Kansas City v. Rathford

• Citation: 186 S.W.2d 570,353 Mo. 1130
• Decision Date: 05 March 1945
• Docket Number: 39231
• Parties: Kansas City, Missouri, a Municipal Corporation, Appellant, v. John J. Rathford, John J. Pryor and Roy W. Crimm, Executor of the Estate of William D. Boyle, Deceased
• Court: Missouri Supreme Court

186 S.W.2d 570

353 Mo. 1130

Kansas City, Missouri, a Municipal Corporation, Appellant, v. John J. Rathford, John J. Pryor and Roy W. Crimm, Executor of the Estate of William D. Boyle, Deceased

No. 39231

Supreme Court of Missouri

March 5, 1945

Rehearing Denied April 2, 1945.

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Reversed and remanded.

William E. Kemp, City Counselor, David M. Proctor and Arthur R. Wolfe, Assistant City Counselors, for appellants.

(1) The court erred in giving Instruction S requested by the defendants, and directing a verdict in their behalf. Sec 3349, R.S. 1939; Sec. 92, Article IV, Charter of Kansas City; Sec. 94, Art. IV, Charter of Kansas City; Ordinance No. 52820 (Administrative Code), Art. XV, Secs. 59-65, and Art. XVI, Secs. 66-68; Kansas City v. Halvorson, 177 S.W.2d 495; Nodaway County v. Kidder, 344 Mo. 795, 129 S.W.2d 857; Donovan v. Kansas City, 175 S.W.2d 874, 179 S.W.2d 108; Mullins v. Kansas City, 268 Mo. 444, 188 S.W. 193; State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887; Ruckels v. Pryor, 174 S.W.2d 185; McQuillin, Municipal Corps. (2d Ed.), 1171, sec. 1287; Wegmann Realty Co. v. St. Louis, 329 Mo. 972, 47 S.W. 770; Thrasher v. Kirksville, 204 S.W. 804; Durham Const. Co. v. Webster Groves, 231 Mo.App. 1089, 84 S.W.2d 183. (2) The court erred in giving to the jury Instruction T on behalf of all the defendants, and Instruction L on behalf of defendant Crimm, executor of the estate of William D. Boyle. Plummer v. Ford, 208 S.W. 489; Trower v. M., K. & T.R. Co., 149 S.W.2d 792; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Gray v. Kurn, 345 Mo. 1027, 137 S.W.2d 558. (3) The court erred in giving defendants' requested Instructions P and R, being instructions relating to conspiracy and other matters. Ruckels v. Pryor, 174 S.W.2d 185; Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644; Maryland Caualty Co. v. Kansas City, 128 F.2d 998; State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887; 15 C.J.S., p. 996; See also points and authorities cited under Points and Authorities (1) and (7). (4) The court erred in giving Instruction M requested by the defendants, and directing a verdict in their favor. Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691. (5) The court erred in giving to the jury Instruction K on behalf of all the defendants. (6) The court erred in refusing to give plaintiff's main Instruction 1 and in modifying and giving said modified Instruction 1-A. Sec. 1012, R.S. 1939; State ex rel. Major v. Arkansas Lumber Co., 260 Mo. 212, 169 S.W. 145; Hyde v. United States, 225 U.S. 347, 56 L.Ed. 1114. (7) The court erred in admitting testimony in evidence offered by the defendants relating to the amount of work done and services performed in connection with the so-called "Waste Water Survey," and the value thereof and the savings resulting to Kansas City therefrom. Donovan v. Kansas City, 175 S.W.2d 874; Ruckels v. Pryor, 174 S.W.2d 185; Kansas City v. Halvorson, 177 S.W.2d 495; State v. Weatherby, 344 Mo. 848, 129 S.W.2d 887; Keeton v. National Union, 178 Mo.App. 301, 165 S.W. 1107. (8) The court erred in admitting testimony and evidence, offered by defendants, relating to waste water surveys previously made by the Pitometer Company of New York. (9) The trial court erred in rejecting the plaintiff's offer of competent evidence: (a) Through the testimony of R. E. O'Malley and Exhibits 145 and 145-A; and (b) Exhibit 164. (a) Exclusion of testimony of R. E. O'Malley and Exhibits 145 and 145-A. People v. Link, 365 Ill. 266, 6 N.E.2d 201. (b) Exclusion of Exhibit 164. Ruckels v. Pryor, 174 S.W.2d 185.

Calvin & Kimbrell, Walter W. Calvin and Bert S. Kimbrell for respondent John J. Pryor.

(1) It is the contention of the respondent, John J. Pryor, that inasmuch as the plaintiff's testimony did not present, as against him, a submissible case, that his Instruction H, in the nature of a demurrer to the evidence, and for a directed verdict in his favor, should have been sustained; and therefore, the court did not err in giving instructions K, M, Q, S, T or V, on his behalf, or for and on behalf of all the defendants. United Construction Co. v. St. Louis, 334 Mo. 1006, 69 S.W.2d 639; Tom Boy Stores, Inc., v. Douglas-Guardian, etc., Corp., 179 S.W.2d 145. (2) Moreover, Instruction S was a correct declaration of the law, as applied to the testimony which had been adduced upon the trial of this cause; and, was fully justified by the pleadings and the issues joined thereby, hence, no prejudicial, or reversible, error may be predicated on the giving thereof. 29 C.J., sec. 55, p. 1134, sec. 57, p. 1136; Sedgwick v. Natl. Bank of Webb City, 295 Mo. 230, 243 S.W. 893; Orlann v. Leaderich, 338 Mo. 783, 92 S.W.2d 190. (3) But since the plaintiff's fourth amended petition herein, and upon which this cause was tried, alleges an action for damages for conspiracy, the object and purpose of which, as alleged therein, was to cheat, wrong and defraud the plaintiff therein, and to obtain its money by false and fraudulent representations; such alleged action was, and is, an action for damages for fraud and deceit, which, of course, is an action in tort and not an action in contract; and, therefore, granting that the proof presented a prima facie case, the court did not err in its submission of the same upon the theory that it was in fact, and in law, an action for damages for fraud and deceit. King v. Moon, 42 Mo. 551; Traber v. Hicks, 131 Mo. 180, 32 S.W. 1145; Corder v. O'Neill, 176 Mo. 401, 75 S.W. 764; Lewis W. Thompson & Co. v. Conran-Gideon Special Road District, 323 Mo. 953, 19 S.W.2d 1049; Gash v. Mansfield, 28 S.W.2d 127; Gockel v. Gockel, 66 S.W.2d 867, 92 A.L.R. 784; State v. Gomer, 340 Mo. 107, 101 S.W.2d 57; Weitzman v. Weitzman, 156 S.W.2d 906; Menke v. Rovin, 180 S.W.2d 24; Tamm v. Ford Motor Co., 80 F.2d 723; Dubinsky Realty Co. v. Lortz, 129 F.2d 669. (4) Moreover, if the plaintiff's testimony had tended to prove a right of action of some other character, other than that alleged in its fourth amended petition herein, still the law would not permit a recovery in accordance with such proof, although such proof, in an appropriate form of action, might have been legally sufficient to warrant or sustain a recovery therein. 27 C.J., p. 43, sec. 169. (5) From the allegations of the plaintiff's fourth amended petition herein, it, affirmatively, appears that the cause of action sued upon therein, was, at the time of the institution thereof, barred by the statute of limitations; and, therefore, any errors which were committed upon the trial thereof, became, and were, wholly inconsequential. Sec. 1014, R.S. 1939; Hunter v. Hunter, 50 Mo. 445; Thomas v. Mathews, 51 Mo. 107; Mathias v. O'Neill, 94 Mo. 520, 6 S.W. 253; Shelby County v. Bragg, 135 Mo. 291, 36 S.W. 600; State ex rel. O'Malley v. Musick, 145 Mo.App. 33, 130 S.W. 398; State ex rel. Bell v. Yates, 231 Mo. 276, 132 S.W. 672; St. Joseph v. Wyatt, 274 Mo. 566, 203 S.W. 819; Brown v. Irving-Pitt Mfg. Co., 316 Mo. 1023, 292 S.W. 1023; Siler v. Kessinger, 149 S.W.2d 890; Womack v. Callaway County, 159 S.W.2d 630. (6) In the operation of its water department, the plaintiff, Kansas City, Missouri, was acting in its proprietary, and not in its governmental, capacity; and, therefore, it became, and it is, amenable to the law, as applicable to individuals and third persons; and, especially, did it become, and it is, amenable to the doctrine of ratification and estoppel; and, therefore, the court did not err in giving Instruction S, for and on behalf of the defendants. Butler v. City of Moberly, 131 Mo.App. 172, 110 S.W. 682; Cassidy v. St. Joseph, 247 Mo. 197, 152 S.W. 306; Stifel v. St. Louis, 181 S.W. 577; DeMayo v. Kansas City, 210 S.W. 380; Public Service Comm. v. City of Kirkwood, 319 Mo. 562, 4 S.W.2d 773; Lober v. Kansas City, 74 S.W.2d 815; Whitsett v. City of St. Clair, 80 S.W.2d 696; 21 C.J., p. 1189, sec. 192; 3 McQuillin, Municipal Corps. (2 Ed.), secs. 1266, 1357; Union Depot Co. v. St. Louis, 8 Mo.App. 413; Union Depot Co. v. St. Louis, 76 Mo. 393; Clyburn v. McLaughlin, 106 Mo. 521, 17 S.W. 692; Taylor v. Short, 107 Mo. 384, 17 S.W. 970; Gotcher v. Haefner, 107 Mo. 270, 17 S.W. 967; Cass County v. Mercantile Town Mut. Ins. Co., 188 Mo. 1, 86 S.W. 237; Kansas City ex rel. Diamond Brick Co. v. Schroeder, 196 Mo. 281, 93 S.W. 405; Edwards v. City of Kirkwood, 147 Mo.App. 599, 127 S.W. 378; Osmer v. LeMay-Wegmann Brokerage Co., 155 Mo.App. 211, 134 S.W. 65; Wilson v. King's Lake Drain. & Levee Dist., 257 Mo. 266, 165 S.W. 734; Stierman v. Meissner, 253 S.W. 383; First Methodist Church of Poplar Bluff v. Berryman, 303 Mo. 475, 261 S.W. 73; Stover v. Snow, 315 Mo. 1048, 287 S.W. 1042; Ebel v. Roller, 21 S.W.2d 214; Peterson v. Kansas City, 324 Mo. 454, 23 S.W.2d 1045. (7) The aforesaid arrangement, or transaction, whether it be regarded as a true contract, an implied contract, or a quasi-contract, was not absolutely void, or void ab initio, or a mere nullity, but merely voidable at the election of Kansas City, Missouri. Laws 1873, Special Act, p. 286; Sec. 37, of Art. IX, Sec. 44, Art. III, of 1928 Administrative Code of Kansas City, Missouri; 17 C.J.S., sec. 165, p. 518; 2 Dillon on Municipal Corps. (5 Ed.), sec. 778, pp. 1156, 1158, 1160; Arkansas-Missouri Power Corp. v. City of Kennett, 159 S.W.2d 782; Ebel v. Roller, 21 S.W.2d 214, 217; State v. Richmond, 26 N.H. 232; Larkin v. Saffarans, 15 F. 147; Beecher v. Rolling Mill, 45 Mich. 103, 7 N.W. 695; Shell Petroleum Corp. v. Anderson, 191 Minn. 275, 253 N.W. 885; Chisholm Water Supply Co. v. City of Chisholm, 205 Minn. 245, 285 N.W. 895; Grady v. City of Livingston, 141 P.2d 346; In re Silkman, 105 N.Y.S. 872, 121 A.D. 202; Slaughter v. Qualls, 162 S.W.2d 671; Josten Mfg. Co. v. Medical Arts...