Cassidy v. City of St. Joseph

• Decision Date: 24 December 1912
• Citation: 152 S.W. 306,247 Mo. 197
• Parties: MARY CASSIDY v. CITY OF ST. JOSEPH, Appellant
• Court: Missouri Supreme Court

152 S.W. 306

247 Mo. 197

MARY CASSIDY v. CITY OF ST. JOSEPH, Appellant

Supreme Court of Missouri, First Division

December 24, 1912

Appeal from Buchanan Circuit Court. -- Hon. C. A. Mosman, Judge.

Reversed.

W. B Norris, O. E. Shultz, and Phil A. Slattery for appellant.

(1) Respondents cannot avail themselves of a motion to dismiss the appeal because of a defective affidavit (a), for the reason that the case has been argued and briefed and submitted upon its merits. Bridge and Const. Co. v Railroad, 72 Mo. 664. (b) Because no complaint that the affidavit was defective was made to the trial court at the time the order granting the appeal was made. The complaint was made by respondents for the first time in the appellate court after the trial court had granted the appeal, thereby preventing appellant from filing an amended affidavit. State ex rel. v. Broaddus, 210 Mo. 16; DeBolt v Railroad, 123 Mo. 501. (2) Respondents contend that the affidavit of appeal is defective, because it recites that the appeal is not taken for delay, but because affiant believes said defendant is injured and aggrieved by the judgment of the court. They insist that the affidavit should have said that the appeal is not taken for vexation or delay. We submit to the court that the terms "vexation" or "delay" as used in the statute are convertible and that "delay" as used in the statute means vexatious delay. We further submit that since the affidavit recites that the appeal was not taken for delay, but because affiant is injured and aggrieved by the judgment of the court, that having thus stated specifically the reason for taking the appeal it followed that the question of vexation was thereby excluded. Burdock v. Post, 12 Barb. (N.Y.) 168; Armstrong v. Ames & Frost Co., 17 Tex. Civ. App. 46; Railroad v. Salt Co., 63 S.W. 1025. (3) The courts hold that the affidavit of appeal need not literally follow the language of the statute, but that a substantial compliance with the statute is sufficient. The omission of the term "vexation" is a mere clerical error, and the affidavit is a substantial compliance with the statute. State ex rel. v. Broaddus, 210 Mo. 1; Yost v. Silvers, 138 Mo.App. 524. (4) Defendant's demurrer should have been sustained for the following reasons: (a) Under the petition and the evidence, plaintiff cannot recover. The city is not liable for the violation of an ordinance. Ryan v. Kansas City, 232 Mo. 471. (b) If deceased was injured by reason of the team being left unfastened, such failure was the act of a fellow-servant, for which the city cannot be liable. Hawk v. Lumber Co., 166 Mo. 121; Fogarty v. Transfer Co., 180 Mo. 490; Marshall v. Schricker, 63 Mo. 308; Berquist v. Minneapolis, 44 N.W. 530; O'Kee v. Brownell, 30 N.E. 479; McDermott v. Boston, 133 Mass. 349. (c) If the injury was caused by an act of negligence it was the negligence of Fry in failing to fasten his team, or in failing to properly guard them. Fry was not an employee of the city, but was employed by Henley. The city had no control of Fry in the handling and management of his team, and the city had no power to discharge him. Fink v. Furnace Co., 82 Mo. 276; DeForest v. Wright, 2 Mich. 368.

James W. Boyd and J. B. O'Connor for respondent.

(1) The affidavit for appeal does not pretend to state or allege that the appeal was not taken for vexation or delay. It simply says that the appeal is not made or taken for delay, thereby tacitly admitting that his appeal was taken for vexation. All the decisions hold that it is necessary for a party to comply with the statute before he is entitled to an appeal. (2) The law and the evidence in the case made it the duty of the circuit court to overrule the defendant's demurrer. The first reason assigned by the appellant as to why its demurrer should have been sustained, is stated in the following languagge: "Under the petition and the evidence, plaintiff cannot recover. The city is not liable for the violation of the ordinance." It is the respondent's contention that the violation of this ordinance constitutes negligence on the part of the city, but respondent further contends that if the city was not bound to obey this ordinance, still the city was bound to use in the business in which it was engaged, when Cassidy was killed, proper and reasonable care and caution, and its failure to do so, of course, would be negligence. The suit is not based on the violation of the ordinance, but is based upon the carelessness and negligence of the appellant.

OPINION

BROWN, C. --

This is an appeal from the order of the trial court sustaining a motion for a new trial after verdict for the defendant, on the ground of improper language used by defendant's attorney in his argument to the jury.

The affidavit for appeal omits the words "vexation or" from the form prescribed by the statute. The respondent has moved to dismiss the appeal for the reason of this omission, and the motion has been reserved for decision with the case. The transcript was filed in this court April 17, 1908. The appellant filed its abstract of the record and brief on December 29, 1911. Respondent filed her motion to dismiss the appeal October 11, 1911, and her brief upon the merits on the fourteenth of the same month. The suit is for $ 10,000 on account of the killing of one James J. Cassidy, the respondent's intestate, by a runaway team in the employment of the city, under circumstances stated in the petition as follows:

"That by the provision of said chapter 32 and said section thereof, it was at all times herein stated unlawful for any person to leave any animal standing in any street, avenue, alley, public place in the city of St. Joseph, without being fastened or so guarded as to prevent its running away. That on or about the 17th day of June, 1907, at and near Savannah avenue and Jefferson street, where they intersect in the said city, defendant had said Welch and a number of laborers and men and teams and wagons under his charge and control and supervision engaged in the work of cleaning the streets. That at said time, said Welch, as agent, foreman and representative of the defendant, was in charge of the said men, laborers, teams and wagons, then and there in the employ of, and working for the city aforesaid. That at said time, there were at least two wagons and teams in the use of said city and used at said time and place by said Welch and said men and laborers under his control. That the deceased, James J. Cassidy, was then and there in the employment of the city and working for it as a laborer in its said business of cleaning said streets and he was then and there with the other laborers, under the control of and subject to the orders and directions of the said Stephen Welch. That at said time, to-wit, June 17, 1907, the defendant at said place by and through its said superintendent and foreman, Stephen Welch, carelessly and negligently left one of the said teams standing in Savannah avenue, a public street in said city, unfastened and unguarded without being fastened or guarded or hitched in any manner whatsoever, in violation of the ordinance above mentioned, then and in consequence of the carelessness and negligence of the defendant in having and leaving said team attached to said wagon unfastened and without being fastened and unguarded and without being guarded and unhitched and hitched in no manner, whatever, and in consequence of the defendant's violation of said ordinance and its failure to comply with its requirements or any of them, the said team became frightened and ran away and with great force and violence ran against said deceased near the intersection of said streets, thereby inflicting upon him serious and fatal wounds and injuries, of which he died, within three days thereafter."

The testimony showed that at the time of the accident the deceased was driving a team employed by the board of public works of the city of St. Joseph in cleaning the streets of that city. That at the time and place of the accident three such teams and a number of men, including Welch, who acted as a straw boss as well as a sweeper, were employed in sweeping the dirt from the surface of the street into little piles near the gutter from which it was taken up with shovels, loaded into the wagons and taken to the city dump. Each of these wagons was accompanied by two men, one of whom acted as driver as well as shoveler, and the other was a shoveler. The horses were gentle, and as they passed along the street they would be stopped by the driver, sometimes after passing one of these piles of dirt four or five feet. As the piles were about that distance apart there would be two or three of them in reach of the wagon at the same time. The horses seem to have been driven by oral direction of the driver, stopping and starting at his call. As they were engaged in this work, all the three teams being within the limits of a three hundred foot block, an automobile passed one of them which it frightened with its horn so that it started instantly to run. It is claimed that the driver of this team was at the time engaged in shoveling one of the piles into the rear of his wagon. The deceased, who was engaged in the same employment, seemed to fear that his team would be struck or frightened by the runaways, and started towards them, when they ran against him, knocking him down and injuring him so that he died within a few hours.

Should it be necessary, further details will be mentioned in the course of the opinion.

I. It is now the settled doctrine of this court that the order of the circuit court granting an appeal, whatever may be its recitals, does not confer jurisdiction upon the appellate court in the absence of a sufficient affidavit to support such appeal. It is evident...