Martin v. Kansas City

• Decision Date: 26 June 1920
• Docket Number: No. 13644.,13644.
• Citation: 224 S.W. 141
• Parties: MARTIN v. KANSAS CITY.
• Court: Missouri Court of Appeals

224 S.W. 141

MARTIN v. KANSAS CITY.

No. 13644.

Kansas City, Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County; Clarence A. Burney, Judge.

"Not to be officially published."

Action by Dennis Martin against Kansas City. From a judgment for plaintiff, defendant appeals. Affirmed.

E. M. Harber and A. F. Smith, both of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1,000 and defendant has appealed. Plaintiff was riding as a passenger in a hired Ford automobile on August 17, 1917, about 1:30 a. m. The automobile was proceeding east on the Twenty-Third street viaduct in Kansas City, Kan., when it collided with a pile of lumber negligently left unlighted by the defendant on the driveway portion of the viaduct. The collision caused the automobile to turn over, resulting in plaintiff's injury.

This case is a companion case to the case of Roy v. Kansas City, 224 S. W. 132, decided by this court, but not yet [officially] reported. Plaintiff in this case was a fellow passenger of plaintiff in the Roy Case. It is unnecessary to recite the facts in regard to the accident as they will be found set forth in full in the Roy Case. The points made in this case are largely the same as those in the Roy Case, and it is not necessary for us to again pass upon the points raised in this case that are the same as those raised and decided in the Roy Case. We will content ourselves by passing upon the points made in this case that are not the same as those in the other case.

The same constitutional point is raised in this case as was brought forward in the Roy Case, but the circumstances out of which the point arises in this case are somewhat different from those in the Roy Case, the difference being that in this case plaintiff before the trial amended her petition so as to state that the accident happened in the state of Kansas. Defendant did not raise any constitutional point in its answer in this case, or at any time prior thereto. Defendant not having raised the constitutional question at the earliest moment that it could have done so, to wit, in its answer, the question has been waived. Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S. W. 1108.

The original petition charged that the accident happened in Missouri, but before the trial plaintiff amended her petition, charging that the accident happened in Kansas. Defendant thereupon moved to strike out the amended petition as being a departure from the original petition. The trial court overruled the motion. Defendant did not stand upon its motion but answered to the merits and went to trial. Under such circumstances if there is any merit in the contention that there was a departure, such a plea is not now available. Castleman v. Castleman, 184 Mo. 432, 83 S. W. 757; Dakan v. Chase & Son Mere. Co., 197 Mo. 238, 270, 94 S. W. 944; Ruecking Const. Co. v. Withnell, 269 Mo. 546, 191 S. W. 685.

It is insisted that the court erred in permitting the superintendent of repairs of the city to testify that the temporary viaduct was built by Kansas City, Mo., and that he, in his capacity of superintendent of repairs, from time to time made repairs on such viaduct prior to the accident. Defendant's evidence all shows that these repairs were made by the employés in the repair department of the city under the direction of the superintendent, and that the pile of lumber in question was placed by them. Defendant's charter (section 5 of article 10, Charter of 1909) makes it the duty of the superintendent of repairs "to repair all bridges and viaducts to be kept in repair by the city." If it be defendant's contention that this officer of the city could not move in a given instance without authority of ordinance, then such contention is met with the presumption that, public officers are presumed to properly perform their duties. Defendant raised no issue in the case that its representatives were not acting by virtue of proper authority. The burden was upon defendant to show the lack of such authority, which it made no effort to do. Kobs v. City of Minneapolis, 22 Minn. 159; Corporation of Bluffton v. Silver. 63 Ind. 262, 267; City of Elgin v. Goff, 38 Ill. App. 362; 6 McQuillin, Municipal Corporations, p. 5478; Frazier v. City of Rockport, 199 Mo. App. 80, 202 S. W. 266. The whole record in this case shows that there was no issue as to the authority of the city's representatives to build and repair this viaduct. The city was acting within the authority conferred upon it by its charter in so doing. Under the circumstances the testimony complained of was harmless error.

Defendant complains of the court's refusal to permit the superintendent of repairs, who was put upon the stand by plaintiff, to...