Behrmann v. City of St. Louis

• Citation: 201 S.W. 547,273 Mo. 578
• Decision Date: 04 March 1918
• Docket Number: No. 19055.,19055.
• Parties: BEHRMANN v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

201 S.W. 547

273 Mo. 578

BEHRMANN v. CITY OF ST. LOUIS.

No. 19055.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appeal from St. Louis Circuit Court; Kent Koerner, Judge.

Action by Ernst Behrmann against the City of St. Louis. From judgment for defendant, plaintiff appeals. Affirmed.

Wm. Zachritz and Harmon J. Bliss, both of St. Louis, for appellant. Charles H. Danes and Everett Paul Griffin, both of St. Louis, for respondent.

BOND, J.

I. Action to recover $15,000 damages for personal injuries alleged to have been sustained by plaintiff through the negligence of an employé of the city of St. Louis. The petition alleged that on November 19, 1913, while plaintiff was engaged in repairing a gutter on a certain slaughterhouse in the city of St. Louis, and while he was standing on a ladder which rested against the top of the building, which was about 16 feet in height, its base resting on the ground, about 4 feet from the wall of the building, a garbage wagon, owned and operated by the city of St. Louis, and in charge of one of its employés, was driven through the alley in which plaintiff was working, and the driver, in the discharge of his duties as garbage collector, negligently stopped his team directly behind the ladder on which plaintiff was standing at work, although the alley was at that point more than 16 feet wide; that the driver left his team of mules with no one to watch them, and during his absence, and while plaintiff was intently engaged in his work, with his back to said alley, the mules suddenly started forward and struck the lower part of the ladder, throwing plaintiff violently to the ground, and seriously and permanently injured him. A general demurrer was filed by the defendant city, upon the sustention of which the plaintiff refused to plead further, whereupon judgment was rendered for defendant and appealed from by plaintiff.

II. The sole question presented by the sustention of the demurrer in this case is whether or not, upon the facts stated in the petition, the city was acting in its governmental and public capacity, or in its private and proprietary capacity, in which latter event it would be liable for the negligence of its agents and employés in the same way as an individual. This question must be regarded as stare decisis, if the rulings in the recent cases are to be adhered to. It cannot be distinguished in principle from the case of Cassidy v. St. Jo., 247 Mo. loc. cit. 197, 152 S. W. 306, affirmed in ...