*1 520 Ewing v. Shannahan, 188, l. c. we
said : “There is here a perfect, completed-, being trust; and executed so it is immaterial voluntary- whether is a to be deemed trust one or made a being consideration, perfect valuable a completed trust it Now, must be enforced in . . either event. . completed only power trust can without reservation of of revocation ’’ by be revoked all of the beneficiaries. consent of January voluntary with- completely
The trust trust executed power being out the consent of reserved, revocation change the number beneficiaries was not make the obtained to Company. by Investment shares held the trustees in the Jeannette was void. correctly February trial trust that the held trust by created February instrument dated attempt change was an January trust and not an attempt create a new trust. only In the first there were shares If Company. the Jeannette Investment there created two dif were trusts, necessary ferent then have been it would to have had shares in fact the trustees in Feb shares. No were transferred Huttig, Mrs. in ruary. by There a transfer trustees were previously trustees dividually. issued to the The certificates forty book, canceled; a certificate pasted back stock certificates Huttig, individually; new shares issued to E. Annie sixty to the shares. were issued trustees for trustees by to the given the trial court AYebelieve the instructions were correct. on their cross-action is not entitled appellant held that Inasmuch as we have will her Huttig, Mrs. either trust created estate share to decide necessary us January, it is by the trust of or of laches by the defense is claim appellant’s barred
questions decree 27, 1922. The March executed his release concurs; J., Ellison, P. accordingly affirmed. trial court sitting. Leedy, J., not City Friend, W. His T. Next Imes, Drake, Kansas
Harold Corporation, Appellant. W. Company, Service Public (2d) 75. August Two, 12, 1933. Division *2 c§ Groner, Charles L. Watson, Carr Whittaker Barnett Ess^ appellant. *3 & Atwood, respondent. WicJcersham Chilcott for *5 COOLEY, injuries personal C. This is an for sustained action plaintiff City, riding motorcycle while in Kansas public on a street Missouri. $12,000 Plaintiff judgment recovered and defendant appealed. Plaintiff, Har- February accident occurred 1928. Drake, old years riding was then about seventeen He was on old. motorcycle driving seated behind Norman Brown who was one machine. His motorcycle pro- evidence to show that the was tended ceeding northward on Summit Street between the tracks of defend- ant’s railway double track street pave- when it ran a hole in into ment, causing plaintiff causing to lose his balance and heel caught in motorcycle. the wheel injury of the He received a serious which, resulting because of infection, amputations necessitated two leg, being last one the hip. point near No made here to the amount of the verdict the plaintiff’s character extent injury and suffering need not operated be detailed. The defendant system street ear City in Kansas under its franchise and the city required ordinance was pavement to maintain the at alleged vdiere the accident happened. obligation is to have Its so disputed. charged do is not Negligence alleged is in defendant’s pavement question failure to maintain street point at the reasonably safe condition for travel thereon. judg- The case has been tried twice. first trial resulted in a ment for appeal by $5000. On defendant to Kansas City Appeals judgment Court court reversed the and re- manded the case because trial proof court excluded offered justice defendant certain peace of a pleaded as a plaintiff’s defendant bar to action. The Appeals Court of opinion reported (2d) page at 1066. plain- Thereafter supplemental petition upon tiff filed an amended which the cause proceedings was tried the time. The supple- second relative to said mental first call for consideration. The suit filed in the Circuit Court of County April Jackson being 1928. Plaintiff a minor, T. regularly W. Imes was appointed
by that court next friend for purpose instituting prosecuting the suit which brought then by the same attor- neys prosecuted who have since it. On day the next *6 in through attorneys, filed
mother, ’Brien, suit Stella same. Thereafter, on June plaintiff’s for loss of services. court the same justice City, in peace court Kansas defendant 18, 1928, in a of the as next friend for procured appointment of Stella O’Brien suit-by said Stella O’Brien filing plaintiff by plaintiff and the damages against for on account of the $100 friend defendant as next justice’s The by plaintiff in the accident. record injuries suffered judgment plaintiff rendered for in said sum of and shows suit filed judgment by entered of record said Stella satisfaction of the $100 and day. friend, attorneys plaintiff O’Brien, the same The next kept complete suits in the circuit court were in Mrs. O’Brien justice peace proceedings of the court no of the ignorance being attempt plaintiff’s to settle claim was made intimation judgment justice’s court contemplated until after the or was plaintiff satisfied of record. Neither nor Stella had been entered by represented or advised counsel in the court justice O’Brien proceedings by except counsel for the defendant who acted for both parties, pleadings justice filed all the and furnished the prepared and his counsel was forms for record entries. not the counsel [Said representing now defendant The on the evidence action.] the circuit hearing of this branch of the case tends to show court by plaintiff both and Stella O’Brien were led defendant to be- against lieve and it claim did believe that was her individual defend- being ant plaintiff justice and not that of that was settled justice. court. No evidence was heard the. jus- judgment
After the rendition satisfaction of said circuit tice’s court defendant filed court an amended answer judgment justice pleaded in this case in which it said of the of the peace plaintiff’s as a bar to action. As we are advised by reply opinion Appeals, pleaded Court of of the justice’s judgment tending procured show that the facts void but did not ask it defendant’s fraud and therefore to have set alleged nor, proof seems, appears did he offer of the fraud. It aside court, plaintiff’s objection upon trial to defendant’s offer of judgment evidence, in' justice’s Ap- it. Court excluded face, justice’s judgment, being regular peals held that the its parties prosecution and a bar plain- was conclusive on to the aside,” and that the set trial court had tiff’s action “until erred in judgment reason the excluding it, for which of the circuit court was remanded. and the cause reversed
Following reversal the leave of court tendered supplemental petition controversy. court the now in the circuit filed equity, challenging first validity is in counts. It two alleging showing facts justice’s its fraudulent that it be set aside. praying The second count is af character damages of action substantially cause law, pleading original petition. objected, Defendant unavailingly, pleaded filing supplemental then, unsuccessfully, also out; plead moved have it stricken It declined to further to the again pleading jus- first to the count count, filed answer second *7 plaintiff’s judgment bar of cause of action tice’s stated proceeded try count, second and when the'court first count objected fruitlessly to the introduction evidence thereunder and hearing further in the on first count. participate' declined to said on first at heard evidence said count and court conclusión gave plaintiff, interlocutory thereon found the issues thereof declaring justice’s judgment fraudulent and void and judgment judgment trial final proceed to on the ordered that the cause though justice’s judgment had petitioh not second count of judg- entered final verdict thereon court been rendered. After justice’s setting case, aside the on whole ment plaintiff on the verdict. petition
I. No
count
contention is made that either
sought
sufficiently
fails
if the
plead
authorizing
facts
the relief
by
.brought
matters
case
pleaded
the'first count can be
into the
supplemental
urged
petition
circumstances, nor
under the
is it
evidence introduced under said first count does not sustain
finding
Appellant’s
court’s
It
sole
unquestionably
thereon.
does.
court’s
relating
supplemental petition
contention here
to the
and the
a
brings
action
into
case new
by
thereon is
said
count it
first
existing
filed but
the suit was
different cause of action not
when
upon
thereafter,
appellant
which
asserts
based
facts which occurred
original
by
suit.
supplemental petition
cannot'
be done
judg
alleged
appellant
had
fraudulent
connection
concedes that
plaintiff’s
the circuit
filing of
suit in
prior
ment been rendered
to the
equity
joined
in his
count
properly
he
have
could
That
damages.
he
law
his
with one at
for cancellation thereof
decided,
v. Floesch
in Robison
by this court
correctly
do
could
so was
[See,
L.
1239.
332, 20 A. R.
W.
Co.,
236 S.
Construction
245, 51 W.
also,
Blackwell,
Courtney v.
668.]
may
It
be conceded
contention.
agree
appellant’s
We do not
with
which did
action
not
cause of
recover ón a
cannot
action
the cause of
abandon
that he cannot
when he sued and
exist
different
another and
petition substitute
by supplemental
sued
But, as
filing of
the suit.
since
that has arisen
cause
action
may bring forward
fully hereinafter, he
out more
pointed
will
strengthen
or reinforce
occurring facts' that' tend
subsequently
plaintiff .In this ease
pleaded.
originally
cause
action
recovery upon
new
seeking
petition asserting
supplemental
his
What
originally pleaded.
from
different
or one
action
cause
judgment for his
recovery of a
was the
sought petitions
both
he
injuries
personal
sustained,
claimed,
as he
because of defendant’s
alleged negligence. The real cause of
action
which
relied was
petitions.
the same in
both
not,
Plaintiff did
the first
count
supplemental
petition, attempt
up
to set
a new cause of
action
recovery against
as a basis for
defendant,
thereby
sought
only to remove a barrier
attempted
interpose
which defendant
be-
him
original
tween
objective,
a barrier that defendant
itself
wrongfully
created after the
very
institution of the suit for the
purpose
barring
plaintiff’s
progress.
further
Had defendant plead-
ed
bar of
brought
originally
release,
action as
“a
com-
position,
discharge
settlement or other
of- the cause of action sued
on,” less formal
judgment,
and solemn than a
plaintiff, by
express
of Section
1929 (2
terms
Revised Statutes
Mo. Stat. Ann.
1036),
p.
might
challenged
validity
have
its
procure-
for fraud in its
by reply
ment
jury.
had the issue
determined
The statute
releases, etc.,
makes no distinction
fraudulently
between
obtained
be-
brought
judg-
fore suit
and those obtained thereafter. Whether a
*8
might
challenged by reply
ment
thus
be
we
In
need not determine.
any
authorizing
782,
said Section
jury
event
submission to the
of the
procuring
pleaded
issue of fraud in
a release
as a defense does not
deprive
right
plaintiff of the
invoke
power
equity
to
the
a
of
of
court
alleged
judgment.
cancel the
fraudulent
|
to
Roberts v. Central Lead
Co., 95
App. 581,
Mo.
69 S. W.
And see
v. Wood-
Woodward
630.]
ward,
241,
49
1001;
S. W.
Co.,
Robison v. Floesch Constr.
supra. And
far
procurement
so
as concerns the time
its
can
of
we
why,
judgment
pleaded
see no reason
when such
bar
as a
to a cause
maintainable,
plaintiff may
of action otherwise
the
not in
same
invalidity
ask
adjudged
suit assert its
to have it
void .because
procured by fraud,
Why
therefore no bar to his action.
have to
resort to the
a separate
only purpose
circumlocution of
suit the
of
concerning
develop
adjudged
which would be to
and have
the truth
justice
pending
why,
a
defense tendered
suit? Or
reason,
should the
this, brought
in a situation such as
about
by
defeating
wrongful
purpose
defendant’s
conduct for the
measure,
action,
required
yield
be
to
the defendant a
wrongdoing by dismissing
suit,
at
least,
paying
success in its
bring
costs thereof
perhaps suffering
disadvantages,
other
procure
a new suit to
judgment
sought
by
same
he
the first suit?
By statute,
825,
(2
Section
Revised
1929 Mo. Stat.
Statutes
p. 1101),
Ann.
party may
a
allowed,
motion,
to file an amended
supplemental
or
petition,
reply, alleging
or
facts material to
answer
cause,
praying
any
or
relief,
judg
other or different
order or
ment.
In Childs v. The Kansas City,
Ry.
J.
Co.,
414,
St. & C. B.
117 Mo.
436,
known equity as many “and practice sections of our act are such proper it is look to equity to pleading, taken from rules by a ascertaining what statute means purpose rules for the applies to supplemental petition.” It also the statute was held legal uniformly equitable Section 825 well as actions. Said has been so construed this court. 421, 28 Am. St. Adams, Nave v. S. W.
Rep. by sup- bring is permissible is stated that it forward plemental petition have.transpired institution since the facts suit, may the cause strengthen the action, “which tend or reinforce ’’ This pleadings or defense stated in before the court. plain- principle appears to be well In the case established. Nave Shortly enjoin tiff there- sued a deed of trust. enforcement of parties suit, after The Bundy, another West v. was instituted. v. parties Bundy. Nave v. were v. case of Nave Adams West Bundy until Adams was continued from time time West v. in West by supplemental petition been decided. Then applica- brought controlling Bundy in as a fact to sustain injunction. given tion for the trial permanent It was effect permanent affirmed granting injunction court in and this court judgment. al., et applied principle the same Cohn Souders procure perma 413. there Plaintiff sued injunction restraining nent certain land under deed o£ the sale of trust. After suit was filed the defendants sold other land covered personal property the deed of included trust released some also in said Plaintiffs in which petition instrument. then amended filed they alleged subsequent money such sale and release and that together realized from sale prop with value of the released erty satisfied debt deed of secured trust. It contended supplemental alleged the amended a different cause *9 contention, of saying purpose action. This the court denied the original of petitions same, viz., both the and the amended was the injunction permanent restraining to obtain a the lot sale of the under trust; sought the same deed of that the relief was to the same confined subject matter and was the each; in alleged same that the new facts were not inconsistent with alleged original those in petition and filing had suit, arisen since the of recognizes and that our statute right bring arising to before filing the court matter after of petition. cases, Ry. Co., recognize Other such v. supra, as Childs right bring of a to supplemental into the case petition occurring filing matters after the the suit and which show a con wrong alleged original tinuation of the petition. For further examples permissible scope of the supplemental plead and amended ings, Bernard, 300, see Graef v. 503; 162 Mass. 38 Montague N. E. Ry. v. M. & (Mo.), K. Interurban Co. 233 189; S. W. Fire Assn. of Philadelphia Strayhorn (Tex. App.), 901; Muglers’ v. Civ. 165 S. W. 530 916; Y. Rio Grande York, Supp. 115 N. City v. of New Iron Works 54 97, 215 30 Ct. 266, Sup. States, U. S.
Dam & Irr. Co. v. United 83. Co., 453, 92 S. W. 190; L. v. Wab. Railroad Mo. Ed. Walker v. principle stated Nave in this case invoked Defendant justice’s judgment a bar to Adams, supra, pleaded the when it effectively attempts right deny plaintiff but it action to clearly may dispute plea. to That it not We do. think right proving pleading of action and to maintain cause judgment bar void and interposed that the as a was and fraudulent adjudged. correctly having permitting it so The trial court ruled supplemental petition refusing to be filed and to strike it out. Appellant Childs support point cites its contention on 519, Railway, App. Clothing Steidemann, v. supra; Co. v. Mo. 220; 589; v. Heman 31 S. W. Heard Glann, 799; Dist., Ritchey, Payne 87 Mo. v. School 438. App. 415, Jennings Cherry, 257 S. W. distinguishable Those the facts in our cases are from this case on Jennings judgment appellant’s do not sustain contention here. The case, ejectment. however, requires It somewhat further notice. defendants, justify petition opinion. set not out By reply possession, upon judgment. their relied deed and plaintiffs pleaded judgment were collusive and the deed and fraudulent, they their apparently but did offer amend judgment set aside. The or ask to have the deed canceled been under shown the deed could not have held that the facts adjud-icata fact af judgment and that the res fraudulent ob fecting ejectment suit, further issue involved served : departure pleading;
“This was a ‘the statement of matter which pursuant previous pleading party is not which same fortify support reply replication it. The or does not must not complaint, petition declaration, depart from the it follows ” up reply.’ new cannot be set that the cause action [301 Mo. l. c. 332.] sought pleading
Had to amend their plaintiffs in that case appropriate plea validity attack of the deed and plaintiffs’ relied the defendants as defense cause they do so. We do not would have been action entitled we would obnoxious the rule for- amendment have been think such changing the cause of action. amendments bidding Appellant contends reversible error was II. committed *10 trial, Br.own,' given at the first testimony of Norman permitting exceptions The trial bill then taken and filed. from the to be read began on count was scheduled on the second sufficiently Kansas appears that Brown April 1932. It resided subpoenaed City, some miles from the courthouse. He was ten City April appear Kansas on nineteenth to on the twentieth be present. It does but when called as was not to be a witness found appear present not that knew Brown was not or his counsel they they ex- when the was called for trial or if is clear ease did pected employed him as chauffeur appear. to Brown was at the time line. Outland, living City for Dr. in Kansas Missouri-Kansas near the Imes Mr. appear April When Brown failed to when called on diligent him, among places made to other inquiry search and locate subject, going was Imes, testifying to Dr. on the Outland’s home. whereabouts permitted to what he was told as to Brown’s state object- lived, family members with Brown defendant whom with- ing, successfully, hearsay. permitted was that it would be He four gone about objection testify out that he to a to then Kansas) he (in “where I miles west of the line State understood ’’ City was, Returning Kansas him was to locate there. unable Dr. tell Brown to come evening left with that he word Outland latter returned. morning, twenty-first, if the the courtroom Brown twentieth, had an attachment issued also, Plaintiff on show- that officer sheriff, which was returned to the delivered the witness. ing he for and failed had searched find When court convened the twentieth. plaintiff did not his case on close still absent. morning trial Brown was following to resume the him. or from nothing heard more of Plaintiff his counsel had made testimony, plaintiff using his former Thereupon, as basis made on as to efforts showing have summarized which we offered his attendance procure to locate him twentieth Defendant exceptions. bill of testimony from the former read jurisdiction is within man objected ground that “this on the objection subpoena.” offered Counsel who under court and replied that was if Brown he knew where was asked ease in this I he was from the record did not “but know where he evidently, month,” meaning, from day of this the nineteenth City nine- showing subpoenaed Brown in Kansas on the “I coun- thereupon teenth. The court feel I have insisted on said: doing be utmost, sel and the sheriff’s return shows he cannot located,” objection. and overruled the
(a) against objection We offered defendant prima showing made sufficient facie authorize the transcript. Objections specific admission to evidence must be grounds and are to- determined upon stated therein. [See (Mo.), (2d) 1077, State v. Click and cases cited.] objection jurisdiction only was that the witness was within offered subpoena, suggestion under the court he wa.s jurisdiction being based, within court’s as defendant’s counsel subpoenaed solely the fact that he had in Kansas admitted, been *11 City. objection did not refer to the fact that the witness resided in County .Jackson part or to a on failure the to make a showing statutory grounds of other using deposition reading for or from the bill exceptions. made, Plaintiff found, as the had court diligent unavailing but produce efforts to locate and the witness. suggestion There is no the that thorough record such efforts were not good and made in intimation, faith. There least, was at the offered, evidence that he was out of the State. Plaintiff had invoked jurisdiction bring the court’s power by the witness in attach- ment and the sheriff had been unable to find him. Neither indicating nor might the court had information that it would worth while to any issue an attachment directed to the sheriff of county other than Jackson. In'these circumstances we justified admitting court transcript. was In 541, Gaul v. Wenger, appellant, cited witness had expected deposition go Europe. stated his that he At the trial deposition than later was more three months was offered and any showing. admitted without further statement court held the go insufficient to show that he or that he went and had not re did turned, might satisfied, said “the court have been after such upon oath, very slight declaration actually with evidence that had he gone and that [See, also, he had not returned.” Averitt v. Met. St. Ry. Co., 265, App. 131 W. S. 752.] In Co., O’Brien St. Louis Transit 212 Mo. chiefly upon by appellant, relied objection was that had there showing been no testimony the witness whose preserved in a bill exceptions offered, not a county resident which the appears trial was had. It any there showing was no party offering kind made transcript having, for not present. witness (Mo. In Francis v. Willits App.), (2d) objec- challenged tion offered failure show that the witness was not forty within miles of trial, statutory ground using for transcript, appear and it does not that an attachment been unavailingly for issued the witness. We think that case by appellant distinguishable other cases cited are from the instant case. determining instant our case this point talcing we are not
into consideration evidence heard the court of upon its own motion hearing of defendant’s motion for new trial. The not motion.was upon at trial term but was succeeding acted continued to the At-that court called Brown term.- before it and heard his time.the trial, from explanation his absence from which appeared April, day twentieth appeared that on the he have should in fact subpoena, answer he was in.Kansas business returning night got message he employer; left com- morning, attempting at appear for him to next and the finally ply therewith, wrong building went first mistake to the proper building go arrived at the too late into the court- and did room. There was such no foundation trial for the motion new hearing Taylor (see 63 S. Ry. Co., C. C. & L. C. St. (2d)W. *12 cited) and, propriety moreover, cases we think the of the admitting corurt’s in transcript action must be determined the upon the appearing facts at the time it was introduced. [Francis Willits, supra.]
(b) In considering over- objection we have not on its merits respondent’s looked in motion contention that it is preserved not for new which we present review, trial so as to it in a contention are to there is merit. inclined only could allegation in the for new trial that motion admitting improper,
have to it reference is: “The in court erred illegal incompetent testimony over plaintiff, part of objection and exception allegation of That seems defendant.” to us to strike at the competency testimony than itself rather at the manner which it was dif introduced. There is a material objection ference between an to incompetent evidence as an ob jection as to the competency testify, of a witness been and it has allegation held that an in a motion trial for new such that here a.s is not present sufficient to objection for review competency an to the give testimony. Avitness Hurst, Admr., Howard v. [See 163 App. 496; S. W. Camp Alexander v. Sov. Woodmen of World, App. 2; Big Drainage 186 S. W. Tarkio (Mo. Dist. v. App.), Lamar such latter ease 727.] allegation assign in the motion for new trial was held insufficient to overruling objection error in an trial of made at that tax books fered in evidence not had not been returned had to the collector and required assignments been by statute; verified as that while may general terms, Wampler motion be as held this court subsequent Railroad, may add, 908 (and, 190 S. W. we cases), yet general objection must made point such terms cover the appellate court, points urged Avere and that the for reversal McMenamy’s In In not fair intendment embraced the motion. re 126, 127, 662, 671, in effect Guardianship, 98,Mo. it is objection competency chal that does not held to the of evidence lenge competency AAdtness.
(c) transcript testimony if Even was errone Brown’s prej ously persuaded are its admission admitted Ave not that descrip udicial. as the location and Brown corroborated motorcycle pavement as to the fact tion of the hole explicit than testimony was more ran into it. Brown’s somewhat hole with reference that of as to exact location of the is not north, which its from the next street intersection distance material, dimensions, possibly as to not seem its also does thht important. testimony witness for Plaintiff’s own and that of another day him accident showed who the hole the after the saw examined clearly point car at a between between street tracks that was continuing joined pavement two streets where concrete cross where point at Brown, as pavement, cobblestone did repair. duty keep pavement admittedly it was defendant’s existence show the Brown’s tended to other than Plaintiff’s evidence least two prior to and at months point for several hole at suit was more after for three weeks or months the accident and after showing Photographs testify point. brought. on that Brown did introduced place were street at that the surface of the the hole and they photo- were objection and it seemed without conceded there- by plaintiff and the street surface graphs of the hole described as we by defendant and under- of them offered about. Some were Defendant offered been taken at its direction. stand the record had to the fact that the evidence to hole no contradict accident, plain- before after the as shown there and been by plaintiff Brown’s. When tiff’s evidence other than examined *13 injury about two months after his three weeks after suit and repairs recent in or been filed there were no indications of the street question If the in w>asnot or of other holes thereabouts. hole there reasonably travel, not render not safe was such to the street being by apprised after of defendant had time contention suit, to filing place to so as be able of have examined to any produce to that effect. such or evidence evidence No evidence by tending plaintiff, disregarding that to contradict offered Brown’s testimony, was offered defendant. merely evidence which cumulative
The erroneous admission of is support ample it is evidence to when without there uncontradicted apparent judgment and it would been the is that the result have erroneously admitted, justify will without such evidence not same 1929, 1062, p. 1352; R. S. Stat. Ann. O’Keefe reversal. [Sec. 1144; Rys. App. 613, 623, Shouse Co., v. United Q. (2d) 530, 534; v. O. (Mo. W. Felhauer Dubinsky App.), v. 38 S. 799; 795, 177 W. Lane Co., App. 191 Mo. S. K. C. & Railroad Rodney McLaughlin, 97 Mo. Lane, 99; applicable in We this rule 426, S. W. are inclined 726.] and of Brown’s this admission of error, case that the circumstances judgment. of if not call for reversal testimonjr, even does Instruction, plaintiff’s principal Appellant contends that III. upon the defend erroneous, imposes it Í, that prejudicially No. an ab keep pavement ordinary duty care ant the to use condition, reasonably safe solutely than in a rather safe condition making reads as effect The instruction insurer. thereby follows: jury duty court instructs the it was of defendant
"The Company City pave the streets between 'Kansas Public Service ordinary and between rails thereof and to exercise care its tracks good repair and keep the same condition so that the same would upon any part street there- in nowise obstruct or hinder travel or said, might any upon track tracks and that which or be located City part Company on the of Kansas Public Service failure observe duty negligence. perform and would be you "You are if therefore further find and believe instructed February that on about Summit Street from evidence or was place public time evidence street at the and referred City, Missouri, and tracks and of Kansas that defendant’s street car paving time thereof laid thereon and therein and at said were cavity therein cracked there was a or a hole was broken and and car track at the northbound ear track and the between southbound Twenty-fifth between Street place referred to evidence fifty Twenty-sixth seventy-five and hundred and Street and between Twenty- with said Summit Street said feet south the intersection of find, hole, any, if Street, you broken or fifth if so said feet along the surface of said street for several extended find, you and that deep, inches if several so north south dangerous point was rea- reason street said said at thereof traveling ordinary public there- sonably for the use while safe safety, ordinary for their own and thereover in the exercise care in said existed a number of so, condition street if and that said enough long prior defendant thereto that days before said date and ordinary would have known thereof the exercise care knew facts, before aforesaid, you all the if them to facts find ordinary injured, so, the exercise if time *14 dangers, if and repaired care to have or conditions remedied said being any, thereby plaintiff could prevented before said time and have injured, so, ordinary if care and that defendant failed to exercise ‘negli- thereby (as term guilty negligence so to do and of was so, on gence’ herein), is that said in other instructions if and defined February northwardly Summit 1928, plaintiff riding on said was motorcycle so, and that Street on a if place described, at said above so, hole, if motorcycle then and ran the aforesaid there said into plaintiff jarred right foot caused thereby and shaken and was if motorcycle, caught entangled of said be in the rear wheel so, so, his said plaintiff injured, and that if that thereby was any, injuries, if any, directly negligence, if from said resulted part defendant, you find, of at all if was so for his ordinary times care referred to evidence the exercise of 536 against safety, so, your if for
own verdict must be then ours.) (Italics defendant.” told the court 2, given plaintiff, for By instruction, another No. “such defendant, meant “ordinary care,” applied as jury pru- ordinarily careful usually exercised an care as would be referred circumstances as those person dent under same or similar applied term as evidence,” appropriately defined the part of any plaintiff, “negligence means failure on and that criticism respective parties ordinary such care.” No to exercise Instruction offered of paragraph Instruction No. of the second of objection No. 3. No. 3. paragraph The first Instruction is to the granted pursuant The passed franchise defendant ordinance and the require keep thereto its tracks pavement defendant between good “in first repair,” etc., language condition and said we paragraph They by plaintiff pleaded the instruction. were duty to pleading the effect of such was to show defendant’s maintain the street basis rather than to state thereof as the violation recovery. “in charges negligent defendant suffering keep permitting said . . hole to exist . and in ing public reasonably said street ... condition for safe done, use.” treat therefore, appellant We shall insists should duty in as would premises standpoint defendant’s from the same duty govern city holding only if defendant, were defendant con using ordinary reasonably safe in a keep care to street instruction, standard, dition. paragraph Measured broadly. standing alone, duty probably defendant’s too states [See 370; (2d) Clardy (Mo. App.), v. K. C. Pub. Serv. Co. 46; Cooper City v. 264 S. Albritton (Mo. App.), W. Caruthersville cites City, App. 574, Appellant v. Kansas 188 W. S. 239.] cases others, mostly servant those cases and a number of master and general only stating bound terms the doctrine that a master is ordinary reasonably to use care to furnish servant a safe reasonably to work or appliances; safe rel. also eases such as State ex Long Ellison, 984, holding that where the plaintiff’s instruction, purporting to cover the whole case and direct ing a verdict finding hypothesized facts, ele omits an negligence ment of recovery, essential to the omission is not cured given correct defendant, being instruction then irreconcil there able conflict in the instructions. point under consideration bar, the case at however, is not the same as that ex decided State rel. v. Ellison. Bradley Ry. Co., C. M. & St. P. W. 39 S. ,of 763, given instruction was plaintiff, part which the first jury
told the that it duty ordinary the defendant’s to use care *15 diligence and provide to the “safe work.” The subsequent part instruction, however, the pointed facts out the which the liability. stated part would create court said the first The done, duty broadly defendant’s too been condemned, and as has often instructions, practice stating the in propositions abstract law subsequent quali- but explained, the instruction part held of the fied rendered harmless part. and in first the error 540,
In (2d) City, 791, Munden Kansas 38 W. App. S. directing find- instruction, No. on a plaintiff, a verdict ing duty too facts hypothesized therein, of the defendant’s stated of; broadly complained in paragraph, the first as does the one here directing subsequent instruction, portions it was held of the verdict, facts be found to to a cured entitle the opinion error. The Commissioner written same learned Clardy Clardy who did not wrote the In the the court case. case instruc- paragraph or not first of the decide whether the error cured, tion was so because other fatal error and therein. principle Bradley instructions applied stated case was
containing similarly general in Garard v. Manu erroneous statements 767; 242, 105 S. Co., facturers’ Coal & Coke W. Schulte Carmichael-Cryder (Mo. v. Mis App.), 181; Co. S. W. Hutson (Mo.), (Mo. App.), 216; souri Stair Co. Schroeder v. Wells 811. cases, no Clardy, Cooper supra, Albritton there were complained other in- curative directions the instructions of or in structions, state- qualifying explaining general the erroneous correctly telling jury the facts to found to create ments and case, general statement liability. In the instant after the abstract instruction, re- paragraph paragraph the first second quires jury to find facts as to the of the street certain condition reasonably “dangerous reason thereof it was and not or should (in conjunctive) safe” that the defendant knew have ordinary care to have known thereof time the exercise of guilty thereby repaired it, failed to exercise such care instructions), (as negligence is negligence term defined other liability required to establish etc. facts to be found o? correctly part in that duty are set forth measure of defendant’s jury they fin what must purports which to tell the instructions thus paragraph The first is plaintiff. a verdict for order to return therein, error, if rendered explained qualified and error it harmless. second argues “negligence” used that the word Appellant jury refer may understood have been paragraph refers or paragraph. We in the first “negligence” mentioned paragraph, negligence described second clearly to the refers de- and as required be found predicated upon the facts therein misleading. the instruction was Instruction No. and that fined in *16 record. The no reversible error there is opinion In our right clearly party. for the appears to be verdict CC., Fitzsimmons, concur. is Westimes affirmed. the circuit PEE CUEIAM : n adopted foregoing by Cooley, C., opinion concur; J., Ellison, Tipton, J., P. opinion as the of the court. sitting. Leedy, J., not (2d) 727. Appellant. Raines,
The State Olen August Two, 12, 1933. Division