Brown v. City of Craig

• Decision Date: 02 March 1943
• Docket Number: 38263
• Citation: 168 S.W.2d 1080,350 Mo. 836
• Parties: Jewell Brown, Appellant, v. The City of Craig, a Municipal Corporation, Respondent
• Court: Missouri Supreme Court

168 S.W.2d 1080

350 Mo. 836

Jewell Brown, Appellant, v. The City of Craig, a Municipal Corporation, Respondent

No. 38263

Supreme Court of Missouri

March 2, 1943

Appeal from Nodaway Circuit Court; Hon. Ellis Beavers Judge.

Affirmed.

Clayton W. Allen and Marion R. Garstang for appellant.

(1) A municipal corporation which creates or permits a nuisance is guilty of tort, and like a private corporation or individual and to the same extent, is liable for damages in a civil action to any person suffering special injury therefrom irrespective of the question of negligence. 43 C. J. 956, sec. 1734; 75 A. L. R. 1196; McCleery v. City of Marshall, 65 S.W.2d 1042; Brown v. Scruggs & Kansas City, 141 Mo.App. 632; Colwell v. Waterbury, 74 Conn. 568; Wilson v. City of Portland, 58 P.2d 257; Bacon v. Town of Rocky Hill, 11 A.2d 401. (2) The immunity of municipal corporations from liability for acts done in the performance of governmental functions does not extend to cases of injuries resulting from a nuisance created or maintained by a city and a city is liable for such injuries although the nuisance was created or maintained in the course of the discharge of public duties or governmental functions. 43 C. J. 956, Sec. 1734; 75 A. L. R. 1196; Windle v. City of Springfield, 8 S.W.2d 61; Kersey v. City of Atlanta, 193 Ga. 862, 20 S.E.2d 245; Dist. of Columbia v. Tolten, 55 App. D. C. 312, 5 F.2d 374, certiorari denied 269 U.S. 562; Adams v. City of Toledo, 96 P.2d 1078; Oklahoma City v. Tyteniez, 43 P.2d 747, 171 Okla. 519. (3) A municipal corporation is liable for personal injuries or death resulting from a nuisance created or maintained by it and cannot escape liability under the defense of immunity in connection with a governmental function because injuries resulting from nuisance are an exception to the rule of governmental immunity. This rule applies to city jails and the police power. 43 C. J. 956, sec. 1734; 75 A. L. R. 1196, l. c. 1199; Brown v. City of Marshall, 71 S.W.2d 856; Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401; Dutton v. City of Independence, 50 S.W.2d 161; Jensen v. Kansas City, 181 Mo.App. 359; Nations v. St. Joseph, 5 S.W.2d 1106; Capp v. St. Louis, 251 Mo. 345, 158 S.W. 616; Hoffman v. Bristol, 113 Conn. 386, 155 A. 499, 75 A. L. R. 1191; Dist. of Columbia v. Tatten, 55 App. D. C. 312, 5 F.2d 374, certiorari denied 269 U.S. 562; Guthrie v. St. Charles, 152 S.W.2d 91; Limpert v. St. Charles, 158 S.W.2d 249; Bland v. St. Louis, 162 S.W.2d 822; Herman v. City of Buffalo, 214 N.Y. 316, 108 N.E. 451; Speir v. City of Brooklyn, 34 N.E. 727, 139 N.Y. 6; Peters v. Moses, 12 N.Y.S. (2d) 735; Wray v. City of Independence, 92 P.2d 83; Towner v. City of Melrose, 25 N.E.2d 336.

L. A. Vonderschmidt and Livengood & Weightman for respondent.

(1) The City of Craig is not liable for the reason that in the erection and maintenance of a city jail, it was in the exercise of a purely governmental power. 43 C. J., sec. 1933, pp. 1168 to 1169; 43 C. J. 921, sec. 1701; Ulrich v. St. Louis, 112 Mo. 138, 20 S.W. 466; Wilks v. City of Caruthersville, 162 Mo.App. 492, 142 S.W. 800; Thomas v. City of Kennett, 178 S.W. 254; Slater v. City of Joplin, 176 S.W. 241; Zummo v. Kansas City, 225 S.W. 934; 46 A. L. R., p. 100; 46 A. L. R., l. c. 103; McAuliffe v. Victor, 15 Colo.App. 337, 62 P. 231; Nichols v. Fountain, 165 N.C. 166, 52 L. R. A. (N. S.) 942, 80 S.E. 1059; Alvord v. Richmond, 3 Ohio St. 136; Carty v. Winooski, 78 Vt. 104, 62 A. 45, 19 Am. Negl. Rep. 565; Finkelstein v. New York, 183 A.D. 539, 169 N.Y.S. 718. (2) It is only in jurisdictions where liability is predicated upon a statutory enactment that municipal corporations have been held liable in cases of this kind. 43 C. J. 956-957; Edwards v. Town of Pocahontas, 47 F. 268.

OPINION

Hyde, J.

This is an action for $ 10,000.00 damages for wrongful death of plaintiff's husband from the burning of the city jail in which he was confined, "to await trial for the misdemeanor of intoxication." Defendant's general demurrer was sustained and judgment of dismissal entered from which plaintiff has appealed.

Plaintiff's petition stated that in using this jail the city "maintained a dangerous nuisance and death trap" (which conclusion is often repeated); but further stated the particulars upon which this claim was based, as follows:

"That said jail . . . was located in a building to itself and was located in a part of said town that was and is not closely inhabited and was located a long distance away from any other buildings or dwellings where other people live and was located at a place where people are not likely to be about and that said jail is isolated to itself; that no means of communication of any kind is or was provided in said city jail . . . whereby parties who might be lawfully confined therein awaiting trial could communicate with city officials or with the proper officers of the fire department or with any person whatsoever in the event fire should break out in said jail; . . . that said jail . . . was of sound proof construction and was so built that a person lawfully confined therein awaiting trial could not call to any officer of said city nor to any fire station or fire officer nor even to any passer-by or neighbor and could not warn any of said officers or persons of a dangerous condition arising in said jail due to fire breaking out therein; . . . that said city jail . . . was not provided with fire extinguishers of any kind nor with fire protection of any kind; that said city jail . . . was of air-tight construction and that no openings were provided therein for ventilation; that no ventilating system of any kind was installed in said city jail; . . . that said city jail . . . was of small dimensions and that it was dangerous to place persons therein because of the lack of proper ventilation and because of the danger of fire and of suffocation from smoke; that said city jail . . . was so carelessly and negligently constructed that a person lawfully confined in the cell therein could not reach the outer door or any outer opening whatever, to secure ventilation or to give an alarm of fire or other danger that might arise; that said outer door and all windows in said jail . . . were kept locked and closed tight and could not be opened for proper ventilation; that no adequate light was provided in said city jail; . . . that said city jail . . . was carelessly and negligently left unkept and uncleaned and that great amounts of trash, rubbish, paper, rags, dirt, filth, grease, oil, clothing and bed clothing, old papers and magazines, matches, cigarette stubs and combustible material had accumulated therein; . . . that the bed clothing in said city jail . . . were carelessly and negligently permitted to become and remain dirty, filthy and unkept and that matches, cigarette stubs, smoking tobacco, grease and oil accumulated therein and had so accumulated for a long time to the knowledge of said City of Craig and the officers and mayor thereof; . . . and that said bed clothing was of a dangerous and combustible type and that said bed clothing was permitted to remain in said jail . . . in the daytime and that prisoners and persons confined therein awaiting trial were permitted to take matches and smoking tobacco and materials into said jail; that no warning was given of the dangerous condition of said jail . . . nor any warning given against lighting matches therein nor against smoking therein and that the light in said jail . . . was not sufficient to permit prisoners or persons therein awaiting trial to see and be aware of the dangerous condition thereof due to the careless and negligent construction and maintenance thereof; . . . that no inspection of said jail was provided by said City of Craig; that said City of Craig negligently and carelessly failed to provide a watchman or jailor or any other officer or attendant for said jail."

Plaintiff recognizes the rule "that a city is not liable for the negligent act of its agent or officer in connection with a governmental function"; and frankly admits that, if this petition were based on such negligence, "it would have to fail." Plaintiff's contention, however, is that the petition pleads an injury resulting from the creation and maintenance of a nuisance for which a city is liable even though it be in connection with the exercise of governmental functions. We reviewed the authorities on this subject in Pearson v. Kansas City, 331 Mo. 885, 55...