Berkson v. Kansas City Cable Ry. Co.

Decision Date24 May 1898
Citation144 Mo. 211,45 S.W. 1119
PartiesBERKSON et al. v. KANSAS CITY CABLE RY. CO. et al.
CourtMissouri Supreme Court

Appeal from circuit court, Clay county; E. J. Broaddus, Judge.

Action by Isaac Berkson and Thomas J. Seehorn, as administrator of the estate of William J. McGonegal, deceased, against the Kansas City Cable-Railway Company and others. From a judgment for plaintiffs against the Kansas City Cable-Railway Company, all defendants appeal. Affirmed.

Karnes, Holmes & Krauthoff, for appellants. Scarritt, Griffith & Jones and Wollman & New, for respondents.

ROBINSON, J.

This action was begun to recover damages to abutting private property, charged to have resulted from a change of grade of Independence avenue, just east of the eastern limits of Kansas City. The action was against the defendants, the Kansas City Cable-Railway Company, the Kansas City & Independence Railway Company, and James Lillis. The case was tried by a jury, under instructions from the court, resulting in the following verdict: "We, the jury, find for plaintiffs, and against the defendant the Kansas City Cable-Railway Company, and do assess their damages at $3,500. Oscar Thompson, Foreman," — on which a judgment was duly entered against the Kansas City Cable-Railway Company, and in favor of the other two defendants. After unsuccessful motions for a new trial and in arrest of judgment, the defendants have prosecuted their appeal to this court. Just what grievance has been done the defendants Lillis and the Kansas City & Independence Railway Company by the rendition of a judgment in their favor has not been very definitely suggested. Usually, such judgments meet the defendants' highest approval, and we are unable to see now, by this appeal, how their condition can be improved, or why they should be heard to complain. Four assignments of error have been made and argued by the counsel for appellants in the briefs filed herein, as follows: (1) The damages are excessive; (2) plaintiff's instructions Nos. 1 and 2 were erroneous; (3) there was no evidence to authorize a verdict against the Kansas City Cable-Railway Company; (4) the verdict is erroneous, in that it did not find all the issues. These we will notice in the inverse order of their presentation to us.

1. Was the failure of the verdict to find expressly for or against the defendants Lillis or the Kansas City & Independence Railway Company reversible error, in view of the action of the court thereon, and of the nonaction of the defendant the Kansas City Cable-Car Company at the time? Judgment was entered by the trial court in due form for the plaintiff, against the defendant the Kansas City Cable-Car Company, of whom alone the jury found guilty as charged in plaintiff's petition, and in favor of the other defendants, Lillis and the Kansas City & Independence Railway Company, against whom no verdict was expressly rendered. The last two defendants did not complain of the court's action in this particular, in their motion for a new trial (and really no grievance was done to either of them by the judgment); neither did the defendant the Kansas City Cable-Car Company, in its motions for a new trial or in arrest of judgment, call to the attention of the trial court the irregularity of the verdict, or the error of the judgment entered thereon, if error it be considered. Only such errors as are fatal to the merits of an action, although appearing upon the face of the record, will be considered on appeal. State v. Scott, 104 Mo. 31, 15 S. W. 987, and 17 S. W. 11, and cases cited. In fact, the statute expressly inhibits the reversal of judgments by this court unless it shall believe that error has been committed against appellant or plaintiff in error materially affecting the merits of the action. Rev. St. 1889, § 2303. If the jury found that the cable-car company was guilty of a tort, in the nature of a trespass, in entering upon and changing the grade of the street in front of plaintiff's property, it was liable for the entire amount of damages caused by its act, without reference to the question as to who else or how many others participated in the same wrong. Between joint wrongdoers no right of contribution exists, so that one can be heard to complain that all guilty of the wrong have not been included in the same action, or included in one common judgment rendered as the result of its prosecution. The plaintiff could at any stage of the proceedings have dismissed as to any one or more of the defendants without consent of the remaining, and without affecting in the least the merit of his action or the character or amount of his judgment. Neither the amount nor character of the judgment that would follow the prosecution of his action would be in any wise affected; and, if so, how can it be said that error was committed against the Kansas City Cable-Car Company, materially affecting the merits of the action in so far as it is concerned? The application of the rule declared in the case of Ferguson v. Thacher, 79 Mo. 511, cited by appellants, has no force here. In that case the plaintiff below was the plaintiff in ...

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    ...stage of the proceeding, dismiss as to one or more of them without affecting the merits of the action as to the others." [Berkson v. Railroad, 144 Mo. 211, 45 S.W. 1119; Rogers v. Rogers, 265 Mo. 200, 209, 177 S.W. 382.] If, therefore, the record here sufficiently, though defectively, shows......
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