Bowden v. The City of Kansas City

• Decision Date: 07 July 1904
• Docket Number: 13,366
• Parties: D. E. BOWDEN v. THE CITY OF KANSAS CITY, KANSAS
• Court: Kansas Supreme Court

77 P. 573

69 Kan. 587

D. E. BOWDEN v. THE CITY OF KANSAS CITY, KANSAS

No. 13,366

Supreme Court of Kansas

July 7, 1904

Decided July, 1904.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

CITIES AND CITY OFFICERS -- Liability for Injuries to Firemen. A municipal corporation is performing a ministerial public duty in maintaining a fire station, and is liable in damages to an employee for personal injuries resulting from the neglect of the corporation to furnish him a reasonably safe place in which to work.

True & Sims, for plaintiff in error; Keplinger & Trickett of counsel.

J. W. Dana, city counselor, and M. J. Reitz, city attorney, for defendant in error.

GREENE J. All the Justices concurring.

OPINION

GREENE, J.:

The plaintiff prosecutes error from a judgment sustaining a demurrer to his petition. The material facts alleged in the petition, which present the question discussed in this opinion, briefly summarized, are that the defendant, a city of the first class, maintains a fire department and fire stations; that plaintiff was in charge of station No. 3, in which were kept a hose-cart and horses for drawing it; that it was his duty to clasp the collar on the horses when they dashed from their stalls to the tongue of the hose-cart upon the alarm of fire; that the floor between where the horses stood and the tongue of this cart, which had been laid with wooden blocks, had become so worn and rotten that a large hole had been made in the runway, which the city had negligently permitted to remain for a long period of time, notwithstanding the fact that the attention of the fire marshal had frequently been called to it and he had repeatedly promised to cause it to be repaired; that the city knew the floor was out of repair and had negligently omitted to put it in order; that on the occasion of plaintiff's injury he was in the discharge of his duties when a fire-alarm was turned in and one of the horses made a dash for the tongue of the hose-cart, where plaintiff was waiting to receive it to clasp the collar of the harness, the horse stumbled into the hole, falling heavily against plaintiff, which resulted in serious injuries, for which he sought to recover damages in this action.

It is contended that the petition does not affirmatively show that the city had notice of the defective and dangerous condition of the floor, and that it affirmatively shows that the plaintiff assumed the risk of injury which would probably result from such defective condition of the floor. Neither of these contentions is well taken. In some particulars the petition is not very specific in its allegations, but it is not fatally defective in either of the respects mentioned. It is plain that the court below did not sustain the demurrer on either of these grounds.

The important question, and the one to which counsel have directed their attention, is, Can a municipal corporation be made to respond in damages to the plaintiff for injuries sustained through its negligence in not furnishing him a reasonably safe place in which to perform his duties as an employee in one of its fire stations? Non-liability is asserted on the ground that municipal corporations are created by the state to assist in the administration of its laws; that the maintenance of a fire department is a governmental duty, and in the performance of such duty cities are limited sovereignties, or miniature states, and are exempt from all liability for the misfeasance of their agents. Whether the corporation in this instance was acting as a governmental agency in a public capacity representing the inhabitants of the city, or in its private corporate capacity, is not a material question; in either instance it was acting within the scope of its delegated authority. It possessed the power to provide and maintain a fire department for the protection of the property of the inhabitants, and in this respect it was performing a public duty. In order that this power might be more effectually executed the office of fire marshal was created. The mayor and council were given power to appoint such officer, prescribe his duties, provide for his salary, and control him in the discharge of such duties as were imposed upon him, and hold him responsible for the manner in which he should perform them. Therefore, the fire marshal, while so acting, was the agent of the city and not an officer of the state.

In determining the necessity for a fire department, the number and location of fire stations, the kind, quality and number of fire-extinguishers, and all matters involving the efficiency of such department, the council are in the exercise of their legislative power, judgment, and discretion. In the performance of such duties the questions of non-feasance or misfeasance are not subjects of judicial inquiry. Having, however, determined these questions, the execution of the work and the management of its property is ministerial. In determining the locality, width and grade of streets, and in establishing a system of sewers, and the kind and location of the pipes therefor, the corporation exercises its legislative authority; in the one instance as a government instrumentality; in the other, in its public capacity, as benefactor of the inhabitants. In either case the city is liable to property owners for injury to their property occasioned by the negligent execution of the plan.

The case of City of Toledo v. Cone, 41 Ohio St. 149, 163, was an action to recover damages for personal injuries sustained by the falling of an embankment supporting a vault in the city cemetery. The court said:

"We think it is evident from these statutory provisions that the trustees of the cemetery in question were elected by the people of Toledo, to take charge, as their agents, of the cemetery property, and acted in that behalf in subordination to and subject to removal by the council of the corporation. The improvement or repair of the city vault, through their agency and that of the superintendent, was not a legislative or governmental act on the part of the city, but was merely the discharge of a ministerial duty, such as the city performs in repairing or improving its streets, sewers, and wharves. It lay within the legislative capacity, judgment and discretion of the city to provide a cemetery for the burial of the dead and to build requisite vaults; but, having become the owner of such property, the city in managing it was held to the same degree of care in preventing damage to others as would be required of natural persons. By section 8 of the act of May, 1869, municipal corporations are made capable of acquiring, holding and...