Kramer v. City of Jefferson, 19355.
| Decision Date | 30 January 1939 |
| Docket Number | No. 19355.,19355. |
| Citation | 124 S.W.2d 525 |
| Parties | HERMAN KRAMER, RESPONDENT, v. CITY OF JEFFERSON ET AL., APPELLANTS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Cole County. — Hon. Nike G. Sevier, Judge.
REVERSED.
John O. Bond for appellants.
(1) Plaintiff's petition failed to state a cause of action against the defendant city and said defendants' demurrer at the close of all the evidence should have been sustained for the following reasons: (a) A city is not liable for the acts and conduct of its officers while enforcing the police or governmental powers of the city. Worley v. Columbia, 88 Mo. 106; Lober v. Kansas City, 74 S.W. (2d) 815; Zummo v. Kansas City, 225 S.W. 934. (b) A city is not liable for the passage of an invalid ordinance relating to its governmental or nonproprietory function. Keating v. Kansas City, 84 Mo. 419; Butler v. Moberly, 131 Mo. App. 172; Seattle Electric Co. v. City of Seattle, 206 F., l.c. 959; Hershberg v. City of Barbourville, 142 Ky. 60, 133 S.W. 985, 34 L.N.S. 141; Simpson v. Whaton, 33 Wash. 392, 63 L.R.A. 815, 74 Pac. 577; Trammell v. Russellville, 34 Ark. 105, 36 Am. Rep. 1; Franks v. Holly Grove, 93 Ark. 250, 124 S.W. 514; City of Chicago v. R.R. Co., 216 Fed. 735; Bond v. Royston, 130 Ga. 646, 61 S.E. 491, 18 L.N.S. 409. (c) When one applies to a city for a license or a permit and is refused that license or permit, his sole remedy is mandamus and he has no action for damages and is not legally damaged. Butler v. Moberly, 131 Mo. App. 172. (d) A petition is fatally defective which commingles several causes of action. McCoy v. Yager, 34 Mo. 134; Henderson v. Dickey, 50 Mo. 161. (e) Although defendant waives overruling of demurrer by answering, this does not prevent defendant from attacking petition on the ground that it does not state a cause of action in the upper court. McMillion v. Triplett, 118 S.W. (2d) 515. (2) Plaintiff's petition failed to state a cause of action against the defendant August Schwartz, for the reason the preliminary or interim zoning ordinance was held to be void by the Supreme Court, and it being void the plaintiff had the right to proceed with his building or not proceed at his peril and when he attained his building permit he had exhausted his legal remedy and if he was damaged it was damnum absque injuria. State ex rel. Kramer v. Schwartz, 82 S.W. (2d) 63; Butler v. Moberly, 131 Mo. App. 172. (3) It is error for a court to admit into evidence testimony which has nothing to do with the issues but which is calculated to confuse the issues and place one litigant in a bad light before the jury. Nulsen v. Priesmeyer, 30 Mo. App. 126. (a) So it was error for the court to allow the evidence of plaintiff's police court prosecution, Abs., p. 15. Nulsen v. Priesmeyer, supra. (b) Also, it was error to permit plaintiff to show by Exhibit A that the council had accepted a plat where plaintiff's lot was situated, as it confused the jury and made it appear the city had bound itself to permit a commercial building to be constructed (See Abs., p. 27). Nulsen v. Priesmeyer, supra. (c) And it was also error to permit plaintiff to introduce Exhibit C (a protest signed by sixty-one property owners) lecturing the city council for not giving plaintiff a building permit (See Abs., pp. 37, 38). Nulsen v. Priesmeyer, supra. (d) And thus it was error to admit into evidence the recorder of deeds' record of the deed (Exhibit E) (Abs., p. 53) wherein it was shown plaintiff's lot was reserved for a commercial lot as this was not only irrelevant and confusing but was not binding on the city. (e) The court erred in permitting witness Schaffner and plaintiff to testify that he, plaintiff and their wives had been sued for materials placed in the foundation on the lot, Abs., p. 78. Nulsen v. Priesmeyer, supra. (f) It was error for plaintiff to testify city employed special counsel to defend the mandamus suit. Nulsen v. Priesmeyer, supra. (g) A city cannot be made liable for exemplary damages. Hunt v. Boonville, 65 Mo. 624. (4) The court erred in admitting into evidence plaintiff's Exhibit C, the protest signed by sixty-one property owners (Abs., p. 38) because it was hearsay and said parties were not in court for cross-examination. United Factories v. Brigham, 117 S.W. (2d) 665. (5) The court erred in permitting witness Asel, mayor of the city at the time of the dispute, to testify he refused to sign an appeal bond because he believed plaintiff was within his rights, for the reason the city speaks through its records and not through the attitude of the mayor and because the city acts through its council as a group — not through the mayor, and said testimony was wholly without the issues (Abs., p. 85). Sec. 6803, R.S. Mo. 1929; Nulsen v. Priesmeyer, 30 Mo. App. 126. (6) Instruction No. 4 given by the court at the request of the plaintiff is confusing and sets out an improper measure of damages and also was improper because there was no evidence on which the jury could find "market value" at the time of the Supreme Court's decision. Jackels v. Kansas City Rys. Co., 231 S.W. 1023. (a) Measure of damages to a building or land is difference in value before and after injury. Rosen v. Kroger Grocery & Baking Co., 5 S.W. (2d) 649.
William A. Seibel for respondent.
(1) (a) The city of Jefferson as a municipal corporation of the third class, could, within the scope of its corporative authority, have passed a valid zoning ordinance. Article 11, Chapter 38, R.S. Mo. 1929. (b) The city of Jefferson acted in an irregular, illegal and improper manner when it passed and enforced its interim zoning ordinance. State ex rel. Kramer v. Schwartz, 82 S.W. (2d) 63. (c) A municipal corporation is liable for the acts of its agents, injurious to others, those acts being within the corporate authority but done in an irregular, illegal, and improper manner. Dooley v. The City of Kansas, 82 Mo. 444; Worley v. Inhabitants of the Town of Columbia, 88 Mo. 106; Hunt v. Boonville, 65 Mo. 620; Thompson v. Boonville, 61 Mo. 283; Soulard v. St. Louis, 36 Mo. 546; Rowland v. City of Gallatin, 75 Mo. 134; In re Perley v. Inh. of Georgetown, 7 Gray 464; Dillon on Municipal Corp., secs. 968 and 966. (d) (1) In Worley v. Inhabitants of the Town of Columbia, the court stated as follows: "It is the rule in the State in this class of cases that the corporation is liable for the act of its agents, injurious to others, when the act is in its nature lawful and authorized, but done in an unlawful manner or unauthorized place ..." Supra: Worley v. Inhabitants of the Town of Columbia, 88 Mo. l.c. 111. (2) And in Dooley v. the City of Kansas, the Supreme Court held as follows: "A corporation is civilly responsible for damages occasioned by an act, or a trespass or tort, done by its command by its agents, in relation to a matter within the scope for which it was incorporated." Supra: Dooley v. The City of Kansas, 82 Mo. l.c. 445. (2) (a) An officer is liable for damages caused by an alleged nonfeasance on proof showing an omission on his part to perform a duty devolved upon him by law. Evens & Howard Fire Brick Co. v. Gammon et al., 204 S.W. 832. (b) An officer must respond to one who has sustained damages as a consequence of his failure to perform his duty even though said officer relied upon an unconstitutional ordinance for his refusal to act, such unconstitutional law affording no protection to the officer who acts under it. Anheuser Busch Brewing Asso. v. Hammond, 61 N.W. 1052; 122 Am. S.R. 391; 12 Ann. Cas. 961.
This is a damage suit wherein Herman Kramer is plaintiff and the City of Jefferson and Gustave V. Schwartz, building inspector of said city, are defendants. The claim for damages is based on the refusal of Schwartz, as building inspector, to grant plaintiff a certain building permit. The refusal to grant said permit was based on a zoning ordinance then in effect and which was thereafter judicially adjudged to be void. Jury trial resulted in verdict for plaintiff against both defendants. From the judgment rendered thereon both defendants appeal.
Plaintiff was the owner of a certain town lot, described in the petition, upon which he desired to construct a business building. Said lot was located in a block in which, by a zoning ordinance then in force, business buildings were prohibited. Plaintiff began excavation on said lot and then made application to defendant Schwartz for a building permit. Schwartz advised him that he could not issue said permit until same had been approved by a councilmanic committee of defendant city, but advised plaintiff that he believed the permit would be granted and for him to proceed with construction. Some five days thereafter, and after plaintiff had completed excavation and had constructed most of the foundation and had expended considerable money thereon, defendant city's committee refused to issue the permit. Plaintiff was arrested for violation of the ordinance. He was tried in police court and acquitted. His counsel advised him that the zoning ordinance was invalid and that he might legally continue construction, which, plaintiff stated, he would have done but for the fact that the building and loan company from which he expected to borrow the money to pay the cost of construction refused to loan it to him because of the refusal of the city to issue a building permit. Lacking otherfinances he could not proceed. The city attorney of defendant city, after acquittal of plaintiff, informed plaintiff he would arrest and prosecute plaintiff for every day he worked on said construction without a permit, claiming that each day plaintiff worked thereon would constitute a separate offense. Thereupon plaintiff's attorney agreed with said city attorney that construction work would cease pending the outcome of a mandamus suit to be filed against defendant Schwartz to compel issuance of a permit. Said suit was filed by plaintiff in circuit court of Cole...
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