Loth v. Columbia theatre Company & City of St. Louis

• Citation: 94 S.W. 847,197 Mo. 328
• Parties: LOTH v. COLUMBIA THEATRE COMPANY AND CITY OF ST. LOUIS, Appellants
• Decision Date: 19 June 1906
• Court: United States State Supreme Court of Missouri

94 S.W. 847

197 Mo. 328

LOTH v. COLUMBIA THEATRE COMPANY AND CITY OF ST. LOUIS, Appellants

Supreme Court of Missouri, Division Two

June 19, 1906

Appeal from St. Louis City Circuit Court. -- Hon. Warwick Hough Judge.

Reversed and remanded as to appellant columbia theatre company; reversed as to appellant city of st. louis.

Robert L. McLaran for appellant Columbia Theatre Company.

(1) The ordinance pleaded and offered in evidence by this defendant should have been admitted. It is a valid ordinance of the city of St. Louis and its reasonableness is not subject to judicial review. Sec. 26, amended charter St. Louis; St Louis v. Tel. Co., 149 U.S. 470; Barber Asphalt Paving Co. v. French, 158 Mo. 534, aff. 181 U.S. 324; St. Charles v. Elsner, 155 Mo. 671; Skinker v Heman, 148 Mo. 350; Morse v. Wesport, 136 Mo. 286; Kerney v. Barber Asphalt Paving Co., 86 Mo.App. 573; Kansas City v. Trieb, 76 Mo.App. 478; Hoey v. Gilroy, 129 N.Y. 132. (2) Evidence of a general and well-established usage was competent: (a) To aid in the interpretation of said ordinance. Estes v. Shoe Co., 155 Mo. 577; State ex rel v. Field, 112 Mo. 554; Baer v. Glaser, 90 Mo.App. 289; Bank v. Hayward, 62 Mo.App. 550; Cole v. Skrainka, 37 Mo.App. 427; Sutherland on Statutory Construction, secs. 308-309; Sedgwick on Construction of Statutory and Constitutional Law, 215; Bank v. Mersereau, 3 Barb. Ch. 577; Smith on Modern Law of Municipal Corporations, sec. 540. (b) To prove that the sign was not unlawful under the general principles of the common law. 2 Dillon, Mun. Corp., sec. 734; Hisey v. City of Mexico, 61 Mo.App. 248; O'Linda v. Lathrop, 21 Pick. 292; McCormick v. Commissioners, 150 Ill. 529. (3) The sign was not unlawful under the general principles of the common law, and the fact that it was being hung by an independent contractor was, therefore, a valid defense. Carvin v. St. Louis, 151 Mo. 334; Wiese v. Remme, 140 Mo. 289; City of Independence v. Slack, 134 Mo. 66; Benjamin v. Railroad, 133 Mo. 274; Crenshaw v. Ullman, 113 Mo. 638; Long v. Moon, 107 Mo. 384; Fink v. Furnace Co., 82 Mo. 276; Jegglin v. Roeder, 79 Mo.App. 428; Hisey v. City of Mexico, 61 Mo.App. 248; Kirkpatrick v. Knapp, 28 Mo.App. 427; Schweickhardt v. St. Louis, 2 Mo.App. 571; Leary v. City of Yonkers, 88 N.Y.S. 829; Hoey v. Gilroy, 129 N.Y. 132; Maher v. Steur, 170 Mass. 454; Salisbury v. Herchenroder, 106 Mass. 458; Jones v. Boston, 104 Mass. 75; O'Linda v. Lathrop, 21 Pick. 292; McCormick v. Commissioners, 150 Ill. 529; Railroad v. Hopkins, 54 Ark. 213; Hawkins v. Sanders, 45 Mich. 491; Tarry v. Ashton, 1 Q. B. D. 314; Engle v. Eureka Club, 137 N.Y. 100.

Charles W. Bates and Benjamin H. Charles for appellant City of St. Louis.

(1) A municipal corporation is not liable for failure to enforce its ordinances or police regulations. Moran v. Pullman, 134 Mo. 651; Harman v. St. Louis, 137 Mo. 500; Butz v. Cavanaugh, 137 Mo.510; Dillon on Municipal Corporations (4 Ed.), sec. 950; Kiley v. Kansas City, 87 Mo. 108. (a) As against the city the petition rests solely on an alleged failure to enforce an ordinance which was not even introduced in evidence. (b) To sustain plaintiff's case would be to put a premium upon the city's failure to pass proper regulations in cases where they are needed. (c) And would convert the city into an insurance company whenever it might pass such regulating ordinances. Harman v. St. Louis, 137 Mo. 500. (d) Enforcement of such ordinances is a public function, failure to enforce which entails no liability upon a city any more than upon the State or upon a county. Kiley v. Kansas City, 87 Mo. 108; Hewison v. New Haven, 37 Conn. 484. (2) It is settled doctrine, both at common law and in this State, that the owner of premises abutting on a public street is presumptively the owner of the fee to the center thereof, subject to the public easement. Thomas v. Hunt, 134 Mo. 399; Union Elevator Co. v. Railroad, 135 Mo. 366. (a) The street is his property subject to the easement of the public. Neill v. Trust Co., 89 Mo.App. 646; Walker v. Sedalia, 74 Mo.App. 75; Gamble v. Pettijohn, 116 Mo. 375, citing Bishop on Non-Contract Law, sec. 990; Thompson on Negligence, p. 345, sec. 7; Kirkpatrick v. Knapp, 28 Mo.App. 431. (b) The occupant of such abutting property has therefore a lawful right to use the space along or under or above the sidewalk for any reasonable lawful purpose, subject to the public easement of passage, subject to the right of the city to build sewers, lay conduits or string wires, etc., and subject to proper police regulations or prohibition, and may make any beneficial use of the street which is consistent with public rights. Fehlhauer v. St. Louis, 178 Mo. 647. (c) Because of the very fact that his property does abut on the street he has certain rights in the street, whether he owns the fee or not. Fehlhauer v. St. Louis, 178 Mo. 647; DeGeofrey v. Railroad, 179 Mo. 714. (d) His ownership of shade trees in the street will be protected. Walker v. Sedalia, 74 Mo.App. 70; McAntire v. Tel. Co., 75 Mo.App. 535. (e) In the grass upon its surface and the minerals beneath. Gamble v. Pettijohn, 116 Mo. 378; Bishop on Non-Contract Law, sec. 990. (f) In a wooden awning or portico in front of his hotel and extending across the sidewalk. Hisey v. Mexico, 61 Mo.App. 248; Hawkins v. Sanders, 45 Mich. 491. (g) In scales. Coal Co. v. Scruggs, 62 Mo.App. 93. (h) And he may temporarily obstruct the street and even the public easement of passage, by the deposit of his wares, or his building materials. Westliche-Post v. Allen, 26 Mo.App. 181; Pueschell v. Wire Works, 79 Mo.App. 459. (i) He may construct permanent vaults and cellars under the sidewalk. Fehlhauer v. St. Louis, 178 Mo. 635. (j) Or signs above it. Hoey v. Gilroy, 129 N.Y. 132; Hewison v. New Haven, 37 Conn. 475. (k) Or a permanent ladder. Hexamer v. Webb, 101 N.Y. 377; Cushing v. Boston, 128 Mass. 330. (l) Or even a staircase. Everett v. Marquette, 53 Mich. 450. (m) Or any projections which are too high to interfere with the passage of the public. Goldstraw v. Duckworth, L. R. 5 Q. B. Div. 275; State v. Higgs (N. C.), 48 L. R. A. 450. (3) The sign when securely attached to the balcony, as the evidence shows it was, was not a nuisance per se. Hisey v. Mexico, 61 Mo.App. 248; Hawkins v. Sanders, 45 Mich. 491; Everett v. Marquette, 53 Mich. 450; Goldstraw v. Duckworth, L. R. 5 Q. B. Div. 275; State v. Higgs (N. C.), 48 L. R. A. 446. (a) Even an obstruction which actually encroaches upon the public's easement of passage, such as a cellar door, is not an unlawful thing, when in good repair, nor a nuisance per se. Fehlhauer v. St. Louis, 178 Mo. 648. (b) The city could not have declared the sign to be a nusiance, unless it was so in fact. Hisey v. Mexico, 61 Mo.App. 248; St. Louis v. Heitzeberg, 141 Mo. 375. (c) To treat the sign as a nuisance per se is to make the city an insurer of its safe condition, which is not the rule even as to the owner of the abutting property. Kirkpatrick v. Knapp, 28 Mo.App. 431; Buckley v. Kansas City, 156 Mo. 25; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Fehlhauer v. St. Louis, 178 Mo. 652. (4) Mere knowledge of officers of the city that the sign had been attached to the balcony, or even that it was from time to time taken down, did not constitute notice of anything unlawful or of negligence in the act of taking it down. (a) The petition alleged no negligence on the part of the city. (b) The city had no notice whatever that the workmen engaged in the work of removing the sign were guilty of any negligence therein. (5) The plaintiff has joined in his petition two inconsistent and irreconcilable cases. (a) His action against the city is based on the alleged illegality of the sign when in place on the balcony and securely attached to it; that is to say, upon a nuisance per se without regard to whether there is any causal connection between a sign securely hanging fifteen feet above the sidewalk and the injuries occasioned by it when, by reason of human intervention in removing it, it falls and injuries the plaintiff. (b) The case as against the Columbia Theatre Company rests upon the intervening work of human beings, and their alleged negligence in removing the sign and permitting it to escape from their control, which negligence had absolutely nothing to do with the question of a nuisance per se in the overhanging sign securely attached to the building. (6) Likewise in his proof, the plaintiff established no causal connection between his injury and the sign when securely attached to the portico (as the evidence shows it always was.) On the contrary, in his effort to establish his case against the other defendant, he is compelled to show that his injury was due to the negligence of the workmen in handling the sign, an entirely different thing. And therefore the sign itself (when attached to the balcony) was not the proximate cause of his injury.

Chester H. Krum and David Goldsmith for respondent.

(1) The suspension of the sign in question was an illegal encroachment upon the highway. Corby v. Railroad, 150 Mo. 469; State ex rel. v. St. Louis, 161 Mo 371; Elliott on Roads and Streets (2 Ed.), sec. 645; Salisbury v. Herchenroder, 106 Mass. 458; Wilkes-Barre v. Burgunder, 7 Kulp 63; Grove v. Ft. Wayne, 45 Ind. 429; Garland v. Towne, 55 N.H. 55; Wells v. Brooklyn, 41 N.Y.S. 143; Norristown v. Moyer, 67 Pa. St. 356; Jones v. Railroad, 107 Mass, 261; 27 Am. and Eng. Enc. of Law (2 Ed.), 156, 157; 2 Dillon on Municipal Corporations (4 Ed.), sec. 660; 1 Wood on Nuisances (3 Ed.), sec. 250. (2) The position of the city of St. Louis, that the suspension of the sign, and the weekly lowering and raising of the same, were not the proximate cause of the injury sued for, is not well taken. Salisbury v....