Bianchetti v. Luce

• Citation: 2 S.W.2d 129,222 Mo.App. 282
• Parties: ASENATH BIANCHETTI, RESPONDENT, v. LORENZO E. LUCE ET AL., APPELLANTS. [*]
• Decision Date: 27 June 1927
• Court: Court of Appeals of Kansas

2 S.W.2d 129

222 Mo.App. 282

ASENATH BIANCHETTI, RESPONDENT, v. LORENZO E. LUCE ET AL., APPELLANTS. ^[*]

Court of Appeals of Missouri, Kansas City

June 27, 1927

Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Kelly Buchholz & O'Donnell for respondent.

Cowgill & Popham for appellant Luce.

John T Barker, Milton J. Oldham and Arthur R. Wolfe for appellant Kansas City.

BLAND, J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $ 4000 and defendants have appealed.

The facts show that plaintiff, a woman twenty-three years of age, was injured on November 15, 1924, while walking on the west side of Main street in Kansas City, between 10th and 11th streets. She was on a public sidewalk in front of 1026 Main street, the place of business of defendants, the Luces, a co-partnership. These defendants are hereinafter called the personal defendants. Plaintiff in infancy suffered an amputation of her right leg and was required to use a crutch with which she could walk as well as any person under such a handicap. She was injured by inserting her crutch in a hole in the sidewalk. This resulted in the crutch going in a downward direction into the hole for several inches and the stump of her leg to come in contact with the sidewalk, causing her serious injuries.

The facts further show that the building was occupied by the personal defendants as sub-tenants; that the basement of this building extended out under the paved sidewalk in question and that these defendants in the transaction of their business occupied and used that part of the basement under the sidewalk as well as the basement under the building; that the space under the sidewalk was used by them for the storage of its records and for the keeping of gas and water meters therein. There was a manhole about two feet in diameter in the sidewalk above the part of the basement extending under the sidewalk. This manhole was covered with a metal top in which were many circular holes filled with glass from one and seven-eighths to two and one-fourth inches in diameter. The glass was for the purpose of furnishing light in the basement under the sidewalk. At the time plaintiff fell, there were two or three of these glasses missing. The pieces of glass rested upon a one-fourth inch circular shoulder below the surface of the covering, which caused the openings at the shoulder to be somewhat smaller in diameter and, when the glass was removed, holes to be left through the manhole covering from one and three-eighths to one and three-fourths inches in diameter. However, there was evidence to the effect that the holes left through the covering after the removal of the glass were large enough for a woman's shoe heel to become caught therein. Plaintiff was injured while walking over the sidewalk in question when she placed her crutch in one of these holes in the manhole covering where a glass had formerly been. The evidence shows that these pieces of glass had been absent from the manhole for at least two months before the injury. The place where plaintiff fell was a much traveled part of the city and at the time in question many people were passing to and from a picture show located next door to 1026 Main street.

Plaintiff insists that the judgment should be affirmed on the record proper because that part of the record does not identify the bill of exceptions brought here by defendants as the bill filed in the trial court. The record proper recites--

". . . And afterwards on the 30th day of the November term, 1926, same being Thursday, December 30, 1926, same being before the last day of November, 1926, term of this court, defendants presented to the court their bill of exceptions, and the court having examined the same and found it to be correct, the same was by court signed, sealed and allowed, and it was ordered by the court that said bill of exceptions be, and the same was filed and made a part of the record herein in this case.

"And upon the 30th day of November term, 1926, same being Thursday, December 30, 1926, said bill of exceptions was duly filed with the clerk of said court who endorsed his filing mark thereon, entered on the records of said court by order of the court and the same was duly filed on said day."

Following the above recitals is a stipulation to the effect that the appeals taken by defendants be consolidated. Following this stipulation appears the bill of exceptions under the title "Bill of Exceptions." The case is styled in the bill of exceptions the same as in the abstract of the record proper. Respondent relies upon the case of Watson v. Kerr, 287 S.W. 337, 339. The contention made in that case was that the abstract did not show the filing of any bill of exceptions but did show affirmatively that the bill of exceptions incorporated in the abstract was in fact the bill of exceptions that was filed in a companion case theretofore decided by the Supreme Court. In passing upon this contention the court at l. c. 339, said:

"To sum up, the situation is this: The bill of exceptions incorporated in the abstract of the record purports on its face to be the bill of exceptions in a different case. . . . We know of no way by which a bill of exceptions filed and approved in one case can be treated as a bill of exceptions in a different case. . . . No proper bill of exceptions is shown to have been brought before us, hence there is nothing for review, except the record proper."

We think that the holding in the Watson case is not applicable to the facts in the case at bar. The record proper in the present case sufficiently identifies the bill of exceptions as the bill filed in the trial court. [State ex rel. v. Trimble, 272 S.W. 72.]

It is insisted by the defendant, Kansas City, that the petition does not state facts sufficient to constitute a cause of action because it does not allege a compliance with the statute providing for service of a notice upon the mayor within ninety days after the injury for which plaintiff claims damages, stating the place and time when such injury was received, the character and circumstances of the injury, and that plaintiff would claim damages therefor from the city. The statute does not create the cause of action but the action existed independently of the statute. The notice not being an element of the plaintiff's cause of action, it was not necessary to plead it in the petition. [Morrill v. Kansas City, 179 S.W. 759, 762; Beane v. City of St. Joseph, 211 Mo.App. 200, 240 S.W. 840; Brown v. City of Kirksville, No. 15909, not yet officially reported.]

However, it is insisted by the defendant city that the court erred in admitting in evidence the notice to the city purporting to contain the signature of the mayor acknowledging service of the same on February 12, 1925, because there is no proof that the purported signature was in fact that of the mayor or that notice was in fact served within the ninety days' period. No objection was made to the introduction of the notice on the ground now raised by said defendant and it cannot be urged here in this court. [Johnson v. K. C. Rys. Co., 233 S.W. 942; Magill v. Bank, 250 S.W. 41; Jablonowski v. Modern Cap Mfg. Co., 279 S.W. 89; Hannibal & St. J. R. R. Co. v. Moore, 37 Mo. 338; Ring v. Canada Southern Line, 14 Mo.App. 579; Taussig v. Schields, 26 Mo.App. 318.]

Defendants claim that their demurrers to the evidence should have been sustained because the sidewalk in question was reasonably safe for persons traveling thereon. We think this was a question for the jury. [Upham v. City of Boston, 72 N.E. 946.] While the holes in the manhole were not large they were of sufficient size for a woman's shoe heel to have been caught therein and it will be remembered that the place in question was on one of the principal public streets of a large city and there was a great amount of travel thereon, the evidence showing that thousands of people passed over the place in question every day.

The personal defendants contend that the petition does not state any cause of action against them in that it fails to allege "that they were guilty of any commissive acts or commissive negligence." The petition alleges that these defendants maintained the manhole or "coal hole" with a covering therein in the sidewalk and that they, for a long time prior to plaintiff's injury, negligently suffered and permitted said covering to be and remain in a defective and dangerous condition leaving holes from two to three and one-half inches therein. The only attack made upon the petition at the trial was an objection to the introduction of any evidence thereunder. This manner of attack is not looked upon with favor, and if the petition states any cause of action whatever, it makes no difference how defectively it is stated, it must be held to be good. [Lopez v. Hines, 254 S.W. 37.] If there were holes in the covering of the manhole and defendants maintained the covering, necessarily they maintained the holes. In Morrill v. Kansas City, supra, this court held that the word "maintained" in pleading, means to "support what has already been brought into existence."

However the personal defendants claim that there was no evidence showing that they were guilty of any commissive acts of negligence and therefore plaintiff is not entitled to recover as to them. There is no evidence as to who placed the manhole in the sidewalk but it may be inferred that it was placed there either by the owner of the property located at 1026 Main street or by some other person for a purpose in connection with the use of the...