City of Columbia v. Malo

• Decision Date: 05 January 1920
• Docket Number: No. 13396.,13396.
• Parties: CITY OF COLUMBIA v. MALO.
• Court: Missouri Court of Appeals

217 S.W. 625

CITY OF COLUMBIA v. MALO.

No. 13396.

Kansas City Court of Appeals. Missouri.

January 5, 1920.

Error to Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Suit by the City of Columbia against H. C. Malo. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

N. T. Gentry, of Columbia, for plaintiff in error.

McBaine, Clark & Rollins, of Columbia, for defendant in error.

TRIMBLE, J.

The city of Columbia was sued, and judgment against it was recovered, by one Payne for damages accruing by reason of his horse falling into an excavation in the street negligently left without sufficient barriers. The excavation was made by H. C. Malo, and the present suit is by the city against him, as the primary wrongdoer, to recover the amount the city was compelled to pay on account of his neglect to provide barriers which, by ordinance, he was required to place around such excavations. The trial resulted in a verdict for the city in the full amount prayed for, to wit, $221.20. Malo has brought the case here by writ of error. We shall designate the parties plaintiff and defendant as in the trial court, for brevity and to avoid confusion in calling the former defendant in error and the latter plaintiff in error.

Defendant was a plumbing contractor, and on April 12, 1918, he made an excavation crosswise and in the middle of Hitt street in said city, and also another one, west of it and in the parking between the sidewalk and the curb, on the west side of said street. The excavation in the middle of the street was 6 feet long, 2½ feet wide, and 6 or 7 feet deep. Between the east end of this excavation and the curb a space 7 feet wide was left for traffic, and at the west end the space left for such purpose was 10 feet wide. As shown above, the excavation in the parking was on the west side, and of course next to this 10-foot space. The dirt from the respective excavations was piled on the north and south sides thereof to the height of about 3 or 3½ feet. There was no protection across the ends of the excavations, however, no barriers of any sort being placed there, so that there was nothing to protect traffic passing the ends of the excavations from going into the same and no barriers were placed about the excavations, except such as the dirt, piled as aforesaid, constituted barriers on the sides. The street in question was paved with brick and sloped to the north with a descent of about 4 feet to the 100.

Before making the excavations, the plaintiff, as he was required to do by ordinance, obtained a permit therefor signed by the proper city authorities. By another ordinance it was provided that all persons excavating in the streets or adjacent thereto "shall erect suitable barriers around all excavations to prevent accidents to passengers on the streets," etc. The next day after the excavations were made, and while they were in the situation and condition above described, an employé of Payne drove a team hitched to a wagon heavily loaded with corn down Hitt street and in the middle thereof until he was near to the excavation when he saw it and attempted to drive to the right-hand or east side of the excavation. This placed the younger mare of his team next to the hole in the street, and she shied at it, so that it was impossible for him to pass in the space there afforded. He then backed his wagon slightly and drove to the west side of the excavation, thus placing the old mare next to it. The view of the hole in the parking was obstructed by the dirt piled on either side of it, and also by a tree in the parking, and the driver, carefully watching his team and the hole in the street, did not observe the one in the parking. The young mare was thus placed next to that unobserved hole, and, as the team passed between the two holes, the one in the parking was disclosed to the young mare, and she shied at it, and sprang aside and against the old mare, knocking the latter into the hole in the middle of the street. She was heavy with foal, was tightly wedged in the hole, and although every effort was made to extricate her she died before she could be gotten out. Mr. Payne thereupon brought suit against the city for allowing the excavation to be dug in the street and negligently left in an unguarded condition, and recovered judgment as heretofore stated, which the city was compelled to pay.

It is urged that the petition states no cause of action, in that it does not allege notice to Malo of the pendency of the case of Payne against the city. But the petition is based on the negligence of defendant in leaving the excavations unguarded, and the injury resulting therefrom and the damage suffered by the city in being compelled to pay for the primary wrong done by the defendant. In other words, the petition put in issue all the facts involving the making of the excavation, the happening of the injury, the negligence of defendant, and the suit and judgment whereby the city was compelled to pay. The petition did not rely upon the judgment as a conclusive matter in its cause of action, but left all of the issues open to defendant to litigate fully. Hence the omission to allege such facts as would show that Maio was bound by the judgment in the case of Payne v. City did not go to the city's cause of action in this case. 22 Cyc. 107; Stewart v. Thomas, 45 Mo. 44; State ex rel. v. Baird, 186 S. W. 587. In other words, even if Malo was without notice of the suit against the city, still the city had a cause of, action against him for whatever loss it may have sustained by reason of his wrongful neglect. The city, however, would have the burden of establishing all of the facts necessary to such a cause of action, and the defendant would be free to contest all or any one of them, and to raise any defenses that he could have made, had he been a party to the other suit, or had he been notified thereof, and had had an opportunity to defend. The petition, therefore, did state a cause of action, even though it was silent upon the subject of notice to defendant of the other suit; and if the cause of action that was pleaded had evidence to support it, defendant was not entitled to a demurrer to the evidence, or to a directed verdict in his favor, on the ground that there was no evidence of proper notice of and opportunity to defend the other suit. The questions whether the demurrer to the evidence should have been sustained on account of the contributory negligence of the driver of the team, or because there was no proof of defendant's negligence, will be passed upon in another part of this opinion.

In plaintiff's first instruction its case was submitted on the theory above mentioned, namely, that the judgment against the city in Payne's Case was not conclusive upon defendant herein. In other words, the instruction submitted to the jury the issues involved in the cause of action pleaded in the petition as necessary to be found in plaintiff's favor, including the absence of negligence on the driver's part, before a verdict for the city could be returned. But in plaintiff's instruction No. 2 the jury were told that if they found from the evidence that defendant was advised of the pendency, nature, and object of Payne's suit against the city, and that defendant assisted counsel for the city in Payne's suit in preparing said Payne Case for trial and in the trial thereof, and that defendant consented to or acquiesced in and approved what was done by the attorney for the city and was by the latter given full opportunity to present all the evidence and defenses in that case, and that judgment was obtained against the city for damages and costs aggregating $221.20, and that plaintiff paid said judgment and costs, then—

"there is no further issue or matter for you to consider or pass upon, and your verdict will be for the plaintiff, city of Columbia, in this action for the amount of said judgment and court costs in the Payne Case, to wit, two hundred and twenty-one dollars...