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trarily in granting a new trial. Consequent- | cumstances, but, if the defect be so glaringly ly the case does not come within an excep- dangerous that an ordinarily prudent person tion to the general rule that the trial court's hence an instruction should clearly indicate that

; discretion in granting a new trial will not a verdict cannot be rendered for plaintiff, where be interfered with.

the walk was dangerous, unless reasonable care [7] As the case will have to be tried again, was exercised. it may be well to observe that, since the con: Corporations, Cent. Dig. && 1677, 1683; Dec.

[Ed. Note. For other cases, see Municipal tract in question released Powell from all

Dig. Om 805.) liability for any representations made to

4. MUNICIPAL CORPORATIONS Om 822-STREETS Batchelor at the time he first bought in, and

-INJURIES-ACTIONS-INSTRUCTIONS. was a settlement of their differences at that An instruction in an action for injuries retime, evidence of such representations was ceived by one who fell on a sidewalk that, if it properly excluded. However, we think the was dangerous, and plaintiff knew it was dancourt unduly limited the evidence in not al- of ordinary care, yet negligently attempted to

gerous, or could have known it by the exercise lowing Batchelor to state and show the ac- use the walk, no recovery could be had, is ertual value and extent of the business of the roneous, as making a mere attempt to use a decompany at the time he first bought in, and fective walk negligence, without regard to the

manner of the use. whether it was then in reality making or

[Ed. Note. For other cases, see Municipal losing money as compared with its extent Corporations, Cent. Dig. $8 1758-1762; Dec. and value during the time he managed the Dig. Om 822.] business and at the time he sold out and Appeal from Circuit Court, Adair County; quit. Powell was suing for $12,500 damages C. D. Stewart, Judge. for the alleged depreciation in the value of

“Not to be officially published.” his stock put up as a forfeit in the hands of

Action by Nancy Morgan against the City Batchelor under the contract, claiming that of Kirksville. From a judgment for defendsuch stock had been rendered worthless by ant, plaintiff appeals. Reversed and reBatchelor's conduct in dissipating the assetsmanded. and destroying and rendering unprofitable

A. Doneghy, of Kirksville, for appellant. an otherwise prosperous business. Under the circumstances, Batchelor should have been Weatherby & Frank, of Kirksville, for reallowed to show that the business he is charg- spondent. ed to have ruined was not in fact prosperous nor valuable.

TRIMBLE, J. Plaintiff seeks to recover

It is Upon the grounds hereinbefore stated, the for a fall upon a defective sidewalk. judgment is affirmed. The other Judges con- charged that at the point where the brick ir cur.

the walk ceased the city maintained a board set on edge across the walk to hold the brick

in place, and that this board extended above MORGAN v. CITY OF KIRKSVILLE. the surface of the brick, rendering the walk (No. 11690.)

dangerous, and causing plaintiff to fall. (Kansas City Court of Appeals. Missouri.

The injury occurred November 27, 1911. Nov. 1, 1915.)

Suit was brought and a trial had at the 1. MUNICIPAL CORPORATIONS Ow818 – INJU- taken to this court, the judgment was re

October term, 1913. Upon an appeal being RIES TO PERSONS ON STREETS-EVIDENCE.

In an action for injuries received by one versed and the cause remanded for a new who fell on a sidewalk where there was nothing trial. See 181 Mo. App. 318, 168 S. W. 835. to show that the condition of the walk at the A second trial was had in October, 1914, retime of the second trial was the same as it had been at the time of the injury, evidence of its sulting in a hung jury. Thereafter a third condition at the time of the second trial was in- trial was had in January, 1915, in which the admissible.

jury found for defendant, and plaintiff ap[Ed. Note. For other cases, see Municipal pealed. Corporations, Cent. Dig. 88 1726-1738; Dec. Dig. Om818.]

[1] Error is charged in that the trial court 2. APPEAL AND ERROR Omw 1050 — REVIEW

allowed the city to introduce evidence as to HARMLESS ERROR-ADMISSION OF EVIDENCE. the condition of the walk at the time of the

In an action for injuries received by one second trial, which was nearly three years who fell on a defective sidewalk, the erroneous after the date of the alleged injury. This admission of evidence of the condition of the walk subsequent to the action is prejudicial; evidence tended to show that at that time the for the jury must have considered it on the ques- board did not extend above the surface of the tion whether the walk was dangerous at the brick. Of course, the material question was time of the accident. [Ed. Note.-For other cases, see Appeal and whether it did or did not extend above the

, Error, Cent. Dig. 88 1068, 1069, 4153-4157, brick at the time of the injury. The city 4166; Dec. Dig. Om 1050.]

seeks to justify the introduction of the evi3. MUNICIPAL CORPORATIONS O 805-STREETS dence as to the condition of the walk subse

-SIDEWALK ACCIDENTS-DUTY OF CARE. quent to the injury on the ground that plainfective and dangerous, she is entitled to use it. tiff had admitted that the sidewalk was in provided she exercise the care that an ordinarily the same condition at the time of said prudent person would exercise under like cir- second trial as it was at the time of the injury. But a careful search of the record sequent condition of the walk was harmless. fails to disclose that she made any such ad- The jury would undoubtedly think they had mission. A reading of plaintiff's testimony a right to consider whether the board pro- . shows that the comparison defendant, on jected above the brick in October, 1914, as cross-examination, compelled her to make, bearing upon whether it projected above it over. plaintiff's objection, was not between in November, 1911—something they could not the condition of the walk at the time of her do unless there was evidence before them fall and the date of the second trial, but be that conditions had not changed. tween its condition at the time of the first [3] As the case will have to be retried, it trial as compared with its condition at the is necessary to notice two instructions givtime of the second. Plaiņtiff said that the en, one for plaintiff, and the other for deboard had been split off at the time of the fendant. Plaintiff's instruction No. 3 told second trial. She was then asked:

the jury that, even though the walk was Q. That was the change that was made, and dangerous, and plaintiff knew it was dangerthe only change? A. All that I noticed particu- ous, she is not to be denied the right to relarly, but the board was split off.” Defendant construes this answer as mean- count, unless the walk was so glaringly dan

cover a verdict against the city on that acing that the board being split off was the only change in its condition at the time of have refused to use the same.

gerous that a person of ordinary care would the second trial from that at the time of struction means that she could not be depriv

If the inthe injury; but clearly the witness was ed of a verdict merely or solely because of talking of the change at the time of the sec. such knowledge, then it was perhaps corond trial as compared with its condition at the time of the first trial, instead of at the rect, and a careful analysis of the instructime of the injury. As stated, it occurred tion may disclose that such was its meaning. November 27, 1911. The first trial did not As the instruction is worded, however, it is take place until nearly two years thereafter, quite possible for the jury to have underand the second trial was not had until near

stood from it that, if they believed the walk ly three years after the accident. The city was not glaringly dangerous, a verdict could did not offer any testimony showing affirma- not be denied her, regardless of the manner tively that there was no change in the con- in which she went over the place. If she dition of the walk between the date of the in- knew the walk was defective, and that it jury and the second trial. Plaintiff testified was dangerous, she would still have had the that the board was there at the first trial. right to use it, provided that, in doing so. but nowhere stated that it or the walk was she exercised the care that an ordinarily in the same condition as at the time she prudent person would exercise under like fell. Certainly the city should not have been circumstances. Of course, she could not exallowed to introduce witnesses showing that ercise ordinary care if the walk was so glarnearly three years after the injury the board ingly dangerous that an ordinarily prudent did not project above the brick, in the ab- person would not have used it. But, even sence of an affirmative showing that the con- if the defect was not so glaringly dangerous, ditions were the same then as at the date of still, if plaintiff knew of the defect, and yet the injury. The trial judge by his rulings walked over it without exercising ordinary indicated that he thought plaintiff had so tes- care, the jury could find her guilty of contified. He was doubtless led into this error tributory negligence. As the instruction is

. because the city stated that the questions drawn, it might lead a jury to think that about to be asked plaintiff were for the pur- they could not consider the manner in which pose of showing that the conditions were she walked over the place in order to deter. the same, but, when the questions were ask- mine whether she was negligent or careful, ed, the record shows that both the examiner but could deny her recovery only in case and the witness were talking about the condi- they found that the walk was so glaringly tion of the walk at the time of the first dangerous that an ordinarily prudent pertrial as compared with its condition at the son would not have used it. We think the time of the second. There being no evidence instruction should be so drawn as not to be that the walk was in the same condition at open to this misconception. the time of the first trial that it was at the

[4] Defendant's instruction No. 3 told the date of the injury, nearly a year prior there- jury that, if the walk was dangerous, and to, it was error to admit the evidence as to plaintiff knew it was dangerous, or could its condition at the time of the second trial, have known it by the exercise of ordinary even though plaintiff did say that the condi- care, and yet negligently attempted to walk tions were the same at the second trial as at on it and suffered injury, she is not entitled the first, except that the board had been to recover. The trouble with this instrucbroken off. 5 Thompson on Negligence (2a tion is that it makes the mere attempt to Ed.) 8 6228; Hoyt v. City of Des Moines, 76 walk over it negligence, when, as we have Iowa, 430, 41 N. W. 63; Williams on Munici- seen, negligence can arise only in the manpal Liability for Tort, $ 149.

ner in which she went over it if the walk [2] We cannot agree with respondent that was not glaringly dangerous. Of course, if rarily prudent person would not have used 5. EVIDENCE em 211 - ADMISSIBILITY -Eviit, and plaintiff knew of the defect, then the

DENCE GIVEN AT FORMER TRIAL. mere attempt to use the walk was negligence; of plaintiffs in unlawful. detainer, bearing on

The testimony of the predecessor in title but the instruction said nothing about such the issue whether such predecessor verbally a state of affairs. These errors in the in- rented the premises to defendant, although givstructions should be avoided upon the next en in a prior suit for rent, was admissible. trial.

[Ed. Note. For other cases, see Evidence,

Cent. Dig. $$ 738–744; Dec. Dig. Om 211.] For the reason hereinabove given, the judgment must be reversed, and the cause re

Appeal from Circuit Court, Harrison Counmanded for a new trial.

ty; George W. Wanamaker, Judge. It is so ordered. All concur.

“Not to be officially published.”

Suit in unlawful detainer by Ellen McCracken and others against Fred Schuster.

Judgment for plaintiffs, and defendant apMcCRACKEN et al. v. SCHUSTER.

peals. Reversed, and cause remanded for (No. 11701.)

new trial. (Kansas City Court of Appeals. Missouri.

Du Bois & Miller, of Grant City, for apNov. 1, 1915.)

pellant. 0. B. Hudson, of Grant City, for re

spondents. 1. APPEAL AND ERROR Om 209_RESERVATION OF GROUNDS OF REVIEW.

Where a party asks no demurrer to the TRIMBLE, J. This is a suit in unlawful evidence but joins in submitting the case to detainer, wherein it is charged that defendthe jury, he cannot assign as error on appeal ant's tenancy of a certain farm of 120 acres that on the undisputed facts the adverse party terminated on March 14, 1914, but that he is not entitled to judgment.

[Ed. Note. For other cases, see Appeal and willfully and unlawfully held over and deError, Cent. Dig. $8 1290-1298, 1300, 1303; tained the same after that date and after Dec. Dig. 209.]

demand in writing for the delivery thereof. 2. LANDLORD AND TENANT Om 291–UNLAW- The defense was that no tenancy existed FUL DETAINER-QUESTION FOR JURY.

between him and plaintiffs, but that defendIn a suit in unlawful detainer, question ant was a mere subtenant under one, Frank whether the premises occupied by defendant were verbally rented to him by plaintiffs' pred Hass, to whom the farm had been leased. ecessor in title, or by the latter's lessee, held The land in question was owned by plaintiffs for the jury under the evidence.

and ,
their father, Alexander

Alexander McCracken. [Ed. Note.--For other cases, see Landlord and The latter, acting for himself and as agent Tenant, Cent. Dig. $$ 1217-1241, 1243–1269; for plaintiffs, made a verbal contract to sell Dec. Dig. Om 291.]

the land to Frank Hass for $7,200 some time 3. WITNESSES Om 175—COMPETENCY - TRANS-in the latter part of the year 1911. Owing to ACTION WITH DECEDENT.

In a suit in unlawful detainer, where the the discovery of the fact that a part of the defendant verbally rented the premises either land at least stood in the name of a deceased from plaintiffs' deceased predecessor in title or unmarried brother of plaintiffs and son of the latter's lessee at a meeting between the par- Alexander McCracken, and that no administies in the office of the lawyer of plaintiffs' pred-tration was had on his estate, Hass refused tent to testify concerning his conversation with to pay for and accept a deed to the land unthe deceased predecessor on account of the pres- til an administration should be had on said ence at the conference of the decedent's attor-deceased's estate. Thereupon Alexander Mcney, living and testifying for plaintiffs, who was not the decedent's agent and attorney to Cracken, acting for himself and as agent for make the particular contract, and who was the other owners, made a written lease to merely a passive listener, the decedent making Hass for a term beginning March 1, 1912, and any agreement himself. [Ed. Note. For other cases, see Witnesses,

ending March 1, 1913, wherein Hass agreed Cent. Dig. $$ 711-713, 715, 720, 721, 915; Dec. to pay $360 rent for said term, payable JanDig. Om 175.]

uary 1, 1913.

It was also recited therein 4. WITNESSES 175-COMPETENCY - TRANS

that McCracken had agreed to sell the farm ACTION WITH DECEDENT.

to Hass at $7,200 and Hass had agreed to Where the evidence, given in a prior suit, buy on condition that the title was perfected, of the predecessor in title of plaintiffs in unlaw and that, when this was done, the money ful detainer was preserved and introduced at the trial, which evidence embodied such pred- paid as rent should be treated as a payment ecessor's version of a conversation had in his on the purchase price and deducted from the lawyer's office with defendant and his own les- $7,200. It seems that all parties then thought see, at which conversation defendant claimed that an administration on the deceased's esplaintiffs' predecessor had verbally rented the premises to the lessee and not directly to him-tate could be had and closed in a year unself, defendant was competent to testify con- der the new law, providing that such can be cerning the conversation with the decedent, done within that time. And Alexander Mcthough he had introduced his preserved testi- Cracken immediately took out letters of admony himself. [Ed. Note.-For other cases, see Witnesses,

ministration thereon. However, before the Cent, Dig. $8 711-713, 715, 720, 721, 915; Dec! end of the administration year, Hass objectDig. Om 175.]

ed to the estate being closed up in one year on account of some defect in the giving of the prior years' rent on the purchase price. the notice of grant of letters. (It seems that The lease, by its explicit terms, was to end said notice allowed two years for creditors March 1, 1913. There was no provision to present their claims instead of one.) And therein calling for a tenancy beyond that the probate court refused to allow it to be date. Consequently it cannot be said that closed in one year on this account. Conse- McCracken had no right to make a new rentquently, long before the expiration of the ing thereafter to Schuster. Indeed, Hass, term called for in the written lease, both who testified for defendant, says that McMcCracken and Hass knew that the defect in Cracken, at the meeting in Anderson's office the title could not be cured, nor the trade where plaintiffs claim the land was rented consummated, within the time contemplated to Schuster, extended the lease to him, Hass, by the parties at the time the lease from for another year. Hence, even the testimony March 1, 1912, to March 1, 1913, was made. adduced by defendant shows that the tenanUnder the lease, Hass had sublet to the de- cy claimed for Hass arose, not by virtue of fendant Schuster, and he went into posses- anything in Hass' written lease giving him sion.

the right to stay there for any year subseIn September, 1912, Hass and Schuster met quent to March 1, 1914, but arose out of the McCracken in James Anderson's law office in alleged agreement of McCracken, as defendGrant City and made a verbal arrangement ant claims, to extend the lease to Hass for for the renting of the farm for the year be another year. Even if the written lease ginning March 1, 1913, and ending March 1, might be construed as giving Hass the right 1914. And here is where the disputed ten- to rent the land during the succeeding years, ancy in question in this case arises. It is still the parties could, by mutual agreement, the contention of plaintiffs that in this con- abandon that feature of it, thus leaving MCversation McCracken, at the suggestion of Cracken free to make a contract with SchusHass, made a verbal lease of the land to ter. According to the evidence for plaintiff, , Schuster. On the other hand, it is defend- Hass told McCracken that Schuster wanted ant's contention that there was no renting to rent the land for the next year, which contract entered into between McCracken and would begin March 1, 1913, and that as his, Schuster, but that McCracken rented the land Hass' term would end on that date, he to Hass by verbally agreeing to extend the could not rent it to Schuster, and that only terms of Hass' written lease for another McCracken could, and that as it was desirayear. It is thus seen that both sides agree ble that certain plowing should be done bethat a new contract was entered into ver-fore that date, arrangements for the next bally, the only difference in the contention year should be made, whereupon, McCracken being that plaintiff's claim is that McCracken rented it verbally to Schuster for said next rented the land to Schuster for the term end- year. So that, according to the evidence for ing March 1, 1914, while Schuster claims Mc- both sides, there was a new verbal contract Cracken merely extended Hass' tenancy for entered into in Anderson's office in Septemanother year, and that he, Schuster, in turn ber, 1912. Plaintiffs contend that McCracken rented a part of the land from Hass. This rented the 120 acres to Schuster, while declearly illustrates the difficulty men get them- fendant insists it was rented again to Hass. selves into by verbally making contracts ex- The question to whom it was rented, theretending over so long a time, instead of mak- fore, became a question for the jury to deing them certain by having them reduced to termine. writing.

Prior to the institution of the present suit The case was taken by change of venue by plaintiffs, Alexander McCracken brought from Worth to Harrison county and there suit against Schuster for the rent of the tried before a jury, which returned a verdict land for the year ending March 1, 1914, and finding defendant guilty and assessing plain- in that suit McCracken testified as a witness, tiffs' damages at the sum of $120 and the and his testimony was taken down by the value of the monthly rents and profits at official court stenographer. This evidence, $30. Defendant has appealed.

proven by the stenographer's deposition to [1, 2] Defendant very earnestly contends be correct, was offered in evidence in the that the undisputed facts show that plain-case at bar by defendant as an admission tiffs are not entitled to recover. But this is on the part of McCracken that he had merely clearly untenable. In the first place, defend-extended the lease to Hass for another year ant asked no demurrer to the evidence, but and had not rented the land to Schuster. joined in submitting the case to the jury. In Defendant claims that McCracken's testithe next place, we do not agree with defend- mony conclusively shows this. We cannot ant that the written lease between McCrack-agree to this. Without regard to whether en and Hass provided that the latter should plaintiffs, who were not parties to the other go on indefinitely year after year renting the suit, could be bound by any admission of Mcland at $360 . per year until the vendors Cracken, if made, still we do not think his should be able to present a title satisfactory testimony conclusively shows such an adto vendee, or which he would be willing to mission. It is true some of his answers to strued that way, taking into consideration testimony in the other suit had been prethe elements contained in the questions, but served by the stenographer, as established other parts of his testimony show that he by his deposition, entitled the defendant said he rented it to Schuster. There is noth-Schuster to testify. Stone v. Hunt, 114 Mo. ing in the record of the present case ex- 66, 21 S. W. 454; Coughlin v. Haeussler, 50 pressly stating that McCracken was aged Mo. 126; Galvin v. Knights of Father Mathand infirm at the time he testified and was ew, 169 Mo. App. 496, 155 S. W. 45; Leahy not able to fully hear and understand what v. Rayburn, 33 Mo. App. 55. was asked him, as plaintiffs claim he was, The fact that defendant himself introduced but the record does disclose that he was a the deceased's evidence makes no difference. grandfather to full-grown children, and the He had to show that the deceased's testiway he answered many of the questions mony had been preserved in order to make shows that he was evidently an old man, and himself competent. The best way to do this was unable to draw the nice distinctions was to introduce the deposition as he did. necessary in order to make correct answers | Neither does the fact that he claims now to skillful questions propounded to him on that deceased's testimony agrees with him cross-examination. It is in the record also as to what took place. As we have heretothat he died shortly after he testified in the fore shown, McCracken testified the other rent suit, and before the present suit in way, though there is room for the contenunlawful detainer was brought. Aside from tion that some parts of his testimony are whether the jury in the present case would open to the construction placed upon it by be compelled to accept as true the statements defendant. The proper construction to be made by the old man in testifying in the placed on deceased's testimony was for the former suit, still we think it was for the jury, and therefore defendant could not jury to construe that testimony and deter- know how it would be construed by them. mine just what construction should be placed In addition to this, the preservation of Mcon what he said. So much for defendant's Cracken's testimony entitled Schuster to tescontention that plaintiffs are not entitled to tify, and he had a right to the cumulative recover, and that he is entitled to have the effective of his own testimony, even if Mccase reversed and remanded, with directions Cracken's agreed with his. In Leahy v. to enter up judgment for him.

Rayburn, supra, it is held that the preserva[3, 4] It is urged that error was committed tion of McCracken's testimony would have by the court in not permitting the defendant entitled Schuster to testify even if neither Schuster to testify concerning the conversa- party had introduced deceased's evidence. tion between McCracken, Hass, and Schuster [5] Plaintiffs say that the record of Mcin Anderson's office at the time of the verbal Cracken's testimony should not have been renting either to Hass

Hass or to Schuster. introduced in evidence. The record shows Plaintiffs objected to his testifying about no objection made to its introduction. And what took place on this occasion because Mc- we know of no reason why it should not Cracken, the opposite party to the contract have been admitted upon the one question as in issue, was dead. Defendant says he was to whom the verbal renting was made. The competent for two reasons : (1) Because fact that the other suit was for rent and this James Anderson, McCracken's agent and at one in unlawful detainer makes no differtorney, was present at said conversation and ence. The issue involved in both cases was is still living and testified in plaintiffs' be- the same, namely : Did McCracken rent the half; (2) because McCracken's evidence giv- place to Schuster? And this was the gist en in the other suit was preserved and intro- of the subject matter of McCracken's testiduced at this trial. With reference to the mony. first reason, namely, that Anderson, who was For this error in excluding defendant from McCracken's agent, was present and is liv- testifying, the cause must be reversed and ing, we are clearly of the opinion that de- remanded for a new trial. It is so ordered. fendant was not made competent on this ac- All concur. count. There was no showing that the contract in question was made by Anderson acting as McCracken's agent. Indeed, all the MORRILL V. KANSAS CITY. (No. 11617.) evidence shows that whatever contract was

(Kansas City Court of Appeals. Missouri. entered into on that occasion was made by

Nov. 1, 1915.) McCracken himself. Anderson was his agent 1. MUNICIPAL CORPORATIONS Om 812-DEFECand attorney, it is true, but not to make this TIVE STREET-ACTION FOR INJURIES-STATparticular contract. So far as the record UTE. shows, Anderson had nothing to do with the

Under Laws 1913, p. 545, providing that no making of it, but merely sat at his desk and account of any injuries growing out of any de

action shall be maintained against any city on heard the three men, McCracken, Schuster, fect in the condition of any street, until notice and Hass, talk the matter over, so that An- shall first have been given in writing to the derson was merely an ordinary witness, and mayor within 90 days of the occurrence for

which damage is claimed, stating the place not an agent of McCracken in the making of where and the time when such injury was rethe contract. But the fact that McCracken's ceived, and the character and circumstances of

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