Kansas City v. Kansas City Transit, Inc.

• Decision Date: 11 July 1966
• Docket Number: No. 51544,No. 2,51544,2
• Citation: 406 S.W.2d 18
• Parties: KANSAS CITY, Missouri, Plaintiff-Respondent. v. KANSAS CITY TRANSIT, INC., Defendant-Appellant
• Court: Missouri Supreme Court

Page 18

406 S.W.2d 18

KANSAS CITY, Missouri, Plaintiff-Respondent. v. KANSAS CITY TRANSIT, INC., Defendant-Appellant.

No. 51544.

Supreme Court of Missouri, Division No. 2.

July 11, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 12, 1966.

Herbert C. Hoffman, City Counselor, William Icenogle, Associate City Counselor, Benj. M. Powers, Sp. Counsel, Kansas City, for respondent.

Albert Thomson, Daniel L. Brenner, Kansas City, Linde, Thomson, VanDyke, Fairchild & Langworthy, Brenner, Ewing, Lockwood & O'Neal, Kansas City, of counsel, for appellant.

BARRETT, Commissioner.

Kansas City Transit, Incorporated, a 'street railroad corporation' (RSMo 1959, § 386.020(5)(7), V.A.M.S.), and its predecessor corporations have operated the public transportation systems, streetcars, trolley cars and now buses, in Kansas City almost without interruption for more than fifty years. In 1917, amended in 1921 while in receivership, Kansas City Transit entered into a written contract with Kansas City and seven railroads and terminal companies for the construction, maintenance and reconstruction of the 23rd Street Viaduct. On June 26, 1964, Kansas City instituted this action against Transit for breach of the contract. Upon the pleadings, stipulations, attached affidavits and exhibits both parties moved for summary judgment. With a record in this posture the circuit court found that there was no genuine issue as to any material fact, that Kansas City was entitled to judgment as a matter of law and accordingly entered judgment in its favor for $668,870.38 and Transit has appealed claiming that it is no longer legally bound by the contract and that this court should reverse the judgment and enter a summary judgment in its favor.

Related if not connected contracts, some of them involving other viaducts and other parties as well as some of Transit's predecessors, are all fully set forth together with detailed facts and historical background in Kansas City v. Kansas City Terminal Railway Co. (1930), 324 Mo. 882, 25 S.W.2d 1055, Bowers v. Kansas City Public Service Co. (1931), 328 Mo. 770, 41 S.W.2d 810, and more recently Kansas City Terminal Ry. Co. v. Kansas City Transit (1961), Mo.App., 350 S.W.2d 828, overruled by this court en banc Kansas City Terminal Ry. Co. v. Kansas City Transit (1962), 359 S.W.2d 698, (Certiorari denied 371 U.S. 968, 83 S.Ct. 551, 9 L.Ed.2d 539), and Union Pacific Railroad Co. v. Kansas City Transit Co. (1966), Mo.App., 401 S.W.2d 528.

Insofar as material here the contract of July 31, 1917, between the city, the railroads and Transit's predecessor, provided for the construction of the 23rd Street Viaduct at an approximate cost of $602,703.00. The viaduct was to be constructed over the tracks of the several railroads and of course was to be used by Transit 'for the operation of its streetcars over the same.' Each of the three contracting parties, the city, Transit and the railroads, were to contribute to the original cost of construction one-third of the contract price, Transit's third being estimated at $200,921.00. There were detailed specifications but of the greatest significance, in addition to the provisions as to original construction and cost, are these provisions relating to ownership, use, maintenance, reconstruction and other costs or expenditures:

'12. USED BY STREET RAILWAY (Transit): The Kansas City Railways Company (Transit), its successors and assigns, may use the Main Viaduct and the 'Wyoming Street Approach' thereto for its double track electric street railway, subject to the provisions of its franchise with the City, under Ordinance Number 20140, approved June 15, 1914, and amendments thereof.'

'14. MAINTENANCE. The viaduct and its approaches, when completed, and the easements therefor, shall be the property of Kansas City, Missouri, as and for a public highway, and Kansas City shall be responsible for maintaining and lighting said structure and its approaches and keeping them in repair; but each of the parties hereto * * * shall contribute to the cost of such maintenance, repairs or the reconstruction thereof, * * *.'

'If, at any time, such viaduct or its approaches needs repairing or reconstructing, Kansas City shall proceed at once, to make such repairs or do such reconstructing, and when finished, it shall render an itemized statement thereof to each of the parties hereto, and * * * each party shall pay to Kansas City its share of such maintenance, repairs or reconstruction * * *.'

Separately and additionally Transit's predecessor agreed that:

'The streetcar tracks and the necessary equipment thereof on said viaduct or its approaches, shall be maintained by the Kansas City Railways Company, its successors or assigns, without cost to Kansas City or to the other parties contributing to the cost of said viaduct and approaches.'

In 1921, with the approval of the United States District Court, the appellant's receivers entered into a supplemental agreement with the railroads and the city 'For The Completion Of The Twenty-Third Street Viaduct.' Again insofar as material here that additional contract contains these provisions:

'--and with such modifications as would better secure to the Kansas City Railways Company * * * the use, control and occupancy of that portion of the main viaduct designed and constructed exclusively for street railway traffic * * * and with such modifications as would prevent the use by other street railways of such portion of the main viaduct * * *.'

'--and upon the aforesaid payments being made, and the balance of said obligation paid in full * * * the Kansas City Railways Company * * * shall have the exclusive use and occupancy of the space set apart for streetcars on the main viaduct * * * to the exclusion of all other streetcars for its or their modern double track electric street railroad * * *.'

'And Kansas City, Missouri, hereby agrees that it will not permit any other persons or companies to use said viaduct and approach, or any part thereof, for the operation of streetcars thereon * * * nor permit such use in such a manner, or to such an extent as to unreasonably interefere with the use thereof by the Receivers * * *.'

'(3) Maintenance: It is further agreed that the said Receivers, their successors, The Kansas City Railways Company, its successors * * * shall be obligated to keep and perform all of the obligations to be kept and performed by the Kansas City Railways Company, its successors, * * * under Clause 14 of the contract dated July 31, 1917, relating to maintenance, repairs and reconstruction of said viaduct and its approaches.'

The parties carried out, performed and operated under this original contract over the years, the 23rd Street Viaduct was completed, Transit's streetcar tracks were installed on the designated area and all payments were made by the parties as stipulated. Other facts, particularly those noted by the appellant in its brief, are that on November 1, 1937, the city passed an ordinance authorizing Transit to install and use 'trolley bus and motor bus lines for existing facilities.' In 1948 and 1950 the city passed ordinances authorizing Transit to substitute buses for streetcars on 12th and 18th Streets and their viaducts, appellant repeatedly says 'Transit accepted this ordinance.' In 1948 Transit was permitted to surrender its trackage to the city, including that over the 23rd Street Viaduct, for which it paid the city $70,000 'for rehabilitating street' and to substitute bus service. After the 1951 flood service was interrupted for making 'alterations,' raising a portion of the viaduct 'as determined' by the United States Corps of Army Engineers. The cost of that particular job was $113,112.64 and when Transit refused to pay its one-third the city petitioned the Public Service Commission of Missouri for an order approving the alteration and 'apportioning the costs.' But as to Transit and this phase of the matter the Public Service Commission had no jurisdiction and so could only allocate the costs between the railroads and the city. As to Transit the commission said, 'If Public Service is liable for any of the costs its liability would result from it contracts and operations pertaining to the viaduct, and liability therefor, if any, would not come under the jurisdiction of the Commission.' Re 23rd Street Viaduct, Kansas City, Mo., 6 P.S.C.R. (N.S.) 669, 676. Since 1954 and Transit's refusal to pay one-third of a $39,000 repair bill the parties have stipulated or agreed by ordinance, according to the petition in this case, to continue Transit's services and facilities and 'neither party waived its right under the original contract for repairs.' One other incidental matter should be noted, in 1961, when Transit became an integrated and diversified company and petitioned the Public Service Commission 'for authority to effect a corporate reorganization and merger' it set forth its certificate of convenience and necessity to operate a 'street railroad' in Kansas City, it set forth the orders permitting it 'to convert its transit system completely to motor bus operation,' it set out the 'retirement' of streetcar tracks and specifically pledged that 'as a result of the reorganization plan and merger, transit service will continue to be provided in the Greater Kansas City area under a strengthened corporate structure ultimately to the benefit of all concerned, including the public.' These matters were all noted in the commission's order of approval along with Transit's assumption of 'all liabilities and obligations.'

And now giving rise to the immediate litigation, by 1960 the 23rd Street Viaduct 'became in dangerous condition and required extensive repairs' and Kansas City and the railroads, after the appropriate preliminary proceedings, applied to the Public Service Commission for an apportionment of cost and permission for 'repair and reconstruction' of the viaduct, Transit not joining or appearing. And...