Proper v. City of Independence

• Decision Date: 05 October 1959
• Docket Number: No. 22829,22829
• Citation: 328 S.W.2d 55
• Parties: Bernard PROPER and May Agnes Proper; Wilma D. Thorne and Clyde L. Thorne; Walter Thomas and Vera Thomas; and Clarence W. McCalester and Fern O. McCalester (Plaintiffs), Appellants, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation (Defendant), Respendent.
• Court: Missouri Court of Appeals

Page 55

328 S.W.2d 55

Bernard PROPER and May Agnes Proper; Wilma D. Thorne and

Clyde L. Thorne; Walter Thomas and Vera Thomas;

and Clarence W. McCalester and Fern O.

McCalester (Plaintiffs), Appellants, v. CITY OF INDEPENDENCE, Missouri, a Municipal Corporation

(Defendant), Respendent.

No. 22829.

Kansas City Court of Appeals, Missouri.

Oct. 5, 1959.

Robert S. Burns, Kansas City, for appellants.

Gilbert R. Titus, John F. Thice, Independence, Walter A. Raymond, Kansas City, for respondent.

CAVE, Presiding Judge.

Plaintiffs sued the defendant for damages to their property resulting from the overflow of Rock Creek, a natural watercourse flowing east and west through said city. At the close of plaintiffs' evidence, the court directed a verdict for the defendant, judgment entered accordingly, and plaintiffs appealed.

The plaintiffs are the respective owners of four parcels of real estate located on Hawthorne Avenue, a north-south street in Independence, near Twenty-second Street. At this point, Hawthorne is intersected by Rock Creek. Prior to September, 1953, this stream had not been bridged at this intersection, but vehicles had used the rock botton of the creek for passage.

The petition is in four counts, but the material allegations of liability are the same. The parties describe the lots owned by each, and their location with reference to the intersection of Hawthorne and Rock Creek, and state that 'during the year 1953, defendant by duly passed ordinance of the City Council, constructed a bridge on the aforesaid Hawthorne Avenue across the aforesaid creek and the defendant at all times hereinafter mentioned owned, maintained and operated said bridge; * * * that the aforesaid bridge constructed by the defendant acted as a barrier to the aforesaid natural water course * * *, which the defendant knew or could have known by the exercise of ordinary care, and that as a direct result thereof, on May 2, 1954, water and debris accumulated to the East side of said bridge and overflowed into the premises and into the dwelling house of these plaintiffs; * * *'; resulting in damage. (Italics ours.)

Defendant's answer admitted that it was a municipal corporation; that Hawthorne Avenue was a public street; that Rock Creek was a natural watercourse flowing through the city; but denied that the city council had passed an ordinance authorizing the construction of the bridge. The answer also alleged that the overflow was caused by an unprecedented rainfall and not due to any negligence of the defendant.

At the close of plaintiffs' evidence, defendant moved for a directed verdict on three grounds: '(1) That plaintiffs have failed to prove that construction of the bridge mentioned in evidence was authorized by a duly passed ordinance of the City of Independence; (2) that plaintiffs have failed as a matter of law to prove that the defendant * * * constructed and maintained a nuisance; (3) that plaintiffs have failed to prove that the bridge * * * was the proximate cause of plaintiffs' damage, if any.' This motion was sustained by the court without specifying the ground therefor.

The first point presented by the respective briefs is whether the failure of the city council to pass an ordinance authorizing the construction of the bridge relieves the city of liability for damages resulting, if so, from such construction.

Plaintiffs contend that the passage of an ordinance was unnecessary, although they alleged one had been passed, because 'when a city undertakes the work of constructing or maintaining city streets, of which the bridge across Rock Creek was a part, the city is acting in its ministerial capacity * * *. The act of constructing a bridge as a portion of the city streets by the defendant was not an unlawful or prohibited act, but instead was a lawful and authorized exercise by the city of its ministerial powers, though done in an unlawful manner due to the failure to pass an ordinance authorizing the construction of the bridge.' Citing in support thereof, Ely v. City of St. Louis, 181 Mo. 723, 81 S.W. 168; Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430, 431; Lucas v. City of Louisiana, Mo.App., 173 S.W.2d 629; and Donahoe v. City of Kansas City, 136 Mo. 657, 38 S.W. 571; Donahew v. City of Kansas City, 136 Mo. 657, 38 S.W. 571.

The city contends that in determining whether a bridge be constructed, and also authorizing its construction, it is acting in its governmental capacity, not ministerial, and must so act by the passage of an ordinance. Citing, Gleason v. City of Kirksville, 136 Mo.App. 521, 118 S.W. 120; Bigelow v. City of Springfield, 178 Mo.App. 463, 162 S.W. 750; Jones v. City of Caruthersville, 186 Mo.App. 404, 171 S.W. 639; Van Trump v. Kansas City, 187 Mo.App. 190, 173 S.W. 32.

It is conceded that Independence is a city of the third class, and that there was no ordinance passed authorizing the construction of the bridge.

With reference to the authority or steps taken for the construction of the bridge, plaintiffs' witness, Robert P. Waddell, who was the City Engineer of Independence, testified that his department drafted the plans for the bridge at the request of the 'street and alley committee and the mayor * * *'; that the bridge was 'erected by a contractor due to the city's initiative; * * * Q. And the city paid the contractor for it? A. I don't know about that.' He stated that the main span of the bridge was 50 feet long; that it consisted of a rock and concrete base with nine 30-inch pipes laid on the creek bed and rocked in; that the bridge floor was 3 feet 9 inches above the creek bed; and that the 'railings' on the sides were 9 inches high.

Plaintiffs also offered testimony tending to prove that, prior to the construction of the bridge, Rock Creek never overflowed their respective properties, but that on the night of May 2, 1954, after substantial rains, debris of all kinds washed up against the bridge and railings on the east side, piling up to a point several feet above the railings; that the bridge and debris obstructed the natural flow of the water, causing it to overflow the banks and flooding their lawns, basements, garages and houses; that prior to the date of this overflow, defendant's street employees had, on several occasions, been present during high waters and had stood in the rain to keep the debris from collecting against the bridge and railing and had used street equipment to remove brush and other debris from the bridge on four or five occasions prior to the May 2d overflow. However, plaintiffs' evidence was that there had been no overflow on their property between the time the bridge was constructed and the May 2d flood.

We first discuss the question whether the construction of the bridge was of such a nature and extent that it required the passage of an ordinance or resolution by the city council authorizing the same. As stated, Rock Creek is a natural water course flowing through the city and intersecting one of its streets. Section 77.140 V.A.M.S., 1949, provides: 'The council may establish, alter and change the channel of watercourses, and wall them and cover them over, and prevent obstructions thereon, * * *'. Section 88.507 grants certain powers and authority to cities of the third class, among which is the construction of 'bridges and culverts'. Clearly, these sections give a city of the third class certain jurisdiction over natural watercourses flowing through the city (which authority is lodged in the city 'council'); and the right to bridge the same.

The general rule is that the authorization of a public improvement by the municipal authorities must be by an order in some form; and, when the power to make improvements is conferred in general terms, the municipal corporation may exercise the power only by a formal legislative action on the part of the city council. 63 C.J.S. Municipal Corporations Sec. 1104, p. 766; Austin Western Road Machinery Co. v. City of New Madrid, Mo.App., 185 S.W.2d 850; City of Flordell Hills v. Hardekopf, Mo.App., 271 S.W.2d 256. However, this rule does not prevent temporary or ordinary work and repair of streets being done without specific authority, and cases discussing such repairs are not authority for the question before us.

The construction of this bridge was a substantial public improvement, not a mere repair or maintenance of a street.

It is our conclusion that authorization for the construction of the bridge should have been by legislative action of the city council. We think this conclusion is supported by Gleason v. City of Kirksville; Bigelow v. City of Springfield; Jones v. City of Caruthersville; Van Trump v. Kansas City; and Ely v. City of St. Louis; all cited supra.

The legal principles which protect a city from tort liability for the unauthorized acts of its officers are clearly stated in Hinds v. City of Hannibal, Mo.Sup., 212 S.W.2d 401, 402, where it is said: 'Immunity from tort liability for acts of public officers in the exercise of governmental functions is not retained in this country to perpetuate the idea that the king can do no wrong, as plaintiff suggests. The principal reason for it is that the general rules of respondeat superior cannot be applied to public officers without opening up unlimited possibilities for wasteful and dishonest dissipation of public funds. Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080. Public funds are trust funds and public policy does not permit them to be diverted from the purposes for which they are raised by taxation. This is analogous to the rule which exempts charitable trusts from tort liability. See Dille v. St. Luke's Hospital, 196 S.W.2d 615 an...