| Mo. Ct. App. | May 10, 1888
This was an action by the plaintiffs, as husband and wife, to recover damages for an injury received by the wife, occasioned by a defective and unsafe sidewalk, on one of the defendant’s streets. The plaintiff had judgment which the defendant seeks to have reversed on two grounds, viz. : (1) Because there was no proof that the plaintiffs were husband and wife ; (2) because the plaintiffs rested their case upon the fact that the city had actual notice of the defective sidewalk, and that the jury in their special findings found that the street commissioner, to whom the court declared notice had to be brought, did not have notice. ■
I.
The first ground assigned for reversal is in effect the objection that there was an unnecessary party plaintiff. This objection, since the fact did not appear upon the face of the petition, had to be taken by answer, and if it was not so taken it must be deemed waived. Rev. Stat., secs. 3515, 3519; Dunn v. Railroad, 68 Mo. 279;
II.
The second ground assigned for reversal is equally untenable. A sufficient reason for this opinion, without saying more, is that it is based upon a misconception as to the facts. The plaintiffs did not base their case upon the fact that the city had actual notice of the defect complained of. In one instruction the court declared the effect of actual notice of such defect had by the city’s street commissioner, but did not limit the plaintiffs’ right to a recovery to the finding by the jury that said street commissioner had had such notice. On the contrary, the court in another instruction expressly declared that actual notice had by the city was not necessary to the plaintiffs’ right to a recovery, and defined and stated the effect of constructive notice by the city of the defect complained of, from its long-continued existence. The verdict of the jury must have been found in accordance with the instruction •'*'*> mentioned.
Judgment affirmed.