Harding v. Missouri Pacific Railway Co.

154 S.W. 711, 248 Mo. 663, 1913 Mo. LEXIS 49

• Court: Supreme Court of Missouri
• Decided: March 15, 1913
• Status: Published

Opinions

OPINION.

L

BOND, J.

(after stating the facts as above).— The only question presented for review is the correctness of the instruction set out in the foregoing statement. Appellant insists that there were two issues which arose on its answer resting on matters m pais, and touching which oral testimony was adduced; that these issues should have been submitted. This contention is made on the theory that its answer denied the allegations of the petition, that plaintiff was the wife of the deceased, and that the collision was negligently caused. But this notion overlooks the fact that the answer of defendant was in the form of neither a general nor specific denial; and, hence, the only issues tendered by it were the affirmative defenses therein set up. As to, these, defendant adduced no' evidence in support of any of them which were sufficient in law to preclude a recovery. The fact that plaintiff was an employee of the Government, riding on a pass, did not render him any the less a passenger under the settled law of this State. [Magoffin v. Railroad, 102 Mo. 540; Mellor v. Railroad, 105 Mo. l. c. 460; Jones v. Railroad, 125 Mo. l. c. 676.] Neither did the receipt by plaintiff of an indemnity on the death of her husband debar her from bringing this suit. As to the remaining special defenses (contributory negligence and assumption of risk) no evidence whatever was given on the trial, and no error is assigned in the brief in this court. This leaves the case to rest on the admitted and undenied allegation of the petition, that plaintiff ’s husband was killed while occupying the legal status of a passenger, by the negligent operation of defendant’s trains. This state of the matter, in the absence of countervailing evidence, entitled plaintiff to an instruction to find in her favor. [Stephens v. Koken Barber Supply Co., 67 Mo. App. 587; Wolff v. Campbell, 110 Mo. 114.] This result was caused by the omission of defendant to insert either a general or specific denial in its answer, as authorized by statute. If the answer had contained a separate defense of a general denial or a specific denial of the allegations of the petition, then the defendant would have been entitled to a submission to the jury of any issues thus joined; but defendant did not take either course. Its answer was a unit; it was not subdivided into paragraphs or separate defenses, but the whole, including the last paragraph referred to, was set forth without break or separation in one continuous body pf allegations. It has been repeatedly ruled in this State that such an answer does not have the effect of traversing any of the statements of the petition, and that .the only issues arising upon it are those which are joined by the reply denying its affirmative defenses. [Dezell v. Fidelity & Casualty Co., 176 Mo. l. c. 279; Young v. Schofield, 132 Mo. 650; Boles v. Bennington, 136 Mo. 522; Snyder v. Free, 114 Mo. 360; Long v. Long, 79 Mo. 644; State ex inf. v. Delmar Jockey Club, 200 Mo. l. c. 63, 64.]

Testing defendant’s answer by this rule, it will be seen that the effect of its express admissions and the want of a general or specific denial were sufficient to establish plaintiff’s prima-facie right to a recovery, and that the instruction under review was proper unless it contained reversible error in some other respect, than the failure to submit to the jury the question as to whether plaintiff was the wife of the deceased, or whether the collision of defendant’s trains was negligent.

II.

The defendant claims the instruction was erroneous as to the measure of damages, in that it told the jury they must find not less than $2000. We think there was no error in this.' First, because the negligent failure of defendant’s servants to cause the running orders of its trains to be observed was a negligence of the kind referred to in section 5425, Revised Statutes 1909; and the measure of damages specified in that section was properly stated in the instruction. Secondly, but if the cause of action had been one under the succeeding sections of the statute (sections 5426-7), still there was no reversible error in the present instruction, for the reason that defendant by its instruction numbered 6 (refused by the court) asked the court to submit to the jury that $2000 was the proper verdict unless they should believe plaintiff would have received more from her husband in “ money or support” had he not been killed. This action of defendant clearly invited any error in the present instruction which it might have contained if this suit had been brought under different sections of the statute. [Whitmore v. Supreme Lodge, 100 Mo. l. c. 47; Clippard v. Transit Co., 202 Mo. l. c. 446; Smart v. Kansas City, 208 Mo. l. c. 204.]

The judgment in this case is affirmed.

Woodson, P. J., and Graves, J., concur in result; Lamm, J., concurs in separate opinion.