Healy v. Kansas City
| Decision Date | 28 March 1919 |
| Docket Number | No. 19840.,19840. |
| Citation | 277 Mo. 619,211 S.W. 59 |
| Parties | HEALY v. KANSAS CITY. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.
Suit by Chester F. Healy against Kansas City, Mo. From judgment for defendant, plaintiff appeals. Affirmed.
R. J. Holmden, Strother & Campbell, and George W. Day, all of Kansas City, for appellant.
E. M. Harber and Francis M. Hayward, both of Kansas City, for respondent.
The plaintiff sued for damages on account of personal injuries. A demurrer to his petition, filed by the defendant, was sustained. Plaintiff declined to plead further, and from the judgment thereupon rendered for defendant he appealed.
The plaintiff was injured July 4, 1914, while assisting in the conduct of a sham battle at Swope Park in Kansas City, and the suit arose from that incident. The petition is in two counts. The first count alleges the character of the defendant as a municipal corporation, and sets out several ordinances which provide for the control of guns, pistols, and substances of explosive character by the board of park commissioners, and forbid the discharge of such weapons, but allow for public exhibitions of fire works in charge of competent persons under permit issued by the mayor; also a resolution of the city council providing for the celebration of the Fourth of July, 1914, at Swope Park, which was owned by the city. The petition then alleges that there were three military organizations in Kansas City, among them Battery 3, having charge of three-inch breech-loading guns, which in handling required the services of officers and men of intelligence and training; that Battery B did not have its full quota of enlisted men and of horses, of which the city was fully aware; in order to take part in the contemplated sham battle it was necessary to obtain more men and horses; that the plaintiff was not a member of the Battery, but the board of park commissioners of the defendant city "ordered, directed, and permitted plaintiff and others not members of the Battery to act as its regular members" and assist such Battery in carrying out the sham battle, and "ordered, directed, and permitted Battery 3 to take part in the sham battle"; that the defendant's agents and officials "ordered and directed and permitted plaintiff to be placed in a gun squad and assigned to one of the guns of the Battery," and directed and permitted plaintiff to swab out or clean a gun, and while performing that duty the gun was discharged, causing the injury sued for.
The acts of negligence alleged which it is claimed caused the injury and render the city liable were: First, that the defendant's officials ordered, directed, and permitted plaintiff to be placed in the gun squad when he was wholly untrained and inexperienced in the handling and firing of said gun; second, they failed to provide him with a reasonably safe place in which to aid and help carry out the said sham battle, because crowds were permitted to congregate about the gun and gun squads so they could not properly handle and fire the guns; third, the city officials directed and permitted incompetent and inexperienced persons to handle and fire the gun in conjunction with plaintiff, knowing them to be such; fourth, they failed to inform or warn plaintiff of the dangerous character of the gun which he assisted to handle; fifth, they ordered the gun to be discharged when they knew the plaintiff was in position to sustain injury.
The second count alleges the same matters with regard to the arrangement for and conduct of a sham battle, the ownership and control of Swope Park by the city, and the agency of the board of park commissioners in conducting the sham battle. It then alleges that the manner of loading and firing the guns mentioned was conducted by inexperienced persons without sufficient police protection to keep the crowds back, creating such conditions as to constitute a common nuisance, by reason of which negligent failure of the city to perform its duty and prevent such nuisance the plaintiff was injured.
It will be seen that the first count of the petition predicates liability on the ground that the city conducted and managed the sham battle in a negligent manner, and thereby caused the injury.
The second count seeks to recover on the ground that the city negligently permitted dangerous conditions to occur in a public park whereby the plaintiff was injured.
I. It is claimed by respondent that the city was acting ultra vires in conducting a Fourth of July celebration of the character described in the petition. If it could be inferred from the allegation that the city undertook the expense of putting on the celebration, it would certainly be beyond its power; no provision of the charter has been pointed out which would authorize that act. But the petition will hardly bear that construction. Appellant points to section 6, art. 13, of the charter of 1909 for Kansas City as giving the authority. That section invests the board of park commissioners with authority "to superintend, control and manage any and all parks * * * belonging to or under the control of the city."
The allegation of the petition is that the city, in pursuance of certain ordinances and resolution, proceeded to provide for the celebration and "issued permits," "and also ordered, permitted, and arranged with Battery B and the other military organizations mentioned to conduct such celebration, and the sham battle and the celebration were enacted and carried on under said order, permission, and arrangement."
From this it is plain that the city council, not the board of park...
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