Gardner v. McDowell

• Decision Date: 08 March 1969
• Docket Number: No. 45258,45258
• Citation: 451 P.2d 501,202 Kan. 705
• Parties: Benjamin F. GARDNER, Anna Webster, Lela Guyton and Della Lewis, Appellants, v. Joseph H. McDOWELL, Mayor; the City of Kansas City, Kansas; Lloyd Rogers and Lawrence Stahl, Appellees.
• Court: Kansas Supreme Court

Page 501

451 P.2d 501

202 Kan. 705

Benjamin F. GARDNER, Anna Webster, Lela Guyton and Della Lewis, Appellants, v. Joseph H. McDOWELL, Mayor; the City of Kansas City, Kansas Lloyd Rogers and Lawrence Stahl, Appellees.

No. 45258.

Supreme Court of Kansas.

March 8, 1969.

Syllabus by the Court

1. The Home Rule Amendment (Constitution of the State of Kansas, Art. 12, § 5) does not change the doctrine of governmental immunity as applied to cities. Cities remain subordinate branches of government and they continue to perform governmental and political functions as agents of the sovereign state. It is the performance of these functions which is the basis for the grant of governmental immunity.

2. A municipality is not liable for the negligence or misconduct of its police officers when engaged in the performance of governmental functions.

3. Police officers who needlessly and wantonly injure a person while making an arrest are personally liable for such injury and death.

4. The major of a city, acting as chief of police, is not liable for acts of the arresting officers under the doctrine of respondeat superior. In order for liability to attach he must personally direct or participate in the unnecessary and wrongful acts which result in injury and death.

5. In an action to recover damages for the wrongful death of a person shot by police officers while attempting to apprehend such person the record is examined and it is held: (1) The petition failed to state a claim against the City of Kansas City and Mayor Joseph H. McDowell and a motion to dismiss as to them was properly sustained; (2) The petition stated a claim against the two arresting police officers, Lloyd Rogers and Lawrence Stahl, and a motion to dismiss as to them should have been overruled.

John H. Fields, Kansas City, argued the cause and David W. Carson, John K. Dear, Ernest N. Yarnevich, J. W. Mahoney and Joseph T. Carey, Kansas City, and John Anderson, Jr., Olathe, with him on brief for appellants.

Edward H. Powers, II, Kansas City, argued the cause and on brief for appellees Lloyd Rogers and Lawrence Stahl.

C. W. Brenneisen, Jr., Kansas City, on brief for appellee City of Kansas City, Kansas.

A. B. Howard, Kansas City, on brief for appellee Joseph H. McDowell.

FROMME, Justice.

The heirs at law of Olive I. Allen filed this action against the City of Kansas City, Kansas, Mayor Joseph H. McDowell and two police officers to recover damages for wrongful death. Olive I. Allen was shot and killed by the two officers in an attempt to apprehend her at 4:30 a. m. on March 29, 1967. The plaintiffs appeal from an order dismissing the action.

The petition was filed June 30, 1967. On July 18 the defendants filed both an answer and a motion. The motion was captioned 'Motion for Summary Judgment'. The defendants moved the court to enter judgment for defendants on the ground the pleadings showed that they were entitled to judgment as a matter of law. On August 11 this motion was heard. No discovery proceedings had been attempted by any of the parties and no affidavits were filed. The court sustained the motion as to all defendants.

The provisions of our code relating to motions for summary judgment permit a defendant to file such a motion at any time after a claim is filed against him. (K.S.A. 60-256(b).) However, such a motion contemplates consideration of all pleadings filed. Matters outside the pleadings may also be considered when established by affidavits, depositions, answers to interrogatories and requests for admissions. (K.S.A. 60-256(c).) The parties did not present any matters to the court except the pleadings. Strictly speaking, the motion was not one for summary judgment. It was directed against the allegations of the petition. The motion appears to be a motion to dismiss under K.S.A. 1968 Supp. 60-212(b) (6) and as such must be determined from the allegations of the petition. The motion in such case may be treated as the modern equivalent of a demurrer. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P.2d 347.) Questions of fact presented in the answer cannot be resolved on such a motion and we limit our discussion to the petition which reads:

'Come now the plaintiffs and for this their cause of action against the defendants, allege and state:

'1. That the plaintiffs, Anna Webster, Lela Guyton and Della Lewis are citizens and residents of the State of Kansas; that the plaintiff Benjamin F. Gardner, is a citizen and resident of the State of Nebraska.

'2. That plaintiffs are the heirs at law of Olive I. Allen, deceased, and that as such they have sustained a loss by reason of her death, as hereinafter more fully appears.

'3. That the defendant, Joseph H. McDowell, was at all times mentioned herein, the Mayor of the City of Kansas City, Kansas, and a citizen and resident of the State of Kansas. That the City of Kansas City, Kansas is a municipal corporation within the State of Kansas, having the power to determine its local affairs and government under the Home Rule Amendment to the Constitution of the State of Kansas; upon which the plaintiffs caused a Notice and Claim to be served on the 29th day of May, 1967, a copy of which is attached hereto as Exhibit 'A' and made a part hereof as though fully set forth herein; that the defendants, Lloyd Rogers and Lawrence Stahl were at all times mentioned herein, citizens and residents of the State of Kansas, employed as Police Officers by the defendant, City.

'4. That on March 29, 1967, the decedent, Olive I. Allen was an elderly woman, some 70 years of age who was physically decrepit, and mentally confused.

'5. That prior to March 29, 1967, the defendant, McDowell personally assumed the active control and management of the Police Department of the defendant, City. That in so doing, he failed, refused and neglected to follow the advice of his Chief of Police even though said defendant McDowell had no experience whatever as a Police Officer or as an administrator or Chief of Police in charge of a Police Department.

'6. That at approximately 4:30 a.m. the morning of March 29, 1967, the defendant McDowell, under the conditions and circumstances herein alleged, sent the defendants Rogers and Stahl, two young Police Officers, wholly and totally untrained and inexperienced in dealing with individuals such as the decedent, Olive I. Allen, to apprehend her on the street in front of 630 Garfield Avenue, Kansas City, Kansas. That in so doing, the defendants Rogers and Stahl, carelessly, negligently, willfully and wantonly opened fire upon the person of Olive I. Allen with their high-powered Magnum revolvers at point blank range, to-wit: less than five feet; that said defendants' willful and unlawful use of unnecessary force consisted of firing into Olive I. Allen's body until it had been pierced through and through, at least eleven (11) times by the shattering impact of their high-velocity revolvers.

'7. From this furious fusillade, Olive I. Allen, mortally wounded, staggered several feet, fell and died on the sidewalk.

'8. That the acts herein described, with the results obtained, were committed by the defendants under color of the Ordinances of the City of Kansas City, Kansas and the laws of the State of Kansas; that they were unlawful and deprived the decedent, Olive I. Allen of her life and the plaintiffs of the society, companionship, comfort, protection, advice, and counsel of said decedent.

'9. That the defendant McDowell was careless, negligent and remiss in his duties as aforesaid in sending two young, untrained and inexperienced policemen, towit: the defendant Rogers and the defendant, Stahl to bring in the elderly Olive I Allen; that in by-passing his chain of command in the Police Department and ignoring the experience and capabilities of the officers in charge of the Police Department, he made himself personally liable for all actions, carelessly or wrongfully done during the course of his direction, management and command of said Department. That had the said McDowell been operating the Police Department in accordance with established police procedures, he would have known that the said Olive I. Allen had been in a confused mental state for several days, and had been picked up by other members of the Police Department on the streets and the thoroughfares of the City of Kansas City, Kansas; that her mentally confused condition was readily apparent and she should have been taken to a home or committed to an institution for her own well being.

'10. That as a direct and proximate result of the careless, negligent, wrongful and unlawful acts herein alleged, the said Olive I. Allen met her death and the plaintiffs have lost the society, companionship, comfort, protection, advice, and counsel of the said Olive I. Allen: That plaintiffs have sustained mental anguish, suffering and bereavement and incurred reasonable funeral expenses in the amount of Nine Hundred Eighty Four and 50/100 ($984.50) Dollars, all in and to their actual damages in the sum of Twenty-Five Thousand ($25,000.00) Dollars and the costs of this action.

'WHEREFORE, plaintiffs pray judgment against the defendants and each of in the sum of Twenty-Five Thousand ($25,000.00) Dollars and the costs of this action.'

It is apparent from the petition that the acts which form the basis for claims arose from the operation of the city police department. The operation of a police department by a city is a governmental function. Under the decisions of this court the city is immune from liability for the acts of its police officers. One of our recent cases so holding is Parker v. City of Hutchinson, supra. Similar decisions have been handed down by federal courts. (See Cuiksa v. City of Mansfield, 6 Cir., 250 F.2d 700, cert. den. 356 U.S. 937, 78 S.Ct. 779, 2 L.Ed.2d 813.)

The plaintiffs urge that it is time for this court to abrogate the doctrine of...