D'Arcourt v. The Little River Drainage District

• Decision Date: 18 September 1922
• Citation: 245 S.W. 394,212 Mo.App. 610
• Parties: CHARLES D'ARCOURT et al., Respondents, v. THE LITTLE RIVER DRAINAGE DISTRICT, Appellant
• Court: Missouri Court of Appeals

245 S.W. 394

212 Mo.App. 610

CHARLES D'ARCOURT et al., Respondents, v. THE LITTLE RIVER DRAINAGE DISTRICT, Appellant

Court of Appeals of Missouri, St. Louis

September 18, 1922

Appeal from the Cape Girardeau Court of Common Pleas, Cape Girardeau County.--Hon. John A. Snider, Judge.

REVERSED.

Judgment reversed.

Oliver & Oliver for appellant.

(1) The defendant's demurrer at the close of all the testimony should have been sustained. No cause of action is stated or proven against the defendant Drainage District. The plaintiffs allege that the defendant is a drainage district incorporated under the provisions of article 3, chapter 122 R. S. 1899, and the amendments thereto. This article is what is known as the Circuit Court Drainage Act. The status and position held by such districts in our scheme of government has been clearly defined by our appellate courts. They have been classified as political subdivisions of the State by some--as municipal corporations by others, but all the cases hold that they are governmental agencies based upon an exercise of the police power of the State. State ex rel Kinder v. Little River District, 236 S.W. 848; State ex rel. Caldwell v. The Little River Drainage District, 236 S.W. 15; Land & Stock Co. v. Miller, 170 Mo 240; Drainage District v. Turney, 235 Mo. 80; State ex rel. v. v. Taylor, 224 Mo. 393; Morrison v. Morey, 146 Mo. 543; Barnes v. Construction Co., 257 Mo. 175; Wilson v. Drainage District, 257 Mo. 266; State ex rel. v. District, 269 Mo. 444; Houck v. Drainage District, 239 U.S. 261-2; L. R. D. D. v. Railroad, 236 Mo. 94; State ex rel. McAllister v. Albany Drainage District, 234 S.W. 342; Arnold v. Drainage Dist., 234 S.W. 349. There can be no private function of a drainage district such as this defendant. All of its acts look toward the betterment of the general welfare of the State. Their very existence is based upon an exercise of the police power. There can be no private corporate advantage come to it as such by the construction or maintenance of the levee in question or any of its other levees or ditches. All such ditches and levees are for the public good and the betterment of the general welfare. Under such conditions, there can be no liability against the defendant on the broad ground so frequently stated by the courts of this State that a municipality is not liable for the acts of its agents, even though they be negligent, if they are performed in a public or governmental service. Murtaugh v. St. Louis, 44 Mo. 479; McKenna v. City of St. Louis, 6 Mo.App. 320; Behrmann v. City of St. Louis, 273 Mo. 578; Trower v. City of Louisiana, 198 Mo.App. 352; Ulrich v. City of St. Louis, 112 Mo. 138; Cassidy v. St. Joseph, 247 Mo. 197; Healy v. Kansas City, 277 Mo. 619; Zummo v. Kansas City, 225 S.W. 934; Ford v. School District, 121 Pa. 543; Irvine v. Mayor etc., of Chattanooga, 47 S.W. 419; Bates v. Houston, 37 S.W. 383; Bartlett v. Clarksburg, 43 L. R. A. 295, 45 W.Va. 393; Simpson v. Whateom, 33 Wash. 392, 63 L. R. A. 815; Arnold v. Drainage Dist., 234 S.W. 349. Counties, townships, special road districts, school districts, and other like political subdivisions of the State, when performing a public function or a governmental service have uniformly been held exempt from liability. Arnold v. Drainage Dist., 234 S.W. 349. Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, 79 Mo. 536; Pundman v. St. Charles County, 110 Mo. 594; Searcy v. Clay County, 176 Mo. 515; Moxley v. Pike County, 276 Mo. 449; Lamar v. Bolivar Special Road District, 201 S.W. 890. (2) Plaintiffs' cause of action is res adjudicata. The demurrer at the close of the entire case should have been sustained. Any question that was raised or could have been raised, on the hearing of the exceptions to the commissioners' report assessing benefits and damages to the plaintiffs' land was concluded by the judgment confirming the report awarding $ 1,125 damages to the plaintiffs and condemning their property. The law, as stated in the first paragraph under this point, is well settled and supported by the following authorities: Norman's Land & Mfg. Co. v. Idalia Realty Co., 205 Mo.App. 474; Donnell v. Wright, 147 Mo. 639; Summet v. Realty Co., 208 Mo. 501; Emmert v. Aldridge, 231 Mo. 124; Cantwell v. Johnson, 236 Mo. 575; Spratt v. Early, 199 Mo. 491; City of St. Louis v. United Railways, 263 Mo. 387. (3) The plaintiffs are barred by reason of the receipt and release which they executed to the district.

Giboney Houck and Hardesty & Limbaugh for respondent.

(1) The defendant's demurrer to the evidence is unavailing against the verdict rendered on substantial evidence. Nash v. Brick Co., 109 Mo.App. 604; Ladd v Williams, 104 Mo.App. 390. (2) In view of the statutes under which defendant was organized and in view of its drainage work having been done for the purpose of benefiting the landowners, and not purely and wholly for the purpose of benefiting the State, it is liable for its negligence in said work. Morrison v. Morey, 146 Mo. 543; Bungenstock v. Nishnabotna Drainage Dist., 163 Mo. 198; Sec. 6517, et seq., R. S. 1889; Land & Stock Co. v. Miller, 170 Mo. 240; Art. 7, Ch. 102, R. S. 1909; State v. Heffernan, 243 Mo. 447; Lamar v. Bolivar Special Road Dist., 201 S.W. 890; Bruntmeyer v. Squaw Creek Drainage Dist., No. 1, 196 Mo.App. 360; Sec. 6517 et seq., R. S. 1889; Sec. 4378 et seq., R. S. 1919. (a) The case of Arnold v. Worth County Drainage Dist; State ex rel. Caldwell v. Little River Drainage Dist. and State ex rel. Kinder v. Little River Drainage Dist., and kindred cases cited by defendant do not disprove such liability, but confirm it. Arnold v. Drainage District., 234 S.W. 349; Sec. 4406, R. S. 1919; Bruntmeyer v. Squaw Creek Drainage Dist., 196 Mo.App. 360, 194 S.W. 748; Bunting v. Oak Creek Drainage Dist., 99 Neb. 843; Sawyer v. Camden River Drainage Dist., 102 S.E. 273; Spencer v. Wills, 102 S.E. 275; Bradbury v. Vandalia Drainage & Levee Dist., 236 Ill. 36; Ringering v. Wood River Drainage & Levee Dist., 212 Ill.App. 170; State ex rel. Caldwell v. The Little River Drainage Dist., 236 S.W. 15; State ex rel. Kinder v. The Little River Drainage Dist., 236 S.W. 848; Sec. 6 of Art. 10 of Constitution of Mo. Sec. 12753, R. S. 1919. (b) The drainage work was not exclusively for a public but was partly for a private purpose; and defendant's negligence relates not to discretionary acts by which such work was voluntary assumed, the drainage plan made and an assessment of benefits and damages had thereon, but such negligence relates to the ministerial acts of performing such work, and all the elements of liability are present. St. Louis v. Wenneker, 145 Mo. 238; Connor v. City of Nevada, 188 Mo. 154; State v. Heffernan, 243 Mo. 447; Woods v. City of Kansas, 58 Mo.App. 272; Land & Stock Co. v. Miller, 170 Mo. 252; Kinlough v. City of Maplewood, 201 S.W. 627; Johnson v. City of Chicago, 258 Ill. 494; Turpin v. Turlock Irr. Dist., 141 Cal. 1; Sec. 6517 et seq., R. S. 1889; Sec. 4378 et seq., R. S. 1919; (c) Cases in other jurisdictions holding drainage districts immune from such liability for negligence are based on drainage statutes different from ours, or on doctrines that have never obtained in our jurisdiction. Nugent v. Miss. Levee Comrs., 58 Miss. 197; Lowe v. Levee Comrs. (Miss.), 19 So. 346; Elmore v. Drainage Comrs., 135 Ill. 269; Bradbury v. Vandalia Drainage Dist., 235 Ills. 36; Lamar v. Bolivar Special Road Dist., 201 S.W. 890; Hensley v. Reclamation Dist., 121 Cal. 96; Turpin v. Turlock Irr. Dist., 141 Cal. 1; Bungenstock v. Nishnabotna Drainage Dist., No. 1., 196 Mo.App. 360; Schalk v. Inter River Drainage Dist., (Mo. App.) 226 S.W. 277. (2a) Plaintiffs are not barred by the interlocutory decree against Mr. and Mrs. Houck, nor by the receipt plaintiffs executed to satisfy the final decree, because the award and payment to plaintiffs covered only the damages allowed them in the commissioners' report to which they filed no exceptions. Chapman v. Railway, 240 Mo. 592; 13 C. J. 312-313; Boschulte v. Elkhorn River D. Dist. (Neb.), 167 N.W. 730. Neither the decree nor the release can bar plaintiffs for the further reasons stated under those points and authorities of the brief in the Schwepker case, which are herewith submitted so far as applicable to this case, as follows: (3) The decree does not bar this suit for damages resulting from the negligent construction, maintenance and operation of the drainage works. 1. The decree covers only damages "sustained by reason of the construction" of the works--that is to say, damages resulting from the proper construction, maintenance and operation of the works. Secs. 5514, 5516 and 5518, R. S. 1909; Shear. & R. Neg., par. 10; Gilliland v. Railroad, 19 Mo.App. 416; 21 Enc. Law 495; West v. Holladay, 196 S.W. 403; Chapman v. Railway, 240 Mo. 592, 144 S.W. 469; Vansickle v. Drainage District, 186 Mo.App. 563, 172 S.W. 405. 2. Decrees of this character are uniformly held to be no bar to damage resulting even from a legal change in the plans or in the operation of the drainage works. Spencer v. Wills (N. C.), 102 S.E. 275; Dowd v. Drainage Dist., 160 Ill.App. 476; Ringering v. Woodriver Drainage & Levee District, 212 Ill.App. 170; Railroad v. Clark, 121 Mo. 169; Railroad v. St. Louis Union Stock Yards, 120 Mo. 541. 3. The decree could not have legally contemplated negligence in the construction, maintenance or operation of the works. Such negligence could neither have been anticipated nor presumed. 20 C. J., p. 778, par. 233; Bungenstock v. Nishnabotna Drainage District, 163 Mo. 198; Chapman v. Railroad, 240 Mo. 592, 144 S.W. 469; Chicago, etc. , R. Co. v. Lemorweir D. Dist., 135 Wis. 228; Bunting v. Oak Creek Drainage Dist., 99 Neb. 843; Cleveland,...