McGrath v. Meyers

• Citation: 107 S.W.2d 792,341 Mo. 412
• Parties: Mrs. Anna McGrath, Appellant, v. Leo C. Meyers et al
• Decision Date: 30 June 1937
• Court: United States State Supreme Court of Missouri

107 S.W.2d 792

341 Mo. 412

Mrs. Anna McGrath, Appellant, v. Leo C. Meyers et al

Supreme Court of Missouri

June 30, 1937

Appeal from Pettis Circuit Court; Hon. Dimmitt Hoffman Judge.

Reversed and remanded.

Lamm & Barnett and Johnson & Quinn for appellant.

(1) The court erred in admitting in evidence, recognizing and holding as valid Ordinance 2895 of the city of Sedalia. (a) An Ordinance 2895 of the city of Sedalia is void and unconstitutional as an unlawful delegation of legislative authority. Secs. 6803, 7790, R. S. 1929; 1 McQuillin Municipal Corps., p. 998; 43 C. J., p. 240; 19 R. C. L., sec 195; Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51; St. Louis v. Ice & Fuel Co., 317 Mo. 907, 296 S.W 993; Lux v. Milwaukee Mechanics' Ins. Co., 15 S.W.2d 343; Ruggles v. Collier, 40 Mo. 353; Bartner v. Darst, 285 S.W. 449. (b) Plaintiff's objection to the introduction of Ordinance 2895, sufficiently saved the question of invalidity. Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Hartzler v. Met. St. Ry. Co., 218 Mo. 562, 117 S.W. 1124; Railroad v. Flannigan, 218 Mo. 566; Kristanik v. Chevrolet Motor Co., 70 S.W.2d 892; Butler v. Board of Education, 16 S.W.2d 44; Woodling v. Westport Hotel Op. Co., 331 Mo. 812; Miller v. Conner, 250 Mo. 677; Hanks v. Hanks, 218 Mo. 670; St. Louis v. Rocke, 128 Mo. 541; Hirst v. Ringen R. E. Co., 160 Mo. 194; State v. Tunnell, 302 Mo. 433; Magill v. Boatmen's Bank, 250 S.W. 41; Burns v. Prudential Ins. Co., 247 S.W. 159; Spear v. Southwest Mo. Railroad Co., 174 S.W. 381; Roper v. Greenspon, 192 S.W. 149; Roper v. Greenspon, 198 S.W. 1107. (2) The court committed reversible error by giving defendant's Instruction C, therein instructing the jury that a violation of Ordinance 2895 could be found by them to constitute negligence. (a) Ordinance 2895 is void. Authorities under 1(a). (b) An instruction based on an invalid ordinance is prejudicially erroneous. O'Donnell v. Wells, 21 S.W.2d 762. (3) Instruction C is erroneous because it empowers the jury to determine whether Ordinance 2895 was in force and effect, thus leaving a question of law to the jury. Henry v. Railroad Co., 282 S.W. 423. (4) Instruction C is erroneous because it assumes that a stop sign was properly established under Ordinance 2895. Zini v. Terminal Railroad Assn., 235 S.W. 86; Crone v. St. Louis Oil Co., 158 S.W. 417. (5) Instruction C is erroneous because it fails to correlate the failure to stop with the requirements of the ordinance. Collins v. Beckman, 79 S.W.2d 1052. (6) Instruction C is also erroneous because it is confusing and misleading in that it conceals the duty of the defendant under the humanitarian doctrine. Decker v. Liberty, 39 S.W.2d 546; Millhouser v. Kansas City Pub. Serv. Co., 55 S.W.2d 673.

Fred F. Wesner and E. W. Jones for respondents; D. E. Kennedy of counsel.

(1) The court properly admitted in evidence Ordinance 2895 of the city of Sedalia. (a) The ordinance of the city of Sedalia, Missouri, No. 2895, is a valid ordinance and is not void and unconstitutional as an unlawful delegation of legislative authority. Seibel-Suessdorf Copper & Iron Mfg. Co. v. Manufacturers' Ry. Co., 230 Mo. 80; City of Carthage v. Garner, 209 Mo. 688; State v. Thompson, 160 Mo. 333; St. Louis v. Lamp Co., 139 Mo. 560; Heman v. Payne, 27 Mo.App. 481. (b) Ordinance 2895 was sufficiently pleaded by respondent in his answer to plaintiff's petition and the plaintiff failed to attack the validity of said ordinance in her reply, and thereby waived any question of the invalidity of said ordinance. Therefore, plaintiff's objection to the introduction of the ordinance was too late to save the question of constitutionality of this ordinance. Gibson v. St. L.-S. F. Ry. Co., 9 S.W.2d 985; Magill v. Boatmen's Bank, 250 S.W. 41; Genglebach v. Payne, 236 S.W. 1096; State ex rel. Pelligreen Const. Co. v. Reynolds, 279 Mo. 493, 214 S.W. 369; State v. Dineen, 203 Mo. 634; Roper v. Greenspon, 192 S.W. 156, Id., 198 S.W. 1107, 272 Mo. 288; Heman v. Payne, 27 Mo.App. 481; Moberly v. Hogan, 131 Mo. 25; State ex rel. v. Young, 167 S.W. 995, 259 Mo. 52. (2) No error was committed by the court in giving defendant's Instruction C for the reason that said ordinance was properly admitted in evidence under the pleadings. Authorities under Point 1 (b). (3) Even though Instruction C leaves the question of law to the jury as to whether Ordinance 2895 was in force and effect, yet any error on such account is harmless because the ordinance was properly admitted in evidence and the court had a right to construe the ordinance to be in full force and effect; and such part of the instruction did not affect the result nor prejudice the plaintiff. Met. Paving Co. v. Brown-Crummer Inv. Co., 274 S.W. 823. (4) Instruction C is not erroneous as assuming that a stop sign was properly established under Ordinance 2895, for the reason that it was admitted by appellant and respondent that a stop sign existed nine and one-half feet west of the west curb line of Missouri Avenue at the time of the accident in that the same was not a controverted fact in the case, and therefore there was no error as charged in appellant's Point 4. Dickensheets v. Patrick, 274 S.W. 891; Lovett v. K. C. Term. Ry. Co., 295 S.W. 89; McGuire v. Amyx, 297 S.W. 986; Starnes v. St. J. L. H. & P. Co., 52 S.W.2d 851, 331 Mo. 44. (5) Instruction C is not erroneous for failure to correlate the failure to stop with the requirements of the ordinance; for the reason that said instruction requires the jury to find facts which would constitute a violation of said Section 2 of said ordinance. Roberts v. Wilson, 33 S.W.2d 173.

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

OPINION

HYDE

This is an action for damages for personal injuries caused by defendant's automobile colliding at a street intersection with the automobile in which plaintiff was riding as a guest. Plaintiff sued for $ 10,000. The jury found for defendant and from judgment entered on this verdict, plaintiff has appealed.

Plaintiff alleged and submitted both negligence under the humanitarian doctrine and primary negligence, including charges of excessive speed and failure to have the car under sufficient control to do what was required by the exercise of the highest degree of care. Defendant's answer, in addition to a general denial and allegations of other acts of negligence of the driver of the car in which plaintiff was riding, alleged violation of an ordinance of the City of Sedalia which was referred to in the answer, as follows:

"That at all times herein referred to and at all times referred to in plaintiff's petition there was in force and effect an ordinance of the City of Sedalia, being Ordinance No. 2895, entitled, 'An ordinance regulating traffic over the streets of Sedalia, Missouri, providing for traffic signals and providing a penalty for the disregarding of traffic signals.'

"That Section 2 of said Ordinance No. 2895 provides as follows:

"Section 2. 'Any driver of an automobile or any other vehicle approaching an intersection where a stop signal is established shall bring his automobile to a dead stop before approaching said signal and before attempting to cross said intersection.' . . .

"Defendant alleges that the said Louise C. Waddell negligently and carelessly failed to stop before her said car in which plaintiff was riding on 5th Street before driving east into said intersection in violation of said ordinance."

Plaintiff's reply was only a general denial, but when the ordinance was offered in evidence plaintiff made the following objection:

"We object to the introduction of this Ordinance in evidence for the reason that the Ordinance shows upon its face that it is an invalid ordinance, for the reason that there is an attempt made by the ordinance to unlawfully delegate to the City Engineer, or to the Street Commissioner of the City, legislative powers of the council of the city and that it is contemplated by the ordinance that those officers of the city shall perform duties which the law imposes upon the City Council and which the City Council has no right to delegate to those officers."

Plaintiff's objection was overruled and plaintiff assigns as error the admission in evidence of this ordinance and also the giving of defendant's Instruction C based upon its violation. This instruction was as follows:

"If you find and believe from the evidence that on May 10th 1934, there was in full force and effect in Sedalia, Missouri, Section 2, of Ordinance No. 2895; of the City of Sedalia, introduced in evidence; and that Louise Waddell failed to bring the Packard car to a stop at the stop sign on the West line of Missouri Avenue at 5th Street before entering the intersection of 5th Street, if so, and that her failure so to do, if so, was negligence; and

"If you further find and believe from the evidence that said Louise Waddell accelerated the speed of the Packard sedan and drove the same into the intersection of Missouri Avenue and 5th Street and into the path and line of travel of the Buick sedan; and that in so doing, if so, she failed to exercise the highest degree of care under the circumstances at the time and place mentioned in the evidence; and if you further find that such failure, if any was negligence; and

"If you further find and believe from the evidence that such negligence of Mrs. Waddell, if any, was the sole and only cause of plaintiff's injuries, if any, without which plaintiff would not have sustained any injuries, then your verdict will be for the defendant; and in this connection the Court further instructs the jury that the negligence of the driver of the Waddell car cannot be imputed to plaintiff in determining whether the negligence, if any, of said Mrs Waddell was the sole...