Scanlon v. Kansas City

• Citation: 28 S.W.2d 84
• Decision Date: 15 May 1930
• Docket Number: No. 26467.,26467.
• Parties: EDWARD SCANLON v. KANSAS CITY, Plaintiff in Error.
• Court: Missouri Supreme Court

28 S.W.2d 84

EDWARD SCANLON v. KANSAS CITY, Plaintiff in Error.

No. 26467.

Supreme Court of Missouri, Court en Banc.

May 15, 1930.

Error to Circuit Court of Jackson County. — Hon. James H. Austin, Judge

REVERSED AND REMANDED.

John T. Barker, Wm. H. Allen and Marcy K. Brown, Jr., for plaintiff in error.

(1) The court erred in giving Instruction 4-P on behalf of plaintiff and also erred in sustaining plaintiff's motion to strike out that part of defendant's amended answer setting up the plea that plaintiff was "estopped and fully concluded and barred from the prosecution of" this suit. A former suit by this plaintiff as curator of his infant son, in which he claimed damages for said son's incapacity to work during his minority having been decided adversely to plaintiff as curator of said infant son in that suit, he cannot again claim the same damages in this suit in his own behalf, and that portion of the answer stricken out and the evidence which the jury was instructed to disregard constituted a perfect and proper defense to those items of damage in plaintiff's petition in this suit based upon the loss of the son's services during minority, which were also claimed by the father suing as curator for said son. State ex rel. Gott v. Fidelity & Deposit Co. (Mo.), 298 S.W. 88: Abeles v. Bransfield, 19 Kan. 16; Zongker v. Mere. Co., 110 Mo. App. 389; Freeman on Judgments (5 Ed.), par. 481, p. 1041; Farrar v. Wheeler, 75 C.C.A. 386, 146 Fed. 482; Central of Georgia Railroad Co. v. McNab, 150 Ala. 332; Moline Timber Co. v. Taylor, 144 Ark. 317, 222 S.W. 371; Kenure v. Brainerd & A. Co., 88 Conn. 265, 91 Atl. 185; Chicago Screw Co. v. Weiss, 203 Ill. 536, 68 N.E. 54; Am. Car & Foundry Co. v. Hill, 226 Ill. 227, 80 N.E. 784; Donk Bros. Coal & Coke Co. v. Retzloff, 299 Ill. 194, 82 N.E. 214; Boggs v. Railroad Co., 187 Ill. App. 621; Orr v. Mfg. Co., 179 Ill. App. 235; Chesapeake & O. Railroad Co. v. Davis, 119 Ky. 641, 60 S.W. 14; Cincinnati, N.O. & T.P. Railroad Co. v. Troxell, 143 Ky. 765, 137 S.W. 543; Chesapeake & O. Railroad Co. v. De Atley, 151 Ky. 109, 151 S.W. 363; Akers v. Fulkerson, 153 Ky. 228, 154 S.W. 1101; Baker v. Railroad Co., 16 L.R.A. 154, 30 Am. St. 471, 51 N.W. 897; Brookhaven Lbr. & Mfg. Co. v. Adams, 132 Miss. 689, 97 So. 484; Revel v. Pruitt, 42 Okla. 696, 142 Pac. 1019; Galveston H. & S.A. Railroad Co. v. Jackson, 31 Tex. Civ. App. 342, 71 S.W. 991; Schaff v. Sanders (Tex. Civ. App.), 257 S.W. 677; Kuchenmeister v. Los Angeles & S.L. Railroad Co., 52 Utah, 116, 172 Pac. 725; Daly v. Pulp & Paper Co., 31 Wash. 252, 71 Pac. 1014; Donald v. Ballard, 34 Wash. 576, 76 Pac. 80; Hammer v. Caine, 47 Wash. 672, 92 Pac. 441; Harris v. Elec. Ry. Co., 52 Wash. 298, 100 Pac. 841; State to Use of Hempstead v. Coste, 36 Mo. 437. (2) The court committed error in refusing to sustain and in overruling the demurrer of defendant at the close of all the evidence, for the reason that on the face of the record, the plaintiff's cause of action was barred by the five-year statute of limitations. (A) Because the record shows that plaintiff suffered an involuntary nonsuit on December 3, 1915, and does not disclose when any pleadings were filed subsequent thereto until the amended petition upon which the cause was tried was filed in 1923. Neither the original petition to which this amended petition was filed, nor the record showing the filing of same, was introduced in evidence; such petition was abandoned after amendment and could not ever now be considered. (B) Because the record otherwise fails to show continuity of action to permit the application of Sec. 1329, R.S. 1919. (a) Sec. 1317, R.S. 1919; Sec. 1329, R.S. 1919; Shuff v. Kansas City, 257 S.W. 845; Mo. Pac. Ry. Co. v. Natl. Bank, 212 Mo. 505; B. & O. Railroad Co. v. Rainer, 149 N.E. 363; Arkla Lbr. & Mfg. Co. v. Mfg. Co., 252 S.W. 967; Amerland v. Amerland, 188 Mo. App. 50, 173 S.W. 104; Ingwerson v. Railroad, 205 Mo. 335; St. Charles Bank v. Thompson, 284 Mo. 72; Berryman v. Becker, 173 Mo. App. 346, 354; St. Joseph v. Wyatt, 274 Mo. 566; Shelby County v. Bragg, 135 Mo. 298; 37 C.J. 1244, 1245; Earls v. Earls, 182 S.W. (Mo.) 1018; Howell v. Hair, 15 Ala. 194; Scott v. Kickson, 148 La. 967; Theis v. Board of County Commrs., 97 Pac. 978; Johnson v. Ragan, 265 Mo. 420. (b) Sec. 1329, R.S. 1919; St. Charles Bank v. Thompson, 284 Mo. 87; Land Co. v. Quinn, 172 Mo. 584; State ex rel. v. Cox. 298 Mo. 429; Hayes v. Hogan, 273 Mo. 1; Hamilton v. Railroad, 250 Mo. 715. (3) The court erred in refusing defendant's demurrer at the close of plaintiff's evidence and at the close of all the evidence, for the reason that such evidence conclusively shows plaintiff guilty of such negligence contributing directly to his son's injury that he cannot recover for his own benefit, as a matter of law. 18 L.R.A. 328; Scherer v. Schlaberg. 122 N.W. 1004; 23 A.L.R. 670 to 702; Sissel v. Railroad, 214 Mo. 515; Nivert v. Railroad, 230 Mo. 626. (4) The court erred in giving Instruction 1-P, for the reason that the instruction assumes (a) that there was a hole in the sidewalk; (b) that plaintiff's son stepped in the hole; (c) that plaintiff had no knowledge of the existence of the hole. Gancy v. Kansas City, 259 Mo. 654; Dowling v. Allen & Co., 88 Mo. 293. (5) The court erred in giving Instruction 1-P for the reason that the instruction tells the jury that it was the duty of defendant to have repaired the defect as soon as it could have been repaired after the discovery; such instruction requiring the city to act immediately after the discovery of the defect. Baustian v. Young, 152 Mo. 317; Badgley v. St. Louis, 149 Mo. 122. (6) The court erred in the giving of Instruction 2-P. (a) It singles out and emphasizes certain portions of the evidence; (b) It is misleading; (c) It singles out and comments on the testimony of the expert witnesses. Andrew v. Linebaugh, 260 Mo. 623; Wiegmann v. Wiegmann, 261 S.W. 758; Spencer v. Railroad Co., 297 S.W. 353.

Madden, Freeman & Madden for defendant in error.

(1) Plaintiff's cause of action for loss of services was not barred by the judgment rendered for defendant in the cause instituted by plaintiff's son, by this plaintiff as curator or next friend. Womach v. St. Joseph, 201 Mo. 467; Minea v. Cooperage Co., 179 Mo. App. 705; Meeker v. Union Power Co., 216 S.W. 933; Bell v. Hoagland, 15 Mo. 254; 34 C.J. 988, 997; 15 R.C.L., sec. 486, p. 1012; Terrill v. Boulware, 24 Mo. 254; State ex rel. v. Branch, 134 Mo. 592; Dibert v. D'Arcy, 248 Mo. 617; Perkins v. Goodin, 111 Mo. App. 429; Allensworth v. Roush, 205 S.W. 86; Henry v. Railway Co., Annotated Cases 1918E 1094, 1096; Richter v. Goetz, 253 Fed. 938; 1 Freeman on Judgments (5 Ed.) 1941; McGrcevey v. Railway Co., 232 Mass. 350; Scheiderer v. Schulz, 171 N.W. 660; Henry v. Railway, 98 Kan. 567; Bamka v. Railroad Co., 61 Minn. 549; Akers v. Fulkerson, 153 Ky. 228; Bernard v. Merrill. 91 Me. 358, 40 Atl. 136; Bartlett v. Cochel, 88 Ind. 425; Bridger v. Ry. Co., 27 S.C. 456; Malsky v. Schumacher, 27 N.Y. Supp. 331; Karr v. Parks, 44 Cal. 46. (2) Plaintiff's cause of action was not barred by the Statute of Limitations. Wood v. Wells (Mo.), 270 S.W. 334; Chapman v. Curric, 51 Mo. App. 40; Berkbigler v. Milling Co., 275 S.W. 599; 23 C.J. 110, sec. 1918; Combs v. Smith, 78 Mo. 32; Klene v. Campbell, 213 S.W. 520. (3) Defendant's demurrer was properly refused, the evidence failing to disclose that plaintiff was guilty of contributory negligence as a matter of law. Howard v. Scarritt Estate Co., 267 Mo. 398; Howard v. Scarritt Estate Co., 161 Mo. App. 552; Hanke v. St. Louis, 272 S.W. 933; O'Neill v. St. Louis, 239 S.W. 94; Megson v. St. Louis, 264 S.W. 15; Winters v. Railway Co., 99 Mo. 520. (4) Instruction 1-P given on behalf of plaintiff contained no assumptions of contested facts prejudicial to the defendant. Lovett v. Kansas City Terminal, 295 S.W. 93; O'Leary v. Steel Co., 303 Mo. 363; Costello v. Kansas City, 28 Mo. 592; Hanke v. St. Louis, 272 S.W. 933; Schmidt v. Railroad Co., 149 Mo. 287; Keppler v. Wells, 238 S.W. 425. (a) Instruction 1 P was proper and did not constitute a declaration to the jury that it was the duty of defendant to act immediately upon discovery of the defect. Hebenheimer v. St. Louis, 189 S.W. 1183; Pennington v. Railways Co., 223 S.W. 432. (5) The court did not err in the giving of Instruction 2-P; this instruction was proper, did not single out or emphasize portions of the evidence, was not misleading, and did not improperly single out or comment on the testimony of expert witnesses. Bollinger v. Manufacturing Co., 249 S.W. 912; State v. Weagley, 286 Mo. 677; Kansas City v. Morris, 276 Mo. 168; Cosgrove v. Leonard, 134 Mo. 419; Hull v. St. Louis, 138 Mo. 618; Laughlin v. Railway, 275 Mo. 459; Schcipers v. Railroad, 298 S.W. 51; Clingenpeel v. Trust Co., 240 S.W. 185; McDonald v. Railroad Co., 219 Mo. 481; Bank v. Wright, 184 Mo. App. 173.

RAGLAND, J.

The following opinion was written by Commissioner LINDSAY, except the latter portion thereof dealing solely with the instruction designated in the record as No. 2 P. With this explanation, quotation marks will be omitted.

This suit was brought by Edward Scanlon against Kansas City for the recovery of damages for the loss of the services of his son Cornelius, and for expenses incurred in the nursing and medical attendance of the son, during his minority. It is alleged that the son, when an infant of the age of two years and five months, fell on a defective sidewalk in the city, and thereby suffered injury to his spine and spinal cord, from which paralysis resulted, rendering him forever afterward an incurable cripple. The injury is alleged to have occurred on August 8, 1900. In December, 1900. Edward Scanlon, on behalf of himself, filed suit for the damages herein in issue. At the same time, as curator of his son, he filed suit for damages on behalf of the son. The suit last mentioned was tried in 1902 and resulted in a verdict...