Smith v. Berryman
| Decision Date | 08 April 1913 |
| Citation | 156 S.W. 40,173 Mo.App. 148 |
| Parties | WILLIAM A. SMITH, Respondent, v. JOHN W. BERRYMAN, et al., Appellants |
| Court | Missouri Court of Appeals |
February 6, 1913, Argued and Submitted
Appeal from Iron Circuit Court.--Hon. E. M. Dearing, Judge.
REVERSED. CAUSE CERTIFIED TO SUPREME COURT.
STATEMENT.--Poplar Bluff, in Butler county, this State, is a city of the third class. Plaintiff, respondent here, filed an application and petition in the office of the city clerk, for a license to conduct a dramshop in a building on a certain lot in that city. Later the county court of Butler county granted plaintiff a license to keep a dramshop. Plaintiff thereupon paid to the city the amount required by the city ordinance for a dramshop license. Plaintiff's petition being presented to the city council, that body refused the license.
The governing body of cities of the third class is composed of the mayor and members of the council, the mayor being ex officio president. [R. S. 1909, sec. 9149.]
Plaintiff claiming that on presentation of this license from the county court and payment of the license tax, he was entitled to open and conduct a saloon in Poplar Bluff, and that the city council had no authority to refuse him, and that their duty in the premises was merely ministerial, on the refusal of the city council to permit him to open a dramshop, petitioned the Springfield Court of Appeals, within the jurisdiction of which court Butler county is situate, for a writ of mandamus commanding the city council to set aside the order refusing him a license to conduct a dramshop and to grant an order issuing to him a license to keep a dramshop at the place mentioned for a period of six months. An alternative writ of mandamus was issued by the Springfield Court of Appeals directed to the mayor and council of the city. The mayor and council made return to the alternative writ, justifying their refusal under the city ordinance, the return also setting out that the petition for the dramshop did not purport to be signed by two-thirds majority of the assessed, tax-paying citizens and guardians of minors owning property in the square where the dramshop was desired, and that the relator had not brought himself under the provisions of the city ordinances, further setting up that the place at which it was proposed to open the dramshop was not a permanent building and that the city had enacted an ordinance defining fire limits within the corporation and that the place selected and designated by relator for the purpose of carrying on his proposed dramshop was within these fire limits and that the city council had passed an ordinance ordering the removal of the building as being a nuisance. On the cause coming up for hearing in the Springfield Court of Appeals, trial on the issues of fact was avoided by an agreement that the relator was a law-abiding, assessed, tax-paying citizen of Butler county but not of Poplar Bluff; that his petition presented to the city council contained the names of two-thirds majority of the assessed, tax-paying citizens, including guardians of minors owning property in the square where the dramshop license was desired. This left the case on an issue of law, the relator raising that by a motion for peremptory mandamus, notwithstanding the return. The cause being heard by the Springfield Court of Appeals on the petition, return and motion for judgment on that return, the court made the alternative writ final, issuing a peremptory mandamus as prayed. The opinion of the Springfield Court of Appeals will be found under the title State ex rel. Smith v. Berryman et al., 142 Mo.App. 373, 127 S.W. 129.
In obedience to the command of the peremptory writ of mandamus the mayor and city council of Poplar Bluff issued the license to the relator.
By reference to the report of the case of State ex rel. Smith v Berryman et al., supra, it will be seen that the Springfield Court of Appeals held, on the authority of City of St Louis v. Boatman's Ins. & Trust Co., 47 Mo. 150; City of St. Charles v. Elsner, 155 Mo. 671, 56 S.W. 291, and other authorities cited that the sections of the city ordinances relied upon by respondent were in conflict with section 9253, Revised Statutes 1909, which prescribest he powers of the city council of cities of the third class, and that when the county court had issued the license and relator had tendered the license fee, it was the duty of the city council to issue the license; that that body had no power to deny or refuse it and that its duty in connection with the matter was purely ministerial and not judicial.
On the conclusion of proceedings under and incident to the mandamus, the relator in that proceeding commenced the present action against the mayor and city council of Poplar Bluff. Charging that the acts of the mayor and council, in refusing the license, were unlawful and oppressive and that by reason of plaintiff being required to resort to the mandamus proceeding to compel performance of a ministerial duty, he had been forced to pay and to obligate himself to pay, and that he did pay and obligate himself to pay, large sums of money to attorneys for their services in and about the prosecution of the mandamus proceeding; that he was compelled to pay and did pay large sums of money in his own traveling expenses as well as those of his attorneys in looking after and prosecuting those proceedings; that he was compelled to pay and did pay, large sums of money for stenographer's fees for services in preparing papers and briefs and other documents to be used in the prosecution of those proceedings, and to pay large sums for telephone messages and telegrams in and about the prosecution of that proceeding, and to pay docket fees and other court costs, and to pay large sums for the printing of briefs, records and other documents to be used in and about the prosecution of the mandamus, and had paid out large sums of money for express charges on briefs and other documents and was compelled to pay and did pay large sums of money to various persons for clerical work in preparing records and documents, and that he was greatly damaged in his business and reputation as a dramshop keeper, and that he lost large sums of money by reason of loss of patronage, in this as well as other dramshops owned by plaintiff, which loss, it is averred, was occasioned by his having to resort to legal process to compel the performance of the duties of defendants as mayor and members of the city council, as before set forth, all of which items of expense and damage were, as he alleges, in the sum of $ 5000, and all occasioned by the unlawful, illegal and oppressive acts of defendants, as mayor and members of the city council, plaintiff prays judgment for this amount as also for the further sum of $ 10,000, as punitive or exemplary damages, and for his costs.
It is as well to notice here that there was a motion to strike out portions of the petition, which was overruled, defendants excepting. Filing an answer, defendants, after a general denial, pleading that there was a misjoinder of defendants and nonjoinder of parties defendant; that the mayor, John W. Berryman was not a proper party to the suit; that the councilmen had acted in good faith in refusing to grant a license to plaintiff for the reason that at the time of his application there was a bill pending before the council to condemn the building. It is further set up in the answer that plaintiff is precluded and estopped from claiming any damages by reason of the mandamus proceeding instituted and prosecuted by him to a final determination in the Springfield Court of Appeals, which judgment in the mandamus proceeding is pleaded in bar of all claims for damages on the part of plaintiff.
A reply in the nature of a general denial was filed to this answer.
At the trial plaintiff abandoned his claim for punitive damages, the evidence introduced by plaintiff, aside from putting in evidence the mandamus proceedings, being confined to the reasonable value of the expenditures mentioned, all testimony as to these items of damages being introduced over the objection of de-defendants that none of them were proper items of damage in this proceeding, and under the objection of defendants to any evidence on the ground that the petition did not state any cause of action.
At the conclusion of the introduction of evidence in chief by plaintiff, defendants interposed a demurrer to the effect that under the law and evidence plaintiff could not recover and the verdict of the jury must be for defendants. This was overruled, defendants excepting. Defendants introduced evidence tending to cut down the value of the services of the attorney and the reasonableness of the expenditures.
At the conclusion of the testimony in the case, defendants again demurred, or more accurately, asked an instruction in the nature of a demurrer to the evidence.
At the instance of plaintiff the court instructed the jury that under the pleadings and evidence they should find for plaintiff and assess his damages at such sum as they might find from the evidence would fairly compensate him for a reasonable attorney's fee, not exceeding the sum of $ 300, the printing of briefs and express thereon, not to exceed in any event the sum of $ 27.80, railroad fare expended by his attorney, not exceeding the sum of six dollars, the expense of procuring a certified copy of a paper offered in evidence, not exceeding $ 1.25, in all not exceeding $ 335.05; and that in determining for what items the jury would allow damages to plaintiff, they should allow only such items of expense above mentioned as they might find and believe were necessarily and properly expended or incurred by plaintiff in and about the prosecution of the...
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