Newson v. City of Kansas City

• Decision Date: 01 October 1980
• Docket Number: No. WD 31340.,WD 31340.
• Parties: Joycelyn K. NEWSON, a Minor by Her Next Friend Gerald Newson, Appellant, v. CITY OF KANSAS CITY, Missouri and Fire Department of City of Kansas City, Missouri, and William F. Waits, Respondents.
• Court: Missouri Court of Appeals

606 S.W.2d 487

Joycelyn K. NEWSON, a Minor by Her Next Friend Gerald Newson, Appellant, v. CITY OF KANSAS CITY, Missouri and Fire Department of City of Kansas City, Missouri, and William F. Waits, Respondents.

No. WD 31340.

Missouri Court of Appeals, Western District.

October 1, 1980.

Gwendolyn M. Wells, Kansas City, for appellant.

Jeffrey L. Hess, Asst. City Atty., Aaron A. Wilson, City Atty., Kansas City, for respondents.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The plaintiff appeals from dismissal with prejudice of her negligence action against the City of Kansas City, the Fire Department of Kansas City and Waits, municipal employee and firefighter. The court sustained the motion of the defendants that they were protected against such a suit under the principle of sovereign immunity.

The petition admits the municipal character of the defendant City of Kansas City and the governmental function of the defendant Fire Department. The petition admits also that Waits-alleged as the operator of a fire truck-was at the time of the casualty within the scope of duty as a fireman and in the course of a governmental function-presumably, a response to a fire call. The injury was alleged to result from a collision between the fire truck operated then by defendant Waits and an automobile which the plaintiff occupied. The allegations of negligence were against the defendants City and Fire Department separately for: 1 failure to provide adequate training to Waits for emergency truck operation, 2 negligent entrustment to Waits of the operation of the fire truck, and 3 failure to equip the emergency vehicle with adequate warning device. The allegations against Waits and vicariously against the defendants City and Fire Department on the theory of respondeat superior related in particulars to the negligent operation of the fire truck.

The petition acknowledges that the fire department function is governmental. Light v. Lang, 539 S.W.2d 795, 7984 (Mo. App.1976). Nor does the plaintiff dispute that at the time her cause of action accrued July 3, 1977,¹ the doctrine of sovereign immunity protected a municipal instrumentality from suit for negligent performance of a governmental function. Varnal v. Kansas City, Missouri, 481 S.W.2d 575, 5806 (Mo.App.1972). The plaintiff contends, rather, that § 71.185, RSMo 1978, which allows a municipality to insure against injury from tortious exercise of governmental performance, invests the petition with an element of fact which precludes judgment by dismissal: that is whether a policy of insurance against public liability was in effect to ensure the defendant municipality against injury from the negligent governmental activity alleged so as to constitute a waiver of the sovereign immunity to the extent of the coverage. It is the effect of § 71.185 that the acquisition of liability insurance coverage by a municipality against injury from the tortious exercise of governmental function operates to waive sovereign immunity to the extent of the coverage. Beiser v. Parkway School District, 589 S.W.2d 277, 279 n.2 & 3 (Mo. banc 1979); Nix v. Sweeney, 573 F.2d 998, 100310 (8th Cir. 1978).² The actual terms of the petition, however, do not plead the effect of § 71.185 to avoid the immunity of the municipal and fire department defendants to suit in tort for governmental activity. That ground to enable suit was asserted for the first time after the motion to dismiss the petition was brought. The plaintiff made no formal request, thereafter, to amend the petition to plead the statute, and even now does not attribute error for neglect by the court to allow the statement. The sense of contention is, rather, that the court was bound to give account to § 71.185 as an element of the claim whether or not formally pleaded, and that public statute judicially noticed, a cause of action was stated free from defense of sovereign immunity.

The law extant at the time of the event was that an allegation of petition that a municipal instrumentality caused a tortious injury in the course of a governmental function subjected the action to dismissal for failure to state a claim. Burke v. City of St. Louis, 349 S.W.2d 930, 9311, 2 (Mo.1961). The enactment superseded that rule of law to validate such a cause of action to the extent of the insurance coverage. Our courts are bound to take judicial notice of the domestic statutes of Missouri, and so dispense with the formal proof of that evidence. State ex rel. Ford v. Hogan, 324 Mo. 1130, 27 S.W.2d 21, 23 1-3 (1930). The plaintiff contends that the rule of judicial notice invests her petition with the effect of § 71.185, although not pleaded, and so saves the cause of action of the petition against the municipal immunity in the governmental function.

The doctrine of judicial notice is a rule of evidence which presumes the matter subject to notice as true and so does away with the formal necessity to present proof. Timson v. Manufacturers' Coal & Coke Co., 220 Mo. 580, 119 S.W. 565, 5699 (1909). The conclusiveness of the proof by judicial notice depends upon the certainty of the source of the information-among them, whether only from common knowledge English v. Old American Insurance Company, 426 S.W.2d 33, 4011-13 (Mo.1968), or from the laws of nature Carter v. Skelly Oil Co., 363 Mo. 570, 252 S.W.2d 306, 3072 (1952), or from the authority of statute e. g., § 490.700, that the courts shall judicially notice enumerations of the census. The rule of judicial notice applies to public statutes also to supply the interstices of a petition with assumptions of ultimate fact essential to the theory of an action based upon the enactment, but not pleaded. Pogue v. Smallen, 285 S.W.2d 915, 9185, 6 (Mo.1956). That exercise of the doctrine, however, does not formulate a theory of recovery for a pleader. A party who seeks avail of a public statute must state facts which bring the cause of action within its purview. Jones v. Chicago, B. & Q. R. Co., 343...