Bell v. Boyd

Gill, J.

Plaintiff sued the defendant before a justice of the peace, charging in the statement, “that defendant, on or about the fifteenth day of February, 1894, while removing a safe from the building owned by plaintiff (describing it) negligently broke doum and demolished the front of said building, to the plaintiff’s damage in the sum of $53.54,” etc., accompaning the statement with an itemized account of the repairs plaintiff was compelled to make.

The proof was to the effect that defendant undertook to move an iron safe, weighing about four thousand pounds, from the second story of plaintiff’s building in the city of Fayette; that in letting it down the steps to the front of the building, defendant used a pole or piece of wood, the ends of which he placed in opposite doors at the head of the stairway, and to this a rope was attached, which held the safe; that in letting the safe down, the piece of wood broke and the safe fell down the stairs and through the front of the building, committing the damage complained of. The evidence on plaintiff’s part tended to prove that this stick of wood was unsound and imperfect and its defective condition could have been detected by reasonable inspection.

On a trial by a jury, plaintiff had a verdict and judgment for the full amount sued for, and defendant appealed.

*140But two questions are presented on this appeal: First, it is contended that the statement was insufficient, and, second, that there was a fatal variance between the allegations of the statement and- the proof. We think there is no merit in either complaint. The statement was sufficiently specific to advise defendant of the nature of the charge against him, and definite enough to bar another action for the same cause. This is all that is required in a statement filed with a justice of the peace.

So, too, the evidence of the negligent use of a defective pole or stick whereby damage resulted was not outside of, or at variance with, the allegations of the statement. The complaint was a general charge of negligence in moving the safe: — “That defendant * * * while removing a safe from the building * * * negligently broke down and demolished the front of said building, to the plaintiff’s damage,” etc. This was sufficient to let in the evidence here adduced. The following authorities are in point. Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 295; Hale v. Van Dever, 67 Mo. 732; Witting v. Railroad, 101 Mo. 631; Hurley v. Railroad, 57 Mo. App. 675, and cases cited.

It is not an instance of alleging one cause of action and recovering on another, and hence defendant’s authorities along that line are not in point. If the complaint had stated that a defective rope was used, which broke and caused the damage, then evidence to the effect that the injury resulted from the use of a rotten or defective pole or stick, or because of some other matter of negligence than that spécifically mentioned, would not be proper, and defendant’s authoriies would apply.

We discover no error in the record and the judgment will be affirmed.

All concur.