Shippey v. Kansas City

• Decision Date: 24 December 1913
• Citation: 162 S.W. 137,254 Mo. 1
• Parties: LOUISE R. SHIPPEY, Appellant, v. KANSAS CITY
• Court: Missouri Supreme Court

162 S.W. 137

254 Mo. 1

LOUISE R. SHIPPEY, Appellant, v. KANSAS CITY

Supreme Court of Missouri

December 24, 1913

Appeal from Jackson Circuit Court. -- Hon. W. O. Thomas, Judge.

Reversed and remanded.

Angevine Cubbison & Holt, Bird & Pope and Charles A. Stratton for appellant.

(1) The instrument executed by appellant May 23, 1907, acknowledging receipt by her from the estate and heirs of Melville H Hudson and of Wallace Pratt, and from Charles H. Hodge, of the sum of $ 200, as partial satisfaction for the injury sustained by her, and by which she agreed not to further prosecute the action against them, was not a release of the cause of action against the city, because Hudson and Pratt were dead at that time, and the cause of action did not survive against their heirs or legal representatives, and they were no longer joint tort-feasors with the city. R. S 1909, secs. 105, 106. (2) The written instrument under which defendant Melville H. Hudson, doing business as The Kansas City Bill Posting Company, took possession of and occupied the premises of Charles H. Hodge, and erected and maintained thereon the portion of the billboard which fell and injured the plaintiff, constituted a lease of said premises, and the relation of landlord and tenant existed between them. Therefore, the defendant Charles H. Hodge, having leased his premises and delivered possession to Melville H. Hudson, had no right to re-enter until after notice as required by the lease, was not responsible for the care or maintenance of the billboard erected thereon by Melville H. Hudson, and was not liable for any nuisance committed on said premises by his said tenant, Melville H. Hudson; hence was not a joint tortfeasor with the other defendants. 1 Washburn on Real Property, sec. 619; 24 Cyc. 901; 18 Am. & Eng. Ency. Law (2 Ed.), pp. 163, 605; Boone v. Stover, 66 Mo. 430; Edmunds v. Light & Power Co., 76 Mo.App. 610; Buesching v. Gas Light Co., 73 Mo. 219, 39 Am. Rep. 503; Duetsch v. Abeles, 15 Mo.App. 398; Mayer v. Schrumpf, 111 Mo.App. 54; Franke v. St. Louis, 110 Mo. 516; Grogan v. Foundry Co., 87 Mo. 321; Pope v. Boyle, 98 Mo. 527; Reinhardt v. Holmes, 143 Mo.App. 223. (3) Even if on May 23, 1907, Hudson and Pratt, or their legal representatives, and Hodge were joint tort-feasors with the city, still the partial settlement and agreement then made, not to further sue, is no bar to the prosecution of this action against the city, because a partial settlement may be made with one of two or more joint tort-feasors, without releasing the others, or a contract may be made with one of two or more joint tort-feasors not to sue, without barring the right to sue the others not contracted with. It is only where a full settlement of the cause of action is made with one of two or more joint tort-feasors that such settlement is a bar to an action against the other joint tort-feasors not settled with. 24 Am. & Eng. Ency. Law (2 Ed.), 293, 295; Edens v. Fletcher, 79 Kan. 139; Judd v. Walker, 158 Mo.App. 156. (4) Sec. 9801, R. S. 1909, has no application for the reason that Wallace Pratt and Charles H. Hodge, the owners of the abutting property, on which the billboard was erected, and Melville H. Hudson, who erected, owned and maintained the billboard, were made parties defendant with the city in the first instance, and when Pratt and Hudson died, whatever cause of action there may have been against them ceased to exist, and could not be revived against their heirs or legal representatives, and Hodge not being in the actual occupancy and immediate control of his property, no cause of action existed against him, and there is no responsible party left in the case but the city; besides, the city made no objection to the dismissal of the action as against its codefendants. R. S. 1909, secs. 105 and 106; Kilroy v. St. Louis, 242 Mo. 79; Donoho v. Iron Works, 75 Mo. 401. (5) Kansas City is liable for negligently permitting one of its streets to become unsafe for public travel by reason of a defective and dangerous bill board being maintained in the street, or at the sidewalk line. Blivens v. Sioux City, 85 Iowa 346; Langan v. Atchison, 35 Kan. 318; Lundy v. Sedalia, 162 Mo.App. 218; Kiley v. Kansas City, 69 Mo. 102; Loth v. Theatre Co., 197 Mo. 349; Franke v. St. Louis, 110 Mo. 516; Campbell v. Chillicothe, 239 Mo. 455. (6) The fall of the billboard was some evidence of its defective and dangerous character. Turner v. Haar, 144 Mo. 335; Schraff v. Construction Co., 115 Mo.App. 157; Potter v. Borabaugh, 83 Kan. 712. (7) The testimony of Mildred Greene as to the defective condition of the billboard adjacent to the part that fell and injured the appellant, at and prior to the time it fell, is competent evidence and sufficient to warrant the jury in finding that the dangerous and defective condition of the billboard could have been discovered by the city if it had exercised reasonable care. Kuntsch v. New Haven, 83 Mo.App. 174; Buckley v. Kansas City, 95 Mo.App. 188; Miller v. Canton, 112 Mo.App. 322; Smallwood v. Tipton, 63 Mo.App. 237; Bailey v. Centerville, 78 N.W. 831; Fuller v. Jackson, 52 N.W. 1075; Weil v. Mendon, 66 N.W. 58; Long v. Davenport, 67 N.W. 717; Hall v. Austin, 75 N.W. 1121; Rodda v. Detroit, 75 N.W. 939. (8) The city must take notice of the result of ordinary climatic influences upon timbers set in the ground and exposed to the winds and weather, and of the tendency of such timber to decay. The city will not be relieved from liability, although the defect may not be open and notorious. 15 Am. & Eng. Ency. Law (2 Ed.), 481; 2 Elliott on Roads and Streets (3 Ed.), sec. 808; Furnell v. St. Paul, 20 Minn. 123; Rapho v. Moore, 68 Pa. St. 404; Medina v. Perkins, 48 Mich. 67; Miller v. Canton, 112 Mo.App. 322; Deland v. Cameron, 112 Mo.App. 704. (9) It is not essential that the proof should show glaring defects, or that the city had actual knowledge. The opportunity of knowledge stands for actual knowledge. Buckley v. Kansas City, 95 Mo.App. 188; Kuntsch v. New Haven, 83 Mo.App. 174; Smallwood v. Tipton, 63 Mo.App. 237; Franke v. St. Louis, 110 Mo. 516; Long v. Davenport, 68 N.W. 717; Fuller v. Jackson, 52 N.W. 1075; Elliott on Roads and Streets (1 Ed.), p. 645. (10) Policemen John Torpey and William J. Cummings were officers of the city, and from their knowledge or opportunity of knowing of the dangerous and defective condition of the billboard, the jury should have had an opportunity to find that the city had actual notice through them of the dangerous and defective condition of the billboard, or that they were negligent in not discovering such dangerous and defective condition while they in the performance of their duties passed by the billboard numerous times each day and night for several years before the plaintiff was injured, and that the city was guilty of negligence in not protecting the traveling public against the injury from the billboard. Carrington v. St. Louis, 89 Mo. 209; R. S. 1899, sec. 6176; Shipley v. Bolivar, 42 Mo. 401; Franke v. St. Louis, 110 Mo. 516. (11) Every reasonable inference which can be drawn from plaintiff's evidence will be assumed to be true, despite the possibility of contradictory inferences or conflicting evidence. Clubb v. Scullin, 235 Mo. 585.

A. F. Evans and Francis M. Hayward for respondent.

(1) A city is entitled to notice, either actual or constructive, of any defect which it has not caused, making a street unsafe for travel before it can be held liable therefor. Dillon Mun. Corp. (5 Ed.), sec. 1712; Franke v. St. Louis, 110 Mo. 516; Badgley v. St. Louis, 149 Mo. 122; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Fehlhauer v. St. Louis, 178 Mo. 635; Miller v. Kansas City, 157 Mo.App. 533. (2) There was no substantial evidence of any defect in the billboard which fell on plaintiff, either in its original construction or its existing condition when it fell, or that defendant had any actual or constructive notice thereof. The court, therefore, did not err in directing a verdict for defendant. Powell v. Railroad, 76 Mo. 80; Oglesby v. Railroad, 177 Mo. 272; Fowler v. Elevator Co., 143 Mo.App. 422; Byerly v. Consolidated Co., 130 Mo.App. 193; Bowles v. Kansas City, 51 Mo.App. 421; Smallwood v. Tipton, 63 Mo.App. 237; Miller v. Canton, 112 Mo.App. 322; Hipsley v. Railroad, 88 Mo. 348; Ruggles v. Nevada, 63 Iowa 185; Barrett v. Village, 87 Wis. 654. (3) Even if at the time of the accident to plaintiff there had been evidence that the uprights were rotten, such defect would have been a latent defect, which would not have imparted notice to the city, and plaintiff cannot recover. Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Miller v. North Adams, 182 Mass. 569; Lohr v. Phillipsburgh, 156 Pa. 246; Miller v. Mullan, 104 Pac. (Idaho), 660; Hembling v. Grand Rapids, 99 Mich. 292; Indianapolis v. Ray, 97 N.E. 795. (4) (a) The execution of the instrument of May 23, 1907, whether a release or satisfaction of plaintiff's claim against Hodge, discharged all joint tort-feasors. Hubbard v. Railroad, 173 Mo. 249; Dulany v. Buffum, 173 Mo. 1; Herald Co. v. Bryan, 195 Mo. 574; 34 Cyc. 1086; 24 Am. & Eng. Ency. Law, 327; Gunther v. Lee, 45 Md. 60; Ellis v. Blitzer, 2 Ohio 89; McBride v. Scott, 132 Mich. 176; Abb v. Railroad, 28 Wash. 428; Tompkins v. Railroad, 66 Cal. 163; Denver v. Sullivan, 21 Colo. 302; Hartigan v. Dickson, 81 Minn. 284; Goss v. Ellis, 136 Mass. 513; Leddy v. Barney, 139 Mass. 394; Seither v. Phil T. Co., 125 Pa. St. 397; Ducey v. Patterson, 37 Colo. 216; Ruble v. Turner, 2 H. & M. (Va.) 38; O'Shea v. Railroad, 105 F. 559; 34 Cyc. 1005; Strode v. St. Louis, 197 Mo. 623; Longridge v. Dorville, 5 B. & Ald. 117; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449; Prout v. Pittsfield F....