Kansas City ex rel. Barlow v. Robinson

• Decision Date: 25 May 1929
• Citation: 32 S.W.2d 1075
• Parties: KANSAS CITY EX REL. MARY ADELINE BARLOW, by HAZEL BARLOW, Her Mother and Next Friend, v. W.L. ROBINSON, D. MARTIN and UNITED STATES FIDELITY & GUARANTY COMPANY, Appellants.
• Court: Missouri Supreme Court

32 S.W.2d 1075

KANSAS CITY EX REL. MARY ADELINE BARLOW, by HAZEL BARLOW, Her Mother and Next Friend, v. W.L. ROBINSON, D. MARTIN and UNITED STATES FIDELITY & GUARANTY COMPANY, Appellants.

Supreme Court of Missouri, in Banc.

May 25, 1929.

Appeal from Jackson Circuit Court. — Hon. Thad B. Landon, Judge.

AFFIRMED.

Otto P. Higgins and Inghram D. Hook for appellants.

(1) Defendants' demurrers should have been sustained. (a) There was no proof of a violation of the terms and conditions of the bond. Sec. 619, Art. VIII, Rev. Ord. Kansas City 1909; Gerber v. Kansas City, 304 Mo. 157; Sec. 621, Art. VIII, Rev. Ord. Kansas City 1909. (b) The bond gave no cause of action to the plaintiff. Salmon v. Kansas City, 241 Mo. 38; Kansas City ex rel. Blumb v. O'Connell, 99 Mo. 357; Gerber v. Kansas City, 304 Mo. 157. (c) The negligence of William H. Wilson was an intervening proximate cause of plaintiff's injury. Shields v. Costello, 229 S.W. 411; Diehl v. Fire Brick Co., 253 S.W. 984; Kennedy v. Quarry & Construction Co., 291 S.W. 475. (2) The city, in attempting to create a new cause of action in the plaintiff, exceeding its lawful powers, in violation of Article XIV of the Constitution of the United States. Holwerson v. Ry. Co., 157 Mo. 246; Sanders v. Electric Ry. Co., 147 Mo. 411; Norton v. St. Louis, 97 Mo. 537; St. Louis v. Ins. Co., 107 Mo. 92; Becker v. Schutte, 85 Mo. App. 57; Jackson v. Railroad Co., 157 Mo. 621; Carpenter v. Realty Co., 103 Mo. App. 480; Art. III, Par. 20, Charter of Kansas City 1909; Art. VIII, Sec. 19, Charter of Kansas City 1909; Sec. 622, Art. VIII, Ord. Kansas City 1909; 1 Cooley's Statutory Limitations (8 Ed.) 401.

John F. Cell for respondent.

(1) The terms and conditions of the bond were clearly violated by the defendant Robinson. The bond was taken for the use and benefit of plaintiff and all other persons in her position, without limitation to class or kind of persons. Chillicothe ex rel. Matson v. Raynard, 80 Mo. 186; County Court of St. Louis County ex rel. Jenks v. Fassett, 65 Mo. 418; Nagel v. Ry. Co., 75 Mo. 653; Kansas City ex rel. Blumb v. O'Connell, 99 Mo. 357; Salmon v. Kansas City, 241 Mo. 14; Press v. Penny & Gentles, 242 Mo. 98; Gerber v. Kansas City, 304 Mo. 157; Faurote v. State, 110 Ind. 466. The defendant United States Fidelity & Guaranty Company being in the business of making bonds for a gainful purpose, the bond should be construed liberally in favor of any beneficiary. State ex rel. Hubbard & Moffit Con. Co. v. Cochrane, 264 Mo. 581; Bank v. Ogden, 192 Mo. App. 243; State ex rel. Land Co. v. Banking & Surety Co., 279 Mo. 535; Long Bros. Grocery Co. v. Fid. & Guar. Co., 130 Mo. App. 421. (2) The acts of Wilson in playing with the wires and magneto with the children were at the most only "a concurring act of negligence, and did not break the causal connection between the defendant's negligence and the injury." Diehl v. Fire Brick Co., 299 Mo. 641; Kennedy v. Quarry & Construction Co., 291 S.W. 475; Gerber v. Kansas City, 304 Mo. 157; Shields v. Costello, 229 S.W. 411; Depew v. Kilgore, 117 Okla. 263, 246 Pac. 606; Olson v. Investment Co., 58 Wash. 151, 108 Pac. 140, 27 L.R.A. (N.S.) 884; City of Lubbock v. Bagwell (Tex. Civ. App.), 206 S.W. 371; Mathis v. Brick & Tile Co., 85 Wash. 634, 149 Pac. 3; Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320, L.R.A. 1915E 479. It is the rule in Missouri that the fact, if it is a fact, that the children were "trespassing upon a third party's property at the time of injury is no defense." In the case at bar plaintiff was not a trespasser. Williams v. Gas & Electric Co., 274 Mo. 1, 202 S.W. 1, 17 L.R.A. 849; Godfrey v. Power & Light Co., 249 Mo. 472, 253 S.W. 237. (3) The bond was given by defendants in compliance with Sec. 619, Art. VIII, Revised Ordinances 1909. It was not an attempt to create a new cause of action, but affords security against the violation of common-law rights of "any person," who may suffer damages "caused him by the use of such explosives." (a) The authorities cited and quoted by defendants in their brief are no longer the law of this State. Sluder v. Transit Co., 189 Mo. 127; State ex rel. Vogt v. Reynolds, 244 S.W. 933. (b) The power of a municipality, such as Kansas City, "to protect the life and limb of its people are part of the police power of the State, which it is entirely competent for the State to delegate to the city," is clearly recognized by the above controlling authorities. A like or similar exercise of power has frequently been approved. Matson v. Raynard, 80 Mo. 186; St. Louis v. Von Phul, 133 Mo. 561; Hilton v. Construction Co., 216 S.W. 1037; Ford v. Ellison, 230 S.W. 640; Art. III, Par. 20, Charter of Kansas City 1909; Art. VIII, Sec. 19, Charter of Kansas City 1909; Sec. 619, Art. VIII, Ord. Kansas City 1909. (c) When a municipal charter authorizes something to be done, and an ordinance undertakes to carry out such power granted in the charter, the courts lean towards a liberal construction of the exercise of such power. State v. Butler, 178 Mo. 311; 28 Cyc, 63.

DAVIS, C.

This is an action upon a surety bond against a principal and a surety. An ordinance of Kansas City prohibited any person blasting within the city limits without first obtaining a permit to be issued after the applicant had entered into a bond in the sum of not less than $100 nor more than $10,000, conditioned on the careful and prudent use of explosives, and the payment of any and all damages caused any person by the use thereof, and permitting any person to sue on such bond in his own name for any damages caused by the use of such explosives. The execution of the bond is averred and its condition is alleged to have been broken by the principal's failure to carefully and prudently use explosives by negligently permitting such explosives to remain in an open and unlocked place, whereby plaintiff, a minor, was injured by the use thereof. The jury returned a verdict for $5000, the amount of the bond, and the defendants appealed from the judgment entered thereon.

The plaintiff, during the course of the litigation in the trial court, filed three petitions. The second amended petition avers that plaintiff's mother was appointed next friend; that Kansas City is the obligee of the bond, which was taken for the use of any person, including plaintiff, who might suffer injury by reason of a breach of its condition. That Robinson, the principal in the bond, is a contractor, and that the United States Fidelity & Guaranty Company, engaged in the general bonding and insurance business, is the surety therein. That on March 5, 1923, until after April 8, 1923, Robinson was engaged in excavating and installing a sewer connecting certain buildings at or near Prospect Avenue and Swope Parkway with the main sewer, and in excavating Robinson blasted within the city limits, after obtaining from the city a permit so to do and after executing a bond in compliance with the ordinance. That one Martin and the company executed the bond as sureties. The bond provided that the principal and sureties were held and firmly bound to Kansas City in the sum of $5000 lawful money, for the payment of which, well and truly to be made, the defendants bound themselves and their representatives. The bond recited that defendant Robinson intended to do blasting within said city and that, if said defendant, his agents, servants and employees, should carefully use all explosives employed by them in doing such blasting, and if Robinson should pay any and all damages occasioned to persons and property by the use of such explosives, then said obligation to be void, otherwise to remain in full force and effect. The bond was dated March 5, 1923, and subsequent to its approval by the city authorities, the permit issued. A breach of the bond was averred in that Robinson, in making sewer connections and in blasting, used and kept on hand explosives and dynamite caps, which were powerful and dangerous agencies and attractive to children, and that Robinson failed to carefully and prudently use such explosives and negligently permitted dynamite caps or explosives to remain between blastings in the basement room of a building near the corner of Prospect Avenue and Swope Parkway, the entrance to which was not fastened or locked, thus leaving them in an open, unsecured and unguarded place in a thickly populated place where children were likely to find them; that Robinson knew, or could have known, the dangerous character of the explosives. The petition further avers that a week or ten days prior to April 8, 1923, certain children, including the young brothers of plaintiff, entered the basement of said building and there found explosives, which were negligently left there, which they carried to the home of plaintiff. That plaintiff was not aware of the dangerous character of the dynamite caps or exploders. That on April 8, 1923, while plaintiff was handling and playing with one of such fuses and dynamite caps, said cap exploded, greatly injuring her. That said caps were permitted by Robinson to remain in said place in violation of Section 619, Article 8, of the Revised Ordinances of 1909, of Kansas City, reading:

"No person shall do or cause to be done any blasting within the city limits without first obtaining from the City Engineer a permit therefor, which shall be issued only on condition that the City Engineer is satisfied that the applicant is, in every particular, a safe, careful and suitable person to use, and an expert in the use of, all explosives used in blasting, but no permit shall, under any circumstances, be issued to anyone until the applicant therefor has entered into a bond to Kansas City, in the sum of not less than one hundred dollars, nor more than ten thousand dollars, as the City Engineer may require, with at least two securities, to be approved by the City Comptroller, conditioned that such person will carefully and prudently use such explosive, and...