Myers v. City of Palmyra, 48694

• Citation: 355 S.W.2d 17,92 A.L.R.2d 791
• Decision Date: 12 March 1962
• Docket Number: No. 48694,No. 2,48694,2
• Parties: Marvin MYERS, Appellant, v. CITY OF PALMYRA, Missouri, a Municipal Corporation, Respondent. . Division
• Court: United States State Supreme Court of Missouri

Page 17

355 S.W.2d 17

92 A.L.R.2d 791

Marvin MYERS, Appellant, v. CITY OF PALMYRA, Missouri, a Municipal Corporation, Respondent.

No. 48694.

Supreme Court of Missouri. Division No. 2.

March 12, 1962.

Myrl B. Sternke, Palmyra, Albert L. Rendlen, Rendlen & Rendlen, Hannibal, for appellant.

Harry J. Mitchell, Palmyra, for respondent.

STOCKARD, Commissioner.

This is an appeal from the orders of the Circuit Court of Marion County dismissing a petition and entering summary judgment for defendant on the pleadings in a suit for personal injuries. Plaintiff claimed damages in the amount of $30,000. Therefore this court has appellate jurisdiction. Harris v. Bates, 364 Mo. 1029, 270 S.W.2d 763.

Plaintiff alleged that on January 21, 1959, while standing on a public street he received personal injuries as the result of the negligence of the City of Palmyra when he was struck by a city owned tractor, with snow removing equipment attached, while being operated by an employee of the city to remove accumulations of snow from the streets 'to make the same passable for traffic and for use by the public.' There is no contention that the petition failed to state a cause of action if the city is subject to suit for the alleged negligence, and the issue on this appeal is thus narrowed to whether the doctrine of immunity of a municipality from liability for its torts applies to the acts of a city in removing accumulations of snow from the public streets for the purpose of making those streets passable for traffic.

In determining whether or not a petition states a claim upon which relief may be granted the averments therein are to be given a liberal construction, and are to be accorded their reasonable and fair intendment. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Hiltner v. Kansas City, Mo., 293 S.W.2d 422, 424; Zuber v. Clarkson Construction Company, 363 Mo. 352, 251 S.W.2d 52. Plaintiff asserts in his brief that there was 'a general condition of deep snow in the City of Palmyra,' that there were 'dangerous accumulations and banks or piles of snow on the streets of Palmyra constituting a hazard to vehicular and pedestrian traffic and rendering the streets impassable,' and that the snow was 'piled, banked and drifted to great depths in many places on the streets.' We shall assume that it is reasonable to infer these facts from the more general allegations of the petition.

In Missouri, as in most states, municipalities are not liable as a general rule for torts arising out of what is called governmental functions. Dallas v. City of St. Louis, Mo., 338 S.W.2d 39; Hiltner v. Kansas City, supra; Vol. 18 Municipal Corporations, McQuillin 3rd ed., Sec. 53.24. However, whether the construction, repair, and maintenance of streets be classified as a corporate or proprietary function, Mengel v. City of St. Louis, 341 Mo. 994, 111 S.W.2d 5, or as a ministerial function, Barree v. City of Cape Girardeau, 197 Mo. 382, 95 S.W. 330, 6 L.R.A.,N.S., 1090, 114 Am.St.Rep. 763, or as governmental function for which there is an exception to the rule that a municipality is not liable for its torts, as implied in Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306, under the law of this state 'it is the primary and non-delegable duty of the city to exercise ordinary care to keep its streets in a reasonably safe condition for travel,' Sutton v. Fox Missouri Theatre Company, Mo., 336 S.W.2d 85, 92 and to this activity and doctrine of immunity from liability for torts does not apply. The above rule was developed in cases which arose out of situations wherein the plaintiff claimed to have been injured as the result of the municipality failing to keep the streets in a reasonably safe condition for travel. However, it is also well established that a city is liable for its torts arising out of the acts of its employees while engaged in constructing its streets, or in maintaining and repairing the streets to make them reasonably safe for travel. Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Barree v. City of Cape Girardeau, supra; Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; Adams v. City of Frankford, Mo.App., 251 S.W. 125. Therefore, a city must act with due care, not only to keep the streets free from dangerous conditions but also in doing any act to repair them and maintain them open for traffic, and under the well-established law of Missouri it is liable for its torts resulting from activities done in carrying out these duties regardless of the name by which they may be called.

By reason of the nature of the acts in removing accumulations of snow from the streets and the purpose of making the streets passable, it would appear that such activity constitutes maintenance of the streets, an activity to which the doctrine of immunity does not apply in Missouri. Defendant contends, however, that the activity of removing accumulations of snow from the streets should be classified as a governmental function and that the doctrine of immunity for torts should apply. We shall examine the reasons advanced in support of this contention.

Defendant cites and relies on Hayes v. Kansas City, 362 Mo. 368, 241 S.W.2d 888, and Lober v. Kansas City, 339 Mo. 1087, 74 S.W.2d 815, 100 S.W.2d 267, which hold that the cleaning of streets by a municipality is a governmental function to which the doctrine of immunity applies. It then argues that 'the snow removal was for the protection and preservation of health, to enable the sick to get to the drug store, doctor or hospital, to enable the inhabitants to get food and fuel necessary to preserve health, and to enable the police, fire, and sanitary departments of the city to continue in operation, and the function was therefore governmental.' This argument is equally applicable...