State ex rel. City of Jefferson v. Shain

• Citation: 124 S.W.2d 1194,344 Mo. 57
• Decision Date: 08 February 1939
• Docket Number: 36216
• Parties: State of Missouri at the relation of the City of Jefferson, a Municipal Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals and Anna Bornhoft
• Court: United States State Supreme Court of Missouri

124 S.W.2d 1194

344 Mo. 57

State of Missouri at the relation of the City of Jefferson, a Municipal Corporation, Relator,

v.

Hopkins B. Shain, Ewing C. Bland and Robert M. Reynolds, Judges of the Kansas City Court of Appeals and Anna Bornhoft

No. 36216

Supreme Court of Missouri

February 8, 1939

So much of the opinion of the Court of Appeals as rules that Instruction No. 4 was not reversible error is quashed.

John O. Bond for relator.

(1) When Supreme Court acquires jurisdiction over a cause by certiorari, it may consider conflicts not suggested by relator and may on its own motion point out conflicts. State ex rel. K. C. Southern Railroad Co. v. Shain, 105 S.W.2d 915. (2) Where the opinion of the appellate court is in conflict with a decision of the Supreme Court as to a like or similar set of facts, the opinion of the appellate court will be quashed on certiorari. State ex rel. McClay v. Cox, 10 S.W.2d 940; State ex rel. City of Macon v. Trimble, 12 S.W.2d 727. (3) On certiorari the Supreme Court refers to the opinion of the appellate court for the facts and will also examine any writing, instruction or pleading referred to by the appellate court in its opinion. State ex rel. v. Becker, 293 S.W. 786; State ex rel. v. Shain, 66 S.W.2d 827; State ex rel. v Allen, 85 S.W.2d 455. The degree of care which a city is required to exercise over its streets and sidewalks is "to use reasonable care to maintain its streets and sidewalks in a reasonably safe condition." Taylor v Kansas City, 112 S.W.2d 564; Barr v. Kansas City, 105 Mo. 561. (4) Where an instruction covers the entire case and directs a verdict, yet omits an essential element of plaintiff's case, it is impossible to cure the error by the giving of a proper instruction, for the erroneous instruction is then in conflict with the proper instruction. State ex rel. v. Ellison, 199 S.W. 987; Wojtylak v. Coal Co., 188 Mo. 283, 87 S.W. 512; Hall v. Coal & Coke Co., 260 Mo. 367, 168 S.W. 927; Macklin v. Fogel Co., 31 S.W.2d 19; Nagy v. St Louis Car Co., 37 S.W.2d 515; Sloan v. Polar Wave Ice & Fuel Co., 19 S.W.2d 481; Sommer v. Continental Portland Cement Co., 246 S.W. 215; Stafford v Ryan, 276 S.W. 636; Dawes v. Sterritt, 82 S.W.2d 56; Schubert v. Amer. Press, 19 S.W.2d 472; Blackwell v. Union Pacific Ry. Co., 52 S.W.2d 815. (5) Many cases decided by this court have held that instruction like or similar to Instruction 4 is a reversible error which cannot be cured by another instruction. Cases under Point 4.

Irwin, Bushman & Buchanan for respondent.

(1) Since the jury could not have found for plaintiff under this instruction without necessarily having found by implication that the sidewalk in question was not reasonably safe, there was no prejudicial error in it. Gettemeyer v. Theis, 51 S.W.2d 869; McMillan v. Bausch, 234 S.W. 835. (2) Instruction 4 when read in connection with respondent's main Instruction 1, to which it was intended as a supplemental cautionary instruction, contains no prejudicial error. (a) It is proper for the court to give cautionary instructions to prevent the consideration of a false issue developed by the evidence. 1 Hout Mo. Plead. & Practice, sec. 349, p. 621; Estes v. Desnoyers Co., 155 Mo. 578. (b) The repetition in an instruction of predicates of liability already covered by the main instruction is useless and an omission in the enumeration of such repeated predicates of liability in the supplemental instruction is therefore not prejudicial. Stanton v. Jones, 59 S.W.2d 653. (c) Instruction 4, if anything, by again enumerating the predicates of liability following the main instruction added an additional unnecessary burden upon respondent and furnishes no ground for complaint by relator. 1 Hout Mo. Plead. & Practice, sec. 349, p. 613; Seawell v. Ry. Co., 119 Mo. 222, 24 S.W. 1002, error dismissed 17 S.Ct. 905, 41 L.Ed. 1179; Foster v. Mo. Pac. Ry. Co., 115 Mo. 165, 21 S.W. 916. (d) The jury, if they found for plaintiff, must be presumed to have determined for plaintiff all the facts hypothesized in the main instruction before reaching the supplemental instruction authorizing the verdict, and hence any omission in the subsequently given supplemental instruction would not be prejudicial. Browning v. Browning, 41 S.W.2d 860. (e) The definitive adjective "the" preceding the words "defective condition thereof" in Instruction 4 clearly referred to the "defective and precipitous" condition of the sidewalk previously described in the main instruction and when so considered Instruction 4 omits nothing in regard to unsafeness. Hoffman v. Franklin Motor Co., 122 S.E. 900, 32 Ga.App. 237; Power v. Mechinton, 5 Newfoundland, 271; Wastl v. Montana Union Ry. Co., 61 P. 9, 24 Mont. 177.

OPINION

Douglas, J.

This is a proceeding in certiorari to review the opinion of respondents in the case of Anna Bornhoft v. City of Jefferson, published in 118 S.W.2d 93, for conflict with the controlling decisions of this court.

Anna Bornhoft brought suit against the City of Jefferson for damages for personal injuries sustained by her while walking on a sidewalk maintained by the defendant City. She was thrown from her balance and her foot sprained by a step-off or depression in the sidewalk caused by one block or section of the sidewalk being lower than the other. She recovered judgment below which was affirmed by respondents in the opinion before us for review.

Relator had complained of an instruction given for plaintiff and now claims that respondents' ruling on it is in conflict with our decisions. The instruction, No. 4, was as follows: "The Court instructs the jury that if you find and believe from the evidence that plaintiff, while exercising ordinary care for her own safety, was injured while walking along and upon defendant's sidewalk by reason of the defective condition of said sidewalk, if you so find, and that defendant knew or by the exercise of reasonable care could have known of such condition of the sidewalk in time by the exercise of reasonable care to have repaired same prior to January 5, 1937, then you may find the issues for the plaintiff, notwithstanding the fact that she knew beforehand the condition of the sidewalk and had from time to time passed over the sidewalk with safety to herself." In ruling on the instruction respondents said: "The defendant likewise complains of Instruction No. 4 for the plaintiff as erroneous in that it omits the essential requirement to find that the sidewalk in question was not maintained in a reasonably safe condition and permits a verdict for the plaintiff if the jury should find only that the sidewalk was defective.

"Instruction No. 4, like Instruction No. 1 for the plaintiff, purports to cover the whole case and to direct a verdict for the plaintiff. The instruction standing alone is subject to the complaint made by the defendant. It is at least indefinite, ambiguous, and misleading. It is not sufficient to require that the sidewalk be found defective, but it must have been found that the sidewalk was not in a reasonably safe condition. The instruction authorized a finding based upon a defect, whether one of a dangerous nature or one of a slight nature. It should have been so drawn as to permit a recovery only upon a defect of a dangerous character and one rendering the sidewalk not reasonably safe and have excluded a defect of a trivial or slight nature. [Robertson v. Wabash Ry. Co., 152 Mo. 382, l. c. 392 and 393, 53 S.W. 1082; Squires v. Kansas City, 100 Mo.App. 628, 75 S.W. 194, supra.]

"It is insisted by the plaintiff, however, that Instruction No. 4 is to be read in connection with the plaintiff's Instruction No. 1 and the defendant's Instruction D and that, when so read, the omission therefrom is supplied."

After quoting from the case of Jenkins v. Missouri State Life Insurance Co., 334 Mo. 941, 69 S.W.2d 666, the respondents continued:

"In State ex rel. St. Joseph Belt Ry. Co. v. Shain et al. (Mo.) 108 S.W.2d 351, l. c. 354, 355, the above quotation from Jenkins v. Missouri State Life Insurance Company, supra, is approvingly set out. It is there held that, where an instruction is asserted to declare a contrary doctrine to other instructions, it is erroneous to the extent that the error in its giving is incurable. Referring to the Jenkins case and other cases cited in the brief in that case, the opinion therein says that the Jenkins case and many others cited by both relator and respondents stress instructions that omit an essential element and authorize a verdict. Where an instruction does that, all of the cases say that the error is incurable. On the other hand, as the Jenkins case points out, where standing alone an instruction authorizing a verdict is merely indefinite, ambiguous, and misleading and these defects are cured by other instructions so that, when all are read together, the law of the case is sufficiently stated, then the error in the one instruction is not reversible.

"Instruction No. 4, under the rules noted from the above opinions, is not to be regarded as setting forth a misdirection but merely as being indefinite, ambiguous, too general, insufficient in direction, and misleading and, standing alone, as erroneous and the errors therein are to be considered cured by Instructions 1 and D, which are definite and certain in their terms and directions; and it is to be considered that, when all three are read together, the law of the case is sufficiently stated. The error in Instruction No. 4 is therefore not reversible. While not fully adopting the directions and requirements of Instructions 1 and D, it does not negative them and may be regarded as harmonizing with such requirements. It is not contradictory of such instructions or subject to the charge of a positive misdirection. The...