Lockhart v. Kansas City

Citation175 S.W.2d 814
Decision Date06 December 1943
Docket NumberNo. 38614.,38614.
PartiesWILLIAM E. LOCKHART v. KANSAS CITY, MISSOURI, Appellant.
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. Hon. A.A. Ridge, Judge.

AFFIRMED AND REMANDED.

William E. Kemp, City Counselor, and Arthur R. Wolfe, Assistant City Counselor, for appellant.

(1) The trial court erred in sustaining plaintiff's motion for a new trial on the 5th ground of said motion which specified error in refusing to give each of plaintiff's requested instructions numbered 2, 3, 4, 5 and 6 for the reason that said requested instructions were based upon negligence for violation of statutes which are not applicable to defendant City and were properly refused. Art. 5, ch. 68, R.S. 1939; Webster Groves v. Smith, 340 Mo. 798, 102 S.W. (2d) 618; Public Serv. Comm. v. City of Kirkwood, 319 Mo. 562, 4 S.W. (2d) 773; City of Columbia v. Pub. Serv. Comm., 329 Mo. 38, 43 S.W. (2d) 813; Kansas City v. Vineyard, 128 Mo. 75, 30 S.W. 326; Laret Inv. Co. v. Dickman, Mayor of St. Louis, 345 Mo. 449, 134 S.W. (2d) 65; State ex inf. McKittrick v. Kirby, 349 Mo. 988, 163 S.W. (2d) 990; United States v. Cooper Corp., 312 U.S. 600, 85 L. Ed. 1071, 61 S. Ct. 742; Sayles v. K.C. Structural Steel Co., 344 Mo. 756, 128 S.W. (2d) 1040; State ex rel. Mills v. Allen, 344 Mo. 743, 128 S.W. (2d) 1040; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W. (2d) 909. (2) The Occupational Disease Statute, originally enacted as House Bill 536, Session Acts, 1913, page 402, now Secs. 10211 to 10225, R.S. of Mo., 1939, does not embrace municipal corporations (or cities, towns or villages) in its title and is unconstitutional because in violation of Sec. 28, Art. IV, of the Const. of Mo., providing that no bill shall contain more than one subject which shall be clearly expressed in its title. Art. 5, ch. 68, R.S., 1939; Webster Groves v. Smith, 340 Mo. 798, 102 S.W. (2d) 618; Williams v. Atchison, T. & S.F. Ry. Co., 233 Mo. 666, 136 S.W. 304; Williams Lumber & Mfg. Co. v. Ginsburg, 347 Mo. 119, 146 S.W. (2d) 604; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W. (2d) 312.

Homer A. Cope, Cope & Hadsell, and Walter A Raymond for respondent.

(1) The trial court properly sustained plaintiff's motion for a new trial on the fifth ground of said motion specifying error in refusing plaintiff's requested instructions 2, 3, 4, 5 and 6, based on negligence in violating statutory provisions for the health and safety of employees. Such statutes are applicable to municipal corporations when acting in their proprietary capacity, as here. Art. 5, Ch. 68, R.S. 1939; Secs. 10211, 10225, R.S. 1939; Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W. (2d) 960; Riley v. City of Independence, 258 Mo. 671, 167 S.W. 1022; 43 C.J., p. 935, sec. 1713; 37 Am. Jur., p. 729, sec. 115; 19 R.C.L., p. 698, sec. 9; 6 McQuillin, Municipal Corporations, p. 1033, sec. 2790; Pub. Serv. Comm. v. City of Kirkwood, 319 Mo. 562, 4 S.W. (2d) 773; Lober v. Kansas City, 339 Mo. 1087, 74 S.W. (2d) 815; Dodd v. Independence Stove & Furnace Co., 330 Mo. 662, 51 S.W. (2d) 114; Sec. 3653, R.S. 1939; Davoren v. Kansas City, 308 Mo. 513, 273 S.W. 401; Jamison v. Kansas City, 17 S.W. (2d) 621; Secs. 10182-10183, R.S. 1939; Henderson v. Kansas City, 177 Mo. 477, 76 S.W. 1045; Shaw v. Kansas City, 196 S.W. 1091; Art. XII, Sec. 11, Mo. Const.; Sec. 4997, R.S. 1939; City of Lincoln v. Ricketts, 297 U.S. 373, 56 Sup. Ct. 507; New Orleans Commercial Corp. v. City of Albertville, 32 Fed. Supp. 9; Sumid v. City of Prescott, 27 Ariz. 111, 230 Pac. 1103; State ex rel. Post v. Industrial Comm. of Ohio, 127 Ohio St. 187, 187 N.E. 718; Boll v. Condie-Bray Glass & Paint Co., 11 S.W. (2d) 48; George v. City of Youngstown, 139 Ohio St. 591, 41 N.E. (2d) 567; 54 A.L.R. 788; Secs. 3693, S.W. (2d) 832; Art. 2, Ch. 52, R.S. 1939; Sec. 9423 (g), R.S. 3694, R.S. 1939; State ex rel. Kelsey v. Smith, 335 Mo. 1125, 75 S.W. (2d) 832; Art. 2, Ch. 52, R.S. 1939; Sec. 9423 (g), R.S. 1939; Sec. 9423 (6), R.S. 1939, as amended by Laws 1941, p. 566, sec. 2; State ex rel. v. Pub. Serv. Comm., 335 Mo. 448, 73 S.W. (2d) 393; Ballantine v. Nester, 164 S.W. (2d) 378, 382; City of Kirkwood v. Venable, 173 S.W. (2d) 8. (2) The title to the Occupational Disease Statutes, Secs. 10211 to 10225, R.S. 1939, is general and does not violate the provisions of the Missouri Constitution providing that no bill should contain more than one subject which shall be clearly expressed in the title. Dyer v. W.M. Sutherland Building & Contracting Co., 321 Mo. 1015, 13 S.W. (2d) 1056; Asel v. City of Jefferson, 287 Mo. 195, 229 S.W. 1046; Williams Lbr. & Mfg. Co. v. Ginsburg, 347 Mo. 119, 146 S.W. (2d) 604. (3) The order sustaining plaintiff's motion for a new trial should be affirmed on the following grounds duly assigned in the motion for a new trial but not mentioned in the order sustaining such motion. Smith v. K.C. Pub. Serv. Co., 328 Mo. 979, 43 S.W. (2d) 548. (4) The court erred in giving, of the court's own motion, Instruction 10 and Instruction 12 withdrawing facts which the jury had the legal right to consider in determining the issues which were submitted. Wolf v. Mallinckrodt Chem. Works, 336 Mo. 746, 81 S.W. (2d) 323; Kamer v. Mo.-Kan.-Tex. R. Co., 326 Mo. 792, 32 S.W. (2d) 1075; Fishang v. Eyermann Contracting Co., 333 Mo. 874, 63 S.W. (2d) 30; Berry v. St. L.-S.F. Ry. Co., 26 S.W. (2d) 988; Dell v. J.A. Schaefer Const. Co., 29 S.W. (2d) 76; Gettys v. American Car & Foundry Co., 322 Mo. 787, 16 S.W. (2d) 85; Seithel v. St. L. Dairy Co., 300 S.W. 280; Henderson v. St. L.-S.F. Ry. Co., 314 Mo. 414, 284 S.W. 788. (5) The court erred in refusing to grant plaintiff a new trial because of misconduct of jurors, George D. Bennett and John E. Pryor, in failing on voir dire examination to reveal the fact they had been sued although asked the direct question by plaintiff's counsel. Massman v. K.C. Pub. Serv. Co., 119 S.W. (2d) 833; Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W. (2d) 695; Middleton v. K.C. Pub. Serv. Co., 348 Mo. 107, 152 S.W. (2d) 154; Schierloh v. Brashear Freight Lines, Inc., 148 S.W. (2d) 749.

HYDE, J.

This is an action for $50,000.00 damages for personal injuries and disease, claimed to have been caused by conditions under which plaintiff worked as janitor in the chemical building at defendant's water purification plant. There was a jury verdict for defendant, but the court sustained plaintiff's motion for new trial on the ground of error in refusing five instructions requested by plaintiff. Defendant has appealed.

Plaintiff alleged that substances prepared and used by defendant caused deleterious and poisonous dust in the building in which plaintiff worked so that it was inhaled by him in dangerous quantities and caused him permanent incapacitating injuries and disease. Plaintiff charged both common law negligence and violation of the health and safety statutes contained in Art. 5 of Chap. 68, R.S. 1939, Secs. 10181-10225, Mo. R.S. Ann. Defendant contends that these statutes have no application to a municipality. The trial court took this view, refusing plaintiff's instructions 2, 3, 4, 5 and 6 based on violation of Secs. 10223, 10192, 10214, and 10211. (All section references hereinafter made are to R.S. 1939 and Mo. R.S. Ann. unless otherwise specified.) On motion for new trial, the court changed its views and decided that a city must comply with these statutes in operating its waterworks. Therefore, the applicability of these statutes to municipal corporations is the question to be decided. It is not contended that plaintiff failed to make a jury case under them if they are applicable.

[1] Cities are authorized to erect, maintain and operate waterworks, and also electric light plants and other plants specified by Sec. 7786. (Adopted in 1891, Laws 1891, p. 67.) It has long been settled that such plants, when operated for the purpose of supplying such services to individuals, are operated by a city in its private corporate capacity. [Lober v. Kansas City, 339 Mo. 1087, 100 S.W. (2d) 267, 74 S.W. (2d) 815; Thompson v. City of Lamar, 322 Mo. 514, 17 S.W. (2d) 960; Riley v. City of Independence, 258 Mo. 671, 167 S.W. 1022.] An attempt to exempt certain cities from liability for negligence in the operation of waterworks (Sec. 21 of Act of 1905, Laws 1905, p. 93, Sec. 9119, R.S. 1919) was declared invalid (Vice v. City of Kirksville, 280 Mo. 348, 217 S.W. 77) and later repealed. (Laws 1931, p. 266.) In the Riley case, this court said: "Cities undertaking to run the lighting business must assume the same responsibilities as private persons and corporations running like plants." [43 C.J. 1177-1182, Secs. 1948-1951; 18 Am. Jur. 439, Sec. 43; 38 Am. Jur. 307, Sec. 609; 27 R.C.L. 1401, Sec. 19.] As also held in the Riley case, this includes liability to a city employee in such plant for injury caused by negligence. [43 C.J. 934, Sec. 1713; 38 Am. Jur. 287, Sec. 591.] Defendant does not contend otherwise as to common law negligence but says our statutory provisions requiring certain methods, devices and appliances for the health and safety of employees do not apply to municipal corporations.

[2] Defendant relies mainly on Webster Groves v. Smith, 340 Mo. 798, 102 S.W. (2d) 618; Public Service Commission of Mo. v. City of Kirkwood, 319 Mo. 562, 4 S.W. (2d) 773; and City of Columbia v. Public Service Commission, 329 Mo. 38, 43 S.W. (2d) 813; saying, as we did in the Webster Groves case, that "in definition and legal classification and terminology a well-settled distinction exists, and is recognized generally, between a `corporation' and a `municipal corporation'"; that "in common parlance, towns, cities and other municipal organizations are not known as corporations"; and that "neither by the language of the Constitution nor statutes is the term `corporation' so used as to apply to and include a municipality or municipal...

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13 cases
  • Lockhart v. Kansas City
    • United States
    • Missouri Supreme Court
    • December 6, 1943
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