Hutchinson v. Mullins

• Citation: 176 S.W. 1083,189 Mo. App. 438
• Decision Date: 03 May 1915
• Docket Number: No. 11153.,11153.
• Parties: HUTCHINSON v. MULLINS et al.
• Court: Missouri Court of Appeals

176 S.W. 1083

189 Mo. App. 438

HUTCHINSON v. MULLINS et al.

No. 11153.

Kansas City Court of Appeals. Missouri.

May 3, 1915.

On Rehearing, May 31, 1915.

Appeal from Circuit Court, Jackson County; J. A. Guthrie, Judge.

Action by Susie Hutchinson against W. C. Mullins and another. From the judgment, defendant Kansas City appeals. Affirmed.

A. F. Evans and A. F. Smith, both of Kansas City, for appellant. Strother & Campbell and Yates & Mastin, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff sued for damages received in being tripped and thrown on a dangerous and unsafe sidewalk, made so by a piece of sewer pipe negligently left thereon and allowed to remain there so long before her fall as to give the city notice of the defect in time to have removed it had the city exercised ordinary care. A trial was had resulting in a verdict for plaintiff against the defendant Kansas City in the sum of $1,000, from which the city has appealed.

The original petition sued Kansas City and one W. C. Mullins, a contractor who had a contract with the city to put in sewers on a number of streets, among which was Lawn avenue, where the injury occurred. In this petition, which was filed March 211, 1907, the city was charged with negligence in failing to keep said street in a reasonably safe condition by permitting sewer pipe to be strewn along and on the sidewalk and near the same, and suffering it to remain thereon; and Mullins was charged with negligently putting and allowing it to remain there. Summonses were issued and served upon both defendants.

An amended petition filed November 17, 1908, charged each defendant with negligence as before. On October 28, 1909, a second amended petition was filed against Kansas City alone, in which the city was charged with negligence in failing to keep that part of Lawn avenue in front of the house at No. 2215 in a reasonably safe condition, in that it negligently suffered and permitted sewer pipe to be strewn along and over the sidewalk, and negligently permitted the same to remain there for a long time, etc. Upon the filing of this second amended petition, the city filed a motion, under section 9801, R. S. Mo. 1909, setting up the foregoing facts with reference to the filing of said petitions and the parties defendant therein, and alleging:

That "if plaintiff received the injuries alleged in the petition and in the manner therein stated, that the same were caused directly and solely by the carelessness and negligence of W. C. Mullins, a sewer contractor, who at the time and prior thereto had placed the pipes upon the sidewalk, if the same were placed there, and if plaintiff received her injuries through the carelessness and negligence of any one, that W. C. Mullins is primarily liable if any liability exists, and is a resident of this city and state, and that service has been had upon him in this action, and he has answered in same."

Said motion prayed:

That "plaintiff be required to make said Mullins a party defendant in her second amended petition in accordance with the facts constituting his liability, and that defendant be not required to plead until same is done."

Thereupon, on November 3, 1909, a third amended petition was filed, with Kansas City and W. C. Mullins parties defendant, in which the city was charged with negligence as before, and this allegation was made with reference to the defendant Mullins:

"Plaintiff further informs the court that the defendant city has filed with this court a motion, copy of which is attached to this petition and by reference marked `Exhibit A,' and made a part hereof, and, in pursuance of the statute in such cases made and provided, this plaintiff makes said Mullins a party to this action, and, while she has no proof of the truth of any allegation that charges said "Mullins with negligence as in said motion indicated, in obedience to Said statute alleges that said Mullins is guilty of negligence in the premises as in said motion set out."

Attached to said petition, as Exhibit A, was a copy of the city's motion.

On August 23, 1910, the city filed a motion to require plaintiff to make Mullins a party defendant; the ground of said motion being that the third amended petition failed to allege any fact against defendant Mullins and was not a compliance with the city's former motion. Thereupon, on December 22, 1910, a fourth amended petition was filed (being the one on which the case was tried), in which the city was charged with the same negligence as before, and this allegation was made with reference to the defendant Mullins:

"Plaintiff further informs the court that the defendant city has filed with this court a motion to make one W. C. Mullins a party defendant in this cause, and in obedience to said motion the plaintiff makes the said Mullins a party defendant herein for the purposes indicated in said motion."

To this petition the city on November 2, 1911, filed a motion to stay proceedings until Mullins was made a party defendant; the ground of the motion to stay being that:

"Plaintiff has filed a petition herein which does not state any cause of action against defendant Mullins."

This motion to stay proceedings, and also the motion filed August 23, 1910, to require plaintiff to allege facts stating a cause of action against Mullins, were both overruled by the court November 4, 1911, defendant city excepting. Thereupon the defendant Mullins filed answer which was a general denial; and the city filed its answer, consisting of a general denial and a plea of contributory negligence. The plaintiff filed reply, and a trial was had. At the close of plaintiff's evidence each defendant demurred. The court sustained the demurrer of defendant Mullins, to which both plaintiff and the defendant city excepted. The city's demurrer was overruled, and then the city offered its testimony, including that of defendant Mullins and certain of his employés, to the effect that no sewer pipe was ever left or remained on the sidewalk. The trial resulted, as stated before, in a verdict and judgment against the city for $1,000, and a judgment in favor of the defendant Mullins and against plaintiff as to him.

Defendant city contends that plaintiff obeyed section 9801 only in so far as to make Mullins a party defendant, but violated its spirit by not alleging any facts showing his liability," and thereby caused a judgment to be rendered in his favor, and that plaintiff, having done this, is not entitled to any judgment against the city; or, to put it in other words, that plaintiff willfully refused to plead any facts upon which a judgment against Mullins could be rendered, and that, therefore, plaintiff is in the same situation as if she had agreed not to sue Mullins, or had consented to a judgment in his favor, or had released him. Before this contention on the part of the city should be now allowed to destroy plaintiff's judgment, it should appear. in the evidence that Mullins' act or omission of duty caused the injury and rendered him liable to plaintiff on account of the same negligence relied upon by her as a cause of action against the city. Of course, under the statute, the mere filing of the motion duly sworn to may perhaps be all that is necessary to require the plaintiff in the first place to comply therewith and make the alleged primary wrongdoer a party. But, if it should afterwards turn out that such person was not liable to plaintiff, or if upon trial no showing is made that such person was negligent or was liable to plaintiff, can the city complain on the ground that the statute was not obeyed in some particular, or because no judgment was rendered against such person? It would seem that the liability of such other person ought to appear in the facts somewhere ; otherwise the city might escape its liability on the ground that the primary wrongdoer had escaped, when there is no certainty that such person is the primary wrongdoer. By the express terms of the statute the city is entitled to the procedure marked out therein "whenever * * * the cause of action on account of which said city is sued shall arise from the * * * negligence of any person, * * * and such * * * negligence shall also make such person * * * liable to an action by the plaintiff on the same account as such city is sued for," etc.

Now, the evidence in the case, at least that prior to the sustaining of Mullins' demurrer to the evidence, did not show that he was liable to plaintiff "on the same account as" the city was or on any other account. The gist of plaintiff's charge against the city was negligence in failing to keep its streets reasonably safe by allowing a sewer pipe to remain on the sidewalk. So far as this charge is concerned, it did not matter who put it there. The city would be liable for allowing it to remain after notice of its being there. Plaintiff swore that she did not know who put it there, and there is no evidence prior to Mullins' demurrer showing who put it there. Nor was there evidence to show whether the pipe was placed on the sidewalk when it was delivered on the street or whether it afterwards in some way was caused to encroach thereon. Of course, if Mullins negligently placed the pipe on the walk in the first place, he would be liable for having thereafter allowed it to remain, but, if he did not put it there, he would not be liable to plaintiff unless he was under some obligation to watch it and see that it did not afterward become an obstruction on the walk.

When we say there was no evidence showing liability of Mullins to plaintiff prior to the sustaining of his demurrer, we are not overlooking the fact that there was in evidence a contract between the city and Mullins whereby the latter was authorized to put in sewers on a large number of streets, among which was Lawn avenue, the street in question, and in which contract Mullins was required to "observe all city ordinances in relation to obstructing the streets, maintaining...