Barree v. City of Cape Girardeau

• Decision Date: 19 June 1906
• Parties: BARREE, Appellant, v. CITY OF CAPE GIRARDEAU
• Court: Missouri Supreme Court

95 S.W. 330

197 Mo. 382

BARREE, Appellant, v. CITY OF CAPE GIRARDEAU

Supreme Court of Missouri, Division Two

June 19, 1906

Appeal from Cape Girardeau Circuit Court. -- Hon. Henry C. Riley Judge.

Reversed and remanded.

Sam M Green and R. G. Ranney for appellant.

(1) All the allegations in the petition are, by the demurrer admitted to be true for the purpose of deciding the question raised by it. McKenzie v. Mathews, 59 Mo. 99. (2) The sole contention of respondent's counsel in the trial court was that the defendant, being a municipal corporation, could not be held responsible for the non-feasance of its servant. This contention was based on the case of Ulrich v. St. Louis, 112 Mo. 138. But in this case, as in all the others on this question, the court makes the same distinction, viz: That no relation of agency exists between the municipal corporation and its officers with respect to the discharge of public, governmental duties, and the corporation is not responsible for the acts or omissions of its officers. This is nothing more than an application and proper extension of the rule that the State is not liable for the misfeasance of its officers. Shearman & Redfield on Negligence, sec. 253. But where the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable, as in the case of private corporations or parties. Murtaugh v. St. Louis, 44 Mo. 479; Williams, Municipal Liability for Torts, sec. 11; Hunt v. Boonville, 65 Mo. 620; Hilsdorf v. St. Louis, 50 Mo. 94; Angell and Ames on Corporations, secs. 385-8; Sheldon v. Kalamazoo, 24 Mich. 385. And this is true, even though it may seem ultimately to the benefit of the public. Williams, Municipal Liability for Torts, sec. 17; Maxmilliam v. Mayor of New York, 62 N.Y. 167; Garretzen v. Duenckel, 50 Mo. 104; Meade v. Railroad, 68 Mo.App. 92; Ephland v. Railroad, 137 Mo. 187; Mound City Paint & Color Co. v. Conton, 15 Mo.App. 601; Schmidt v. Adams, 18 Mo.App. 432; Wood on Master & Servant, secs. 267-287; Harriman v. Stone, 57 Mo. 93; Whitehead v. Railroad, 99 Mo. 263. For wanton acts of the servant while acting within the scope of his authority resulting in personal injury, the master is responsible. Perkins v. Railroad, 55 Mo. 201; Echert v. St. Louis Transfer Co., 2 Mo.App. 362. The doctrine of respondeat superior applies. Hoehl v. Railroad, 119 Mo. 339; Dillon on Municipal Corporations (4 Ed.), sec. 974.

L. Caruthers and Robert L. Wilson for respondent.

A municipal corporation exercising the powers, which are public and governmental functions delegated to it by the State exclusively for the public good, is not liable for negligence or malfeasance of its officers. One of the public duties of a city is to keep its streets in repair and for that the city receives no compensation. If powers are granted for public purposes exclusively, they belong to the corporate body in its political or municipal character and the uniform ruling in this State has been that a municipal corporation is not responsible for the malfeasance of its officers when in discharge of a public duty, and in the discharge of which the corporation receives no pecuniary advantage. Murtaugh v. St. Louis, 44 Mo. 479; Armstrong v. Brunswick, 79 Mo. 321; Kiley v. Kansas City, 87 Mo. 106; Ulrich v. St. Louis, 112 Mo. 142; Jefferson Co. v. St. Louis Co., 113 Mo. 629; Donahue v. Kansas City, 136 Mo. 664; Bullmaster v. St. Joseph, 70 Mo.App. 63. There is a line of cases where municipal corporations have been held liable for damages for malfeasance of their officers, but in principle are unlike the case at bar. The rule laid down in those cases in this: That when the officer or servant of a municipal corporation is in the exercise of a power conferred upon the corporation for its private benefit, and injury ensues from the negligence or misfeasance of such officer or servant, the corporation is liable as in the case of private corporation or parties, but when the acts or omissions complained of were done or omitted in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, then the corporation is not liable for malfeasance of its officers.

OPINION

BURGESS, P. J.

This is an action for ten thousand dollars 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, Missouri, 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 employees, 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 employee of 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 to give up his said contract with said street railway company, and ever since has been wholly incapacitated for any kind of labor; and altogether he has been damaged by reason thereof in the sum of ten thousand dollars, for which he asks judgment."

Defendant city demurred to...