Davoren v. Kansas City

• Citation: 273 S.W. 401,308 Mo. 513
• Decision Date: 23 May 1925
• Docket Number: 23996
• Parties: ALBERT J. DAVOREN et ux. v. KANSAS CITY, Appellant
• Court: United States State Supreme Court of Missouri

273 S.W. 401

308 Mo. 513

ALBERT J. DAVOREN et ux. v. KANSAS CITY, Appellant

No. 23996

Supreme Court of Missouri

May 23, 1925

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Affirmed (upon condition).

John B. Pew, Solon T. Gilmore and Ilus M. Lee for appellant.

(1) The court erred in overruling the demurrer offered by the defendant at the close of plaintiff's evidence, because The pond was located wholly upon private property; the accident did not result from any use of a street, and under all the facts there was no duty owing the deceased, and hence no liability upon the part of the defendant. Arnold v St. Louis, 152 Mo. 173; Overholt v. Vieths, 93 Mo. 422; Moran v. Pullman Co., 134 Mo. 641; Kelly v. Benas, 271 Mo. 1; Hight v. Bakery Co., 168 Mo.App. 431; Buddy v. Terminal Ry. Co., 276 Mo. 276; State ex rel. v. Ellison, 281 Mo. 667; Rallo v. Const. Co., 291 Mo. 221; Omaha v. Bowman, 52 Neb. 293; Murphy v. Brooklyn, 23 N.E. 887; Peters v. Bowman, 47 P. 113; Tavis v. Kansas City, 80 Kan. 547; Hooper v. Topeka, 92 Kan. 11; Gillespie v. McGowan, 100 Pa. St. 144; Klix v. Nieman, 68 Wis. 271. (2) The court erred in the giving of plaintiffs' main instruction in that the instruction submitted the "attractive nuisance" or "turn-table" doctrine to the jury. Barnett v. Kansas City, 214 S.W. (Mo. App.) 240; State ex rel. Kansas City v. Ellison, 281 Mo. 667; Hight v. Bakery Co., 168 Mo.App. 431; O'Hara v. Gas Light Co., 244 Mo. 395; Smith v. Dold Packing Co., 82 Mo.App. 9; Overholt v. Veiths, 93 Mo. 422; Barney v. Railroad, 126 Mo. 372; Moran v. Pullman Car Co., 134 Mo. 641; Arnold v. St. Louis, 152 Mo. 173; Kelly v. Benas, 217 Mo. 1; Buddy v. Terminal Ry. Co., 276 Mo. 276; Rallo v. Heman Const. Co., 291 Mo. 221. (3) The verdict is excessive. Dugdale v. Ry. Co., 195 Mo.App. 258.

Hogsett & Boyle for respondents.

(1) This case was not founded upon the "turn-table doctrine" but upon a wholly different theory of liability. The petition alleges facts showing that the pond was a dangerous nuisance created by defendant's negligence, and that defendant should have anticipated injury therefrom, and that the death of the child directly resulted therefrom. These facts create a cause of action. Capp v. St. Louis, 251 Mo. 345; Benton v. St. Louis, 217 Mo. 694; Benton v. St. Louis, 248 Mo. 110; Jensen v. Kansas City, 181 Mo.App. 359; City of Elwood v. Addison, 26 Ind.App. 28; Omaha v. Richards, 49 Neb. 244; Omaha v. Bowman, 59 Neb. 84; City of Indianapolis v. Williams, 58 Ind.App. 447; Kansas City v. Siese, 71 Kan. 283; Williams v. Gas & Elec. Co., 274 Mo. 12; Godfrey v. Kansas City L. & P. Co., 253 S.W. 236. The mere fact that the petition alleged, in addition to the foregoing facts that the condition was "attractive to children," did not destroy the cause of action. Godfrey v. L. & P. Co., 253 S.W. 239; Capp v. St. Louis, 251 Mo. 352; Jensen v. Kansas City, 181 Mo.App. 359; Williams v. Gas & Elec. Co., 274 Mo. 11; Day v. Ice Co., 136 Mo.App. 280; City v. Addison, 26 Ind.App. 28. The "attractive to children" allegation may be eliminated from the petition as surplusage. Callicotte v. Rock Island Ry. Co., 274 Mo. 693; Wolfe v. Payne, 241 S.W. 919; Wessel v. Lavender, 262 Mo. 430; Rutledge v. Swinney, 261 Mo. 141; Bradley v. Becker, 296 Mo. 548; Wyler v. Rabican, 150 Mo.App. 479; Truel v. Ry. Co., 143 Mo.App. 380; Lampe v. Ry. Co., 209 Mo.App. 371; Morgan v. Zinc Co., 199 Mo.App. 26; Miniea v. Cooperage Co., 175 Mo.App. 91. The "turn-table doctrine" is never applicable unless the dangerous agency is upon premises owned or controlled by the defendant. O'Hara v. Gas Light Co., 244 Mo. 404; Godfrey v. L. & P. Co., 253 S.W. 238; Williams v. Gas & Elec. Co., 274 Mo. 11; Capp v. St. Louis, 251 Mo. 353; Day v. Ice Co., 136 Mo.App. 280; Ratliff v. Power Co., 203 S.W. 235; Beckwith v. City of Malden, 253 S.W. 18; Brady v. Traction Co., 253 S.W. 202; 20 R. C. L. p. 80; Kelly v. Benas, 217 Mo. 11. Pleadings should be liberally construed so as to distinguish between form and substance. Secs. 1257, 1291, R. S. 1919. (2) The principle of law permitting a landowner to defend his land against surface water cannot relieve the defendant of liability. (a) The rule has no application because the city was not protecting its street from surface water. Lincoln Railroad Co. v. Sutherland, 44 Neb. 526; McInery v. St. Joseph, 45 Mo.App. 296; Woods v. City of Kansas, 58 Mo.App. 279. (b) The right to protect against surface water is limited by the duty to exercise ordinary care in so doing, so that unnecessary damage may not result to others. Goettenetroeter v. Kappleman, 83 Mo.App. 294; Abbott v. Railway, 83 Mo. 281; Rychlicki v. St. Louis, 98 Mo. 501; Cox v. Railway, 174 Mo. 606; Hosher v. Railway, 60 Mo. 333; Jones v. Hannovan, 55 Mo. 466; Jones v. Railway, 84 Mo. 155; Moss v. Railway, 85 Mo. 89; McCormick v. Railway, 57 Mo. 437; Clark v. Railway, 36 Mo. 224; Hoelscher v. Railway, 182 S.W. 1080; Sandy v. City, 142 Mo.App. 330; Lewis v. City, 142 Mo.App. 84; Hannan v. City, 187 Mo.App. 315; McInery v. City, 45 Mo.App. 296; Carson v. City, 53 Mo.App. 289; Torpey v. City, 24 Mo.App. 288; Beauchamp v. Taylor, 132 Mo.App. 92. In view of the fact that reasonable minds might differ upon the question whether the city used ordinary care in building an embankment without an adequate outlet, the question was one of fact for the jury. Power v. Ry. Co., 244 Mo. 11; Huhn v. Ry. Co., 92 Mo. 450; Paden v. Van Blarcom, 181 Mo. 128; Powers v. Transit Co., 202 Mo. 280. (c) It was not ordinary care for the city to dam up this ravine or natural drainway, which was the natural outlet for large quantities of surface water following rains and melting snows. Neither the civil-law rule nor the common-law rule would permit the city to obstruct a natural drainway so as to dam up surface water. Soules v. Railroad Co., 34 N. Dak. 7; Jungblum v. Railroad Co., 70 Minn. 153; Quinn v. Ry. Co., 120 N.W. 884; Wharton v. Stevens, 84 Iowa 107; City of Waverly v. Page, 105 Iowa 225; Tretter v. Ry. Co., 147 Iowa 375; Goettenetroeter v. Kappleman, 83 Mo.App. 290; 3 Farnham on Water & Water Rights, p. 2599; 2 Farnham on Water & Water Rights, p. 973; McClure v. City of Red Wing, 28 Minn. 186; Van Pelt v. City of Davenport, 42 Iowa 308; L. R. & Ft. Smith Railroad Co. v. Chatman, 39 Ark. 463; Ry. Co. v. Wallis, 82 Ark. 447; Ry. Co. v. Hardin, 87 Ark. 475. (3) There is a vital distinction between the status of the defendant city, and the status of the landowner if he had been sued. The landowner could have defended on the ground that the boy was a trespasser upon his premises and took the premises as he found them; but the city could not assert that defense. Godfrey v. L. & P. Co., 253 S.W. 239; Williams v. Gas. & Elec. Co., 274 Mo. 11; Day v. Ice Co., 136 Mo.App. 280; Ratliff v. Power Co., 203 S.W. 234. (4) The city having chosen to provide an outlet to drain away water, is liable for its negligence in failing to provide an adequate outlet. Kimbrough v. City, 201 S.W. 625; Woods v. City of Kansas, 58 Mo.App. 278; Donahoe v. Kansas City, 136 Mo. 669; Barree v. City, 197 Mo. 389; Salmon v. Kansas City, 241 Mo. 53; Geiger v. St. Joseph, 198 S.W. 78; City of Elwood v. Addison, 26 Ind.App. 28; Denver v. Rhodes, 9 Colo. 561; City of Alton v. Hope, 68 Ill. 167; Brunswick v. Tucker, 103 Ga. 233; Ellis v. Iowa City, 29 Iowa 229; Powers v. Council Bluffs, 50 Iowa 197; Morley v. Buchanan, 124 Mich. 128; Harper v. Milwaukee, 30 Wis. 365; Gilmore v. Laconia, 55 N.H. 130; Parker v. Nashua, 59 N.H. 402; Buchanan v. Duluth, 40 Minn. 402; City of Logansport v. Wright, 25 Ind. 512; 2 Farnham on Water & Water Rights, p. 1136.

Woodson, J. Walker, White and Ragland, JJ., concur; Graves, C. J., and David E. Blair and Atwood, JJ., dissent, on the ground that there is no liability; Graves, C. J., in an opinion filed, in the result of which Atwood, J., concurs.

OPINION

WOODSON

This was a suit instituted in the Circuit Court of Jackson County by the plaintiffs, husband and wife, against Kansas City, the defendant, for the alleged negligence in drowning their minor son, six years and seven months old. The case was tried before the court and jury, which resulted in a verdict and judgment for the plaintiffs for $ 10,000, and after moving unsuccessfully for a new trial the defendant duly appealed the case to this court.

The pleadings are unassailed and therefore it would be useless to notice them.

The facts of the case are simple, and practically undisputed. The name of the dead child for whose life the parents sued, was Karl Davoren, who had a twin brother named Kenneth, who was also drowned at the same time and place that Karl lost his life. They came to their death by drowning in a pond which was created by the city in constructing a high fill, or dam across a ravine, for street purposes, on top of which a street was duly constructed. The city neglected to provide a culvert or other outlet sufficient to allow the surface water to escape that accumulated above said fill. Said pond of water was entirely upon private property, and was not so closely located to a public street as to endanger the lives of the deceased children by falling into it while passing along the street.

The pond was located on the south side of Twenty-first Street between Bales Avenue and Askew Street in Kansas City. Bales Avenue and Askew Street run north and south, and Twenty-first Street runs east and west, and crosses Bales and Askew. In the space between Bales and Askew the natural topography of the land is in the form of a ravine or draw several blocks long, running in a northerly and southerly direction. The natural drainage of surface water through this ravine or draw was toward the north. The ravine began at Twenty-fifth or Twenty-sixth Street,...