Hinds v. City of Hannibal

• Decision Date: 14 June 1948
• Docket Number: 40200
• Parties: Eugene Hinds, Appellant, v. City of Hannibal, Respondent
• Court: Missouri Supreme Court

212 S.W.2d 401

Eugene Hinds, Appellant, v. City of Hannibal, Respondent

No. 40200

Supreme Court of Missouri, First Division

June 14, 1948

From the Hannibal Court of Common Pleas Civil Appeal Judge Roy B Meriwether

Affirmed

OPINION

Hyde J.

Plaintiff's amended petition for $50,000.00 damages for personal injuries was dismissed, on defendant's motion, on the ground that it did not state facts sufficient to entitle him to any relief. Plaintiff has appealed from the judgment entered against him.

Plaintiff's claim was based on an assault by a policeman while he was in the city jail. Plaintiff alleged that he had not violated any law or ordinance and that his arrest was illegal. He further alleged that he was wrongfully accused by the policeman Houston of destroying property in the jail and was "brutally assaulted and beat up"; but that he was later acquitted on a charge of destroying property of the city. The petition also alleged that defendant retained Houston in its employ in its police department "with full knowledge of his many various, vicious, malicious, willful, deadly and felonious assaults upon people in Hannibal"; that previous assaults by Houston upon other people (specific allegations as to one in 1940 and two in 1941; and general allegations as to others,) were known to defendant "or by the exercise of reasonable and ordinary care could and should have been known"; and that his acts "were extremely dangerous to the safety of the life and limb of the people of and in the City of Hannibal, and was such an open and notorious menace to the public generally as to constitute a nuisance." The petition further alleged "that the defendant, by its wrongful, reckless, careless and negligent failure, neglect and refusal to prevent the vicious, malicious, willful, deadly and felonious assaults upon the people of and in the City of Hannibal by its servant and agent, Lloyd Houston, or to otherwise abate the nuisance created, did thereby ratify, encourage, condone and approve the vicious, malicious, willful, deadly and felonious assaults upon the people in and of the City of Hannibal and encourage their commission by the said Lloyd Houston, defendant's agent and servant."

Plaintiff's theory is that his petition "states a cause of action against the respondent for having and maintaining a nuisance, and for failure to abate the same." He relies on Richardson v. City of Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A.L.R. 508; Maxwell v. City of Miami, 87 Fla. 107, 100 So. 147, 33

A.L.R. 682; and Hoffman v. City of Bristol, 113 Conn. 386, 155 A. 499, 75 A.L.R. 1191. Plaintiff also assails the whole doctrine of governmental immunity as being based solely on the abhorrent theory that the king can do no wrong and urges that it be changed.

Immunity from tort liability for acts of public officers in the exercise of governmental functions is not retained in this country to perpetuate the idea that the king can do no wrong, as plaintiff suggests. The principal reason for it is that the general rules of respondeat superior cannot be applied to public officers without opening up unlimited possibilities for wasteful and dishonest dissipation of public funds. Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080. Public funds are trust funds and public policy does not permit them to be diverted from the purposes for which they are raised by taxation. This is analogous to the rule which exempts charitable trusts from tort liability. See Dille v. St. Luke's Hospital, Mo. Sup., 196 S.W.2d 615 and cases cited. Any change in this situation must be made by the Legislature, as has been done in providing for tort claims against other states and the Federal Government, because only the Legislature could prescribe all regulations and limitations necessary to protect the public interest and provide the fiscal basis for payment of such claims.

We think it is clear that plaintiff's case is based on negligence. Tort liability under the incompetent fellow servant rule is a part of the law of negligence. See 35 Am.Jur. 627, Sec. 197, pp. 770-778, Secs. 342-352; 39 C.J. 526-535, Secs. 631-641. So is failure to exercise due care in the selection of an independent contractor which may make one liable for his wrongful acts. 27 Am.Jur. 507, Sec. 28; 39 C.J. 1339, Sec. 1550. We think the basis of plaintiff's claim herein is substantially the same, and that what is charged against the city is negligence in the selection or retention of an incompetent, vicious and unqualified person as a member of its police force. Plaintiff's...