Riley v. Woolf Bros.
| Decision Date | 18 April 1941 |
| Docket Number | 37336 |
| Citation | 149 S.W.2d 864 |
| Parties | RILEY v. WOOLF BROS., Inc., et al |
| Court | Missouri Supreme Court |
Mosman, Rogers & Bell, of Kansas City, for appellants.
Allan R. Browne, W. B. Ennis, and C. A. Orr, all of Kansas City for respondent.
Action for personal injuries against Kansas City, Woolf Brothers Inc., and Homer McWilliams. Plaintiff settled with Kansas City and proceeded against the other defendants. She claims to have fallen on an icy street in the city. McWilliams is the owner of the abutting property, and Woolf Brothers are the tenants of McWilliams. Judgment for $ 2,500. In due course, defendants appealed.
Defendants contend that questions involving the constitution are presented, and for that reason this court has appellate jurisdiction.
In substance the petition alleged common-law negligence and also negligence under certain pleaded city ordinances and water department rules.
In substance the answers, among other things, alleged that the ordinances and rules are not intended to apply to the defendants, and, if said ordinances are and were intended to apply to the defendants, they are in violation of certain named sections of the constitution.
This allegation is the only effort of the answers to present a constitutional question. It does not do so. State ex rel. Volker et al. v. Kirby, 345 Mo. 801, 136 S.W.2d 319.
Furthermore, the trial of the case commenced at 10:40 a.m. on Nov. 9, 1939. At the close of evidence on that day, the trial judge excused the jury until 8:30 a. m., Nov. 10, 1939. Thereupon defendants made a lengthy objection to the admission of the ordinances and rules in evidence, at the end of which the court overruled the objection. The record does not expressly state that the ordinances and rules were admitted in evidence. It merely states that the ordinances and rules 'so offered in evidence are in words and figures as follows', and then copies the ordinances and rules in the record, after which the record shows that the court adjourned until 8:30 a. m., Nov. 10, 1939. The record then shows that at the 'morning session, Friday, Nov. 10, 1939' the court proceeded to hear the testimony of witnesses. In other words, we do not find any record tending to show that the ordinances and rules were read to the jury.
Furthermore at the close of the evidence for the plaintiff, the defendants declined to and did not...
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