Kling v. Kansas City
| Citation | 61 S.W.2d 411 |
| Decision Date | 12 June 1933 |
| Docket Number | No. 17775.,17775. |
| Parties | CLARA KLING, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of Jackson County. — Hon. Ralph S. Latshaw, Judge.
AFFIRMED.
Harry G. Kyle and Hume & Raymond for respondent.
George Kingsley, City Counselor, James R. Sullivan and Arthur R. Wolfe, assistants for appellant.
This is an action brought by the plaintiff, Clara Kling, respondent herein, for personal injuries alleged to have been caused by the negligent acts of the defendant City in that the City failed to place and maintain a barrier at the end of a sidewalk where immediately beyond it was sloping, rough and uneven. Respondent further alleges that the City failed to establish and maintain a street light at said point, that no barrier was maintained or other signs of public warning placed on or about the end of the said sidewalk, and that the City had failed to repair said place after it had knowledge of the existing condition.
The evidence discloses that Locust Street running north and south and 42nd Street running east and west are public streets of Kansas City, Missouri; that on the southeast corner of the intersection of Locust and 42nd Street there is situated an apartment building known as the Edgemere Apartment, that along the south side of 42nd Street there is a public sidewalk that extends east and west from Locust Street along the north side of said apartment building and extending to the rear of said apartment building where the sidewalk ends. The evidence further discloses that the plaintiff accompanied by her niece passed along this sidewalk at or about half-past twelve (12:30) on the A.M. of November 24, 1929, and that in passing from the end of the sidewalk plaintiff fell receiving the injuries complained of in this case. The plaintiff testified that she was not familiar with the existing conditions at the place of the accident.
It appears from the evidence that there was a street light at the west corner of Locust and 42nd Street, also a street light at 42nd Street and Gillham Road, which is the street after Locust, but no street light between the east side of Locust and Gillham Road and 42nd Street. The plaintiff's testimony is to the effect that it was dark in the neighborhood of the accident. There is testimony on behalf of the defendant that a door light at the rear of the apartment building and a garage sign around the corner of the building reflected on and gave light at the scene of the accident. The evidence is conclusive that there were no barriers at the end of the sidewalk, but is conflicting on the question of holes and uneven condition of the ground after leaving the sidewalk.
The evidence of the plaintiff and her niece was that plaintiff was proceeding with care and caution. The defendant produced evidence that plaintiff had been to a drinking party and was drunk some two hours before the accident. Evidence on the part of the plaintiff was to the effect that there had been no drinking party and that plaintiff was sober.
Trial was by jury resulting in a verdict and judgment for the plaintiff in the sum of $1500 from which judgment defendant has appealed.
OPINION.The appellant in its brief presents two (2) assignments of error as follows:
The defendant's first contention goes to the very gist of the plaintiff's right of action. It is mandatory to the right of bringing an action for injuries received on sidewalks in cities of one hundred thousand inhabitants that within ninety days notice be given to the mayor of the city. In Section 7493, Revised Statutes 1929, it is provided that the notice must state the place where, the time when injury was received, the character and circumstances of the injury, and that damages will be claimed therefor. It is held, however, that the above statute should be liberally construed. [Ogle v. Kansas City, 242 S.W. 115.]
It has been further held that filing a petition within time is sufficient notice, provided however, that the petition contains the essentials of the notice required. [Johnson v. Kansas City, 272 S.W. 703.]
The petition in the case at bar was filed in the Circuit Court of Jackson County, Missouri, on December 26, 1929, and service was had on the City on the following day. The petition alleges that the injury occurred as follows: "That on November 23, 1929, about 12:15 P.M., the plaintiff was walking, etc.," to which the defendant filed answer on January 15, 1930. The proof was that the accident happened at about 12:15 A.M., on November 24, 1929. The petition was filed within the ninety days and the defendant joined issue by answer within ninety days. However, the question presented is as to whether or not the error as to time, as set out in the plaintiff's petition, is fatal to plaintiff's right to maintain this action. In the case of Anthony v. City of St. Joseph, 152 Mo. App. 180, the accident occurred on the 13th day of August, 1908, while the notice to the city was that the occurrence was on August 14th. The court held, in the above case, that the variance of one day was fatal to the plaintiff's right to maintain the suit. In the case of Hackenyos v. City of St. Louis, 203 S.W. 986 to 1002, a most complete discussion is found. The opinion is by BAILEY, C. In that case the notice alleged as occurring, "on or about the 1st day of September, 1913, about 11 A.M." The evidence disclosed that the injury occurred on September 2, 1913. The majority opinion in that case holds that the words, "on or about," as used in the notice, are indefinite, uncertain, and imparted no notice to the defendant that the accident occurred on the 2nd day of September.
As bearing upon the question of liberal construction as to the notice of time, the majority opinion says:
(Italics the court's.)
In so far as Hackenyos v. City of St. Louis is concerned, the conclusion cannot be escaped that the majority opinion goes to the limit in the declaration in respect to "time." The notice as to time is mandatory and admits of no variance whatever, further there is language in the opinion from which we conclude that if the statute had required notice of the hour that the naming of the next hour would be a fatal variance. In other words, while the majority opinion leans to the idea of liberal construction, as to other matters, when it comes to time the notices must be exact.
In the Hackenyos v. City of St. Louis case, GRAVES, C.J., and FARRIS and WILLIAMS, JJ., concur; BLAIR, J., concurs in result; WOODSON, J., dissents in a separate opinion, in which BOND and WALKER, JJ., join.
At pages 999 to 1000 of the reported case in the South Western, the dissenting opinion uses the following language:
"Clearly it was not the design of the Legislature to defeat, by a mere technicality, a righteous cause of action to recover damages for an injury caused by the negligence of the City, and not that of the injured party; but the obvious intention was to place the salient facts of the case in the hands of the city officers, and thereby enable them, before the physical conditions of the street have changed, to ascertain whether the claim was true and just, or fictitious and fraudulent."
Again on page 1000, the following is found:
As to the notice being specific as to time, Hackenyos v. City of St. Louis, supra, presents the controlling law in this State. Regardless of what our conclusions are concerning the merits of the presentation as found in the dissenting opinion, we are bound by the law, as declared by the majority opinion, unless the facts as presented in the case at bar can be distinguished from the...
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