Adams v. City of Frankford

• Decision Date: 03 April 1923
• Docket Number: No. 87943.,87943.
• Citation: 251 S.W. 125
• Parties: ADAMS v. CITY OF FRANKFORD.
• Court: Missouri Court of Appeals

251 S.W. 125

ADAMS v. CITY OF FRANKFORD.

No. 87943.

St. Louis Court of Appeals. Missouri.

April 3, 1923.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by John S. Adams against City of Frankford. Judgment for plaintiff, and defendant appeals. Affirmed.

E. L. Corwine, of Frankford, and Hostetter & Haley, of Bowling Green, for appellant. Vivian Smith, of Bowling Green, for respondent.

BIGGS, C.

Frankford, Mo., a city of the fourth class, appeals from a judgment, following a verdict of a jury for the sum, of $394.86, in an action against it based upon negligence, in that the defendant caused brushwood to be piled in Water street, a public highway in said city, in close proximity to the barn of plaintiff and did cause the said brushwood to be carelessly and negligently burned, and that as a result thereof fire was communicated to said barn to plaintiff's damage. The negligent act was done by an employe of the city engaged in clearing Water street of weeds, brush, and email trees.

The only important question involved in the appeal is whether the city should be held liable for the negligent act of its agent in burning the brush in the street near plaintiff's barn, thereby causing it to be set on fire. It is contended by defendant's counsel that in removing the weeds, brush, and small trees from Water street the city was performing a governmental function for the benefit of the public, and under the law is not liable for the negligent act of its servants doing the work.

Plaintiff asserts that the city in clearing the street of weeds, brush, and small trees was exercising a power conferred upon it for its private corporate benefit, that it was exercising a ministerial power in its private capacity and was liable for the negligent act of its servant.

In the case of Barree v. City of Cape Girardeau, 197 Mo. 382, 95 S. W. 330, 3 L. R. A. (N. S.) 1090, 114 Am. St. Rep. 763, it Is ruled that a municipality acts ministerially in constructing and repairing public improvements or work, including streets, and hence is liable to persons injured by negligence in the performance of such duties. In that case the city was held liable for the acts of its servant, while repairing streets, in assaulting a traveler, in the line of his duty, on the theory that the repair of streets is not a governmental duty. In this case, 197 Mo. loc. cit. 389, 95 S. W. loc. cit. 331, 6 L. Pa A. (N. S.) 1090, 114 Am. St. Rep. 763, the rule is declared thus:

"In McKenna v. St. Louis, 6 Mo. App. 320, it is said: `Municipal corporations are considered by law in two aspects. In one, their functions are chiefly ministerial, and relate to corporate interests only. These include the making and improving of streets, the construction of sewers and other improvements and keeping them in repair, the holding of property for corporate purposes, etc. But as to these matters of strictly corporate interest there are often duties to be performed of a legislative or judicial character. In the other aspect, the corporation is regarded as holding a quasi delegated sovereignty for the preservation of the public peace and safety and the prevention of crime. This includes the maintenance of a police force, the appointment of officers charged with the public health, the establishing of regulations for the suppression of vice, and other matters of public...