Callahan v. Kansas City

• Decision Date: 15 June 1931
• Parties: MYRTLE A. CALLAHAN, DEFENDANT IN ERROR, v. KANSAS CITY, MISSOURI, PLAINTIFF IN ERROR
• Court: Kansas Court of Appeals

41 S.W.2d 894

226 Mo.App. 408

MYRTLE A. CALLAHAN, DEFENDANT IN ERROR, v. KANSAS CITY, MISSOURI, PLAINTIFF IN ERROR

Court of Appeals of Missouri, Kansas City

June 15, 1931

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

AFFIRMED.

Judgment affirmed.

Prince Harris & Beery for defendant in error.

John T Barker, William H. Allen and Arthur R. Wolfe for plaintiff in error.

DAVIS, Sp. J. Arnold, J., concurs; Bland, J., concurs in the result.

OPINION

DAVIS, Sp. J.

--This action reaches this court by writ of error to the Circuit Court of Jackson County, Missouri, at Kansas City; the same having been issued upon the application of defendant, the City of Kansas City.

This action is to recover damages for personal injuries which plaintiff (defendant in error) alleges that she sustained through the negligence of the plaintiff in error, Kansas City, Missouri, and another, by reason of the fact that a wooden platform or obstruction extended from the steps that lead from the house known as No. 1216, East 12th street, Kansas City, Missouri, and extending across and over the sidewalk, in front of the property at that number, for some distance. The injuries are alleged to have occurred on the north side of 12th street between Forest and Tracy streets in Kansas City, Missouri.

Upon the trial of the cause, the trial court gave a peremptory instruction to find for the individual defendant and the jury returned a verdict in favor of plaintiff and against Kansas City and assessed plaintiff's damages at three thousand dollars. The trial court required a remittitur of one thousand dollars, which remittitur was accordingly made and judgment went in favor of plaintiff and against defendant Kansas City, Missouri, for two thousand dollars.

The evidence shows that plaintiff was injured about nine or nine-thirty o'clock P. M., September 29, 1914, while walking along the sidewalk in front of No. 1216, East 12th street, by plaintiff tripping and falling over a wooden platform or obstruction which extended from the bottom of wooden steps leading from the house at that number. The evidence shows that such wooden platform extended out on to the sidewalk about eighteen inches and was of the height of about five inches, being composed of 2x4's set on edge with plank nailed to the top thereof.

It was agreed that 12th street between Forest and Tracy was a public thoroughfare and that Kansas City was a municipal corporation existing at the date of plaintiff's injuries.

The evidence shows that at the time plaintiff received her alleged injuries that it was after dark but that there were electric lights in the neighborhood, which defendant claims gave sufficient light for plaintiff to have seen the obstruction had she been looking therefor, but it is evident, from the record, that plaintiff assumed, as she had a right to do, that the sidewalk was free from obstructions and that she did not make any examination or particular observation of the sidewalk upon which she was walking.

Plaintiff in error, to secure a reversal of the judgment, urges that that demurrer, offered by defendant at the close of plaintiff's case and at the close of the entire case should have been sustained by the court, for three urged reasons; i. e.

(a) That plaintiff failed to give the notice required by section 8904, Revised Statutes of Missouri 1919; (now section 7493, Revised Statutes of 1929).

(b) That there was no evidence that the injury occurred in Kansas City, Missouri, or that the sidewalk where the injuries occurred was a public street or thoroughfare in said city.

(c) That the evidence shows that plaintiff was guilty of such contributory negligence as precludes a recovery by her.

These we will consider in their order.

On December 17, 1914, plaintiff addressed to the then Mayor of Kansas City, a notice as required by the aforesaid section of the statute, which appears to comply, in every respect, with the requirements of said Statute, indeed defendant made and makes no objection to the form thereof.

Service of such notice was acknowledged in writing in the name of the Mayor on December 21, 1914, by one A. F. Smith, who it seems, was an assistant City Counselor, and who signed the acknowledgment of service following his name with the abbreviation A. C. C.

When this notice with the acknowledgment of service written thereon was offered in evidence no objection was made to the introduction thereof, but plaintiff in error now asserts that the cause should be reversed because it was not shown that the notice was served personally upon the Mayor.

While the question was probably sufficiently raised by the demurrer to the evidence, offered at the close of plaintiff's case, yet the point was not specially called to the attention of the trial court, and appears to have been first suggested in the brief filed in this court by plaintiff in error.

It would seem that no question of the sufficiency of the notice, of the service thereof, having been made in the trial court and such notice and acknowledgment of service thereof having been read in evidence, without objection, that it should be too late to raise such question here.

In Hild v. Car Co., 259 S.W. (Mo. App.) l. c. 841, it is said:

"The question now raised was not mooted in the trial court, and it may not be mooted here on appeal."

Numerous authorities are cited in support of the doctrine.

The case was tried throughout by defendant, on the theory that the notice was properly served, for instance an assistant City Counselor testifying on behalf of defendant was asked by counsel for defendant:

"Q. And soon after the city was served with a notice of the accident, did you make an investigation of the facts? A. Yes, sir.

"Q. This has been sometime ago, do you have any recollection or not, Mr. Kerneckel, whether you went to this place after the written notice was served on the Mayor of the City by Mrs. Callahan, before the time they took the photographs, or what is your recollection about that? A. It's my recollection I went there first.

"Q. So far as you know was the written notice, served by the plaintiff, that has been referred to here and introduced, the first information that the city had that an accident was claimed to have happened there? A. It was the first information."

But however that may be we hold that the service of the notice was sufficient.

In Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045, service of a similar notice was acknowledged by an assistant City Counselor of Kansas City, objection to the service was made in the trial court when the notice was offered in evidence whereupon proof was made showing that the Mayor had delegated authority, to acknowledge service of such notice, to the City Counselor, the court after adverting to such fact said:

"But, aside, from that, when the assistant city counselor accepted a copy of respondent's notice and gave a written acknowledgment of its receipt, all in the name of the mayor, his act was tantamount to an affirmation on his part that he was duly authorized by the mayor so to do. The affirmation so made was within the general scope of his powers as an officer of the city, and, the respondent having acted upon it in good faith, the city is bound by it. The rules which regulate the business transactions of life, and which enjoin good faith, honesty, and fair dealing, are alike applicable to individuals and corporations. It is now well settled that, as to matters within the scope of the powers of municipal corporations and the powers of their officers, such corporations may be estopped upon the same principles and under the same circumstances as natural persons. [H. & St. Joseph Railroad Co. v. Marion County, 36 Mo. 294; Montevallo v. School Dist., 268 Mo. 217, 186 S.W. 1078; City of Mountain View v. Tel. Exch. Co., 294 Mo. 623, 243 S.W. 153; Herman on Estoppel, 1222, p. 1363.] It follows that, for the purpose of receiving the notice in question and making acknowledgment thereof, the assistant city counselor was the accredited agent of the mayor; that service upon him was service upon the mayor; and that as a consequence the respondent gave the mayor notice in writing of her claim against the city, as alleged in her petition."

This cause was followed by this court in Cummings v. Halpin, 27 S.W.2d 718.

In our opinion the service of the notice was sufficient and it follows that the court, in so far as this point is concerned, committed no error in refusing to give the requested instructions in the nature of demurrers to the evidence.

It is next urged that there was no evidence showing that plaintiff's injury occurred in Kansas City, Missouri.

It would probably be sufficient to say that this case was tried throughout, by both plaintiff and defendant, on the theory that the injury occurred in said city, that the point was not mooted in the trial court and therefore ought not to be mooted here, Hild v. Car Co., supra:

Plaintiff in error having adopted this theory at the trial ought to be held to the same theory here, Burke v. Pappas, 293 S.W. 147, and cases cited.

At the trial it was agreed by counsel:

"That 12th street, between Forest and Tracy (the place where plaintiff alleges she was injured) is a public thoroughfare, and also that Kansas City was a municipal corporation existing at the date of plaintiff's injury."

During the trial one of plaintiff's witnesses, was testifying with respect to a photograph showing the surroundings at and near the place where plaintiff claims to have been injured, and such witness on cross-examination by counsel for defendant, city, was asked with respect to such photograph:

"Q. You see the arc light shown in that photograph, do you, right where...