Reed v. Peck

• Decision Date: 11 June 1901
• Citation: 163 Mo. 333,63 S.W. 734
• Parties: REED v. PECK et al.
• Court: Missouri Supreme Court

63 S.W. 734

163 Mo. 333

REED v. PECK et al.

Supreme Court of Missouri, Division No. 2.

June 11, 1901.

MUNICIPAL CORPORATIONS — MUNICIPAL OFFICERS — UNLAWFUL STREET GRADING — LIABILITY — BILL OF EXCEPTIONS — EVIDENCE — REVIEW — HARMLESS ERROR — WIFE'S AGENCY — PROOF.

1. Where all the evidence was not included in the bill of exceptions, the question of the sufficiency of the evidence to support a verdict will not be reviewed.

2. Where a street in front of plaintiff's property was graded without an ordinance authorizing it, and the mayor and the street committee of the common council were present superintending and encouraging the work, a judgment against them as joint tort feasors will not be reversed as not supported by the evidence.

3. Where a street in front of plaintiff's residence was graded without the passage of an ordinance authorizing it, and plaintiff sued the mayor and the street committee of the common council as joint tort feasors, evidence that the street commissioner told the witness that he was getting his orders for doing the work from the city council, while inadmissible as hearsay, was not prejudicial to defendants; the grading being done in pursuance of a resolution of the city council.

4. Rev. St. 1889, § 8922, provides that a married woman shall be competent to testify for and in behalf of her husband in all matters of business transactions when the transactions were conducted by such married woman as the agent of her husband. Held, that a wife was a competent witness to prove that she was the agent of her husband in managing his property, in an action by the husband for damages to his property by grading a street.

Appeal from Kansas City court of appeals.

Action by George R. Jacobs, revived in the name of James H. Reed, administrator, against the city of Columbia, F. W. Peck, and others. From a judgment of the Kansas City court of appeals affirming a judgment of the circuit court in favor of plaintiff, defendants appeal. Affirmed.

E. W. Hinton and Webster Gordon, for appellants. Ev. M. Bass, Wellington Gordon, and W. M. Williams, for respondent.

BURGESS, J.

This action was instituted by George R. Jacobs against the city of Columbia and others, including the appellants Peck, Guitar, and Watson, to recover damages for the grading and graveling of Hill street, in said city, along by Jacobs' property. The trial resulted in a verdict and judgment against the appellants in favor of plaintiff in the sum of $225, and in favor of the other defendants. The defendants against whom the judgment was rendered then appealed the case to the Kansas City court of appeals, where the judgment was affirmed. Thereafter the cause was transferred by that court to the supreme court on account of one of the judges of that court deeming the decision in conflict with the case of Basye v. Railroad Co., 65 Mo. App. 468. Since the case has been pending in this court the original plaintiff, Jacobs, has died, and the cause has been regularly revived in the name of his administrator, James H. Reed.

Although defendant Guitar was mayor, and defendants Peck and Watson members of the committee on streets, of the city of Columbia, at the time of the commission of the grievances complained of, they are not sued in their official capacity, but they and all the defendants are sued as joint tort feasors, and they now make the point that there was no evidence to warrant the verdict and judgment against them. Notwithstanding this point is made, appellants virtually concede that all of the evidence is not embraced in the abstract, the evidence of several of the witnesses being left out entirely, while as to others only a brief synopsis or summary of what is called by defendants the substance of such testimony. As was said in the case of Epstein v. Clothing Co., 67 Mo. App. 221: "It will not do to allow appellant's counsel to cull over the record, and present such evidence as they may think pertinent or material. The entire evidence must be set out, so that this court may, for itself, determine its materiality and probative force." So, in Davis v. Vories, 141 Mo. 234, 42 S. W. 707, it was held that the supreme court will not pass upon the insufficiency of the evidence where it is not fully set out in the record. The same rule is announced in Ogelbay v. College of Dental Surgery, 71 Mo. App. 339. But, as was said by the court of appeals: "Even on the face of the testimony as shown by this imperfect abstract, we are not prepared to declare that there was no evidence to justify the verdict." The grading of this street in front of plaintiff's residence was, unquestionably, done without lawful authority; was a trespass. There was no ordinance providing for such grading. And, while the work was actively performed by the street commissioner, there was, it seems, evidence tending to prove that Mayor Guitar and Street Committeemen Peck and Watson were present from time to time superintending and encouraging the work. In McMannus v. Lee, 43 Mo. 206, Judge Wagner, speaking for the court, says: "That any person who is present at the commission of a trespass, encouraging or exciting the same by words, gestures," etc., "or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor, and liable as a principal; and proof that a person is present at the commission of a trespass, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his counsel and approval, and was thereby aiding and abetting the same." See, also, Leeser v. Boekhoff, 33 Mo. App. 223, and cases cited.

Mrs. Rives and Miss Irene Rives, witnesses for plaintiff, were permitted to testify, over the objection of defendants, that Coffee, the street commissioner, told them that he was getting his orders about the work from the city council, and in this ruling it is insisted that error was committed. It is argued that this testimony was pure hearsay, and prejudicial, since the jury may have gotten therefrom the idea that the members had personally been giving orders about the matter. While we are of the opinion that the facts disclosed by the evidence do not justify...