Shippey v. Kansas City

• Citation: 254 Mo. 1,162 S.W. 137
• Parties: SHIPPEY v. KANSAS CITY.
• Decision Date: 24 November 1913
• Court: United States State Supreme Court of Missouri

162 S.W. 137

254 Mo. 1

SHIPPEY v. KANSAS CITY.

Supreme Court of Missouri.

November 24, 1913.

Rehearing Denied December 24, 1913.

1. MUNICIPAL CORPORATIONS (§ 821)—INJURY TO PEDESTRIAN — NOTICE OF DEFECT — QUESTION FOR JURY—EVIDENCE.

Where, in a pedestrian's action for injuries from the falling of a billboard erected on a lot near the edge of the sidewalk, plaintiff's evidence showed that the posts were rotten, and that the board fell by reason thereof, the question whether the city by ordinary care would have discovered the defect in time to have prevented the injury was for the jury, even though there was no superficial appearance of rottenness in the parts supporting the board.

2. MUNICIPAL CORPORATIONS (§ 780)—INJURY TO PEDESTRIAN—FALLING OF BILLBOARD —LIABILITY OF MUNICIPALITY.

Where a city fails to exercise ordinary care to ascertain whether the supports of a billboard near the edge of a sidewalk have decayed and become inadequate to support the board, it is guilty of negligence, rendering it liable for injuries to a pedestrian on the sidewalk from the falling of the board.

3. RELEASE (§ 29) — RELEASE OF PART OF WRONGDOERS—EFFECT.

Where two of the individual defendants in a personal injury case died prior to the going into effect, in 1907, of Rev. St. 1909, § 5438, which changes the rule of section 106 that the right of action for personal injuries dies with the wrongdoer, plaintiff's agreement not to further pursue such defendants did not bar her, under Rev. St. § 9801, providing who shall be made parties to a suit against a city, from obtaining judgment against the defendant city.

4. RELEASE (§ 29)—RELEASE OF ONE DEFENDANT—EFFECT.

That plaintiff, in an action for injuries from the falling of a billboard, released the defendant owner of the property did not bar her from obtaining judgment against the city, where the defendant released was the landlord only, and not in possession of the property; there being no liability against the defendant released, since a landlord is not liable for a nuisance created or maintained on the premises by a tenant.

5. LICENSES (§ 44)—LEASE—WHAT CONSTITUTES—LICENSE.

A contract which, in addition to providing that the land described therein was to be used for bill-posting purposes, provided for a notice to vacate, for the owner's surrender of all right to use the land until after notice, and for payment of rent, constituted a lease, and not a mere license.

Faris and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by Louise R. Shippey against Kansas City. From a judgment of nonsuit, plaintiff appeals. Reversed and remanded.

The following statement and opinion was filed by ROY, C., in Division No. 2:

Statement.

Plaintiff sued for damages for personal injuries. At the close of all the evidence the court gave a peremptory instruction for defendant. Plaintiff suffered an involuntary nonsuit, and, after an unavailing motion to set it aside, has appealed. The city, Melville H. Hudson, Wallace Pratt, and Charles H. Hodge were defendants in the original suit. The petition charged that on April 20, 1905, the plaintiff was injured by the falling of the billboard which had stood on the west side of Broadway between Ninth and Tenth streets. That the billboard was erected upon the land of Charles H. Hodge and Wallace Pratt, adjacent to and parallel with the sidewalk. That it was erected and maintained by said Hudson. That it was unsafe and dangerous to persons using the sidewalk because of its height and weight, and because of the fact that the uprights supporting it had become rotten, and that it was insufficiently braced. There was the usual allegation that the defendant had notice of the defect, or by the use of ordinary care could have known of it in time to prevent the injury.

Pratt died March 18, 1907, and Hudson died April 7, 1907 and at the October term, 1907, the plaintiff dismissed the cause as to all the defendants except the city. Thereafter the defendant filed an amended answer setting out in hæc verba the act of the Legislature (Laws 1901, p. 78) now section 9801 of the Revised Statutes, which provides that, whenever a city of 150,000 or more inhabitants shall be sued on a cause of action arising from the wrongful act or negligence of another, the city may require such person to be made a party defendant, and that the suit cannot proceed until such person has been made a party. The answer contained the following: "* * * And, answering further, defendant says that if plaintiff received any injuries whatever, as alleged in her petition, that the same were caused by the acts and negligence of said Melville H. Hudson and Charles H. Hodge and Wallace Pratt, that plaintiff has received full satisfaction therefor from the estate and heirs of Melville H. Hudson and of Wallace Pratt, both deceased, and from Charles H. Hodge, having received the sum from them of two hundred dollars ($200.00) and plaintiff having agreed not to prosecute further said action against such defendants." The answer then pleaded in bar the act of plaintiff in agreeing not to prosecute the other defendants.

The reply contained the following: "Second. For reply to the remaining allegations in said defendant Kansas City's amended answer she states that since the filing of original answer of defendant Kansas City, to wit, during the months of March and April, 1907, the defendants Melville H. Hudson and Wallace Pratt died. Plaintiff admits that she received two hundred dollars from the estate of said Melville H. Hudson, deceased, but says the payment was a gratuity, as her right of action against said Hudson and against his estate expired when he died. That her right of action against said Pratt and against his estate also expired when he died. That, under the law and facts, she had no right of action against defendant Charles H. Hodge. That upon investigation she discovered that the allegations in her petition as to the liability of said defendant Hodge had no foundation in fact. That when she received said two hundred dollars from the estate of said Hudson the representatives of said Hudson insisted on the dismissal of said cause as to the defendant Hodge; that plaintiff received no consideration whatever from said Hodge for said receipt or dismissal, and, inasmuch as plaintiff, under the facts, had no cause of action against said Hodge, she executed the following receipt and agreement and delivered it to the representatives of the estate of said Hudson, deceased: `In the Circuit Court of Jackson County, Missouri, at Kansas City, Louise R. Shippey, Plaintiff, vs. Melville H. Hudson, doing business as the Kansas City Bill Posting Company, Charles H. Hodge and Wallace Pratt, Defendants. Number 27,411. Received from the estate and heirs of Melville H. Hudson and of Wallace Pratt, both deceased, and from Charles H. Hodge of Kansas City, Missouri, two hundred dollars ($200.00), partial satisfaction for injuries sustained by plaintiff as described in the petition filed in the above-entitled cause as payment pro tanto for the injuries sued for therein; plaintiff reserving the right to demand from the other defendant in said cause, compensation for the balance of her claim as stated in said petition. In consideration of said sum of two hundred dollars received as aforesaid, plaintiff hereby agrees not to further prosecute the said action against the parties above described nor to sue any of them for the said injuries claimed by her. This receipt and agreement is not intended or made as a satisfaction of my claim for damages by reason of said injuries, but solely and alone as an agreement not to sue or further proceed against either of the parties above named for or on account of such injuries, reserving to myself the right to further prosecute said action as to any other defendant and to sue any one else for compensation for my injuries. Witness my hand and seal this 23rd day of May, 1907. [Signed] Louise R. Shippey. [Seal.] Witness: [Signed] M. L. Alden."

The billboard was about 150 or 200 feet long and 10 or 12 feet high. It was constructed of yellow pine. The posts were 4 inches square, 8 feet apart, set in the retaining wall which was of variable height ranging from 4 to 8 feet, the lot being that much lower than the sidewalk. The board was braced by 2×4 stuff nailed to the board and to stakes driven or sunk into the ground on the west. The north end of the board, including the part which fell, was built in 1900. Hodge owned the land on which the north 48 feet of the board stood, and Pratt owned the next lot south. The south part of the billboard stood on the site of the old Coates Opera House, which, as the evidence tended to show, was destroyed by fire in 1904. So that, as far as the evidence indicates, the north part of the board was the oldest. The north 32 feet, under a high gusty wind, fell down upon the plaintiff injuring her seriously. Though the wind was high and gusty, it was no more than could be reasonably expected, as was shown by the weather bureau, it being about 36 miles an hour. The next 16 feet fell partly down.

Mildred Green was a witness for the plaintiff. She was a saleslady in a store just across Broadway from the place of the accident. In coming to her place of employment she usually passed by the billboard. She testified: "Q. About what time of day was it when those boards fell? A. It must have been between 1 and a quarter after. Q. In the afternoon? A. Yes, sir. Q. Had you noticed the condition of those billboards at any time prior to the time when they fell? A. Yes, I had a number of times, and especially when I came down the street myself on that day. Q. You may state what you observed as to the condition of those billboards prior to the time on which they fell, either on the day on which they fell or at any time prior thereto. A. Well I noticed that a number of the boards were loose and that the props were...