Currell v. Hannibal & St. Joseph Railroad

DISSENTING OPINION.

SMITH, P. J.

— After this cause was first argued and submitted I wrote an opinion as that of the.court affirming the judgment, but as my associates became dissatisfied with it the foregoing opinion was written by one and concurred in by the other, in which a conclusion is reached at variance with that expressed by me and to which latter I feel constrMned to still adhere.

I must think that this opinion of the majority results from a misconception and misapplication of the rule of express aider — a rule of pleading, both under the code and common law, which is to' the effect that an omission to state a material fact may be supplied by the pleading of the other party (Bliss on Code Plead., section 437; McQuillan on Pld., section 470) as, for example, where the allegations of an answer aids a defective petition it accomplishes all that could be done by an amended petition. Stivers v. Horne, 62 Mo. 473; Mohney v. Reed, 40 Mo. App. 99; Allen v. Chouteau, 102 Mo. 309. As illustrative of this rule, the following are some of the cases that may be referred to: Bank v. Pettit, 85 Mo. App. l. c. 503; Ins. Co. v. Tribble, 86 Mo. App. 546; Donaldson v. Butler County, 98 Mo. 163; Hughes v. Carson, 90 Mo. 399; Henry v. Sneed, 99 Mo. 407; Garth v. Caldwell, 72 Mo. 622; Kercheval v. King, 44 Mo. 401.

The petition in the present case alleged the existence of a contract and a breach thereof, but omitted to allege its provisions. The answer admitted the exist*103ence of the contract and set forth*its provisions and thereby supplied the omissions of the netition. The replication admitted the allegations of the answer as to the provisions of the contract. The legal effect of this, under the operation of the rule of express aider, was not different than if the plaintiff had amended his petition, incorporating therein the omitted allegations.

The answer denied the breach of the contract so pleaded and thus raised the only issue of fact, in the case. That issue was submitted to the jury under proper instructions, and its verdict thereon, in my opinion, ought not to be disturbed.