Harder v. St. Louis Transit Co. , 221 Mo. 174 ( 1909 )

GRAVES, J.

Plaintiff instituted this action in the circuit court of the city of St. Louis to recover the sum of five thousand dollars for the alleged negligent killing of her husband, Mas A. Harder, by defendant, St. Louis Transit Company. Upon a trial at the February term of said court for the year 1906, the record discloses that a verdict of some kind was returned in favor of plaintiff, and on said verdict a judgment of some kind was entered. The amount of this verdict and judgment nowhere appears in this record. After setting out the pleadings, the'abstract says:

“February 13, 1906, February term, 1906, jury sworn in this cause and cause laid over to February 14 at said term of this court.

‘ ‘ February 14,1906, at said term, plaintiff amends petition by interlineation, by leave of court.

“Amended answer refiled as above set out, reply filed as above set out, trial progressed and finished and verdict and judgment for plaintiff. ’ ’

It then appears that upon motion for new trial being filed by the defendant, the trial court sustained the same by the following order of record:

“The court having heard and duly considered the defendant’s motion for a new trial, heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained on the grounds that the court erred in failing and refusing to give, 1st, at the close of plaintiff’s evidence, the peremptory instruction in the nature of a demurrer to the evidence, asked by the defendant and marked ‘A,’ and 2nd, in failing and refusing to give at the close of all the evidence, the peremptory instruction in the nature of a demurrer to the evidence and marked ‘B,’ and, 3rd, because the court erred in permitting the case to go to the jury.”

From this order the plaintiff has appealed.

It will be observed that the petition was amended on February 14, 1906, during the trial.

In the first part of the abstract, and on page one thereof, we find the following: ‘ ‘ The petition as amended in this cause, filed August 16th, 1904, follows:” Following this statement in the abstract is a copy of a petition brought to the October term, 1904, of the circuit court in the city of St. Louis. As to what the petition was after its amendment on February 14,1906, not one word is found in the record. The petition, therefore, upon which the cause was actually tried and submitted is not in the record at all. To what extent this amendment by interlineation changed the former petition we have no means of ascertaining. "Whether the evidence introduced supported the allegations of this amended petition we have no way of knowing, yet we are asked to say that the trial court was in error when it concluded that a demurrer to the testimony should have been sustained. In other words we are not advised from this record what the petition upon which the trial was had really was, nor what in fact was the verdict and judgment except that the verdict and judgment were for plaintiff. The proof offered might have been at variance with the allegations of the last amended petition. It might have totally failed to have sustained the allegations thereof. A demurrer to the testimony raises the question as to whether or not the proof sustains the allegations of the petition, and we cannot determine this fact without having before us the petition upon which the cause was tried. It might also be well to remember that when we reverse an order granting a new trial to defendant, where plaintiff has had a verdict and judgment in the first instance, our action reinstates such verdict and judgment, but we would feel loath to so do unless we were apprised by the record as to the amount and character of the verdict and judgment. "We might surmise in this case that it was for $5,000, but it would be a mere surmise, because the record gives us no light upon the question. Under this state of the record there is nothing to be done but to affirm the order and judgment granting the new trial, and it is affirmed. '

All concur.