Kilroy v. City of St. Louis

• Decision Date: 29 March 1912
• Citation: 145 S.W. 769,242 Mo. 79
• Parties: JAMES J. KILROY v. CITY OF ST. LOUIS, ADAM WACKMAN, and ST. LOUIS BREWING ASSOCIATION; ST. LOUIS BREWING ASSOCIATION, Appellant
• Court: Missouri Supreme Court

145 S.W. 769

242 Mo. 79

JAMES J. KILROY v. CITY OF ST. LOUIS, ADAM WACKMAN, and ST. LOUIS BREWING ASSOCIATION; ST. LOUIS BREWING ASSOCIATION, Appellant

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from St. Louis City Circuit Court. -- Hon. W. M. Kinsey Judge.

Reversed and remanded (with directions).

Kehr & Tittman and Marion C. Early for appellant.

(1) The abutting owner has the right to construct and maintain a cellar opening in the sidewalk and he incurs no liability by placing and maintaining it there, provided the sidewalk is left and kept in reasonably safe condition for public travel. Fehlhauer v. City, 178 Mo. 635; Gordon v Peltzer, 56 Mo.App. 599; Jegglin v. Roeder, 79 Mo.App. 434. (2) The action is for alleged negligence in allowing the covering or grating of the coal chute to become worn and defective. For such negligence, if any there be, the occupant at the time of the injury is alone liable. (3) The plaintiff's son was guilty of contributory negligence in the occurrence complained of and hence plaintiff was properly nonsuited.

Lambert E. Walther, Robert Burkham, J. O'More and D. J O'Keefe for respondent.

(1) The city had the right to move that the nonsuit ordered as to its codefendants be set aside. Dillon on Mun. Corp. (5 Ed.), sec. 1725; Perringo v. St. Louis, 185 Mo. 274; Reedy v. Brewing Ass'n, 161 Mo. 523; Carvin v. St. Louis, 151 Mo. 334; Wiggin v. St. Louis, 135 Mo. 558; Benjamin v. Railroad, 133 Mo. 274; Christman v. Meierhoffer, 116 Mo.App. 46; Dillon on Mun. Corp. (5 Ed.), sec. 1728; R. S. 1909, sec. 9801. (2) The court should not have nonsuited as to appellant (without at the same time nonsuiting as to the city) for: (a) There was evidence that appellant was in possession of the premises at the time of the injury and that it was therefore responsible for the defective condition complained of; (b) There was evidence that the dangerous condition had existed for some time prior to the date of the injury and therefore appellant was liable unless it appeared that the defective condition arose subsequent to any letting. Tate v. Railroad, 64 Mo. 149; Mancuso v. City, 74 Mo.App. 138; Stoetzele v. Swearingen, 90 Mo.App. 588; Gordon v. Peltzer, 56 Mo.App. 599.

OPINION

VALLIANT, J.

Plaintiff's minor son fell through a hole in the sidewalk and received injuries to his person. The plaintiff sues for damages to cover the loss of his son's services and the expenses incurred in treating him for his injuries. The defendants are Adam Wackman, the owner of the abutting property; St. Louis Brewing Association, alleged to be the lessee in possession; and the city of St. Louis, the proprietor of the street. The theory of the plaintiff's petition is that the city is liable because it owns the street and is charged with the duty of exercising ordinary care to keep it in a reasonably safe condition for persons passing along it; that Wackman, the owner, is liable because he caused the hole to be made in the sidewalk; and the Brewing Association is liable because, as tenant in possession, it maintained the hole in an unsafe condition.

The cause came on for trial before the court and jury; at the conclusion of the plaintiff's evidence each of the defendants asked an instruction in the nature of a demurrer to the evidence; the court gave an instruction asked by Wackman, and also that asked by the Brewing Association, but overruled that asked by the city. The plaintiff took a nonsuit with-leave as to Wackman and the Brewing Association. Thereupon the city asked leave to file a motion to set aside the nonsuit as to the Brewing Association, which leave the court granted and on a further motion of the city the court granted it a continuance of the cause. The plaintiff did not file a motion to set aside the nonsuit as to either defendant. Within four days the city filed a motion to set aside the nonsuit as to the Brewing Association, which motion the court sustained and from that order the Brewing Association prosecutes this appeal.

I. The first question is, assuming that it was error to have given the instruction looking to a nonsuit in favor of the Brewing Association, had the city a right to move to set the nonsuit aside?

The general rule of law is that in case of joint tortfeasors they are jointly and severally liable, and the party wronged may sue them all in an action or he may sue one or more of them as he sees fit, and the one sued has no right to complain that the others are not sued, because each is liable to the plaintiff for the wrong done by all. And, for the same reason, if all the joint tortfeasors are sued in one action the plaintiff may, if he sees fit, dismiss his suit as to all but one and that one would have no right to complain. And, as a general rule, if judgment goes against one of several joint tortfeasors, he has no right of contribution from the others. "The general rule may be found in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrongdoing the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. There are cases where although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by the reason of some relation, is made chargeable with the conduct of others." [Cooley on Torts (3 Ed.), p. 254.] In a case like this it was recognized that the city might come within that exception and might have a right to its action against a codefendant for contribution or reimbursement. [Wiggin v. St. Louis, 135 Mo. 558, 37 S.W. 528.] In that case the city and the owner of the property abutting on the street were sued as joint wrongdoers; there was a judgment in favor of the property owner and against the city alone; the city appealed and one of the questions was, could the city complain of the judgment in favor if its codefendant? It was held that whilst the property owner and the city had a common defense as to certain features of the case, yet they were antagonists on the question of primary liability for the plaintiff's injuries, and that since the judgment in favor of the city's codefendant would, unless reversed on appeal or writ of error, be conclusive against both the plaintiff and the city, and effectually bar the city's right of action over against its codefendant, therefore it was held that the city could appeal from that judgment. The theory of that case is that although the city was liable to the plaintiff, yet if the negligence of the property owner was the primary cause of the injury, the city had the right to satisfy the judgment and then sue the property owner for the amount it had been forced to pay. In that case the court discussed a section of the city charter, section 9, article 16, which is to the effect that in a case of this kind where the city is liable for the negligent or wrongful act of another and that other is also liable, the plaintiff cannot sue the city unless he joins the other party also, and if judgment goes against both, satisfaction shall not be had of the city if it can be obtained of the other. But that section of the city charter has since been declared unconstitutional by this court. [Badgley v. St. Louis, 149 Mo. 122, 50 S.W. 817.] In that case it was said that whilst the Constitution gave the city of St. Louis authority to adopt a charter of its own making yet it was only for the purpose of city government, and the charter so formed...