McClellan v. City of St. Louis

• Decision Date: 07 April 1943
• Docket Number: No. 26263.,26263.
• Citation: 170 S.W.2d 131
• Parties: McCLELLAN v. CITY OF ST. LOUIS.
• Court: Missouri Court of Appeals

170 S.W.2d 131

McCLELLAN v. CITY OF ST. LOUIS.

No. 26263.

St. Louis Court of Appeals. Missouri.

April 7, 1943.

Rehearing Denied April 23, 1943.

Appeal from St. Louis Circuit Court; David J. Murphy, Judge.

"Not to be reported in State Reports."

Action on an account by Oral S. McClellan against the City of St. Louis to recover the amount due plaintiff, as superintendent of City Hospital No. 2, for residence, lighting, heating, and laundry. From a judgment for plaintiff in less than the amount sued for, both parties appeal.

Affirmed.

E. H. Wayman, of St. Louis, for Oral S. McClellan.

Joseph F. Holland, City Counselor, and George L. Stemmler and H. A. Hamilton, Associate City Counselors, all of St. Louis, for City of St. Louis.

SUTTON, Commissioner.

This is a suit on an account, commenced on October 28, 1941.

Plaintiff on May 4, 1933, was duly appointed as superintendent of City Hospital No. 2, a hospital owned and operated by the City of St. Louis for negro patients. The charter of the City of St. Louis, section 7, article 8, provides that the Board of Aldermen shall by ordinance fix or provide for the fixing of salaries or compensation of officers and employees of the city. At the time of plaintiff's appointment and during the time he served under his appointment there was in force an ordinance fixing his salary or compensation at $200 per month, with residence furnished, including meals, laundry, lighting and heating. There is no dispute as to the monetary compensation of $200 per month or as to meals. He was paid his monetary compensation and also received his meals, but was not furnished residence, lighting, heating or laundry. Plaintiff sues for amounts due for residence, lighting, heating and laundry, on account of services rendered as superintendent of the hospital from May 10, 1933, to June 1, 1937.

The trial, before the court without a jury, resulted in a judgment in favor of plaintiff for $2,161.42, including interest from the date of the commencement of the suit. Both parties appeal.

We are confronted with the question as to whether or not this court has jurisdiction of this appeal, arising because the City of St. Louis is a party to the suit.

Counsel for the parties have filed here a joint brief on that question. They do not, however, express any opinion as to where jurisdiction lies. Nor do they ask that the cause be transferred to the Supreme Court.

There can be no question that the City of St. Louis in the maintenance and operation of its hospital was exercising governmental functions, but this is not necessarily determinative of jurisdiction. The City of St. Louis has a dual character and acts in a dual capacity. It exercises county functions and municipal functions. Like other municipalities in the state it may as a municipality exercise governmental functions. As a county it is a political subdivision of the state. To give the Supreme Court appellate jurisdiction the case must involve county rights or functions. In other words, it must involve rights or functions of the city as a political subdivision of the state. Superior Press Brick Co. v. City of St. Louis, Mo.Sup., 152 S.W.2d 178; Lovins v. City of St. Louis, 336 Mo. 1194, 84 S.W.2d 127; Fischbach Brewing Co. v. City of St. Louis, 337 Mo. 1044, 87 S.W.2d 648; City of St. Louis v. Gottschall, Mo.App., 121 S.W.2d 239.

In Zummo v. Kansas City, 285 Mo. 222, loc. cit. 230, 225 S.W. 934, loc. cit. 936, the court quoted, with manifest approval, from Dillon on Municipal Corporations, as follows: "The power or even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute appertains to it in its governmental or public, and not in its corporate or, as it is sometimes called, private capacity."

See, also, to the same effect: Healy v. Kansas City, 277 Mo. 619, loc. cit. 626, 211 S.W. 59; Cassidy v. City of St. Joseph, 247 Mo. 197, loc. cit. 206, 152 S.W. 306; Ulrich v. City of St. Louis, 112 Mo. 138, loc. cit. 143, 20 S.W. 466, 34 Am.St.Rep. 372; Murtaugh v. City of St. Louis, 44 Mo. 479.

Obviously, the City of St. Louis in the maintenance and operation of its hospital was acting in its governmental or public capacity as a municipality and not as a county or political subdivision of the state. The case involves no county rights or functions. Appellate jurisdiction is in this court.

City Hospital No. 2, at the time of plaintiff's appointment, was located at 2945 Lawton Avenue. In the hospital buildings were quarters which previous to the plaintiff's incumbency had been used as residence quarters for the superintendent. On May 10, 1933, the hospital commissioner, who, under section 14(b), article 13, of the City Charter, is the head of the hospital division in charge of the operation and maintenance of hospitals, informed plaintiff that the superintendent's residence in the hospital would have to be used for the internes, whose quarters had been condemned, and that there would be no room in the hospital buildings for residence quarters for plaintiff, and that plaintiff would have to obtain residence accommodations outside the institution. Plaintiff owned a house at 2600 Belle Glade Avenue, which he occupied until June 1, 1937, when the city furnished him with residence quarters in the new Homer G. Phillips Hospital, then just completed.

Plaintiff's claim is for $1,946.66 as rent for his residence at $40 per month from May 10, 1933, to June 1, 1937, $361.25 for the cost of coal for heating the residence, $192.51 for the cost of electricity for lighting the residence, and $633 for laundry work, making a total of $3,133.42. On April 1, 1935, the city began paying plaintiff $40 per month for current rent of the residence. There was a total of twenty-six payments of $40, aggregating $1,040, for which plaintiff has given credit, leaving a balance of $2,093.42.

Defendant insists that plaintiff is not entitled to recover for the reason that under the provisions of section 3349, R.S. Mo. 1939, Mo.R.S.A. § 3349, and section 9, article 25, of the Charter of the City of St. Louis, a contract with the City of St. Louis to be enforceable must be in writing. These statutory and charter provisions are not applicable here. The Board of Aldermen, by ordinance enacted under authority of section 7 of article 8 of its charter, fixed the compensation of plaintiff as superintendent of the hospital. His right to such compensation rests not upon contract but upon the ordinance. It necessarily follows that his right to the reasonable value of what the ordinance required to be furnished him as a part of his compensation, but was not furnished, also rests not upon contract but upon the ordinance. To have this is not only his right under the ordinance but to allow him less would be against public policy. Orthwein v. City of St. Louis, 265 Mo. 556, 178 S.W. 87; State ex rel. Rothrum v. Darby, 345 Mo. 1002, 137 S.W.2d 532; Buchanan v. Ralls County, 283 Mo. 10, 222 S.W. 1002; Ewing v. Vernon County, 216 Mo. 681, 116 S.W. 518.

We can see no substantial merit in defendant's contention that plaintiff's account is barred by the statute of limitations. It is clearly a running account within the meaning of the statute so that none of the items are barred unless they all are. Chadwick v. Chadwick, 115 Mo. 581, 22 S.W. 479; Loveland v. Collins, Mo.Sup., 254 S.W. 22; Haycraft v. Haycraft, Mo. App., 154 S.W.2d 617; Lowenstein v. Widdicomb, Mo.App., 52 S.W.2d 1044; Miller v. Richardson, Mo.App., 56 S.W.2d 614; O'Shaughnessy v. Brownlee, 229 Mo. App. 342, 77 S.W.2d 867.

Plaintiff assigns error for the refusal of the court to allow interest on his demand from June 1, 1937, when he says demand for payment was made. After the close of the evidence and the cause had been submitted, the submission was set aside, and it was stipulated between the parties that plaintiff if recalled as a witness would testify that on June 1, 1937, he made demand on the hospital commissioner for all the money that was then due him and unpaid; that he said to the commissioner: "There has been a certain amount of money allowed me for which the ordinance provides that I should receive over a period of four or more years. Now we are moving into the new institution where there will be no further claim as you are supplying me with everything the ordinance calls for. I would like to start with a clean slate and have some understanding about the balance that is due me." It was further stipulated that plaintiff would testify that he did not inform the commissioner of the amount which he thought was due him and did not make any itemized statement of his...