Hannon v. Cnty. of St. Louis

• Citation: 62 Mo. 313
• Parties: MICHAEL HANNON, et al., Plaintiffs in Error, v. THE COUNTY OF ST. LOUIS, et al., Defendants in Error.
• Decision Date: 31 January 1876
• Court: United States State Supreme Court of Missouri

62 Mo. 313

MICHAEL HANNON, et al., Plaintiffs in Error,

v.THE COUNTY OF ST. LOUIS, et al., Defendants in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to St. Louis Circuit Court.

Bakewell & Farish, for Plaintiffs in Error.

The case at bar is one in which the county was acting in a private capacity and was liable to the extent to which a private corporation would be. (Lloyd vs. Mayor of N. Y., 5 N. Y., 369; Eastman vs. Meredith, 36 N. H., 292: Bayley vs. Mayor of N. Y., 3 Hill, 539; Mears vs. Com. of Wilmington, 9 Ired., 73; Inhab. 4 Sch. Dis. Rumford vs. Wood, 13 Mass., 198; Thayer vs. Boston, 19 Pick., 511; Akron vs. M. County, 18 Ohio, 229; Rhodes vs. Cleveland, 10 Ohio, 159; Cunliffe vs. Mayor of Albany, 2 Barb., 190; Larkin vs. Co. of Saginaw, 11 Mich., 91; Kent Com., vol. 2, p. 375; United States Bank vs. Planter's Bank, 9 Whart., 907; Conrad vs. Village of Ithica, 16 N. Y., 172; Hickok vs. Plattsburg, 16 N. Y., 161.)

In this case it is to be borne in mind that the party injured was working under the immediate direction and superintendence of a county officer. (Dill. Mun. Corp., § 792, and cases cited.)

Thos. C. Reynolds, Co. Att'y, for Defendants in Error, relied on Reardon vs. St. Louis County, 36 Mo., 555; and referred to Dill Mun. Corp., 2 ed., 1873, p. 872.

SHERWOOD, Judge, delivered the opinion of the court.

The petition, in substance, alleges, that in September, 1872, the county of St. Louis entered into a written contract with Henry Luken, whereby the latter agreed to lay a water-pipe from the main pipe, at the intersection of Lafayette and Grand avenues, along certain streets to the grounds of the County Insane Asylum, thence through those grounds to a connection with the cistern of the asylum, in order to supply the same with water; that the work was to be done to the satisfaction of the county engineer; was to be superintended by him, and that such precautions should be taken in the progress of the work, and in shoring such trenches as might be dug, in order to prevent accidents to life and limb, as the engineer should direct; that the width of the trench for the reception of the pipe was to be two and a half feet, and to vary in depth with the grade of the street; that the sides of the trench were to be shored with plank and timber; that the county reserved to itself the superintending control over the work, and the right to discharge any workman the contractor might employ; that in December, 1872, the contractor had, in pursuance of the work, and under the direction of the engineer, dug on the grounds of the County Insane Asylum, then owned by the county, a trench thirty feet in depth, and not exceeding two and a half feet at the bottom; that by reason of this and of not being properly shored, the trench was dangerous, and known to be so by both the engineer and the contractor; that the minor son of plaintiff, Patrick Hannon, was in the employ of the contractor, engaged in laying the pipe along the bottom of the ditch, and, while the engineer was present, superintending and directing the work, the sides of the trench, without any fault or negligence on the part of Patrick Hannon, in consequence of the wrongful act, neglect and default of the engineer and of the contractor in failing to properly shore the sides thereof, caved in and suffocated the son of plaintiff, etc.

A demurrer was successfully interposed to this petition on the ground that the “county is a political sub-division of the State of Missouri, and not a body corporate, either private or municipal, liable for the laches or misconduct of its servants or employees.”

The case, as made by the pleadings, concedes the validity of the contract mentioned in the petition, and consequently that point is not open to discussion.

In the view we have taken of this case, it would be foreign, alike to our purpose and the facts admitted by the demurrer, to question the correctness of the proposition so generally concurred in elsewhere, asserted in Reardon vs. St. Louis County (36 Mo., 555) “that quasi corporations, created by the legislature for the purposes of public policy, are not responsible for the neglect of duties enjoined on them, unless the action is given by the statute.” But as Mr. Justice Metcalf, in Bigelow vs. Randolph (14 Gray, 541), when speaking of the rule established in Mower vs. Leicester (9 Mass., 247), that a private action cannot be maintained against a quasi corporation for neglect of corporate duty, unless the action be given by the statute, very appropriately remarks: “ This rule of law, however, is of limited application. It is applied in the case of towns only, to the neglect or omission of a town to perform those duties which are imposed on all towns without their corporate assent, and not to the neglect of those obligations which a town incurs when a special duty is imposed on it with its consent express or implied, or a special authority is conferred on it at its request. In the latter case a town is subject to the same liabilities for the neglect of those special duties to which private corporations would be if the same duties were imposed, or the same authority conferred on them, including their liability for the wrongful neglect, as well as the wrongful acts, of their officers and agents.”

Towns in New England, as mentioned in the above extract, occupy the same plane as counties, for, in Eastman vs. Meredith (36 N. H., 292), Perley, C. J., when referring to the former, says: “Towns are involuntary territorial and political divisions of the State, like counties, established for purposes of government and municipal regulation.” A similar definition is given of counties. (Dill. Mun. Corp., vol. 1, § 10a.)

In the case at bar, the County of St. Louis was not engaged in the discharge of duties imposed alike by general law on all counties; duties whose performance, if neglected, might have been enforced by appropriate procedure for that purpose; but in the discharge of a self-imposed duty not enjoined by any law. And the test of the matter is this: That the county could not have been compelled to enter on the work for whose performance it contracted.

If the doctrine asserted in Bigelow vs. Randolph, supra, be the correct one, and it has received the approval of Mr. Justice Dillon in his work on Corporations (vol. 2, § 762); and if, as before stated, the county undertook the contract of its own volition, and not in the observance of a public duty imposed by general law, then there is no refuge from this result; that the county, in regard to the performance of that contract, must occupy the same attitude as if a mere private corporation, and the work thus contracted for should be deemed a private enterprise, undertaken for its own local benefit; and this is more especially the case as the work, at the time of the occurrence which...