Reese v. City of St. Louis
| Citation | 216 S.W. 315,280 Mo. 123 |
| Parties | KATIE REESE v. CITY OF ST. LOUIS, Appellant, and SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY |
| Decision Date | 04 December 1919 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Kent K. Koerner Judge.
Reversed.
Charles H. Daues and Everett Paul Griffin for appellant.
(1) The main instruction is too broad and is misleading under the issues and the notice served on the city. It fails to embody an essential element of plaintiff's case, the question whether a valid notice was served on the city. Walker v White, 192 Mo.App. 13; Burrows v. Likes, 180 Mo.App. 447; Craton v. Huntzinger, 163 Mo.App. 718; Hackenyos v. City, 203 S.W. 986; State ex rel v. Ellison, 272 Mo. 583; State ex rel. v. Ellison, 270 Mo. 645.
Robert C. Grier, Edward H. Mitchell and Thomas P. Moore for respondent.
(1) The construction of the written notice served on the mayor of the city and the determination of its legal force is a question of law for the court and not of fact for the jury. (2) The term, "on or about," coupled with March 27, 1914, could refer to March 27, 1914, alone, and as the accident actually happened on March 27, 1914, this was a sufficient statement in the formal notice served on the mayor as to the time of the happening of the accident to comply with Laws 1913, p. 545. The "on or about" is mere surplusage. Hackenyos v. City, 203 S.W. 986.
Jeffries & Corum for Southwestern Telegraph & Telephone Company; D. A. Frank of Counsel.
The plaintiff brought this action originally against the City of St. Louis, to recover damages on account of the death of her husband, David M. Reese, alleged to have been caused by the negligence of said city. On the 31st day of August, 1914, the plaintiff amended her petition by making the Southwestern Telegraph & Telephone Company a party defendant. The petition upon which the suit was tried alleged that plaintiff was the wife of deceased up to his death; alleged the corporate character of both defendants and a number of other facts by way of inducement. It then proceeds as follows: "That on said date [March 27, 1914] deceased was lawfully driving along Washington Avenue in the exercise of ordinary care for his own safety, and said wagon run into a hole alleged to exist on said Washington Avenue, and in consequence of the jolt or shock, caused by said wagon running into said hole, deceased was thrown from it upon the street and run over, and thereby sustained injuries from which he subsequently died," and that the occasion of running his wagon into said alleged hole and the death consequent thereto, were caused in these respects: "First, that the defendant Southwestern Telegraph & Telephone Company, under the supervision of the defendant City of St. Louis, carelessly and negligently filled an excavation theretofore made by it so as to leave the said hole in said street, whereby was occasioned the fall of David M. Reese, and his death consequent thereto; second, that defendants, although on said day, they knew, or in exercise of ordinary care would have known, the dangerous condition of said street, and the existence of said hole therein, carelessly and negligently failed then, or at any other time, to fill said hole so as to render said street safe for persons using the same, whereby was occasioned the fall of the said David M. Reese, and his death consequent thereto; third, that the defendants, although on said day, they knew, or in the exercise of reasonable care, would have known the dangerous condition of said street, and the existence of said hole thereon, carelessly and negligently failed then, or at any other time, to place any guard or protection around said hole, so as to prevent persons using said street to be harmed by said hole, whereby was occasioned the fall of said David M. Reese and his death consequent thereto."
To this petition each defendant filed a separate answer, consisting of a general denial and a plea of contributory negligence upon the part of deceased. To each of these answers the plaintiff replied with a general denial of the new matter set up in the answer.
The hole referred to in the petition, according to the testimony, was a "saucer like" depression in the pavement, which from north to south measured 6 feet, and from east to west 5 feet and 10 inches, and 3 1/4 inches deep in the center. Deceased at the time of his injury was driving a "Jumbo" transfer wagon at the place of said depression, and while his attention was diverted to one Bremer, who had boarded the wagon from the rear, in conversation and in trying to make room for him in a seat designed only for one man to ride in, which was a violation of the rules of the transfer company, he drove his wagon into said saucer-like depression, fell from it, and was run over and killed. Bremer escaped with his life, but was quite severely injured. Both deceased and Bremer were under the influence of intoxicating liquor; Reese had a quart and a pint of whisky in the seat on which he was riding, which showed they had been subjected to liberal use. Bremer had a bottle of whisky in his pocket and had before getting on the wagon drunk a large quantity of beer. At the hospital the fumes of liquor were so strong on both of these parties that physicians administering to their necessities testified that they were under its influence. The whisky deceased had on the seat in which he was riding, unsupported and with a serenity worthy of a better cause, withstood the drive over said depression and was taken therefrom without breaking a bottle or spilling a drop. At the conclusion of the trial the court gave a demurrer to the evidence as to the Southwestern Telegraph & Telephone Company, and overruled the demurrer asked by the city and submitted the cause to the jury as to it, which resulted in a verdict of $ 10,000 in favor of plaintiff. No appeal was taken by plaintiff from the action of the court in giving the demurrer in favor of the Telephone Company. The city, after failing to get a new trial upon proper motions filed, has appealed in due form to this court.
I. The demurrer given...
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