Barton v. City of Odessa

• Decision Date: 07 November 1904
• Citation: 109 Mo. App. 76,82 S.W. 1119
• Parties: BARTON v. CITY OF ODESSA.
• Court: Missouri Court of Appeals

82 S.W. 1119

109 Mo. App. 76

BARTON v. CITY OF ODESSA.

Kansas City Court of Appeals. Missouri.

November 7, 1904.

MUNICIPAL CORPORATIONS — HEALTH REGULATIONS — CONTAGIOUS DISEASES — QUARANTINE — SEIZURE OF PRIVATE PROPERTY — TRIAL — INSTRUCTIONS — QUESTIONS OF LAW — COMPELLING ELECTION — REMITTITUR — APPEAL — HARMLESS ERROR.

1. Where at the commencement of the trial the court confined plaintiff to two counts of his petition, each of which stated a different cause of action, and on both of which he was entitled to recover, the proof being sufficient, it was error for the court to set aside the verdict and judgment rendered on such counts, for any error committed in overruling a motion made by defendant before the trial to compel plaintiff to elect upon which count he would proceed to trial.

2. The proper province of an instruction is to submit questions of fact, and not propositions of law.

3. A party to a suit has the right to demand that the jury be instructed what facts are admitted of record.

4. Where the fact that an ordinance is in force is admitted, the application of the ordinance is a question of law for the construction of the court.

5. An instruction authorizing a finding for plaintiff if he was "compelled" to furnish food and lodging "at the request" of defendant, while somewhat contradictory, was not materially erroneous, as against defendant, who would be liable either in case plaintiff was compelled to furnish such food and lodging, or in case he was requested so to do.

6. Where plaintiff failed to avail himself of the privilege of entering a remittitur of a part of an excessive verdict, it was not error for the court not to compel a remittitur of the excess, but to grant defendant a new trial.

7. Where a city, by Rev. St. 1899, § 5961, was authorized to make regulations for the prevention of contagious diseases, and to make and

enforce quarantine laws, and also regulations to secure the general health of the city, and was also authorized to purchase property beyond its limits for a pesthouse, it was liable in damages for its act in seizing private property without the consent of the owner, and without compensation, for the purpose of a temporary pesthouse.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Joseph Barton against the city of Odessa. From an order setting aside a finding and judgment in favor of plaintiff, and granting a new trial, plaintiff appeals. Affirmed.

Clarence Vivion and Alexander Graves, for appellant. Wm. H. Chiles and J. S. Blackwell & Son, for respondent.

BROADDUS, J.

The facts of the case, generally speaking, were as follows: On and prior to March 23, 1903, the plaintiff was engaged in the business of keeping a hotel in Odessa, a city of the fourth class, in said Lafayette county. That said defendant city at said time, by its charter, and under the laws of the state, was authorized to, and did, pass ordinances regulating quarantine for contagious diseases. That it was the duty of defendant to provide a necessary and suitable place within its limits for the use of persons infected with such contagious diseases, including that of smallpox. That on said day aforesaid, while plaintiff was conducting his said business in defendant city at what was known as the "Myrtle Hotel," one of the guests thereof became infected with the smallpox, a contagious disease. When the fact was discovered that an occupant of the hotel was ill with smallpox, the proper city authorities, instead of removing the sick person from the hotel — it being, on account of his critical condition, unsafe to him to do so — quarantined the hotel itself; it being then occupied by plaintiff and family, several guests, and plaintiff's employés. The defendant city kept control of the hotel for several weeks, at the expiration of which, no other cases of smallpox having developed, the house was fumigated, and plaintiff resumed his business. The plaintiff's petition contained seven counts. He was permitted to recover on the first and seventh. In the first count he seeks to recover the value of food and lodgings furnished the guests, the sick man, the nurses, and employés he alleges he was forced to furnish at the request of the defendant. The seventh count of the petition is a claim for damages in the sum of $1,000, which he alleges he sustained in consequence of defendant's action in seizing and holding possession of his said hotel. Defendant answered by general denial, and further that the city authorities acted in good faith, and that plaintiff agreed to furnish board and lodging to the inmates (other than those of his family), to the sick man, and nurses in said hotel, at a specified rate, which in the total amounted to only $54.57, which it tendered to the plaintiff. And defendant further alleged that it had agreed with plaintiff to pay him the sum of $12.50 for certain property belonging to him which was destroyed during the occupancy by defendant of said hotel as a quarantine station. There are other general allegations in the answer, which, for the purposes of the present inquiry, are not material. The remaining counts of the petition are not in issue, as the appeal was taken from the action of the court in setting aside the finding and judgment in favor of plaintiff on the first and seventh counts. The jury rendered a verdict for the plaintiff on the first count for $125, and on the seventh for $200. The court sustained defendant's motion for new trial on the following grounds: (1) Because the court erred in overruling the defendant's motion to...