Dallas v. City of St. Louis

• Citation: 338 S.W.2d 39
• Decision Date: 11 July 1960
• Docket Number: No. 47679,No. 2,47679,2
• Parties: Mollie Mae DALLAS, Appellant, v. CITY OF ST. LOUIS, a municipal corporation, Respondent
• Court: United States State Supreme Court of Missouri

Page 39

338 S.W.2d 39

Mollie Mae DALLAS, Appellant, v. CITY OF ST. LOUIS, a municipal corporation, Respondent.

No. 47679.

Supreme Court of Missouri, Division No. 2.

July 11, 1960.

Motion for Rehearing or to Modify Opinion Denied Sept. 22, 1960.

Gerwitz & Seegers, Gerald L. Seegers, St. Louis, for appellant.

Thomas J. Neenan, City Counselor, Alvin J. McFarland, Associate City Counselor, William M. Austin, Asst. City Counselor, St. Louis, for respondent.

NICK T. CAVE, Special Commissioner.

Plaintiff, in her petition, sought to recover $25,000 damages from the city for the wrongful death of her husband. Defendant filed a motion to dismiss the petition because it did not state a claim upon which relief could be granted. The motion was sustained and judgment of dismissal entered. Plaintiff appealed. The amount involved exceeds $15,000, and this court has jurisdiction. Section 3, Article V, Constitution, 1945, V.A.M.S.

The petition alleges that the defendant is a city of the first class; that plaintiff is the widow of James O. Dallas; that he died on February 13, 1958, as the direct and proximate result of injuries received because of the carelessness and negligence of the defendant, its agents, servants and employees; that Dallas had been employed by the city as a motor vehicle mechanic 'in the City Refuse Division Garage * * * wherein the city * * * operates a garage for the servicing and maintenance of motor vehicles owned and operated by the city; * * * that at the time the said James O. Dallas received the injuries resulting in his death he was engaged in working upon and servicing a garbage and refuse pick-up truck, and was so engaged at the express direction and by instruction from one Jesse Murphy, the shop foreman of said garage, who was * * * a servant and employee of defendant, * * *; that in the operation of said service and maintenance garage the defendant city was engaged in a proprietary activity and was not then and there performing a governmental function. * * *' (Italics ours.)

The petition then alleges several acts of specific negligence of the city employees working in the garage. We need not set out such allegations because it is not claimed, on appeal, that they are insufficient.

The sole question presented is whether, under the facts pleaded in the petition, the city was acting in its governmental or in its corporate capacity in the establishment and operation of the garage.

The parties agree it is the settled law of Missouri that the collection of garbage by a city is a governmental function; and that the city is not liable for the negligence of employees when so engaged. Behrmann v. City of St. Louis, 273 Mo. 578, 201 S.W. 547; Hayes v. City of Kansas City, 362 Mo. 368, 241 S.W.2d 888. It is also agreed that the rule of municipal immunity for torts arising out of the performance of a governmental function applies in cases where the injured person is a municipal employee, as well as where the injured person is a member of the general public. Watrous v. City of St. Louis, Mo.App., 281 S.W.2d 594.

The controversy over the imposition of tort liability on a municipality has been hotly discussed for a long time. Many writers, and some courts, have criticized the principle that, for the purpose of determining tort liability of a municipality, there should be a distinction made between governmental and corporate functions. However, this distinction is so deeply ingrained in Missouri law, despite the criticisms (Hiltner v. Kansas City, Mo., 293 S.W.2d 422 435), that we will not discuss the suggested reasons for a complete abandonment; or undertake the impossible task of reconciling the cases. But we will keep in mind that the modern tendency is to restrict rather than to extend the area of immunity. 60 A.L.R.2d 1198; 38 Am.Jur., Sec. 573, page 266.

It is easy to state the general rule that a city is not liable for torts arising out of the performance of governmental functions, but is liable if the tort arises out of the performance of its proprietary or corporate functions. The great difficulty is in the application of the rule to particular facts.

In the instant case, the petition alleges that the city owned and operated, through city employees, a garage for the purpose of repairing and maintaining city owned motor vehicles; and that such employees had been negligent in certain respects in the operation of the garage. In its brief, the city asserts that the plaintiff admits, in her brief, that the garage is used solely for servicing garbage trucks. We find no such admission. Plaintiff's brief, as well as her petition, states that at the time of the injury deceased was repairing a garbage truck, but this is not equivalent to an admission that the garage was used solely for such purpose. We must dispose of this appeal on the allegation that the city owned and operated the garage for the maintenance and repair of city owned motor vehicles whether used in the performance of a governmental or proprietary function.

In determining if a petition states a claim upon which relief may be granted, the averments of the petition are to be given a liberal construction, and they should be accorded their reasonable and fair intendment. Fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its factual averments invoke substantive principles of law which entitle the plaintiff to relief. Zuber v. Clarkson Construction Co., 363 Mo. 352, 355, 251 S.W.2d 52, 54; Hiltner v. Kansas City, Mo., 293 S.W.2d 422, 424.

It is true the deceased, at the time of his injury, was repairing a garbage truck which was used by the city in the performance of a governmental function, and we will discuss later, whether that fact is of importance in determining the fundamental issue of whether the operation of the garage was a governmental function.

The precise question presented has not been passed on by Missouri courts, but has been decided in other jurisdictions.

In 26 A.L.R.2d 944, under the caption 'Operation of garage for maintenance and repair of municipal vehicles as governmental function,' is digested opinions of the states that have ruled the question. From a consideration of these cases, the author concludes: 'It has been quite generally held in the cases which have arisen that the operation of a garage for the repair and maintenance of municipal vehicles is, regardless of the function the vehicles themselves may be engaged in, a proprietary or corporate function, such as will render the municipal corporation liable for injuries resulting from the negligent operation, maintenance, or repair of vehicles by the employees of the garage.' (Italics ours.)

This general rule is announced, without criticism, in Yokley, Municipal Corporations, Vol. 3, Sec. 464; and Antieau, Municipal Corporation Law, Vol. 2, Sec. 11.06, page 19. There are no cases cited to the contrary.

Under this rule, the fact that the deceased, at the time of his injury, was repairing a garbage truck would be of no moment in determining the question whether the operation of the garage was a governmental function.

In Oklahoma City v. Foster, 118 Okl. 120, 247 P. 80, 47 A.L.R. 822, the city had established a garage adjacent to the police station for the maintenance and repair of the cars and motorcycles used by the police department. A police motorcycle had been sent to the garage for repair of the brakes; the employees failed to do so; and the next day a police officer was thrown from the vehicle and injured because of the defective brakes. The city contended that the operation of the police department was a governmental function, which was conceded, and that the establishment of the garage for the repair of police vehicles was a necessary element of that function and therefore governmental. After reviewing several authorities, the court said (118 Okl. 120, 247 P. 83, 47 A.L.R. 827): 'The establishment by the defendant of a garage for the repair of the city's motor vehicles was in no manner governmental in its character, but was wholly corporate. It was in no manner a police regulation made and enforced in the interests of the public, any more than was the duty to keep a street in condition suitable for ordinary travel, * * *. [118 Okl. 120, 247 P. 84, 47 A.L.R. 829] * * * it will be conceded the defendant, in determining...