Hilsdorf v. City of St. Louis & the St. Louis R.R. Co.

• Decision Date: 31 October 1869
• Citation: 45 Mo. 94
• Parties: HENRY HILSDORF, Respondent, v. THE CITY OF ST. LOUIS AND THE ST. LOUIS RAILROAD COMPANY, Appellants.
• Court: Missouri Supreme Court

45 Mo. 94

HENRY HILSDORF, Respondent,

v.THE CITY OF ST. LOUIS AND THE ST. LOUIS RAILROAD COMPANY, Appellants.

Supreme Court of Missouri.

October Term, 1869.

Appeal from St. Louis Circuit Court.

Reber, city counselor, for appellant, City of St. Louis.

The city was not liable on the facts in evidence, and the court should so have instructed the jury. (Ang. & Ames on Corp., § 388, 8th ed.; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479; 7 Cush. 385, 388; Tweed v. Panama R.R. Co., 17 N. Y. 362; Thayer v. Boston, 19 Pick. 516-17; Dozier v. German, 30 Mo. 220.)

Glover & Shepley, for appellant, The St. Louis Railroad Company.

Cline, Jamison & Day, for respondent.

I. The railroad company was liable for the acts of Settle. (Sto. on Agency, § 308; Ang. & Ames on Corp., § 311; Thayer v. Boston, 19 Pick. 516; Gass v. Coblens, 43 Mo. 377.)

II. The city is also liable. (City of St. Louis v. Gurno, 12 Mo. 421; Mayor of N. Y. v. Bailey, 2 Denio, 433; City of Dayton v. Pease, 4 Ohio St. 80; Rhodes v. City of Cleveland, 10 Ohio, 159; Wightman v. Washington City, 1 Black, 39; Logansport v. Wright, 25 Ind. 512; Blake v. City of St. Louis, 40 Mo. 569; Browning v. City of Springfield, 11 Ill. 143; City of Pittsburg v. Grier, 22 Penn. 54; McCombs v. Akron, 15 Ohio, 474; Ross v. City of Madison, 1 Carter, Ind., 281; Nebraska City v. Campbell, 2 Black, 590.)

BLISS, Judge, delivered the opinion of the court.

In May, 1866, the stables of the St. Louis Railroad Company were consumed by fire, and some 140 mules, the property of the company, were destroyed, and their carcasses more or less burned. The weather was warm, and it became necessary at once to remove them.

By article IX of ordinance 4894, establishing and regulating the health department (revised ordinances 1866, pp. 451-3), it is made the duty of street inspectors to report to the clerk of the board of health every carcass they may find, and the clerk shall enter the report in a book, designating the locality, and the exclusive privilege is given to A. Feger and G. Futterknecht, for a period covering the time of this fire, to remove and appropriate said carcasses. These men bind themselves to remove all such animals from the city within six hours after notice, and it is made the duty of every owner of any dead animal who desires to convert it to his own use to do so within twelve hours after its death, or, if he does not desire to do so, to notify said clerk or some street inspector. The city pays nothing to these contractors, and the only consideration received by them is the privilege of converting the bodies to their own use, which is done at their manufactory of soap grease outside the city limits.

On the morning of the loss by the railroad company, the clerk of the board of health received from the company the proper notice; and one Settle, employed by the contractors to remove carcasses, appeared for the purpose of entering upon the performance of his duty, and met the mayor upon the ground. The fire occurred in the south part of the city, and the contractors' works are north of it, and seven miles from the place of the fire, and it became at once evident that these carcasses could not be conveyed to them. They had already become offensive, and were rapidly becoming more so, and their transportation through the city, even if it could be done at once, would have been a serious nuisance. But Settle had no means of so removing them, and informed the mayor that it would take him a week to do the whole job. The mayor then obtained a proposition from him to take them below the arsenal and throw them into the river for $1.25 per head, which proposition was communicated to the agents of the railroad company, who assented to it, and afterwards paid Settle his bill for the work. The river was very high at the time, and overflowed a stone quarry belonging to the plaintiff so as wholly to conceal it; and finding a road to the river bank where was situated this quarry, and it being more convenient of access than where he was directed to go by the mayor, Settle threw these carcasses into the river directly over this quarry. The current did not strike them, and they sank into the quarry, and the plaintiff claims that, being mixed with and covered by the sediment that filled his excavation, he could not re-open his quarry, and thus wholly lost the use of it. He recovered a judgment, which was affirmed at general term, and defendants appeal.

The defendants made separate defenses, and after the evidence was submitted, counsel for the city asked the court to instruct the jury that, on the facts proved, the plaintiff could not recover against it. This instruction the court refused to give, and thus the question is raised whether, under the facts claimed to be proved by the plaintiff, the city is liable to him for the damage arising from the acts of Settle.

If the city is thus liable, the liability arises by virtue of its relation to the mayor and to Settle, or to one of them. The responsibility of an employer for the act of those in his service depends upon the character of those acts, and especially upon their relation to the service. It would not be right to charge him for the torts of his servant that had no relation to his employment. The contract of service is no guarantee of general good conduct as a citizen, but any act done in pursuance of the contract of hire will in general charge the principal as well as the agent or servant. Corporations, whether municipal or aggregate, are now held to the same liability as individuals, and will not be permitted to screen themselves behind the plea that they are impersonal, and their acts are but the acts of individuals; and if an agent or servant of a corporation, in the line of his employment, shall be guilty of negligence or commit a wrong, the corporation is responsible in damages. (See Angell & Ames on Corporations, §§ 385-8, and the numerous cases cited in the notes.)

In the case at bar, the mayor, it appears, acted with zeal and energy to save the public from the effects of the terrible nuisance upon the premises of the railroad company. But he can not be said to have been acting on behalf of the city, but rather as a good citizen, whose other heavy responsibilities were a spur to look after the public welfare generally. The general duty of abating nuisances is imposed by article I of said ordinance 4894, especially by sections 6 and 7, upon the board of health and the street inspectors under its direction, and it does not appear that the mayor has anything to do with the matter. It is not necessary to say that an emergency could or could not arise, as if the board of health should grossly neglect its duty, and the city...