Coffey v. City of Carthage

BURGESS, P. J.

This case was before this court on a former appeal by the plaintiff and will be found reported in 186 Mo. 573 , wherein a full and fair statement of the salient facts may be found. The judgment was reversed and the cause remanded. Thereafter plaintiff presented an application for a change of venue based upon the grounds that she could not have a fair and impartial trial before the judge of the division of the court in which the cause was then pending, on account of the prejudice of said jndge, and also alleging that she could not have a fair and impartial trial in the other division of said court, presided over by Judge Howard Gray, on account of his prejudice against her, and because he was interested in the result of the trial of the cause, in that, he was the owner of a large' amount of property in the defendant city subject to taxation for municipal purposes.

The motion was sustained and a change of venue awarded to the circuit court of Newton county in the *621 24th judicial circuit, to which action of the court plaintiff at the time excepted.

After the cause was transferred to the circuit court of Newton county the defendant filed its motion to dismiss the case and strike the same from the docket of that court on the ground, among others, that the Jasper Circuit Court consisted of two divisions presided over by two judges, and that the plaintiff in her application for change of venue could only disqualify the judge in whose division the case was pending, which motion was overruled, and defendant duly saved its exceptions. The case was tried on the 22d day of December, 1905, in the Newton Circuit Court, and a verdict for thirty-five hundred dollars rendered in favor of the plaintiff. Motions for a new trial and in arrest of judgment were filed and overruled and defendant duly excepted, and appeals.

Defendant insists that the act of the General Assembly approved March 25, 1901, entitled, “An Act in relation to the 25th judicial circuit, dividing the court into two divisions, providing two judges for the transaction of the business of said court, for the appointment of an additional judge and fixing the salary of said judges,” is void in so far as it relates to changes of venue, because in violation of article 4, section 28, of the Constitution, providing that no law ‘ ‘ shall relate to more than one subject, and that shall be expressed in its title.”

While the matter of change of venue is not mentioned in the title to the act it certainly has a natural connection therewith, and it has always been held by the court that such provisions in a law are valid. Thus, in State ex rel. v. Mead, 71 Mo. 266 , it was said that, “a provision in an act ‘concerning popular elections,’ authorizing the Governor to fill vacancies in elective offices, is germane to the general subject and is valid.” So it was held in the case of Ewing v. Hoblitzelle, 85 *622 Mo. 70 , that a statute providing for the registration of voters, and to govern elections and to create the office of recorder of votes, contained but one subject, and in that case it was said that an act containing provisions relating to matters which are germane to the 'general subject is not obnoxious to the constitutional inhibition that “no bill shall contain more than one subject.” To the same effect are State v. Bennett, 102 Mo. 356 ; Lynch v. Murphy, 119 Mo. 163 , and eases cited. It is not at all necessary to the validity of an act of the Legislature that it embrace every detail of legislation embraced in it, but all the Constitution requires is that the subject embraced, in the act shall be fairly and naturally germane to that recited in the title and we think such is the case with respect to the provision of the act in question.

Other grounds for dismissal assigned in said motion were as follows:

“Second. That the act, ‘Courts of record, Circuit Courts,’ Laws 1901, page 120', passed- and approved March 25,1901, is unconstitutional and void so far as it relates to changes of venue, for the following reasons: The title to said act does not include change of venue, and is in violation of article 4, section 28, of the Constitution.

“That said act is in violation of article 4, section 28, of Constitution.

“Said act is in violation of article 4, section 53, of the Constitution.

“That said act is in violation of article 4, section 53, paragraph 33.

“Finally, said act is void for want of uniformity as a general law.

“Because the affidavit for a change of venue was not sufficient for the reason that it does not sufficiently allege the time when the information of the causes set *623 forth for change of venue came to the knowledge of the plaintiff.

“That the application for a change of venue does not state in the body thereof that the plaintiff could not have a fair, and impartial trial for the reasons alleged therein.”

It is now earnestly insisted that the court erred in overruling this motion because at the time plaintiff’s application for change of venue was made there were two divisions of the Jasper Circuit Court, presided over by as many judges; that this case was assigned for trial to Division No. 2, presided over by Judge Dabbs; that the application sought to disqualify, not only Judge Dabbs on account of prejudice, but also Judge Gray of the other division, and that Judge Dabbs, in granting! the change of venue to Newton county, did so without any proof or showing of prejudice by Judge Gray against the plaintiff, in‘the absence of which the cause should have been sent to Division No. One. But the circuit court of Jasper county over which Judge Dabbs presided had jurisdiction of the subject-matter and of the parties to the suit, and the power to award a change of venue; and although the order for the change may have been made without any existing cause therefor, or without any proof in support of the motion, or even if it had been made without any affidavit at all, still it is not a nullity, at most an irregularity, and the circuit court of Newton county had no authority to dismiss the cause upon the motion.

It should have been made at the time the application for a change of venue was acted upon. [Potter v. Adams’ Exrs., 24 Mo. 159 .] In Stearns v. Railroad, 94 Mo. 317 , it is held that in order to enable this court to review the action of the circuit court in passing upon an application for a change of venue it must appear that an objection was made and an exception saved at the term and in the court awarding the change of venue. [State v. Dodson, 72 Mo. 283 ; Squires v. Chilli *624 cothe, 89 Mo. 230 ; Keen v. Schnedler, 92 Mo. 516 ; State v. Taylor, 132 Mo. 282 .]

While it does not seem to he insisted upon in this court, the point was made by defendant in its motion for a new trial that said section six with respect to changes of venue is local and special in its application in that it applies to one county and one judicial circuit only, and, comes within the inhibition of section 53, article 4, of the Constitution, which prohibits the enactment of any local or special law, where a general law can be made applicable; and as to whether or not a general law could have been made applicable in any case, is declared to be a judicial question, and as such to be judicially determined, without regard to any legislative assertion upon that subject.

We are unable to agree to this contention. While the law has special reference to the procedure in applications for change of venue in the 25th judicial circuit, it applies alike to all litigants in said court, whomsoever they may be, and its constitutionality must be determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates, and if it affects generally all persons within its operation, it is neither a local nor a special law. [State ex rel. v. Yancy, 123 Mo. 391 , and authorities cited.]

It is upon this principle that an act of the Legislature providing for the holding of two terms of the circuit court at Montgomery City in Montgomery county was held not a local or special law, in the case of State ex rel. Hughlett v. Hughes, 104 Mo. 459 ; and that an act of the Legislature establishing the Greene County Criminal Court, and an act separating the clerical duties of that court from the office of the’ circuit clerk, were held not to be local or special laws in the case of State ex rel. v. Yancy, 123 Mo. 391 . [See, also, State v. Etchman, 189 Mo. 648 .]

*625 The right of the Legislature to pass an act for an additional circuit judge in the 25th judicial circuit being conceded, there can he no question with respect to its right to provide by appropriate legislation for the change of the venue in any cause pending in said court, and to provide that it should he transferred to the division presided over by the other judge, unless reason exist against both judges of said court, then such change should he allowed, to the circuit court of some other county, as now or hereafter provided by general statutes or otherwise disposed of according to law.

As was said by Pox, J., in State v. Etchman, supra: “It is sufficient to say that, having held that the act creating the criminal court was constitutional, the power exists by implication to provide for every necessary incident, without which it could not become properly organized.”

The provision of the act under consideration simply provides that in case of the disqualification of one of two judges in the same circuit that the one ordering a change of the venue in a cause before him shall transfer it to the other, and does no more than provide for a condition not provided for by the general statutes, and is in no sense either local or special within the meaning of the Constitution.

What we have said finds support in the fact that the constitutionality of the act was recognized by the Kansas City Court of Appeals in State ex rel. v. D'abbs, 118 Mo. App. 663 , though not directly passed upon in that case.

It is said for defendant that there was no substantial evidence to authorize the verdict in that the evidence showed that plaintiff was not at the time of the accident in the exercise of ordinary care; that it showed that she was perfectly familiar with the place of the accident and knew the existence of the hole. And *626 that there was no substantial evidence that the city of Carthage had ever taken charge of the sidewalk in question. These assertions are not sustained by the record; upon the contrary, there was evidence in regard to all of these matters of an affirmative character on the part of plaintiff sufficient to take the case to the jury. As to the contention that plaintiff was not in the exercise of ordinary care at the time of the accident, that was an affirmative defense on the part of the defendant, and was so pleaded in the answer, and the burden of proof in that respect was upon the defendant.

The action of the court in permitting the plaintiff, against defendant’s objection, to read in evidence Ordinance No. 144 of defendant city, is assigned for error. The contention is that no foundation whatever was laid for its introduction in evidence. But it appears from the record that a stipulation was entered into between the parties by their attorneys, to the effect that the copy of said ordinance, as preserved in the former bill of exceptions, could be used as evidence in lieu of the original of said ordinance, and that the testimony of R. L-undy as preserved in said bill of exceptions could be used in evidence subject to the same objections by defendant that the original evidence would be subject to, the testimony of R. Lundy, city clerk, with respect to said ordinance included. Under this stipulation this evidence was properly admitted, and shows that the original evidence referred to was part of the revised ordinances of said city; that the same was an official record, and as such, the copy thereof as preserved in the former bill of exceptions was by reason of said stipulation properly admitted in evidence. [1 Green-leaf on Evidence (16 Ed.),-sees. 483, 484.]

Plaintiff’s instruction “H” is complained of upon the ground as contended that it told the jury that under the ordinance in evidence it devolved upon- defendant to keep the entire ten-foot space from the curb *627 to the lot line open to the public as a sidewalk, including the grass plot, and reasonably safe' for pedestrians, directing the jury that such assumption should be considered by them in arriving at their verdict. This instruction was given careful consideration by this court when the case was here before, and with respect thereto Judge Fox, in speaking for the court, said:

“Under the ordinances introduced in evidence, it is clear that the entire space between the curbstone and the lot line, including the grass plot, was embraced in the sidewalk and expressly set apart for that purpose by the ordinances of the city. This being true, it was incumbent upon the city to keep the entire space thrown open to the public as a sidewalk, in a condition reasonably safe for pedestrians who may have occasion to use it. The Kansas City Court of Appeals, in Fockler v. Kansas City, 94 Mo. App. 464 , properly declared the law applicable to this proposition. It is in perfect harmony with the rule announced by this court in the cases cited in support of the conclusions reached. In the discussion of the question before the court in that case, which was substantially the same as the one in the ease at bar, the law was thus very clearly and concisely presented:

“ ‘It is the well-settled law of this State that it is the duty of cities to keep their streets in a reasonably safe condition fbr the use of the traveling public, and for a .failure to perform this duty they are held to be liable to persons for injuries received by them while traveling thereon in the exercise of due care. It is true that in the case of Tritz v. City of Kansas, 84 Mo. 632 , the court held that “a city is bound to keep only so much of its sidewalk in good condition and repair as is necessary to render it reasonably safe for travel.” But in the subsequent cases of Walker v. City of Kansas, 99 Mo. 647 , and Kossman v. St. Louis, 153 Mo. 283 , the Tritz case was overruled and is no longer authority *628 in this State. The contention of the city is that, as the space left between the sidewalk and the street curbing was not intended for the use of pedestrians, the city owed no duty to the plaintiff to keep, it free from dangerous obstructions. It will be readily conceded that the city, for obvious reasons, had the right to leave a space between the curbing of the street and the sidewalk unimproved. In other words, it was not compelled to put the entire space occupied by the street in the same uniform condition for travel. Cities are not compelled to pave and provide sidewalks for their streets, but they may do so for their own convenience and for the use of the public. But they are compelled to keep them, when thrown open to public use, in a reasonably safe condition for travel. It seems to us that the difficulty with the defendant’s contention is that because the city left a portion of its street unimproved along with and as a part of that which was improved, it owed no duty whatever to the public as to the former.’ [Goins v. Moberly, 127 Mo. 116 .] ”

The same rule is announced in the recent case of Ely v. St. Louis, 181 Mo. 723 , relied upon by defendant, and is in accord with wéll-settled law. The case of Fritz v. City of Kansas, 84 Mo. 632 , also relied upon by defendant as sustaining its contention, has long since been overruled. [Walker v. City of Kansas, 99 Mo. 647 ; Roe v. City of Kansas, 100 Mo. 190 ; Goins v. Moberly, 127 Mo. 116 ,]

Defendant complains of the action of the court in refusing instruction number ten asked by it to the converse of said instruction “H” given in behalf of plaintiff, but if plaintiff’s instruction was correct, as we have held, defendant’s instruction was erroneous and properly refused.

The instructions given when taken all together, while in some respects subject to verbal criticism, presented the case very fairly to the jury.

*629 Finding no reversible error in the record, we affirm the judgment.

All concur.