Donahoe v. City

• Decision Date: 19 January 1897
• Parties: Donahoe v. Kansas City, Appellant
• Court: Missouri Supreme Court

38 S.W. 571

136 Mo. 657

Donahoe v. Kansas City, Appellant

Supreme Court of Missouri, Second Division

January 19, 1897

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

H. C McDougal, F. F. Rozzelle and Clarence S. Palmer for appellant.

(1) The authority of the city to build sewers is given for a public purpose; not for the private benefit of the corporation, and the city is not liable for the negligence of its officers and employees. Murtaugh v. St. Louis, 44 Mo. 479; Carrington v. St. Louis, 89 Mo. 208; Kiley v Kansas City, 87 Mo. 103; 15 Am. and Eng. Ency. of Law 1141, sec. 16. (2) Kansas City has the right to provide for the construction of a sewer only by ordinance (sec. 1, art. 3, page 13 and subdivision 6 of same section, page 14, of the city charter). First. Sewers constructed by the city must be built by independent contractors and not otherwise (Sec. 12, art. 17, page 130, city charter). Second. If the work had been done in the manner provided by the charter there could be no liability of the city. Sedalia Gas Light Co. v. Mercer, 48 Mo.App. 652; Blumb v. Kansas City, 84 Mo. 112. Third. The work in question being unauthorized by law, no liability against the city can arise by reason of the negligence of an officer or employee of the city in doing the unauthorized work. Cheeney v. Brookfield, 60 Mo. 53; Mister v. Kansas City, 80 Mo.App. 217; Fruin-Banbrick Construction Co. v. Geist, 37 Mo.App. 539; Thompson v. Bonneville, 61 Mo. 282; Rowland v. Gallatin, 75 Mo. 134; Werth v. Springfield, 78 Mo. 170; City to use v. Eddy, 123 Mo. 546; Trenton v. Coyle, 107 Mo. 183; Stewart v. Clinton, 79 Mo. 603. (3) Powers, the foreman, was a fellow-servant of respondent, and appellant is not liable for his negligence. Marshall v. Schricker, 63 Mo. 308; Lee v. Detroit, etc., Works, 62 Mo. 565; Hamilton v. Railroad, 4 Mo.App. 564; Kersey v. Railroad, 79 Mo. 363; Parker v. Railroad, 109 Mo. 362; McGowan v. Railroad, 61 Mo. 528; Conley v. Portland, 78 Me. 217. (4) The respondent was guilty of contributory negligence. David v. Railroad, 50 Mo. 302; Steffen v. Mayer, 96 Mo. 420; Albridge v. Midland Blast Furnace, 78 Mo. 559.

W. B. Teasdale and R. I. Ingraham for respondent.

(1) The work was corporate or private, as distinguished from governmental or public. After the plan of the sewer had been adopted, and work thereunder begun, it ceased to be judicial and became ministerial, and the city was liable for the negligence of its agents or servants accomplishing the work. Dayton v. Pease, 4 Ohio St. 80; Hannon v. St. Louis Co., 62 Mo. 312; McKenna v. St. Louis, 6 Mo.App. 321; Jones, Neg. Mun. Corp., chaps. 3 and 4; Dill. Mun. Corp. [4 Ed.], secs. 66, 1048, 1049, 1050; Coan v. Marlborough, 164 Mass. 206; Board Com's v. Com. Council, 28 Mich. loc. cit. 236; Barnes v. Detroit, 94 Mich. 601; Whitfield v. Carrollton, 50 Mo.App. 101. (2) It is the settled doctrine in this state for negligence in the construction of streets or sewers, the municipality is liable. These cases settle the doctrine that such work is corporate and not governmental. Broadwell v. Kansas City, 75 Mo. 213; Werth v. Springfield, 78 Mo. 107; Weyman v. Jefferson City, 61 Mo. 55; Thurston v. St. Joseph, 51 Mo. 510. (3) The cases cited by appellant apply to those governmental matters, such as asylums, hospitals, prisons, etc., as to which the city is held to be but the arm of the state, and therefore not liable for negligence in the discharge of such duties. Murtaugh v. St. Louis, 44 Mo. 479; Ulrich v. St. Louis, 112 Mo. 138. (4) A municipal corporation is governed, as to corporate matters, by the same rules as an individual. Having properly created the relationship of master and servant (by ordinance) it can not shirk the duties ordinarily resting upon the master. Breen v. Field, 31 N.E. 1075; Weed v. Greenwich, 40 Conn. 170; Wood on Master and Servant [2 Ed.], sec. 5457; Cooley on Torts, pp. 120, 122, 538; Dill. Mun. Corp. [4 Ed.], sec. 974; Barnes v. District of Columbia, 91 U.S. loc. cit. 545; Salt Lake City v. Hollister, 118 U.S. 256; Kobs v. Minneapolis, 22 Minn. 159; Lee v. Sandy Hill, 40 N.Y. 442; Thayer v. Boston, 19 Pick. 511; Railroad v. Schuyler, 34 N. Y. loc. cit. 49; Alexander v. Relf, 74 Mo. 495. It may be true that the city having ordered this work to be done in the manner it was (indirectly only) could not thus render the sewer district liable for the cost. Yet it does not follow that the acts of its duly appointed agents, employing men and placing them at work within the scope of this authority, are not its acts. His negligence is its negligence. Haehl v. Railroad, 119 Mo. loc. cit. 343; District of Columbia v. Woodbury, 136 U.S. loc. cit. 456; Bank v. Graham, 100 U.S. 694; Central Railroad v. Smith, 76 Ala. 572. (5) The distinction arises from this: A city can not delegate the power to inaugurate public work, but it can delegate the power to employ men and place them at work. Dill. Mun. Corp. [4 Ed.], sec. 96; Hitchcock v. Galveston, 96 U.S. 341; Railroad v. Marion County, 36 Mo. 294; Bissell v. Railroad, 22 N.Y. 258. (6) Moreover, the city, by ordinance, provided that the sewer be built. It had power to cause it to be built either as a public sewer, district sewer, repair of an existing sewer, work necessary to abate a nuisance or to secure the general health. Charter 1889, art. 2, sec. 6; art. 9, sec. 9; art. 7; art. 3, sec. 2. (7) The manner of procedure depended upon which theory the city proposed to build it. Instead of letting it to the lowest bidder, the city by ordinance directed the superintendent of streets to do the work ordered by the board of public works, and the said board ordered the superintendent to do this work. Here, then, was a work lawful in its nature, within the scope of the charter power of the city, and authorized, but done in an unlawful or unauthorized manner (not let by public bidding). The city also ratified it by paying for the work. It is settled in this state that for the acts of its agents in such cases the city is liable. Pekin v. Newell, 26 Ill. 320; Dooley v. City of Kansas, 82 Mo. 445; Worley v. Columbia, 88 Mo. 106; Soulard v. St. Louis, 36 Mo. 546; Hunt v. Boonville, 65 Mo. 620; Allison v. Richmond, 51 Mo.App. 133; Chicago v. Turner, 80 Ill. 419. The failure to let by competitive bidding does not render the act ultra vires. Home Bldg. Co. v. Roanoke, 27 L. R. A. (Va.) 551; Weller v. St. Paul, 40 Minn. 460. (8) Whether the negligence was the omission of the superintendent of streets or that of foreman Powers, in either case, it remained the negligent omission of the city, inasmuch as the duty rested primarily on it, and it was never discharged. Moore v. Railroad, 85 Mo. 594; Sullivan v. Railroad, 107 Mo. 66; Ross v. Railroad, 112 Mo. 45; Dayharsh v. Railroad, 103 Mo. 590; Miller v. Railroad, 109 Mo. 350; Browning v. Railroad, 124 Mo. 55; Mulcairn's Adm'x v. Janesville, 67 Wis. 34.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This is an action for damages for personal injuries sustained by plaintiff while engaged as a laborer in digging a trench for a sewer in said city. The work was being done by the superintendent of streets of the city under an order of its board of public works. Plaintiff was employed by said superintendent. The work was being done under the immediate charge of one Powers as foreman, who was also employed by the superintendent.

The petition alleged "that the defendant and its duly appointed representative in charge of said work, negligently and carelessly failed to sufficiently brace, shore up, and protect the walls of said trench so as to make said trench reasonably safe for plaintiff to work in, in this: that it failed to place enough braces in said ditch, and placed the braces therein too far apart, and failed to use sufficient lumber in shoring up the sides of said ditch as it was the duty of defendant and its representative to do."

The ditch caved in while plaintiff was at work and he was severely injured by the falling earth.

The defenses were a general denial of the allegations in the petition, and charges of contributory negligence.

From a judgment in favor of plaintiff in the sum of $ 3,500 defendant appealed.

In 1891 the defendant city in pursuance of a provision of its charter, providing that it shall have power "to establish, erect, and keep in repair bridges, culverts, sewers, and to regulate the use of same," passed the following ordinance under which it is claimed by plaintiff the work was being done at the time plaintiff was injured, to wit:

"An ordinance to establish and cause to be constructed a joint district sewer in sewer districts numbers 108 and 166.

"Be it ordained by the common council of Kansas City:

"Section 1. That a joint district sewer be and the same is hereby established and shall be constructed in sewer districts numbers 108 and 166, which shall be as follows, to wit:

"Beginning at a point on the center line of Campbell street sixty-six (66) feet north of the north line of Nineteenth street thence south along the center line of Campbell street to a point one hundred and forty-eight and five tenths (148.5) feet south of the south line of Nineteenth street, thence on a curve to the right forty-six and five tenths (46.5) feet to a connection with the O. K. creek sewer, with an interior diameter of six (6) feet, six (6) inches.

"The aforesaid sewer shall be constructed of the best hard burned brick, and shall be constructed in accordance with plans prepared for the construction of the same now on file in the office of the board of public works, marked 'approved,' and dated August 21, 1891.

"A manhole for inspection, ventilation, and cleaning shall be constructed as a part and appurtenance to said sewer...