Shuff v. Kansas City

• Decision Date: 31 December 1923
• Docket Number: No. 14751.,14751.
• Citation: 257 S.W. 844
• Parties: SHUFF v. KANSAS CITY.
• Court: Missouri Court of Appeals

257 S.W. 844

SHUFF v. KANSAS CITY.

No. 14751.

Kansas City Court of Appeals. Missouri.

December 31, 1923.

Rehearing Denied Jan. 21, 1924.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Mildred Shuff against Kansas City, a corporation. Judgment for plaintiff and defendant appeals. Reversed and remanded.

John B. Pew and John D. Wendorff, both of Kansas City, for appellant.

S. L. Trusty, of Kansas City, for respondent.

TRIMBLE, P. J.

Plaintiff, about 4:30 p. m. of January 6, 1916, was walking north along the sidewalk on the east side of Main street in Kansas City, between Eleventh and Twelfth streets, and when in front of No. 1125 Main street, stepped or slipped into a hole in said sidewalk, and was thereby thrown to the ground and injured. She brought this suit for damages. Pursuant to the statute, the owners of the abutting property were made parties defendant along with the city. At the conclusion of plaintiff's evidence, the court sustained the demurrer of the abutting property owners, and at the close of the entire case overruled the city's demurrer and submitted the case against the city only. The jury returned a verdict in favor of plaintiff in the sum of $4,000, and the city has appealed.

The evidence in plaintiff's behalf tends to show that the sidewalk was of stone, 3½ inches thick, and the hole was about a foot from the outer edge thereof. In size the hole was 8 inches wide and 12 or 14 inches long. It had been cut through the entire thickness of stone constituting the sidewalk, and at the time of plaintiff's fall there was a small amount of black dirt in the bottom thereof, and the hole was, on this account, about 3 inches deep. It had been made in the sidewalk some 25 years before, for the purpose of placing therein a box containing a stopcock, whereby water from the city mains to the service pipe to the adjoining premises could be turned off and on. This stopcock box was 5½ inches square. The edges of the hole had become greatly worn, thus forming sloping sides, so that, when plaintiff's right heel stepped thereon, her foot slipped into the hole, and she fell backwards on the stone pavement, and was rendered unconscious for a little while. Her fall was of such force that her hair came down, her hat fell off, and her pocketbook flew out of her hand and came open. Upon coming to herself, she was. "halfway in a sitting position," a lacy was standing over her, and two men picked her up and carried her to an adjoining doorway. She was crying, hysterical, and suffering great pain, especially in the lower portion of her back, where she struck upon the sidewalk.

At the close of plaintiff's case the defendant city demurred to the evidence, but was overruled; and at the close of all the evidence the city asked an instruction in the nature of a demurrer to the evidence, directing the "jury to find for the defendant city, and this was likewise overruled. Appellant urges, as one of the reasons why these should have been sustained, that the record does not disclose, nor is there any evidence to show, that notice in writing, such as is required by section 8904, R. S. 1919, was ever served on the mayor within 90 days after the occurrence. The record does not disclose such notice, nor was one introduced in evidence. But plaintiff says that the original petition was filed March 1, 1916, and a copy thereof was served with the summons on the mayor March 7, 1916, 53 days after the injury, and that therefore the original petition takes the place of, and in fact constitutes, such notice.

The trouble with this contention is that the original petition was not, at the time of the trial, a part of the record, and Was never made a part of the record, so as to establish the fact that it constitutes or takes the place of the statutory, notice required. The original petition was filed March 1, 1916, but 4 years later, to wit, on April 15, 1920, an amended petition was filed, and the trial occurred on January 9, 1922. The original petition was not offered in evidence, and is not in the record or bill of exceptions.

It is well setted that, where an amended petition is filed, the original becomes an abandoned pleading, and is no longer a part of the record, and can only be made so by incorporating or preserving it in the bill of exceptions. Farish Company v. Brown-Evans Co., 207 Mo. App. 78, 80, 230 S. W. 365, and cases there cited.

Consequently, when the case was tried in January, 1922, there was nothing whatever before the trial court to show that the statute as to notice had been complied with. It is well settled, also, that notice to the city, stating, among other things, the place where and the time when such injuries were received, and the character and circumstances of the injury, is a condition precedent to the maintenance of the action. Section 8904, R. S. 1919; Reid v. Kansas City, 195 Mo. App. 457, 460-464, 192 S. W. 1047; Canter v. St. Joseph, 126 Mo. App. 629, 634, 105 S. W. 1; Lyons v. St. Joseph, 112 Mo. App. 681, 683, 87 S. W. 588.

It is true, plaintiff's additional or supplemental abstract shows that a summons, together with a copy of the original petition, was served on the mayor within 90 days; but this does not establish the fact that such petition was sufficient to comply with the statutory requirements as to notice, and thus take the place of such notice. The trial court had nothing before it, nor do we have anything before us, showing that the statute was complied with. It is, of course, true that it has often been held that the filing of suit and service of summons, with petition, on the mayor within the 90 days, renders the giving of further notice unnecessary, and takes the place of such statutory notice, but this is with the proviso that the petition alleges facts which enable it to substantially comply with the statute, and the petition in each of those cases was before the court, so that it could see that the statute had been complied with. For example in Wolf v. Kansas City (Mo. Sup.) 246 S. W. 236. 239, the court say the petition, "if sufficient in form for that purpose," renders further notice unnecessary. In Hunt v. St Louis, 278 Mo. 213, 224, 211 S. W. 673, 676, the court say "the allegations of the petition * * * were such as to substantially comply with the requirements of the statute."

If, instead of relying upon the petition to constitute notice, plaintiff had served written notice on the mayor, she would have been required to introduce the same in evidence at the trial, so that the trial court might see and know that the statute had been complied with. Likewise, when she relies upon an abandoned petition to take the place of such notice, she should also introduce it in evidence; else there is nothing before the court to show compliance with the statute.

The fact that a petition was served upon the mayor on March 7, 1916, shows that four of the seven statutory requirements were met, namely, that it was in writing, was served on the mayor, was within the 90 days, and that damages were claimed; but it does not show that the other three requirements were complied with, namely, that it stated with reasonable certainty the place where and the time when the injury was received, or the character and circumstances of the injury. And, if it failed to state any one of the requirements, it would be insufficient as a notice. Purdy v. City of New York, 193 N. Y. 521, 86 N. E. 560; Jacobs v. City of St. Joseph, 127...