Drake v. Kansas City Public Service Co.

• Decision Date: 12 August 1933
• Docket Number: 32599
• Parties: Harold Drake, by T. W. Imes, His Next Friend, v. Kansas City Public Service Company, a Corporation, Appellant
• Court: Missouri Supreme Court

63 S.W.2d 75

333 Mo. 520

Harold Drake, by T. W. Imes, His Next Friend, v. Kansas City Public Service Company, a Corporation, Appellant

No. 32599

Supreme Court of Missouri

August 12, 1933

Appellant's Motion for Rehearing Overruled August 12 1933.

Appellant's Motion to Transfer to Banc Overruled August 12, 1933.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Charles L. Carr and Watson, Ess, Groner, Barnett & Whittaker for appellant.

(1) The supplemental petition engrafts upon the original cause of action an entirely new and different cause of action based upon alleged facts which came into existence after the suit was filed, and the trial court erred in permitting the original petition to be so amended and in entering its interlocutory judgment thereon. Secs. 819, 825, R. S. Mo. 1929; 49 C. J. 571; Childs v. Railway, 117 Mo. 414; Clothing Co. v. Steidemann, 120 Mo.App. 519; Heman v. Glann, 129 Mo. 325; Heard v. Ritchey, 112 Mo. 516; Payne v. School District, 87 Mo.App. 415; Jennings v. Cherry, 301 Mo. 321, 332. (2) The evidence showed conclusively that Norman Brown resided in the county and less than forty miles from the place of the trial, and was under subpoena at the time of the trial. No statutory ground for reading his testimony as preserved in the bill of exceptions at the former trial existed, and the court erred in permitting that testimony to be read over defendant's objections. Secs. 1714, 1780, R. S. 1929; O'Brien v. Transit Co., 212 Mo. 59; Gaul v. Wenger, 19 Mo. 541; Wetherell v. Patterson, 31 Mo. 458; State v. Miller, 263 Mo. 335; Francis v. Willits, 30 S.W.2d 203. (3) Plaintiff's Instruction 1 imposes upon the defendant the duty of using care to keep the pavement in an absolutely safe condition, rather than in a reasonably safe condition, thereby constituting defendant an insurer; and said instruction is erroneous in law and the rights of defendant were prejudiced thereby. Clardy v. K. C. Pub. Serv. Co., 42 S.W.2d 390; Cooper v. Caruthersville, 264 S.W. 46; Albritton v. Kansas City, 192 Mo.App. 574; Sprague v. St. Louis, 251 Mo. 629; Francis v. West Plains, 203 Mo.App. 254; Van Bibber v. Swift & Co., 286 Mo. 334; Shimmers v. Mullins, 136 Mo.App. 302; Brands v. St. Louis Car Co., 213 Mo. 698; Chenoweth v. Sutherland, 129 Mo.App. 438; Ogan v. Railroad Co., 142 Mo.App. 348; Bennett v. Lime Co., 146 Mo.App. 565; Longree v. Manufacturing Co., 120 Mo.App. 478; State ex rel. v. Ellison, 272 Mo. 583; Macklin v. Fogel Constr. Co., 326 Mo. 38, 31 S.W.2d 19; Murdock v. Dunham, 206 S.W. 915; Wasson v. Sedalia, 236 S.W. 299; Huff v. Railway Co. and St. Joseph, 213 Mo. 513.

Atwood, Wickersham & Chilcott for respondent.

(1) The court properly permitted plaintiff to file a supplemental petition, the purpose of a supplemental petition being to show how plaintiff's rights have changed since he commenced his action and to what relief, as varied, or added to, he is entitled at the time the supplemental petition is filed. Secs. 765, 819, 825, R. S. 1929; Secs. 782, 791, R. S. 1919; 21 C. J. 542; 49 C. J., pp. 506, 507, 566, 567, 570, 571, 572, 574; 10 R. C. L., pp. 492, 500, 501, 502; Ward v. Davidson, 89 Mo. 455; Reyburn v. Mitchel, 106 Mo. 365; Childs v. Railway, 117 Mo. 414; West v. Bundy, 78 Mo. 407; Nave v. Adams, 107 Mo. 414; Alfter v. Hammett, 54 Mo.App. 308; Cohn v. Souders, 175 Mo. 454; State ex rel. v. Men's Club, 178 Mo.App. 553; Walker v. Railroad, 193 Mo. 454; Bush v. Block, 187 S.W. 153; Montague v. Railway, 233 S.W. 189; Graef v. Bernard, 162 Mass. 300, 38 N.E. 503; Keller v. Caldwell, 154 S.E. 674; Courtney v. Blackwell, 150 Mo. 273; Roberts v. Lead Co., 95 Mo.App. 581; St. Joseph Union Depot Co. v. Railway Co., 131 Mo. 291. (a) When the circuit court appointed a next friend to prosecute plaintiff's cause of action therein it thereby assumed exclusive jurisdiction over the same, and another next friend could not be appointed and another action instituted in another court until the next friend appointed by the circuit court had been removed or the cause dismissed. Therefore the justice of the peace exceeded his jurisdiction, and the judgment rendered by him was no bar to the present action. 15 C. J. 1134; 46 C. J. 473; 31 C. J. 1130; 7 R. C. L. 1067; Gray v. Clements, 246 S.W. 940; Clark v. Crosswhite, 28 Mo.App. 34; Robinson v. Hood, 67 Mo. 660; Upton v. Bush, 121 S.W. 1005; Grey v. Indep. Order of Foresters, 196 S.W. 779; State ex rel v. Broaddus, 245 Mo. 124; State ex rel. Taubman v. Davis, 190 S.W. 964; Julian v. Commercial Assurance Co., 279 S.W. 740, 220 Mo.App. 115; Kinealy v. Staed, 55 Mo.App. 176; Miller v. Contl. Assurance Co., 196 S.W. 448; State ex rel. Hamilton v. Guinotte, 57 S.W. 281, 156 Mo. 513, 50 L. R. A. 787; Reed v. Railroad Co., 209 S.W. 892, 277 Mo. 79; State ex rel. Hampe v. Ittner, 263 S.W. 158, 304 Mo. 135; State ex rel. Banner Loan Co. v. Landwehr, 27 S.W.2d 27; State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L. R. A. (N. S.) 963, 123 Am. St. Rep. 468, 14 Ann. Cas. 198; Beekman Lbr. Co. v. Harvester Co., 215 Mo. 221, 114 S.W. 1087; Riley v. Police Crt., 194 Cal. 375; Stephens v. Curtner, 222 S.W. 497; Charles v. White, 214 Mo. 188; State ex rel. v. Landis, 173 Mo.App. 198; Gray v. Clements, 227 S.W. 111; In re Gladys Morgan, 117 Mo. 249; State ex rel. Coffield v. Buckner, 200 S.W. 94; In re Alberta Antoinette Ingenboks, 173 Mo.App. 261; Bartlett v. Littrell, 26 S.W.2d 768; Townsend v. Mueller, 51 S.W.2d 8. (2) The motion for a new trial is insufficient to raise the question whether the trial court erred in holding that the plaintiff had laid a proper foundation for the introduction in evidence of the transcript of the testimony of Norman Brown given upon the former trial. The rule in the Wampler, Chawkley and Bobos cases has no application to the point here involved. Howard v. Hurst, 163 Mo.App. 641; Needles v. Ford, 167 Mo. 495; Pitts v. Sheriff, 108 Mo. 115; McMenany's Guardianship, 270 S.W. 662; Alexander v. Sovereign Camp, 186 S.W. 2; Wilder Natl. Tavern System v. Wilder, 18 S.W.2d 114; Big Tarkio Drainage Dist. v. Lamar, 199 S.W. 727; Salmon v. Ry. Co., 197 S.W. 35. (a) The trial court did not err in permitting the plaintiff to introduce in evidence the transcript of Norman Brown's testimony given upon the former trial. Welp v. Bogy, 297 S.W. 604; State v. Riddle, 197 Mo. 287; Franklin v. Gummersell, 11 Mo.App. 314; Bender v. Bender, 193 S.W. 294; Krause v. D. U. Ry. Co., 170 Mich. 438, 136 N.W. 434; Daniels v. Stock, 23 Colo.App. 529, 130 P. 1031. The motion for a new trial may not be supplemented by affidavits or evidence after the term at which the motion was filed. Reissman v. Wells, 258 S.W. 46; Hesse v. Seyp, 88 Mo.App. 66. The evidence adduced upon the hearing of the motion for new trial was on court's own motion, and plaintiff did not waive any rights. The objection of defendant, to-wit: "I object for the reason this man is within the jurisdiction of this court and is under subpoena," is wholly insufficient, defendant admitting lack of knowledge of Brown's whereabouts. The trial court possessed a common-law right to determine the "procurability" of witnesses who had given testimony upon a former trial, and whether due diligence and good faith had been exercised by the party offering a transcript of such testimony. Such common-law right is not modified or abridged by Sec. 1714, R. S. 1929; Sec. 1714, R. S. 1929 refers to both Secs. 1780 and 1804, R. S. 1929. Welp v. Bogy, 277 S.W. 604; 22 C. J. pp. 433-4-5; State v. Riddle, 179 Mo. 287; Ratcliff v. Railroad Co., 131 Mo.App. 118. (b) The testimony of Norman Brown was merely cumulative, and there being no evidence controverting plaintiff's case as to how, when and where the accident occurred, the case will not be reversed even though the trial court erred in receiving Brown's former testimony. Southern Com. Savings Bank v. Slattery, 166 Mo. 620; Alexander v. Wade, 106 Mo. App, 153; Burnstein v. Ry. Co., 56 Mo.App. 45; Ruddy v. Gunby, 180 S.W. 1043; O'Keefe v. United Rys. Co., 124 Mo.App. 622; Gibbs v. Haughowout, 207 Mo. 384; Rodenbaugh v. Kelton, 130 Mo. 558; Lane v. Lane, 113 Mo. 504; Rodney v. McLaughlin, 97 Mo. 426; Shouse v. Dubinsky, 39 S.W.2d 531; Adolph v. Brown, 255 S.W. 947; Porterfield v. Am. Surety Co., 210 S.W. 119; Fellhauer v. Railroad Co., 177 S.W. 795; Reno v. Kingsbury, 39 Mo.App. 240; Wilkinson v. Met. Ins. Co., 54 Mo.App. 660; Young v. Hudson, 99 Mo. 102; Bailey v. Kansas City, 189 Mo. 503; Hock v. Rollins, 158 Mo. 182; Hill-Dodge Banking Co. v. Loomis, 140 Mo.App. 62; Heading & Stave Co. v. Railroad Co., 119 Mo.App. 495; McMenamy's Guardianship, 270 S.W. 662; Weldon v. Railroad Co., 93 Mo.App. 668; Lewis v. Packing Co., 3 S.W.2d 244. (3) It was within the power of Kansas City to regulate the use, construction and maintenance of its streets. The duty prescribed in plaintiff's Instruction 1 was in the words of the ordinance and franchise and therefore proper. The instruction as a whole was more favorable to appellant than appellant was entitled to. Furthermore if there was any error in the first paragraph of Instruction 1 it was cured by the second paragraph which directed the verdict. Charter of Kansas City, Secs. 1, 13, 14, 16, 49, 61, Secs. 409-411-412; Kelley v. United Railways Co., 153 Mo.App. 115; Bowers v. K. C. Rys. Co., 41 S.W.2d 810; State ex rel. v. Reynolds, 244 S.W. 929; Fairall v. Cameron, 99 Mo.App. 1; Squiers v. Kansas City, 100 Mo.App. 628; Hebenheimer v. St. Louis, 189 S.W. 1183; Spaulding v. Lumber & Mining Co., 183 Mo.App. 648; Hild v. St. Louis Car Co., 259 S.W. 838; Schulte v. Carmichael, 282 S.W. 181; Hutson v. Missouri Stair Co., 296 S.W. 216; Schroeder v. Wells, 298 S.W. 806; Underwood v. Hall, 3 S.W.2d 1044; Robinson v. Ross, 47 S.W. 122.

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