Koontz v. City of St. Louis

• Decision Date: 07 January 1936
• Citation: 89 S.W.2d 586,230 Mo.App. 128
• Parties: LOUISE KOONTZ, RESPONDENT, v. THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, AND ST. LOUIS BUS CO., A CORP., DEFENDANTS, CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, APPELLANT
• Court: Missouri Court of Appeals

89 S.W.2d 586

230 Mo.App. 128

LOUISE KOONTZ, RESPONDENT, v. THE CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, AND ST. LOUIS BUS CO., A CORP., DEFENDANTS, CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

January 7, 1936

Motion for rehearing on modified opinion overruled February 6, 1936.

Appeal from Circuit Court of City of St. Louis.--Hon. Clyde C. Beck Judge.

AFFIRMED.

Judgment affirmed.

Chas M. Hay, Edgar H. Wayman and Forrest G. Ferris, Jr. for appellant.

(1) It is elementary that, although plaintiff may charge various acts of negligence in her petition, yet, unless she further charges some causal connection between those acts and the injury, she states no cause of action. State ex rel National Newspapers' Assn. v. Ellison (Mo.), 176 S.W. 11, 12; State ex rel. Union Biscuit Co. v. Becker, 316 Mo. 865, 293 S.W. 783, 786. (2) The failure of the petition to state a cause of action may be raised for the first time on appeal. Sec. 774, R. S. Mo. 1929; Hudson v. Cahoon, 193 Mo. 547, 557 (3) No action shall be maintained against any city of this State which has attained a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any street or sidewalk in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating, among other things, the time when such injury was received, and that the person so injured will claim damages therefor from such city. Sec. 7493, R. S. Mo. 1929 (Sec. 8904, R. S. Mo. 1919; Laws Mo., 1913, p. 545). (4) In a proceeding for damages brought under section 8904, R. S. Mo. 1919 (sec. 7493, R. S. Mo. 1929), failure to set out in the required notice, and to prove, the true date of the alleged injury, is fatal to plaintiff's cause of action. Hackenyos v. St. Louis (Mo.), 203 S.W. 986. (5) Where the evidence of a witness as to the date of an alleged injury consists of conflicting and irreconcilable statements, or guesses, or admissions that she does not know, there is no evidence to be submitted for the determination of the jury on that issue, and until the witness can determine such fact for herself, neither the court nor the jury can make that decision for her. Oglesby v. Mo. P. Ry. Co., 177 Mo. 277, 296, 76 S.W. 623; Van Bibber v. Swift & Co., 286 Mo. 317, 336-337, 228 S.W. 69, 76.

Eagleton, Waechter & Yost and Mason & Flynn for respondent.

(1) It is elementary that in order to state a cause of action for negligence the petition must set forth a causal connection between the negligence charged and the injury suffered, but no particular form of words is required to state that causal connection. Andrews v. Parker (St. Louis Court of Appeals), 259 S.W. 807; Malone v. United Railways Company, 237 S.W. 509; Appelgate v. Railroad, 252 Mo., l. c. 182. (2) The petition in this case alleged that the injuries described were the direct and proximate result of the negligence specified. That is not only a statement of the causal connection between the negligence and the injuries, but as accurate and scientific a statement of such a connection as can be made. It means exactly the same thing as if the petition had alleged that the negligence specified directly and proximately caused the injuries set forth. (3) While it is true that failure of a petition to state a cause of action is never waived, it is also true that however defective the petition may be, and even though it omits the material averment, still, if evidence sufficient to support such material averment goes in without objection, the situation is the same as if the petition had been amended at the trial to conform to the evidence, and the appellant cannot on appeal be heard to assert that the petition is defective for want of some allegation material to the case and fully covered by the evidence. That is the situation here. The negligence of the defendant City of St. Louis was fully proved. The evidence of the plaintiff was to the effect that she stepped upon the top of a defective water sprinkler and as a result of stepping upon it was caused to fall and to suffer her injuries. All without objection. Therefore, even if it were true that the petition failed to allege a causal connection between the negligence and the injury, no advantage could be taken of it now. Brock v. Mobile & Ohio R. R., 51 S.W.2d 100, l. c. 106; Harrison et al. v. Slaton, 49 S.W.2d 31, l. c. 36. (4) The notice was in exact conformity to the statute. It stated specifically the time of the injury. There was substantial evidence that the injury occurred at that time. There was no evidence that it did not occur on that very date. Therefore, the requirements of the statute concerning notice to the city were fully complied with. R. S. Mo. 1929, sec. 7493; Hackenyos v. City of St. Louis, 203 S.W. 986; Wolf v. Kansas City, 296 Mo. 95, l. c. 108-109; Boyd v. Kansas City, 291 Mo. 622; Ogle v. Kansas City (Mo. App.), 242 S.W. 115; Reid v. Kansas City, 192 S.W. 1047; Cole v. City of St. Joseph, 50 S.W.2d 623; Morrill v. Kansas City, 179 S.W. 759; Beane v. City of St. Joseph, 211 Mo.App. 200. (5) Failure to give notice in substantial conformity to the statute within ninety days from the injury would have precluded a recovery, but pleading and proof of such fact was no part of the plaintiff's case. It was no part of her cause of action. Hackenyos v. City of St. Louis, 203 S.W. 986; Cole v. City of St. Joseph, 50 S.W.2d 623; Boyd v. Kansas City, 291 Mo. 622; Adelman v. Altman, 209 Mo.App. 583. (6) Failure on the part of plaintiff, if any, to give a notice was not shown by her evidence nor by any evidence in the case. Such failure, if it existed, was a matter of affirmative defense available to the defendant, not under a general denial, but only by special plea. Therefore the question as to whether or not such notice was actually given at the time required is not in this case. See authorities cited under the preceding point. (7) Under a general denial the defendant can only prove such facts as tend to negative the allegations of the petition or to show that the cause of action never had any existence. Hence, unless plaintiff's evidence shows affirmatively that the accident happened on a day substantially different than that stated in the petition and notice, the defendant should not be allowed, under a general denial, to avail itself of the defense that the alleged accident happened on some other day. Holdsworth v. Shannon, 113 Mo. 508, l. c. 524, 525; Stein v. Battenfeld Oil & Grease Co., 39 S.W.2d 345, l. c. 350, 327 Mo. 84; Enright v. Shaden, 242 S.W. 89; Greenway v. James, 34 Mo. 326, l. c. 328; Cole v. City of St. Joseph, 50 S.W.2d 623. (8) This statute, being in derogation of the plaintiff's common-law right, should be strictly construed in such a way as not to take away or affect the right of action, unless it plainly covers that right of action. The statute (section 7493, R. S. Mo. 1929) requires notice of injuries growing out of "any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city." Plaintiff's injuries did not grow out of any defect in any of the things mentioned. They grew out of a defect in the top, or covering, of a water sprinkler box. Therefore, strictly construed and properly construed, in such a case as this no notice was required. Roy v. Kansas City (K. C. App.), 224 S.W. 132; Wolf v. Kansas City, 296 Mo. 95, l. c. 108-109.

SUTTON, C. Hostetter, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

--This is an action to recover damages for personal injuries sustained by plaintiff in a fall resulting from stepping upon the defective lid or covering of a water supply box located at the intersection of Natural Bridge Avenue and Union Avenue, in the City of St. Louis.

The petition alleges that there was, on the north side of said Natural Bridge Avenue, just east of Union Avenue, a sprinkling plug or water supply box, the lid or covering of which formed a part of the traveled portion of the sidewalk and street, and that the lid or covering thereof was broken and defective and likely to cause persons stepping or walking thereon to be injured, and that it was dangerous and not reasonably safe. It further alleges that on or about June 28, 1928, plaintiff was waiting at the aforesaid intersection for the purpose of boarding one of defendant's motorbusses as a passenger, and that one of defendant's motorbusses stopped at said intersection with the entrance thereof opposite the broken and defective water supply box, and that plaintiff in attempting to board the bus as a passenger was caused to fall and be injured, all of which directly and proximately resulted from the negligence and carelessness of defendants, in the following respects, to-wit: (1) That defendant city negligently and carelessly caused, suffered, and permitted the public sidewalk or street and the lid or covering at said place to be and remain in its aforesaid defective condition; (2) that defendant city negligently and carelessly failed to exercise ordinary care to repair said lid or covering and to make and restore it in a safe condition for use and travel; (3) that the defendant city negligently and carelessly failed to exercise ordinary care to fence or guard said unsafe or dangerous portions of said sidewalk and street so as to prevent persons from walking on said broken and defective lid or covering in using said sidewalk and street; (4) that defendants negligently and carelessly failed to warn plaintiff of the aforesaid dangerous and defective condition of said sidewalk and street and said lid or covering; (5) that the defendant bus company...