Peterson v. Kansas City
| Decision Date | 03 February 1930 |
| Docket Number | No. 28149.,28149. |
| Citation | 23 S.W.2d 1045 |
| Parties | MAMIE PETERSON v. KANSAS CITY, Appellant. |
| Court | Missouri Supreme Court |
Solon T. Gilmore and John D. Wendorff for appellant.
(1) Plaintiff did not give the notice required by Sec. 8904, R.S. 1919, and therefore the demurrer should have been sustained. Plaintiff did not within ninety days from the date of the occurrence for which this suit is prosecuted give defendant the notice required by Section 8904. Reid v. Kansas City, 195 Mo. App. 457; Lyons v. St. Joseph, 112 Mo. App. 681; Rushville v. Morrow, 101 N.E. (Ind.) 659; Blair v. Fort Wayne, 98 N.E. (Ind.) 736; Gribben v. City of Franklin, 175 Ind. 500; East Chicago v. Gilbert, 108 N.E. 32; Curry v. Buffalo, 32 N.E. 80; MacMullen v. City of Middletown, 79 N.E. 863; Harris v. City of Fond du Lac, 104 Wis. 44; Doyle v. Duluth, 76 N.W. 1029; McAuliff v. Detroit, 113 N.W. 1112; Cole v. Seattle, 116 Pac. 257; Murray v. City of Butte, 151 Pac. 1051; Denver v. Saulcey, 83 Pac. 1099. (2) The court committed error in not sustaining the demurrer offered by appellant at the close of plaintiff's case, and also committed error in refusing to instruct the jury at the close of all the evidence to return a verdict for appellant, for the reason that the demurrer should have been sustained as a matter of law, because the railing was not on the sidewalk a sufficient length of time for defendant, by the exercise of ordinary care, to have discovered and removed the railing from the sidewalk before plaintiff's injury. Hesselbach v. St. Louis, 179 Mo. 505; Miller v. Kansas City, 157 Mo. App. 533; Fehlhauer v. St. Louis, 178 Mo. 635; Stoddard v. Winchester, 154 Mass. 149; Dwyer v. Boston, 180 Mass. 381; Theisen v. City of Belle Plaine, 81 Iowa, 118; Craig v. City of Leominster, 200 Mass. 101; City of Warsaw v. Dunlap, 112 Ind. 576; Whitney v. City of Lowell, 151 Mass. 212. (3) The verdict is excessive. The verdict is so excessive that it clearly shows it was the result of bias, prejudice, passion or sympathy on the part of the jury. Partello v. Ry. Co., 217 Mo. 645; King v. Mann, 208 Mo. App. 646; Rigby v. Transit Co., 153 Mo. 330; Rosenmann v. Railways Co., 197 Mo. App. 337.
Mosman, Rogers & Buzard and Virgil Yates for respondent.
(1) Plaintiff gave the notice required by statute and to the proper party. Ogle v. Kansas City, 242 S.W. 115; Johnston v. Kansas City, 243 S.W. 265; Costello v. Kansas City, 219 S.W. 386; Art. 4, Sec. 21, Charter of Kansas City; Johnson v. Kansas City, 272 S.W. 703; Reid v. Kansas City, 195 Mo. App. 457; Sec. 1214, R.S. 1919. (2) Plaintiff made a case for the jury on the question of defendant's negligence. Beauvais v. St. Louis, 169 Mo. 501; Suter v. Kansas City, 138 Mo. App. 105; Straub v. St. Louis, 175 Mo. 413; Carrington v. St. Louis, 89 Mo. 208; Cooper v. Caruthersville, 264 S.W. 416; Young v. Webb City, 150 Mo. 333; McKissick v. St. Louis, 154 Mo. 588. (3) The verdict is not excessive. Gorham v. Ry. Co., 113 Mo. 408; Burdoin v. Town of Trenton, 116 Mo. 358; Geary v. Ry. Co., 138 Mo. 251; Small v. Kansas City, 185 Mo. 291; Lindsay v. Kansas City, 195 Mo. 166; Pietzak v. Rys. Co., 289 Mo. 135; Roach v. Rys. Co., 228 S.W. 520; Kendrick v. Kansas City, 237 S.W. 1011; Ertl v. Wagner Elec. Mfg., 238 S.W. 577; Kirby v. Railroad Co., 146 Mo. App. 304; Asbury v. Kansas City, 161 Mo. App. 496; Sanders v. Lumber Co., 187 Mo. App. 408; Burns v. Ice & Fuel Co., 187 S.W. 145; Lilly v. Rys. Co., 209 S.W. 969.
The appeal in this case was originally taken to the Kansas City Court of Appeals, where an opinion was delivered. On the dissent of one of the judges that court certified and transferred the cause to this court pursuant to the provisions of Section 6 of Article VI of the Constitution.
The action is one for personal injuries. From a judgment for plaintiff in the sum of $5,000 the defendant appealed. On its appeal it assigns as error: (1) the refusal of the trial court to sustain its demurred to the evidence; and (2) the refusal to set aside the verdict, on the ground of the alleged passion and prejudice of the jury. It will only be necessary therefore to set out such facts as plaintiff's evidence tended to establish.
Between nine and 9:30 o'clock on the evening of April 7, 1922, the plaintiff, a married woman twenty-seven years of age, was returning to her home from a neighborhood picture show in company with her husband. In doing so she came along Summit Street to 23rd Street (both public highways in Kansas City) where she turned to go west. As she started west on 23rd Street she tripped over an iron balustrade which had fallen from a second-story balcony of the building fronting on the street at that place and which was lying flat across the sidewalk. The balustrade lying across the walk was six or eight feet long and three feet wide. There was an electric arc lamp suspended over the street at the corner, but it was not burning at that time. Plaintiff fell forward striking her forehead on the concrete walk: the injuries she thereby sustained will be set out in some detail hereafter.
One of plaintiff's witnesses in going to his place of employment passed along where plaintiff was subsequently tripped by the balustrade between 6:30 and seven o'clock on the morning of April 7, and the balustrade was lying across the walk at that time. When he returned at noon it was leaning against the adjoining building, the lower side resting upon the walk; it was in the same position in the evening about 5:15 when he again passed going home. Another of plaintiff's witnesses while on her way to a picture show, between 6:30 and seven o'clock on the evening of April 7, saw the balustrade again lying flat across the walk. The locus in quo was in a densely populated section of Kansas City: the sidewalk was much used by the public for travel, both day and night.
Plaintiff offered in evidence a paper writing, signed by her and addressed to the mayor of Kansas City, in which was set forth the place where and the time when she received the injuries for which she now seeks a recovery, together with the character and circumstances of the injury, and that she would claim damages therefor from the city. Immediately following the plaintiff's signature on the paper writing this appeared:
When the paper was offered, defendant's counsel objected as follows:
Thereupon plaintiff offered evidence with respect to the service of the notice which tended to show the following facts: One of plaintiff's attorneys, Mr. Park, took the paper which was offered in evidence and a copy of it to the mayor's office in the City Hall for the purpose of delivering the copy to the mayor and securing his written acknowledgment of service on the original. The mayor was not there: he found but one person in the office; that individual directed him to take the paper to the city counselor's office. At the latter office (in the City Hall) Mr. Mossman, an assistant city counselor, received the copy and gave the written acknowledgment of service in the name of the mayor, as above set out. During a preceding administration the mayor had referred all such notices to the city counselor, and had given him and his assistants authority to accept service and make acknowledgments thereof for and on behalf of the mayor. The practice so inaugurated was followed by succeeding administrations and had been in vogue ten years at the time of the acknowledgment of service entered upon the paper in question by Mr. Mossman. The then mayor, Mr. Cromwell, had not given the city counselor express authority to accept and acknowledge service of such notices, but the practice just referred to was recognized and consistently followed by both offices. Following the proof of the facts just mentioned the court overruled defendant's objection and the written notice was received in evidence, the defendant saving its exception to the ruling.
Appellant's contention that the trial court erred in not sustaining its demurrer to the evidence is based on two grounds: (1) The written notice just referred to was not served on the mayor, as Section 8904, Revised Statutes 1919, requires; and (2) the iron balustrade was not on the sidewalk a sufficient length of time prior to plaintiff's injury to put defendant on notice. The alleged passion and prejudice of the jury is inferred solely from the claimed excessiveness of the verdict. This outlines the specific questions presented for consideration.
I. Appellant finds no fault with the written notice of respondent's intention to claim damages in respect to its form or contents: the point it makes is that the notice was not served on the mayor. The statute provides merely that Notice to "notice shall first have been given in writing to Mayor: the mayor:" as the manner of service is not Acknowledgment prescribed, personal service is required. But "where notice is actually conveyed to the person to be notified, as by service on a duly accredited agent, this is sufficient." [20 R.C.L. 356.] "It cannot admit of doubt that a person, to be affected by such a notice, may expressly authorize an agent to receive such a notice for him, and that delivery of the notice to such an agent would be a delivery to his principal, which would be a personal service within the meaning of such statutes." [Wilson v. Trenton, 53 N.J.L. 645, 649; see...
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