Stater v. City of Joplin

• Decision Date: 19 May 1915
• Citation: 176 S.W. 241,189 Mo.App. 383
• Parties: MARTHA J. STATER, Appellant, v. CITY OF JOPLIN, Respondent
• Court: Missouri Court of Appeals

176 S.W. 241

189 Mo.App. 383

MARTHA J. STATER, Appellant, v. CITY OF JOPLIN, Respondent

Court of Appeals of Missouri, Springfield

May 19, 1915

Appeal from Jasper County Circuit Court, Division Number Two.--Hon David E. Blair, Judge.

AFFIRMED.

Judgment affirmed.

Byron Coon, T. C. Tadlock and C. V. Buckley for appellant.

(1) The court erred in holding the plaintiff could not recover on the facts stated in the petition. Barrie v. Cape Girardeau, 197 Mo. 383 and authorities cited in brief. (2) The court erred in sustaining defendant's demurrer to the petition. City of Greencastle v. Martin, 74 Ind 449; Wilks v. Caruthersville, 162 Mo.App. 492, 501; Whitfield v. Carrollton, 50 Mo.App. 98; Flori v City of St. Louis, 3 Mo.App. 231; Carrington v. City of St. Louis, 89 Mo. 209, 215, 216.

E. F. Cameron for respondent.

(1) A city is not liable for its governmental acts. The State nor those quasi-corporations consisting of political subdivisions, which, like counties and townships are formed for the sole purpose of exercising purely governmental powers, are liable for their torts. The same rule applies to municipal corporations in the exercise of similar powers, which are called discretionary powers of a public or legislative character. Cassidy v. St. Joseph, 247 Mo. 206-207. (2) The maintenance of the fire department, like the police department, is a governmental function. The city is not liable if this is done negligently, and even though the apparatus used is defective and known to be defective at the time of injury by the city or its employees. McKenna v. City of St. Louis, 6 Mo.App. 320; Ulrich v. City of St. Louis, 112 Mo. 140. (3) Police officers of a town (or chauffeurs for the police department) are not regarded as officers of the town in its corporate capacity, but rather governmental officers performing governmental duties for which the city is not liable. Worley v. Columbia, 88 Mo. 106; Kies v. Erie, 135 Pa. 144, 19 A. 553; Frederick v. Columbus, 58 Ohio St. 538; Wilcox v. Chicago, 107 Ill. 334, 47 Am. St. 434, 51 N.E. 35; Alexander v. Vicksburg, 68 Miss. 564, 10 So. 62; Saunders v. Ft. Madison, 82 N.W. 428; 5 McQuillan on Municipal Corporations, sec. 2431-2; Lawson v. Seattle, 6 Wash. 184, 33 P. 347; Wild v. Patterson, 1 A. 490; Heller v. Sedalia, 53 Mo. 159.

FARRINGTON, J. Robertson, P. J., and Sturgis, J., concur.

OPINION

FARRINGTON, J.

The trial court sustained a general demurrer to plaintiff's petition, on which the plaintiff stood and brings her appeal to this court alleging error in holding that she could not recover on the facts stated. Counsel for plaintiff have made a fair statement of the case as alleged, and we adopt it:

"On the day of June, 1913, the plaintiff was sitting in her buggy, with the horse hitched thereto facing north, on the east side of Main street in the city of Joplin. Main street is the business street of Joplin, and the one where there is the greatest amount of traffic. It is nearly always crowded with buggies, hacks, people afoot, etc. The city is, or was at the time of the occurrence in question, a municipal corporation or city of the third class. It owned and operated an automobile to aid the police department in transporting prisoners from the place or places where they had committed their offenses against the ordinances to the police station. This machine was in charge of a driver or chauffeur employed by the city. On the day or early part of the night the chauffeur of this automobile, as it is charged, was hauling a drunk man, going north on Main street, who was entirely helpless and practically unconscious, to the station. He carelessly and recklessly drove the machine at a very rapid rate of speed, and carelessly and recklessly drove it to and against plaintiff's buggy, throwing her to the ground, injuring and crippling her for life. Also, said machine was carelessly suffered and permitted to become out of order, the allegation on this point being, 'that said city carelessly and negligently suffered and permitted said automobile to become out of order, in this, that the running gear was old and worn out, or broken, or otherwise out of order, so that said chauffeur could not stop or turn it from one side to another, and because thereof he ran it to, upon and against plaintiff, throwing her out of said buggy,' etc. The trial court held that the plaintiff could not recover as a matter of law. The plaintiff duly appealed to this court."

Plaintiff in her brief has abandoned the charge of negligence as to the carelessness of the agent or officer in driving the machine in a negligent manner, but contends that the city is responsible for using an automobile patrol which was known by the city officials to be out of order, worn and defective to such an extent that the driver could not operate it with reasonable safety on the streets of Joplin.

The rule is declared in the case of Bullmaster v. City of St. Joseph, 70 Mo.App. 60, that a municipality is acting in its governmental capacity and for the "greater public" when exercising the delegated power of preserving the public peace and good order or suppressing vice and immorality, and that "when agents of the 'greater public' are guilty of nonfeasance or misfeasance in the exercise of any one of the former class of powers the principles of the maxim of respondeat superior do not apply, but the maxim does apply when the agents of the lesser public are guilty of nonfeasance or misfeasance in the exercise of the latter class of powers." This case is quoted from with approval in Barree v. City of Cape Girardeau, 197 Mo. 382, 390, 95 S.W. 330.

In the case of McKenna v. City of St. Louis, 6 Mo.App. 320, it is declared that a city cannot be held for defects and insufficiencies in its fire apparatus, which, because of such defects, strikes and injures a citizen standing on a sidewalk in the city, because it is held that in the exercise of this power the city is acting in its governmental capacity. This case likewise, and the rule announced, is approved in the following cases: Boothe v. City of Fulton, 85 Mo.App. 16; State ex rel. Abel v. Gates, 190 Mo. 540, 89 S.W. 881; Donahoe v. Kansas City, 136 Mo. 657, 38 S.W. 571; and Barree v. City of Cape Girardeau, 197 Mo. 382, 95 S.W. 330. In the Cape Girardeau case (last cited) the city was held because of a wrong done by one of its servants while acting for the city in performing a ministerial function. In Ulrich v. City of St. Louis, 112 Mo. 138, 20 S.W. 466, and in Wilks v. City of Caruthersville, 162 Mo.App. 492, 142 S.W. 800, the same principle is announced.

In dealing with this question the Supreme Court in Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306, used this language: "The execution or non-execution of its ordinances lies in its own hand. The same result follows with respect to the agencies it shall choose, whether they be men or things. The patrol wagon, the city ambulance with its driver, the street sweepers with the vehicles and employees that gather the dirt, are all agencies of the government with respect to these matters as well as are the mayor and council who provide the rules that set them in motion. The rule respondeat superior does not apply as between them and...