Johnson v. Kansas City

• Decision Date: 25 May 1925
• Docket Number: No. 15365.,15365.
• Parties: JOHNSON v. KANSAS CITY.
• Court: Missouri Court of Appeals

272 S.W. 703

JOHNSON v. KANSAS CITY.

No. 15365.

Kansas City Court of Appeals. Missouri.

May 25, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Jennie Johnson against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

Solon T. Gilmore and John D. Wendorff, both of Kansas City, for appellant.

Strother, Campbell & Strother and Spurgeon L. Smithson, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. There was a verdict and judgment in favor of plaintiff in the sum of $2,000. Defendant has appealed.

The facts show that plaintiff was injured on the afternoon of the 2d day of March, 1922, as the result of stepping into a hole in the sidewalk on the east side of Kensington avenue, between Fourteenth and Fifteenth streets in Kansas City, Mo. The hole was made as the result of the installation of a meter box for which a cut in the paved portion of the sidewalk was made. After the meter box was installed, a space was left around it where the concrete had been removed. This space was filled with dirt, but as a result of the dirt settling a hole was made, into which plaintiff stepped.

Defendaut insists that the court erred in overruling its demurrer to the evidence for the reason that plaintiff failed to comply with section 8904, R. S. 1919, providing service of a written notice on the mayor of defendant city within 90 days of the occurrence, stating the place, time, character, and circumstances of the injury, and that the person injured would claim damages therefor from the city. There was no such notice given to any one, but the petition was filed within 90 days containing all the information required by the statute, and thereafter and within that time the defendant filed a motion for security for costs and' a "motion to make party defendants." It was stated in the latter motion that the cause of action, if any, alleged in plaintiff's petition, arose from the wrongful and negligent acts of one Kaufman and one Eisenberg in making a cut "at a place designated in plaintiff's petition as the place where it is alleged plaintiff was injured, and in negligently filling the same, and if said street was not reasonably safe at the time plaintiff claims to have been injured, `such condition was the result of the negligence" of Kaufman and Eisenberg.

The sheriff's return recites:

"Executed this writ in Jackson county, Mo., on the 21st day of April, 1922, by delivering a copy of this writ together with a copy of the Petition hereto attached to Frank H. Cromwell, mayor and chief officer of the within named defendant corporation, Kansas City, Mo. Service by J. M. Lee, Assistant City Counselor."

It is insisted by the defendant that the sheriff's return shows that the petition was not served on the mayor, but on J. M. Lee, assistant city counselor. However that may be, the filing of the motion for security for costs and the motion "to make party defendants" show that within the 90 days the city actually read and examined the petition filed by plaintiff in the circuit court, which contained all the elements of the notice required by the statute. Costello v. Kansas City, 280 Mo. 576, 587, 219 S. W. 386. There is nothing in Reid v. Kansas City, 195 Mo. App. 457, 192 S. W. 1047, and like cases cited by defendant, contrary to our holding herein. In the Reid Case the suit was not filed until after the expiration of the 90-day period, but there is a suggestion in that case (loc. cit. 463, 464 ) that the city might be estopped in a case where the facts are similar to those in the case at bar; that is by the action of the city counselor in leading plaintiff to omit giving the notice within the required time by filing a motion for security for costs and the motion "to make party defendants."

There was no error in the admission of Plaintiff's Exhibits 4 and 5, which are photographs of the hole in which she stepped. Mrs. Brown testified that plaintiff had been downtown shopping on the afternoon of March 2, 1922, and that she first learned that plaintiff had fallen when she went into the latter's house a few minutes after plaintiff returned, where she found plaintiff sitting on the table; that—

"* * * She was sitting there groaning, and I asked her, `What is the matter?' and she said, `I fell in a hole,' and I said, `Where at?' and she said, `Right up the street there,' and she said, `You go and look at it,' and I went and looked at it."

The witness immediately went and...