Opinion
December 3, 1940.
1. PLEADINGS: Ordinance. It is unnecessary to plead a city ordinance where it is used merely as evidence and the cause of action is not based on a violation of it.
2. TRIALS: Speed Ordinance. In an action for injuries caused by a collision of defendant's automobile with the one in which plaintiff was riding, at a street intersection, where the trial court sustained plaintiff's motion for a new trial because he erred in sustaining defendant's objection to an ordinance limiting speed of automobiles at intersections, the ordinance should have been admitted unless it was incompetent, immaterial and irrelevant for any purpose.
3. TRIALS: Speed Ordinance: Burden of Proof. In an action for injuries caused by a collision of defendant's automobile with one in which plaintiff was riding, where the court sustained plaintiff's motion for a new trial, on appeal the burden is on defendant to show the ruling was error.
Since the respondent, defendant, did not show the point was on a boulevard or through street to which the ordinance did not apply and the evidence showed defendant was driving at from 35 to 40 miles an hour, the ordinance limiting speed at an intersection where the injury occurred to 20 miles an hour was admissible as evidence that defendant, appellant, was operating his car at a negligent rate of speed in support of the common-law negligent allegation in the petition.
4. TRIALS: Speed Ordinance: Copies of Ordinance. In an action for injuries caused to plaintiff when defendant's automobile collided with one in which plaintiff was riding, at a street intersection, the only question open to defendant was whether an ordinance limiting speed at an intersection tended to prove any issue in the case.
The appellant, defendant, cannot for the first time in the Supreme Court question the methods of proof of the ordinance because the plaintiff was entitled at the trial to an opportunity to prove the ordinance by one of the methods mentioned in Section 1663, Revised Statutes 1929.
An appellate court will not consider objections raised for the first time on appeal concerning matters which, if raised in the lower court, might have been cured by amendment.
Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.
AFFIRMED.
Mitchel J. Henderson, Thos. E. Deacy and Henderson, Deacy, Henderson Swofford for appellant.
(1) The trial court erred in sustaining plaintiff's motion for a new trial on the seventh ground thereof. (a) Since the trial court sustained defendant's objection to plaintiff's offer of Section 43, Ordinance 2340 and excluded it from evidence this action of the trial court should not be disturbed upon the motion for a new trial or upon appeal if plaintiff's offer was not proper for any reason regardless of the grounds stated in defendant's objection. Crow, Hargadine Co. v. Stevens, 44 Mo. App. 137; Gubernator v. Rattalack, 86 Mo. App. 184; Connor v. Black, 119 Mo. 126, 24 S.W. 184; White v. Hasburgh, 124 S.W.2d 560. (b) No proper offer of Section 43, Ordinance 2340 of Kansas City, Missouri was made by the plaintiff. The court's action in sustaining defendant's objection thereto was proper upon this ground. Sec. 1663, R.S. 1929; 22 C.J. 794, sec. 905; Town of Tipton v. Norman, 72 Mo. 380; Moberly v. Deskin, 169 Mo. App. 672, 155 S.W. 842; Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202; Poplar Bluff v. Meadows, 187 Mo. App. 450, 173 S.W. 11; Brown v. Alton Railroad, 132 S.W.2d 713; Wright v. Hines, 235 S.W. 831. (c) The part of Section 43, Ordinance 2340 orally offered by plaintiff was incompetent, immaterial and irrelevant and did not tend to prove or disprove any issues involved in the law suit and there was no showing by the plaintiff either in her evidence or in the oral offer that said ordinance was in anyway involved in the case. The court's action in sustaining defendant's objection thereto was proper upon this ground. (2) Instruction 3 offered on behalf of defendant and given by the court, is a proper and approved instruction on the credibility of witnesses and is not erroneous and the court did not err in giving said instruction. Randol v. Kline's, Inc., 330 Mo. 343, 49 S.W.2d 112; Flint v. Loew's St. Louis Realty Amusement Co., 126 S.W.2d 193. (3) Instruction 7 offered on behalf of the defendant and given by the court is a proper and approved instruction on the burden of proof and is not erroneous and the court did not err in giving said instruction. Gardner v. Turk, 123 S.W.2d 158; Stolovey v. Fleming, 328 Mo. 623, 8 S.W.2d 832. (4) The court erred in granting plaintiff a new trial because of error in defendant's instructions Nos. 9 and 10. These were proper instructions upon the "sole cause" and "no negligence of defendant" theories respectively and properly declared the law relating thereto when considered together and with the plaintiff's instructions. State ex rel. North British Merc. Ins. Co. v. Cox, 307 Mo. 194, 270 S.W. 113; Larey v. M.-K.-T. Ry. Co., 333 Mo. 949, 64 S.W.2d 681; King v. Reith, 341 Mo. 467, 108 S.W.2d 1; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 108 S.W.2d 351; Cason v. K.C. Term. Ry. Co., 123 S.W.2d 133; Schneider v. Dubinsky Realty Co., 127 S.W.2d 691; Arnold v. Alton Railroad Co., 124 S.W.2d 1092; Oliver v. Morgan, 73 S.W.2d 993; Crowley v. Worthington, 71 S.W.2d 744; Schweig v. Wells, 26 S.W.2d 851; Colins v. Beckmann, 79 S.W.2d 1052; Boland v. St. L.-S.F. Ry. Co., 284 S.W. 141; Shumate v. Wells, 320 Mo. 536, 9 S.W.2d 632; Peppers v. Railroad Co., 316 Mo. 1104, 295 S.W. 757; Watts v. Mousette, 337 Mo. 533, 85 S.W.2d 487; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467; Engleman v. Ry. Express Agency; 340 Mo. 360, 100 S.W.2d 540; Long v. Bennicker, 228 Mo. App. 193, 63 S.W.2d 831. (5) The court erred in granting plaintiff's motion for a new trial because of alleged error in defendant's Instruction 11. This was a proper instruction on contributory negligence in this case and properly declared the law relating thereto. Berton v. Pryor, 198 S.W. 1117; Irwin v. McDougall, 217 Mo. App. 645, 274 S.W. 923; Hill v. St. Louis Pub. Serv. Co., 64 S.W.2d 633; Clofton v. Caraker, 50 S.W.2d 758; Miller v. Rollins, 102 S.W.2d 686; Grosevener v. N.Y. Central Ry. Co., 123 S.W.2d 173; State ex rel. Wells v. Haid, 324 Mo. 759, 25 S.W.2d 92; Schweig v. Wells, 26 S.W.2d 851.
Edgar J. Keating and Robert B. Vaughan for respondent.
(1) The trial court was correct in granting plaintiff a new trial on the seventh ground thereof, namely, because of its refusal to receive in evidence subdivision B of Section 43 as revised by Ordinance 2340, Revised Ordinances of Kansas City. State ex rel. Hartman v. Thomas, 149 S.W. 321; Smith v. K.C. Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Stelmach v. Saul, 51 S.W.2d 888; White v. Hasburgh, 124 S.W.2d 565; Collins v. Leahy, 102 S.W.2d 801; Baily v. Kansas City, 87 S.W. 1182; Lechner v. St. Louis, 121 S.W.2d 245; Rines v. Riek, 57 S.W.2d 726; Hartford Fire Ins. Co. v. Bleedorm, 132 S.W.2d 1070. (2) The trial court was correct in granting plaintiff a new trial on the eighth ground thereof, namely, because it erred in giving instructions 9, 10 and 11 to the jury at the request of the defendant. Instruction 9 submits the sole negligence defense on general negligence instead of submitting this defense on the specific acts of negligence charged in the answer against the driver of the automobile in which plaintiff was riding and attempted to be proved by defendant. Hence it was broader than the pleading and broader than the evidence and gave the jury a roving commission. Watts v. Moussette, 85 S.W.2d 492; State ex rel. Long v. Ellison, 276 Mo. 371, 199 S.W. 989; Hall v. Mfgs. Coal Coke Co., 168 S.W. 927; Connole v. E. St. Louis S. Ry. Co., 102 S.W. 589; Thompson v. St. Joseph Ry., L., H. P. Co., 131 S.W.2d 582; Pearrow v. Thompson, 121 S.W.2d 815. (a) Instruction 9 omits an essential element of the sole negligence defense in that it fails to advise the jury that the negligence of the driver of the automobile in which plaintiff was riding is not to be imputed to plaintiff in determining whether said driver's negligence was the sole cause of said collision. This is misdirection and it is not only not cured by plaintiff's prior instruction on imputed negligence but said prior instruction makes it all the more confusing because it creates a conflict between said instructions. Crowley v. Worthington, 71 S.W.2d 745; Dilallo v. Lynch, 101 S.W.2d 13; State ex rel. Long v. Ellison, 276 Mo. 371, 199 S.W. 989; Hall v. Mfgs. Coal Coke Co., 168 S.W. 927; Connole v. E. St. Louis S. Ry. Co., 102 S.W. 589; Thompson v. St. Joseph Ry., L.H. P. Co., 131 S.W.2d 582; Pearrow v. Thompson, 121 S.W.2d 815. (b) The sole negligence theory attempted to be submitted by defendant in his Instruction 9 is inconsistent with the contributory negligence theory attempted to be submitted by defendant in his Instruction 11 because both cannot be true. Kirk v. Franklin, 117 S.W.2d 289; Dilallo v. Lynch, 101 S.W.2d 10; State v. Shain, 101 S.W.2d 3. (c) Said instruction is not based on or supported by any substantial evidence. Hough v. C., R.I. P. Ry. Co., 100 S.W.2d 504. Instruction 10 (a) fails to advise the jury that the negligence of the driver of the automobile in which plaintiff was riding is not to be imputed to plaintiff in determining whether said driver's negligence was the sole cause of said collision. (b) It is inconsistent with defendant's Instruction 11 on contributory negligence. (c) It is not supported by any substantial evidence. (d) It omits another essential element of the sole negligence defense in that it fails to include the "not due to the negligence of defendant" provision, which is an essential element of a sole negligence instruction given in a guest passenger case. McGrath v. Meyers, 107 S.W.2d 795; Dilallo v. Lynch, 101 S.W.2d 13. (e) Instruction 10 is also erroneous for the reason that under the evidence of record there was no issue regarding the right of way. Therefore Instruction 10 had no legitimate place or purpose in the case and it was highly prejudicial to plaintiff in that it warranted the jury in placing the imputation of negligence on the driver of the car in which plaintiff was riding because of his apparent infringement of defendant's rights under a statute which was wholly without application to the case. Bramlett v. Harlow, 75 S.W.2d 632; Pappas Pie Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793. Instruction 11. This instruction attempts to submit claimed acts of contributory negligence which were not pleaded in the answer and were not supported by any evidence. Hence it is broader than the pleading and broader than the evidence. Rucker v. Alton Ry. Co., 123 S.W.2d 26; Watts v. Moussette, 85 S.W.2d 491; State ex rel. Central Coal Coke Co. v. Ellison, 195 S.W. 724; Pearrow v. Thompson, 121 S.W.2d 815; Clason v. Lentz, 61 S.W.2d 730; Schide v. Gottschick, 43 S.W.2d 777. (a) Instruction 11 is erroneous for the additional reason that it omits an essential element of the contributory negligence defense in that it fails to require the jury to find that the negligence attempted to be submitted therein was the cause of or was an efficient part of the cause of plaintiff's injuries. This omission constitutes incurable error, which is conclusively presumed to be prejudicial. Barrett v. Town of Canton, 93 S.W.2d 931; Connole v. E. St. Louis S. Ry. Co., 102 S.W.2d 588; Dunsmore v. Hartman, 256 S.W. 1031; State ex rel. Long v. Ellison, 199 S.W. 988; McComb v. Bowen, 73 S.W.2d 300. (b) It assumes as a fact and so tells the jury that the driver of the car in which plaintiff was riding could have avoided the collision and failed to do so, which was and is a disputed fact. Blech v. Berzon, 61 S.W.2d 202; Glaser v. Rothschild, 120 S.W. 9. (3) The granting of a new trial rests within the sound discretion of the trial court and its action in that respect will not be disturbed on appeal unless it appears that its discretionary power was abused. Appellant has failed to show that the trial court abused its discretionary power. Rodan v. St. Louis Transit Co., 105 S.W. 1065; Pilkington v. Pilkington, 39 S.W.2d 1073; Arnold v. Alton Ry. Co., 124 S.W.2d 1095; Thompson v. St. Joseph Ry., L., H. P. Co., 131 S.W.2d 582.
This is an action for personal injuries which resulted in a jury verdict for the appellant. The trial court sustained respondent's motion for a new trial on the ground, among others, that the court erred in excluding from the evidence subdivision B of Section 43, as revised by Ordinance No. 2340, Revised Ordinances of Kansas City, Missouri. From this order granting a new trial the appellant has duly appealed to this Court.
The respondent was a passenger in an automobile which collided with another automobile driven by the appellant. The collision occurred at the intersection of Thirteenth Street and Troost Avenue in Kansas City. Respondent sought to recover damages for personal injuries which she received as a result of the collision. There was evidence that the appellant drove his car into this intersection at a rate of speed of 35 miles per hour. The respondent's amended petition contained the charge "that he (appellant) negligently drove and operated his said automobile at a dangerous and excessive rate of speed under the circumstances then and there existing."
At the close of respondent's evidence the following occurred:
"MR. VAUGHN: That is all of our witnesses, if the Court please. Plaintiff offers in evidence sub-division `B' of Section 43 as revised by Ordinance No. 2340, Revised Ordinances of Kansas City, Missouri, and offers to read the following part of it to the jury: `Any person who violates the foregoing basic rule or who drives or operates a vehicle at a rate of speed in excess of that indicated as follows, shall, upon conviction, be punished as provided in Section 11 of this Code. Said indicated speeds are as follows: Sub-division "B": Upon approaching within fifty feet of, and in traversing an intersection of a street, except that upon traveling upon boulevard or through street, the traffic controlling intersection speed shall control. No. 1 is twenty miles an hour.' I want to read that to the jury.
"MR. DEACY: Defendant objects to the offer for the reason that no ordinance of Kansas City is plead.
"THE COURT: Sustained.
"MR. VAUGHAN: We are offering this evidence to the fact that 35 miles an hour speed through an intersection is negligence.
"MR. DEACY: I still object to it. It isn't properly in evidence unless pleaded.
"THE COURT: Sustained.
"MR. KEATING: Plaintiff rests."
The appellant frankly admits in his brief that "this, of course, under the Missouri law, was not a proper ground for objection." It is unnecessary to plead an ordinance where it is used merely as evidence, and the cause of action is not based on a violation thereof. [Bailey v. Kansas City, 189 Mo. 503, 87 S.W. 1182; Collins v. Leahy, 102 S.W.2d 801.]
But appellant contends that the trial court erred in sustaining respondent's motion for a new trial. "Since the trial court sustained defendant's (appellant's) objection to plaintiff's (respondent's) offer of Section 43, Ordinance 2340 and excluded it from the evidence this action of the trial court should not be disturbed upon the motion for a new trial . . . if plaintiff's (respondent's) offer was not proper for any reason regardless of the grounds stated in defendant's (appellant's) objection."
To sustain his position, appellant relies upon the rule announced in the case of Connor v. Black, 119 Mo. 126, l.c. 135, 24 S.W. 184:
"The rule has long been well settled in this State by an unbroken line of decisions that where the evidence offered is admissible for any purpose, such objections are too general and should not be sustained. The ground of the objections under such circumstances should be specific, so that when the attention of the court is called to them the objections may be obviated, if possible to do so. [Margrave v. Ansmuss, 51 Mo. 561; Public Schools v. Risley, 40 Mo. 358; Clark v. People's Loan Co., 46 Mo. App. 248.] But, where the evidence offered is inadmissible for any purpose, a different rule prevails, and a general objection as to its admissibility on the ground that it is incompetent, immaterial and irrelevant, is sufficient. [State v. Meyers, 99 Mo. 107; Alcorn v. Railroad, 108 Mo. 81.]"
Again, in the case of Crow, Hargadine Co. v. Stevens Mitchell, 44 Mo. App. 137, l.c. 140, the Court of Appeals said:
"The plaintiffs' counsel contend that the ground of the objection to the admission of these documents does not appear, and hence the court erred in excluding them. This is a misconception of the law. Where evidence is admitted against an objection, and error is claimed on that account, it should appear by the record that a specific objection was made which the court erroneously disregarded, but where evidence is excluded, it will suffice that it affirmatively appears by the record that it was incompetent or irrelevant regardless of the form of the objection thereto."
Since the record shows the trial court sustained the motion for a new trial because it erred in sustaining appellant's objection to this ordinance, the legal effect of this ruling would be the same as if the trial court had overruled his objections. As it is admitted that the objection was not proper, it follows under the above authorities that the ordinance should be admitted, unless it was incompetent, immaterial and irrelevant for any purpose.
Then the only question that could rightfully be considered by this Court is: Did the ordinance tend to prove any issue in the case?
The appellant contends that the ordinance is incompetent, immaterial and irrelevant and did not tend to prove any issue in this case because "there is no evidence in the record that this accident did not occur upon a boulevard or through street, in which event the 20 mile per hour speed specifically would not apply."
As we read the record, there was no contention made in the trial court that these two streets were boulevards or through streets. Since the trial court sustained respondent's motion for a new trial, the burden is upon the appellant to show this ruling is error. [Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548.] He has not sustained that burden on this point. To sustain his position appellant should affirmatively show that the street on which he was driving was a boulevard or a through street. This he has not done. Respondent had evidence that appellant was traveling 35 or 40 miles per hour as he went through this intersection. The ordinance in question limited the speed through this intersection to 20 miles per hour. It was admissible as evidence that appellant was operating his car at a negligent rate of speed in support of the common law allegation contained in the petition.
Appellant also contends that the respondent's offer of the ordinance does not comply with Section 1663, R.S. Mo. 1929, which provides:
"Printed copies of the ordinances . . . of any city or incorporated town in this state, purporting to be published by authority of such city . . . and manuscript or printed copies of such ordinances . . . certified under the hand of the officer having the same in lawful custody, with the seal of such city or town annexed, shall be received as evidence in all courts . . . without further proof; and any printed pamphlets or volume, purporting to be published by authority of any such town or city, and to contain the ordinance . . . of such town or city, shall be evidence, in all courts and places within this state, of such ordinances . . ."
We have just ruled that under the state of the record in this case, the only question open to the appellant was whether the ordinance in question tended to prove any issue in the case. But assuming that this point is properly before us, we would be forced to hold that the appellant cannot ambush either the trial court or respondent. Appellant cannot for the first time in this court question the methods of proof of the ordinance, this for the reason that the respondent is entitled to an opportunity to amend her offer and prove the ordinance by one of the methods mentioned in Section 1663, supra. "It is an established general rule that an appellate court will not consider objections raised for the first time on appeal concerning matters which, if raised in the lower court, might have been cured by amendment." [Hartford Fire Ins. Co. v. Bleedorn, 132 S.W.2d 1066, l.c. 1070.]
From what we have said, it follows that the order of the trial court sustaining the respondent's motion for a new trial should be affirmed. All concur.