Sherwood v. Worth County Drainage District Number One

• Decision Date: 06 April 1923
• Citation: 250 S.W. 605,298 Mo. 82
• Parties: BESSIE SHERWOOD, Appellant, v. WORTH COUNTY DRAINAGE DISTRICT NUMBER ONE
• Court: Missouri Supreme Court

250 S.W. 605

298 Mo. 82

BESSIE SHERWOOD, Appellant, v. WORTH COUNTY DRAINAGE DISTRICT NUMBER ONE

Supreme Court of Missouri, First Division

April 6, 1923

Appeal from Worth Circuit Court. -- Hon. John M. Dawson, Judge.

Affirmed.

DuBois & Miller and J. E. Engle for appellant.

The court erred in sustaining respondent's demurrer to appellant's petition and in holding that respondent under the allegations of the petition was not liable to appellant. In a limited sense only is respondent a public corporation and notwithstanding the public phase of its character respondent is still liable for appellant's injury and damage in this case. 14A Corpus Juris, p. 778; Secs. 4406 and 4378, R. S. 1919; Ashby v. Medicine Creek Drainage Dist., 224 S.W. 343; Bradbury v. Drainage Dist., 236 Ills. 36-38; Bungenstock v. Drainage Dist., 163 Mo. 198; Schalk v. Drainage Dist., 226 S.W. 277; 40 Cyc. 661; Nauman v. Drainage Dist., 113 Mo.App. 577; Drainage Dist. v. Turney, 235 Mo 80; Drainage Dist. v. Buschling, 270 Mo. 162; Moxley v. Pike Co., 208 S.W. 246; 28 Cyc. 1256, 1318; Roth v. City of St. Joseph, 164 Mo.App. 26; Brown v. Kansas City, 141 Mo.App. 632; Stevens v. Walpole, 76 Mo.App. 218; City of Flora v. Naney, 26 N. E. (Ills.) 645; City of Chicago v. Loebel, 81 N. E. (Ills.) 796; Bush v. Railroad, 59 N. E. (N. Y.) 838; Griffith v. Royal Arcanum, 182 Mo.App. 656; Hayward v. Ins. Co., 52 Mo. 181.

Kelso & Kelso for respondent.

(1) The court properly sustained respondent's demurrer to the petition. (a) The defendant is a quasi corporation; it is in no sense a private corporation; it is merely a governmental agency and constitutes a political subdivision of the State. Arnold v. Worth County Drainage District, 234 S.W. (Mo. App.) 349; Arthaud v. Grand River Drainage District, 232 S.W. (Mo. App.) 266; Laws 1913, p. 235, sec. 4; Land & Stock Co. v. Miller, 170 Mo. 240; Wilson v. Drainage District, 237 Mo. 39, 46; Morrison v. Morey, 146 Mo. 543; Houck v. Drainage District, 248 Mo. 273, 382; Nauman v. Drainage District, 113 Mo.App. 577; Dillon on Municipal Corporation (2 Ed.) sec. 10-a; 25 Cyc. 194; Board of Improvement v. Moreland, 127 S.W. 469; People v. Helper, 240 Ill. 196; Reclamation District v. Sherman, 105 P. 280. (b) Being a political subdivision of the State and not being made liable by express statutory provisions, the defendant is not liable for the negligence of its officers. Arnold v. Worth County Drainage District, 234 S.W. (Mo. App.) 349; Moxley v. Pike County, 208 S.W. 246; Lamar v. Road District, 201 S.W. 890; Stephens v. Beaver Dam Drainage District, 80 So. 641; 10 Am. & Eng. Ency. Law (2 Ed.) 236; 14 Cyc. 1057; 2 Farnham on Waters & Water Rights, sec. 256; Dillon on Municipal Corporations (2 Ed.) p. 716, sec. 761; 3 Abbott on Municipal Corporations, secs. 955-973; Improvement District v. Moreland, 127 S.W. 469; Elmore v. Drainage Commissioners, 135 Ill. 269; Freel v. School District, 41 N. E. (Ind.) 321.

OPINION

WOODSON, J.

The plaintiff brought this suit in the Circuit Court of Worth County against defendant to recover $ 10,000 damages sustained by her for the alleged negligence of the defendant in killing her husband.

A demurrer was filed to the petition and sustained, and the plaintiff declining to plead further, judgment was rendered thereon for the defendant, and after moving unsuccessfully for a new trial, the plaintiff duly appealed the case to this court.

In order to clearly present the legal proposition presented for determination, it will be necessary to set forth the petition and the demurrer thereto, which are as follows (formal parts omitted):

"Plaintiff for her cause of action states that at all the times herein mentioned defendant, Worth County Drainage District No. One was and still is a corporation organized and existing under and by virtue of the laws of the State of Missouri and having power to sue and liable to be sued as such corporation.

"Plaintiff further states that said corporation was organized by, and is composed of the owners of lands within a certain defined district in Worth County, Missouri, and running north and south across said county and along the West Fork of Grand River; that the lands composing said district are swamp and overflow lands, and that the object of the formation of said corporation and drainage district was the reclamation and draining of said lands, to free the same from overflow and swamps, so that the same might be farmed and operated to the advantage and profit to the owners thereof; that in pursuance of said object and in accordance with a plan for reclamation duly prepared by the engineers of said district and regularly and legally adopted by said district, said corporation did, during the years 1919 and 1920, cut and open certain ditches through the lands comprising said district for the purpose of shortening and straightening the channel of said West Fork of Grand River, aforesaid, so that the surplus waters of said West Fork might easily and quickly escape from said lands.

"Plaintiff further states that an inland town or village known as Oxford has for many years prior to the organization of said district been located a short distance to the eastward of the lands comprising said district; that the town of Parnell is and for many years prior to the organization of said district has been located about five miles to the westward of the lands comprising said district; that said town of Parnell is a station located on the Chicago-Great Western Railroad. Plaintiff further states that for many years prior to the formation of said district and the organization of said corporation, a certain public road or highway crossed the lands comprising said district, running east and west between the said town of Oxford and the town of Parnell: that for many years prior to the formation of the said district, all of the merchandise used by the merchants of the town of Oxford and all produce purchased and taken in trade by them was transported to and fro between the town of Oxford and the railroad station at Parnell over the highway aforesaid; that the said highway was a main or principal thoroughfare for the traveling public generally between the towns of Oxford and Parnell aforesaid.

"Plaintiff further states that within the boundaries of said drainage district, said public road in parts, runs east and west between the northeast quarter and the southeast quarter of Section 24, Township 65, of Range 32, in Worth County, Missouri; that on or about the day of May, 1920, the said Worth County Drainage District No. One, in pursuance of its said plan for reclamation, cut across said public road where it runs along the line between the northeast quarter and the southeast quarter of said Section 24, its main ditch constructed by it for the purpose of shortening and straightening said West Fork of Grand River, for the reclamation of the lands within said district and for the benefit of the owners thereof, as aforesaid; that said main ditch so constructed across said public road was fifteen feet in depth, twenty-two feet wide at the bottom thereof, and at least fifty feet wide at the surface thereof, and much larger at the time of the injury hereinafter alleged; that said main ditch, when so built and constructed across said public road and continuously to and at the time of said injury, completely and totally obstructed the same and completely closed the same to public travel thereon.

"Plaintiff further states that under the laws of the State of Missouri and by virtue of the statutes of said State under which defendant corporation was organized, and from which it derived its authority in the premises, it was the duty of defendant, within ten days after building and constructing its said ditch across the public road aforesaid, to build over said ditch a safe and suitable bridge to be used by the traveling public on the road or highway aforesaid, with the same safety and convenience as before the said ditch was built and constructed across said highway by defendant, as hereinbefore stated; that this duty the said defendant wrongfully and negligently failed to perform in any manner whatsoever, but that soon thereafter, defendant did wrongfully, carelessly and negligently build and construct and did, wrongfully, negligently and carelessly, permit to be built and constructed across said ditch on said highway, a seriously defective and dangerous bridge or crossing of a flimsy and temporary character; that said bridge or crossing was constructed of three cottonwood logs forty-two feet in length laid across said ditch six feet below the surface of said highway, on which were nailed two-inch bridge plank as flooring; that the south or downstream side of said bridge was two feet and three inches higher than the north or upstream side of said bridge or crossing; that said bridge or crossing was wholly and totally without banisters or railings of any kind or nature, whatsoever, and wholly and totally without anything to protect vehicles in crossing so as to prevent them running off of the edges of said bridge or crossing and falling into the bed of the ditch and running water, eight feet below; that said bridge or crossing was so unsteady and unstable that the same would sway violently up and down while being crossed by wagons, trucks and other vehicles; that the defendant herein further carelessly, wrongfully and negligently placed and permitted to remain at the easterly approach to said bridge or crossing a large pile or quantity of dirt taken from the ditch, so that it was necessary for one approaching said bridge from the east or the direction of the village of Oxford, aforesaid, to make a sharp turn to the left immediately before and while descending the sloping bank of said ditch to the...