Best v. Schoemehl

• Decision Date: 24 May 1983
• Docket Number: No. 46026,46026
• Citation: Best v. Schoemehl, 652 S.W.2d 740 (Mo. App. 1983)
• Parties: Linda BEST, Appellant, v. Mayor Vincent SCHOEMEHL, Thomas Purcell, Homer Sayad, Charles Valier and Robert Wintersmith, et al., Respondents.
• Court: Missouri Court of Appeals

Page 740

652 S.W.2d 740

Linda BEST, Appellant, v.Mayor Vincent SCHOEMEHL, Thomas Purcell, Homer SayadCharles Valier and Robert Wintersmith, et al., Respondents.

No. 46026.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 24, 1983.

Theodore H. Hoffman, St. Louis, for appellant.

Edward M. Peek, Associate City Counselor, St. Louis, for respondents.

REINHARD, Judge.

Plaintiff appeals from the granting of defendants' motion to dismiss her damage suit for injuries sustained in a vehicular collision.

The scope of review on a motion to dismiss requires that we examine the pleadings allowing them their broadest intendment, treating all facts alleged as true and construing the allegations favorably to plaintiff.Porter v. Crawford & Co., 611 S.W.2d 265, 266(Mo.App.1980).Plaintiff filed her second amended petition naming as defendants Mayor Vincent Schoemehl, Thomas Purcell, Homer Sayad, Charles Valier, and Robert Wintersmith, as members of the Board of Police Commissioners, Dr. Edward Eyerman, and the City of St. Louis.In her petition, plaintiff alleges that Schoemehl, Purcell, Sayad, Valier and Wintersmith were the "individuals comprising the Board of Police Commissioners for the Metropolitan Police Department of the City of St. Louis."Plaintiff further alleges that a police vehicle, operated by an unknown employee of the Board of Police Commissioners in the course of his employment, ran a red light at a high, excessive and dangerous speed at the intersection of Grand and Lafayette in the City of St. Louis; that Dr. Edward Eyerman had to "abruptly stop" to avoid colliding with the police vehicle and as a "direct result of the negligence and carelessness of defendants, plaintiff's vehicle ... [collided] with the vehicle operated by defendantDr. Edward Eyerman."Plaintiff further alleged that the police vehicle failed to have an audible signal or have a lighted lamp displayed in violation of § 304.022, RSMo.¹

The City of St. Louis filed a motion to dismiss, which was granted.The defendants comprising the Board of Police Commissioners filed a motion to dismiss alleging that "[t]he individual members of the Board of Police Commissioners of the St. Louis Metropolitan Police Department are public officers and as such are immune from liability for acts of individual policemen."The court granted the motion and subsequently declared that order final for purposes of appeal pursuant to Rule 81.06.We have jurisdiction.Spires v. Edgar, 513 S.W.2d 372(Mo. banc 1974).

Plaintiff alleges the trial court erred in dismissing her petition.Defendants assert the trial court acted correctly "because the doctrine of respondeat superior is inapplicable ... for holding a public officer vicariously liable for the act of a subordinate employee"; that is, the Police Board members cannot be held individually liable for the acts of their employees.In support of their contention, defendants cite Jackson v. Wilson, 581 S.W.2d 39(Mo.App.1979);Rennie v. Belleview School District, 521 S.W.2d 423(Mo. banc 1975);andCarmelo v. Miller, 569 S.W.2d 365(Mo.App.1978).We do not find these cases helpful because we think defendants have mischaracterized plaintiff's petition.Viewing plaintiff's allegations as true and indulging all inferences in plaintiff's favor, we conclude plaintiff's petition is an action against the St. Louis Board of Police Commissioners as an entity to hold it liable under the doctrine of respondeat superior for the negligence of its employee and not an action against the board members individually.

It has long been established that the St. Louis Board of Police Commissioners may only be sued by bringing an action against the individual members of the Board in their official capacity.An action against the "St. Louis Board of Police Commissioners" in that name alone does not lie.American Fire Alarm Co. v. Board of Police Commissioners, 285 Mo. 581, 227 S.W. 114(Mo.1920).

Here, the individuals comprising the Board of Police Commissioners have been named as defendants in their official capacity.This is not an attempt to hold the Commissioners individually liable, but is the only method to properly bring the St. Louis Board of Police Commissioners before the Court.

While sovereign immunity attaches to the operation and maintenance of a police force, Carmelo v. Miller, 569 S.W.2d 365, 368(Mo.App.1978), by virtue of § 537.600(1), which provides that sovereign immunity of a public entity is waived in suits for "injuries directly resulting from the negligent acts or omissions by public employees arising out of the operation of motor vehicles within the course of their employment", it is now settled that a governmental employer is liable under the doctrine of respondeat superior for the negligence of its employee in the operation of a motor vehicle.State ex rel. Shannon County v. Chilton, 626 S.W.2d 426, 428(Mo.App.1981);Oberkramer v. City of Ellisville, 650 S.W.2d 286(Mo.App.E.D.1983).In Oberkramer, this court expressly held that a municipality may be liable in tort under the doctrine of respondeat superior for the negligent operation of a motor vehicle by one of its police officers performed within the course of his employment.

The St. Louis Board of Police Commissioners was created by the Missouri Legislature(Act of ...