Baumgartner v. Kansas City
| Decision Date | 08 September 1947 |
| Docket Number | 40142 |
| Parties | O. F. Baumgartner, Respondent, v. City of Kansas City, Missouri, a Municipal Corporation, Appellant |
| Court | Missouri Supreme Court |
From the Circuit Court of Jackson County, Civil Appeal, Judge John R. James
Affirmed
O. F Baumgartner obtained a judgment against the City of Kansas City, Missouri, for $12,000 on account of personal injuries and the City appealed. Defendant on this review attacks plaintiff's instructions Nos. 1 and 6, as developed hereinafter.
Plaintiff was injured April 2, 1945, during the noon hour while walking in front of the Victory Buffet, 305 East 12th street, Kansas City. A coalhole cover, imbedded in the sidewalk, tilted when he stepped upon it and he fell astride the cover with one leg in the coalhole, and sustained serious injuries. No issue is presented involving the extent of the injuries.
Mrs George E. Spalding owned the property at 305 East 12th street. The coalhole had been there many years, having been constructed that coal might be delivered to heat the building. Gas was substituted for heating purposes about 1931 and the coalhole was used no longer for its original purposes. Additional facts will be stated in connection with the points discussed.
Plaintiff joined Mrs. George E. Spalding and the City as defendant. Just prior to impaneling the jury on the day of the trial plaintiff voluntarily dismissed his cause of action against Mrs. Spalding, having entered into a covenant not to sue said defendant in consideration of the payment of $2,000. Instruction No. 6, so far as material, told the jury plaintiff might settle with Mrs. Spalding and that if the verdict were for plaintiff it should be reduced by the amount plaintiff had received from Mrs. Spalding. .)
On this review the City presents the following issue:
The City relies upon § 7687, R. S. 1939 [1] (), which gives cities of over 150,000 inhabitants the right to have co-tortfeasors made parties defendant.
Defendant's answer in the instant case was a general denial coupled with a plea of contributory negligence. At the time of plaintiff's dismissal as to Mrs. Spalding there was no objection made or any other step taken by the City with respect to the covenant not to sue and the resulting dismissal by plaintiff.
In Vandevere v. Kansas City, 187 Mo.App. 297, 301, 173 S.W. 696, 697, service was had on all but one of several co-defendants. Separate demurrers were sustained and the court was about to instruct the jury to find for the appearing defendants when plaintiff took an involuntary non-suit, with leave. Plaintiff's motion to set the non-suit aside was sustained and the City appealed claiming, as here, that under § 7687 plaintiff's dismissal as to the non-appearing co-defendant precluded further proceedings against the City. The City's answer, as here, did not present any issue under said § 7687 and, as here, the City went to trial without objecting to the failure to obtain service upon, or the escape of, the non-appearing co-defendant. The court ruled the City waived its right to have the non-served co-defendant a party defendant under said § 7687. In accord: Jamison v. Kansas City, 223 Mo.App. 684, 694, 695, 17 S.W.2d 621, 624[3]; Mancuso v. Kansas City, 74 Mo.App. 138, 148.
These rulings harmonize with the provisions of § 7687. The clause "and such suit shall not be prosecuted against said city until such person or corporation is made a co-defendant with such city," is not unconditional but, is subject to the condition precedent that the "city * * * file a motion, in writing, in said case, notifying the plaintiff therein to make such person or corporation a party defendant * * * ." The clause is also subject to the proviso that if " * * * such person or corporation cannot be served with process * * *, then the plaintiff in such case may proceed against the city alone." All this conforms with the title of said Act [Laws, 1901, p. 78], reading: "An act providing that in certain actions for damages brought against a city of over one-hundred fifty thousand inhabitants, such city may require the plaintiff to join as co-defendant any person or corporation liable to an action by the plaintiff on the same account for which the city is sued." [Italics ours.] This language is plain. It deals with a matter of procedure, the remedy. It does not destroy a right of action. It gives certain cities the privilege of having others also liable joined as co-defendants. The language contemplates that its provisions be affirmatively invoked to be available. Consult also Laws 1943, p. 370, § 40; Mo. St. Ann., § 847.40. There is no occasion to discuss other analogous statutory provision; for instance, § 7636, Id., relating to notice to cities of injuries. See David v. City of St. Louis, 339 Mo. 241, 247[3], 96 S.W.2d 353, 356[5].
The cases stressed by the City differ. In Shippey v. Kansas City, 254 Mo. 1, 23, 162 S.W. 137, 142, the City's answer pleaded in bar (l. c. 9 and 138, respectively) the action of plaintiff in agreeing not to prosecute the other defendants. What was there said (Id., 23, 142[3]) was dictum [2] . Funk v. Kansas City (Mo. App.), 208 S.W. 840, 844, followed the dictum of the Shippey case. The City plainly relied upon the statute to bar Funk's action against it, introduced the covenant not to sue in evidence, and insisted Funk was not entitled to recover. Funk v. Kansas City (Mo., 7-16-1917), 197 S.W. 343, 344; Same (Mo. App., 12-9-1912), 208 S.W. 840, 841. They do not establish error here.
Plaintiff advances other grounds for disallowing the City's contention, but what we have said sufficiently rules the issue.
The City's remaining point attacks plaintiff's main instruction. The City contends there was no substantial evidence that the defect in the coalhole cover, if there was a defect, existed for a sufficient length of time prior to plaintiff's injuries to charge the City with notice, actual or constructive, thereof, and, therefore, there was no evidence upon which to base the submission in the instruction (essential to a recovery) that the City knew of the defect in time to have remedied it prior to plaintiff's injuries. An issue on the sufficiency of the evidence calls for the testimony favorable to its submissibility.
Plaintiff's main instruction predicated a recovery upon the coalhole cover "being too small, ill fitting and loose," and the City's timely notice thereof. The evidence established that the coalhole cover had been broken on March 9, 1945, when a truck driver permitted a barrel of beer to drop on the cover, and that the truck driver forthwith procured another lid and placed it over the coalhole.
It was affirmatively established that "dirt, sidewalk sweepings, and stuff of that character" had accumulated around the edge and on the shoulder or flange of the rim of the coalhole to such an extent that difficulty was experienced in replacing or fitting the cover into the hole immediately after plaintiff's injury; that the person attempting it "jiggled" the cover for a while but it did not go down; and he then procured a screw driver from the Victory Buffet, cleaned the dirt out from around the rim and set the cover in place.
John L Masters was called by defendant. He testified he was a "yard clerk and foreman" in the Public Works Department of the City; that they received the complaint on this coalhole cover being broken on March 9, 1945; that a card is made out and turned over to the City's employee who does the work; that the card on this occasion was turned over to John Rose; that Rose was to make an inspection, and Rose later reported, on the same day, that the cover had been...
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