Burke v. City of St. Louis, 48126
| Court | United States State Supreme Court of Missouri |
| Citation | 349 S.W.2d 930 |
| Docket Number | No. 2,No. 48126,48126,2 |
| Parties | John J. BURKE, Appellant, v. CITY OF ST. LOUIS, a Municipal Corporation, Respondent |
| Decision Date | 09 October 1961 |
Page 930
v.
CITY OF ST. LOUIS, a Municipal Corporation, Respondent.
Page 931
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
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$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...To continue reading
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