Burke v. City of St. Louis

• Decision Date: 09 October 1961
• Docket Number: No. 2,No. 48126,48126,2
• Citation: 349 S.W.2d 930
• Parties: John J. BURKE, Appellant, v. CITY OF ST. LOUIS, a Municipal Corporation, Respondent
• Court: Missouri Supreme Court

Page 930

349 S.W.2d 930

John J. BURKE, Appellant, v. CITY OF ST. LOUIS, a Municipal Corporation, Respondent.

No. 48126.

Supreme Court of Missouri, Division No. 2.

Oct. 9, 1961.

Richard M. Stout, St. Louis, and Thomas P. Howe, Clayton, for appellant.

Thomas J. Neenan, City Counselor, Alvin J. McFarland, Associate City Counselor, St. Louis, for respondent, City of St. Louis.

BOHLING, Commissioner.

John J. Burke sued the City of St. Louis for $25,000 damages, claiming he, while an invitee, was caused to fall on the floor of the 'Soldiers' Memorial' of said city by reason of defendant's negligence in permitting a slick and slippery substance to be and remain thereon. The city obtained leave to withdraw its answer 'for the purpose of filing a motion to dismiss.' Said motion alleged plaintiff's cause of action should be dismissed because from plaintiff's petition (quoting the city's motion) 'plaintiff's cause of action, if any, arose out of his fall in the Soldiers' Memorial in the City of St. Louis, the operation, maintenance and control of which is a governmental function performed by The City of St. Louis for the general benefit, health and welfare of the citizens of St. Louis, and, under such circumstances, plaintiff is not entitled to any legal redress against defendant, while acting in its governmental capacity.' Upon the motion being presented and submitted by all parties, the court sustained the same and dismissed plaintiff's cause of action with prejudice. The plaintiff has appealed from this judgment of dismissal. The case is for determination upon rehearing.

Municipalities in Missouri are not liable in tort for the negligent performance of their governmental functions as distinguished from their proprietary or corporate functions. Hiltner v. Kansas City, Mo., 293 S.W.2d 422. When it appears from the allegations in a petition that the defendant city was engaged in the performance of a governmental function the action is subject to dismissal for failure to state a claim. Hiltner v. Kansas City, supra, 293 S.W.2d 422[3-5]; Gillen v. City of St. Louis, Mo., 345 S.W.2d 69, 73; Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080[3, 4]. When the petition pleads facts to the effect that the injury occurred in the performance of some proprietary or corporate municipal function, in addition to stating a claim based on negligence, plaintiff's action is not to be dismissed. Dallas v. City of St. Louis, Mo., 338 S.W.2d 39, 41.

The city does not contend that plaintiff's petition, upon its face, fails 'to state a claim upon which relief can be granted' under Sec.509.300(see Civil Rule 55.33, V.A.M.R.). (Statutory references are to RSMo 1959, V.A.M.S., unless otherwise shown.)

The city states the court is bound to take judicial notice (State ex rel. Honig v. Hogan, 324 Mo. 1130, 27 S.W.2d 21) of Sec. 184.250(a part of Laws 1919, p. 79, Secs. 1-3, now Secs. 184.250, 184.260 and 184.270); and the parties have stipulated that a part of 'Ordinance No. 32019' 'may be included as evidence as though it were an actual part of the original transcript of the record.' Briefly: Said Act of 1919 authorized the several counties of the state and cities not a part of a county to erect memorial buildings or other suitable testimonials in memory of the citizen soldiery of Missouri for the purposes therein specified; and appropriated State funds of not less than $250 nor more than $1,000 to match expenditures therefor by any such county or city. Said 'Ordinance 32019,' enacted in 1922, was an $88,372,500 bond issue, proposition fourteen of which submitted to the voters a $6,000,000 bond issue 'for a public plaza to be known as 'Memorial Plaza,' and for the erection therein of a memorial building or monument in appreciation of the services rendered by the Citizen Soldiers of Missouri in the late World War, and for the purpose of preserving the records and perpetuating the memory of their heroic achievements and sacrifices * * *.'

The city says that, with judicial notice taken of the mentioned statutes and the stipulated ordinance provisions, no evidence was or is needed to establish 'the true nature of the Soldiers' Memorial Building' and that the trial and this court are 'fully aware' that the operation, maintenance and control of the Soldiers' Memorial Building is a governmental function to which the doctrine of sovereign immunity applies. The city cites Cunningham v. City of St. Louis, 96 Mo. 53, 55, 8 S.W. 787, and Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, 487; but the ruling in each of said cases was made upon evidence introduced at the trial.

Roberts v. City of Lamar, Mo.App., 99 S.W.2d 498, 500, states: "The liability or non-liability of a municipality for its torts does not depend upon the nature of the tort or the relation existing between such municipality and the person injured, but upon the character of the duties imposed and assumed." See 63 C.J.S. Municipal Corporations Sec. 747, p. 34; 38 Am.Jur. Sec. 574, p. 267. The use made of a municipal building should determine the character of the function in which the city is acting. Clain v. City of Burlington, 2 Cir., 202 F.2d 532; Dean v. Board of Trustees of Soldiers and Sailors Memorial Bldg., 65 Ohio App. 362, 29 N.E.2d 910; Annotation, 47 A.L.R.2d 544; Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080[3, 4]; McQuillin, Mun.Corp., Secs. 53.31, 53.92.

Timson v. Manufacturers' Coal & Coke Co., 220 Mo. 580, 598, 119 S.W. 565, 569, states: 'Judicially noticing facts * * * is but a rule of evidence; and, if the question is a disputable one, or can be disputed, evidence so disputing it is competent and should be admitted.' Scheufler v. Continental Life Ins. Co., 350 Mo. 886, 169 S.W.2d 359, 365; Pogue v. Smallen, Mo., 285 S.W.2d 915, 917.

The city's motion does not fall within the ten specific 'objections and other matters' that may be raised by motion, supported ported by affidavits, whether or not the same appear from the pleadings and other papers filed in the cause under Sec. 509.290 (see Civil Rule 55.31) for several reasons: The immunity of a municipality from tort liability when acting in its sovereign or governmental capacity is not within the objections named. We have said that the objections authorized under Sec. 509.290 are proper only to 'dispose of an action groundless on the uncontroverted facts' (Metcalf v. American Surety Co. of N. Y., 360 Mo. 1043, 232 S.W.2d 526, 530[4, 5]; Pogue v. Smallen, Mo., 285 S.W.2d 915, 917; McLaughlin v. Neiger, Mo.App., 286 S.W.2d 380, 384[6, 7]); and that said motions may not function to raise an issue involving a real controversy over a vital fact issue concerning the merits of a plaintiff's claim (Roberts v. Epicure Foods Co., Mo., 330 S.W.2d 837, 840). The city's motion, which does not prove itself (Locasio v. Ford Motor Co., 240 Mo.App. 269, 203 S.W.2d 518; ...