Merritt v. Kansas City

Decision Date11 January 1932
Docket NumberNo. 17060.,17060.
Citation46 S.W.2d 275
PartiesMERRITT v. KANSAS CITY.
CourtMissouri Court of Appeals

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

"Not to be officially published."

Action by Fannie E. Merritt against Kansas City. Judgment for plaintiff, and defendant appeals.

Affirmed.

A. R. Wolfe and Marcy K. Brown, Jr., both of Kansas City, for appellant.

Harry G. Kyle, Carl Borrello and Walter A. Raymond, all of Kansas City, for respondent.

BOYER, C.

This is a damage suit for personal injury. The petition alleged that plaintiff was injured December 15, 1926, on account of a hole or depression permitted to be and remain in the pavement of Troost avenue near Forty-Seventh street into which plaintiff stepped, fell, and was injured. The answer was a general denial and a plea of contributory negligence. Plaintiff had a verdict and judgment for $5,000, and defendant duly appealed.

The points made on appeal are: (1) That the trial court abused its discretion in compelling defendant to proceed to trial. (2) That the court erred in the admission of testimony. (3) That the court erred in overruling defendant's demurrer to the evidence. (4) That plaintiff was guilty of contributory negligence as a matter of law. (5) That the court erred in giving plaintiff's instruction 1. (6) That the verdict is excessive. We find that it will be more orderly and convenient to state the facts in connection with a consideration of the points made.

The facts under point 1: Before trial defendant filed a motion to return the case to the general docket on the ground that it was not at issue, was not subject to being listed for trial under the rules of the court, and that a demurrer to the petition and a motion for security for costs had been filed and not disposed of. Upon this motion the court heard evidence covering about 20 pages of the record, at the conclusion of which the motion was overruled. The evidence shows that the original petition was filed February 2, 1927, and service had on the mayor of Kansas City, February 4, 1927. Defendant filed a demurrer to the petition and a motion for security for costs March 16, 1927. On March 24, 1927, plaintiff filed a cost bond which was approved by counsel for the city and by the court. On May 12, 1928, plaintiff requested the clerk of the assignment division to list the case for trial and served notice of such listing upon an assistant city counselor who acknowledged such service May 14, 1928. It was listed and remained on the jury docket thereafter until about April 1, 1929, when it reached the head of the docket. At that time there was a treaty for settlement pending and at the request of defendant's attorney it was agreed that the case be held for a time for the purpose of ascertaining whether settlement could be made. The case was sent to the foot of the docket in accordance with the practice in view of a pending settlement. The settlement fell through. On April 25, 1929, plaintiff filed an amended petition and delivered a copy thereof to an assistant city counselor who acknowledged in writing that he had received same on that day. Defendant filed no answer to the amended petition until the time of trial, November 6, 1929. Some time late in October, 1929, plaintiff requested the case be returned to the immediate trial list which seems to have been the practice in case of failure of settlement. The case was placed upon the trial list according to the number it bore and publication thereof was made in the court paper. It also appears that a joint agent, representing attorneys of both sides of the case for the purpose of notifying them when a case is to be assigned for trial, on a given Friday notified defendant that the case would be assigned the following Monday. Defendant was engaged in important litigation and the case was passed for a week. On the following Friday the joint agent notified defendant the case would be assigned on Monday, November 4. On the latter date defendant objected to trial, filed its motion aforesaid, and when it was overruled sought a writ of prohibition against the trial judge which was denied. A portion of the court rule which appellant claims was violated is in these words: "No case shall be deemed at issue in which a motion for costs has been filed before answer and remains undisposed of or when an order for security for costs has been made and not complied with." Appellant contends that the case was not at issue because there has been no order of court disposing of the demurrer to the petition or of the motion for costs. There is no merit in this complaint. Plaintiff filed an amended petition, served it upon defendant, and also gave a bond for cost which was approved by defendant and by the court. These acts necessarily disposed of the demurrer and the motion. Other matters pertaining to the regularity of listing the case are discussed, but involve questions of fact and practice.

The trial court patiently heard all the evidence with a view of ascertaining whether there had been a substantial compliance with court rules. The court weighed the evidence and apparently exercised sound judgment and discretion in the construction and application of its own rules. There is a total absence of anything that would show an abuse of discretion, and it further appears the court was regardful to a marked degree of the rights of defendant in the premises and accorded it every reasonable consideration. The purpose of court rules is to expedite and not impede the dispatch of business, and the trial court is best prepared to interpret and enforce its own rules and apply the prevailing practice of the court. To convict the trial court of error in this respect strong evidence would be required that the court arbitrarily or flagrantly exercised power and abused its discretion to the injury of the complaining party. No injury to defendant is shown. We see no merit in the point. Funkhouser v. How, 18 Mo. 47, 49; Republic Acceptance Corporation v. Mass. Bonding & Ins. Co., 34 F.(2d) 660 (C. C. A. 3).

Under appellant's second point it is urged that the court erroneously admitted testimony tending to show a general defective condition of the street and did not confine the testimony to the specific defect alleged in the petition. The defect alleged and the manner of the injury to plaintiff are set forth in the following paragraphs of the petition:

"Plaintiff further states that on December 15, 1926, and for a long time prior thereto there was a hole or depression in the pavement of Troost Avenue at a point about 25 feet north of 47th Street and about 15 to 20 feet east of the west curb of Troost Avenue and about 2½ feet west of the west rail of the south bound street car tracks in said Troost Avenue; that said hole was about 18 inches in diameter, and about 6 to 8 inches in depth; that the presence of said hole at said point rendered the pavement of said street defective and dangerous to public travel thereon; and defendant knew or by the exercise of ordinary care could have known of the presence of said hole at said place.

"Plaintiff further states that on December 15, 1926, she was walking in a southerly direction on Troost Avenue; that she had alighted from a south bound Troost Avenue street car and was walking south towards 47th Street and along the west side of said street car; that it was dark and plaintiff did not see the hole nor know of its presence at said place, and as she reached said hole she stepped into said hole with her left foot and was thrown to the pavement of said street as a direct result of which she received the following severe and permanent injuries, to-wit."

The testimony complained of was that of a merchant whose place of business was at 4632-34 Troost avenue on the west side of the street and within about 75 feet of the National Tea Company store in front of which plaintiff received her injury. Witness stated that he passed by the scene nine or ten times daily. He was asked whether or not there were any holes or depressions on the west side of Troost avenue just north of Forty-Seventh street and about three feet west of the west rail of the south bound track and in front of the National Tea store on the date of the injury. An objection was made that the question called for an answer as to the existence of holes without designating any particular place in order to bring the subject within the allegations of the petition. The question was then amended so as to refer to the specific hole or depression described in the language of the petition. Witness said that he knew about a hole thus described. Witness was then asked by the court to tell about that hole. The answer was: "Well, the street at that particular time, prior to the last pavement that was put in there, was in a very deplorable condition." Counsel for defendant objected, moved to strike the answer, and counsel for plaintiff said: "That may be done." Following this, witness was again asked about the particular hole described. His answer was: "I won't testify to that hole because I don't know whether it was exactly at that one particular spot or not." He was then asked to tell the jury how many holes there were in front of the tea store on the 15th day of December, 1926. Over objection of defendant he answered: "Well, I could not state exactly how many holes were in the street, to be exact how many holes. There were holes there in the street, but I could not say exactly how many holes." Witness was also asked to state how long the holes had existed at that place prior to the date of the injury. He answered: "Well, they were there for some time. I could not exactly give the specific date or amount of days that they were there. They were there for some time and then they would be filled up with rock or something like that and then the traffic would wear them out and there would be some more holes there, but I could not...

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  • Glasgow v. City of St. Joseph
    • United States
    • Missouri Supreme Court
    • December 4, 1944
    ...the law to the jury, and under the facts of this case plaintiff was not required to submit such an issue to the jury. Merritt v. Kansas City, 46 S.W. (2d) 275; Barnes v. St. Joseph, 151 Mo. App. 523; Drimmel v. Kansas City, 180 Mo. App. 339; Adelman v. Altman, 240 S.W. 272; Smith v. Kansas ......
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