Wells v. City of Jefferson

• Decision Date: 03 November 1939
• Docket Number: 35626
• Citation: 132 S.W.2d 1006,345 Mo. 239
• Parties: Walter G. Wells, Appellant, v. City of Jefferson, a Municipal Corporation, and Missouri Power & Light Company, a Corporation
• Court: Missouri Supreme Court

132 S.W.2d 1006

345 Mo. 239

Walter G. Wells, Appellant, v. City of Jefferson, a Municipal Corporation, and Missouri Power & Light Company, a Corporation

No. 35626

Supreme Court of Missouri

November 3, 1939

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed.

David W. Peters and Scott Peters for appellant.

(1) The continued and persistent effort of counsel for defendant Missouri Power & Light Company, to impress the jury with the idea that plaintiff was, at the time of his injury and since said time, suffering from syphilis, had no other purpose than to inflame and prejudice the minds of the jury against the plaintiff, and was highly prejudicial. Waddell v. Met Street Ry. Co., 113 Mo.App. 686. (2) Defendant, Missouri Power & Light Company, assumed liability for damage and injury that might be sustained by users of the public streets on account of the presence of their rails in and upon said streets, under and pursuant to the provisions of Sections 4 and 5 of Ordinance 1250, and they could only be relieved of such liability by an ordinance duly passed by the council and approved by the mayor, because the city can only speak through its ordinances. Kolkmeyer & Co. v. City of Jefferson, 75 Mo.App. 682; Likes v. Rolla, 184 Mo.App. 303; Openchain-Boyer Co. v. Village of Mercer, 17 S.W.2d 377; Eureka Fire Hose Mfg. Co. v Portageville, 106 S.W.2d 516; Lively v. Webb City, 106 S.W.2d 520. (3) Defendant's instructions were erroneous in that Instructions 4 and 5 conflicted, and 6, 7 and 8 were repetitions of Instruction 5, and served to emphasize contributory negligence on the part of plaintiff to such an extent as to make a comment on the evidence. (a) Error in instructions is presumptively prejudicial. Jones v. Pulitzer Pub. Co., 240 Mo. 216; Moloney v. Boatmen's Bank, 288 Mo. 435; Brown v. St. L. & S. F. Ry., 281 S.W. 452. (b) Where instructions are conflicting, prejudice will be presumed. Royle Mining Co. v. Fidelity & Cas. Co. of New York, 161 Mo.App. 208; Ross v. Met. Street Ry. Co., 132 Mo.App. 472; Baker v. Ry. Co., 122 Mo. 551.

John O. Bond for City of Jefferson.

(1) An assignment of error that two instructions conflict without pointing out in what manner the instructions conflict presents nothing for consideration. Moran v. Kansas City Rys. Co., 232 S.W. 1111. (2) An assignment of error that certain instructions are mere repetitions of other instructions is too general and saves nothing for review unless it is shown in the assignment where the instructions are repetitious. Moran v. Kansas City Rys. Co., 232 S.W. 1111; Sharp v. Railroad Co., 213 Mo. 518.

Irwin Bushman & Buchanan for Missouri Power & Light Company.

(1) The trial court sustained every one of plaintiff's objections to every question in which the disease of syphilis was mentioned. No request to have counsel reprimanded or motion to have the jury discharged was made at any time on behalf of plaintiff on account of such questions. There is nothing to review on this point. Busse v. White, 274 S.W. 1049; Marts v. Powell, 161 S.W. 873; Long v. Binnicker, 63 S.W.2d 833. (2) The testimony sought by these questions was relevant. (a) This testimony was admissible on the question of whether or not the condition of the street or the condition of plaintiff's health caused him to lose control of the car, and also to determine whether or not plaintiff knew he was in such condition of health as to make him guilty of contributory negligence in attempting to drive a car. Tift v. State, 88 S.E. 41, 17 G. A. 663; Grogitzki v. Detroit Ambulance Co., 15 N.W. 923, 186 Mich. 374. (b) The testimony sought by these questions was admissible on the issue of whether or not trauma or disease caused the condition of health about which plaintiff is complaining. Ford v. Kansas City, 181 Mo. 137; Pain v. Street Ry., 170 Mo.App. 579; Kane v. Railroad Co., 251 Mo. 13. (c) The testimony sought by these questions was admissible in determining the measure and amount of plaintiff's damages. Smart v. Kansas City, 208 Mo. 162, 105 S.W. 721; Pomroy v. Railroad Co., 67 A. 563. (3) There was no violation of the privileged relationship existing between physician and patient by these questions or the testimony sought by them. (a) This privilege is not severable. It cannot be retained in part and waived in part. Holloway v. Kansas City, 184 Mo. 44, 82 S.W. 95; Epstein v. Railroad Co., 250 Mo. 32. (b) The privilege was waived as to testimony concerning the condition of plaintiff's health prior to the injury. Marquardt v. Railroad Co., 126 A.D. 273, 110 N.Y.S. 657; Seaman v. Mott, 110 N.Y.S. 1042; Lampel v. Goldstein, 167 N.Y.S. 577; Friesen v. Reimer, 247 N.W. 563; Ansnew v. Ins. Co., 276 N.W. 398; Mulvena v. Alexander, 270 N.W. 291. (c) This privilege was also waived on account of plaintiff's failure to make timely and sufficient objections. Epstein v. Railroad Co., 250 Mo. 22; State v. Powell, 217 S.W. 38; Vermillion v. Prudential Ins. Co. v. America, 93 S.W.2d 48. (4) The court did not commit error in sustaining the demurrer to the evidence offered on behalf of the defendant Missouri Power & Light Company. State ex rel. v. Kirkwood, 50 S.W.2d 118. Powers v. Indep. Long Distance Tel. Co., 19 Idaho 577, 114 P. 668; 6 Thompson on Negligence, sec. 7434; Davies v. Shawver, 134 Kan. 772, 8 P.2d 956.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an action for $ 10,000 damages for personal injuries, alleged to have been caused by a defective condition of Clark Avenue along street car tracks therein. At the close of all the evidence, the court directed a verdict for defendant Missouri Power & Light Company. Plaintiff's case against defendant City was submitted to the jury and its finding was for the defendant. Plaintiff has appealed from the judgment entered.

The Missouri Public Service Commission in November, 1933, with the consent of defendant City by ordinance, granted permission to defendant Power & Light Company to discontinue street car service and to establish bus service instead. Prior to the time plaintiff was injured, the City had commenced to remove the street car tracks from some of its streets but had not removed any tracks on Clark Avenue. Plaintiff's brief contains an assignment of error concerning the directed verdict for defendant Power & Light Company. Of course, this defendant's liability would depend upon whether its duty with reference to the track still existed. [Burow v. St. Louis Public Service Co., 339 Mo. 1092, 100 S.W.2d 269.] However, this assignment is not briefed; no further mention is made of it, either in the points and authorities or argument, and no case is cited which considered any similar state of facts. This constituted an abandonment of this assignment. [Clay v. Owens, 338 Mo. 1061, 93 S.W.2d 914; Homan v. Mo. Pac. Railroad Co., 334 Mo. 61, 64 S.W.2d 617.] Furthermore, if the city properly won (without prejudicial error) on the issues of negligence and contributory negligence, plaintiff, of course, could have no further rights against either defendant. It is, therefore, unnecessary to go into the facts concerning the taking over of the street car tracks by the City for salvage or otherwise.

Plaintiff's assignments of error, which are briefed, go only to instructions, admission of certain evidence, and improper cross-examination. We find plaintiff's statement (challenged by the City by motion to dismiss) to be sufficient for considering the assignments briefed, and the motion to dismiss plaintiff's appeal is overruled. Plaintiff assigns error "in receiving in evidence the record of a mere minute of the council of the City of Jefferson, which did not even import any final action, on the question of removing streetcar tracks from the city streets, dated February 3, 1934;" and "in receiving evidence of oral agreements entered into by and between officers of the defendant Missouri Power & Light Company, and the City of Jefferson concerning the removal of streetcar tracks from the city's streets." Plaintiff cites as authority on these assignments, Kolkmeyer & Co. v. City of Jefferson, 75 Mo.App. 678; J. C. Likes v. City of Rolla, 184 Mo.App. 296, 167 S.W. 645; Openchain-Boyer Co. v. Village of Mercer (Mo. App.), 17 S.W.2d 376; Eureka Fire Hose Mfg. Co. v. City of Portageville (Mo. App.), 106 S.W.2d 513; Lively v. Webb City (Mo. App.), 106 S.W.2d 517. These cases, cited in plaintiff's brief, all rule the question of what kind of record (of action of city council) it is necessary to make to establish liability against the city to pay money on contracts. Certain evidence is held insufficient for this purpose because of the requirements of Section 2962, Revised Statutes 1929; but that does not mean that it would be inadmissible for any other purpose. The evidence, complained of here, all went to the question of whether there was liability of the defendant Power & Light Company and could not be grounds for reversal of the judgment in favor of the City because there was no such contention of nonliability of the City in this tort action, and admittedly the City was liable (whether alone or jointly) if anyone was liable. Neither could the admission of this evidence be held prejudicial against plaintiff, on what is here presented for review, as between plaintiff and the Power & Light Company, both because plaintiff abandoned his assignment of error against the action of the trial court in directing a verdict for the Power & Light Company, and because the issues of negligence and contributory negligence were decided against him by the jury.

The negligence charged which was submitted against the City was that "wide, deep ruts or holes had been permitted to form on both the inside and outside of each of" the rails of a street car track; "that the...