Opinion
January 11, 1943.
1. — Courts — Majority Opinion. Where an opinion in separate paragraphs deals with different issues and the opinion as a whole does not meet a concurrence of a majority of the court, there is no ruling upon all questions with which it deals and opinion is controlling only in what is decided in particular paragraphs in which majority concurred and to that extent is a majority opinion.
2. — Courts. Where there is but one issue for consideration and decision and three judges concur in opinion and one other in the result, while three remaining judges dissent, there is not a majority concurrence in the opinion but there is a majority decision on single question at issue.
3. — Courts. Where opinion of Supreme Court was concurred in by three judges, while another concurred in result and remaining three dissented which resulted in affirmance of judgment of trial court that variance of one day between date of injury to be due to negligence of city and date of injury shown in notice to city was fatal to plaintiff's right of recovery against city under mandatory provision of statute prescribing conditions precedent to maintenance of action, the sole question decided in opinion met the concurrence of a majority of the court and ruling thereon was controlling authority upon a similar state of facts.
4. — Courts. Court of Appeals by constitutional compulsion must recognize Supreme Court opinion as controlling authority on question therein decided, in absence of ruling by Supreme Court on such question to the contrary.
5. — Courts. Court of Appeals would not be justified in refusing to follow former allegedly incorrect decision of Supreme Court and proceed to declare the law correctly, although in conflict with claimed erroneous decision of Supreme Court.
6. — Municipal Corporations — Negligence — Notice. Filing of petition for damages for personal injuries which constituted only notice to city of time of injury caused by defective sidewalk, alleged to have occurred on or about September 23, undisputed proof that injury occurred September 22 was fatal to right of recovery under mandatory provision of statute requiring written notice of time when injury occurred as a condition precedent to maintenance of action.
7. — Trial — Demurrer. Where evidence showed plaintiff had no right to maintain action, demurrer to the evidence should have been sustained.
Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.
REVERSED.
Clarence C. Chilcott and Preston Forsee for respondent.
(1) There was no fatal variance between the evidence and the allegations of plaintiff's petition as to the date upon which decedent was injured when Sec. 7636, R.S. 1939, is properly and reasonably construed. Sec. 7636, R.S. 1939, never did, and does not now, impose upon the citizens of this State any more than a reasonable compliance therewith. State ex rel. Columbia National Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, 467; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893; Kramer v. K.C.P.L. Co., 311 Mo. 369, 279 S.W. 43, 896; Baltimore Ohio R. Co. v. Kepner, 313 U.S. 542, 61 S.Ct. 841, 62 S.Ct. 6, 7; Reese v. St. Louis, 280 Mo. 123, 216 S.W. 315; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Costello v. Kansas City, 280 Mo. 573, 219 S.W. 386, 389; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236, 239, 240; Meiyer v. K.C., 237 S.W. 1010; Knott v. K.C., 237 S.W. 1010; Kendrick v. K.C., 237 S.W. 1011; Bersch v. Dittrick et al., 19 Mo. 129, 131; Wynn v. Coy, 43 Mo. 301, 305; Anthony v. St. Joseph, 152 Mo. App. 180, 133 S.W. 371; Koontz v. City of St. Louis, 230 Mo. App. 128, 89 S.W.2d 586, 588; Randolph v. City of Springfield, 302 Mo. 33, 257 S.W. 449; Cole v. City of St. Joseph, 50 S.W.2d 623; Kling v. K.C., 277 Mo. 387 Mo. App. 1248, 61 S.W.2d 411, 415; Sanders v. K.C., 107 S.W.2d 795; State ex rel. Thomas v. Daues et al., 314 Mo. 13, 283 S.W. 51; State ex rel. Woodson v. Trimble et al., 287 S.W. 626. (2) The evidence is undisputed that appellant had opened the street to the public and had constructed the walk upon which decedent fell and was, therefore, liable for a failure to keep it in a reasonably safe condition. The evidence further showed that said walk was not maintained or kept in a reasonably safe condition for public use and that the appellant was liable therefor. Snickles v. City of St. Joseph, 155 Mo. App. 308, 136 S.W. 752; Browning v. City of Aurora, 190 Mo. App. 477, 177 S.W. 685; Abey v. Mo. Pac. R. Co., 313 Mo. 492, 285 S.W. 965, 6 S.W.2d 1115; O'Gorman v. K.C., 233 Mo. App. 124, 93 S.W.2d 1132; Jackson v. City of Sedalia, 193 Mo. App. 597, 187 S.W. 127, 129; Henson v. K.C., 227 Mo. 443, 210 S.W. 13; Proctor v. City of Poplar Bluff, 184 S.W. 123, 126; Williams v. City of Hannibal, 94 Mo. App. 549, 68 S.W. 381, 382; Edmonston v. K.C., 227 Mo. App. 817, 57 S.W.2d 690; Brolin v. The City of Independence, 232 Mo. App. 1056, 1114 S.W.2d 199; Norton v. Kramer, 180 Mo. 536, 79 S.W. 699; Sutter v. K.C., 138 Mo. App. 105, 119 S.W. 1084; Drake v. K.C., 190 Mo. 370, 389, 88 S.W. 689, 695; Ross v. City of St. Joseph, 250 S.W. 625; Cooper v. City of Caruthersville, 264 S.W. 46; Horan v. City of Independence, 176 S.W. 1061. (3) The court did not err in giving respondent's Instruction No. 1. The first paragraph thereof was coupled to the succeeding paragraph, which directed a verdict, by the conjunction "and" requiring a proper finding of fact. If such instruction was erroneous it was cured by appellant's Instruction "G." Munden v. K.C., 225 Mo. App. 791, 38 S.W.2d 540, 543, 544; Reed v. City of St. Joseph, 218 Mo. App. 651, 266 S.W. 330, 331; Drake v. K.C.P.S. Co., 63 S.W.2d 75, 83; Dohring v. K.C., 81 S.W.2d 943, 946; Lueking v. City of Sedalia, 180 Mo. App. 203, 167 S.W. 1152, 1153; State ex rel. Col. National Bank of K.C. v. Davis, 314 Mo. 373, 284 S.W. 464, 467; State ex rel. Hopkins v. Daues, 319 Mo. 373, 6 S.W.2d 893; Davis v. City of Independence, 330 Mo. 201, 49 S.W.2d 95; Jordan v. St. Joseph R.R.L.H. P. Co., 335 Mo. 319, 73 S.W.2d 205; Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W.2d 604; Schell v. Ransom Coal Grain Co., 79 S.W.2d 543; Martin v. Continental Ins. Co., 256 S.W. 120; Kiger v. Sanco, 1 S.W.2d 218; Murphy v. Fid. Nat. Bank Trust Co., 226 Mo. App. 1181, 49 S.W.2d 668; O'Howell v. Miller, 11 S.W.2d 1068; Shouse v. Dubinsky, 38 S.W.2d 531.
William E. Kemp and John J. Cosgrove for appellant.
(1) The court erred in refusing to give instruction lettered "A" in the nature of a demurrer to the evidence offered by the defendant at the close of plaintiff's evidence and defendant's instruction lettered "B" in the nature of a demurrer to the evidence offered at the close of all the evidence for the following reasons: (a) There was a fatal variance in the evidence from the allegations in the petition as to the time of the injury. The petition alleges that the accident occurred on or about the 23rd day of September, 1933, the evidence shows that the accident occurred September 22, 1933. Treating the petition as written notice as required Sec. 7636, R.S. 1939, the notice is not sufficient to comply with the terms of said section. It does not give the time when the injuries were received and plaintiff is not entitled to maintain her action. Hackenyos v. St. Louis, 203 S.W. 986; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Kling v. Kansas City, 61 S.W.2d 414; Cole v. St. Joseph, 50 S.W.2d 623. (b) Plaintiff's evidence wholly fails to prove actionable negligence against the defendant in the maintenance of the pathway in question: (1) if the stone upon which plaintiff stepped was not reasonably safe there was no evidence as to how long its alleged unsafe condition had existed and no evidence that defendant knew, or in the exercise of ordinary care, could have known of such unsafe condition in time thereafter in the exercise of ordinary care to have remedied or repaired the same; (2) there was nothing deceptive about the pathway but on the contrary its nature and character were obvious to pedestrians using the same and the surface thereof was such that one using it knew that he would likely step upon loose stones; (3) defendant was not negligent in maintaining a path of rock at the place and under the circumstances mentioned in the evidence. Starkey v. City, 189 Mo. App. 352, 175 S.W. 314; Tavano v. City, 192 N.E. 23; Cole v. City, 50 S.W.2d 623; Cannon v. Town, 152 N.E. 752; Maxwell v. Kansas City, 52 S.W.2d 487; McQuaid v. City, 201 Ill. App. 136; Stanka v. Shamokin, 66 Pa. Sup. Rep. 553; McKone v. Village of Warsaw, 187 N.Y. 336, 80 N.E. 212; Emery v. Pittsburg, 119 A. 603; Quinn v. New York, 129 N.Y.S. 1028; Fritsche v. City, 116 P.2d 562; City of Huntington v. Bartrom, 95 N.E. 544. (c) If the stone upon which plaintiff stepped was unsafe or insecure for walking thereon such defect was a latent defect, could not have been known by the exercise of ordinary care, and defendant is not liable therefor. Carvin v. St. Louis, 151 Mo. 334, 52 S.W. 210; Baustian v. Young, 152 Mo. 317, 326; Buckley v. Kansas City, 156 Mo. 16, 25. (2) The court erred in giving, over objection of defendant, plaintiff's Instruction No. 1 for the reasons: (a) The first paragraph of said instruction contains an erroneous abstract statement of the law in that it broadens the duty of the city by omitting the element that one using a sidewalk must himself exercise ordinary care for his own safety. Ryan v. Kansas City, 232 Mo. 471, 483; Reiling v. Russell, 153 S.W.2d 6; O'Neill v. City, 292 Mo. 656, 239 S.W. 94. (b) The instruction submits a general condition of loose rock while the evidence shows that plaintiff stepped upon a single stone embedded in the earth that looked solid to her. There is no evidence upon which to submit actual or constructive notice to the city. Cases cited under subdivision (c) of Point (1), supra.
Viola Atchley as plaintiff obtained judgment on a jury's verdict against Kansas City in the sum of $2000 for personal injury alleged to be due to the negligence of defendant. The city duly appealed. Plaintiff died before the appeal was presented. Upon suggestion of death and by agreement of parties the case was revived by an order of this court in the name of the duly appointed administrator, as shown in the present caption of the case.
The points presented on appeal pertain solely to the alleged error of the court in refusing to give defendant's instruction in the nature of a demurrer to the evidence, and in giving plaintiff's recovery instruction. One of the grounds urged in support of the demurrer is that plaintiff failed to give, and that the city never received, written notice of the time of plaintiff's alleged injury and her claim therefor as required by section 7636, Revised Statutes 1939, and that there was a fatal variance in the evidence from the allegations of the petition as to the time of the injury. There was no written notice served upon the mayor prior to the filing of suit, but the petition was filed and the defendant filed answer thereto prior to the expiration of ninety days after the alleged injury. The issue as to the sufficiency of notice was raised before trial in defendant's amended answer. The only question in reference to the pleadings and to the issue thus raised is whether the petition was sufficient to inform defendant of the time of the injury in conformity with the requirement of the applicable statute.
The petition alleges "that on or about the twenty-third day of September, 1933," while she was walking upon and over a public sidewalk constructed of broken rock or rubble she was caused to slip and fall, and as a direct result thereof she was seriously and permanently injured. During the trial plaintiff testified, both upon direct and cross-examination, that her injury occurred on the 22d day of September, 1933. There is no claim made by respondent that this was not the true date of the injury. But conceding that to be a fact, it is elaborately and strenuously urged that the notice afforded by the petition of an injury occurring on the 23d day of September, 1933, was a substantial compliance with the requirements of the statute in reference to notice of the time of the injury, and that support of this contention may be found in many adjudged cases.
The applicable statute which is now section 7636, Revised Statutes 1939, has been carried forward without alteration from its original enactment in Laws 1913, page 545. It reads as follows:
" Action for damages maintained, how. No action shall be maintained against any city of this State which now has or may hereafter attain a population of one hundred thousand inhabitants, on account of any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare in said city, until notice shall first have been given in writing to the mayor of said city, within ninety days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of the injury, and that the person so injured will claim damages therefor from such city."
Is the petition sufficient to conform to the requirement of the statute in stating "the time when such injury was received;" or, in other words, is the variance of one day's time from the date alleged fatal to plaintiff's right to maintain the action?
The case of Hackenyos v. St. Louis, 203 S.W. 986, is the storm center for the argument of opposing counsel on the issue raised. Appellant contends that an identical factual situation was presented in that case. The notice stated that the injury occurred "on or about the 1st day of September, 1913." Plaintiff testified that the injury occurred "on the 2d day of September, 1913." The opinion for the Supreme Court, in banc, was written by a Commissioner. Three of the judges concurred in the opinion and one concurred in the result, which was an affirmance of the judgment of the trial court that the notice did not comply with the statute, and that plaintiff was not entitled to maintain her action. A vigorous dissent was written by one of the judges and met the concurrence of two others.
Respondent contends that there was no authoritative opinion rendered in the case and that the decision there made is not controlling authority upon the question here presented because the opinion received the concurrence of only three judges while a fourth judge concurred only in the result, and the three other judges dissented. It is therefore claimed that the court was equally divided and that no majority opinion was rendered. Respondent cites State ex rel. Columbia National Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, and State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W.2d 893, and asserts that what was said in those cases in reference to the effect of opinions in other cases sustains respondent's position on the precise question of whether or not the opinion in the Hackenyos case was a majority opinion and controlling authority. The discussion in the opinions of the cited cases reveals a manifest distinction between what is a majority opinion and a majority decision. Where an opinion in separate paragraphs deals with different issues and the opinion as a whole does not meet a concurrence of a majority of the court, then there is no ruling upon all of the questions with which it deals, and it is controlling only in what is decided in the particular paragraphs in which the majority concurs and to that extent it is a majority opinion. When there is but one issue for consideration and decision, as in the Hackenyos case, and three judges concur in the opinion and one other in the result, it may well be said, as respondent claims, that there is not a majority concurrence in the opinion. But where there is a concurrence in the result of the ruling made on a single question there is nevertheless a majority decision on that question. The result in the Hackenyos case was an affirmance of the judgment of the trial court to the effect that a variance of one day between the date shown in the notice and the date of injury was fatal to plaintiff's right of recovery under the mandatory provision of the statute prescribing the conditions of a maintainable action. The scope and effect of the decision was thus confined to a single question. What was said in the opinion is of secondary moment to what was decided. Concurrence in the decision rather than in the opinion is the matter of vital importance. After due consideration it appears that there is no escape from the conclusion that the question ruled in the Hackenyos case, and the sole question there decided, met the concurrence of a majority of the court, and that the ruling there made is controlling authority upon a similar state of facts presented in the case now on review. There is no room for rival interpretations.
Respondent claims that subsequent decisions tend to discredit the holding in the Hackenyos case and are indicative of a more liberal construction of the statute. Particular reference is made to the case of Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001. The ruling in that case was that notice of injury "on or about January 25, 1918," was a substantial compliance with the statute upon showing that the injury actually occurred on January 25. What is said in the State Report about the Hackenyos case, beginning at page 638, clearly indicates that the court regarded that decision as valid and existing law, and harmonized the Boyd case with it. The ruling in the case of Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 36, followed that in the Boyd case in holding that a notice of injury "on or about the 27th day of January, 1918" was a sufficient notice to entitle plaintiff to maintain her suit upon showing that the injury occurred on the day named, the 27th day of January. This court in the case of Kling v. Kansas City, 227 Mo. App. l.c. 1252, 61 S.W.2d 411, recognized the Hackenyos case as controlling on the question decided. No ruling of the Supreme Court to the contrary has been discovered. This court by constitutional compulsion must recognize it as controlling authority. [Amendment of 1884, Sec. 6, Art. VI.]
The final suggestion of respondent on this phase of the case is that it is "the duty of this court to refuse to follow any former incorrect decision whether rendered by the Supreme Court or not," and proceed to declare the law correctly although in conflict with an erroneous decision of the Supreme Court. Reference is made to an experiment of that character as shown in the case of State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51. But there is nothing in the case pending before this court to justify such a vagrant innovation as that suggested and a violation of duty imposed by the Constitution and the oath of office of every judge of this court. The Supreme Court as the ultimate repository of judicial authority is not only able to correct its own errors, if any, but is the appropriate tribunal for that purpose. If the interpretation of the statute made by the court is deemed to be harsh and unjust a remedy might be found in the legislative forum.
Under the law as declared in this State, on the facts in this case, plaintiff had no right to maintain her action. The demurrer to the evidence should have been sustained. The judgment should be reversed, and the Commissioner so recommends. Sperry, C., concurs.
The foregoing opinion of BOYER, C., is adopted as the opinion of the court. The judgment is reversed. All concur.