Cullor v. Jackson Tp., Putnam County

• Citation: 249 S.W.2d 393
• Decision Date: 09 June 1952
• Docket Number: No. 42714,No. 2,42714,2
• Parties: CULLOR et ux. v. JACKSON TOWNSHIP, PUTNAM COUNTY et al
• Court: United States State Supreme Court of Missouri

Page 393

249 S.W.2d 393

CULLOR et ux. v. JACKSON TOWNSHIP, PUTNAM COUNTY et al.

No. 42714.

Supreme Court of Missouri, Division No. 2.

June 9, 1952.

P. M. Marr, Milan, C. B. Fitzgerald, Unionville, for appellants, Richard A. Cullor et ux.

Ray Mabee, Unionville, for respondent.

LEEDY, Presiding Judge.

Plaintiffs appeal from a judgment of dismissal with prejudice rendered upon the sustention of defendants' motion (raising the objection of failure of the petition to state a claim upon which relief can be granted) and the declination of plaintiffs to amend or further plead. Of necessity, then, the facts about to be stated, and by which the sufficiency of the petition is to be tested are those gleaned from the mooted pleading itself. The action was brought in two counts (one for damages, and the other praying a mandatory injunction), both being bottomed on the same facts; but the questions briefed are limited to those arising under the first (or damage) count, so the injunction feature passes out of the case, and will not be further noticed.

Plaintiffs, husband and wife, are owners of a tract of land in Jackson Township, Putnam County. Defendants are the township (which is alleged to be 'a body corporate and a general road district'), and Vernon Parrish, John McVey and Orville Dickerson, who are alleged to be, respectively, the trustee and board members of the township, as well as road overseers therein. Plaintiffs' land is on the west side of a public road running north and south, which road, it is alleged, 'is under the jurisdiction, care and maintenance of the said defendant township, acting through and by its duly elected and qualified officials, to-wit: Vernon Parrish, Trustee, John McVey and Orville Dickerson, Board Members.' Plaintiffs deeded to the county a right of way for road purposes, and thereafter, in October, 1949, defendant township started reconstruction of the road above mentioned under the so-called King road law, sections 231.440-231.500 RSMo 1949, V.A.M.S., and 'under special plans, specifications and minimum requirements set up and devised under the 'King Road Law' statute;' which 'special plans, specifications and minimum requirements set out in detail the type of ditches and drainage systems that must be constructed for roads built under the provisions of this specific road law.' In this connection it was alleged that 'the above named individual defendants in their official capacity had the duty to oversee the construction and maintenance of this said public road in accord with the special plans, specifications and minimum requirements set forth by law, and further that the said defendants assumed and undertook to carry out this duty.'

The petition next alleged the adequacy of the ditches and levees and absence of surface water flowing over or accumulating upon plaintiffs' land prior to the reconstruction work. Then, after alleging certain conclusions as to the duty cast by law upon the township and its officers and agents in the premises with respect to surface water, and the flow and accumulation thereof, the petition proceeds thus: 'but that defendant Jackson Township and the above defendant officials and agents * * * through their negligence and carelessness while repairing and reconstructing the above mentioned public road adjacent to property owned by these plaintiffs and through the negligent and careless disregard for the special plans, specifications and minimum requirements covering such construction, caused to be accumulated and gather alongside said road a greatly increased quantity and volume and flow of water and negligently and carelessly failed and refused to provide sufficient ditches and levees to carry off the increased flow and volume of surface water caused by said repairs and reconstruction and carelessly built up the said public road to such height that the flow of surface water and the volume thereof was increased thereby and diverted into and onto and caused to flood plaintiffs' above described real estate and to accumulate and stand thereon' to the damage of plaintiffs in the sum of $1500. The prayer was that plaintiffs 'recover from the defendant Jackson Township and/or the defendants Vernon Parrish, John McVey and Orville Dickerson, the sum of $1500.00 as damages and the costs of this action.'

Jurisdiction of the appeal is in this court because Jackson Township, as an organized township in a county under township organization, is a political subdivision of the state, under Art. V, Sec. 3, Const. of Mo. 1945, V.A.M.S. Harrison & Mercer County Drainage Dist. v. Trail Creek Township, 317 Mo. 933, 297 S.W. 1. See, also, 2 V.A.M.S., p. 133, n. 319.

Plaintiffs' contention as to defendant township is that it is liable in tort under the facts of this case on the same principle that such liability is imposed on municipal corporations for damages to property resulting from water being caused to flow over and accumulate thereon due to the negligence of the municipality in the construction or maintenance of a street. In the consideration of the question thus posed it is important to bear in mind the distinction between municipal corporations (in the strict and proper sense), such as cities, towns and villages, and quasi corporations, such as counties and townships. Municipal corporations exercise both governmental and proprietary (sometimes called corporate) functions. Their liability or nonliability in tort depends on the character of the particular function involved as being governmental on the one hand, or proprietary on the other.

Plaintiffs invoke this court's language concerning the exercise by a municipal corporation of its discretionary powers of a public or legislative character: 'When the exercise of these powers ceases to be discretionary, when it no longer depends upon the will of the municipal legislature, but upon the paramount will of the chartermaking body, then only does the neglect of the municipality subject it to an action for damages.' Cassidy v. City of St. Joseph, 247 Mo. 197, 206, 152 S.W. 306, 309. It is argued that under this pronouncement the township is liable because it had no discretion in the building of ditches on a road project under the King road law, but that an absolute duty rested upon it to improve the road under the minimum standards and specifications directed to be set up by the act just mentioned, and hence 'in accordance with the mandate of the paramount will of the charter-making body.' But the quoted language was not used in reference to quasi corporations whose nonliability the court had previously recognized and made clear in the very paragraph from which the above excerpts...