City of New Kiowa v. Craven

• Decision Date: 11 April 1891
• Citation: 26 P. 426,46 Kan. 114
• Parties: CITY OF NEW KIOWA v. CRAVEN.
• Court: Kansas Supreme Court

26 P. 426

46 Kan. 114

CITY OF NEW KIOWA v. CRAVEN.

Supreme Court of Kansas

April 11, 1891

Syllabus

1. The case of La Clef v. City of Concordia, 41 Kan. 323, 21 P. Rep 272, followed.

2. Neither paragraph 1013, Gen. St. 1889, nor paragraph 3552 Gen. St. 1889, compels a city of the third class to keep and maintain a city prison which shall be comfortable, suitable, and healthy. Paragraph 1013 gives a city marshall authroity to keep all persons arrested in the city prison, county jail, or some other suitable and safe place. Paragraph 3552 concerns county jails only, and has no application to city prisons or jails.

Error from district court, Barber county; C. W. ELLIS, Judge.

Sample & Long, for plaintiff in error.

W. S. Denton and T. S. Brown, for defendant in error.

OPINION

HORTON, C. J.

On the 28th day of September, 1886, Thomas Craven, the husband of Mrs. Kate Craven, was arrested in the city of New Kiowa, in Barber county, by the city marshal, for being drunk in the streets of the city, and also for using indecent and profane language. He was taken to the city prison by the marshal in the afternoon of the 28th of September, and confined in the jail until about 9 o’clock the next morning. On the 9th of October, 1886, he died. Subsequently Mrs. Kate Craven, his widow, was appointed administratrix of his estate, and on the 3d day of December, 1886, she brought her action against the city of New Kiowa, a city of the third class, to recover the sum of $10,000. She alleged that the city prison was a small wooden building, poorly ventilated, dark, filthy, and uninhabitable; that the city of New Kiowa failed to properly ventilate the prison, or provide a bed for persons confined therein to sleep; that on account of the exposure and confinement in the prison, together with being compelled to breathe the poisonous air thereof, her husband, Thomas Craven, contracted a violent disease, of which he afterwards died. Trial before the court with a jury. The jury found a verdict for $1,000 against the city, and judgment was entered thereon. The city excepted, and brings the case here. It is contended on the part of the city that the case of La Clef v. City of Concordia, 41 Kan. 323, 21 P. 272, is decisive against the right of any recovery by the plaintiff below. In that case it was decided that, "where a person is confined in a city prison, upon a conviction for disturbing the peace and quiet of the city, the city is not liable for damages for injuries sustained by such person by reason of the bad character of the prison, or the negligence of the officer in charge of the same."

On the part of plaintiff below it is insisted that the La Clef Case is not conclusive. It is stated that there are statutes making it the duty of a city of the third class, to which class the city of New Kiowa belongs, if it undertakes to keep and maintain a city prison, that it shall be comfortable and safe. The only statutes referred to by counsel for plaintiff below in support of their assertion are as follows: Paragraph 1013, Gen. St. 1889, which reads: "The marshal shall be chief of police, and shall at all times...