Cummings v. Halpin

• Decision Date: 07 April 1930
• Docket Number: No. 16366.,16366.
• Citation: 27 S.W.2d 718
• Parties: CUMMINGS v. HALPIN et al.
• Court: Missouri Court of Appeals

27 S.W.2d 718

CUMMINGS v. HALPIN et al.

No. 16366.

Kansas City Court of Appeals. Missouri.

April 7, 1930.

Rehearing Denied May 5, 1930.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Suit by Mrs. Nancy W. Cummings against J. E. Halpin and another, partners doing business as the Halpin-Boyle Construction Company, and others. Motion by plaintiff to set aside involuntary nonsuit was overruled, and plaintiff appeals.

Reversed and remanded for new trial as to defendant Kansas City, otherwise affirmed.

Harry G. Kyle and Charles N. Sadler, both of Kansas City, for appellant.

John T. Barker, Robt. J. Ingraham, and Roy B. Cunningham, all of Kansas City, for respondent Kansas City, Mo.

McCune, Caldwell & Downing, of Kansas City, for respondents Halpin, Boyle, and Halpin-Boyle Const. Co.

ARNOLD, J.

This is an action in damages for personal injury. Defendants J. E. Halpin and W. D. Boyle were copartners doing business as the Halpin-Boyle Construction Company, and defendant Kansas City is a municipal corporation of the state of Missouri. On or about February 16, 1923, the city of Kansas City entered into a contract with the Halpin-Boyle Construction Company to grade Summit street in said city from its intersection with Twenty-Third street to a point 125 feet north thereof. The said grading consisted in cutting down the entire street a depth of approximately 3 feet; and, in making said excavation, the sidewalk on the east side of the section so graded was torn up and graded with the level of the street, in order that the street could be widened. The construction company completed the work under the contract, and the same was accepted on May 18, 1923. After removal of the sidewalk as above indicated, and on account of the spring rains, the street became very wet and muddy in the excavated space. For the use of persons in passing, the construction company placed large fragments of the broken sidewalk along the east side of the street to take the place of the sidewalk which had been removed. The stones were placed end to end in more or less irregular positions, leaving crevices between. The stones were of an uneven height, and some of them became more or less loose and unstable in their positions. It is in evidence that this condition existed for a period of more than ten days prior to May 21, 1923.

The evidence shows that about April 1, 1923, plaintiff, who was sixty-five years of age, moved into an apartment on the east side of Summit street. On May 21, 1923, at about 2.30 p. m., plaintiff went from her home to a grocery store nearby to make some purchases. On leaving the store she started north toward her home, walking upon the fragmentary stones above mentioned. In stepping upon the second stone north of the step leading into the grocery store, the stone tilted with her weight, her foot slipped into the crevice between that stone and the one next south of it and, as alleged in the petition, she was thereby thrown violently, breaking her left arm above the wrist and otherwise injuring her.

This suit was instituted by filing a petition on July 20, 1923; and afterwards on April 1, 1924, a first amended petition upon which the cause was tried was filed. The service of the original petition was made by delivering a copy thereof to the then city counselor of defendant city, the sheriff's return thereon being as follows:

"Executed this writ in Jackson County, Missouri, on the 23rd day of July, 1923, by leaving a copy of this writ together with a copy of the petition hereto attached at a business office of the within named defendant corporation, with John B. Pew, counselor, designated by the mayor to accept service of the said defendant corporation and person in charge of said business office.

                "[Signed] Fred A. Richardson, Sheriff
                           "By J. F. Wingfield, Deputy."
                

The petition alleges negligence of Halpin-Boyle Construction Company, in that they negligently failed to exercise ordinary care to keep the stones composing the temporary work in a reasonably safe condition for public travel, while they were repairing the street; that they negligently placed said stone upon which plaintiff stepped in such position that there was a crevice between it and the adjacent stone at its south end, and so placed it that the south end thereof was two inches higher than its north end, and was poorly balanced and tottery, and so essentially and imminently dangerous to persons using it, and was so hidden and concealed it could not be discovered by ordinary inspection; negligently permitted said irregularly shaped stones to remain in the street in said dangerous condition, after they knew, or by the exercise of ordinary care could have known, of such defective condition, in time to have remedied the same.

The charge of negligence against defendant city is that it negligently failed to maintain the said sidewalk in a reasonably safe condition for travel by the public; negligently permitted the said stone to become and remain uneven and teetery, and with its south end higher than its north end, with a crevice between it and the stone south of it; negligently failed to maintain a proper system of inspection; and negligently failed to inspect the same, prior to the injury complained of; that the city knew, or by the exercise of ordinary care could have known, all of the facts alleged in time, by the exercise of ordinary care, to have repaired and remedied the same prior to plaintiff's injury.

Judgment is prayed in the sum of $7,500 against both defendants.

Defendant Kansas City filed its separate amended answer, consisting of a general denial and a plea of contributory negligence. The answer of J. E. Halpin and W. D. Boyle is a general denial, and, for affirmative defense, pleads contributory negligence; this answer was adopted as the answer of the Halpin-Boyle Construction Company. The amended answers were filed during the progress of the trial, and the cause was tried on the theory that a reply had been filed denying new matter. There was a jury trial, and, at the close of plaintiff's evidence, defendants Halpin and Boyle and defendant Kansas City offered separate instructions in the nature of demurrers to the evidence which were marked by the court "given" but were not read to the jury. Defendant Halpin-Boyle Construction Company offered a similar instruction in the nature of a demurrer which also was marked "given" but not read to the jury. Thereupon plaintiff took an involuntary nonsuit, with leave to move to set the same aside. Such motion was duly made, but was overruled. From said ruling plaintiff has appealed.

The errors charged are the court erred in refusing to sustain plaintiff's motion to set aside the involuntary nonsuit and in giving the instructions in the nature of demurrers asked by defendant Halpin-Boyle Construction Company and defendant Kansas City, Mo. We will first consider the point urged as applied to the defendant city.

It appears that the court sustained the demurrer of defendant city at the close of plaintiff's case, upon the ground that plaintiff did not give this defendant notice within ninety days from the date of the alleged injury, as required by section 8904, Rev. St. 1919. Said statute reads as follows: "No action shall be maintained against any city of this state which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city."

It is plaintiff's contention that notice to the city was obtained by serving a copy of the original petition upon the city counselor, and that such service was in compliance with the requirement of the statute. It is urged that this is true because the mayor had previously designated the city counselor as the officer upon whom notice could be served. That the mayor was not served in person, in the case at bar, is not disputed. The person served with notice was the city counselor, as shown by the sheriff's return. There is no question but the petition was served within the statutory ninety-day period. The question is, Was it served upon the proper party? If served upon the proper party, there is no question of the sufficiency of the notice. Costello v. Kansas City, 280 Mo. 576, 219 S. W. 386.

In Reid v. City, 195 Mo. App. 457, 192 S. W. 1047, this court held the statute requiring written notice (Laws 1913, p. 545, § 8904, Rev. St. 1919) is mandatory and should be...