A second rehearing has been accorded the litigants in this cause. We are of the opinion that the conclusion reached on the first rehearing, namely, that reversible error was committed in the giving of an instruction for plaintiff against the property owner, is correct, and it is herein adhered to.
The only further question for our consideration is whether this requires a reversal of the judgment as to both defendants, or whether it should be affirmed as to the city and reversed and remanded as to the Investment Company. For the reasons hereinafter stated, we have come to the conclusion that under the provisions of the statute governing this cause (Sec. 7954, R.S. 1919) the judgment should be reversed and the cause remanded as to both defendants. The evidence very strongly tends to show that the property owner is primarily liable and the city secondarily. Or, rather, if the city is liable the property owner is liable to the city for having negligently caused the condition complained of in the petition.
Considering the intent and purpose of the statute, as well as its particular wording, it is seen that under circumstances creating liability as in the case at bar, there must be only one judgment. The statute contemplates *Page 214 only one where the evidence shows that both the property owner and the city are liable. The statute reads: ". . . and no judgment shall be rendered against such city unless judgment be rendered against such other person or corporation so liable to be sued as aforesaid."
The case at bar differs from that of Hutchinson v. Mullins,189 Mo. App. 438, and other cases where a judgment was affirmed as to one and reversed as to the other defendant, for in them either the plaintiff was not to blame for the reversible error, or the evidence showed one defendant to be liable and the other not, while in the case at bar, the plaintiff caused the error and the evidence shows, or tends to show that both defendants are liable. Hence when the plaintiff committed an error which invalidated the judgment against the property owner, the city is entitled to a reversal of the judgment against it. [Wiggin v. St. Louis, 135 Mo. l.c. 569; Donoho v. Iron Works, 75 Mo. 401.]
In so holding, we think the clear intent and purpose of the statute is upheld and all complexities and puzzling situations arising, in case different judgments should be rendered under the other course, are avoided.
For the reasons herein stated, the judgment is reversed as to both defendants and the cause is remanded for a new trial. All concur.