author: BOND, J.

text:
    JOHN HALASY, Administrator of Estate of BRIDGET A. HALASY et al., v. DANIEL HALASY, Appellant.
    Division One,
    April 2, 1914.
    1. PARTIES PLAINTIFF: Suit to Divest Title: Administrator: Misjoinder: Demurrer. The joinder, as a party plaintiff, of the administrator of the estate of a deceased person, whose land it is alleged was conveyed to defendant at a time when with his knowledge she was confined in a hospital for the insane, to set aside which conveyance the suit is brought, is not such an error as will authorize a reversal of a judgment for plaintiffs setting aside the deed, although a demurrer charging misjoinder was filed, the heirs of said deceased person being also joined as plaintiffs, and the judgment excluding the administrator from any interest in the land. The error did not affect the merits of the action, and is therefore not reversible.
    2. -: Revivor: No Change in Petition: Entitling Demurrer as in Revival Order: Estoppel. Where the suit to set aside a deed to land was brought by a guardian of an insane person, and before trial she died, and the court entered an order reviving the cause in the name of her heirs and of her administrator, and thereupon the defendant filed a demurrer, using as the names of the plaintiffs the parties named in the order of revivor, and alleging misjoinder, a judgment vesting the title in the plaintiffs who were the actual heirs and excluding the administrator, will not be reversed. Besides, since the defendant used the same names mentioned in the order of revivor in entitling his demurrer, he is in no position to complain of the omission of the formalities of interlining those names in the caption of the petition, the court having granted permission to make an interlineation in accordance with the order of revivor, and defendant having by its demurrer treated that as done.
    3. -: -: Adapting Petition to New Plaintiffs. The failure of the plaintiffs, after the order reviving the cause in the name of certain heirs and the administrator, to make verbal changes in the body of the petition setting forth their rights by succession to those of the deceased ancestor, will not require a reversal of a judgment rendered in their favor which recites on its face that it was based upon a finding from the evidence that plaintiffs were heirs at law of deceased. The statute authorizes an amendment to the petition to conform to the evidence, and where the judgment sets out in extenso a finding of all the facts necessary to its rendition defendant is not prejudiced hy a judgment' in accordance therewith, since the result would have been .the same had the petition been amended to embrace said findings.
    Appeal from Andrew Circuit Court. — Hon. Alonzo D. Burnes, Judge.
    Affirmed.

      J. G. Grotvney for appellant.
    (1) There is a misjoinder of parties plaintiff to this action, for the reason that John Halasy, administrator of the estate of Bridget A. Halasy, deceased, has no interest in this suit, and this defect of parties plaintiff appearing upon the fact of the petition herein, the court erred in overruling defendant’s demurrer. Thorp v. Miller, 137 Mo. 231; Hall v. Bank, 145 Mo. 424; Chambers v. Wright Heirs, 40 Mo. 482. (2) There is not an allegation in plaintiff’s petition upon which to predicate the judgment or decree rendered herein. It is a judgment or decree not asked for by plaintiffs in the petition or bill upon which this cause was tried and it being wholly unauthorized and manifestly erroneous, the judgment must be reversed. Schneider v. Patton, 175 Mo. 723; Needles v. Ford, 167 Mo. 512; Newham v. Kenton, 79 Mo. 382; Reed v. Bott, 100 Mo. 62; Engine & Transfer Co. v. Donovan, 147 Mo. 633.

      Cook, Cummms & Dawson for respondents.
    (1) There £s no misjoinder of parties plaintiff and no error was committed by the court in overruling the demurrer to the petition on this ground. The record shows that the subject-matter of the suit was real estate, which had been conveyed, and that while said cause was pending the plaintiff died and that John Halasy was regularly appointed and qualified as administrator of her estate. There is nothing in the petition that shows but what there were outstanding debts against the estate of Bridget A. Halasy that might require the .real estate to be sold by order of the probate court, for the purpose of enabling the administrator to pay the debts of the estate. The petition upon its face does not show that the personal estate of Bridget is sufficient to pay the estate’s debts, and we contend that the administrator of the estate was properly joined with the heirs at law as parties plaintiff as against demurrer. Ulric v. Papen, 11 Mo. 43. (2) Where a plaintiff dies while the cause of action is pending and the suit is revived in the name of his heirs or personal representatives or both, no amendment of the petition is necessary, other than entitling the cause according to the character, in which the substituted party revives it. 1 Cyc. 115; 18 Ency. PI. & Pr. 1143; Hoes v. Van Alstein, 20 111. 201; Crary v. Kurtz, 105 N. W. 590. (3) Where upon the whole record it is clearly manifest that the judgment is for the right party and that upon a rehearing the result would be the same, the case will not be reversed though error was committed at the trial. Lewis v. ■Curry, 74 Mo. 49; Bassett v. Groves, 31 Mo. App. 160; Conley v. Doyle, 50 Mo. 234; Glass Co. v. Sewing Machine Co., 88 Mo. 57; Lower v. Mining Co., 142 Mo. App. 351.
    STATEMENT.
    This is a suit brought by the guardian of an insane person to set aside a deed to real estate, alleged to have been obtained by the brother of the insane person on the 20th day of August, 1909, at which date she was confined in a hospital for insane persons in the State of Iowa.

      The allegations of the petition are: that on the said day the defendant appeared at the place where his sister was confined and procured her to accompany him to the city of Omaha in the State of Nebraska, well knowing her insanity, and fraudulently induced her to execute, sign and deliver a deed to the lands described in the' petition, subject to certain interests therein of another sister of the defendant, who was also insane.
    The petition further alleges that the deed so made was without any consideration and is a cloud on the title of the insane ward of the plaintiff guardian and curator, prays that it be canceled and adjudged null and void by the court, and the title thereunder, be devised out of the defendant and vested in the said insane person, Bridget A. Halasy.
    During the pending of this suit the insane person died and her guardian and curator was appointed administrator of her estate, and thereupon suggested her death and moved the court to revive the cause in the name of her heirs at law and in his own name as the administrator of her estate. Thereupon the trial court granted said motion in the following terms, to-wit:
    “Proof of publication heretofore filed in this cause is by the court examined, considered and approved and defendant failing to show good and sufficient cause why this suit should not be revived as prayed, this cause is now, by the court, ordered revived in the name of John Halasy, Johannah Halasy, Abigail Halasy, an insane person, by John Halasy, her guardian, and John Halasy, administrator of the estate of Bridget A. Halasy, deceased, as parties plaintiffs.”
    And the court further gave leave to plaintiff to amend the petition by inserting in the caption thereof, as parties plaintiff, the names as set out in its order of revival.

      Defendant filed in said cause a demurrer which was entitled as of the names which the action bore after its revival.
    State of Missouri, County of Nodaway, ss.
    In the Circuit Court, May Term, 1911. John Halasy, Administrator of the Estate of Bridget A. Halasy, Deceased, John Halasy, Guardian of Abigail Halasy, an Insane Person, John Halasy and Johanna Halasy, Plaintiffs, vs. Daniel Halasy, Defendant.
    And which demurrer, in substance, alleges: first, that by the revival of said action, there was a misjoinder of parties plaintiff; second, that the petition failed to state facts sufficient to show that either of the parties plaintiffs were entitled to the relief prayed for. This demurrer was overruled, which action of the court, on his demurrer, defendant accepted and refused to plead further. Whereafter, the court heard evidence in the case introduced by plaintiffs and rendered judgment annulling the deeds executed to defendant, and divesting the title out of him and vesting it in the plaintiffs who were the heirs at law of the deceased insane person, according to their respective interests.
    In making this finding the court excluded therefrom any consideration whatever of the administrator of the deceased insane person, but decreed a proper vestiture of title in her heirs at law.
    The court further recited in its judgment a finding by it, from the evidence adduced, of the relationship and specific interests of the parties who were substituted as heirs at law for the deceased insane person, as well as the facts upon which its order of revival had been made; and recited a further finding, that on the day of the making of the deed to the defendant the grantor therein, Bridget A. Halasy, was an insane person, and at the time she delivered' said deed to the defendant she was also insane and incapable of entering any ldnd of contract. That said deed was wholly ■without consideration and is a cloud on the title of the plaintiffs to the land in suit. Prom that judgment the defendant appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above).— The contention of appellant is twofold: first, that the administrator was an unnecessary party to the revival of the action in the court below; second, that the body of the averments in the petition was not so changed as to set out the death of the insane plaintiff and the names of her heirs at law and their rights of succession as was set forth in the order of revival. To these in order.

It may be conceded that, under the allegations of this petition, the administrator of the deceased insane person, was an unnecessary party in the order reviving the action. But a demurrer for that fault did not go to the rights of the heirs at law mentioned in the revival to recover as the successors in title of the deceased. And it may be further conceded that the court erred in not sustaining so much of the demurrer as went to this misjoinder. But this technical error on the part of the trial court, even if it had not been cured by the judgment which was ultimately rendered, wherein the court left the administrator out of view, is not one which entitles appellant to a reversal of that judgment, for his rights are not materially prejudiced by it. And appellate courts will not reverse a judgment for the intervention of an error on the trial of a case which does not affect the merits of the action. [R. S. 1909, sec. 2082,] We think the first contention of appellant is an unfruitful and barren technicality, and we therefore disallow it.

Neither is there any substance in his second assignment of error. When this cause was revived in the lower court its order to that effect was a part of the record proper, and became the future style of the case in all proceedings. This was understood by the defendant, for when he interposed his demurrers he filed them in the substituted style of the ease, and he is not therefore in a position to complain of the omissions by plaintiff of the formalities of interlining in the caption of the old petition the names of the new plaintiffs which were substituted by the valid order of revival. The plaintiffs were permitted by the court to make an interlineation in accordance with its order of revival. The defendants having treated that as done, cannot assign errors for its omission. It would have been proper for plaintiffs to have made verbal changes in the body of their petition setting forth their rights by succession to those of their deceased ancestor. But this is not indispensable to the affirmance of a judgment rendered in their favpr, which recites on its face that it was based upon a finding from the evidence of every fact necessary to prove that plaintiffs were the heirs at law of the deceased insane person. It would have been formally correct for plaintiffs, after the adduction of testimony, to have made such amendments of their petition as to make it conform to the evidence on the trial (R. S. 1909, sec. 1848), but inasmuch as the judgment itself sets out in ex-tenso a finding of all the facts necessary to its rendition, it follows that defendant was not hurt by a judgment in accordance with those facts, since the result would have been the same if plaintiff, prior to its rendition, had made the formal amendments to its petition necessary to embrace the findings of the judgment. Moreover, when this judgment was rendered the caption and style of the action had been changed by the order of record duly made in the trial court. Taking the statements contained in the new title of the case in connection with the body of the petition, which was presumptively adopted by the new parties plaintiff, we are not prepared to say that the petition and new caption, as a whole, were not sufficient under the liberal intendments of our statutes to support the finding and judgment of the court, without any mere verbal alterations to show the adaptation of the allegations of the petition to the new plaintiffs in the case.

We conclude that there is no merit in the final contention of appellant that the allegations of the petition did not warrant the judgment rendered. The conclusions reached by the learned trial judge were based upon undisputed evidence tending to support them. His judgment is for the right parties and is affirmed.

All concur.


source: Caselaw Access Project

author: BLAIE, C. PER CURIAM.

license: Public Domain

text:
    HEMAN CONSTRUCTION COMPANY v. THE CITY OF ST. LOUIS, Appellant.
    Division One,
    April 2, 1914.
    1. CONTRACTS OF INDEMNITY: Public Policy: Negligence. ■An agreement by a contractor to indemnify a city against liability for injuries to third persons resulting from the negligence 9f the contractor in connection with the construction of a sewer is not against public policy.
    2. -: -: -- — : Excavating Near Building: Notice to Owner: Joint Judgment: Contribution. Under a contract by which a contractor building a sewer for a city agreed to observe designated ordinances “and generally to obey all laws and ordinances controlling or limiting those engaged on the works” and to indemnify the city against all suits or actions brought on account of injuries sustained by any person by reason of any act of the contractor or its agents “in doing the work . . . or by or on account of any act or omission of” the contractor or its servants or agents, the contractor is liable for the damages resulting from a failure to notify a property owner of its intention to excavate near her building and then doing the excavating in such manner that the building was damaged, requirement of such notice being one of the laws applicable to respondent in the work in which it was engaged; and the property owner having recovered a joint judgment .against the contractor and the city which the contractor has been forced to pay, the city cannot be made to contribute.
    3. -: -: -1 — : -: . ■ : Specifications: Variance. And whether or not there was a discrepancy between the width of the alley in which the excavating was done and the width ascribed to it in the specifications, which brought ithe excavation nearer the building injured, the contractor is not absolved from liability.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge.
    Reversed.

      William, E. Baird and Truman P. Young for appellant.
    (1) A joint judgment obtained against several defendants does not change the status existing between such defendants. Freeman on Judgments (4 Ed.), sec. 227, p. 400. (2) The judgment obtained by Catherine Gerst against the Heman Construction Company and the city of St. Louis was based upon the failure to give notice to the plaintiff that the excavation was about to be made, and- that she was about to be deprived of lateral support. It was the failure to give this notice, and only such failure, upon which this court based its ruling that the defendants were liable. That judgment did not depend upon the question whether or not the Construction Company was an independent contractor, did not depend upon any question as to the relation between the Construction Company and the city, and did not find or attempt to pass upon any question as to the proximate cause of the injury. It was merely ruled that where one fails to give notice that he is about to remove lateral support, he takes upon himself the risk of injury. The failure to give notice alone is a ground of compensation in case injury occurs, and it is not necessary to prove negligence in the doing of the work. In the case at bar, however, we have traced the proximate canse of the injury and shown that it was caused by the negligence of the Heman Construction Company. Gerst v. St. Louis, 185 Mo. 191. (3) It is the person who has caused the injury that is primarily liable. 20 Am. & Eng. Ency. Law (2 Ed.), p. 51; 18 lb., 552; 16 lb., p. 197. (4) The primary liability of the plaintiff was established in this case, and the liability of the city of St. Louis, as declared in the Gerst case, was purely secondary. This is so because: (a) The plaintiff by its own negligence caused the injury, (b) The duty to give the notice was primarily upon the contractor. McGrath v. St. Louis, 215 Mo. 191. (5) The mistake as to the width of the alley cannot alter the relations of the parties. Bigelow on Estoppel (5 Ed.), pp. 1, 453, 556, 609, 626. (6) The specific terms of the contract are a complete defense to this action, for by the contract the plaintiff expressly agreed ‘ ‘ to indemnify and save harmless the city from all suits or actions of every name and description brought against the city for or on account of any injuries or damages received or sustained by any party or parties by or from the acts of the said contractor,” etc.

      Rodgers & Koerner for respondent.
    (1) The judgment was rendered against plaintiff and defendant herein as joint tort-feasors. Plaintiff having paid this judgment in full, is entitled to contribution from defendant. R. S. 1909, sec. 5431; Brewster v. Gauss, 37 Mo. 518; Eaton & Prince Co. v. Trust Co., 123 Mo. App. 117. (2) In the Gerst case plaintiff and defendant herein were sued as joint tortfeasors who had failed to perform a duty that rested upon them jointly, and the judgment was rendered against them for the breach of this joint duty. That judgment is concluisve as to the nature of the cause of action on which it was rendered and defendant cannot now he held to say that it was not a joint liability. Brewster v.'Gauss, 37 Mo. 518. (3) The judgment in the Gerst case was rendered against plaintiff and defendant herein because of their failure to give notice to Mrs. Gerst of the excavation to be made alongside the wall of her house. The duty to give this notice rested upon plaintiff and defendant herein jointly. Gerst v. St. Louis, 185 Mo. 191. And their omission to perform this duty was necessarily simultaneous and concurrent. Hence, their liability was joint and contribution lies. Eaton & Prince Co. v. Trust Co., 123 Mo. App. 117. (4) The work which plaintiff was required to do under its contract was inherently dangerous to the Gerst wall. Gerst v. St. Louis, 185 Mo. 191. Hence, aside from the question of notice, defendant herein would have been liable to Mrs. Gerst. 4 Dillon, Mun. Corp. (5 Ed.), sec. 1722. (5) Under its contract, plaintiff was under no duty to defendant to devise means to support the Gerst wall. Lancaster v. Ins. Co., 92 Mo. 460; Buffalo v. Holloway, 7 N. Y. 493. (6) The indemnity clause in plaintiff’s contract has no application to actions such as the Gerst case. Morton v. Traction Co., 20 Pa. Sup. Ct. 35.
   BLAIE, C.

— Under a contract with defendant, plaintiff in constructing a sewer excavated along the lot line of property owned by a Mrs. Gerst, and, as a result, a building erected on the lot was damaged. Neither plaintiff nor defendant had notified Mrs. Gerst of the intent to excavate, and in these circumstances the latter recovered a joint judgment against the present plaintiff and defendant for the damage to her property, and the plaintiff here having been compelled to pay that judgment brought this action against the city to recover one-half the amount thereof. From a judgment for plaintiff the city has appealed.

One of the general stipulations in the contract under which plaintiff constructed the sewer in question was as follows:

“The first party” [the present plaintiff] “will be required to observe all city ordinances in relation to obstructing streets, maintaining signals, keeping open passageways and protecting the same where exposed, and generally to obey all laws and ordinances controlling or limiting those engaged on the works, and the said first party, contractor and securities, here expressly bind themselves to indemnify and save harmless the city of St. Louis from all suits or actions of every name and description brought against the said city for or on account of any injuries or damages received or sustained by any party or parties by or from the acts of said contractor, or by his servants or agents in doing the work herein contracted for, or by or in consequence of any negligence in guarding the same, or any improper materials used in its construction, or by or on account of any act or omission of the said contractor or his servants or agents.”

Defendant asked an instruction in the nature of a demurrer to the evidence and also requested the court to give an instruction to the effect, in substance, that the above quoted paragraph of the contract barred recovery. Both requests were refused, and these rulings, and others, are assigned for error.

The statute (Sec. 5431, R. S'. 1909) provides that “defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. ’ * Considerable portions of the briefs are devoted to the question whether this case falls within the statute as heretofore interpreted by this court. In the view we take of the case that question, for reasons subsequently to be stated, need not be discussed.

Neither is the decision in Gerst v. The City of St. Louis and the Heman Construction Company, 185 Mo. 191, conclusive upon the question now presented. In that case, so far as the city was concerned, the inquiry was as to the liability of the city to Mrs. Gerst for damages resulting from the failure of the city to perform or have its contractor perform the duty to give notice of the intent to excavate along the line of the property on which the Gerst building stood. There is nothing in that case which militates in any way against the right of the city to enforce a bond given by a contractor to protect the city from loss resulting from injury to property damaged by such contractor in the course of the work he engaged to perform.

The real contentions to be considered are that (1) the quoted provision of the contract is contrary to public policy and void; and (2) even if valid, that provision is not applicable to the cause of action upon which Mrs. Gerst recovered judgment.

I. The quoted section of the contract is opposed to no principle of public policy. An agreement to indemnify a city against liability for injuries to third persons resulting from “ „ , , . the negligence of a contractor, m connection with the construction of a sewer falls well within the principle applied in Breeden v. Ins. Co., 220 Mo. l. c. 427, et seq., and cases cited. The fact that the contractor and indemnitor are the same person does not affect the question.

II. The remaining question is simply whether the contract of indemnity covers the liability for which the judgment respondent paid was recovered.

By its contract respondent agreed to observe designated ordinances ‘ ‘ and generally to obey all laws and ordinances controlling or limiting those engaged ■on the works” and to indemnify the city against all .suits or actions of every name and description brought ■on account of any injuries sustained by any person by reason of any act of respondent or its agents “in doing the work ... or by or on account of any ■act or omission of” respondent or its servants or ■agents.

The failure to notify Mrs. Grerst of the intent to excavate near and below the level of the foundation of her building followed by such excavation, was negligence (Gerst v. St. Louis, 185 Mo. l. c. 208), and this requirement of notice was one of the laws applicable to respondent in the work in which it was engaged under the contract. While both the respondent and city owed to Mrs. Grerst the duty of notifying her of the intended excavation, yet as between themselves the respondent contracted to indemnify the city ag-ainst liability to Mrs. Grerst and all others resulting from any omission on its, respondent’s, part to obey all laws applicable in the circumstances, one of which was that requiring notice of the intended excavation. The failure to notify Mrs. Grerst was not of itself negligence. It was absence of notice, plus the excavation near and below the level of the foundation, which constituted the negligence. Respondent was the active .agent in the actual work of excavating, and, as between it and the city, the city’s liability to Mrs. Grerst was founded upon respondent’s agency for the city. Plowever that may be, respondent’s contract bound it to indemnify the city against the very loss for which the judgment it paid was recovered, and it cannot recover in this case.

The case of Morton v. Traction Co., 20 Pa. Super. Ct. 325, is cited as supporting a contrary conclusion. ■Some general language is employed in the opinion which is not in harmony with what has been said but the facts in that case were very different from those ;in this. That case fell within the principle laid down by the Supreme Court of Pennsylvania in Perry v. Payne, 217 Pa. St. 252, i. e., that a contract of indemnity against personal injuries should not be held to indemnify against the negligence of the indemnitee unless it is so expressed in unequivocal terms. In that case and those cited in the opinion therein it is pointed out that the strict rule of construction employed arises out of the inherent improbability that an indemnitor or contractor would intend to agree to indemnify against injuries to third persons resulting from negligence of the indemnitee or his servants over whom the indemnitor has no control. The theory of such decisions is that to construe the bond or contract to make the indemnitor an insurer against the acts of the indemnitee or his servants resulting in personal injury to third persons is unreasonabale since such a contract would expose the indemnitor to liability “the extent of which would be uncertain, indefinite and entirely in the hands of” the indemnitee and against which the indemnitor would' have no means of protecting himself. Such a contract being unreasonable in its nature, courts decline to hold reasonable men have entered into it unless the language of the agreement leaves no reasonable way of escape from that conclusion.

The facts of this case do not bring it within that rule. There is nothing improbable, startling or unusual in an agreement whereby a contractor undertakes to protect a municipality from liability for damages to the property of third persons resulting from his own acts of omission, or those of his employees, in constructing a sewer.

The contract in this case ought to be construed according to the ordinary and usual import of the language in which it is expressed. So construed, that contract imposed upon the contractor the duty to notify Mrs., Grerst of the excavation intended to be made and indemnified the city against liability for loss by reason of a failure to perform that duty.

Whether the duty to give notice would, in the absence of the contract, have rested primarily upon the city, as between it and the contractor, need not be discussed since the contract is in the case. [City of Brooklyn v. Railroad, 47 N. Y. l. c. 486, 487.]

So far as concerns the suggestion that the duty to give notice rested upon both the city and the contractor and, therefore, both were concurrently negligent and equally liable, not only to Mrs. Gerst but also with relation to each other, the contract of indemnity, as stated, furnishes one answer. Another is found in the language of the court in Phoenix Bridge Co. v. Creem, 102 App. Div. l. c. 356, affirmed 185 N. Y. 580: “While there are some expressions in opinions which may seem to give color to the contention stated [i. e., that the absence of a contract for indemnity precluded recovery], I think the general trend of the decisions is adverse, and that the liability which results from the mere omission of a legal duty is to be distinguished for the purposes of this case from that which results from personal participation in an affirmative act of negligence or from a physical connection with an act of omission by knowledge of, or acquiescence in, it on the part of the original contractor, or by his failure to perform some duty in connection with it which he may have undertaken by virtue of his agreement. ’ * And it was held that while the plaintiff and defendant were equally liable to the traveling public “yet as between themselves” the contract imposed the duty upon defendant, and, though there was no express agreement to indemnify, plaintiff could be denied indemnity only “by proof that it did in fact participate in some manner in the omission beyond its mere failure to perform the duty imposed on both by law.”

It is argued there was a discrepancy between the width of the alley and the width ascribed to it in the specifications and that this fact absolved the contractor from liability for not complying with its duty to give notice. If the contractor was not proceeding under the contract, the city could not be liable at all; and if it was proceeding under the contract, it was proceeding under all of it. The narrowness of the alley brought the excavation nearer the wall of the building injured and this the contractor saw before it began to excavate. A contract with a city to perform work of this kind must be in writing or is void from the beginning. [Sec. 2778, R. S. 1909.] Unless, therefore, the contract covered the excavation causing the injury to the building, respondent had no authority from the city to make it, and, for that reason also, could not recover in this case. The judgment is> reversed.

Brown, G., concurs.

PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.