Stith v. Newberry Co., 31563.

CourtUnited States State Supreme Court of Missouri
Citation79 S.W.2d 447
Docket NumberNo. 31564.,No. 31563.,31563.,31564.
PartiesHELEN STITH, Appellant, v. J.J. NEWBERRY COMPANY, Appellant, and W.W. JOHNSON.
Decision Date08 February 1935

Appeal from Hannibal Court of Common Pleas. Hon. Charles T. Hays, Judge.


Roy Hamlin and Ben Ely for appellant.

(1) Defendant's demurrer to the evidence should have been sustained. (a) Where it appears from the evidence of a plaintiff himself that he is guilty of contributory negligence, it is the duty of the trial court to sustain a demurrer. Waldman v. Skrainka Const. Co., 233 S.W. 242; Boyd v. Springfield, 62 Mo. App. 456; Holding v. St. Joseph, 92 Mo. App. 142. (b) The plaintiff in the case at bar was guilty of such contributory negligence as to bar her recovery. It is the duty of a pedestrian to keep a lookout for openly apparent dangers on a public sidewalk. Wheat v. St. Louis. 179 Mo. 572; Butterfield v. Forrester, 11 East. 60; Sloan v. American Press, 37 S.W. (2d) 884; Hank v. St. Louis, 272 S.W. 933; Woodson v. Met. St. Ry. Co., 224 Mo. 701, 123 S.W. 820: Ryan v. Kansas City, 232 Mo. 471, 134 S.W. 566; Hausman v. Madison, 85 Wis. 187, 55 N.W. 167, 21 L.R.A. 263; Sickles v. Philadelphia, 209 Pa. 113, 58 Atl. 128; Grayning v. Philadelphia, 269 Pa. 277 172 Atl. 448; Womack v. St. Joseph, 168 Mo. 236, 67 S.W. 588. Plaintiff's own testimony shows that she failed to look at the sidewalk; that she could have and would have seen and been able to avoid the danger had she looked. The evidence fails to disclose that defendant either had notice of the existence of the ice on which plaintiff slipped or that by the exercise of reasonable care it could have known of its existence and, absent such knowledge or opportunity for knowledge on defendant's part there can be no liability, Skelton v. Thompson, 3 Ont. 11; Stephens v. Deickman, 164 S.W. 931. (2) The court erred in admitting the evidence of witnesses Joseph and Brown and Myers as to the fact that snow gathered on the awning and melted and ran down on days during the trial and shortly before it the same being about a year after the accident. (a) Such evidence was only admissible as tending to show a like series of causation on the day of the accident. (b) To warrant its admission for this purpose it was necessary that plaintiff first prove that all conditions effecting such gathering of snow and its melting and the flowage of water caused thereby were identical on the day mentioned in the testimony and on the day of the accident. Lake Superior Loader Co. v. Huttig Lead & Zinc Co., 305 Mo. 130, 264 S.W. 396; 1 Wigmore on Evidence (2 Ed.), sec. 442; Emmerson v. Lowell Gaslight Co., 3 Allen, 410; Railroad Co. v. Champion, 32 Cal. 874. (c) There was no such proof here. There was no proof of similarity of weather conditions. There was no proof that the condition of the building, including the cornice, awning, and awning mechanism, were the same, and the time concerning which the evidence was given was so remote from the day of the accident (one year later) that no presumption to this effect can be indulged. Leidlein v. Meyer, 95 Mich. 589, 55 N.W. 367. (d) This error could not be cured by the belated attempt to withdraw such evidence from the jury by instruction given at the close of the case. State v. Martin, 229 Mo. 640; State v. Mix, 15 Mo. 160; State v. Fredericks, 85 Mo. 150; Waldron v. Waldron, 156 U.S. 361, 15 Sup. Ct. 383, 39 L. Ed. 459; Hopt v. Utah, 120 U.S. 403, 30 L. Ed. 708; Throckmorton v. Holt, 180 U.S. 552, 21 Sup. Ct. 474, 45 L. Ed. 671; Armour v. Kollmeyer, 161 Fed. 78, 16 L.R.A. (N.S.) 1110, 88 C.C.A. 247; Seafield v. Bohne, 169 Mo. 545; Haunan, Hickey Bro. Construction Co. v. Railroad Co., 247 S.W. 440. (3) The court should have ordered a removal of the cause when petitioned for by defendant at the close of plaintiff's case in chief. (a) Where a resident and nonresident defendant are joined the nonresident may nevertheless remove the cause where it appears that the controversy as to him was "separable." U.S. Code, Title 28, Sec. 871; Yulee v. Vose, 99 U.S. 539, 25 L. Ed. 355. (b) Removal on this ground may be sought at any time "before the trial," and when the separable nature of the controversy does not appear until after the trial has been in progress removal may be sought at the time when this fact is first established. Youlee v. Vose, supra; Ford v. Roxana Petroleum Corp., 31 Fed. (2d) 765; Fritzlen v. Boatman's Bank, 212 U.S. 364, 29 Sup. Ct. 366, 53 L. Ed. 551; Powers v. Railroad Co., 169 U.S. 92, 19 Sup. Ct. 264, 42 L. Ed. 675. (c) Plaintiff's petition as originally drawn stated two causes of action — one for the negligent maintenance of the hood and cornice which was a cause existing as against the Newberry Company only and not as to Johnson, the other for the negligent failure to keep the walk clean which was a joint cause of action. Under the decisions of the Federal Supreme Court as long as the last cause of action remained in the case there was no separable controversy. Hay v. May Dept. Store Co., 271 U.S. 318, 46 Sup. Ct. 498, 70 L. Ed. 965; Alabama Great Southern Railroad Co. v. Thompson, 200 U.S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441. (d) But when plaintiff failed to offer any evidence whatsoever as to the second ground of negligence the first only remaining in the case, the separability of the controversy first became apparent, giving a right to removal. (e) At the close of the evidence it first became apparent that Johnson had been joined without any possible evidence of his liability, and merely for the purpose of preventing removal. Such joinder is fraudulent in law and will not prevent a removal. Wilson v. Republic Iron Works, 257 U.S. 92, 42 Sup. Ct. 35, 66 L. Ed. 144; Boatman's Bank v. Frizlen, 22 L.R.A. (N.S.) 1235; Wecker v. Natl. Enameling & Stamping Co., 204 U.S. 176, 27 Sup. Ct. 184, 51 L. Ed. 430; Treaster v. Railroad Co., 15 Fed. (2d) 542. The statements of the petition are not conclusive on this question, but the whole of the evidence must be considered on the question of fraudulent joinder. Wilson v. Republic Iron Works, supra; Wecker v. Natl. Enameling & Stamping Co., supra; Treaster v. Railroad Co., supra; Morefield v. Ozark Pipe Line Corp., 27 Fed. (2d) 891. The fraudulent character of the joinder could not have become known to defendant until after the close of plaintiff's evidence, since at any time before plaintiff rested it was possible that she might have introduced some evidence in support of the allegations of her petition attempting to hold Johnson liable. Plaintiff's failure to offer any evidence as to the resident defendant was an abandonment of the action as to him and tantamount to a voluntary dismissal as to him. Sorrell v. Stone, 60 Tex. Civ. App. 51, 127 S.W. 300; Kansas, etc., Railroad Co. v. Hopkins, 18 Kan. 696; Bowman v. Purtell, 47 N.Y. Supp. Ct. 403. This made the cause removable at the close of plaintiff's case on the ground of diversity alone. Ford v. Roxana Petroleum Corp., supra. (4) The court erred in not striking out of plaintiff's petition on motion of defendant the allegations with reference to the premature birth and death of plaintiff's twin girls, since these allegations, and plaintiff's evidence predicated thereupon, sought a recovery, not alone for the excessive and unnatural pain, physical and mental of miscarriage, but also the death of the children. (a) Damages cannot be recovered for the loss of the children. 8 R.C.L. 470; Big Sandy Railroad Co. v. Blankenship, 133 Ky. 438, 118 S.W. 316, 23 L.R.A. (N.S.) 345; Sullivan v. Railroad Co., 197 Mass. 512, 83 N.E. 1091; Tennicliff v. Railroad Co., 102 Mich. 624, 61 N.W. 11, 32 L.R.A. 142; Morris v. Railroad Co., 105 Minn. 276, 117 N.W. 500, 17 L.R.A. (N.S.) 598; Prescott v. Robinson, 74 N.H. 460, 69 Atl. 522, 124 Am. St. Rep. 987, 17 L.R.A. (N.S.) 594; Butler v. Railroad Co., 143 N.Y. 417, 38 N.E. 454, 42 Am. St. Rep. 738, 26 L.R.A. 46; Western Union Telegraph Co. v. Cooper, 71 Tex. 507, 9 S.W. 598, 10 Am. St. Rep. 772, 1 L.R.A. 728; Hawkins v. Ry. Co., 3 Wash. 592, 28 Pac. 1021, 28 Am. St. Rep. 72, 16 L.R.A. 808. (b) Nor can damages be recovered for the mental suffering of the wife occasioned by grief for the loss of the children. L.R.A. 1917E, 1050. (c) But in the portions of the petitions stricken at by defendant's motion, and in the portions of the evidence introduced thereunder, these improper elements of damage are so inextricably confused with the proper elements of excessive pain caused by the premature birth as such, that the jury must have been confused thereby. (5) The verdict of the jury was for $10 and not as the court construed it for $10,000; hence the judgment entered for $10,000 did not correspond to and was not based upon the verdict and was unfounded and improper. (a) The dollar is a well established unit of money, and the decimal system based thereon is established by law. Therefore the fact that the jury wrote $10,000 must be read as 10 monetary units and no decimal portions of such units. Bouvier's Law Dictionary, 1 U.S. Stat. at Large 246. (b) Where a number is written as a decimal the addition of ciphers after the decimal point does not change the value of the number at all regardless of the number of ciphers so added. (c) Although in the earlier decisions this court refused to take judicial notice of the dollar mark (a ruling which if followed would make this verdict absolutely void) it no doubt will not follow the more liberal view of the Illinois court to the effect that this abbreviation is a well recognized part of the English language. But if it does so it must also judicially notice the fact that ciphers added after a sum of dollars to express the absence of fractional parts of dollars are made smaller than those in the number expressing dollars. (d) The verdict is a clear one for $10, and hence the affidavits of the jurors introduced are...

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