Shuff v. Kansas City

• Decision Date: 05 April 1926
• Citation: 282 S.W. 128,221 Mo.App. 505
• Parties: MRS. MILDRED SHUFF, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. [*]
• Court: Kansas Court of Appeals

282 S.W. 128

221 Mo.App. 505

MRS. MILDRED SHUFF, RESPONDENT, v. KANSAS CITY, MISSOURI, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

April 5, 1926

Appeal from the Circuit Court of Jackson County.--Hon. Nelson E Johnson, Judge.

AFFIRMED (on remittitur).

S. L Trusty and Gamble, Trusty & Pugh for respondent.

Solon T. Gilmore and John D. Wendorff for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.--

This is a suit in damages for personal injuries alleged to have been sustained by plaintiff through slipping, or stepping, into a hole in the sidewalk on the east side of Main street, in front of No. 1125, in Kansas City, Mo., at about 4:30 P. M. on January 6, 1916.

This is the second appeal in the case. On the former trial the judgment was in plaintiff's favor in the sum of $ 4000. There were included as parties defendant in that suit a number of persons who were owners of adjacent property. Demurrers were sustained as to these and they are no longer parties to the controversy. On the former appeal the judgment was reversed and the cause remanded, but on motions to modify the opinion, this court affirmed the judgment of the lower court as to the abutting property owners, but reversed the judgment and remanded the cause as to the defendant city. [See Shuff v. Kansas City, 257 S.W. 844.] The basis of our ruling was that there was no showing that the defendant city had notice as required by section 8904, Revised Statutes 1919. On retrial of the cause this condition was remedied by the introduction in evidence of the original petition, filed on March 1, 1916, and preserved in the bill of exceptions, upon which summons was duly issued. The return of the sheriff shows that this petition was served on the Honorable Henry L. Jost, mayor of Kansas City, Mo.

It has been held and is the law that the filing of suit and service of summons on the mayor, with petition, within the statutory ninety days, renders the giving of further notice unnecessary, providing, of course, the petition alleges facts which bring it within the purview of the statute. [Wolf v. Kansas City (Mo. Sup.) 246 S.W. 236, 239; Hunt v. City et al., 278 Mo. 213, 224, 211 S.W. 673, 676.] Both trials of the cause were to a jury and there is no material difference in the evidence introduced at each. We refer to our former opinion for a detailed statement of the facts. The verdict on the second trial was in favor of plaintiffs for $ 7500, and judgment for that amount was accordingly entered. Motions for new trial and in arrest were overruled and defendant appeals.

It is urged that the trial court erred in refusing defendant's instructions in the nature of demurrers at the close of plaintiff's evidence and also at the close of all the evidence, because there was a total failure of proof that plaintiff's injury was received at the place alleged in her petition, to-wit, in front of 1125 Main street. Defendant contends that as the petition positively alleges that plaintiff was injured by stepping into a hole in the sidewalk in front of property located at 1125 Main street, she must prove this allegation, and that there is no evidence of record in support thereof.

The record discloses there was testimony tending to show that the location of the hole was at 1125 Main street. Plaintiff was asked, "Where was this hole, on what--in front of what building, if you know? A. Well, it was near 1125 Main street. Q. 1125 Main street? A. On the east side of the street." She further stated it was "next to the ten cent store."

Plaintiff's exhibit 1 is a photograph, introduced in evidence, which shows that the building numbered 1125 Main street is immediately adjoining the five and ten cent store of Kresge & Company. The exhibit also shows two holes in the sidewalk and that the larger is the one in question. H. C. Payne, city water inspector, testified that he issued the permit to place the water-box in front of 1125 Main street; that he had examined the hole after the accident and identified plaintiff's exhibit as showing the hole where the water-box was placed. The location of the hole in question at 1125 Main street also was testified to by W. E. Brandenburgh who, in reply to a question by the attorney for the city, stated that he had made measurements of the hole in front of 1125 Main street. There is no showing that there was any other hole in the sidewalk near the point in controversy than those above mentioned. While this is not the strongest possible testimony, yet it is of sufficient substantiality to support a verdict at the hands of the jury. We think the court properly held there was sufficient evidence to take the case to the jury. [Stripe v. Meffert, 229 S.W. 762.]

Defendant further insists that its instructions in the nature of demurrers should have been given for the reason that plaintiff was guilty of contributory negligence as a matter of law. We deem it unnecessary to discuss this question because, under the same state of facts, we fully determined this point in the former opinion (257 S.W. 844), where we said:

"We cannot so state as a matter of law. The question of whether plaintiff was guilty of contributory negligence is one for the jury. She testified that she did not see the hole before stepping into it. It was in a very important business portion of the city, where many people were passing. Plaintiff was not star gazing; she was walking along in the ordinary manner of a pedestrian, and was trying to avoid the crowd as much as possible, when her foot slipped into the hole. She is not to be convicted of contributory negligence as a matter of law because she failed to look for a hole in the sidewalk. [Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566, 985; O'Neill v. City of St. Louis, 292 Mo. 656, 239 S.W. 94, 96; Smith v. Kansas City (Mo. Sup.), 184 S.W. 82.]"

Defendant contends that its appeal must prevail because only one final judgment may be entered in one case. This argument is based upon the fact that one final judgment already has been entered in this cause, disposing of the issues and some of the parties; that this court, in its former opinion, disposed of all the parties defendant excepting the appellant herein; and disposed of all the questions pertaining to all the parties excepting Kansas City, Mo. It is argued that this being true, the court cannot now, in a separate and distinct judgment, dispose of the issues as to defendant Kansas City, because such attempt would be in direct violation of section 1528, Revised Statutes 1919, which reads:

"When there are several defendants in a suit, and some of them appear and plead and others make default, an interlocutory judgment by default may be entered against such as make default, and the cause may proceed against the others; but only one final judgment may be given in the action."

On the first trial, the judgment of the circuit court in favor of defendants, the abutting property owners, was affirmed, but as against defendant Kansas City, the judgment was reversed and the cause remanded. Defendant argues that if this judgment is permitted to stand, there will be two separate and distinct final judgments in this case, one in favor of the defendants, the abutting property owners and against plaintiff, and one against the defendant city and in favor of plaintiff.

This position of defendant, in effect, challenges the right of this court to affirm the judgment rendered in the first trial in favor of the abutting property owners and to reverse the judgment and remand the cause for a new trial against defendant city only. The former opinion at p. 847, says:

"Not only is there no offer to show nor any showing of any liability on the part of the abutting property owners, but there is no permissible inference to that effect; but the inference, if any, is to the contrary. The opinion is therefore modified so as to affirm the judgment as to the abutting property owners, but reverse the judgment as to the city, and remand the cause for a new trial as to it."

That this court has the right so to rule is beyond controversy. In Adair v. Railroad, 282 Mo. 133, 220 S.W. 920, the Supreme Court said:

"Whatever may have been the instability of the court with reference to the entirety of a judgment in this respect, it is now established that, on...