Lowery v. Kansas City

• Decision Date: 09 July 1935
• Parties: Nancy Lowery, Appellant, v. Kansas City, a Municipal Corporation
• Court: Missouri Supreme Court

85 S.W.2d 104

337 Mo. 47

Nancy Lowery, Appellant, v. Kansas City, a Municipal Corporation

Supreme Court of Missouri

July 9, 1935

Rehearing Granted, Reported at 337 Mo. 47 at 60.

Appeal from Jackson Circuit Court; Hon. T. J. Seehorn Judge; Opinion filed at September Term, 1934, April 17, 1935 motion for rehearing filed; motion overruled at May Term July 9, 1935.

Affirmed and remanded.

Harry G. Kyle and Walter A. Raymond for appellant.

(1) The motion for new trial was passed on at a subsequent term of court. The trial court therefore had no right to sustain the motion on a ground not specified in said motion. Taylor v. Ry. Co., 63 S.W.2d 72; Herbert v. Hawley, 32 S.W.2d 1097. (2) Respondent failed to take the necessary steps to preserve the grounds for new trial because of surprise or newly discovered evidence. (a) Appellant did not call the trial court's attention to the fact it was surprised by the testimony of Dr. Potter, asked no delay nor continuance, and for the first time raised the point in the motion for new trial which comes too late to preserve the point. Christesen v. Prewett, 11 S.W.2d 1112; Page v. Payne, 240 S.W. 161; Thiele v. Citizens' Ry. Co., 140 Mo. 338; Barnes v. Childers. 246 S.W. 344. (b) Respondent's motion for a new trial is not sufficient to preserve an assignment of newly discovered evidence. It does not set out the facts showing due diligence nor does it set out sufficiently the alleged newly discovered evidence. State v. Sherry, 64 S.W.2d 240; State v. Smith, 247 S.W. 157; Fox v. Windes, 127 Mo. 512. (c) Appellant's counsel failed to ask a continuance, or ask the recall of respondent's witness, Dr. Potter, and failed to cross-examine Dr. Potter extensively. This shows a want of diligence requiring the denial of a new trial. State v. Murphy, 29 S.W.2d 147; State v. Henson, 234 S.W. 834. (3) The alleged newly discovered evidence with reference to the alleged alteration of the hospital records is cumulative to the testimony of Dr. Koritschoner and has the sole function of impeaching appellant's witness, Dr. Potter. Such evidence even if newly discovered would be no valid ground for new trial. Sang v. St. Louis, 262 Mo. 454, 171 S.W. 351; Leister v. Wells, 254 S.W. 77; Fischman v. Schultz, 55 S.W.2d 319; Stahlman v. United Rys., 183 Mo.App. 144, 166 S.W. 315.

George Kingsley, James R. Sullivan and Arthur R. Wolfe for respondent.

(1) The trial court sustained defendant's motion for new trial on account of misconduct of witnesses and for the production and use of mutilated hospital records, which specified reasons for granting a new trial were grounds contained in the motion for new trial. The trial court had authority to grant a new trial. Beer v. Martel, 332 Mo. 53, 55 S.W.2d 484; Bright v. Wheelock, 20 S.W.2d 698; McCarty v. St. Louis Transit Co., 192 Mo. 396, 91 S.W. 133. (2) Appellant's argument under Points 2, 3 and 4, is based on surprise and newly discovered evidence, which contention is foreign to the issues presented by the record. Nogalski v. Foundation Co., 199 S.W. 180. (3) The action of the trial court in granting defendant a new trial was justified by reason of other errors committed during the course of the trial which were not assigned by the court as reasons for granting a new trial. One of which other errors was the failure of the trial court to give defendant's instructions in the nature of demurrers at the close of plaintiff's case and at the close of all the evidence in the case. Simmons v. Kansas City Jockey Club, 66 S.W.2d 120; Ostrander v. Messmer, 315 Mo. 1165, 289 S.W. 1173; Cole v. Ry. Co., 332 Mo. 999, 61 S.W.2d 348; R. S. 1929, secs. 8094, 8104, 8115, 8131, 8132, 8133, 8134, 8139; Howsmon v. Trenton Water Co., 119 Mo. 306, 24 S.W. 314; Lawrence v. Fox, 30 N.Y. 268; Metz v. Waterworks & El. Lt. Co., 202 Mo. 324, 100 S.W. 337; Phoenix Ins. Co. v. Trenton Water Co., 42 Mo.App. 118; State v. Ry. Co., 125 Mo. 617; Houck v. Cape Girardeau Waterworks & El. Lt. Co., 114 S.W. 1104; Reardon v. St. Louis County, 36 Mo. 555; Lamar v. Bolivar Spec. Road Dist., 201 S.W. 890; 43 C. J. 1059; 4 Dillon on Mun. Corps. (5 Ed.) 2976, sec. 1701; 7 McQuillin on Mun. Corps. (2 Ed.) 219, sec. 2995; Duly v. Town of Smithland, 192 S.W. 23; Downend v. Kansas City, 156 Mo. 60, 56 S.W. 70; 4 Dillon on Mun. Corps. (5 Ed.) 2996, sec. 1710; Murphy v. Town of Norfolk, 94 Conn. 592, 110 A. 63; Kansas ex rel. Blumb v. O'Connell, 99 Mo. 357, 128 S.W. 791; Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; Gerber v. Kansas City, 304 Mo. 157, 263 S.W. 432; Styles v. Long, 57 A. 448; Cochran v. Pub. Serv. & Elec. Co., 117 A. 621; Cleveland v. Town of Lancaster, 267 N.Y.S. 239; Fleisher & Co. v. Cornwell, 328 Mo. 998, 43 S.W.2d 1008. (4) The trial court was warranted in granting defendant a new trial because the deed and agreement entered into between the State and city pertaining to the control and maintenance of the A.-S.-B. Bridge was not competent evidence in this case and the trial court erred in permitting plaintiff to offer said deed and agreement in evidence and in permitting plaintiff to read same to the jury. Greene v. Gallagher, 35 Mo. 226; 49 C. J. 791, sec. 1167; Brooks v. Blackwell, 76 Mo. 309; Silverthorne v. Summit Lbr. Co., 190 Mo.App. 716, 176 S.W. 726; Burgher v. Railroad Co., 139 Mo.App. 62, 120 S.W. 75; Anderson v. Ry. Co., 161 Mo. 420, 61 S.W. 874. (5) The trial court was further justified in sustaining defendant's motion for new trial because the court erred in permitting plaintiff to try this case on a wholly different theory from that alleged in plaintiff's petition and there was a fatal variance between plaintiff's pleadings and plaintiff's evidence. Gary v. Averill, 321 Mo. 840, 12 S.W.2d 750; Gilliland v. Bondurant, 332 Mo. 881, 59 S.W.2d 686; Neudecker v. Kohlberg, 81 N.Y. 296; Minn. Harvester Works v. Smith, 30 Minn. 399, 16 N.W. 462; Galveston, H. & S. A. Railroad Co. v. Hennigan, 33 Tex. Civ. App. 314, 76 S.W. 452; Pierce v. Carey, 37 Wis. 232; Western Maryland Railroad Co. v. Schaun, 97 Md. 563, 55 A. 701. (6) The court was authorized to grant defendant a new trial in that the court erred in giving plaintiff's Instruction 1, because it was not based on the issues raised by the pleadings and predicates a recovery on a theory different from that presented by the petition. Degonia v. Ry. Co., 224 Mo. 589, 123 S.W. 589; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 653, 195 S.W. 722. (7) The bridge contract was ultra vires and not binding on Kansas City in so far as it imposed or attempted to impose any liability on the city for damages on account of injuries to the traveling public while the city has no control over the bridge and right to regulate travel thereover. R. S. 1929, secs. 8133, 8134, 8139; Maus v. Springfield, 101 Mo. 613, 14 S.W. 630; Carthage v. Garner and Lawson, 209 Mo. 688, 108 S.W. 702; 4 Dillon on Mun. Corps. (5 Ed.) 2991, sec. 1708.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action for damages for personal injuries. Plaintiff obtained a verdict for $ 10,000, but the court granted defendant a new trial, "on account of misconduct of witnesses, and for the production and use of mutilated hospital records," and from this order and judgment plaintiff has appealed.

The facts concerning the accident as related by plaintiff's witnesses are stated in plaintiff's brief, as follows:

"The Armour-Swift-Burlington bridge is a bridge across the Missouri River connecting Kansas City, Missouri with Clay County. It was one of the two bridges permitting passage from Kansas City into Clay County. It was directly connected with . . . streets of Kansas City. The place where this accident occurred was seventy-five or one hundred feet north of the south end of the approach to this bridge. It was located within the corporate limits of Kansas City, Missouri, which extended to the center of the main channel of the Missouri River. Previous to July 14th, 1927, the bridge in question was privately owned and operated as a toll bridge. On the date mentioned such bridge was conveyed to the Highway Commission of the State of Missouri by deed setting forth the agreement between the bridge company, defendant Kansas City, Missouri, Clay County, and the State Highway Commission of Missouri. Kansas City, Missouri, and Clay County paid the purchase price. . . .

"At the point where this accident occurred there was a steel girder above the surface of said bridge extending lengthwise north and south. This girder rose to a height of two feet and seven inches above the surface of the bridge. The girder was sixty-seven feet nine inches long and was eighteen inches wide. This girder was located thirteen feet five and one-half inches west of the east curb on said bridge. It was shaped like a sled runner upside down. This girder was 'as near the color of the pavement as it could be. It was a dirty grey.' Because of its identical color with the pavement it blended in with the pavement and was very difficult to see. There had been a light on the south end of this girder until sometime in March, 1929, when it was broken. There had been no light on the end of this girder for about four months before the accident. On the night in question (June 30, 1929) about 9 P. M. plaintiff and her husband were riding in the rumble seat of an automobile being driven and operated north on the highway and over the A-S-B bridge; this automobile was being operated north on said bridge between ten and fifteen miles an hour. There were a lot of cars traveling over the bridge at that time. The car in which plaintiff was riding was to the left or west of another car going in the same direction. Suddenly the left front wheel of this automobile struck the...