Healy v. Kansas City
| Decision Date | 28 March 1919 |
| Citation | 211 S.W. 59,277 Mo. 619 |
| Parties | CHESTER F. HEALY, Appellant, v. KANSAS CITY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Thomas B. Buckner, Judge.
Affirmed.
R. J Holmden, Strother & Campbell and George W. Day for appellant.
(1) Swope Park was owned by Kansas City. The charter provides that the Board of Park Commissioners shall have "control and management" of its parks. The petition alleges that the defendant and its Board of Park Commissioners permitted and directed and authorized the use of said park for the celebration. Even if there were no specific charter grant of authority to own, control and manage Swope Park, it would be liable to plaintiff, if his injuries were the result of negligent acts of the city's servants or agents. Hunt v. City of Boonville, 65 Mo. 623; Dooley v. Kansas City, 82 Mo. 444. The point made by defendant that the petition shows an ultra vires act, is untenable. (2) Nor was the sham battle and celebration a purely governmental act for which the city can not be held liable. Up to the point when the city resolved that there should be a celebration in Swope Park, it was acting in its governmental capacity. But once that step was taken, its acts thereafter became ministerial acts, and it became its duty to exercise such care as a private person should observe in the same circumstances. The petition not only avers that the city permitted the celebration and sham battle, but also states that the city participated therein, and through its servants and agents directed plaintiff and others engaging therein. Morrison v. Lawrence, 98 Mass. 219; Love v. Raleigh, 116 N.C. 296; Administrator, etc. v. Montgomery, 53 Ala 527; Tindley v. Salem, 137 Mass. 171; Lincoln v. Boston, 148 Mass. 578; Robinson v. Greenville, 42 O. St. 625; Morristown v. Fitzpatrick, 94 Pa. 121. (3) Appellant contends that he stated in his petition facts which entitled him to go to a jury on the question of a nuisance in fact. According to these allegations, defendant not only permitted the nuisance, but it created, or helped to create it. Capp v. City of St. Louis, 251 Mo. 345. (4) It was the circumstances surrounding the sham battle and those operating the gun, the discharge of which injured plaintiff, which gives plaintiff his cause of action. Dowell v. Guthrie, 99 Mo. 653.
E. M. Harber and Francis M. Hayward for respondent.
(1) A municipality is not liable for the negligence of its agents or servants if such act is outside the powers of the corporation as conferred by law, whether its officers directed the performance of the act or it was done without express authority. Dillion on Mun. Corp. (5 Ed.), sec. 1650, note; Smith v. Rochester, 76 N.Y. 506; Love v. Raleigh, 116 N.C. 296; Administrator v. Montgomery, 53 Ala. 527; Foxen v. Santa Barbara, 134 P. 1142; Marth v. Kingfisher, 22 Okla. 602; Rowland v. Gallatin, 75 Mo. 134; Morrison v. Lawrence, 98 Mass. 219; Trower v. Louisiana, 198 Mo.App. 352. If the city had the power to provide for such celebration it would be a governmental function on the part of the city and there would be no liability on its part. Tindley v. Salem, 137 Mass. 171; Lincoln v. Boston, 148 Mass. 578; Robinson v. Greenville, 42 Ohio St. 625; Morristown v. Fitzpatrick, 94 Pa. 921; Hall v. Woodbine, 61 Iowa 83; Pope v. New Haven, 91 Conn. 79. Neither plaintiff nor the soldier that fired the cannon was a servant of the city, so there can be no liability on the part of the city. Lincoln v. Boston, 148 Mass. 578; R. S. 1909, sec. 8359. The battery was a governmental agent for whose conduct the city was not responsible. Each member of the battery was an agent of the State. Moody v. Ward, 13 Mass. 299; Castle v. Duryee, 1 Abbott Dec. 327; R. S. 1909, sec. 8359. If the act complained of on the part of the city was unlawful then plaintiff having participated in such act cannot recover. Gilmore v. Fuller, 198 Ill. 130; Hall v. Corcoran, 107 Mass. 253; Reusch v. Rolling Mills Co., 118 Ky. 369; Rowe v. Hammond, 172 Mo.App. 203. (2) It is not unlawful per se to permit the discharge of a cannon or fire works in a public park, for such discharge is not a nuisance per se. Kerr v. Brookline, 208 Mass. 190; DeAgramonte v. City of Mt. Vernon, 112 A.D. 291; Dowell v. Guthrie, 99 Mo. 653; Mastinson v. Village of Mt. Vernon, 58 N.Y. 39; Wheeler v. City of Plymouth, 116 Ind. 158. If the acts alleged by plaintiff amount to a nuisance, then plaintiff having participated in the discharge of cannon and in such sham battle, cannot recover. Gilmore v. Fuller, 198 Ill. 130; Hall v. Corcoran, 107 Mass. 253; Reusch v. Rolling Mills Co., 118 Ky. 369; Rowe v. Hammond, 172 Mo.App. 203.
OPINION
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 B, 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 B 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, Article 13, of the Charter of 1909 for Kansas City, as giving the authority. That section invest 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...
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