Plater v. Kansas City

• Citation: 68 S.W.2d 800,334 Mo. 842
• Parties: Lavina Plater v. Kansas City, a Municipal Corporation, Plaintiff in Error
• Decision Date: 23 February 1934
• Court: Missouri Supreme Court

68 S.W.2d 800

334 Mo. 842

Lavina Plater v. Kansas City, a Municipal Corporation, Plaintiff in Error

Supreme Court of Missouri

February 23, 1934

Motion of Plaintiff in Error for Rehearing Overruled December 20 1933.

Writ of Error to Jackson Circuit Court; Hon. T. J. Seehorn Judge.

Affirmed.

George Kingsley, Arthur R. Wolfe, John J. Cosgrove and Marcy K. Brown, Jr., for plaintiff in error.

(1) Plaintiff's petition fails to state a cause of action against Kansas City. Baustain v. Young, 152 Mo. 325; Badgley v. St. Louis, 149 Mo. 134; Ball v Neosho, 109 Mo.App. 693; Ballard v. Kansas City, 126 Mo.App. 543; Russell v. Columbia, 74 Mo. 490. (2) The court erred in refusing plaintiff in error's demurrer to the evidence at the close of plaintiff's case, and at the close of all the evidence, because the evidence shows defendant in error to have been guilty of contributory negligence as a matter of law. Tannehill v. Railroad, 279 Mo. 170; Sec. 7775, R. S. 1929; Robertson v. Ry. Co., 264 S.W. 455; Monroe v. Railroad Co., 297 Mo. 654, 249 S.W. 650; Sullivan v. Railroad, 317 Mo. 996; Sloan v. American Press, 37 S.W.2d 884; Hook v. Ry. Co., 162 Mo. 583; Hayden v. Ry. Co., 124 Mo. 573; Artz v. Railroad, 34 Iowa 153; West Construction Co. v. White, 130 Tenn. 520, 172 S.W. 301. (3) The court erred in overruling Kansas City's demurrer at the close of plaintiff's case and at the close of all the evidence because statutory notice of accident, as provided for by Section 7493, Revised Statutes 1929, was not proved. Reid v. Kansas City, 192 S.W. 1048; Reno v. St. Joseph, 169 Mo. 654; Lyons v. St. Joseph, 112 Mo.App. 681; Canter v. St. Joseph, 126 Mo.App. 629; Caley v. Kansas City, 48 S.W.2d 25. (4) The court erred in giving Instruction 1 on behalf of defendant in error. Ryan v. Kansas City, 232 Mo. 482; Wheat v. St. Louis, 179 Mo. 581. (5) The court erred in giving Instruction 2 on behalf of defendant in error. (a) It purports to cover defendant in error's entire case and directs the jury to find a verdict in favor of defendant in error upon the facts therein contained. The giving of the statutory notice of accident as provided for by Revised Statutes 1929, Section 7493, is a condition precedent to the maintenance of the accident. The giving of such notice is a jurisdictional, vital and essential element of the case and the fact of the receipt of such notice within the statutory time is a question of fact which should have been included in this instruction and submitted to the jury. Sec. 7493, R. S. 1929; Reid v. Kansas City, 192 S.W. 1048; Reno v. St. Joseph, 169 Mo. 654; Lyons v. St. Joseph, 112 Mo.App. 681; Canter v. St. Joseph, 126 Mo.App. 629; Jacobs v. St. Joseph, 127 Mo.App. 669; Finley v. Insurance Co., 299 S.W. 1107; Wojtylak v. Kansas & T. Coal Co., 188 Mo. 260; Beeson v. Fleming, 285 S.W. 708; Hall v. Coal & Coke Co., 168 S.W. 927; Jackson v. Black, 264 S.W. 432; State v. Ellison, 199 S.W. 984; Snowden v. St. Joseph, 163 Mo.App. 667; Rice v. Kansas City, 16 S.W.2d 659; Welsh v. Chicago, 154 N.E. 226; Tobin v. Taintor, 118 N.E. 248; Coghlan v. White, 128 N.E. 35; Daniels v. Iowa City, 183 N.W. 415; Forsythe v. Oswego, 84 N.E. 392; Pueblo v. Babbitt, 108 P. 175; McAuliff v. Detroit, 113 N.W. 1112; Beattle v. Detroit, 100 N.W. 574; Berndt v. City of Cudahy, 124 N.W. 511; Steinke v. City of Oshkosh, 149 N.E. 715. (b) It charges Kansas City with obligations and duties not imposed by law. Russell v. Columbia, 74 Mo. 490. (c) It is erroneous because inconsistent with Instruction H given on behalf of defendant in error. Sullivan v. Railroad, 317 Mo. 1006; State ex rel. v. Ellison, 199 S.W. 988; Boiler Works v. Siefert, 256 S.W. 558; Kelley v. Ry. Co., 153 Mo.App. 119; Stid v. Railroad, 236 Mo. 398. (d) It is inconsistent with Instruction I given for defendant in error. (e) It improperly states the law of contributory negligence to bar recovery under the facts in evidence. (f) It enlarges the city's duty in that it fails to include a finding as to whether the rock pile had been without light a sufficient length of time to constitute constructive notice. Baustain v. Young, 152 Mo. 325; Badgley v. St. Louis, 149 Mo. 134. (g) A careful reading of the instruction will indicate that it does not require a finding that plaintiff in error knew or could have known of the presence of said rock pile a sufficient length of time to constitute notice. (h) It ignores the actual evidence in the case concerning whether or not the pile of rock was lighted. Pyburn v. Kansas City, 166 Mo.App. 150; Ball v. Independence, 41 Mo.App. 469; Myers v. Kansas City, 108 Mo. 480, 62 A. L. R. 506. (6) The verdict and judgment are grossly excessive. Kinney v. Met. St. Ry. Co., 261 Mo. 97; Rooker v. Ry. Co., 215 Mo.App. 485; Marriott v. Railway, 142 Mo.App. 202; Haynes v. Trenton, 108 Mo. 134; Harris v. Metropolitan, 168 Mo.App. 336; Nichols v. Plate Glass Co., 126 Mo. 67; Shuff v. Kansas City, 283 S.W. 128; Potashnick v. Wells, 273 S.W. 777. (7) The court erred in overruling plaintiff in error's motion for new trial because of untrue answers given by jurors Thomas Hogan and George H. Parrent on voir dire examination. Gibney v. St. Louis Transit Co., 204 Mo. 717; Theobald v. Railroad, 191 Mo. 416.

Harry G. Kyle and Walter A. Raymond for defendant in error.

(1) Plaintiff's petition states a valid cause of action against Kansas City. Bougher v. Gamble Const. Co., 324 Mo. 123, 26 S.W.2d 946; Finley v. Williams, 324 Mo. 688, 29 S.W.2d 103. (2) The court properly overruled plaintiff in error's demurrer to the evidence. The issue as to the contributory negligence of defendant in error was for the jury. Chapman v. Mo. Pac. Ry. Co., 269 S.W. 688; Melican v. Whitlow Const. Co., 278 S.W. 366; Plater v. Mullins Const. Co., 17 S.W.2d 663; Wilmore v. Holmes, 7 S.W.2d 410; Sala v. Blue Diamond Motor Co., 130 S.W. 896. (3) Statutory notice of the accident was duly given as provided by Section 7493, Revised Statutes 1929. Such fact was conclusively shown by the evidence and the court committed no error in overruling the demurrer at the close of plaintiff's case. Snowden v. St. Joseph, 163 Mo.App. 673; Barth v. K.C. Elevated Ry. Co., 44 S.W. 778, 142 Mo. 535; Caley v. Kansas City, 48 S.W.2d 25; Shuff v. Kansas City, 257 S.W. 844. (4) The court did not commit reversible error in giving Instruction 1 on behalf of defendant in error. Plater v. Mullins Const. Co., 17 S.W.2d 668; Bales v. Kansas City Pub. Serv. Co., 40 S.W.2d 665; Huffman v. City of Hannibal, 287 S.W. 848. (5) The court committed no error in giving Instruction 2 on behalf of defendant in error. (a) The evidence that proper notice was given to plaintiff in error within ninety days after the the accident, as required by Section 7493, Revised Statutes 1929, was conclusively established by the evidence and the court committed no error in failing to submit the same to the jury. Ex parte Fish, 184 S.W. 479; Lewis Pub. Co. v. Rural Pub. Co., 187 S.W. 93; Berkbigler v. Scott County Mlg. Co., 275 S.W. 599. (b) Defendant in error's Instruction 2 does not enlarge the duties imposed by law on plaintiff in error. Bauer v. Fahr, 282 S.W. 150; Moyer v. Railroad Co., 198 S.W. 842; Foster v. Davis, 252 S.W. 436. (c) Instruction 2 given on behalf of defendant in error is not inconsistent with Instruction H given on behalf of plaintiff in error and is not erroneous. Huffman v. City of Hannibal, 287 S.W. 848; Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89; State ex rel. v. Cox, 270 S.W. 133; Bennett v. O'Malley Tractor Co., 209 Mo.App. 619, 238 S.W. 144. (d) Plaintiff's Instruction 2 does not improperly state the law of contributory negligence under the facts in this case. Gary v. Averill, 12 S.W.2d 747; Murphy v. Durbeck, 19 S.W.2d 1041. (e) Plaintiff's Instruction 2 does not enlarge the city's duty with reference to whether the rock pile had been without light sufficient time to constitute constructive notice. (f) Plaintiff's Instruction 2 does require a finding that appellant in error knew, or could have known, of the presence of said rock pile a sufficient length of time to constitute notice. (g) Plaintiff's Instruction 2 does not ignore the evidence as to whether or not the pile of rock was lighted. Hunt v. St. Louis, 278 Mo. 213, 311 S.W. 673. (6) The verdict and judgment are not excessive. Messing v. Judge & Dolph Drug Co., 18 S.W.2d 408; Irwin v. Ry. Co., 30 S.W.2d 56; Grubbs v. K.C. Pub. Serv. Co., 45 S.W.2d 71; Hurst v. Railroad Co., 280 Mo. 566, 219 S.W. 566; Scheipers v. Railroad Co., 298 S.W. 51; Bales v. K.C. Pub. Serv. Co., 40 S.W.2d 665. (7) The court committed no error in overruling plaintiff in error's motion for a new trial because of answers of jurors, Thomas Hogan and George H. Parrent, on voir dire examination. Parlon v. Wells, 17 S.W.2d 528.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

This is a personal injury suit. The defendant in error was the plaintiff below and will be referred to in the course of the opinion as the plaintiff. Plaintiff in error was defendant below and will be referred to as the defendant.

Plaintiff, the wife of Albert H. Plater, filed suit against W.C. Mullins Construction Company, a corporation, and Kansas City, Missouri, to recover damages alleged to have been sustained when a Ford car in which plaintiff and her husband were riding overturned at Twenty-sixth and Colorado Streets in Kansas City, Missouri, on the evening of December 24, 1923, at about eight-thirty p. m.

At the first trial plaintiff received a verdict for $ 8,000. A voluntary remittitur was entered in the sum of $ 500 and judgment entered for $ 7,500. From this judgment both defendants appealed. The Kansas City Court of Appeals reversed and remanded the cause for a new trial. [See 17 S.W.2d 658.] Upon the...