Vandevere v. Kansas City

173 S.W. 696, 187 Mo. App. 297, 1915 Mo. App. LEXIS 272

• Court: Missouri Court of Appeals
• Decided: February 15, 1915
• Status: Published

Opinion

TRIMBLE, J.

Respondent brought this action for loss of the services of his wife and for expense of medical attention to her, alleged to have been caused and rendered necessary by the' negligence of all the defendants.

The wife was struck and injured by a billboard which a gust of wind blew down upon her as. she was walking along the sidewalk on the west side of Walnut street between Eleventh and Twelfth, in front of the property known as 1122 Walnut street in Kansas City, Missouri.

The original petition was against the following named defendants, Kansas City, Lloyd Medes, as owner of the building being erected at the place where the billboard fell, Taylor & Winn, copartners, said to be the contractors erecting the building, and Majestic Theater Company, a corporation, the erector of the billboard. Summons, was issued and service seems to have, been obtained on all defendants. Thereafter, plaintiff dismissed as to the Majestic Theater Company. Whereupon the defendant Kansas City filed a motion to set aside the order of dismissal and also filed a motion to require the Majestic Theater Company to be again made a party defendant. If any action was taken on the motion to set aside the order of dismissal, the record does not show it. The motion to require the Majestic Theater Company to be again made a party defendant seems to have been sustained. Thereupon, plaintiff, apparently in obedience to that order, filed an amended petition in which all the defendants in the original petition were made parties, including the Majestic Theater Company, and the Taylor-Winn Construction Company a corporation was added. Summons seems to have been issued on this amended petition for the Majestic Theater Company but the record proper recites that the sheriff was unable to obtain service on that defendant.

Thereafter, the defendant Kansas City filed answer charging plaintiff with contributory negligence and setting up that the billboard was blown down by a violent storm and was an act of Gfod. Presumably the other defendants, except Majestic Theater Company, filed answer. At any rate the cause went to trial with all the defendants appearing and being represented, except the Theater Company.

At the close of the evidence the court sustained separate demurrers offered by each appearing defendant and was about to instruct the jury to find for them, when plaintiff took an involuntary nonsuit with leave to move to set the same aside. This motion was after-wards filed and sustained. Whereupon the defendant Kansas City appealed.

The negligence charged against the defendants was in maintaining the billboard, and in permitting it to be maintained, along and on the inside or west portion of the sidewalk near the property line in an insecure and unsafe condition by reason of which it fell on plaintiff’s wife and injured her.

The appellant claims that the Majestic Theater Company, the constructor of the billboard in question and for whose business it was maintained, is primarily liable for the injury, and the city is entitled to have that company made a party defendant and continued in the case as such under the provisions of section 9801, Revised Statutes 1909; and that this section makes the dismissal of the case by plaintiff as to that defendant work a forfeiture of plaintiff’s right to- proceed against the city. This is on the theory that since no service can now be had on the Majestic Theater Company, plaintiff, by dismissing the case as to it in the original petition, has allowed it to escape so that no recourse can be had by the city on it. It might be observed here that there is no evidence in the record showing that service can never be obtained on the Theater Company; all that is shown is that up to a certain date the sheriff “has been unable” to get service thereon.

But, aside from this, appellant went to trial without objecting to the escape of the Theater Company or to the fact that no service had1 been obtained upon it after it had been again made a party defendant. And, in so doing, appellant waived the right to have the Theater Company a codefendant with it in accordance with the provisions of section 9801. [Mancuso v. Kansas City, 74 Mo. App. 138, l. c. 149.] Tt is claimed that there was a motion to stay proceedings filed by the city which the court overruled, but there is no such, motion appearing in the bill of exceptions nor any exception to the action of the court thereon.

If it he said that the motion to require the Theater Company to be again made a party defendant was a presentation of the. city’s right under section 9801, certainly the sustaining of that motion and the filing' of an amended petition by plaintiff making the Theater Company and the Construction Company parties- did not prevent the city from thereafter waiving its right to have the Theater Company made a codefendant and retained in the case. When the amended petition was filed, the case stood on it and there was no dismissal of the amended petition as to the Theater Company. There was no service on it, hut, instead of that being a ground for final judgment in favor of the city, the court could set aside the nonsuit in order that service might be had on the Theater Company or for the disposition of the motion to set aside the former dismissal as to it. Appellant went to trial under these conditions without protest or objection and it cannot now object to the court setting aside the nonsuit in order to give an opportunity for such procedure to be taken as will enable a proper final judgment to' he rendered.

It is urged that there is no proof that Walnut street is a public street of Kansas City. But the case was tried by both sides as if there were no dispute over that issue. The evidence was positive that the injury occurred in Kansas City on Walnut street between Eleventh and Twelfth streets. The photograph in evidence showed a well used, prominent street, and all parties referred to the place where plaintiff was hurt as a street. Both sides assumed the street to be a public street under the control of the city. [Woodson v. Metropolitan St. Ry. Co., 224 Mo. 685.]

It is also said there is no evidence of any negligence on the part of the city. We think there is sufficient to justify the submission of the case to a jury. The billboard was ten feet high and twelve feet long. It was set up in the street or sidewalk and it and the fence against which it stood was used as a barrier to keep .pedestrians away from the front of a building in course of construction. It was merely “tacked” to the fence or building by a small strip, which was entirely too small for such a heavy' object of such wide area exposed to the force of the wind. The gust that blew it down was nothing out of the ordinary. The city inspector saw the billboard several times and under such circumstances as that its insecure fastening could have been observed.

It was a dangerous “dead fall” in the street, liable to be sprung at any moment on the unsuspecting traveler.

The judgment setting aside the nonsuit is affirmed.

All concur.