Fette v. City of St. Louis, No. 49360
| Court | Missouri Supreme Court |
| Writing for the Court | HYDE; All of the Judges of the Division and STONE; PER CURIAM |
| Citation | 366 S.W.2d 446 |
| Parties | M. Florence FETTE, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent |
| Docket Number | No. 1,No. 49360 |
| Decision Date | 11 March 1963 |
Page 446
v.
The CITY OF ST. LOUIS, a Municipal Corporation, Respondent.
Motion to Transfer to Court En Banc Denied April 8, 1963.
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
Page 447
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...
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Boyer v. Iowa High School Athletic Ass'n, No. 51235
...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 herein. ......
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O'Dell v. School Dist. of Independence, No. 57474
...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 Page 405 to abolish the doctrine, and said (484 S.W.2d 483, 486): 'We are not unaware that ......
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Watson v. Kansas City, No. 56432
...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 ......
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German v. Kansas City, No. 56584
...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, 111 S.W.2d 32 (1......
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Boyer v. Iowa High School Athletic Ass'n, No. 51235
...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 herein. ......
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O'Dell v. School Dist. of Independence, No. 57474
...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 Page 405 to abolish the doctrine, and said (484 S.W.2d 483, 486): 'We are not unaware that ......
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Watson v. Kansas City, No. 56432
...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 ......
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German v. Kansas City, No. 56584
...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, 111 S.W.2d 32 (1......