Cook v. Kansas City

• Decision Date: 13 September 1948
• Docket Number: 40528
• Citation: 214 S.W.2d 430,358 Mo. 296
• Parties: Charles R. Cook and Minnie K. Cook, Respondents, v. Kansas City, Missouri, Appellant
• Court: Missouri Supreme Court

214 S.W.2d 430

358 Mo. 296

Charles R. Cook and Minnie K. Cook, Respondents, v. Kansas City, Missouri, Appellant

No. 40528

Supreme Court of Missouri

September 13, 1948

Motion for Rehearing or to Transfer to Banc Overruled November 8 1948.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

David M. Proctor, City Counselor, Henry Arthur and John J Cosgrove, Assistant City Counselors, for appellant.

(1) The actions of the city officials in building the sewer were ultra vires and void. They violated Article VIII of the City Charter in that there was no written contract, no declaration of necessity, no publication thereof and no public hearing, no perfection and adoption of plans and specifications, no calling for bids, no award to the lowest and best bidder and no ordinance confirming a contract for said work. Their actions were in violation of Section 92 of the Charter in that there was no contract in writing and no certification by the Director of Finance that funds were available to pay the obligation sought to be incurred. They were in violation of Sec. 3349, R.S. 1939, requiring that such contract be in writing. Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, as modified -- 179 S.W.2d 108; Kansas City v. Halvorson, 352 Mo. 280, 177 S.W.2d 495; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570; Ruggles v. Collier, 43 Mo. 353; Westport v. Mastin, 62 Mo.App. 647; Sedalia v. Donohue, 190 Mo. 407, 89 S.W. 386; Phoenix Brick & Const. Co. v. Gentry County, 257 Mo. 392, 166 S.W. 1034; Williams v. Hybskman, 311 Mo. 332, 278 S.W. 377. (2) Municipalities are not liable in tort or for nuisance arising out of ultra vires acts of their officials. Kennedy v. City, 222 Mo.App. 459, 281 S.W. 56; Rowland v. Gallatin, 75 Mo. 134; Mitchell v. Clinton, 99 Mo. 153, 12 S.W. 793; Stealey v. Kansas City, 179 Mo. 400, 78 S.W. 599; Duckworth v. Springfield, 194 Mo.App. 51, 184 S.W. 476; 43 C.J. 933, sec. 1711; 38 Am. Jur. 277, sec. 582. (3) Because of the misconduct of the juror Twyman in failing to reveal on voir dire examination his knowledge of matters in connection with the blasting, and in talking about such matters with his fellow jurors, the defendant City was denied a fair and impartial trial, and in denying the defendant City a new trial for these reasons the court erred and committed prejudicial error against defendant. Lee v. Baltimore Hotel Co., 136 S.W.2d 695, 345 Mo. 458; Schierloh v. Brashear Freight Lines, Inc., 148 S.W.2d 747; Middletown v. Kansas City Pub. Serv. Co., 152 S.W.2d 154, 348 Mo. 107; Gibney v. Transit Co., 204 Mo. 704, 103 S.W. 43; Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486; Webb v. Railroad, 116 S.W.2d 27, 342 Mo. 394; Thorn v. Cross, 201 S.W.2d 492; Milburn v. Robison, 132 Mo.App. 198, 110 S.W. 598. (4) The court erred in giving plaintiffs' Instruction 1, over the objection of defendant, for the reason that said instruction permitted the jury to find against the defendant on grounds which were neither pleaded nor proved. Rucker v. Alton Railroad, 123 S.W.2d 24, 343 Mo. 929; Barber v. Kellogg, 123 S.W.2d 100; Gandy v. Railroad, 44 S.W.2d 634, 392 Mo. 459. (5) Even as reduced by the court, the verdict and judgment is excessive. Weiner v. St. Louis Pub. Serv. Co., 87 S.W.2d 191; Plank v. Brown Petroleum Co., 61 S.W.2d 328, 232 Mo. 1150; Brooks v. McCray, 145 S.W.2d 985.

John W. Hudson and Frank M. Robison for respondents.

(1) A municipality when acting upon matters within its general corporate powers will be held liable for its acts, although they are done in an unauthorized or irregular manner. Hunt v. Boonville, 65 Mo. 620; Foncannon v. Kirksville, 88 Mo.App. 279; Dooley v. Kansas City, 82 Mo. 445; Donovan v. Kansas City, 175 S.W.2d 874; Windle v. Springfield, 8 S.W.2d 61; Lucas v. Louisiana, 173 S.W.2d 629; Stocker v. Richmond Heights, 132 S.W.2d 1116. (2) Ordinance of council is not required in emergency sewer work. Heman v. St. Louis, 112 S.W. 259; Barton v. Odessa, 82 S.W. 1119; 6 McQuillin Municipal Corp., Rev., 2d Ed., sec. 2808. (3) The alleged misconduct of Juror Twyman was waived by appellant. State v. Snyder, 82 S.W. 12; Orr v. Bradley, 103 S.W. 1149; Weaver v. Rudasill, 154 S.W. 444; Frank Hart Realty Co. v. Ryan, 232 S.W. 128. (4) Appellant is estopped from objecting to juror. Barrett v. Stoddard County, 183 S.W. 644. (5) Respondents made timely and adequate objections to juror's testimony. Harrison v. St. L.R. Co., 99 S.W.2d 841; Kees v. Canada Dry Ginger Ale, 199 S.W. 276; 31 C.J.S. 372, sec. 117. (6) Respondents offered evidence that the damage to their property was in part attributable to the slipping of the overburden into the uncased sewer tunnel, thereby causing a strain on respondents' house, resulting in injury thereto. (7) The trial court was unauthorized to compel a remittitur. State ex rel. v. Daues, 282 S.W. 389.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION

BARRETT

This is an action for damages for injuries to the plaintiffs' residence. The injuries are alleged to have been caused by blasting. The jury, by a nine to three verdict, found for the plaintiffs and assessed their damages at $ 25,000. The trial court reduced the verdict to $ 10,000 and the city appeals.

The controversy arose out of the construction in 1938 to 1939 of a W.P.A. sponsored sewer on State Line Road. Kansas City sponsored the project, furnishing the materials and supplies, including dynamite and certain professional services and W.P.A. furnished the labor. The proposal and request for the project were signed by the Assistant Director of Public Works at the request of the Director of Public Works who was also the W.P.A. director for the State of Missouri. The original arrangement for the project was made by the then City Manager. The city's sewer engineer furnished the "elevation limits" and located the places manholes were to be dug. The blasting occurred in the process of sinking the manholes through shale and rock. It was not only admitted that the city complied with its part of the arrangement and furnished the materials but it was also admitted that the city officials had knowledge of the blasting. There was no written contract, no declaration of necessity, no publication and public hearing, no perfection and adoption of plans and specifications, no calling for bids or award to the lowest bidder and no ordinance confirming the contract in accordance with the provisions of the city charter and, therefore, it is urged that the action of the city in building the sewer was ultra vires and void. The action of the council being ultra vires, it is argued that the city is not liable for the tort and that the court erred in not directing a verdict for the city.

There can be no doubt concerning the general rules and there is no disposition now to modify them. Municipalities, whether reasonably or unreasonably (3 Mo. L.R. 275), have some immunity in tort actions. 6 McQuillin, Municipal Corporations, Sec. 2771. They are not liable, generally, when the power or duty invoked is a governmental function as distinguished from a corporate power or duty or, where the act complained of is beyond the power of the city and is therefore ultra vires in the strict sense of that term (38 Am. Jur., Sec. 582, p. 277) or when the person acting is not an agent of the city. 6 McQuillin, Municipal Corporations, Sec. 2774. But this case does not fall in any of those categories. The contract cases (Donovan v. Kansas City, 352 Mo. 430, 175 S.W.2d 874, 179 S.W. (2) 108; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W. (2) 570), as the cases themselves point out, do not govern in tort actions. In Kennedy v. City of Nevada, 222 Mo.App. 459, 281 S.W. 56 and Rowland v. City of Gallatin, 75 Mo. 134, it was specifically pointed out that the act complained of was "not within the scope of the corporate powers as prescribed by the charter of the city or by positive enactment."

It is conceded by the city that in constructing the sewer it was carrying out one of its authorized functions even though it was doing so in an irregular manner. The act itself was not unlawful or prohibited, it was lawful and authorized though done in an unlawful manner. Hunt v. City of Boonville, 65 Mo. 620. The act, though irregular, was well within the scope of its authority. Foncannon v. City of Kirksville, 88 Mo.App. 279; Dooley v. Kansas City, 82 Mo. 444. In this instance, a W.P.A. project there was no necessity for bids or for notice and hearing even though the project should have been authorized by ordinance. The construction of sewers in Kansas City is a ministerial act and "inasmuch as it was acting within the general scope of its power in constructing the sewer, it was doing an act in its nature lawful, although done in an unlawful manner." Donahoe v. Kansas City, 136 Mo. 657, 668, 38 S.W. 571. The city, aware of the force of these cases, attempts to distinguish them on the grounds that (1) the acts complained of were allowed to exist after the alleged ultra vires act so as to constitute negligence separate and apart from the ultra vires act or (2) were instances in which there was no mandatory charter prescribing how the work should be done or no prohibition against doing the work, except in a particular way. It may be possible, in one sense, to make these distinctions in the cases but so far these refinements have not been engrafted on the law of municipal corporations. In short, on its facts and on principle, this case falls within these latter general rules and Lucas v. City of Louisiana, (Mo. App.) 173 S.W. (2) 629; Windle v. City of Springfield, 320 Mo. 459, 8 S.W. (2) 61 and Donahoe v. Kansas City, supra. See also: Stocker v. City of Richmond Heights, 235 Mo.App. 277, 132 S.W. (2) 1116 and 6 McQuillin,...