Henderson v. Kansas City
| Decision Date | 17 November 1903 |
| Citation | 76 S.W. 1045,177 Mo. 477 |
| Parties | HENDERSON, by Next Friend, v. KANSAS CITY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Affirmed.
R. J Ingraham for appellant.
(1) (a) It does not appear that the next friend of plaintiff gave bond as such, or that he was relieved of such requirement by the clerk of the court, making the appointment. This made a jurisdictional defect, which supported defendant's objection to the introduction of evidence, under the petition. R. S. 1889, secs. 2001 and 2002; Spillane v Railroad, 111 Mo. 555. (b) It is necessary to make proof of the appointment and qualification of the next friend. Porter v. Railroad, 60 Mo. 162. The proof fell short of the statutory requirement, in that no showing was made of the giving of bond; or that the clerk of the court, making the appointment, dispensed with the requirement, as the statute authorized him to do. (c) But over and above all this, plaintiff's instruction No. 1 authorized a recovery without any finding whatever as to the appointment or qualification of the next friend. If it be necessary to plead and prove this appointment and qualification, it is essential that there be a submission of it to the jury and a finding that the proof supported the pleading. (2) Instruction No. 1 given for plaintiff authorized a recovery without a finding that the city was engaged in the work at Turkey Creek station, for pecuniary profit. If the city was engaged in the work in its governmental or sovereign capacity, as distinguished from its corporate capacity, there would be no liability. It would fall within the rule, as to hospital fire department, prison, and other similar cases. Donohue v. Kansas City, 136 Mo. 657. Plaintiff deemed it necessary to make this averment in his petition. He introduced elaborate evidence to support it. Furthermore, when the city sought to show that it operated it in its governmental capacity the court refused to permit it. This was error. (3) The rule being well established that a municipal corporation can only act through its mayor and common council, it is plainly apparent that plaintiff utterly failed to sustain his case as to the employment of these men, and the scope of their authority. There was a way to make this proof, viz.: by the introduction of ordinances authorizing the appointment of an engineer or superintendent, and fixing the scope of his authority. Nothing of the kind was done. An ordinance appropriating money to pay them would have been some evidence. It is not a safe rule to fix a liability upon a city upon the mere statement of some witness "that the city did so and so." Stewart v. Clinton, 79 Mo. 603; Werth v. Springfield, 78 Mo. 107; Rumsey Mfg. Co. v. Schell City, 21 Mo.App. 175; Rowland v. Gallatin, 75 Mo. 134; Thrush v. Cameron, 21 Mo.App. 394. (4) (a) Instruction No. 2 given for plaintiff certainly merits criticism on account of its assumption of disputed facts. The facts required by this instruction to be found by the jury from the evidence were not that there was a certain condition of the flywheel, crank and floor, but that these things were apparent; and that by reason of his age and inexperience the plaintiff was not aware of the danger. It is assumed both that there was the described condition, and that it was dangerous, and only submitted to the jury whether it was apparent and whether plaintiff appreciated the danger; and whether he was required to work about it. All else, especially the alleged condition of the floor as slippery and dangerous, are put just as though there was no dispute or issue about such matters. Van Natta v. Railroad, 133 Mo. 13; Robertson v. Drane, 100 Mo. 273; Wilkerson v. Eilers, 114 Mo. 252; Comer v. Taylor, 82 Mo. 341. (b) And after thus singling out and making prominent this matter of age and inexperience, and assuming that there was a certain condition existing at the place, and that it was dangerous, the instruction is wholly silent as to the duty of plaintiff to use the care commensurate with the situation as he saw it, and commensurate with his age and experience. It did not require the jury to find that he used any care or caution. This practically eliminated the defense of contributory negligence and assumption of risk from the case. Lynch v. Railroad, 112 Mo. 434; Eswin v. Railroad, 96 Mo. 290. (c) In view of the undisputed evidence that plaintiff was practically an adult, doing the work and receiving the wages of a man; had been working on machinery for several months; had been, according to his own evidence, warned to be careful; had seen his fellow workman hurt in the same place; the whole situation being perfectly visible and open to view, with no latent defect; and it being his self-admitted duty to keep the oil cleaned up from the floor, there was error in the submission of his alleged lack of age to the jury. Nugent v. Railroad, 131 Mo. 241; Payne v. Railroad, 129 Mo. 405; Franenthal v. Gas Co., 67 Mo.App. 1; McIntosh v. Railroad, 58 Mo.App. 281. (5) Instruction No. 3 repeats, in most prejudicial form, the assumption that the floor "was made dangerously slippery by accumulations of oil and grease."
William Moore, Rozzelle & Walsh and John G. Park for respondent.
(1) The appointment of the next friend was properly established. The fact of appointment of next friend is proved by the petition and order introduced and admitted in evidence. The variance complained of in appellant's brief is immaterial. No bond was required by the clerk or court. Exception to the character or form of appointment of a next friend was not preserved by objection at the trial by demurrer or answer, and it is consequently waived. Taylor v. Pullen, 152 Mo. 439; Spillane v. Railroad, 111 Mo. 555; Rogers v. Marsh, 73 Mo. 70. There was no objection to the introduction in evidence of the petition and order appointing next friend, and this was tantamount to an admission of the fact of the appointment and qualification of next friend, then there was no error in omitting to require the jury to make such a finding. (2) The evidence and admissions of the defendant show that Kansas City conducted the waterworks as a private enterprise. The ordinance of Kansas City introduced in evidence without objection, except as to its materiality, and the testimony of Mr. Lawrence, showed conclusively that the city sold water to consumers exactly as did the National Water Works Company, whose plant the city had acquired. The money obtained by the sale of the water was used in paying interest on bonds, salaries of city officers connected with the department, and in paying a judgment against Kansas City in favor of the National Water Works Company. These matters established that the water works was conducted as a corporate enterprise, and not as a governmental agency. Mr. Chapman testified to this, and to his authority, and there was no objection that his testimony was not the best evidence. Ordinances of Kansas City, introduced and read in evidence, proved conclusively that the city operated the water works in a private capacity. Bullmaster v. St. Joseph, 70 Mo.App. 80; Whitfield v. Carrollton, 50 Mo.App. 103; Donahue v. Kansas City, 136 Mo. 667; Olliver v. Worcester, 102 Mass. 489. There was no error in refusing to permit witness Lawrence to testify as to whether the ordinances were or were not always obeyed. This was immaterial. The testimony of witness Lawrence and the ordinance to the effect that the city sold water for profit was undisputed and in fact was admitted by Mr. Hadley for the defendant. This being true there was no error in omitting to make a question on this point for the jury. Carroll v. Railroad, 88 Mo. 239; Barr v. Armstrong, 56 Mo. 577; Pratt v. Conway, 148 Mo. 299. (3) The record contains abundant evidence of the employment of the plaintiff by the defendant. The instructions do not assume controverted matters. Donahue v. Kansas City, 136 Mo. 699. (4) Appellant is mistaken in saying that instruction No. 1 given for plaintiff assumes that the floor was rendered dangerously slippery by accumulation of oil and grease. This question is submitted, like all other questions of fact, by subjunctive clauses, beginning with the words, "and if the jury believe," etc. (5) Defendant having given the plaintiff and the court below to understand that the case was tried upon the theory that working on engine No. 3 was dangerous, it may not now advance a new theory in this court. Merrilees v. Railroad, 163 Mo. 486; Whitmore v. Supreme Lodge, 100 Mo. 47; Davis v. Brown, 67 Mo. 313; Crutchfield v. Railroad, 64 Mo. 255; Pratt v. Conway, 148 Mo. 299; Bowlin v. Creel, 63 Mo.App. 234. (6) The question of Henderson's age, experience and capacity were properly submitted to the jury. Soldanels v. Railroad, 23 Mo.App. 516; Dowling v. Allen, 74 Mo. 17; Dowling v. Allen, 102 Mo. 217.
This is an action for damages for personal injuries. Plaintiff recovered judgment for $ 8,000 and defendant appeals. At the time of his injury the plaintiff was employed by the city at its branch waterworks, known as the Turkey-Creek Pumping Station, as an oiler and wiper.
Plaintiff was nineteen years old when injured on October 5, 1897. He had commenced work in June of that year. Prior to obtaining this employment he had worked in a foundry three months and for a telephone company four or five weeks, carrying water to the laborers. He had gone to the public schools until he had reached the eighth grade.
Before going to work for the city he had had no experience oiling revolving machinery. Prior to the time of his injury his work for the city had been oiling and wiping engines numbered 4 and...
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