Shippey v. Kansas City

ROY, C. Negligence: Defective Biiiboard. Plaintiff sued for damages for personal injuries. At the close of all the evidence the court gave a peremptory instruction f°r defendant. Plaintiff suffered an involuntary nonsuit, and after an unavailing motion to set it aside, has appealed. The city, Melville H. Hudson, Wallace Pratt and Charles H. Hodge were defendants in the original suit. The petition charged that on April 20, 1905, the plaintiff was injured by the falling of the billboard which had stood on the west side of Broadway between Ninth and Tenth streets. That the billboard was erected upon the land of Charles H. Plodge and Wallace Pratt, adjacent to and parallel with the sidewalk. That it was erected and maintained by said Hudson. That it was unsafe and dangerous to persons using the sidewalk because of its height and weight, and because of the fact that the uprights supporting it had become rotten, and that it was insufficiently braced. There was the usual allegation that the defendant had notice of the defect, or by the use of ordinary care could have known of it in time to prevent the injury. Pratt died March 18, 1907, and Hudson died April 7, 1907, and at the October term, 1907, the plaintiff dismissed the cause as to all the defendants except the city. Thereafter the defendant filed an amended answer setting out in haec verba the Act of the Legislature (Laws 1901, p. 78) now section 9801, Revised Statutes 1909, which provides that whenever a city of a bun [9] dred and fifty thousand or more inhabitants shall bé sued on a cause of action arising from the wrongful act or negligence of another, the city may require such person to be made a party defendant, and that the suit cannot proceed until such person has been made a party. The answer contained the following: “And answering further defendant says that if plaintiff received any injuries whatever, as alleged in her petition, that the same were caused by the acts and negligence of said Melville H. Hudson and Charles H. Hodge and Wallace Pratt, that plaintiff has received full satisfaction therefor from the estate and heirs of Melville H. Hudson and of Wallace Pratt, both deceased, and from Charles H. Hodge, having received the sum from them of two hundred dollars and plaintiff having agreed not to prosecute further said action against such defendants.” The answer then pleaded in bar the act of plaintiff in agreeing not to prosecute the other defendants. The reply contained the following: “Second: For reply to the remaining allegations in said defendant Kansas City’s amended answer she states, that since the filing of original answer of defendant Kansas City, to-wit, during the months of March and April, 1907, the defendants, Melville H. Pludson and Wallace Pratt, died. “Plaintiff admits that she received two hundred dollars from the estate of said Melville H. Hudson, deceased, but says the payment was a gratuity, as her right of action against said Hudson and against his estate, expired when he died. That her right of action against said Pratt and against his estate also expired when he died. That under the law and facts she had no right of action against defendant Charles H. Plodge; that upon investigation she discovered that the allegations in her petition as to the liability of said defendant Hodge had no foundation in fact. [10] “That when she received said two hundred dollars from the estate of said Hudson the representatives of said Hudson insisted on the dismissal of said cause as to the defendant Plodge; that plaintiff received no consideration whatever from-said Hodge for said receipt or dismissal, and inasmuch as plaintiff, under the facts, had no cause of action against said Hodge, she executed the following receipt and agreement and delivered it to the representatives of the estate of said Hudson, deceased. “ ‘In the Circuit Court of Jackson County, Missouri, at Kansas City, Louise R. Shippey, Plaintiff, v. Melville H. Hudson, doing business as the Kansas City Bill Posting Company, Charles H. Hodge and Wallace Pratt, Defendants. Number 27411. “ ‘Received from the estate and heirs of Melville H. Hudson and of Wallace Pratt, both deceased, and from Charles H. Hodge of Kansas City, Missouri, two hundred dollars ($200), partial satisfaction for injuries sustained by plaintiff as described in the petition filed in the above entitled cause as payment pro tanto for the. injuries sued for therein; plaintiff reserving the right to demand from the other defendant in said cause compensation for the balance of her claim as stated in said petition. In consideration of said sum of two hundred dollars received as aforesaid, plaintiff hereby agrees not to further, prosecute the said action against the parties above described nor to sue any of them for the said injuries claimed by her. This receipt and agreement is not intended or made as a satisfaction of my claim for damages by reason of said injuries, but solely, and alone as an agreement not to sue or further proceed against either of the parties above named for or on account of such injuries, reserving to myself the right to further prosecute said action as to any other defendant and to sue anyone else for compensation for my injuries. [11] “ ‘Witness my hand and seal this 23d day of May, 1907. “ ‘(Signed) Louise E. Shippey, (Seal). “ ‘Witness: (Signed) M. L. Alden.’ ” The billboard was about a hundred and fifty or two hundred feet long and ten or twelve feet high. It was constructed of yellow pine. The posts were four inches square, eight feet apart, set in the retaining wall which was of variable height ranging from four to eight feet, the lot being that much lower than the sidewalk: The board was braced by two-by-four stuff nailed to the board and to stakes driven or sunk into the ground on the west. The north end of the board, including the part which fell, was built in 1900. Hodge owned the land on which the north forty-eight feet of the board stood, and Pratt owned the next lot south. The south part of the billboard stood on the site of the old Coates Opera House, which, as the evidence tended to show, was destroyed by fire in 1904. So that, as far as the evidence indicates, the north part of the board was the oldest. The north thirty-two feet, under a high gusty wind, fell down upon the plaintiff, injuring her seriously. Though the wind was high and gusty it was no more than could be reasonably expected, as was shown by the weather bureau, it being about thirty-six miles an hour. The next sixteen feet fell partly down. Mildred Green was a witness for the plaintiff. She was a saleslady in a store just across Broadway from the place of the accident. In coming to her place of employment she usually passed by the billboard. She testified: “Q. About what time of day was it when those boards fell? A. It must have been between one and a quarter after. “Q. In the afternoon? A. Yes, sir. “Q. Had you noticed the condition of those billboards at any time prior to the time when they fell? [12] A. Yes, I had a number of times, and especially when I came down the street myself on that day. “Q. You may state what you observed as to the condition of those billboards prior to the time on which they fell, either on the day on which they fell or at any time prior thereto. A. Well, I noticed that a number of the boards were loose and that the props were very rotten. “Q. What, if anything, had you noticed about the condition of those boards as to shaking or otherwise at any time prior to the time when they fell, either on that day or on any prior day? A. Well, when the wind blew, they would sway back and forth, they were very unsteady, I know that. “Q. How often had you noticed that condition about the billboards swaying back and forth? A. Well, at any time when there was a slight wind blowing. “Q. You may state whether you had noticed that condition more than once prior to the day on which they fell? A. Yes, I had. “Q. Did you go home to lunch at noon on the day on which the boards fell? A. Yes. “Q. You may state about how you returned to your place of business, as to whether you passed those billboards at that time or not. A. Well, I came down on that side of the street part way, and noticed from their condition their swaying and all, . . . and I crossed the street — and crossed the street to the opposite side. “Q. How close did you come to those billboards on the side of the street on which they were located at that time, before you started to cross the street? A. Well, I just walked down- — the boards were located right at the edge of the sidewalk and I came down the edge of the sidewalk. “Q. You have stated that you crossed the street instead of passing the billboards at that time. Now, where, with reference to the south end of the bill [13] boards, was it that you started across the street? A. Well, I suppose I came half way down the length of those boards before I crossed the street; I started down past them. “Q. And it was while yon were passing the boards that yon noticed them swaying? A. And crossed the street. ££Q. What was the condition of those billboards at the time when yon did leave the sidewalk and start across the street as to whether they were standing firm or as to whether they were swaying or what their condition was? A. They were swaying; part of them were loose. ££Q. You say some of the boards were loose? A. Yes, sir. ££Q. Now, describe what boards you speak of that were'loose? A. Well, I noticed particularly at the bottom some were loose, and that some were missing. ££Q. Was the ground where those billboards were located level with the sidewalk or was it below the sidewalk? A. It was below; I suppose from nine to ten feet; something like that. ££Q. You may state whether or not it was located where the Coates Opera House formerly stood? A. Yes. ££Q. Now, what kind of timbers were those billboards constructed of? A. Well, the supports were just — they were not large. ££Q. You may state what they were constructed of, and whether all lumber or other material. A. Lumber. £ £ Q. Can you describe what kind of lumber it was, that is as to the size of it — how large the timbers upon which the boards were nailed or fastened were? A. Well, just about the same as they use these studdings in houses, I guess; I don’t know what the dimensions would be. [14] “Q. Were they about two inches by four? A. Two inches by four, or something like that. ££Q. How did those pieces of timber that you have described as about like the studdings in houses situated — did they stand on end or did they lay parallel with the surface of the earth? A. Well, those supporting the boards stood on end. “Q. And were those pieces that you have described as about the size of a studding that stood on end? A. Yes, sir. “Q. Now, what was the condition of those pieces at that time, as being sound or unsound? A. I noticed some that supported, that went to the ground, that were rotted off, entirely off. ££Q. Did you at that time look at those upright pieces, or the pieces that had been'upright pieces, to see what their condition was? A. Yes, sir. £<Q. What was their condition? A. I noticed that the props were rotten. ££Q. You may state whether they were all rotten or only part of them rotten or about what their condition was, as near as you can tell from the examination you made, of them at that time? A. Part of them were rotten. ££Q. And you state about how many of them were rotten. A. I don’t know. ££Q. Do you know about how many there were of those uprights altogether supporting that billboard? A. No. ££Q. Well, there were more than one, I suppose-, were there? A. Yes. £ £ Q. Could you give us an estimate of about how many, if you have any recollection of it? A. No, I couldn’t. ££Q. Do you know how far'apart those props were? A. Well, they were some distance. [15] “Q. When yon speak of props, do you mean the pieces that were upright and upon which the boards were nailed? A. Those and the others too; the other supports. “Q. In what directions were those other supports? A. They ran diagonally toward the ground, from the boards to the ground. “Q. Now, when you speak of props, you mean the uprights and the diagonal pieces too? A. Yes, sir. “Q. You may state whether or not when you speak about the props being rotten you have reference to the upright pieces as well as the diagonal pieces. A. The diagonal pieces were pieces nailed together. “Q. And you may state whether or not some cf those pieces were also rotten. A. They were supported by others drivenin the ground, which were rotten. ’ ’ On cross-examination she testified: “Q. And you spoke of examining the condition of the billboards, when was that? A. I noticed them when they fell on her, that is, when I went over to her, because she lay on the sidewalk quite a while. “Q. So you didn’t make any examination of them after that? A. No, not myself; the gentleman from the store went across and looked at that. “Q. Who was that? A. Mr. Russell, I believe, or Mr. Burns. “Q. Had you made an examination of them before they fell? A. Myself? “Q. Yes. A. Not those; I noticed the others when I came down the street. “Q. So this testimony that you have given about what you had noticed before the boards fell related to the billboards further south than those that fell? A. Yes, they were all constructed the same, though. “Q. And you had not made any examination of this section of the boards which fell before the accident occurred? A. No. [16] “Q. And you didn’t know what the condition was, did you? A. Well, no. I noticed they were all in the same condition. ‘ ‘ Q. You had not examined the north end of them ? A. No. “Q. So it was simply a conclusion of yours, not based on what you actually saw of these particular boards that made you think they were all in the same condition? A. No, I noticed them at the time of the accident; the men remarked about them; and I noticed them myself. “Q. But I am speaking of before the accident? A. No.” ■The defendant read in evidence the following document : “CONTRACT. “Kansas City, Kans., Mar. 3rd, 1903. “Kansas City Bill Posting'Company, “Kansas City, Mo., ‘ ‘ Gentlemen: “Confirming the conversation I had with your Mr. Lon Hudson, I accept your proposition for the use of my Broadway and Ninth street property for bill posting purposes at the rate of: “$24.00 per year for the Broadway lot. “$26.00 per year for the Ninth Street lots. “This rate to cover the period you have occupied the space on these lots since my ownership, which on the Broadway property dates from Meh. 1, 1901; Ninth Street from July, 1902. I have already given you the dates on which I acquired the property and you can send me a check for the two years’ rent on the Broadway property ending Febry., and also on the Ninth Street property up to the same date so that the rent of both properties will commence from the same date in February, 1903. I am to give you five days’ [17] notice to vacate the property should at any time I wish to use it for other purposes. “Yours truly, “C. H. Hodge.” Joseph Evans, an employee of the billboard people and whose business it was to construct and repair the billboards, went to the place shortly after the accident, and testified for defendant as follows: “Q. Well, what was the condition after the accident? A. Do you mean in the way of rotten or not? “Q. Well, what was the condition of the posts, sound or unsound or what? A. They were somewhat weatherbeaten; they were not exactly rotten but somewhat weatherbeaten, though. “Q. Well, how were the posts, broken off short or splintered, or how were they? A. There were two that was splintered, and one broken off, with the exception of one that did not fall at the end of the forty-eight feet.” . • He also testified: “Q. Now, you did not use any of that lumber to put the billboard back there? A. I fastened onto the post that was standing there. “Q. Is that the only one that you used? A. And the two that were splintered as well as I remember, I fastened onto to put it back. “Q. Use any more lumber there was there? A. No, I believe not. “Q. Threw it over in the hole and left it there? A. Well, I hauled it away, yes, sir. “Q. How many were broken that you saw? A. There were four broken and two splintered, as well as I remember. “Q. There were two splintered? A. Yes, sir. “Q. In the forty-eight feet? A. Yes,- sir. [18] “Q. Now, those that were splintered, were they weatherbeaten posts? A. Yes, sir. ■“Q. Did you see any of them that had come up out of the wall or the dirt there without having been broken off? A. No, sir.” James F. Campbell, another such employee, was with Evans, and testified for defendant: “Q. Did you examine after the accident as to whether any of the posts — -uprights—were broken? A. Well, I think there was one post standing, but the others were broken off. “Q. Well, how were they broken? Were they splintered, or how? In what way? Were they straight breaks or how was it? A. Well, as well as I recollect it, they were just broke — fight broke off. ’ ’ A policeman passed along the sidewalk by the billboard every two hours prior to the accident. The evidence shows that the land of ITodge on which the billboard stood was vacant and unused property, except that the billboard was maintained thereon. OPINION. Corporation: Ordinary Care. I. The respondent claims that there was no actual or constructive notice to the city of any defect in the billboard, and that the peremptory instruction for defendant was properly 8^ven- Reliance is placed on Baustian v. Young and the City of St. Louis, 152 Mo. 317. We quote from page 326, as follows: “The plaintiff’s testimony illustrated by his photographs tends to show that the sidewalk was out of repair both in respect to the decayed condition of the wood, and a washing out of the ground underneath; that it was really the hollow in.the ground that per-, mitted the plank to go down. There- is no testimony tending to show actual notice to the city of the condi [19] tion. of the sidewalk and no testimony tending to show how long it had remained in that condition unless as contended by respondent the nature of the defect im- - plies that it had existed for a considerable time. Common experience tells us that it takes time for a wooden structure exposed to the weather in this climate to decay; but that time is so indefinite and subject to so many influences either advancing or retarding the process of decay, that no reasonable calculation of it can be made in a case like this. Besides, the testimony of plaintiff shows that the real cause. of the yielding of the plank under the plaintiff’s weight was a hollow beneath, caused by the ground being washed out; when that occurred is not shown. That the defect was not so obvious as to impute notice, is shown by the plaintiff’s testimony. The plaintiff himself had passed along the road frequently, about the time, not over the sidewalk but in the road; and had never observed any such condition; and the five witnesses for defendant used the sidewalk daily several times and did not observe it. The evidence fails to show any knowledge on the part of the city or any circumstance from which notice could be implied, or that the city had neglected a reasonable opportunity to repair the defect. Under such evidence there could have been no verdict for the plaintiff. ’ ’ We make such extensive quotation for the purpose of showing that what was said in that case on the question of the liability of wood to decay was obiter, and is not binding as an authority. In Buckley v. Kansas City, 156 Mo. 16, the injury was caused by the fact that there was a break in the iron framework supporting the sidewalk at the time of and previous to- the injury, and which caused the sidewalk to give way. The court said, l. c. 26: “If all that plaintiff contends for, that the city must use reasonable care as to inspection and must take notice of the usual and natural wear and decay [20] of the materials composing a sidewalk he conceded, still there is in this case a complete lack of facts or evidence to which snch rules of law could be applied, for it nowhere appears that ten years is the usual or natural life or period of duration or safety of sidewalks like this, nor within what period of time danger is to be apprehended from wear and decay. In the absence of such a showing it cannot be said as a matter of law that the city was guilty of negligence when there were no facts proved which showed negligence and no circumstances in the case from which negligence could be fairly implied.” We call attention to the fact that the cause of the trouble in that case was not decay, but a bréale not shown to be caused by decay. If there is a single case in this State authoritatively holding that it is not the duty of a municipality to take notice of the tendency of timber (or any other substance) to decay, we have not found it. Defect The usual instruction given in cases for negligence in failure to repair holds the city liable for a defect when it had timely notice or by the use of ordinary care and watchfulness could have discovered ^ ^me Prevent the injury. [Carrington v. St. Louis, 89 Mo. l. c. 212; Fehlhauer v. St. Louis, 178 Mo. l. c. 649.] “Municipal corporations must take notice of the tendency of timber to decay, and wherever the exercise of ordinary care involves the anticipation of defects that are the natural and ordinary result of use and climatic influences, and there is neglect on the part of the proper officer to make a sufficiently frequent examination of a particular structure, a city will not be relieved from liability, although the defect may not be open and notorious.” [2 Elliott on Roads and Streets (3 Ed.), sec. 808.] “The ‘care, supervision and control’ of a sidewalk being imposed upon defendant, no argument is needed [21] to establish the proposition, that such care and supervision require notice to be taken of the certain tendency of wood sidewalks to decay. This tendency is the result of natural causes, whose operation is so constant, familiar and common as to be known to everybody. To call that care and supervision which did not take into account this tendency to decay would be a contradiction in terms. Such care and supervision would be a positive neglect of legal duty.” [Furnell v. City of St. Paul, 20 Minn. l. c. 123.] “Therefore, when a bridge is old, having stood for the length of time the timbers composing’ it are accustomed to last, and when it may be reasonably expected that decay has set in, it is negligent to omit all proper precautions to ascertain its true condition. Nor will mere appearance in such a case excuse the neglect.” [Rapho v. Moore, 68 Pa. St. 404, l. c. 408.] “Where an exercise of ordinary care on its part involves the anticipation of defects that are the natural and legitimate result of use and climatic influences, a neglect of the proper officer to make a sufficiently frequent and careful examination of a particular structure is sometimes held to charge the city with constructive' notice, even though the defect be latent. Illustrating this kind of constructive notice, are such cases as Furnell v. City, 20 Minn. 117; and Rapho v. Moore, 68 Pa. St. 404.” [City of Denver v. Dean, 10 Colo. 375.] “On the other hand a defect may exist and be unknown and the town still be liable on the ground that the prime fault consists in being ignorant; it being a clear principle that a want of knowledge may in given circumstances imply a want of due care. . The general duty of a township is to exercise through its officers a reasonable supervision over its ways and bridges, and within fairly practicable limits to be watchful of their condition and trustworthiness and see that they are kept in a reasonably safe condition for public [22] travel. -Its officers may not ignore the dictates of common sense and the lessons of ordinary experience and refuse to see or refuse to heed what others see and others understand. When it is generally known that a bridge has become decrepit, or when a bridge has stood so long that there is much suspicion of it, the officers of the township may not disregard the warning conveyed by these circumstances and think to excuse their neglect to take action on the ground of having had no actual notice of a dangerous infirmity. In all these cases what is finally required .is the exercise of ordinary care and diligence, neither more nor less.” [Medina v. Perkins, 18 Mich. 67 (71).] Evidence We hold that, conceding there was no superficial showing of rottenness in the parts supporting the billboard, still the evidence for the plaintiff showing that said posts were rotten and that the board fell apparently by reason of such rottenness, it was for the jury to say whether ordinary care and watchfulness on the part of the city would have discovered the defect in time to prevent the injury. This court would, perhaps, be justified in taking' judicial notice that wood is most prone to decay just at the line of entrance into the ground. It would be no straining of the doctrine to presume that the city officers know such fact. Everybody else knows it, and why shouldn’t they? There is the same tendency in a lesser degree at the unsheltered point of contact between two timbers such as the stakes and the braces, especially when they are held together by nails. The front surface of the board, the apparent, patent and visible part, is the least subject to the gnawing teeth of the elements. Has the city the right to merely look at such front surface and say “I see nothing wrong’” until the supports are rotted off and the structure falls? To so hold would be to declare that it is not required to use ordinary care. It is vain' to say that there is no evidence in the case as to how long it takes such timbers [23] to decay. The fact that they did decay is some evidence on that point. We have not overlooked the fact that the evidence tends strongly to show actual notice to the city. The evidence for the plaintiff showed that the billboard swayed in the wind, and some of the timbers were observed to be rotten. Some of the boards were loose, and some were off. Defendants’ witnesses testified that in reconstructing’ the billboard three pieces of the old timber- were used and the balance hauled away. A policeman passed the billboard on the sidewalk every two hours. The rule of liability for negligence in cases such as this is the same as for defects in the sidewalk itself. That rule requires the city to exercise ordinary care. r?Cs.9-i89 0 9. II. Without deciding the point, we are inclined to hold that the instrument by which plaintiff agreed not to further pursue the other defendants would bar her under section 9801, Revised Statutes 1909, from any judgment against the city if it had been a fact that any cause of action then existed against any of the other defendants. But no such cause of action existed at that time. Hudson and Pratt died, in March and April, 1907. Liabiiity for Personal Injury, The right of action in cases for personal injury died with the person of the wrongdoer under the' common law and under the express provisions of section 106 of the Revised Statutes. Section 5438 which was enacted in 1907 changing the rule in that respect did not go into effect until after the deaths of Hudson and Pratt, hence, does not apply. [24] Lease [23] The question then remains, did the agreement not to further proceed against Hodge, the owner of the [24] property, debar the plaintiff from proceeding against -^e We say no, for the reason that Hodge was the landlord only, and was not in possession of the property. We have been somewhat troubled over the question as to whether the contract between Hodge and Hudson was a lease or a mere license. We have concluded that it was a lease. 1 Washburn, Real Prop., sec. 619, says: ‘ ‘ In respect to the proper terms by which an estate for years may be created, any form of expression is sufficient if it shows, an intention on the part of the lessor to part with and divest himself of the possession in favor of the lessee, and a corresponding intention on the part of the lessee to come into the possession of the premises for a determinate period of time. ’ ’ “To make a good lease, and thus create the relation of landlord and tenant, no particular words are necessary, but it is indispensable that it should appear to have been the intention of one party to dispossess himself of the premises, and of the other to enter and occupy as the former himself had the right to do pursuant to the agreement between them.” [24 Cyc. 901.] The contract between Hodge and Hudson provided that the land was to be used for billposting purposes. That would not of itself constitute a lease. But there are three things which mark the contract as a lease. It provides for a notice to vacate. That implies that Hudson was to have possession. Such notice was to be given in case Hodge wanted to use the land for other purposes. In the second place a mere license implies that the licensor can use the land in any way not inconsistent with the license. But here it was clearly shown that Hodge parted with all right to use the land until after notice to vacate.' Third, the parties in so many words provided for the payment of rent. The use of that term did not of itself make it a lease. But [25] the whole instrument taken together constitutes a lease and not a mere license. Nuisance: of lessee. The owner of property in possession is responsible in cases of this kind. [Franke v. St. Louis, 110 Mo. 516.] But the lessor is not liable for a nuisance created or maintained on the premises by a tenant. [Grogan v. Broadway Fdy. Co., 87 Mo. 321; Pope v. Boyle, 98 Mo. 527; Reinhardt v. Holmes, 143 Mo. App. l. c. 223.] The plaintiff at the time of the receipt of the two hundred dollars and of the agreement not to pursue the other defendants, had no cause of action against any one of those other defendants, so that such agreement was harmless so far as the city is concerned, and was not to the prejudice of the city in any way. The judgment is reversed and the cause remanded for a new trial. PER CURIAM IN BANC. This cause coming into Banc from Division Two on the dissent of Faris, J. , to the opinion of Commissioner Roy, was reheard in Banc, and the opinion of Commissioner Roy was adopted. Broiun and Walker, JJ., concur. Woodson, J., concurs in separate opinion; Lamm, G. J., and Bond, J., concur in result. Fáris, J., dissents — Graves, J., dissents for the reason that plaintiff has barred herself by settling with one of the joint tort-feasors.