Fette v. City of St. Louis

Decision Date11 March 1963
Docket NumberNo. 1,No. 49360,49360,1
Citation366 S.W.2d 446
PartiesM. Florence FETTE, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent
CourtMissouri Supreme Court

William B. Ewald and Forrest Boecker, St. Louis, for appellant.

Thomas J. Neenan, City Counslor, James J. Gallagher, Associate City Counselor, St. Louis, for respondent.

HYDE, Judge.

Action for $25,000.00 damages for wrongful death of plaintiff's husband, a city fireman killed while on duty fighting a fire in a building. The suit was against the owners and occupants of the building and the City. The trial court sustained the City's motion to dismiss as to it on the ground of failure to state facts upon which relief can be granted. The court also granted plaintiff a separate trial against the owners and occupants and ordered that its ruling as to the motion to dismiss be deemed a final judgment for the purpose of appeal pursuant to Supreme Court, Rule 82.06, V.A.M.R. Plaintiff has appealed from that judgment.

Plaintiff briefs the case on the theory that the dismissal was because of the doctrine of governmental immunity. The City has filed a motion to dismiss the appeal, claiming governmental immunity was not the issue determined by the trial court. However, the trial court's order did not specify any ground and the City's motion stated no reason why plaintiff's petition did not state a claim. Likewise, the City's suggestions in support of its motion filed here do not give us any information about any other ground so its motion to dismiss the appeal is overruled. Nevertheless, since the City says it does also rely on the defense of governmental function (including cases on that subject in its suggestions) and plaintiff seeks to have the doctrine of governmental immunity abrogated at least insofar as it applies to municipalities as employers, we will decide the case on that issue. No contention is made that fire fighting is not a governmental function. See Richardson v. City of Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A.L.R. 508.

Plaintiff cites the following cases from other states, saying we should follow them. Muskopf v. Corning Hospital District, 11 Cal.Rptr. 89, 359 P.2d 457; Hargrove v. Town of Cocoa Beach (Fla.), 96 So.2d 130; Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469; Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Spanel v. Mounds View School Dist. No. 621 (Minn.), 118 N.W.2d 795; McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618. The view we have taken, stated in Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1084, and recently restated in Gillen v. City of St. Louis, Mo., 345 S.W.2d 69, 73, is as follows: 'This whole doctrine of governmental immunity has been increasingly criticised. However, such nonliability is based not merely on the ancient view that the king can do no wrong, as frequently suggested; but also upon the principle that public officers have no authority to bind the sovereign (the whole people) except such as is given them by specific constitutional and statutory provisions. The general rules of respondeat superior cannot be applied to them without opening up unlimited possibilities for wasteful and dishonest dissipation of public funds. While the complexity of modern government may require a relaxation of present rules of aboslute nonliability, undoubtedly this is a matter for the Legislature (which must authorize the collection and disbursement of public funds) to provide in the interest of more complete justice to the individual but under strict regulations and with very definite limitations to protect the public interest.' See also Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, and cases therein cited.

We think the above-cited recent Minnesota case shows why this is properly a matter for the legislature. The court reviewed the origin of the doctrine in England and in the United States and applied it in the case before it but held prospetively 'the defense of soverign immunity will no longer be available to school districts, municipal corporations, and other subdivisions of government on whom immunity has been conferred by judicial decision with respect to torts which are committed after the adjournment of the next regular session of the Minnesota Legislature.' (118 N.W.2d 1.c. 796.) The court stated the following suggested proposals that the legislature might adopt to meet the situation created by its abrogation of the doctrine (118 N.W.2d 1.c. 804): '(1) A requirement for giving prompt notice of the claim after the occurrence of the tort, (2) a reduction in the usual period of limitations, (3) a monetary limit on the amount of liability, (4) the establishment of a special claims court or commission, or provision for trial by the court without a jury, and (5) the continuation of...

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8 cases
  • Boyer v. Iowa High School Athletic Ass'n
    • United States
    • United States State Supreme Court of Iowa
    • April 8, 1964
    ...to deny defendant and other units of government a defense on which they have had a right to rely. * * *' Fette v. City of St. Louis (Mo.), 366 S.W.2d 446, 447-448 (Hyde, J.), considers the Minnesota case, supra, and the same other precedents plaintiff cites here, later to be mentioned herei......
  • O'Dell v. School Dist. of Independence
    • United States
    • United States State Supreme Court of Missouri
    • March 10, 1975
    ...In Payne, the Court relying primarily on Cullor v. Jackson Township, Putnam County, 249 S.W.2d 393 (Mo.1952), Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963), and the Smith case, supra, declined to abolish the doctrine, and said (484 S.W.2d 483, 486): 'We are not unaware that the doctr......
  • Watson v. Kansas City
    • United States
    • United States State Supreme Court of Missouri
    • September 10, 1973
    ...ruled that any change in the application of the doctrine should be accomplished by legislative enactment. See Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963), and Smith v. Consolidated School District No. 2, 408 S.W.2d 50 (Mo.1966). There are two reasons why we consider it unnecessary ......
  • German v. Kansas City
    • United States
    • United States State Supreme Court of Missouri
    • June 24, 1974
    ...for negligence in connection with a governmental function. See Gillen v. City of St. Louis, 345 S.W.2d 69 (Mo.1961); Fette v. City of St. Louis, 366 S.W.2d 446 (Mo.1963); Auslander v. City of St. Louis, 332 Mo. 145, 56 S.W.2d 778 (Banc 1932); Carruthers v. City of St. Louis, 341 Mo. 1073, 1......
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