Costello v. Kansas City

• Decision Date: 06 January 1920
• Docket Number: No. 13236.,13236.
• Citation: 280 Mo. 576,219 S.W. 386
• Parties: COSTELLO v. KANSAS CITY et al.
• Court: Missouri Supreme Court

219 S.W. 386

280 Mo. 576

COSTELLO v. KANSAS CITY et al.

No. 13236.

Supreme Court of Missouri, Division No. 2.

January 6, 1920.

Motion for Rehearing Denied March 13, 1920.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by Mary Costello against the City of Kansas City and another. From judgment for plaintiff, defendants appeal. Affirmed.

E. M. Harbor, M. A. Fyke, and A. P. Smith, all of Kansas City, Mo., for appellant Kansas City.

Richard J. Higgins, of Kansas City, Kan., and Mont T. Prewitt, of Kansas City, Mo., for appellant Kansas City Rys. Co.

W. W. McCanles and Hogsett & Boyle, all of Kansas City, Mo., for respondent.

WHITE, C.

The plaintiff recovered judgment against both defendants in the circuit court of Jackson county in the sum of $2,000 for personal injuries. The case was appealed to the Kansas City Court of Appeals, where the judgment was affirmed, and afterwards, on motion for rehearing, certified to this court because the opinion was considered by that court to be in conflict with the opinion of this court in the case of Mathieson v. Railroad, 219 Mo. 542, 118 S. W. 9.

On the 21st day of April, 1917, plaintiff was a passenger on a car operated by the defendant Kansas City Railways Company on what was termed the Jackson line. The car was a "one-man car," where the motorman was also conductor. Passengers were received and discharged at the front end of the car. According to the plaintiff's evidence, as the car approached Twelfth and Jackson streets, where the plaintiff desired to transfer to another line, the car was stopped in response to her signal. She went to the front end and stepped down from the car, and in doing so stepped on a ledge of rock which was about five or six inches above a depression in the street, her ankle turned, and she fell to the street, striking the step of the car. The result was torn ligaments and other injuries to the ankle and internal injuries. She testified that in alighting from the car she looked down, but, on account of the darkness, was unable to see the defect in the street which caused her injury. Her version of the facts was corroborated by other witnesses.

It was claimed by the defense, and the claim supported by some testimony, that the plaintiff alighted safely from the car and walked several steps before she fell and received the injury complained of.

I. The first error assigned by the defendant city, the ruling on which by the Kansas City Court of Appeals brought the case here, was the refusal of the trial court to instruct the jury that, as against a city, the verdict should be for nominal damages only, in case of a finding for plaintiff; this on the ground that prior to bringing the suit notice had not been given to the city under the act of 1913. That act, found in Acts 1913, p. 545, provides as follows:

"Section 1. Action for Damages Maintained. How.—No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city."

In this case no notice was given prior to bringing the suit as is required by that statute. The injury occurred April 21, 1917, and the suit was filed three days later. The summons and a copy of the petition were served upon the street railway company and the summons only was served upon the city.

The decision of this court which the Kansas City Court of Appeals believed to be in conflict with its opinion, Mathieson v. Railroad, 219 Mo. 542, loc. cit. 549, 118 S. W. 9, construes a statute of Kansas which allows an action for damages against a railroad company under certain circumstances, "provided that notice in writing of the injury," etc., "shall have been given." It was held that the use of such language made it necessary to plead and prove the giving of the notice in order to state a cause of action, and hence the notice must be given before the suit is brought.

This court, however, in case of Hunt v. City of St. Louis, 211 S. W. 673, in an opinion by Judge Faris, held the notice required by the act of 1913 was not a prerequisite to the filing of the suit, because the language of the act is "no action shall be maintained" until such notice is given. It was also held that formal notice was not necessary where suit was filed and a copy of the petition and summons served upon the defendant within 90 days, because the petition sufficiently informed the city of the exact nature of the claim, both as to the injury and as to the alleged negligence causing it. Judge Faris quotes approvingly the case of Morrill v. Kansas City, 179 S. W. 759, where the Kansas City Court of Appeals reviewed the authorities at length as to the reason for such notice. In that case no notice was given, but the suit was brought and the summons and a copy of the petition served upon the defendant within 90 days, and it was held that no other notice was necessary.

The case of Jacobs v. City of St. Joseph, 127 Mo. App. 669, 106 S. IV. 1072, is also cited with approval in the Hunt Case, and it states the reason for such notice in these words (127 Mo. App. loc. cit. 671, 672, 100 S. W. 1073):

"The object of the statute is to give the city opportunity to investigate the case while conditions are fresh and thus protect itself against actions which may be brought long after the occurrence."

A notice after suit was filed would serve that purpose as well as notice before. Under the authority of the Hunt Case, if the defendant had been served with a copy of the petition as well as the summons, no doubt the notice would have been entirely sufficient. The question is whether the mere service of the summons, without a copy of the petition describing the defects complained of, would be sufficient notice.

It may be conceded that actual knowledge from some other source of the facts to be imparted by the notice is insufficient, just as a verbal notice would be insufficient. A written notice is required probably for the purpose of furnishing information in definite terms as to the exact nature of the defect complained of. It must be borne in mind that the purpose of the notice is to inform the city of the nature of the claim in order that the city may be placed on guard and may investigate. Obviously it would make no difference whether the information came from plaintiff by means of one instrument or two. The summons upon the city which appears in the record notified the city it must within a given time file answer to "the petition of Mary Costello." That petition was a public record which the city was bound to examine.

It is the rule, where a recorded instrument imparting constructive service refers to some other instrument not of record, that the party to be affected is notified of the contents of the other instrument referred to. The National Bank of Commerce of Kansas City v. Morris, 114 Mo. 255, 21 S. W. 511, 19 L. R. A. 463, 35 Am. St. Rep. 754; Beavers v. Bank, 177 Mo. App. 100, loc. cit. 104, 163 S. W. 529. There would seem to be no reason for refusing to apply that rule to actual written notice which is personally served and refers to another paper distinctly and definitely, which other paper is accessible to the party notified.

The section of the statute requiring this notice (Laws of 1913, p. 545) prescribes no manner of service. It only says that notice shall be in writing. In such case it is always sufficient to show that the party to be served actually received the notice. Miller v. Hoffman, 26 Mo. App. 199, loc. cit. 202; Ryan v. Kelly, 9 Mo. App. 396; Brost v. Whitall-Tatum Co., 89 N. J. Law, 531, 99 Atl. 315, L. R. A. 1917D, 71. For instance, the written notice required to be served, with no method of service prescribed, may be served by mail, if it is shown that the party to be served received the letter containing the notice. 20 R. C. L. 345. In this case it conclusively appears that the defendant city actually read and examined the petition, filed by the plaintiff in the circuit court, which contained a specific description of the defect complained of, because the defendant city filed its answer denying "each and every allegation" in the petition, and pleaded contributory negligence "in selecting the course plaintiff was pursuing." The notice therefore was sufficient.

II. The defendant city assigns error to the refusal by the court to give its instruction No. 14, as follows:

"The jury are instructed that the plaintiff admits in this case that she looked down at the place where she stepped in alighting from the car at the time and place where she claims to have been injured. If you believe from the evidence that she saw, or in the exercise of ordinary care should have seen, the condition of the place where she was stepping, and that in such circumstances a reasonably prudent person could, in the exercise of reasonable care, have stepped down from such car without stepping on the edge of the pavement bordering the street car rails (if you believe there was such an edge), then your verdict in this case must be for the defendant Kansas City."

The instruction properly was refused because it singles out for comment certain of the evidence and gives it undue prominence in stating to the jury what plaintiff said she did in alighting. Eckhard v. St. Louis Transit Co., 190 Mo. 593, loc. cit. 620, 89 S. W. 602; Boyce v. Railroad, 120 Mo. App. loc. cit. 175, 96 S. W. 670; Dungan v. Railroad, 178 Mo. App. loc. cit. 171, 165 S. W. 1116; Meyers v. Railroad, 171 Mo....