Lamar v. Bolivar Special Road Dist.

• Decision Date: 04 March 1918
• Docket Number: No. 19182.,19182.
• Citation: 201 S.W. 890
• Parties: LAMAR v. BOLIVAR SPECIAL ROAD DIST.
• Court: Missouri Supreme Court

201 S.W. 890

LAMAR v. BOLIVAR SPECIAL ROAD DIST.

No. 19182.

Supreme Court of Missouri, Division No. 1.

March 4, 1918.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge.

Action by Edd Lamar against the Bolivar Special Road District. Judgment for defendant after demurrer to the petition was sustained and plaintiff refused to plead further, and plaintiff appeals. Affirmed.

On December 31, 1913, plaintiff filed in the circuit court of Polk county, Mo., his petition, and at the October term, 1914, an amended petition, in which he seeks to recover damages on account of injuries sustained by reason of alleged defects in the public road, under the control of defendant as a special road district in said county. The amended petition contains substantially the following allegations: That plaintiff, at time of accident, was a resident of said county; that said Bolivar special road district is a body corporate, organized under the laws of Missouri; that plaintiff was the driver and employé of a liveryman; that it was the duty of defendant to keep its public roads within its boundaries in a reasonably safe condition for travel; that within the boundaries of defendant district there is a public road or highway leading from Bolivar to Buffalo, commonly known as the Bolivar and Buffalo road; that within the boundaries of said district, and on said road, there was a bridge or culvert, crossing a branch, running across said road or highway in the northeast quarter of section 12, township 33, range 23; that it was the duty of defendant to maintain and keep said bridge or culvert in a reasonably safe condition for travel, but that defendant neglected its duty, and suffered said bridge or culvert and said road to become in a dangerous and unsafe condition, in this: that the floor of said bridge or culvert was several feet from the top of the branch or ground; that the top or floor of said bridge or culvert was about 10 to 15 feet across, and was made out of boards or planks; that one of said planks had become rotten at one side or edge, and had, by continuous travel, become worn, thereby leaving a space between the planks large enough for a horse to catch its foot, or for its foot to go through; that said entire floor was sunken and swagged in the middle, so that, when a team and vehicle was driven onto said bridge or culvert, the same would shake and force the buggy at a rapid rate onto the bridge and frighten the team; that in the east side of said bridge the ground or dirt had washed out or crumbled away, so that there was a hole, or opening, between the plank and the ground, of sufficient size to permit a horse to let its foot through; that this dangerous and unsafe condition of said bridge or culvert was known to defendant, and had been known to the defendant for several months, but was in such condition that a person driving along could not see or detect it; that on or about May 12, 1913. while plaintiff was driving a team and buggy, containing himself and a traveling man, from Boliver to Buffalo, Mo., along said highway, on said bridge, and while he was using ordinary care in driving said team, without knowing of said defects, he drove the same onto said bridge; that one of the horses, on account of said sunken or swagged condition, slipped or was rapidly forced to the floor of said bridge or culvert; that he stepped onto said rotten and worn-out plank, caught his foot or shoe, and broke through said floor and opening; that this caused the horse to plunge, rear, and attempt to run away; that in getting his foot out of said opening it stepped into the hole on the east side or end of said bridge or culvert, threw its weight against the tongue of the buggy, broke the same, and ran away, upsetting the buggy, throwing plaintiff violently upon the ground, thereby fracturing his collar bone, breaking two ribs, causing him to be hurt about the head, body, and generally, causing him to become unconscious, and to remain so for some time. Then follows a description of his injuries and suffering. He alleges that he had become indebted to his doctor, on account of said injuries, for $50. His damages are laid at $2,500.

Defendant demurred to above petition upon two grounds, to wit: (1) Because the court has no jurisdiction of the subject of the action; (2) because the petition does not state facts sufficient to constitute a cause of action. The demurrer was sustained, plaintiff declined to plead further, and final judgment was entered in favor of defendant.

Plaintiff, in proper form and in due time, appealed the cause to this court.

Herman Pufahl, of Bolivar, for appellant. L. Cunningham, of Bolivar, for respondent.

BAILEY, C. (after stating the facts as above).

I. In this case it becomes our duty to determine whether or not a special road district, organized under chapter 102, R. S. 1909, can be held liable to plaintiff for damages alleged to have been sustained by him through the negligence of defendant in failing to keep its bridge in proper condition. We are not advised as to the existence of any statute in this state which in terms authorizes a recovery in a case of this character. We gather from appellant's brief that he predicates his right of recovery upon common-law principles applied to the construction of sections 10577 and 10585, R. S. 1909. These two sections, respectively, read as follows:

"Sec. 10577. Powers of Such Special Road Districts.—Every such district organized under the provisions of this article shall be a body corporate and possess the usual powers of a corporation for public purposes, and shall be known and styled `____ special road district of ____ county,' as may be designated by the county court by order of record, and in that name shall be capable of suing and being sued of contracting and being contracted with, and shall have the right to issue bonds for the purpose of road building in the same manner prescribed by law for issuing bonds by school districts."

"Sec. 10585. Board's Powers and Duties.-Said board shall have sole, exclusive and entire control and jurisdiction over all public highways within its district outside the corporate limits of any city or village therein, to construct, improve and repair such highways, and shall remove all obstructions from such highways, and for the discharge of these duties shall have all the power, rights and authority conferred by general statutes upon road overseers, and said board shall at all times keep the public roads under its charge in as good repair as the means at its command will permit, and for this purpose may employ hands at fixed compensations; rent, lease or buy teams, implements, tools and machinery, all kinds of motor power, and all things needful to carry on such road work: Provided, that the board may have such road work or any part of such work done by contract, under such regulations as the board may prescribe."

As we are not cited to any case directly in point, we shall attempt to reach a conclusion as to the merits of the controversy by the principles of analogy.

We think it is evident that defendant is a quasi political subdivision of Polk county, Mo., and incidentally represents a similar position with reference to the state of Missouri. The latter exercises a superintending control over both the county and the defendant district, through its General Assembly, and likewise retains, to some extent, jurisdiction over the roads of the district after they are established and opened for public use. This is manifest from the reading of section 10533, R. S. 1909, which makes it a "misdemeanor" to obstruct a public highway in the manner mentioned therein. It is made the duty of the prosecuting attorney to enforce, in the name of the state, the provisions of above section.

Keeping in mind the foregoing principles, we shall endeavor to ascertain whether an action of this character could be maintained against the county acting without special road districts.

II. In Reardon v. St. Louis County, 36 Mo. loc. cit. 560, 561, where defendant was sued for damages on account of its failure to maintain a proper bridge, and where the county court of said county had charge of said bridge, Judge Wagner said:

"A county is a territorial subdivision, a quasi corporation, and is invested with corporate powers for certain purposes. The statute laws of the state establish county courts, and prescribe their powers and duties, giving to them, among other things, the control and management of the county property, the power to levy taxes to defray the expenses of their respective counties, and also certain specific powers in respect to opening and repairing roads and highways. The powers of the county court, and what precise relation it bears to the county, we are to ascertain from the numerous acts which have been passed from time to time by the Legislature conferring jurisdiction upon it. It is nowhere declared that the county court is the general agent or representative of the county; it is a part of the state government, with specific powers, duties, and functions, generally local to the county, it is true, but derived from the state and not from the county, and subject to be altered or changed at the will of the Legislature, without regard to the will of the county. It acts independently of the county, in obedience to state laws. Duties imposed upon the county court by the Legislature it performs as acts of obedience to the Legislature directly, as a state functionary, and not as an agent of the county."

We accordingly held that plaintiff's petition failed to state a cause of action.

The ruling in above case has been adhered to in this state ever since its...