Conner v. City of Nevada

• Decision Date: 30 March 1905
• Citation: 188 Mo. 148,86 S.W. 256
• Parties: CONNER v. CITY OF NEVADA.
• Court: Missouri Supreme Court

86 S.W. 256

188 Mo. 148

CONNER v. CITY OF NEVADA.

Supreme Court of Missouri, Division No. 1.

March 30, 1905.

MUNICIPAL CORPORATIONS—STREETS — LIMITATION OF LIABILITY — CONSTITUTIONAL PROVISIONS—CONTRIBUTORY NEGLIGENCE—DAMAGES—INCREASED INJURIES—EXCESSIVE VERDICTS.

1. Const. art. 10, §§ 11, 12, limiting the rate of taxes which may be levied by cities of the third class, and forbidding such cities to incur in one year an indebtedness in excess of the revenue to be derived from the taxes for that year, applies only to indebtedness which arises ex contractu, and has no application to liabilities arising from the city's negligence in failing to keep its streets in repair.

2. Evidence that a way was used by the public as a street for many years, that it had been graded and ditched and sidewalked by the city under the immediate supervision and direction of the street commissioner, and that the city had by ordinances granted a railroad a license to lay switch tracks and construct a culvert in the way, was sufficient to justify a finding that the way was a public street, though there was no evidence of any ordinance under which the street commissioner did his work.

3. Testimony by witnesses that they on certain dates held the office of street commissioner

and did certain work in that capacity was competent to show prima facie that they acted officially.

4. A stranger arriving in a town at night, who was unable to find a vehicle, was not guilty of contributory negligence in walking along the street to her destination, leading one infant and carrying another.

5. An injured person who suffers, without negligence on his part, a second injury which is more serious than it would have been had it not been for the first injury, may recover from the tort feasor who perpetrated the first injury the increased damages resulting from the second injury, over and above what he would have suffered had it not been for the first injury.

6. Plaintiff, a married woman, suffered an oblique break of the largest bone in the left leg. She was bedridden for about 10 months, at the expiration of which time she was still suffering, and was likely always to have trouble. Her ankle was also injured. Held, that a verdict for $3,000 was not excessive.

Appeal from Circuit Court, Vernon County; H. C. Timmonds, Judge.

Action by R. E. Conner against the city of Nevada. From a judgment for plaintiff, defendant appeals. Affirmed.

J. B. Johnson and A. J. King, for appellant. Scott & Bowker, for respondent.

VALLIANT, J.

The substance of the plaintiff's petition is that on the night of July 17, 1901, while she was walking along one of the public streets of the defendant city, exercising ordinary care, she fell into a hole that defendant had negligently allowed to be in the street, and received severe personal injuries. The answer was a general denial and a plea of contributory negligence. The trial resulted in a verdict and judgment for the plaintiff for $3,000, from which defendant appealed.

1. The first point presented in the brief of appellant is that, under the terms of sections 11 and 12 of article 10 of the Constitution, the defendant, which is a city of the third class, is not liable in this kind of an action. The proposition is that section 11 puts a limit on the rate of taxes that may be levied in such cities for city purposes, and section 12 puts a limit on the amount of indebtedness which the city may incur, forbidding the incurring in one year indebtedness to an extent in the aggregate beyond the revenue to be derived from the taxes of that year. The argument is that the tax rate was limited to produce only sufficient revenue to meet the necessary expenses of the city, and the incurring of all liability beyond that was forbidden, and that this, by necessary implication, makes it unlawful for the city to incur liability for its acts of negligence, because liability of that kind is indefinite, and in a sense unlimited. Appellant concedes that, in numerous cases that have come before the courts of this state since cities have been limited by the Constitution in their power to incur indebtedness, they have been held liable in damages when they have wrought injury by neglect of duty, but insists that the courts, in so holding, have passed in silence over the point now raised, and that it has not been decided. The clause of the Constitution in question deals with the subject of incurring indebtedness which arises ex contractu, and which is very different in its nature from suffering liability for a tort. The language of section 12 is that the city shall not be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. This language shows that it is indebtedness incurred by assent, agreement, or contract. The word "debt" has a well-recognized meaning in law, distinguished from liability for damages. After a claim for damages is reduced to a judgment, it becomes in a technical sense a debt, but it is a debt imposed by law, not one assumed by contract. What our Constitution aims to control is the action of the municipal corporation in the matter of contracting debts. For definition and discussion of the term "debt," see 13 Cycl. L. & P. p. 393 et seq., and cases cited in the notes. In Smith on Mun. Corp. §§ 4-6, the author divides public corporations into two classes, municipal corporations and public quasi corporations, and to these he adds a third class, quasi public corporations. The first includes incorporated cities, towns, and villages; the second, counties, townships, school districts, etc.; and the third, railroad, grain elevator, telegraph companies, etc. The generic difference between the two first, the author says, lies in the fact that cities, towns, and villages are created at the request, or at least with the consent, of their members, and for their benefit, while public quasi corporations are mere local subdivisions of the state, created by the sovereign will, to exercise certain duties in aid of the state government, and, inasmuch as the sovereign is not liable for neglect of duty, the quasi public corporation acting for the state is not liable unless made so by statute, but that municipal corporations to whom are given certain powers to be exercised for the benefit of its inhabitants, in the doing of acts which the state does not do, are liable for the consequences of neglect of duty in the performance of those acts. The author also points out the distinction between acts of a municipal corporation in the discharge of its delegated governmental authority and those in the discharge of its ministerial duty, holding that in the first the city is not liable for dereliction, and in the second it is. In a note to the text (section 6, note 20) the author says: "The rule, stated briefly, seems to be that, where a municipal corporation acts for a purpose purely and essentially public—acts as an agent for the state, and nothing more—the corporation is regarded as a part of the sovereign state, and cannot be sued for a tort, unless express permission by statute to bring such a suit has been given. But where municipal corporations act, as private corporations, for the local benefit and advantage of their members, they are liable in tort, just as private corporations would be." In a very thoroughly considered case on this subject the Supreme Court of Texas, after citing the leading authorities, English and American, shows that the accepted rule of law is that, for neglect of duty in a matter of the kind then under consideration (failure to keep a street in reasonably safe condition), the city is liable in an action of tort, not by force of any statute, but by the common law. City of Galveston v. Posnainsky, 62 Tex. 118, 50 Am. Rep. 517. The distinction between municipal corporations and what are above referred to as public quasi corporations, in respect of their liability for neglect of duty, is pointed out in 15 Am. & Eng. Ency. L. (2d Ed.) p. 420 et seq.; also Dillon on M. Corp. (4th Ed.) § 996 et seq. Reading along the lines above referred to, we see that the liability of a city for allowing its streets to remain so out of repair for an unreasonable time as to render them unsafe for use is a liability imposed by law; it does not depend on contract, it is not in the technical sense a debt. Then, when we turn again to the clause in our Constitution on which appellant relies, we see that it refers only to the contracting of debts, and makes no reference to liability for torts; it leaves that matter as the common law left it. In 20 Am. & Eng. Ency. L. (2d Ed.) p. 1173, it is said: "A city cannot escape liability from an obligation arising ex delicto on the ground that its indebtedness has already reached the constitutional limit." And in a note to the text the author cites: McCracken v. San Francisco, 16 Cal. 591; People v. May, 9 Colo. 404, 12 Pac. 838; Bloomington v. Perdue, 99 Ill. 329; Chicago v. Sexton, 115 Ill. 230, 2 N. E. 263; Bartle v. Des Moines, 38 Iowa, 414; Rice v. Des Moines, 40 Iowa, 638; Dallas v. Miller, 7 Tex. Civ. App. 503, 27 S. W. 498. Thus it will be seen that the question now presented, although perhaps not heretofore expressly decided in this state, has received judicial consideration in other states which have similar constitutional limitations, and, so far as the...