Simmer v. City of St. Paul

• Decision Date: 20 March 1877
• Citation: 23 Minn. 408
• Court: Minnesota Supreme Court
• Parties: JACOB SIMMER <I>vs.</I> CITY OF ST. PAUL.

23 Minn. 408

JACOB SIMMERvs.

CITY OF ST. PAUL.

Supreme Court of Minnesota.

March 20, 1877.

Appeal by plaintiff from an order of the district court

for Ramsey county, Brill, J., presiding, sustaining a demurrer to the complaint.

James Smith, jr., for appellant.

W. P. Murray, for respondent.

BERRY, J.

The plaintiff is owner of certain premises in the city of St. Paul, consisting of a lot and the buildings thereon, which are, and for many years past have been, occupied by him for the purpose of carrying on therein the business of buying and selling family groceries, provisions, and other merchandise. He brings this action to recover damages for defendant's alleged misconduct in and about the construction of a public sewer, to wit, in failing to exercise reasonable and suitable care, skill, and diligence in prosecuting the work upon the same, and thereby negligently, unlawfully, and unnecessarily obstructing streets which furnish access to plaintiff's said premises.

The rule is that a municipal corporation is liable for damages resulting to a person from its want of proper care, skill, or diligence in the performance of a corporate ministerial duty, such as the duty of constructing sewers. 2 Dillon Mun. Corp., §§ 778, 781, 802. Under this rule there can be no doubt that, upon the state of facts set up in the complaint, the defendant would be liable to the plaintiff for such damages as he can show to have resulted from the defendant's alleged misconduct.

The complaint alleges that the defendant has done the things charged, "to the damage of plaintiff, and so as to destroy his said business and to prevent access to and from his said store, and has thereby deprived plaintiff of the gains and profits he would otherwise have made and received, and has prevented the sale of his goods then and still on hand; and, by reason of the wrongful acts of defendant, plaintiff's customers have been compelled to trade elsewhere, and become lost to plaintiff; by reason of which premises plaintiff has been damaged and has sustained loss to the amount of ten dollars for each and every day since December 1, 1874, which loss and damage amounts in the aggregate to one thousand dollars."

The gist of these allegations of damage is the destruction of the plaintiff's business, the effect of which is described by the pleader to be the deprivation of gains and profits which would have been made if the defendant's misconduct had not prevented. If, as alleged, the defendant's...