Vice v. City of Kirksville, No. 20443.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRailey
Citation217 S.W. 77,280 Mo. 348
Decision Date04 December 1919
Docket NumberNo. 20443.
PartiesVICE et al. v. CITY OF KIRKSVILLE.
217 S.W. 77
280 Mo. 348
VICE et al.
v.
CITY OF KIRKSVILLE.
No. 20443.
Supreme Court of Missouri, Division No. 2.
December 4, 1919.
Rehearing Denied January 6, 1920.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Action by George T. Vice and another against the City of Kirksville. From judgment sustaining demurrer to the complaint, plaintiff appeals. Reversed, and remanded for further proceedings.

This action was commenced in the circuit court of Adair county, Mo., on March 30, 1917, by the filing of following petition, to wit:

George T. Vice and Musie L. Vice, Plaintiffs, v. The City of Kirksville, Defendant. Petition.

Plaintiffs for their cause of action against the defendant state the following facts:

That the defendant, the city of Kirksville, at all times in this petition mentioned and now is a municipal corporation and body corporate under the laws of the state of Missouri, and as such is entitled to sue and be sued in the courts of this state, and as such municipal corporation has the legal right to and does own real and personal property, exercising the rights and franchises and performing the functions, offices, duties, responsibilities, and liabilities of municipal corporations in this state of the class to which said city belongs, and is and was at all times a city of the third class, operating a city government, known as the city of Kirksville, and attempting to exercise the franchises, functions, and obligations of such city.

That plaintiffs are husband and wife, and are now and were such at all times in this petition mentioned; that they are the parents of Murle Vice, deceased.

That said Murle Vice was the infant daughter of the said George T. Vice and Musie L. Vice, plaintiffs, and that said Murle Vice lost her life by drowning in one of defendant's reservoirs in and near the city of Kirksville, Adair county, Mo., on the 2d day of April, 1916, and that this suit is prosecuted to recover damages for the loss of the life of the plaintiffs' said child and daughter, Murle Vice, by said plaintiffs, as the parents, to wit, the father and mother, of said Murle Vice, they being the persons entitled to sue under the laws of this state for the death of the said Murle Vice, caused as alleged by plaintiffs, by the carelessness and negligence of the defendant.

That the said Murle Vice was a youth of tender years, to-wit, of the age of 11 years, at the time of her death; that on the said 2d day of April, 1916, and long prior thereto, the defendant was the owner and in possession of a certain plot or body of ground, consisting of about 5 acres situated about 2 miles northwest of the

[217 S.W. 78]

center of said City of Kirksville, which was used in a general way as a water plant or part of a water system which was used in the pumping, retaining, clarifying, and furnishing of the water and water supply for said city. Said water plant, in addition to being used by said city for fire protection and city purposes, was likewise used at all times in this petition mentioned as a private water system and private business enterprise in a proprietary capacity in furnishing water for private consumers for domestic and commercial purposes and to its private citizens at a stipulated price and water rental, which said private use and proprietary employment yielded said city large sums of money and large income and revenues derived in that manner and for such use and source and income; that said plot of ground had located thereon a pumping station and a large reservoir or retaining basin into which the water was pumped by the defendant connected with other wells and basins and reservoirs which were used for clarifying, and in which the water was treated chemically and piped from one reservoir to others, which said reservoirs, basins, and wells were made in the ground and lined, curbed, and walled with cement; that one of said reservoirs or basins was called a coagulating reservoir or dead water basin or bin; that the same was practically square, and 40 or 50 feet across either way, and about 8 or 10 feet in depth, and walled with a smooth cement wall sloping slightly to the inside thereof; that said premises were located between the right of way of the Quincy, Omaha & Kansas City Railroad Company on the north side thereof, and the public road running east and west on the south side of said premises; that said premises were uninclosed, and were so constructed as to be inviting to children and other persons visiting said premises, and were dangerous to the lives of children frequenting said premises, as well as other persons.

That plaintiffs' daughter was drowned in what was known as said coagulating reservoir or dead water basin or bin, which will hereafter be designated as the dead water basin.

That said premises were frequented by many people of said city and others as an outing resort and place of pleasure and amusement, and was open to the public and much used and frequented by the public, men, women, and children, and was so known to the defendant, and had been so frequented, visited, and used long prior to the said 2d day of April, 1916, and the defendant, its officers, agents, and servants, had full knowledge of such uses and habits as hereinbefore alleged and stated; that said reservoirs and water basins and walls on said premises were practically level with the top or surface of the ground, and were unprotected and unguarded, and had no walls, fences, guards, or other protection to prevent children and others from falling therein, although much used and frequented by children and others, as hereinbefore stated, and was so known to be by the defendant, or by the exercise of ordinary care and diligence on the part of the defendant could have been so known and understood; that there were no ladders or other means of escape provided against the walls of said basin or wells, and no means of affording escape to any one falling therein or in any manner getting into said basin or being precipitated therein; that the...

To continue reading

Request your trial
15 practice notes
  • State ex rel. Penal Institutions v. Becker, No. 31674.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1932
    ...of such purpose in the title of the act. State ex rel. v. Gideon, 277 Mo. 356; State ex rel. v. Gordon, 233 Mo. 383; Vice v. Kirksville, 280 Mo. 348. (6) If a section is to be amended the title should give notice of the amendment, and if a new section is to be enacted in lieu of one to be r......
  • State v. Hedrick, No. 23106.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...Rawlings, 232 Mo. 544, 134 S. W. 530; State ex rel. City of Chillicothe v. Wilder, 200 Mo. 97, 98 S. W. 465; Vice v. City of Kirksville, 280 Mo. 348, 217 S. W. 77 (cases there cited); Bell et al. v. First Jud. Dist. Court of Nevada, 28 Nev. 290, loc. cit. 297, 298, 81 Pac. 875, 1 L. R. A. (......
  • State ex rel. Transport Mfg. Co. v. Bates, No. 41456.
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1949
    ...Mo. 228, 190 S.W. 272; State v. Crites, 277 Mo. 194, 209 S.W. 863; State ex rel. v. Gideon, 277 Mo. 356, 210 S.W. 358; Vice v. Kirksville, 280 Mo. 348, 217 S.W. 97; State ex inf. v. Imhoff, 291 Mo. 603, 238 S.W. 122; Southard v. Short, 8 S.W. (2d) 903; State ex rel. v. Walker, 326 Mo. 1233,......
  • Graves v. Purcell, No. 34169.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...of the bill must be confined within the limits of the particulars specified. [State ex rel. v. Hackmann, supra; Vice v. Kirksville, 280 Mo. 348, 217 S.W. 77; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576.] But in instances where the title to the bill descends into particulars w......
  • Request a trial to view additional results
15 cases
  • State ex rel. Penal Institutions v. Becker, No. 31674.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1932
    ...of such purpose in the title of the act. State ex rel. v. Gideon, 277 Mo. 356; State ex rel. v. Gordon, 233 Mo. 383; Vice v. Kirksville, 280 Mo. 348. (6) If a section is to be amended the title should give notice of the amendment, and if a new section is to be enacted in lieu of one to be r......
  • State v. Hedrick, No. 23106.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...Rawlings, 232 Mo. 544, 134 S. W. 530; State ex rel. City of Chillicothe v. Wilder, 200 Mo. 97, 98 S. W. 465; Vice v. City of Kirksville, 280 Mo. 348, 217 S. W. 77 (cases there cited); Bell et al. v. First Jud. Dist. Court of Nevada, 28 Nev. 290, loc. cit. 297, 298, 81 Pac. 875, 1 L. R. A. (......
  • State ex rel. Transport Mfg. Co. v. Bates, No. 41456.
    • United States
    • United States State Supreme Court of Missouri
    • November 14, 1949
    ...Mo. 228, 190 S.W. 272; State v. Crites, 277 Mo. 194, 209 S.W. 863; State ex rel. v. Gideon, 277 Mo. 356, 210 S.W. 358; Vice v. Kirksville, 280 Mo. 348, 217 S.W. 97; State ex inf. v. Imhoff, 291 Mo. 603, 238 S.W. 122; Southard v. Short, 8 S.W. (2d) 903; State ex rel. v. Walker, 326 Mo. 1233,......
  • Graves v. Purcell, No. 34169.
    • United States
    • United States State Supreme Court of Missouri
    • July 30, 1935
    ...of the bill must be confined within the limits of the particulars specified. [State ex rel. v. Hackmann, supra; Vice v. Kirksville, 280 Mo. 348, 217 S.W. 77; Woodward Hardware Co. v. Fisher, 269 Mo. 271, 190 S.W. 576.] But in instances where the title to the bill descends into particulars w......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT