McKenna v. City of St. Louis

• Decision Date: 10 December 1878
• Citation: 6 Mo.App. 320
• Parties: THOMAS MCKENNA ET UX., Appellants, v. CITY OF ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

6 Mo.App. 320

THOMAS MCKENNA ET UX., Appellants,

v.CITY OF ST. LOUIS, Respondent.

St. Louis Court of Appeals, Missouri.

Dec. 10, 1878.

A municipal corporation cannot be held liable for damages occasioned by the carelessness or mismanagement of employees in its fire-department while in the ordinary discharge of their duties or by defectiveness or insufficiency of machinery used in extinguishing fires.

APPEAL from St. Louis Circuit Court.

Affirmed.

FRANK HICKS and ADDISON REESE, for appellants: The city is liable for negligence in maintaining and managing the fire-department.-- Bailey v. New York, 3 Hill, 612; Oliver v. Worcester, 102 Mass. 499; Richmond v. Long, 17 Gratt. 380; Eastman v. Meredith, 36 N. H. 284; Shear. & Redf. on Neg. (1st ed.), sect. 120; Thurston v. The State, 51 Mo. 511; Rochester Ins. Co. v. City of Rochester, 3 Comst. 467; Dayton v. Pease, 4 Ohio St. 94; Furse v. New York, 3 Hill, 612; Blake v. St. Louis, 40 Mo. 569; Hilsdorf v. St. Louis, 45 Mo. 97.

LEVERETT BELL, for respondent, cited: Fisher v. Boston, 104 Mass. 87; Hafford v. New Bedford, 16 Gray, 297; Howard v. San Francisco, 51 Cal. 52; 2 Dill. on Mun. Corp., sect. 774.

LEWIS, P. J., delivered the opinion of the court.

The petition sets forth that plaintiffs are husband and wife, and were the parents of Thomas McKenna, Jr., deceased, who was of the age of nine years; that defendant is a municipal corporation, and owns and keeps in its service, by agents and servants under its control, certain steam fireengines, hose-carriages, and other machinery, composing what is known as defendant's fire-department, and used by defendant for the purpose of arresting and extinguishing fires occurring within its corporate limits, and for the protection from fire of its property and that of the members of the corporation; that on November 18, 1875, the said Thomas McKenna, Jr., while lawfully standing on a public sidewalk near his home, was run over and instantly killed by a wheel of one of defendant's hose-carriages, and that the killing was caused by the careless, reckless, and unskilful driving and management of the said hose-carriage by defendant, through its agents, servants, and employees, in the course of their employment as such, and through the defectiveness and insufficiency of said hose-carriage, well known to defendant at the time. Plaintiffs ask judgment for $5,000 damages. The Circuit Court sustained a demurrer to the petition, on the ground that it did not state facts sufficient to constitute a cause of action.

The only question is, whether a municipal corporation can be held liable for damages occasioned by carelessness or mismanagement of its employees in its fire-department while in the ordinary discharge of their duties, or by defectiveness or insufficiency of machinery used in extinguishing fires.

Municipal corporations are considered by law in two aspects. In one, their functions are chiefly ministerial, and relate to corporate interests only. These include the making and improving of streets, the construction of sewers and other improvements and keeping them in repair, the holding of property for corporate purposes, etc. But as to these matters of strictly corporate interest there are often duties to be performed of a legislative or judicial character. In the other aspect, the corporation is regarded as holding a quasi-delegated sovereignty for the preservation of the public peace and safety and the prevention of crime. This includes the maintenance of a police force, the appointment of officers charged with the public health, the establishing of regulations for the suppression of vice, and other matters of public concern in which all people have a common interest which it is the chief end of every good government to...