Cochran v. Wilson

Decision Date07 April 1921
Citation229 S.W. 1050,287 Mo. 210
PartiesADA J. COCHRAN, Appellant, v. JAMES WILSON et al
CourtMissouri Supreme Court

Appeal from St. Louis City Circuit Court. -- Hon. Frank Landwehr Judge.


Earl M Pirkey for appellant.

(1) There is a limitation imposed upon the rule that counties are not liable for the negligence of county courts. That limitation is to the effect that said rule is applicable only when liability is sought to be based upon the neglect of some duty enjoined upon the county court without its consent. But where the county court voluntarily enters upon the performance of some act or duty which it could not have been compelled by law to perform, the county thereupon becomes subject to the same liabilities for the negligence in the performance of such special duties as private corporations would be if the same duties were imposed upon them. Hannon v. County of St. Louis, 62 Mo. 313; Clark v. Adair County, 79 Mo. 536. The above limitation to the foregoing rule is more peculiarly applicable to cases where the negligence occurs with respect to the improvement or management of county property of which the county is the owner or proprietor. Hannon v. County of St. Louis, 62 Mo. 319; Clark v. Adair County, 79 Mo. 537. In the case at bar, there are no allegations in the petition that would show that the negligence of defendant Board of Education was with reference to some matter or duty which the board could have been compelled to perform or that was not discretionary with it. Furthermore, in the case at bar, the premises with reference to which the negligence occurred was property in which the Board of Education had a proprietary interest, the exact nature of which is not specified in the petition, the petition alleging that the defendants were in charge and control of and using the said premises. For what specific purpose the board had acquired this property is not stated in the petition, but must have been for some purpose for which it had legal authority to hold property under the statute, the board might have acquired the ground for some use connected with the schools or for the purpose of investing school funds in real estate. R. S. 1909, sec 11030. Whatever property the Board of Education acquires or holds is virtually the property of the school district, and in the management of such property the board is acting as the agent of the district. But more strictly speaking, the statute vests the legal ownership of the property in the Board of Education itself, so that the negligence of the Board is legally with respect to its own property. R. S 1909, sec. 11030. However, the entire doctrine which exempts counties and school districts from liability for the negligence of county courts and school boards is erroneous, because in conflict with the fundamental principles of law, and for that reason the Supreme Court should overrule the former decisions sustaining that doctrine. We believe that the dissenting opinion in Swineford v. Franklin County, 73 Mo. 279, states the true view of the matter in holding "that the alleged distinction between the liability of municipal corporations and the non-liability of quasi-corporations under like circumstances, is based upon precedent rather than reason, and is not sound." Two of the judges dissented from the decision of the majority of the court. Swineford v. Franklin County, 73 Mo. 279. The reasons assigned in support of the non-liability of counties and school districts are found when analyzed to be radically unsound and at variance with the true principles of law. One of the reasons alleged is that counties and school districts, on account of being political subdivisions of the State government, should enjoy immunity from liability for torts. This reason is a remnant of the old doctrine that "the king can do no wrong," and in its applications to counties and school districts, is absurdly out of place as well as unjust in its operation. The City of St. Louis is also a political subdivision of the State, the same as a county. Gracey v. St. Louis, 213 Mo. 387. Yet the City of St. Louis is held liable for the negligence of its officials in numerous decisions of the appellate courts of this State. If it is proper to hold the City of St. Louis liable, it is also proper to hold counties and school districts liable for the torts of their officials. It is expressly provided by statute that the Board of Education in cities of 500,000 inhabitants or over may "by and in said name sue and be sued." R. S. 1909, sec. 11030. What good reason, and what authority, can there be for whittling down the application of the above provision of the statute and holding that it applies only to suits on contract liabilities and not to suits on liabilities for torts. This provision is general in its terms and without qualification imparts to the Board of Education the capacity of being sued the same as any individual or corporation. The further reason assigned in some decisions why counties should be exempt from liability is that county courts deriving their functions directly from the state are independent of the counties, and the counties having no authority to direct or instruct the county courts in regard to the performance of their duties, the counties therefore should not be held liable for their negligence. A distinction is raised between counties and municipal corporations in this respect. The above distinction is not a real one. There is no real difference between a municipal corporation and a county in this regard. The Constitution of our State provides: "The courts of justice shall be open to every person and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay." Mo. Constitution, Art. 2, Sec. 10. Depriving plaintiff of the right to sue the Board of Education for compensation for the injuries sustained by her from the negligence of said Board in the management of school property, is in direct violation of the above mandatory provision of the Constitution. Theiles v. Tillamook County, 75 Ore. 214, 146 P. 828. A person is entitled to sue a county for damages resulting from negligent defects in public roads. Otherwise there would be a right without a remedy. County Commissioners v. Duckett, 20 Md. 468. The Board of Education can be sued for damages growing out of its negligence in the maintenance or management of school property. Waheman v. Board of Education, 187 N.Y. 331, 116 Am. St. 609; M'Carton v. City of New York, 133 N.Y.S. 939, 149 A.D. 516. (2) The trial court committed error in sustaining the demurrer of defendant City of St. Louis to the evidence. The evidence shows that the premises in controversy were used by the general public as a thoroughfare or street for travel on foot by night and day and that it had been so used for nearly twenty years; that its said use was open and public; that it was recognized as a public thoroughfare by its policeman, who directed people to go through it. There was a sufficient case made against the defendant city to go to the jury. Hemphill v. City of Morehouse, 162 Mo.App. 574; Curran v. St. Joseph, 264 Mo. 659. (3) The verdict for $ 250 for the plaintiff against defendant Wilson is grossly inadequate, in view of the character and extent of the damages sustained by plaintiff, and accordingly the judgment should be reversed and plaintiff granted a new trial. Craton v. Huntzinger, 187 S.W. 51.

Robert Burkham for respondent.

(1) The Board of Education of the City of St. Louis is a quasi-corporation and so being is not liable for the negligence of its members, officers or employees. Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Cunningham v. St. Louis, 96 Mo. 53; Reed v. Howell County, 125 Mo. 58; Lamar v. Road District, 201 S.W. 890; Moxley v. Pike County, 276 Mo. 449; McClure v. School Dist., 79 Mo.App. 80; Freel v. School City of Crawfordsville, 142 Ind. 27, 37 L. R. A. 301; Ford v. School Dist., 121 Pa. 543; Finch v. Board of Education 30 Ohio St. 37. (2) The matter of public education is a governmental function, in consequence of which the Board of Education of the City of St. Louis is not liable for negligence in the performance of such duty. Mo. Constitution, Art. 11, sec. 1; Murtaugh v. St. Louis, 44 Mo. 479; Ulrich v. St. Louis, 112 Mo. 138; Cassidy v. St. Joseph, 247 Mo. 197; Hill v. Boston, 122 Mass. 344; Wixon v. Newport, 13 R. I. 454; Folk v. Milwaukee, 108 Wis. 359. (3) It is contrary to public policy to allow charitable funds, and particularly public charitable funds, to be subjected to the demands of those injured by the negligence of those administering such funds. Nicholas v. Evangelical Deaconess Home; 219 S.W. 643; Adams v. University Hospital, 122 Mo.App. 675; Whittaker v. Hospital, 137 Mo.App. 116; Freel v. School City of Crawfordsville, 142 Ind. 27; Ford v. School Dist., 121 Pa. 543; Wiest v. School Dist., 68 Ore. 474, 49 L. R. A. (N. S.) 1025; Weddle v. School Commrs., 94 Md. 334.

Charles H. Daues, Arthur H. Buder and H. A. Hamilton for City of St. Louis.

(1) A street can be established by dedication, condemnation or prescription. There is no evidence of a dedication or condemnation, and the evidence does not establish that the place where appellant was injured became a public thoroughfare by user. Stacey v. Miller, 14 Mo. 478; Brinck v. Collier, 56 Mo. 160; Landis v Hamilton, 77 Mo. 554; Anthony v. Kennard Bldg. Co., 188 Mo. 704; Railway Co. v. Wollard, 60 Mo.App. 631; Coberly v. Butler, 63 Mo.App. 556; Strong v. Sperling, 200 Mo.App. 66. (2) The appellant was injured on property belonging to the Board of Education of the City of St....

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