George v. City of St. Joseph, 97 Mo. App. 56

George v. City of St. Joseph

97 Mo. App. 56 | Mo. Ct. App. | 1902

ELLISON, J.

— This is an action for personal injuries received by plaintiff as the result of tripping over a “water plug” placed in. a sidewalk in one of the streets of the city of St. Joseph. The verdict was for plaintiff against the city and for defendant Edelbrock. The latter was the owner of the property served by the waterpipe and it was occupied by one Shorrow as a tenant of Edelbrock. The water company placing the pipe in the street was made a party defendant, and a demurrer to the evidence was sustained as to it. Edelbrock had the connection with the house made and paid for it. The tenant Shorrow was not made a party. After the water plug was put in the street, the city graded the street so as to expose the plug.

(1) It is provided by section 5723, Revised Statutes 1899, that when a city of the second class, to which the defendant city belongs, shall be liable to damages by reason of the wrongful act or neglect of any person or corporation-, they shall also be liable to the injured party and he shall join them as defendants in the action.

Conceding that this section of the charter of cities of the second class is not controlled hy and is not within the reason of the decision in Badgley v. St. Louis, 149 Mo. 122, which declared a like provision in the charter *61of St. Louis invalid, there is yet no good cause for defendant’s contention that the judgment should be reversed on account of the fact that the tenant, Shorrow, was not made a party defendant. There can be no necessity of making the owner or tenant a party, if the case shows that they are in no event liable. The object of the charter provision is to prevent circuity of the action and multiplicity of suits in those cases where the city can be held liable for the wrongful acts of others who are primarily liable, and who would in turn be liable over to the city. Wiggin v. St. Louis, 135 Mo. 568.

In this case there is no doubt that it was the city’s act in changing the grade of the sidewalk which exposed the water plug so that it became dangerous to pedestrians. And that phase of the case was submitted in instructions for Edelbrock and the verdict-was for him. While the tenant could have been made a party defendant on the theory that he was liable over to the city, yet since a trial of the cause has developed that the city is the wrongdoer and the owner and tenant in no way liable, it would be useless, as well as unjust, to reverse the judgment and remand the cause for another trial in which no different result could be reached.

(2) The defendant city complains of certain alleged errors made in favor of defendant Edelbrock. If there were errors in his favor and yet the case is such as that the city is legally liable to the injured party, the judgment against the city should not be affected by that error. Wiggin v. St. Louis, 135 Mo. 569-571.

But as the defendant city has an interest in the primary liability of Edelbrock as between the two, it would have the right to make the point'on this appeal, if properly raised in the trial court. Ib. The only complaint here is made in the city’s sixth point wherein it is claimed that plaintiff’s third instruction wherein the general duty and liability of the city is set out, without referring to the liability of the defendant Edelbrock. We do not regard that as error. The instruction is without fault on all issues between plaintiff and the defendant city. The converse of all that was there *62said was put to the jury in the city’s instructions, and the city nowhere attempted to have Edelbroek’s liability stated. If we grant that in any case the city is liable to the action, then the additional liability of a co-defendant is matter more for the concern of the city than of the plaintiff, and such city has no right to complain of a failure on plaintiff’s part to set forth by instructions the liability of the co-defendant.

(3) The court appointed two physicians to examine plaintiff as to her injuries. They did so and were called as witnesses by the defendant city, when it was endeavored to show by the court’s written order that they had been appointed by the court to make the examination. We do not regard this of sufficient importance to reverse the judgment. It would not have been error to have allowed the proof, and why plaintiff would jeopardize her case by objecting to such harmless proceeding we do not know. At any rate, we think ill. could not result and we rule the point against defendant.

(I) It is provided in the. statute (sec. 5724, R. S. 1899) governing defendant city: “No action shall be maintained against any city of the second class on account of any injuries growing out of any defect in the condition of any bridge, street, sidewalk or thoroughfare in said city, unless notice shall first have been given in writing, verified by affidavit, to the mayor of said city, within sixty days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city.”

It seems that plaintiff gave two notices to the city, one just after the accident and one just before the expiration of the sixty days limited by the statute. The latter referred to the same injuries mentioned in the first notice and then enumerated others as resultirg from her fall. The defendant city objected to the notices, claiming that they did not comply with the statute; and that plaintiff was bound by the first one given. There is no merit in either objection. The object of *63the statute was to require a notice of the time and place of the accident and its general nature and the attending circumstances in a general way, so that the city could have opportunity for examination and inquiry and thereby avoid imposition by false or exaggerated claims.

It was not intended to confine the injured party at the trial, to just the hind and nature of injuries which may in good faith be mentioned in the notice. There may be latent injuries unknown to the party and many additional injuries or consequences may develop out of those which are known after the time limited has expired. It was not intended to confine an injured party, who has acted in good faith, to the specific injuries mentioned. In this view it is apparent that there could be no good reason for objecting to the second notice, for though it may have been unnecessary, defendant should have welcomed it rather than make complaint.

The court admitted in evidence two ordinances providing for paving and grading the street in which the water pipe was laid. The defendant city complains here that this had no tendency to exculpate Edelbrock. But at the trial the only objection made was the very general one that they were ‘ ‘ incompetent and irrelevant.” Such objection is of no avail if the evidence offered is admissible for any purpose, and they might well have been received against the city. But aside from this, it is clear from the nature of defendant’s objection that it was only founded on a remark of the court as to that part of the ordinance for the paving and not the grading. The objection was ‘ ‘ to that part. ’ ’ However it may be, we do not find reversible error.

Instruction “ K ” was properly refused. It stated broadly, as a matter of law, that no verdict could be rendered against the city unless one was rendered against Edelbrock. The facts developed in evidence did not justify such instruction.

There were other objections made but an examination of them has satisfied us that they do not authorize our interference, and we affirm the judgment.

All concur.