Cassidy v. City of St. Joseph

• Decision Date: 24 December 1912
• Citation: 152 S.W. 306,247 Mo. 197
• Parties: CASSIDY v. CITY OF ST. JOSEPH.
• Court: Missouri Supreme Court

152 S.W. 306

247 Mo. 197

CASSIDY v. CITY OF ST. JOSEPH.

Supreme Court of Missouri, Division No. 1.

December 24, 1912.

1. APPEAL AND ERROR (§ 361) — ORDER GRANTING APPEAL — AFFIDAVIT TO SUPPORT APPEAL — SUFFICIENCY.

An order of the circuit court granting an appeal does not confer jurisdiction on the appellate court, in the absence of a sufficient affidavit to support the appeal, and the affidavit must state in substance the facts required by statute, or show on its face such an attempt to comply in good faith with the statutory requirements as imposes on respondent the burden of making timely objection.

2. APPEAL AND ERROR (§ 361) — AFFIDAVIT IN SUPPORT OF APPEAL — OBJECTIONS — WAIVER.

The duty of respondent to make timely objection to an affidavit to support the appeal exists

where the affidavit may be amended, and a failure to make timely objection is a waiver of the defects, and a respondent who waits more than 2½ years, and until considerable expense has been incurred and labor performed in preparing for a hearing on the merits, may not question the sufficiency of the affidavit.

3. APPEAL AND ERROR (§ 367) — STATUTORY AFFIDAVIT IN SUPPORT OF APPEAL — REQUISITES — "VEXATION" — "DELAY."

The words "vexation" and "delay" in Rev. St. 1909, § 2040, requiring appellant to file an affidavit stating that the appeal is not made for vexation or delay, are not synonymous, but the word "vexation" expresses a peculiar meaning not expressed by any other word in the statute, and an affidavit must contain the word "vexation" as well as the word "delay."

4. APPEAL AND ERROR (§ 367) — AFFIDAVIT IN SUPPORT OF APPEAL — "CLERICAL ERROR."

The omission of the word "vexation" in an affidavit of appeal otherwise complying with Rev. St. 1909, § 2040, requiring appellant to file an affidavit stating that the appeal is not made for vexation or delay, is a clerical error, which is a mistake in copying or writing, and the affidavit on an amendment is sufficient to give jurisdiction on appeal in the absence of timely objection.

5. STATES (§ 112) — TORTS — LIABILITY.

In the absence of an express statute to that effect, the state is not liable for damages either for nonperformance of its powers or for their improper exercise by those charged with their execution.

6. TOWNS (§ 45) — COUNTIES (§ 142) — "TOWNSHIP" — TORTS — LIABILITIES.

Counties and townships are quasi corporations formed to exercise purely governmental powers, and, in the absence of an express statute to that effect, are not liable for damages either for the nonexercise of their powers, or for their improper exercise by those charged with their execution.

7. MUNICIPAL CORPORATIONS (§ 728) — TORTS — LIABILITY.

A municipal corporation, in the exercise of discretionary powers of a public or legislative character, is not liable for damages in the absence of some statute to that effect; but, when the exercise of such powers cease to be discretionary, it is liable.

8. MUNICIPAL CORPORATIONS (§ 733) — TORTS — LIABILITY.

A municipal corporation exercises discretionary power of a public or legislative character in locating its streets, and is not liable for a failure to locate streets or for a mislocation, but an absolute duty rests on it to use reasonable care in their improvement and maintenance, and it is liable to any one injured by its negligence.

9. MUNICIPAL CORPORATIONS (§ 733) — TORTS — LIABILITY.

A municipal corporation engaged in cleaning its streets is exercising its discretionary powers of a legislative character, and it is not answerable for injuries to an employé caused by the negligence of any other employé.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Mary Cassidy, administratrix, against the City of St. Joseph. From an order granting a new trial after verdict for defendant, it appeals. Reversed.

W. B. Norris, O. E. Schultz, and P. A. Slattery, all of St. Joseph, for appellant. J. B. O'Connor and J. W. Boyd, both of St. Joseph, for respondent.

BROWN, C.

This is an appeal from the order of the trial court sustaining a motion for a new trial after verdict for the defendant on the ground of improper language used by defendant's attorney in his argument to the jury.

The affidavit for appeal omits the words "vexation or" from the form prescribed by the statute. The respondent has moved to dismiss the appeal for the reason of this omission, and the motion has been reserved for decision with the case. The transcript was filed in this court April 17, 1908. The appellant filed its abstract of the record and brief on December 29, 1911. Respondent filed her motion to dismiss the appeal October 11, 1911, and her brief upon the merits on the 14th of the same month. The suit is for $10,000 on account of the killing of one James J. Cassidy, the respondent's intestate, by a runaway team in the employment of the city, under circumstances stated in the petition as follows: "That by the provisions of said chapter 32, and said section thereof, it was at all times herein stated unlawful for any person to leave any animal standing in any street, avenue, alley, public place in the city of St. Joseph without being fastened or so guarded as to prevent its running away. That on or about the 17th day of June, 1907, at and near Savannah avenue and Jefferson street, where they intersect in the said city, defendant had said Welch and a number of laborers and men and teams and wagons under his charge and control and supervision engaged in the work of cleaning the streets. That at said time said Welch, as agent, foreman, and representative of the defendant, was in charge of the said men, laborers, teams, and wagons then and there in the employ of, and working for, the city aforesaid. That at said time there were at least two wagons and teams in the use of said city and used at said time and place by said Welch and said men and laborers under his control. That the deceased, James J. Cassidy, was then and there in the employment of the city and working for it as a laborer in its said business of cleaning said streets, and he was then and there with the other laborers under the control of and subject to the orders and directions of the said Stephen Welch. That at said time, to wit, June 17, 1907, the defendant at said place, by and through its said superintendent and foreman, Stephen Welch, carelessly and negligently left one of the said teams standing in Savannah avenue, a public street in said city, unfastened and unguarded without being fastened or guarded or hitched in any manner whatsoever, in violation of the ordinances above mentioned, then and in consequence of the carelessness and negligence of the defendant in having and leaving said team attached to said wagon unfastened and without being fastened and unguarded and without being guarded and unhitched and hitched in no manner whatever, and in consequence of the defendant's violation of said ordinance and its failure to comply with its requirements or any of them the said team became frightened and ran away, and with great force and violence ran against said deceased near the intersection of said streets, thereby inflicting upon him serious and fatal wounds and injuries, of which he died within three days thereafter."

The testimony showed that at the time of the accident the deceased was driving a team employed by the board of public works of the city of St. Joseph in cleaning the streets of that city; that at the time and place of the accident were three such teams and a number of men, including Welch, who acted as a straw boss as well as a sweeper, in sweeping the dirt from the surface of the street into little piles near the gutter from which it was taken up with shovels, loaded into the wagon and taken to the city dump. Each of these wagons was accompanied by two men, one of whom acted as driver as well as shoveler, and the other was a shoveler. The horses were gentle, and as they passed along the street they would be stopped by the driver, sometimes after passing one of these piles of dirt four or five feet. As the piles were about that distance apart, there would be two or three of them in reach of the wagon at the same time. The horses seem to have been driven by oral direction of the driver, stopping and starting at his call. As they were engaged in this work, all the three teams being within the limits of a three hundred feet block, an automobile passed one of them which it frightened with its horn so that it started instantly to run. It is claimed that the driver of this team was at the time engaged in shoveling one of the piles into the rear of his wagon....