Angel v. City of Portageville

REYNOLDS, P. J. This is an action by respondent against the city of Portageville, to recover damages in the sum of $2000, for injuries alleged to have been sustained by her in consequence of a defective sidewalk in the defendant city. The answer, after a general denial, sets up that plaintiff, “if injured in the manner as set out in her petition, the same was the result of her own carelessness and negligence directly contributing thereto in this, ’ ’ and then sets up that plaintiff was going along the sidewalk in broad daylight and was crossing over the point where the hole was alleged to be with full knowledge of the alleged defect, which was open and obvious, and that she passed 'over it in a careless and negligent manner, “there being a safe and secure way for her to have gone, thereby endangering heir ówn safety.” After filing this answer plaintiff by leave withdrew it and filed a demurrer on the ground that the petition' [20] did not state facts sufficient to constitute a cause of action. This was overruled and defendant refiled its; answer. There was a trial before the court and a jury and a verdict for plaintiff in the sum of $750. Defendant in due time filed its motion for new trial. This was overruled. Afterwards and in due' time defendant filed its motion in arrest of judgment which was also overruled. Thereupon defendant duly perfected its appeal to this court, filing its bill of exceptions in due time. In the abstract of the record furnished by counsel for appellant are two affidavits following the certificate of the clerk of the circuit court to the transcript. In and by these affidavits affiants state that they were the attorneys who assisted the city attorney in defending this case in the circuit court; that they prepared the motion for a new trial and a motion in arrest of judgment, signed them and filed them; that they were both present in court when the motions for new trial and in arrest were acted on by the court, and at the time the court overruled the motions they excepted in open court to the action of the court in overruling each of these motions. It is further set out in these affidavits that the attorney for plaintiff refused to O. K. the bill of exceptions with exception of defendant noted to the action of the court in overruling the motions for new trial and in arrest, for the reason that the clerk of the court failed to get the exceptions of the defendant to the action of the court in his minute book and that the court would not sign thé bill of exceptions without the approval of the attorney for plaintiff inasmuch as the records of the court failed to show exceptions to his action in overruling those motions; that for this reason counsel were unable to get their exceptions noted in their bill of exceptions. One of these affidavits is sworn to before the clerk of the circuit court of New Madrid county, [21] the other before a notary in Indiana. There is nothing In the abstract indicating that these affidavits were ever filed in the circuit court or that they have been filed in any court, save that they are embodied in the abstract of the record, as before stated, filed'in this court by appellant. The bill of exceptions, as is recited in it, which was filed, sets out that defendant had tendered it as its bill of exceptions and prayed that it might be signed and sealed as such which was accordingly done by the circuit judge in vacation. It is contended by counsel fox appellant that we can consider these affidavits as correcting the bill of exceptions. This presents precisely the same point which was involved in the case of Murphy v. Lorwood Cooperage Co., the opinion in which is to be filed along with the opinion in this case. It is unnecessary to '■repeat what is there said on this matter of the bill of exceptions. We refer to that as equally applicable to this case. This leaves for our consideration only the record proper. It is true that the petition in the case is indefinite and lacking in specific averments, but we cannot say that it is so” fatally defective as to state no cause of action'or as not to support the verdict and judgment in the case. Demurring, and that demurrer being overruled, plaintiff elected to answer and thereby lost the benefit of the demurrer save as to the jurisdiction of the court over the subject-matter of the action, or that the petition does not state facts sufficient to constitute a cause of action. [Sec. 1804, R. S. 1909; Hanson v. Neal, 215 Mo. 256, l. c. 277, 114 S. W. 1073.] Nor can it avail itself of a motion in arrest fór the reason that it has failed to save exceptions to the overruling of that motion. Irrespective of this, it is always open to appellant to attack the petition in this court for failure to state any cause of action. However defective, this petition is, it is clear that the [22] necessary facts can be implied from what is defectively stated. When that occurs, a defendant will not be heard, after verdict and judgment, to object that such a petition will not sustain a judgment. Such objection is only available when the petition fails to state any cause of action, not where one is defectively stated. „ [Hurst v. City of Ash Grove, 96 Mo. 168, l. c. 172, 9 S. W. 631; Scamell v. St. Louis Transit Co., 103 Mo. App. 504, l. c. 513, 77 S. W. 1021.] In addition to this it is a recognized rule of pleading in this State that the defective allegations of the petition may be supplied by the averments of the answer, so that reading them together a cause of action is stated. [Garth v. Caldwell, 72 Mo. 622, l. c. 629; Donaldson v. County of Butler, 98 Mo. 163, l. c. 166, 11 S. W. 572.] We have set out the substance of defendant’s answer' in this case. Construing it with the petition, we hold that there is such a cause of action stated in the case as warranted the verdict and supports the judgment. The judgment of the circuit court is affirmed. Nortoni and Caulfield, JJ., concur.