Gibson v. City of St. Joseph

• Decision Date: 10 November 1919
• Docket Number: No. 13337.,13337.
• Citation: 216 S.W. 50
• Parties: GIBSON v. CITY OF ST. JOSEPH.
• Court: Missouri Court of Appeals

216 S.W. 50

GIBSON v. CITY OF ST. JOSEPH.

No. 13337.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by Ernest It. Gibson against the City of St. Joseph. Judgment for plaintiff, and defendant appeals. Affirmed.

Stigall, Meyer & Hamm, of St. Joseph, for appellant.

Sam Wilcox and L. E. Thompson, both of St. Joseph, for respondent.

ELLISON, P. J.

Plaintiff's action is based on alleged negligence of defendant city in the construction of a sewer along Black Snake creek in said city, whereby the water (especially after rainfall), which formerly had flowed along said creek, was caused to overflow onto adjoining lots. Plaintiff charged that such overflow destroyed his personal property. He recovered judgment in the trial court for $400.

There was evidence to show that before the construction of the sewer the creek had sufficed for proper drainage for that immediate section of the city. The sewer, while built along the general course, did not follow the meandering of the creek. There were points of intersection, and about 600 feet from the last of these, the sewer came to a closed end, and at this point an opening, or intake, was negligently made on the side of the sewer to receive the water flowing down the creek to that point. There was evidence tending to show that the lower side of the intake was about six feet higher than the bottom of the creek, forming a "swimming hole" in the summer and a "skating pond" in the winter. There was likewise evidence tending to show that the intake was not of sufficient size to receive the water, the result being that in heavy rains overflows followed. The negligence of which complaint is made relates to the intake as thus constructed.

We are fully satisfied that the foregoing synopsis of plaintiff's case entitled him to the opinion of the jury; and we have only to ascertain if there was a proper trial. It seems that there were public school grounds near the point of overflow over which the water would pass, and the school board filled in these grounds as a protection against the water in time of flood. Defendant claims that this act of the school board was the primary negligence causing the overflow which damaged plaintiff's property, and that therefore plaintiff should have made the school board a party defendant, and the city filed a motion to require plaintiff to make it such party as provided by section 8862, R. S. 1909. The court properly overruled this motion. In filling in its ground the board was not guilty of negligence, but exercised a right it had to protect its own property from overflowing surface water. Goll v. Railroad, 271 Mo. 655, 197 S. W. 244; Johnson v. Leazenby, 216 S. W. 49, "decided this term.

The chief point made by the city in support of its nonliability is stated by counsel in these words:

"The construction of a sewer requires the exercise of judgment as to the time when and the mode in which it shall be undertaken and the best plan which the means at the disposal of the corporation renders it practicable to adopt, and is a quasi judicial act, for which the city is not liable."

An examination of the authorities cited shows that the courts have not agreed on the liability of a city when the case made is of the character suggested by this proposition of defendants. But in this state, beginning with City of St. Louis v. Gurno, 12 Mo. 414, the rulings (several not made without dissent) have shown that the adoption of a general plan of public improvement by the city authorities is a quasi judicial matter, which, though the carrying out of the plan will cause loss, is damnum absque injuria. See Judge Wagner's separate opinion in Thurston v. City of St. Joseph, 51 Mo. 510, 517, 11 Am. Rep. 463.

But when the proximate cause of damage to the citizen is not the governmental plan adopted by the city, but is the negligent carrying out of such plan, the city is liable, not for adopting or carrying out the plan, but for the negligent execution of it. Rychlicki v. City of St. Louis, 98 Mo. 497, 501, 11. S. W. 1001, 4 L. R....