Barree v. City of Cape Girardeau

• Decision Date: 19 June 1906
• Citation: 95 S.W. 330,197 Mo. 382
• Parties: BARREE v. CITY OF CAPE GIRARDEAU.
• Court: Missouri Supreme Court

95 S.W. 330

197 Mo. 382

BARREE v. CITY OF CAPE GIRARDEAU.

Supreme Court of Missouri, Division No. 2.

June 19, 1906.

1. MUNICIPAL CORPORATIONS — TORTS — LIABILITY.

A municipal corporation is liable for negligence in the construction of its streets, that being a ministerial function relating to corporate interests only; and where it does such work by its servants negligently, or where in the line of their employment its servants injure some one, it is liable.

2. SAME—TORTS OF SERVANT.

A city was charged with the duty of keeping its streets in repair. Its employés deposited on a street a large quantity of gravel, and obstructed a street car track thereon. An employé in charge of a car removed the gravel for the purpose of avoiding the obstruction, and while so doing an employé of the city inflicted an injury on him in trying to prevent the street repairs from being interfered with. Held, that the city was liable for the injury inflicted by its employé.

3. PRINCIPAL AND AGENT—WRONGFUL ACT OF AGENT—LIABILITY OF PRINCIPAL.

Where an agent is employed to perform a certain piece of work, and while in the performance of his duty he injures another, the principal is responsible to the party injured, though the agent exceeded his authority and disobeyed his instructions.

Appeal from Circuit Court, Cape Girardeau County.

Action by Elija Barree against the city of Cape Girardeau. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Sam M. Green and R. G. Ranney, for appellant. L. Caruthers and Robert L. Wilson, for respondent.

BURGESS, P. J.

This is an action for $10,000 damages alleged to have been sustained by plaintiff by reason of the wrongful and unlawful acts and assault by one Fritz Brunke, agent and servant of defendant, upon plaintiff. The petition, leaving off the formal parts, is as follows: "Plaintiff for his cause of action, by leave of court first had and obtained for his amended petition herein, states: That at all times hereinafter mentioned, he was the lessee of the Cape Girardeau Street Railway Company, a corporation duly incorporated under and by the laws of the state of Missouri, and which said corporation was and is the successor or assign of W. A. Penney and L. S. Joseph, to whom was granted by the defendant, by ordinance No. 484, duly passed and adopted by said defendant, the right to construct and operate a street railway within the city of Cape Girardeau, Mo., and especially over and along and through Spanish street of said city; that by the terms of his said agreement with said street railway company he had the same right to operate and run street cars over said streets in said city that the said street railway company has, and had, at said times, and the plaintiff was at the times hereinafter mentioned running and operating street cars, under and by virtue of his said agreement, over the said streets within said city. That the defendant is, and was, at all said times a municipal corporation, organized and existing under the laws of the state of Missouri, and was, and is, a city of the third class, exercising all the powers and bound by all the duties of cities of that class. That at all said times said Spanish street of said city was a public highway, and it became, and was then and there, the duty of the defendant to at all times keep the same in repair and free from obstructions; but not regarding its duty in that behalf, on or about the 21st day of August, 1902, the said defendant, by its agents, servants, and employés, and especially its agent and servant, Fritz Brunke, did, carelessly, negligently, and wrongfully, place and deposit in and on said Spanish street near Merriwether street a large quantity of gravel or broken stones, and in so doing, carelessly, negligently, and wrongfully covered up and thereby obstructed the rails or track on which plaintiff's cars had to run, with said gravel or broken stones, so that it became and was then and there impossible for plaintiff to operate and run his cars over said streets and carry his passengers to their destinations without great danger to his said car and passengers. Thereupon plaintiff stopped his car, and for the purpose of avoiding said danger, began to remove said gravel or broken stones from his said rails and tracks; and the said Fritz Brunke, being then and there the agent and servant of the defendant, and engaged in placing said gravel, or broken stones on said street for the purpose of repairing the same, and seeing the plaintiff removing said stones from his said rails and tracks, ordered him, the said plaintiff, not to interfere with said gravel or broken stones which had been placed on said rails as aforesaid by the said city defendant, and upon plaintiff's refusal to obey said order, the said Fritz Brunke then and there seized plaintiff by the right arm and jerked him away with great force and violence; and the plaintiff to save himself from being dragged over the streets and injured, caught hold of one of the iron rods on his car with his left hand; but the said Brunke, as the said agent and employé of the the defendant, and still trying to prevent said gravel and stones from being interfered with, and for the purpose of protecting the defendant's streets from interference by the plaintiff, then and there, negligently, carelessly, and wrongfully jerked plaintiff's hand loose from said car with such force and violence that plaintiff's left arm was thereby greatly strained, bruised, and injured. And to further protect defendant's streets, and to prevent said gravel and broken stones from being removed, the said Brunke then and there struck, beat, and otherwise abused this plaintiff by dragging him over the streets, taking him away from his car and attempting to lock him up in a dungeon in a remote part of the said city. That by reason of said injuries plaintiff's said left arm has been rendered useless and permanently disabled; that he has suffered great pain of body and distress of mind; that in consequence of said injuries inflicted as aforesaid he has been forced...