Barton v. City of Odessa

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

82 S.W. 1119

109 Mo.App. 76

JOSEPH BARTON, Appellant, v. CITY OF ODESSA, Respondent

Court of Appeals of Missouri, Kansas City

November 7, 1904

Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.

Cause affirmed.

Clarence Vivion and Alexander Graves for appellant.

(1) We submit that the first and seventh counts were perfect and the motion was correctly overruled. Bank v. Lexington, 74 Mo. 104; Gas Co. v. St. Louis, 86 Mo. 498. However, we submit that both counts are good. (2) Instruction 1 was correct. These ordinances were pleaded in terms in the petition and specifically admitted in the answer. It was certainly the duty of the court to construe the pleadings by an instruction to the jury as to what was specially admitted by the answer. This is too well settled to need citations. A few will suffice: Evans v. Foreman, 60 Mo. 453; Dassler v. Wisley, 32 Mo. 498; Coal & Oil Co. v Railway, 35 Mo. 84. (3) Instruction 3 was correctly given and was fully supported by the evidence. (4) Instruction 4 was correct and is fully sustained by the doctrine announced and the instruction approved by the Supreme Court in Dooley v. Kansas City, 82 Mo. 444; Art. 2, sec. 21, Const.; see also Safford v. Board of Health of Detroit, 33 L. An. Rep. 300 et seq.

William H. Chiles and J. S. Blackwell & Son for respondent.

(1) The petition not being abstracted so as to show the seven counts it contained and their contents, and the motion to elect not being abstracted, nor for that matter included in the bill of exceptions, this court can not determine whether the action of the court below in setting aside its action on that motion was error or not and, in the absence of a showing to the contrary, this court will be obliged to affirm the action of the circuit court. Coy v. Robinson, 20 Mo.App. 462; Scott v. Howard, 41 Mo.App. 488; Hermann v Daily, 74 Mo.App. 506; Brand v. Cannon, 118 Mo 598. (2) There are several objections to instruction 1, given in behalf of appellant. It tells the jury that it is admitted that certain provisions of the city ordinances specifying them had been duly passed, etc., yet the substance of all these admissions are propositions of law in this case and not of fact and should not have been given without application to the facts of the case, just as any other law, and such instructions are abstract propositions and are misleading and error. Kendall Co. v. Bain, 46 Mo.App. 590; Leser v. Railroad, 85 Mo.App. 326; Albert v Besel, 88 Mo. 150; Carroll v. Campbell, 110 Mo. 571; Woods v. Campbell, 110 Mo. 356; Wright v. Fonda, 44 Mo.App. 643; Houpper v. Hotel Co., 142 Mo. 387. (3) Instruction 3 given for appellant is erroneous because there was no evidence whatever that "the plaintiff was compelled to and did furnish food and lodging, etc." 11 Greenleaf on Evidence (5 Ed.), sec. 27; Culberson v. Railway, 50 Mo.App. 563. (4) Instruction 4 given for appellant is also erroneous for many reasons. State ex rel. v. Schweickhardt, 109 Mo. 512; State ex rel. v. Bersch, 83 Mo.App. 668; Farrenbach v. Turner, 86 Mo. 416; 2 Smith (Beach) Municipal Corp. (1903), secs. 1052-1058 and notes. The defendant in this matter committed no legal wrong, though it may have damaged appellant, and the law affords no remedy. Land & Gravel Co. v. Commission Co., 138 Mo. 445; Sedgwick on Damages (6 Ed.), p. 28; 1 Beach on Public Corp., sec. 749; St. Louis v. McCoy, 18 Mo. 238; St. Louis v. Boffinger, 19 Mo. 13.

OPINION

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 employees. 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 lodging furnished the guests, the sick man, the nurses and employees 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:

First. Because the court erred in overruling the defendant's motion to compel the plaintiff to elect upon which count of the petition he would proceed to trial.

Second. Because the court erred in giving instructions numbered one, three and four for plaintiff.

Third. Because the verdict upon the first count is excessive.

Notwithstanding the court overruled defendant's motion to compel plaintiff to elect upon which count he would proceed to trial, yet at the commencement thereof it confined plaintiff to proof of the allegations of his first and seventh count, which action was just as effective as it would have been had defendant's motion been sustained; because in the two latter plaintiff stated two different causes of action upon both of which he was entitled to recover upon sufficient proof as will hereafter appear. It was therefore clearly error to set aside the verdict and judgment for the cause assigned that error was committed by the court in failing to sustain defendant's motion to compel plaintiff to elect upon which count he would proceed.

Instructions one and three found by the court to be erroneous are as follows:

1. "The court instructs the jury that under the answer it is admitted that defendant was on the twenty-second day of March, 1903, and now is a city of the fourth class and a municipal corporation, and that it as such passed, published and approved the two sections of ordinances as follows: 'Article 1, chapter No. 5, section 17: The mayor shall have power, by proclamation, to restrain any and all persons who may be infected with smallpox, or other infectious or contagious disease, from going at large, or from leaving the house in which such person may live or be found, until the board of health shall deem it safe to discharge such person or persons from such restraint, and if the person...