Oakley v. Richards

Citation204 S.W. 505,275 Mo. 266
PartiesMINA M. OAKLEY v. ERNEST E. RICHARDS et al., Appellants
Decision Date05 July 1918
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. Clarence A. Burney Judge.

Affirmed.

Park & Brown for appellants.

(1) The court erred in not taking the case from the jury at the end of plaintiff's evidence. (a) There was no common-law negligence proved. Peck v. Amusement Co., 195 S.W 1033; Ware v. Evangelical Society, 181 Mass. 285; Bell v. Bank, 28 App. D. C. 580; Hoyt v Woodbury, 200 Mass. 343; Lord v. Dry Goods Co., 205 Mass. 1. (b) The seats and lights were arranged in the customary manner. Latest devices and methods are not required. Peck v. Amusement Co., supra; Brands v. Car Co., 213 Mo. 708; Chrismer v. Telephone Co., 194 Mo. 208; Bohn v. Railway, 106 Mo. 434; Smith v. Railroad, 69 Mo. 40; Dunning v. Jacobs, 36 N.Y.S. 453. (c) The risk was assumed by plaintiff. Pointer v. Mountain Ry. Cons. Co., 209 Mo. 127; Peck v. Amusement Co., 195 S.W. 1033; Lumsden v. Railroad, 114 N.Y.S. 421. (2) The court erred in not taking the case from the jury at the end of all of the testimony and in not instructing the jury to find for defendants. (a) There was no common law negligence proved. (b) Ordinance 7667 was complied with. "Written Permission" means merely assent, or acquiescence with knowledge of the facts, evidenced by writing. Warberton v. Woods, 6 Mo. 12; Cowley v. People, 83 N.Y. 471, 38 Am. Rep. 464; McHenry v. Winston, 105 Ky. 310, 49 S.W. 4; Gregory v. United States, 10 Fed. Cas. 1198, 17 Blatchf. 325; State v. Abrahams, 6 Iowa, 122, 71 Am. Dec. 399; U.S. v. Bridge Co., 88 F. 893. Municipal license need not be in writing. Boston v. Shaffer, 9 Pick (Mass.) 415; 2 Dillon on Mun. Corp. (5 Ed.), sec. 561n. A written license is merely evidence of the permission and if permission has in fact been given, absence of writing is immaterial, if the applicant has done everything in his power and has been treated as the holder of a license. Prather v. People, 85 Ill. 36; Zonone v. Mound City, 11 Ill.App. 339. (c) Section 2 of Ordinance 7667 contains no standard of safety, but makes the lawfulness of the structure depend upon the whim or caprice of the superintendent of buildings and fire warden. It is unconstitutional. Hays v. Popular Bluff, 263 Mo. 516; St. Louis v. Cons. Co., 244 Mo. 489; Baltimore v. Radake, 49 Md. 217; In re Frazee, 63 Mich. 396; State v. Dering, 84 Wis. 585; State v. Mahner, 43 La. Ann. 496; Yick Wo v. Hopkins, 118 U.S. 356. (d) Under her own testimony plaintiff was guilty of contributory negligence as a matter of law, precluding recovery. Pattison v. Amusement Co., 141 N.Y.S. 588, 156 A.D. 368; Rohrbacher v. Gillig, 203 N.Y. 413; Brugher v. Buchtenkirch, 167 N.Y. 153; Piper v. Railroad, 156 N.Y. 224; Hilsenbach v. Guhring, 131 N.Y. 674; Diamond v. Kansas City, 120 Mo.App. 189; Border v. Sedalia, 161 Mo.App. 633. (3) The juror Caldwell was not disqualified and the court erred in sustaining plaintiff's challenge and excusing him from panel. Joyce v. Railway, 219 Mo. 351, 361. (4) It was incompetent for the witness Smith to give his opinion as to the possibility and practicability of a certain method of construction. St. Louis, etc., Co. v. Stock Yards Co., 120 Mo. 550; Koenigrs Railroad, 173 Mo. 720; Benjamin v. Railway, 133 Mo. 289. (5) The court erred in permitting plaintiff to fundamentally change her cause of action by amending her Second Amended Petition. At this stage every amendment is prohibited which substantially changes the cause of action. R. S. 1909, sec. 1848; Pruett v. Warren, 71 Mo.App. 86; The change made was substantial and not permissible. Ingwerson v. Railroad, 205 Mo. 328; International Harv. Co. v. Lanpher, 183 S.W. 1105; Bliss on Code Pleading (3 Ed.), 396; Peery v. Railroad, 122 Mo.App. 182; Ray v. Dodd, 132 Mo.App. 444; Compton v. Railroad, 147 Mo.App. 421; Riley v. Railroad, 124 Mo.App. 278. (6) The court erred in refusing to discharge the jury and to grant defendants a continuance after such radical amendment. McDonald v. Construction Co., 183 Mo.App. 429. (7) The court erred in refusing to allow defendants to withdraw answer and file demurrer. The amendment ipso facto withdrew the petition. Ingwerson v. Railroad, 205 Mo. 335. (8) The court erred in overruling defendants' motion to require plaintiff to elect. Authorities under Point 5. (9) Plaintiff's Instruction 2 1/2 erroneous. Ordinary usage by others in the same line of business is a defense. Peck v. Amusement Co., 195 S.W. 1033; Brands v. Car Co., 213 Mo. 708; Chrisman v. Telephone Co., 194 Mo. 208; Bohn v. Railroad, 106 Mo. 434; Smith v. Railroad, 69 Mo. 40; Harrington v. Railroad, 104 Mo.App. 671. Presumptively other operators had obtained permission to operate their theatres as they were being operated. Hence the instruction violates at least two constitutional principles, (1) that no State shell deny to any person the equal protection of the laws, and (2) the prohibition of special privileges and immunities. Hays v. Poplar Bluff, 263 Mo. 516; St. Louis v. Cons. Co., 244 Mo. 489; Yick Wo v. Hopkins, 118 U.S. 356, 30 L.Ed. 220.

M. T. Prewitt and Hogsett & Boyle for respondents.

(1) The plaintiff made a case for the jury upon the common-law allegations of negligence in the petition. 38 Cyc. 268; Hollis v. Merchants Ass'n, 205 Mo. 508; 1 Thompson on Neg., secs. 994, 995; Crane v. Exhibition Co., 168 Mo.App. 304; Edling v. Exhibition Co., 181 Mo.App. 327; Murrell v. Smith, 152 Mo.App. 95; Nephler v. Woodward, 200 Mo. 179; Andre v Mertens, 88 N. J. L. 626; Branch v. Klatt, 131 N.W. 107; Valentine Co. v. Sloan, 101 N. E. (Ind.) 102; Dalton v. Hooper, 168 S.W. 84.; Noack v. Wosslick, 182 Ill.App. 425; Currier v. Boston Music Hall Assn., 135 Mass. 414; Camp v. Wood, 76 N.Y. 92, 32 Am. Rep. 282; New Theater Co. v. Hartlove, 123 Md. 78; Butcher v. Hyde, 30 N.Y.S. 1073. (2) Plaintiff made a case for the jury under Ordinance No. 7667. (a) The violation of an ordinance is negligence per se. Johnson v. Railroad, 203 Mo. 400; Holland v. Railroad, 210 Mo. 350; Laun v. Railroad, 216 Mo. 578; King v. Railroad, 211 Mo. 1; Stotler v. Railroad, 200 Mo. 120; Wendler v. House Furnishing Co., 165 Mo. 527; Hirst v. Real Estate Co., 169 Mo. 194; Purcell v. Shoe Co., 187 Mo. 289. (b) The superintendent of buildings did not approve the construction of the step-off in question; but even if he had done so, this would have been no defense. 29 Cyc. 439; Pitcher v. Lennon, 42 N.Y.S. 156; Simpson v. Iron Wks. Co., 249 Mo. 388; McRickard v. Flint, 114 N.Y. 222; Carrigan v. Stillwell, 97 Me. 247, 61 L. R. A. 163; Willy v. Mulledy, 78 N.Y. 310; Arms v. Ayer, 192 Ill. 601, 58 L. R. A. 277; Rose v. King, 49 Ohio St. 213, 15 L. R. A. 160. (3) Defendants, by having pleaded and relied upon the Picture Show Ordinance as a defense in their former answer, are now estopped to challenge the constitutionality of said ordinance. (a) The courts do not with patience consider shifting attitudes of litigants. St. Louis v. United Rys. Co., 263 Mo. 426; Lilly v. Menke, 143 Mo. 145; Bensieck v. Cook, 110 Mo. 173; Bigelow on Estoppel (5 Ed.), 673, 717; McClanahan v. West, 100 Mo. 309; Brown v. Bowen, 90 Mo. 184; Smiley v. Cockrell, 92 Mo. 105; Knoop v. Kelsey, 102 Mo. 291; Tower v. Moore, 52 Mo. 118; Choteau v. Gibson, 76 Mo. 39; McGuire v. Nugent, 103 Mo. 161; Coney v. Laird, 153 Mo. 435; McClure v. Clement, 161 Mo.App. 29; Davis v. Wackerle, 156 U.S. 689. (b) Constitutional rights may be voluntarily waived by a litigant, and when waived they cannot be reasserted. Fiedler v. Construction Co., 178 S.W. 765; Roper v. Greenspon, 198 S.W. 1108. (c) Constitutional questions must be timely raised, at the first opportunity possible; and unless so raised they cannot avail a litigant. Hanks v. Hanks, 218 Mo. 674; Lohmeyer v. Cordage Co., 214 Mo. 689; Speer v. Railroad, 174 S.W. 381. (4) The Picture Show Ordinance is not unconstitutional. (a) The ordinance has for its object the safety of theater patrons, and falls within the police power. Ewing v. Chase, 37 App. Cas. (Dist. of Col.) 53; District of Columbia v. Brooke, 214 U.S. 138; Barbier v. Connelly, 113 U.S. 31; Health Dept. v. Trinity Church, 145 N.Y. 32. (b) The ordinance does not delegate legislative power to the superintendent of buildings and fire warden, but only authorizes them as ministerial officers to exercise a discretion on a matter of safety dependent upon their inspection. State v. Vickens, 186 Mo. 106; Arms v. Ayer, 192 Ill. 601, 58 L. R. A. 277; Block v. Chicago, 239 Ill. 251; Waldo v. Christman, 130 N.Y.S. 260; Railway Co. v. Lyons, 155 Ky. 396; United States v. Romard, 89 F. 156; Spiegler v. Chicago, 74 N. E. (Ill.) 718; Eubank v. Richmond, 110 Va. 749; Plinklewisch v. Light & Power Co., 115 P. 151; Commonwealth v. Maletsky, 203 Mass. 241; Centralia v. Smith, 103 Mo.App. 440; Welch v. Swasey, 193 Mass. 364. (c) The ordinance does not deprive defendants of due process of law. Hulett v. Railway Co., 145 Mo. 35; State v. Shepard, 177 Mo. 243; State v. Mercantile Co., 184 Mo. 183; St. Joseph v. Truckenmiller, 183 Mo. 16; Homes v. Murray, 207 Mo. 418; Matthews v. Railway Co., 121 Mo. 298; Railroad Co. v. Zernecke, 183 U.S. 582; Clark v. Russell, 97 F. 900. (d) The ordinance does not deprive defendants of the equal protection of the laws. State v. Brodnax, 228 Mo. 44; Magoun v. Bank, 170 U.S. 293; Hayes v. Missouri, 120 U.S. 68; Barbier v. Connolly, 113 U.S. 32. (e) The ordinance does not provide for the irrevocable grant of special privileges and immunities. State v. St. Louis, 207 Mo. 354. (f) A municipal ordinance is presumed to be legal and valid and will be held unconstitutional only if it appears so beyond a reasonable doubt. St. Louis v. United Rys. Co., 263 Mo. 392; State v. Railroad, 174 S.W. 64. (5) Since the...

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