Ruebsam v. St. Louis Transit Co.

REYBURN, J. (after stating the facts). — 1. In a recent case this conrt, arraying the authorities in .this State, observed that they, are not in harmony whether the infirmity of which the declaration in this cause was charged, is waived by the moving party not standing on his motion and pleading over, but that it appeared the last utterances of the Supreme Court on the subject justified the position assumed by defendant. Sommers v. St. Louis Transit Co., 108 Mo. App. 319, 83 S. W. 278. The sufficiency of a pleading, however, is to be tested by the code provisions and the first pleading of a plaintiff is thereby required to contain .a plain and concise statement of the facts constituting the cause of action without unnecessary repetition (R. S. 1899, sec. 592); and the liberal construction to be indulged in favoring the pleading under the statute does not affect the fundamental requirements of good pleading but the form of such pleading. R. S. 1899, sec. 629; Sidway v. Land Co., 163 Mo. loc. cit. 373, 63 S. W. 705. The defendant resorted to the proper remedy under the statute to have plaintiff’s insufficient pleading reformed; the allegations at which the motions were levelled, were defective, being obscure, indefinite and legal deductions, and defendant was entitled to have the precise facts related, descriptive with reasonable particularity and certainty of the manner in which the transfer to the second car was effected and also setting forth the facts under which plaintiff claimed to be lawfully upon such car. McQuillin, Pleading and Practice, sec. 463; Spurlock v. Railway, 93 Mo. 530, 5 S. W. 15; Watkins v. Donnelly, 88 Mo. 322; Atteberry v. Powell, 29 Mo. 429; Baker v. Raley, 18 Mo. App. 562; State v. McHale, 16 Mo. App. 478. 2. The following instruction was given at plaintiff’s instance: “If the jury find from the evidence that plaintiff refused to pay his fare to the conductor of the Fourth [442] street ear on which he was riding, and mentioned in the evidence, when requested to do so, the conductor had the right to stop the car and eject him from the same, using only the necessary force to do so. Yet, if you shall find from the evidence that the conductor in charge of said car, in putting plaintiff off from the same car, used unnecessary force, and carelessly or wantonly injured him, your verdict must be for plaintiff.” ' This instruction, additional to the infirmity of commingling the repugnant theories of carelessness and wantonness, authorized the jury to return a verdict for plaintiff,, if the conductor carelessly threw or pushed him from the car; the petition embraced no charge* of want of care by the conductor, but on the other hand pleaded that plaintiff’s expulsion was wantonly effected, a theory excluding and at variance with want of care in the act complained of. The allegations of plaintiff to the effect that with copassengers he had been transferred to the Fourth street line; that he had entered a car of the last-named line and reiterating that he was lawfully on such car, that defendant’s conductor catching him with both hands assaulted him, unlawfully and forcibly, had dragged him to the rear platform and with great force and violence had ejected him from the car, and repeating that at the time such assault was unlawfully made by the conductor, plaintiff was lawfully on the car and demeaning himself in peaceable and orderly manner, and that the injuries received were directly caused by the unlawful, wrongful and wanton acts of defendant’s servant, collectively and singly set forth a state of facts, which if legally established, exhibited a right of action for a tortious ejection from the car. The essence of his cause of action was the unlawful manner of his- ejection from the car, if the conductor resorted to an unnecessary degree of force and violence in expelling him from the car or wantonly had thrown or pushed Min from the [443] car. The testimony established that if plaintiff had any right of action, it resulted from his ejection from the car, with more force than was needed to attain the lawful purpose of putting him off the car after his persistent declination to pay fare; if needless violence was done plaintiff in excluding him from the car, an assa'nlt and battery was connnitted by the conductor for which defendant would be. liable- (Ickenroth v. Transit Co., 102 Mo. App. 597, 77 S. W. 162); such issue of fact was properly submitted to the jury under the evidence in the case; but for the errors indicated the judgment must be reversed and the cause remanded. It is so ordered. All concur.