Costello v. City of Kansas City
| Citation | 232 S.W. 165,209 Mo.App. 155 |
| Parties | JOHN T. COSTELLO, Plaintiff, Appellant, v. CITY OF KANSAS CITY, MISSOURI, Appellant, and WILLIAM B. ROBERTS, Defendant, Respondent |
| Decision Date | 23 May 1921 |
| Court | Court of Appeals of Kansas |
Appeal from Circuit Court of Jackson County.--Hon. Thomas J Seehorn, Judge.
AFFIRMED.
Judgment affirmed.
E. M Harber and Francis M. Hayward for appellant.
Atwood Wickersham, Hill & Popham for appellant, John T. Costello.
R. B. Middlebrook for respondent.
This is an action for personal injuries.
The facts show that plaintiff was injured during the early morning of October 21, 1917, while traveling along a sidewalk on the west side of Bell Street between 36th and 37th streets in Kansas City, Missouri. The sidewalk was constructed of granitoid and at the point in question had a driveway running from the street into private property. The presence of this driveway on a grade below the sidewalk to the south occasioned an offset of about two and one-half inches starting at the outer edge of the sidewalk and growing less as it approached the property line; at the latter point the offset was a little less than an inch in height. There was no offset on the north side of the driveway. The sidewalk had not become in this condition through any deterioration by lapse of time but was as it was originally constructed in 1902.
Plaintiff, who lived in the vicinity about a block distant, left his home about 4:30 of the morning in question. He was on his way to work and was proceeding south on the sidewalk. It was very dark, the nearest light (a gas light) was sixty feet away. Plaintiff proceeded in the way he usually walked, not thinking of the obstruction in the street, when he tripped over the offset in the sidewalk south of the driveway. On account of the darkness he was unable to tell the exact place where he tripped but indicated on the photograph that to his best judgment it was near the east side of the sidewalk. He had gone over the same place once a day for fifteen years but had never stopped to investigate it or thought anything of it.
The trial resulted in a verdict being rendered at the September term, 1919, of the circuit court in favor of plaintiff and against both defendant in the sum of $ 2250. Each defendant filed its separate motion for a new trial, and at the November term, 1919, the court sustained defendant Roberts' said motion "on account of error in instructions," to which plaintiff excepted. Thereupon the court ordered and directed that judgment be rendered against defendant Kansas City to remain interlocutory until the final disposition of the cause as to all parties, to which action defendant city excepted. At the January term, 1920, of the circuit court the cause again coming on for hearing, the parties, both plaintiff and defendants, waived a jury and the cause was submitted to the court. Defendant Kansas City objected to a retrial of the issues between plaintiff and defendant Roberts for the reason that the court had not granted defendant city a new trial. This objection was overruled. Trial was thereupon had as to the issues between plaintiff and Roberts, the city participating therein and offering a declaration of law, which resulted in a judgment in favor of defendant Roberts and declaring that the interlocutory judgment theretofore rendered against defendant Kansas City be final. To this final judgment plaintiff and defendant Kansas City filed their motions for a new trial. These motions were overruled and both defendant city and plaintiff appealed.
The first point made by defendant Kansas City is that the court erred in that after it granted a new trial to defendant Roberts it failed to grant a new trial to the city, but made the judgment against the city interlocutory at a term subsequent to the rendition of the judgment and then forced the cause to trial over the objection of defendant city while the latter's motion for a new trial was pending and undisposed of, and after giving judgment in favor of Roberts it overruled the original motion of Kansas City for a new trial. In this connection it is insisted by defendant city that the suit is against two joint tort-feasors on account of an injury inflicted through the negligence of each which concurred in producing the result complained of, and there being a question of contribution between the two defendants, the city had a right to defend throughout the entire course of the litigation in order to reduce the amount recovered against either or both defendants, to the payment of which they may be eventually called upon to contribute. It is claimed that for this reason the city was also entitled to a new trial, especially as it claims that Roberts was primarily liable for the injury. The city cites in support of this contention the cases of Miller v. United Rys. Co., 155 Mo.App. 528, 134 S.W. 1045; Knox v. M., K. & T. Ry. Co., 199 Mo.App. 64, and similar cases.
It has long been established in this State that, in view of section 8949, Revised Statutes 1919, where the city and another defendant who is primarily liable are sued as joint tort-feasors by an injured party, the two defendants are adversary parties and a judgment in favor of the property owner is res adjudicata in an action by the city against him; that a judgment for plaintiff in favor of the property owner and against the city is binding on all and bars the city's right of action against his co-defendant unless reversed on appeal, consequently the city has the right to appeal from a judgment against it and in favor of its co-defendant, and, it follows, has a right to move the trial court to grant a new trial or to move the trial court to set aside the judgment in such circumstances, at least so far as it affects the city's right against its co-defendant. It is likewise held that although the plaintiff has joined the property owner with the city as co-defendant yet his right to a judgment against the city does not depend upon a judgment against the property owner if the evidence justifies the one and does not justify the other. [Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528; Kilroy v. St. Louis, 242 Mo. 79, 84, 145 S.W. 769; Hutchinson v. Mullins, 189 Mo.App. 438, 446, 176 S.W. 1083; Kansas City v. Mullins, 200 Mo.App. 639, 641, 209 S.W. 558.]
Conceeding that the cases of Miller v. United Rys. Co., supra, and Knox v. M., K. & T. Ry. Co., supra, are applicable to the facts in this case, we do not see how defendant city has been deprived of any right to which it was entitled as it was given the right to contest the liability of Roberts throughout. Judgment was finally entered in favor of Roberts and against the city. There was, therefore, but one final judgment in the case (Sec. 1521, R. S. 1909; Deck v. Wright, 135 Mo.App. 536, 539, 540, 116 S.W. 31; Russell v. Railway Co., 154 Mo. 428), and the fact that that judgment was in favor of one party defendant and against the other does not militate against the rule that the judgment must be entire in the sense that it must dispose of all parties to the suit. [Bank of Flat River v. Hodges, 228 S.W. 1081.] It is well established that a judgment may be reversed as to one party and affirmed as to other parties "where errors do not affect the parties jointly and the rights of one party are not dependent upon those of another." [Stotler v. Railroad, 200 Mo. 107, 150; Adair v. Railway Co., 220 S.W. 920, 929.] Assuming that this has reference to practice in trial courts, defendant city had no right to have a new trial when one was granted to Roberts as the city has not pointed out to us any error in the first trial that affects the parties jointly and necessitated the granting of a new trial to both defendants. However, in this connection the city says that plaintiff's instruction No. 3 in the first trial was erroneous as to both defendants, for the reason that the petition asked for only $ 75 for loss of wages while the instruction allows recovery for as much as $ 300, the amount of such loss as shown by the evidence. If such are the facts, the new trial was not necessary as the matter could have been cured by a remittitur of $ 300, being the whole amount of the wages submitted to the jury. [Brown v. Planing Mill Co., 217 S.W. 332, 335; Creve Coeur Lake Ice Co. v. Tamm, 90 Mo.App. 189; Smoot v. Kansas City, 194 Mo. 513, 523, 92 S.W. 363; Cook v. Globe Printing Co., 227 Mo. 471, 547, 127 S.W. 332.] The city, therefore, has not pointed out any error in the first trial affecting jointly the parties defendant that justified a new trial to either defendant and we assume that the trial court did not grant a new trial on the ground suggested. The fact that the city in its Points and Authorities (there being no assignment of errors) does not assign the giving of plaintiff's instruction No. 3 as error is some evidence that the city does not regard this point as of very great merit, if that neglect does not altogether waive the matter.
The court did not err in making the judgment rendered at the September term an interlocutory judgment at the November term. The pendency of the defendant city's...
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