Magill v. Boatmen's Bank

• Decision Date: 09 April 1923
• Docket Number: No. 21694.,21694.
• Citation: 250 S.W. 41
• Parties: MAGILL v. BOATMEN'S BANK.
• Court: Missouri Supreme Court

250 S.W. 41

MAGILL v. BOATMEN'S BANK.

No. 21694.

Supreme Court of Missouri, Division No. 2.

April 9, 1923.

Appeal from St. Louis Circuit Court; Miller, Judge.

Action by Bertha Magill against the Boatmen's Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

Lehmann & Lehmann, Abbott, Fauntleroy, Cullen & Edwards, and Curlee & Hay, all of St. Louis, for appellant.

Leonard, Sibley & McRoberts, of St. Louis, for respondent.

WHITE, J.

The appeal is from a judgment rendered in favor of the plaintiff November 29, 1921, in the sum of $10,600 for injuries received by her in escaping from the quarters of the Missouri Athletic Club, located in the Boatmen's Bank Building, under the control of the defendant, in the city of St. Louis. This is the second appearance of this case in this court. The plaintiff obtained judgment, which was reversed by this court on account of error in the introduction of testimony. Magill v. Boatmen's Bank, 288 Mo. 489, 232 S. W. 448. The facts are fully set out in the opinion there. Among other things it was held that the building, on account of the use to which it was put by the Athletic Club, was a dormitory. In the case of Ranus v. Boatmen's Bank, 279 Mo. 332, 214 S. W. 156, which involved the same facts, it was held that the building was a dormitory without the number of fire escapes required by law for buildings of that character.

Plaintiff's husband was manager of the Athletic Club, and she lived with him on the fifth floor of the building. About 100 roomers were in the building when fire broke out early in the morning of March 9, 1914. Awakened by the fire, plaintiff, in her efforts, which were described as quite heroic, to extricate other inmates from the building, saved a number of lives, but was herself injured in effecting her escape. It is for the injuries thus received that she sued. It is alleged that the difficulty in escaping was on account of the deficient equipment of the building with fire escapes.

I. Section 101 of the Municipal Code of St. Louis was introduced in evidence by the plaintiff. It required all buildings thereafter erected or enlarged to a height greater than 90 feet to comply with certain requirements which would tend to make the building fireproof, as contained in that part of the city ordinances relating to buildings of the first class. This ordinance was objected to by the appellant on the ground that it was retrospective, in violation of section 15, art. 11, of the Constitution of Missouri.

A constitutional question, in order to be available to a party litigant, must be raised at the first opportunity presented in the conduct of the case. If not so presented it will not be available so as to give this court jurisdiction. If it may be presented in the pleading, by answer or demurrer to the petition, it will be too late to present it afterwards for the first time. Lohmeyer v. Cordage Co., 214 Mo. 685, loc. cit. 689, 690, 113 S. W. 1108; Ash v. City of Independence, 169 Mo. 77, loc. cit. 79, 68 S. W. 888; Strother v. Railroad, 274 Mo. 272, 203 S. W. 207, and cases there cited; Weisberg v. Boatmen's. Bank, 280 Mo. loc. cit. 205, 217 S. W. 85.

In this case the section of the ordinance objected to was pleaded, set out in, hæc verba in the petition. It challenged the attention of the defendant from the start. The defendant could appropriately have attacked that part of the petition in the pleading by answer or motion, but failed to do so. It was mentioned for the first time when the ordinance was offered in evidence, Under the repeated rulings of this court that was too late, and we cannot now consider an objection to the ordinance on that ground.

II. In its assignment of errors the appellant mentions two alleged errors of the trial court in respect to the testimony of the witness Magill: (a) That the court erred in admitting the testimony of the witness Magill in impeachment of witness Connett; and (b) the court erred in failing to reprimand counsel for plaintiff for asking questions of the witness Magill touching the business of W. C. Connett. We will consider them together.

The incident in regard to the refusal of the court to reprimand counsel occurred in this way: In rebuttal plaintiff's counsel asked several questions of Mr. Magill, husband of the plaintiff, apparently in an endeavor to show that Connett, who had testified for the defendant, was unfriendly to the plaintiff. These questions were objected to, and in the main sustained by the court, so that the witness had been unable to make any statement indicating such ill feeling when attorney for plaintiff asked this question:

"Q. I will ask you if Mr. Connett is not known as a banker?

"Mr. Fauntleroy: I object to that.

"The Court: Sustained.

"Mr. Fauntleroy: We ask that he be reprimanded for asking such a question.

"The Court: I shall not reprimand him. No; but I will caution him to desist from that line of inquiry.

"Mr. Fauntleroy: Note our exception to the refusal of the court to reprimand him, because it is lending color to the court's approval of what he said.

"The Court: The court has not approved what has been said, Mr. Fauntleroy.

"Mr. Fauntleroy: It could not be introduced for any purpose on earth except to prejudice the jury.

"The Court: The court will instruct the jury to disregard that statement of Mr. Fauntleroy made in the hearing of the jury as having no value or bearing on the case.

"Mr. Fauntleroy: I except to the remarks of the court."

Counsel for appellant advanced no reason why plaintiff's counsel was guilty of misconduct such as required a reprimand. The court sustained the objection, and that apparently should have been the end of the matter. Nothing appears in the objection, and nothing appears in the incident, as shown by the record, to indicate misconduct. Appellant's counsel in his objection did not indicate in any...