Becker v. Schutte

SMITH, P. J. — This is an action to recover damages for personal injuries. The petition alleged in substance that Kansas City was a municipal corporation in this state, having a special charter, by the terms of which it had power by ordinance to compel persons to fasten their, animals while stand — 62 — ing in any of its streets; that said city passed an ordinance to the effect: “No person * * * shall leave any such animal standing in any street, avenue, alley or other public place without being fastened;” that defendant negligently and in violation of the terms of said ordinance left a certain horse and vehicle thereto attached in a certain street known as Grand avenue, within the limits of said city, without being fastened or guarded in any manner so as to prevent it from running away, and without any restraint whatever; that while plaintiff was driving along said street the defendant’s horse, with the vehicle thereto attached, and carelessly left by defendant without restraint, became frightened and ran away, overtaking plaintiff and running violently against and upon the vehicle in which she was riding, breaking said vehicle down and violently throwing her out of said vehicle and against the ground and curbing at the sidewalk, thereby greatly injuring her — specifying in what particulars — to her damage, etc. In the court below the defendant, by demurrer, objected that the said petition did not state facts sufficient to constitute a cause of action; and although overruled there, it is renewed here. A city to which a portion of the police powers have been delegated has a right to enact police regulations and to punish their violation by fine and imprisonment, but can not, in the exercise of this power, create a liability from one citizen to another, or a civil duty enforcible at common law, because this would be the exercise of a sovereign power belonging alone to the state. The legislature may delegate a part of the police power of the state to a city or village, but it can not delegate the legislative function of making laws that will bind citizens inter sese in civil proceedings. The police regulations control the citizen in respect to his relations to the city representing the public at' large and for this reason are enforcible by fine and imprisonment, but laws controlling the — 63 — liability of the citizen, as between themselves, must emanate from the legislature where alone such power is vested by the. Constitution. A provision of the charter of a city or village stands on a totally different footing from an ordinance passed under its police power. The latter creates no new right or remedy as between citizens and is enforcible by quasi criminal proceedings. Norton v. St. Louis, 97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 92; Sanders v. Railway, 147 Mo. 411; Byington v. Railway, 147 Mo. 673; Moran v. Car Co., 134 Mo. 641; Fath v. Railway, 105 Mo. 537. As the cases in 147 Mo., sufra, were decided since Brannock v. Elmore, 114 Mo. 55; Butz v. Cavanaugh, 137 Mo. 503, and Harman v. St. Louis, 137 Mo. 494, it is our duty to follow the former without stopping to inquire whether the latter are in harmony with them. If the latter can be properly included in the class of which Gratiot v. Railway, 116 Mo. 450, is a type, then, of course, there is no conflict, for cases of that class are to be distinguished from those in 147 Mo., and their like. Most of the cases of the class just referred to were actions for common-law negligence, where city ordinances were received in evidence because they entered into the case itself, or enforced a common-law duty. Railway v. Ervin, 89 Pa. St. 71. The common law requires every horse whatever, no matter how gentle, to be attended or secured in the crowded business streets of a city when there by the act of the owner and subject to his control. It makes one who leaves a horse loose and unattended in a street responsible for injuries done by it in running away. Shearman & Redf. on Negl, sec. 35; Wharton on Negl., secs. 113, 915; Phillips v. Donald, 79 Ga. 732. It is thus seen that the part of the ordinance here pleaded declares and enforces a common-law duty. The plaintiff’s action, while seemingly based on that — 64 — ordinance, is really based on tbe common law, or, in other words, it is but a common-law action for negligence. Tbe defendant in leaving bis horse unattended and unsecured in tbe public thoroughfare neglected a duty enjoined upon bim by tbe common law, as well as by tbe ordinance in question, and must therefore be held liable for tbe consequences of bis negligence. Tbe underlying principle upon which tbe defendant must be held liable is similar to that announced and applied in Gratiot v. Railway, supra, and tbe other cases there referred to. In fact and in principle, this case is not to be confounded with that of Eatb v. Railway and tbe other cases cited at tbe outset, where tbe defendant, in consideration of tbe grant of a franchise to operate a railway, undertook and agreed to obey certain ordinance provisions. To constitute a cause of action, both an ordinance and a contract are not required to be shown in this case as in those. Tbe contractual element is not a constituent part of tbe plaintiffs- case. Her case is based upon tbe neglect by tbe defendant of a common-law duty and can be maintained without tbe ordinance. As to her, it neither helps nor binders; but as to tbe public at large, a breach of tbe duty it enjoins may be tbe subject of “quasi civil-criminal proceedings.” It, therefore, follows that tbe plaintiff’s petition is not subject to tbe objection which tbe defendant has urged against it. Tbe defndant further complains that during tbe progress of tbe trial tbe court committed a number of errors which be has assigned as grounds for a reversal of tbe plaintiffs judgment against bim. But tbe plaintiff insists that if any such errors were committed tbe same were not preserved by a bill of exceptions, or, in other words, that tbe record fails to show that any bill of exceptions whatever was allowed, signed, sealed and made a part of tbe record in tbe cause. As we understand it, a bill of exceptions was allowed — 65 — and signed by the judge of the court before whom the cause was tried, but as to whether such bill was filed within.the time required by the statute or the order of the court so as to become a part of the record is the question with which we are confronted. If there is no bill of exceptions then we are powerless to review the action of the court to which the assignments of error relate. Turning to the record, and it is seen that during the January term, 1899, the defendant was, by an order of the court, duly entered upon the record, given until “on or before May 1, 1899, to file his bill of exceptions.” The next term of the court began April 10, on which day the defendant applied for an order for the extension of the time for the filing of the bill until July 1. It directed the order to be made in accordance with the application therefor, but the clerk neglected to enter the same of record. Afterwards, during said April term, and on May 16, the defendant having discovered that the order of April 10 for the extension of the time for the filing of the bill had not been entered on the record, filed a motion for a nunc pro tunc entry, which was sustained, and the order made and entered accordingly. The bill was subsequently filed Avithin the time given by the nunc pro tunc order. The unentered order of the court of April 10 was made during the currency of the term for the filing of the bill, as fixed by its order of March 14. If the former had been entered of record A\dien made the question we now have would not have arisen. It is the well-settled law of this state that AAdiere a court makes an order or pronounces a judgment and the clerk fails to enter the same on the record it is competent for the court during the term from its OAvn recollection to correct or amend its entry nunc pro tunc, so as to make the same correctly express what was done or ordered by it in the — 66 — first instance. During the term, which, in' legal contemplation, is but a single day, everything is in fieri, and during that term the judge of his own'knowledge may enter any judgment which has been pronounced. Williams v. Silvey, 84 Mo. App. 433, and cases-there cited; State v. Jeffors, 64 Mo. 376. It follows from this that the action of the court in directing the nunc pro tunc entry extending the time for filing the bill was clearly within the jurisdiction of the court. 'The defendant complains of the action of the court in respect to the giving and refusing of instructions. The defendant, by his instruction number one, asked the court to tell the jury that if defendant left his horse and wagon near the curb-line of the street after having fastened him with a snap and weight in the usual way to find for him. The court modified this instruction by striking out the italicised words thereof and inserting in their place the words: “So as to prevent it from running away;” and as thus modified gave it. It also, on its own motion, gave a further instruction to the effect that a person leaving a horse in a street must exercise the care and prudence in fastening or guarding it as a reasonably prudent person would exercise under similar circumstances. These instructions are not subject to any serious objection. They, with others given, fairly submitted every issue in the case. It was for the jury to determine, under these instructions, whether or not the defendant, in leaving his horse standing in a crowded street fastened by a strap to a fifteen pound weight — if they found he did so fasten it — exercised the prudence that would have been exercised by a reasonably prudent person under similar circumstances. Under the evidence there was no question but what the negligence was the direct cause of the injury. There was nothing in the evidence to justify a doubt as to-that. The refusal of the court by its instructions to so direct the jury — 67 — could result in no injury to defendant. The court, by an instruction given at the request of defendant, submitted the case to the jury without such direction. The case on the evidence was not one where the refusal to give such direction could operate to the injury of the defendant. The defendant further assails the judgment on the ground that the court erred in its action refusing to allow the defendant to inquire on cross-examination of the plaintiff, who was a witness in her own behalf, whether on the hearing of defendant’s motion for the reconsideration of her application to sue in forma pauperis she had not given certain testimony for the purpose of laying a foundation for showing that she had testified falsely as to her ownership of property. The court had heard the testimony of the plaintiff and the contradictory evidence of the defendant and could therefore well understand the force and bearing of the defendant’s offer. It is true that the rule is, that when a witness is cross-examined he may be asked any questions which 'tend to test his accuracy, veracity or credibility, or shake his credit by injuring his character. He may be compelled to answer any question however irrelevant it may be to the facts in issue and however disgraceful the answer may be to himself, except when such answer might expose him to a criminal charge. But the cross-examination of this nature is somewhat in the discretion of the court and must necessarily be so to prevent abuse. Muller v. Hospital Ass’n, 5 Mo. App. 390; Goins v. Moberly, 127 Mo. 116. There is nothing disclosed by the record which would justify us in concluding that the court, in refusing the cross-examination for the purpose proposed, abused the discretion with which it was invested by law. The mere fact— if it were a fact — that plaintiff had sworn falsely in respect to the ownership of property was of itself not enough to show her a corrupt witness. She may have innocently sworn to what was not true. Hnless her testimony was willful and — 68 — corrupt it would certainly not be admissible for the purpose of showing her to be a corrupt witness. The defendant did not propose to show she had testified willfully falsely, but that she testified falsely. This was not competent evidence under the rule for which the defendant contends, and therefore we think the court did not err in rejecting it. It was not within any exception to the rulenprecluding a cross-examination as to immaterial collateral facts. But if the defendant had been given the benefit of his impeachment of the plaintiff as a witness, we think the result would not have been different. The evidence, without regard to that of plaintiff, was such that the jury could not well have found a different verdict; and therefore the defendant was in no way harmed by the adverse ruling of the court. The judgment will accordingly be affirmed. UlMson, J., concurs; Gill, J., absent.