second amended was filed that the action should not abated. have The contention proof general now is .that the was not admissible under a denial and that the refusing discretion of the court in permit the defendants to file an amended answer at *12 pleading discharge trial, the final settlement and the of administrator to conform prоved, to the re- facts is not appeal. undoubtedly on viewable It is true that the deny appointment plaintiff defendants intended to the as administrator specifically the answer should have alegations petition denied the respect. in that Un- allegation specifically til such was denied, required prove appointment. to [Levels v. Rail supra, road, l. c. 614.] But our attention has not been any called to decision of holding this court that under a general denial the final discharge settlement and the may administrator any be shown. We have held that fact, the effect of which is to show an state essential plaintiff’s ment in the cause of action may is untrue, be proven general under the denial and therefore should specifically pleaded. be [Bolton Ry. v. Mo. Pac. Co., Mo. 102.] At common law, where an or administrator pending resigns, executor suit discharged, removed or OCTOBER ex
State knowledge brought of the court be this fact must judg plea a puis or continuance, darrein in abatement J. [24 against him. C. will bind ment defendant rendered 832, sec. upon proof dis- opinion learned states
charge moved the defendants administrator, George A. because cotirt to abate action over- administrator; that said motion not then such amend whereupon leave to asked ruled, defendants up by setting learned Is the their said facts. answer holding Appeals, that the trial in Gourt of refusing permit defend- to no error in court committed facts conform to answer to ants to amend their' proved, controlling harmony this in decisions of court? Ry. Montgomery & Kan. v. Mo. Inter. court trial it was held that S. W. striking
abused its discretion out amended pаge reversed. J., Walker, 304, said: power regard courts
“While origin pleadings had its amendment of common law, recognition many given legislative power has been amplify the effect of and liberalize states, ju- rulings regard, only by courts’ in that limited sound applicable particular in each dicial discretion the facts case. authorizing
“The statute of this amend- such provides exceedingly liberal that: ‘The ments is may, any judgment, court time before final further- at proper, justice, ance of terms as pleading, process, entry, or record, amend return proceedings, by adding striking other or out the name any party, by correcting name of mistake *13 party, inserting respect, or a mistake in other or allegations other material to the when case, or the amend- change substantially ment does defensе, the-claim or by conforming pleading proceeding or the facts to proved.’ [Sec. R. S. 1274,
714 CF MISSOURI, SUPREME COURT
State ex rel. ‘‘ epigram prompts liberal statute trend interpretation allow to rule is matic of same that the exception and that amendments; them; to refuse court should not be liberal construction less [Corrigan Brady, it is in statute than its declarations. App. 453; Lott Duncan, l. Mo. Mo. c. House v. 657; Mo. Barton, man Barnett, 159; 62 Mo. Ensworth v. ” 447.] 622; Carr v. 87 Mo. Moss, J., 561, 574, Gantt, In Price v. Hallett, said: objection timely when this evi-
“Had
been made
ag.ainst
tending
estoppel
dence
to show an
was offered as
it
would
would have been
the court
Benecke,
excluded,
estoppel,
permitted
pleading
have
such
amendment
objection appears
but no
made
that
to have been
at
time
in-
now that
has
been heard and the
evidence
given upon
struction
question
think
it, we
it
too late to
raise
pleading
point.
shall
on that
treat
We
prayed
record now as
permitted.
if the amendment
been
had
[Baker
Railroad,
Darrier v.
Darrier,
“It been held in New York under code might pleading where an amendment to have ordered court on trial it even amended appeal proofs.” as to so conform to the Kenton, Newham v. was held 382, pleaded developed a state of facts not at the trial the pleadings page should be amended. At the foot of C., said: Philips, Harris v. Railroad J., 37 Mo. “.In Wagner, emphasis, permits said: to party ‘The statute
amend his given, after his evidence has been proofs; make it thing conform to the but no such at- ’ ’’ tempted in this case. In Carr v. Moss, 87 Mo. said: J., C. Henry, application “When the made petition, amend the Testimony no final rendered. had been been taken, but the court ordered the ref- none, eree take and before additional evidence *14 OCTOBER TEEM, Blythe ex
State rel. v. Trimble. application plaintiff amend made the Ms Mm, taken proved. The petition it to make conform to the facts Ms not they were grounds motion show stated they con- the merits of went to the but that frivolous, lib- troversy. amendments in relation to The statute lenient as at least, the should eral, be, courts statute. in such as matters, liberal, disposed trial with to interfere are not “We with which discretion in- exercise of courts except been there where has them, invested statute has final where, before that discretion, manifest abuse of petition order judgment, in of a is asked, an amendment proof plaintiffs may have such redress as that the it an abuse him еntitled we think taken to, show given [Anderson, it. to the court to the discretion refuse under v. are Hance, We Admr., judge, no reflecting who acted, the circuit stood as thought duty required, we entertain doubt, but as opinion duty seems that which different of his -from have influenced his action.” liberally al are favored and should be
Amendments
justice.
[House
lowed in furtherance of
v. Duncan,
Wright
approvingly
cited
in
Groom,
Broyles Eversmeyer,
S.
also
The statement that con mere solely by also of the defendants the acts particular stated facts inconsistеnt clusion (251 c. l. opinion. W. S. The learned 148) states: £< spring* com- 1908"Woolston ... he repair levee, break in his but before menced to this stopped by temporary complete work could this restraining ne F. Moore. the na of B. order instituted temporary injunction dissolved. At the trial injunc- appellants herein were sureties on Moore’s tion bond. days
££A suit week ten before among agreed served, and the filed defendants bank the creek themselves to cut the willows from work The time for this land. fixed Woolston’s *16 injunction. day after the service of the order of day injunction, the Woolston was of the “On notified employees appeared £No defendants herein and their on began cutting through Man’s the Land,’ swath wil running the no water into . . . lows. There that time. A substantial swath at wire fence was swath the east line of land. Woolston’s Wherе the cut posts this the even fence, encountered fence were cut off ground, so cut, the wire and the the section thereof swung at cut was of creek backward the banks the point height cut this that down to the the levee. All of days accomplished in within two or three after junction that was served. The further record discloses days there bank few after this came a freshet, ’’ broke, etc. particular ap- From the facts above stated, it is parent might jury that a court or infer that Moore and acting sureties his were But concert. acting independently whether the were relators concert with Moore, think we immaterial. doubt is No wrongful acts of the defendants increased of the flow through water from levee, the crevasse in but Appeals facts as stated of it of is Court MISSOURI, OF COURT Trimble. ex rel. resulting from use farm of the loss of that the clear separated that injunction not be could apparent that fact, it is In of the defendants. the acts his repaired levee the crevasse if Woolston the acts defend- have suffered farm would doing this. him from restrained ants. The by ref- opinion, showed we paragraph 2 In contention decisions to numerous erence procuring between connection be no causal there can independent relators tort and the controlling opposed directly decisions is wrong part person of a has done “A who court. working will or even contributed his another, .to harm harm, responsible for the entire to him it, may things many other forces and individuals, however bringing [Neff co-operated mischief.” about the have cited.] other 350, cases Cameron, Mo. 422, v. N. Y. Railroаd Co., Newcomb was said: may even if the accident
“A defendant neg- negligence. He liable if his not caused ligence sole with that or with another, concurred the act part cause, G-odor with an inanimate and became a although proximate cause not the 'cause. direct and sole “Thompson Negligence, volume section thus negligence states the rule: ‘If the concurrent or successive of two together, persons, injury combined result in an person, a third recover of either or both, interpose prior or and neither can the defense that the *17 negligence concurrent the other in- of contributed to the jury. standing A his the Thus, leaves horse and cart in any person passer-by them, to street, without watch and a consequence damage of in the which horse, strikes ensues. answerable, damage. A is for such An over- omnibus precipitating passenger a turns, into the lock canal. a of person, proprietor A for whose acts third the of omni- responsible, bus is not water lets the into the canal, consequence passenger drowned. The proprietor pay of the omnibus must for the OCTOBER, ex rel. Trimble. by that passenger. illustrated also death of the This is injured travelers are class where numerous cases highways. seen, elsewhere reason of As defects against munic- an action either traveler ipal corporation, maintain wrongdoer who against private corporation, municipal com- if defect; caused the and against pelled pay damages, may maintain action an Consequently, wrongdoer private for reimbursement. negligence procuring cause defendant, whose negligence up injury, by setting cannot excuse his example, person. concurring negligence For aof third post, negligently placed A an iron where on a sidewalk pole, negligently his as a used barber’s B backed striking wagon against whereby it was knocked it, over, negligence injuring A that the it was.held him, prevent recovering So, did not of B. fromC through negligence railway company, em- of a injury, ployee company fact of another receives an employees negligence com- em- that the of other latter injured pany, who were fellow-servants ployee, injury, relieve also contributed does ” liability.’ company the former
Again, page on 426:
“Bishop gives Non-Contract section Law, underlying reason the rule as follows: ‘‘ ‘ Sec. The fundamental doctrine since is, that, the habitations con- and life of man are the midst of stantly active in nature, his necessities com- forces pel possible perpetually him to be active it also, jurisprudence, respon- just, nor would be to limit one’s sibility through for harm inflicted another his acts, particular injuries whereof are the sole those acts thing cause. a sole Indeed, cause is a seldom found complicated practicable, our world. Nor would it be nor yet by any principle justice, is it into., demanded take combining injury, the account all of an causes charge propor- simply the author each cause with damage. tion of the Therefore, is, the rule of law *18 MISSOURI, SUPREME COURT OP Blythe rel. v. Trimble.
State ex person contributing fellow- tort, whether his to a that a things, or or other forces, natural men, contributors are though responsible same is the whole the аs for juris- help. civil in done The limit to rule, all without by simply required rule; prudence, another what is is one injured person only namely, entitled to ‘the is ” Wright compensation.’ Terminal K. C. [See also Ry. App. cited.] 195 Mo. and cases Co., Supply W. 239 S. v. Auto Carr court 827,the said: given court at
“Instruction number two distinctly request plaintiff, clearly told of the jury give the chauffer failed to that if defendant’s statutory signal street intention turn to across plaintiff to the left in front the automobile in which riding, solely con- and that failure, either or junction point, and with the condition of the street at such charge act of automobile the chauffer in plaintiff riding, turning which automobile said plaintiff rid- left, the automobile in caused which ing injured, to be overturned and to be then their plaintiff. distinctly verdict should be for embodied This negligence recognized concurring doctrine whiсh is jurisdiction nearly every in this well State, as as other English in doctrine common law liability negligence prevails. reference to stated It is (6 Negligence Ed.) Shearman and Redfield on sec. as follows: “ distinguished joint negli- ‘Concurrent, gence, injury proximately arises where the is caused wrongful the concurrent or acts or more omissions of two persons independently. acting negligence of That. person another than defendant contributes, concurs co-operates produce injury consequence. is of no ordinarily damage Both are liable. And unless the clearly separable, each permitting dis- assignment responsibility tinct for each, each is damage. degree the entire culpability im- ’ material. OCTOBER, Vol. ex *19 in approved in enforced
“It has following: v. many among Hickman which are cases & K. L. v. C. 571; Vessels E. P. 226 S. Co., L. & W. Union Railways, 243 Campbell v. United 80; 219 Co., P. S. W. 655; Kreymeyer l. c. Mo. 220 141; Co., v. Transit Mo. 92 Louis, v. St. 413; v. Mo. Brennan Louis, Straub 175 St. New 401; Mo. 75 482; Works, Mo. Donoho Vulcan Iron v. St. Bassett Mo. 409; N. v. Y. Railroad comb 131; Joseph, Vogelsang St. Mo. Louis, Mo. 606.” Co., 195 Harrison K. C. Electric opinion, defend- whether On stated in the the facts independently Moore, acted concert with ants They jointly severally question of fact. were loss resulting from the for all the to Woolston during the the use of his farm overflow thereof pendency injunction. opinion, an- learned nouncing contrary approving -in- conclusion and in paragraph opinion, di- struction 2 of referred to our rectly foregoing controlling decisions conflict rehearing transfer this court. motion Railey, this cause are C., to the Court Banc overruled. concurs. foregoing opinion PER CURIAM:—The Higbee, adopted hereby All
C., court. as the concur. Revival, Headnote Abatement 1: 1 C. J. see. Headnote 2: Cyc.
Pleading, Injunctions, 391. Headnote 3: 32 C. J. secs. Sup. —45.