Rodgers v. Kansas City
| Decision Date | 01 June 1959 |
| Docket Number | No. 22900,22900 |
| Citation | 327 S.W.2d 478 |
| Parties | Elmer RODGERS, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Benjamin M. Powers, City Counselor, Timothy D. O'Leary, Kansas City, for appellant.
James H. Ottman, John R. Gibson, Kansas City, for respondent.
MAUGHMER, Commissioner.
Plaintiff received a $3,500 verdict and judgment against defendant for damages to plaintiff's store fixtures and stock of merchandise. Defendant has duly appealed.
During June and July, 1954, the defendant City of Kansas City, Missouri, was owner of the buildings which were commercial in type, located in the 300 block on West Sixth Street in said City. The City had become owner through condemnation proceedings. The purpose and plan was to clear the area and widen the street preparatory to construction of the Sixth Street Trafficway. However, during this period plaintiff was the City's tenant and lessee of the property designated as 302 West Sixth Street. He was operating a business at this location under the name Trafficway Buffet. Therein were fixtures and merchandise which were owned and being used by plaintiff in the operation of a restaurant and tavern.
Before razing the building immediately to the west and adjoining the building occupied by plaintiff, the City decided to utilize it in a series of 'demonstration fire tests'. During the latter part of June and the first days of July, the building was loaded with quantities of combustible materials. Among the objective purposes of these 'planned fires' were the testing of equipment, observation of various methods of fire fighting, including indirect application of water, and a new type of hose nozzle. Two hundred and sixteen 'fire dignitaries' from all parts of the United States were invited to attend and observe these demonstrations. On July 8, four separate fires were started and extinguished. These fires were lighted by the Chief of the Kansas City Fire Department or some one under his direction, or under the direction of Francis Wornall, Director of Fire, Kansas City, Missouri. The first fire was in the basement and the other three on the first, second and third or fourth floors of the building. Two other fires were ignited on July 9.
In the City's official report of the fire tests (Exhibit 13) it is stated that the committee experts who entered and examined the building after each fire, predicted that Fire No. 4 would cause the roof to collapse and likely 'kick out' some portions of the side walls. The report continues, stating that after the fourth fire the roof did collapse 'pulling in' a portion of the east wall as it fell and pushing a part of the west wall out to fall on the adjoining lot. On July 9, 1954, the City served on plaintiff a written notice to 'cease and desist using the above location for business and stay out of the premises until damaged wall on west side is made safe or be subject to penalty for violation of City ordinance.' This notice was signed by the City Building Inspector, and served on the day after the first four fires. No earlier notice or notification was given to the plaintiff.
Plaintiff testified that soon after the first fire was started in the basement 'smoke started coming through there and kind of fogging the joint up and there was no customers in there anyway so I locked up and went out to join the other people in watching the fire.' He said he did not re-enter his building until early in the evening after the burglar alarm went off as it does when windows are broken. He then went inside and observed conditions. Plaintiff stated that bricks from the fired building had fallen on his roof; that some came through the roof, had broken his bar and that water was entering through the holes. He said: 'The more water they poured on that building, the more water came in my place.' None of the fires ever escaped and got into the building which plaintiff occupied. The plaintiff estimated his damage at $3,500. He sued for that sum and had a verdict and judgment for that amount.
Appellant City makes no claim that plaintiff was not damaged, nor does it assign as error the amount allowed as damages. Two assignments of error are presented: (1) That the court erred in overruling motion for directed verdict for the reason that any damage plaintiff sustained was the result of activities by the Kansas City Fire Department, acting in its governmental capacity and for this reason the City is not liable. (2) The court erred in giving plaintiff's Instruction No. 1 for the reason that such instruction does not require a finding of negligence by the city but only that it intentionally set the fires and as a direct result plaintiff was damaged.
Plaintiff's petition contains four counts. Count 1 charged that the fire was deliberately and wrongfully set and with reckless disregard of plaintiff's rights. Count 2 reiterated the charges in Count 1 and in addition alleged that defendant repeatedly ignited fires. Count 3 charged that the defendant carelessly and negligently ignited the fires, but failed to warn plaintiff. Count 4 contained an allegation that plaintiff lost business profits, and the value of his leasehold was lessened. The defendant City, by its answer, admitted setting the fires but as to each count pleaded that such action was a governmental act for which it was not liable. From the record it appears the case was submitted to the jury generally and not restricted to any particular count.
Instruction No. 1 is the only verdict-authorizing instruction given. For this reason and because defendant claims that its giving was erroneous in that it did not require a finding of negligence on the part of defendant, but merely required the jury to find that defendant intentionally set the fires, and that as a direct result thereof plaintiff was damaged, we set out the instruction in full:
'Instruction No. One
'The Court instructs the jury that if you find and believe from the evidence that at the time the fires mentioned in evidence were set by the Fire Department of Kansas City, Missouri, Elmer Rodgers was a tenant of the premises at 302 West Sixth Street, Kansas City, Missouri, renting such building from the City on a month-to-month basis, and that on or about July 8 and 9, 1954, the city of Kansas City, Missouri, acting by and through its servants, agents and employees, the members of the Kansas City Fire Department, deliberately and intentionally set several fires in the four-story building immediately west of the building Elmer Rodgers was renting, if so, and that prior to the Fire Department so deliberately setting said fires, if so, said Fire Department had placed in the basement and in all four floors a wide variety of ordinarily combustible materials, if so; and if you further find that as a direct and proximate result of the Fire Department of Kansas City, Missouri so deliberately and intentionally setting said fires and fighting or extinguishing said fires, if so, the contents of the building located at 302 West Sixth Street owned by Elmer Rodgers, if so, were damaged, then your verdict will be in favor of the plaintiff, Elmer Rodgers, and against the defendant, Kansas City, Missouri.'
On appeal the City contends that plaintiff's petition is founded on negligence and not on nuisance, but that Instruction No. 1, the only verdict-directing instruction given, submitted the case only on nuisance. In Martin v. City of St. Joseph, 136 Mo.App. 316, 117 S.W. 94, 95, the same contention was made and this court said:
The same question was recently passed on with a compilation of some intervening authorities in Divelbiss v. Phillips Petroleum Co., Mo.App., 272 S.W.2d 839, 843, and as follows:
'Defendant's second criticism of the instruction is that it did not require the jury to find the existence of a nuisance. In answer to a similar contention the court in Clark v. City of Springfield, Mo.App., 241 S.W.2d 100, 107, said:
"Further objection is made to Instruction No. 1 because it did not state that the acts complained of constituted a nuisance. It was the jury's duty to pass upon the facts. Whether or not the facts they found constituted a nuisance was a question of law. Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485; Smiths v. McConathy, 11 Mo. 517, and it was entirely without the jury's province to pass upon that question. Whether a nuisance existed depends upon the facts pleaded, proved and instructed upon and not upon a conclusion born from the use of the word. Martin v. City of St. Joseph, 136 Mo.App. 316, 117 S.W. 94.' (Emphasis ours.)' We hold that plaintiff's petition, even though not specifically charging nuisance, alleged a state of facts which insofar as the pleading is concerned, justified submission upon that theory.
The appellant City...
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