Ulrich v. City of St. Louis

• Citation: 20 S.W. 466,112 Mo. 138
• Parties: Ulrich, Plaintiff in Error, v. City of St. Louis et al
• Decision Date: 14 November 1892
• Court: United States State Supreme Court of Missouri

20 S.W. 466

112 Mo. 138

Ulrich, Plaintiff in Error, v. City of St. Louis et al

Supreme Court of Missouri

November 14, 1892

Appeal from St. Louis City Circuit Court.

Affirmed.

C. P. & J. D. Johnson and Jos. S. Laurie for plaintiff in error.

(1) The city owed plaintiff while confined in the workhouse reasonable care and protection, and is liable for the injuries received because of the negligence of its servants. (2) A city is liable for negligence in the exercise of powers conferred for its private corporate advantage. Stewart v New Orleans, 100 Am. Dec. 218; Bailey v. New York, 3 Hill, 531; Wright v. Augusta, 78 Ga. 241; Murtaugh v. St. Louis, 44 Mo. 479; Memphis v Kimbrough, 12 Heisk. 133. The plaintiff was not a criminal while confined in the workhouse; the action against him was a civil one, and the judgment rendered one for debt. Ex parte Hollwedell, 74 Mo. 395; St. Louis v. Vert, 84 Mo. 204; City, etc., v. Brown, 44 Mo.App. 148. The workhouse itself is a source of pecuniary revenue to the city, and the city directs and controls their labor and receives its profits, and is responsible for the acts of its servants, under the facts averred in the petition in this case. Carrington v. St. Louis, 89 Mo. 209; Lewis v. City of Raleigh, 77 N.C. 229; Moulton v Scarborough, 71 Me. 267; Neff v. Wellesby, 148 Mass. 487; City of Toledo v. Cone, 44 Ohio St. 149.

W. C. Marshall for defendants in error.

(1) The city ordinances, quoted in the brief for plaintiff in error, cannot be considered by this court, nor referred to in any manner in the determination of this case. Those ordinance provisions were not pleaded, and consequently it is not proper to refer to them now. City of St. Louis v. Stoddard, 15 Mo.App. 173; City of Kansas v. Johnson, 78 Mo. 65; Apitz v. Railroad, 17 Mo.App. 419; Keane v. Klausman, 21 Mo.App. 485; Nutter v. Railroad, 22 Mo.App. 328; Heman v. Payne, 28 Mo.App. 72. (2) It is not necessary to look outside of our own state for authorities on the proposition involved in this case. Ever since the decision in the case of Murtaugh v. St. Louis, 44 Mo. 479, the rule of law has been settled in this state, that a municipal corporation is not liable in damages for the wrongful or negligent acts of its police or other officers in the execution of powers conferred upon the corporation or officers for public good, and not for private corporate advantages, unless made liable by statute law, expressly or by implication. Armstrong v. Brunswick, 79 Mo. 319; Kiley v. City of Kansas, 87 Mo. 103; Carrington v. St. Louis, 89 Mo. 215; Dillon on Municipal Corporations, sec. 965a. (3) The workhouse of the city is not an institution established and conducted for the private pecuniary gain of the city. See Dillon on Municipal Corporations, sec. 975, note 1; Caldwell v. Boone, 51 Iowa 687; Ogg v. Lansing, 35 Iowa 495; McKay v. Buffalo, 74 N.Y. 619. (4) It is nowhere alleged in the petition that the vicious and dangerous disposition of the mule consisted of its propensity to kick, and the allegation as to the knowledge of the city as to its vicious character is insufficient. Bell v. Leslie, 24 Mo.App. 670; Spring Co. v. Edgar, 99 U.S. 654.

Thomas, J. Sherwood, C. J., Brace, Gantt and Macfarlane, JJ., for the reasons expressed in the opinion of Sherwood, C. J., concur. Black, J., dissents, and Barclay, J., expresses no opinion.

OPINION

In Banc.

Thomas J.

Sherwood, C. J., made a statement and delivered the opinion of division 1 of this court in this case as follows:

"Action for damages for injuries received by plaintiff while he was imprisoned and employed in the workhouse, in satisfaction of a fine imposed for the infraction of a city ordinance. The petition is as follows:

"'Plaintiff states that the city of St. Louis, defendant herein, is and was at the dates hereinafter mentioned a municipal corporation; that on the day of plaintiff was arraigned before the police court of the city for breach of the city ordinance, and fined in the sum of $ ---; that in pursuance of said judgment and fine, and in order to collect and realize the amount thereof by his services and labor in behalf of the city, said city, by its agents, thereupon at once delivered and committed plaintiff to its workhouse, an establishment which it was authorized by law to maintain; that defendants, Joseph Geller and John Bungertner, were superintendents of said workhouse, and were the agents or employes of said city; that by the terms of his sentence plaintiff was required to serve the city forty-five days in said workhouse, and to do and perform such service and labor as was required of him; that whilst so confined and employed he was ordered and directed by defendants to hitch to a vehicle a certain pair of mules, and was required to obey, and whilst attempting so to do he was, without fault of his, violently kicked in the breast by one of said mules, whereby three of his ribs were broken, and he was occasioned great pain and anguish, and is disabled for life. Plaintiff states that said mule was of a vicious and dangerous disposition, wholly unfit for use, and unmanageable, so that it was dangerous to approach or attempt to handle the same; that said animal was owned by the city of St. Louis, and had for a long time been employed by it, and that said city, and its agents and superintendents likewise, well knew the dangerous character of said animal, as aforesaid, and that it was consequently unsafe to attempt to use it for any purpose. Plaintiff states that by reason of the premises, he has sustained damages in the sum of $ 20,000 for which he prays judgment and costs.'

"The defendants demurred generally, and were successful in so doing, and, the plaintiff failing to plead further, final judgment was given on the demurrer, and plaintiff brings error."

OPINION.

"By paragraph 10 of section 26, article 3, of the charter of the city of St. Louis, the mayor and municipal assembly are given power to impose, collect and enforce fines, forfeitures and penalties for the breach of any city ordinance. Any offender who shall neglect or refuse to pay any fine, penalty and cost that may have been imposed upon him or her shall be committed to the workhouse, or, in case of women, in such place as for them may be provided, until such fine, penalty and costs be fully paid; provided that no such imprisonment shall exceed six months for any one offense. Every person so committed to the workhouse, or such other place, aforesaid, shall be required to work for the city at such labor as his or her health and strength will permit, within or without said workhouse, or other place, not exceeding ten hours each working day; and for such work the person so employed shall be allowed, exclusive of his or her board, fifty cents a day for each day's work, on account of said fine and costs.'

"Under this charter provision of the defendant city, there can be no doubt of its power to enforce its ordinances by imprisonment and this is true, notwithstanding that such ordinances are not strictly penal.

"Whenever the law confers a right or power, it gives the enforcement of that right or power as an incident; everything necessary to making that power or right effectual or requisite to obtain the end is implied. Parker v. Way, 15 N.H. 45; 1 Kent's Commentaries, 464; Moulton v. Reid, 54 Ala. 320; 9 Bacon's Abridgments, 219-20; People v. Eddy, 57 Barb. 593.

"The origin and reason of such power are given in a standard work on municipal corporations, the learned author expressing himself on this subject thus: 'Since an ordinance or by-law without a penalty would be nugatory, municipal corporations have an implied power to provide for their enforcement by reasonable and proper fines against those who break them. So the right to make by-laws gives to the corporation, without any express grant of power, the incidental right to enforce them by reasonable pecuniary penalties. What is reasonable depends upon the nature of the offense and the circumstances.' 'In this country it is not unusual to provide, in the organic act of municipal corporations, that, if fines for violations of by-laws or ordinances are not paid, the offender may be committed to prison for a limited period. And in respect to some offenses, public in their character, the power to imprison in the first instance is often conferred.' 1 Dillon on Municipal Corporations [4 Ed.] secs. 338, 353.

"The rule of law is well settled in this state that a municipal corporation is not answerable in damages for the negligent acts of its officers in the execution of such powers as are conferred on the corporation or its officers for the public good. Murtaugh v. City, 44 Mo. 479; Hannon v. St. Louis Co., 62 Mo. 313; Armstrong v. City, 79 Mo. 319; Kiley v. City, 87 Mo. 103; Carrington v. City, 89 Mo. 208, 1 S.W. 240; Keating v. City, 84 Mo. 415; 2 Dillon on Municipal Corporations [4 Ed.] sec. 965a.

"The same author says: 'The police regulations of a city are not made and enforced in the interest of the city in its corporate capacity, but in the interest of the public. A city is not liable, therefore, for the acts of its officers in attempting to enforce such regulations (Calwell v. Boone, 51 Iowa 687, 2 N.W. 614; Odell v. Schroeder, 58 Ill. 353; Ogg v. Lansing, 35 Iowa 495; Prather v. Lexington, 13 B. Mon. 559; Elliott v. Philadelphia, 75 Pa. 347; McKay v. Buffalo (carelessly wounding plaintiff), 74 N.Y. 619), nor will it be made liable by ratifying torts of police officers.' 2 Dillon on Municipal Corporations [4 Ed.] sec. 975, p. 1197, note 1.

"The city defendant in conducting its workhouse cannot be regarded as doing so as a means of profit or private municipal gain or revenue. It is obvious beyond question that the workhouse in this...