Wecker v. Grafeman-McIntosh Ice Cream Co.

• Citation: 31 S.W.2d 974,326 Mo. 451
• Parties: Raymond Wecker, A Minor, by Beatrice Wecker, His Next Friend, v. Grafeman-McIntosh Ice Cream Company and Sam Bierman; Grafeman-McIntosh Ice Cream Company, Appellant
• Decision Date: 13 October 1930
• Court: United States State Supreme Court of Missouri

31 S.W.2d 974

326 Mo. 451

Raymond Wecker, A Minor, by Beatrice Wecker, His Next Friend, v. Grafeman-McIntosh Ice Cream Company and Sam Bierman; Grafeman-McIntosh Ice Cream Company, Appellant

Supreme Court of Missouri

October 13, 1930

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed and remanded (with directions).

Thomas S. Meng for appellant.

(1) The negligence charged against defendants in the petition was not the proximate cause of the injury to plaintiff, and therefore, the petition failed to state a cause of action. State ex rel. v. Cox, 310 Mo. 376; Hight v. Am Bakery Co., 168 Mo.App. 461; Saxon v. Transfer Co., 145 Mo.App. 710; Hudson v. Ry. Co., 101 Mo. 34; Buddy v. Terminal Ry. Co., 276 Mo. 290; Am. Brewing Assn. v. Talbot, 141 Mo. 683; State ex rel. v. Ellison, 271 Mo. 473. (2) Where no cause of action is shown the ruling of the trial court in sustaining motion for new trial on ground of misconduct of counsel will be set aside. Henley-Waite Music Co. v. Grannis, 171 Mo.App. 395; Yuronis v. Wells, 17 S.W.2d 518.

Judson, Green, Henry & Remmers for respondent.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

Raymond Wecker, a minor, by his next friend, filed this suit in the Circuit Court of the City of St. Louis whereby he seeks to recover damages in the sum of $ 10,000 for personal injuries alleged to have been caused by the negligence of the defendants. After a verdict for the defendants, the court sustained the plaintiff's motion for a new trial on the ground that counsel for the defendant Grafeman-McIntosh Ice Cream Company made "wrongful and improper remarks and argument" to the jury, and, from the order granting the plaintiff a new trial, said defendant appealed.

Appellant makes two contentions in its brief: first, that the argument complained of by the plaintiff was not improper; and second, that the plaintiff's petition does not state facts sufficient to constitute a cause of action, and, therefore, the plaintiff is not entitled to a new trial, even though the argument complained of was improper.

Respondent has not favored us with a brief, but has filed a motion to dismiss the appeal which was taken as submitted with the case on the merits. As grounds for said motion, respondent says that appellant did not file an approved bill of exceptions in the circuit court, as required by Section 1460, Revised Statutes 1919; and that the so-called bill of exceptions in appellant's abstract of the record does not "set forth a copy of so much of the record as is necessary to be consulted in the disposition of the assigned errors," as required by Rule 13 of this court, because it does not contain a copy of the argument complained of in the motion for a new trial.

The bill of exceptions in appellant's abstract of the record is a copy of the bill of exceptions approved by one of respondent's attorneys, signed and allowed by the judge of the circuit court, and filed in the circuit court, and includes a transcript of all of the trial proceedings except the evidence adduced and the arguments of counsel to the jury. It is a good bill of exceptions as far as it goes, but, in failing to include therein a copy of the alleged improper and prejudicial argument of appellant's counsel, appellant has failed to preserve for our review the action of the trial court in granting respondent a new trial on the ground that said argument was improper and prejudicial. However, a copy of respondent's petition appears in appellant's abstract of the record proper, and the question of whether or not the petition states facts sufficient to constitute a cause of action is a proper question for our consideration on the record before us. Respondent's motion to dismiss the appeal is accordingly overruled.

Omitting the caption, the petition reads as follows:

"Amended Petition.

"Plaintiff leave of court first had and obtained, amends his petition. Plaintiff states that he is under age of 21 and over age of 7 years, to-wit, of the age of 10 years; that on the 7th day of February, 1924, Beatrice Wecker was, by this Honorable Court, duly appointed as his next friend to institute and prosecute this suit for and on his behalf against the defendants, and that she has duly qualified as such.

"Plaintiff states that at all times hereinafter mentioned the defendant Grafeman-McIntosh Ice Cream Company was and now is a corporation organized and existing under and by virtue of law. That Sam Bierman was at all times hereinafter mentioned engaged in and doing business at 2304 Franklin Avenue, city of St. Louis, Missouri.

"Plaintiff further states that at all times hereinafter mentioned, and some time prior thereto, Franklin Avenue was and now is an open and public thoroughfare and highway in the city of St. Louis, Missouri.

"Plaintiff further states that at all times hereinafter mentioned there was in full force and effect in the city of St. Louis, Missouri, the following ordinance of the Revised Code of St. Louis, Missouri (Wagner, 1914), Section No. 1231, said ordinance being repealed and a new section in lieu thereof enacted, to be known by the same number, which reads as follows, to-wit:

"'64544.

"'Ordinance 30386.

"'An Ordinance to repeal section twelve hundred and thirty-one of the Revised Code of St. Louis, nineteen hundred and fourteen, relating to the subject of street obstructions and excavations, and enacting a new section in lieu thereof to be known by the same number and relating to the same subject.

"'Be It Ordained, by the City of St. Louis, as follows:

"'Section One. Section twelve hundred and thirty-one of the Revised Code of St. Louis, nineteen hundred and fourteen, is hereby repealed and a new section enacted in lieu thereof, to be known by the same number, which shall read as follows:

"'Section twelve hundred and thirty-one -- Unauthorized Obstruction and Excavations Forbidden. -- Any person who shall, himself, or by another, place, use, utilize or maintain upon any highway or other public place any obstruction not authorized by ordinance, or make any excavation in such place without lawful authority, or displace or remove in such public place any cover of any sewer manhole, inlet, catch basin, stop valve, water meter or any cover belonging to any public utility corporation, without lawful authority, or displace or remove any stones, stakes or other landmarks placed by an officer of this city, under authority thereof, or injure or deface any property, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than ten dollars nor more than five hundred dollars.

"'Approved July 10, 1919.'

"Plaintiff further states that on the 4th day of February, 1924, at or about 4:30 o'clock in the afternoon, plaintiff, while playing on the sidewalk with some boys in front of 2304 Franklin Avenue, on the south side of Franklin Avenue, west of Twenty-third Street, in the city of St. Louis, Missouri, while in the act of playing, and plaintiff was running in an attempt to catch one by the name of Russell Frank, age 10 years, plaintiff ran by and near a wagon tongue or pole of a wagon which had been left standing there, unattended, in the roadway, highway or thoroughfare of Franklin Avenue, at and near the south curb of Franklin Avenue, in front of 2304 Franklin Avenue, said wagon having been left at said curb, in said street, at said location, by said defendants, their servants, agents and employees, for a long period of time, unattended, to-wit, over three days, and said wagon was left in said street, at said curb, at said location, headed in an easterly direction, and that said defendants, their servants, agents and employees, when leaving said wagon, carelessly and negligently permitted chains to hang from the east end of pole of said wagon in such a manner as to be dangerous to pedestrians and children, and that said plaintiff's left hand became caught and entangled in said chains, causing said plaintiff to suffer and sustain the serious and permanent injuries hereinafter set forth:

"First. Said defendants, their agents, servants and employees, carelessly and negligently violated Section 1231 of the Revised Code of St. Louis, Wagner, 1914, as amended by ordinance No. 30386, approved July 10, 1919.

"Said defendants, their agents, servants and employees carelessly and negligently operated said wagon, and carelessly and negligently placed, used and maintained upon said highway street or thoroughfare, said wagon, which wagon was an obstruction within the meaning of the law, not authorized by ordinance, and left said wagon on said highway for a long period of time, to-wit, three days, said wagon being unattended and left in said street, highway or thoroughfare at or near the south curb of Franklin Avenue, in front of house numbered and known as 2304 Franklin Avenue, in said city and State, and said defendants, their servants, agents and employees carelessly and negligently permitted chains to hang from the east end of pole attached to said wagon in such a manner as to be dangerous. That as direct result of said defendants, their servants, agents and employees' carelessness and negligence plaintiff's hand became entangled in said chains in such a manner that the third or ring finger of the left hand was caught and entangled in said chains, thereby arresting and...