Zoll v. St. Louis County

• Decision Date: 08 February 1939
• Docket Number: 34970
• Parties: Edgar E. Zoll and Mamie J. Zoll v. County of St. Louis, Appellant
• Court: Missouri Supreme Court

124 S.W.2d 1168

343 Mo. 1031

Edgar E. Zoll and Mamie J. Zoll v. County of St. Louis, Appellant

No. 34970

Supreme Court of Missouri

February 8, 1939

Appeal from Circuit Court of St. Louis County; Hon. Robert W McElhinney, Judge.

Reversed.

George E. Heneghan for appellant.

(1) The County of St. Louis was not the proper party defendant herein. The instruction of defendant in the nature of a demurrer to the evidence at the close of the entire case should have been given by the court. The County Court of St Louis County was not in this case acting for the County of St. Louis, but as an agency of the State, and the taxpayers of St. Louis County are not obligated to respond in damages for the actions of the county court in the performance of the court's statutory duties with reference to public roads. Swineford v. Franklin Co., 73 Mo. 278; Reardon v. St. Louis Co., 36 Mo. 560; State ex rel. Reynolds v. Highway Comm., 42 S.W.2d 193; Tebbs v. Platte County, 28 S.W.2d 656, 325 Mo. 304; Max v Barnard-Bolckow Drain. Dist., 32 S.W.2d 583; Pundman v. St. Charles County, 110 Mo. 594; Moxley v. Pike County, 208 S.W. 246; State ex rel. v. Little River Drain. Dist., 190 S.W. 897, 269 Mo. 444; Jefferson County v. St. Louis County, 113 Mo. 619; State ex rel. v. County Court, 142 Mo. 583; Lamar v. Bolivar Special Road Dist., 201 S.W. 890; Wench v. Carroll County, 140 Iowa 558, 118 N.W. 900; Downing v. Mason County, 87 Ky. 208, 8 S.W. 264; Siewerissen v. Harris County, 41 Tex. Civ. App. 115, 91 S.W. 333; Cassidy v. St. Joseph, 247 Mo. 197. (2) The petition of plaintiffs did not state facts sufficient to constitute a cause of action against appellant. It appeared from the petition and evidence that no cause of action was pleaded or proven against appellant, and, therefore, no judgment could be predicated thereon. Appellant's demurrer at the close of plaintiffs' evidence and at the close of all the evidence should have been sustained. Reardon v. St. Louis County, 36 Mo. 560; Tebbs v. Platte County, 28 S.W.2d 656, 325 Mo. 304; Swineford v. Franklin County, 73 Mo. 278; State ex rel. Reynolds v. Highway Comm., 42 S.W.2d 193; Pundman v. St. Charles County, 110 Mo. 594; Max v. Barnard-Bolckow Drain. Co., 32 S.W.2d 583; Sanguinetti v. United States, 264 U.S. 149; State ex rel. v. Little River Drain. Dist., 190 S.W. 897.

Alfred H. Kerth and Orla M. Hill for respondents.

(1) Respondents' property was taken or damaged for public use without compensation, in violation of Section 21, Article II, Constitution of Missouri, by the construction of improvements on Midland Boulevard and Yeoman Avenue by the County of St. Louis, as charged in the petition. The action was properly brought against St. Louis County, which, through its duly elected and qualified officers, contracted the improvement, violated said section of the Missouri Constitution and caused the damage. The instruction in the nature of a demurrer offered by appellant was properly overruled. Sec. 21, Art. II, Mo. Const.; Board of County Commrs. of Logan County v. Adler, 69 Colo. 290, 194 P. 621, 20 A. L. R. 514; Tremayne v. St. Louis, 6 S.W.2d 939; Tebbs v. Platte County, 28 S.W.2d 656; Dallas County v. Dillard, 156 Ala. 354, 47 So. 135, 18 L. R. A. (N. S.) 885; Mercer County v. Wolff, 237 Ill. 74, 86 N.E. 708; Chester County v. Brower, 117 P. 647, 2 Am. St. Rep. 713, 12 A. 577; Swift & Co. v. Newport News, 105 Va. 108, 52 S.E. 821, 3 L. R. A. (N. S.) 404; Nelson County v. Loving, 126 Va. 283, 101 S.E. 406; McCarty v. Clark County, 101 Mo. 183; Chicago v. Taylor, 125 U.S. 166, 31 L.Ed. 640, 8 S.Ct. 820; Hickman v. City of Kansas, 120 Mo. 121; Rigney v. Chicago, 102 Ill. 64; Newby v. Platte County, 25 Mo. 260; Heorath v. Halpin, 60 S.W.2d 746; Carpenter v. Grisham, 59 Mo. 247. (2) Article II, Section 21, of the Constitution of Missouri, is self-enforcing, and although the State General Assembly may not have enacted any law providing a mode for the ascertainment and payment of damages arising from the violation thereof, the respondent, as the injured party in this case, properly resorted to a common-law action to afford himself adequate and appropriate means of redress. Under the circumstances aforesaid the respondent was entitled to resort to any common-law action which would afford adequate and appropriate means of redress. Hickman v. City of Kansas, 120 Mo. 117; Householder v. City of Kansas, 83 Mo. 494; Swift & Co. v. Newport News, 105 Va. 108, 3 L. R. A. (N. S.) 407; Tremayne v. St. Louis, 6 S.W.2d 940.

Louis V. Stigall and Ralph M. Eubanks for State Highway Commission and Rufus Burrus for Jackson County, amici curiae.

(1) A county court which establishes roads or rebuilds them acts as an arm or agent of the sovereign power, the State, and is not liable for damage therefor. Reardon v. St. Louis County, 36 Mo. 560; Tebbs v. Platte County, 325 Mo. 304, 28 S.W.2d 657. (2) Governmental agencies, while performing governmental duties, are not liable for consequential damages occasioned when no physical properties of the landowner are taken. State ex rel. Gagnepain v. Daues, 15 S.W.2d 815, 322 Mo. 376; Tegeler v. Kansas City, 95 Mo.App. 164; State ex rel. State Highway Comm. v. Cox, 77 S.W.2d 116, 336 Mo. 271; Julia Building Assn. v. Bell Tel. Co., 88 Mo. 258; Seibel-Suessdorf C. & I. Mfg. Co. v. Manufacturers' Ry. Co., 130 S.W. 295. (3) Cases involving cities and towns being liable for consequential damages are not applicable to this case, one in which the county is sought to be held.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause was recently reassigned. It is an action to recover consequential damages resulting from changing the grade of a public highway. A jury trial resulted in a verdict and judgment for plaintiffs in the sum of $ 1375, and defendant appealed.

Plaintiffs base their cause upon Section 21, Article II of the Constitution, dealing with the taking or damaging private property for public use. Plaintiffs owned lots 15 and 16 in Yeoman addition to Midland Heights, a subdivision in St. Louis County. On these lots were a two story frame residence, a garage, and an outbuilding. The south line of these lots abuts (143 feet) on Midland Boulevard, an east and west public highway, established in 1898, and the east line abuts (143 feet, 6 inches) on Yeoman Avenue, a north and south public highway, established subsequent to 1898, but date is not given. October 19, 1932, the county, acting through the county judges, entered into a contract with a construction company for the grading of Midland Boulevard. In the execution of this contract, the grade, along and by plaintiffs' lots, was raised some seven to nine feet. The construction company was made a defendant, but its demurrer to the petition was sustained, and plaintiff dismissed as to the construction company. The county filed a demurrer to the petition, but this demurrer was overruled and the county answered, admitting that it was a political subdivision of the State, and denying generally other allegations in the petition. The county filed a demurrer to the evidence at the close of plaintiffs' case, and at the close of the whole case, but these were overruled, and the cause submitted, resulting in a verdict for plaintiff as above stated.

The county contends that in grading the public highway along and by plaintiffs' lots, it acted as the agent of the State and in a governmental capacity, and is not liable for the consequential damages to plaintiffs' property. Also, error is assigned on instructions given at the request of plaintiffs.

Section 21, Article 2, reads: "That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested. . . ." (Italics ours.)

It is conceded that there is no statute authorizing the maintenance of such suit as the present one, but plaintiffs contend that the Constitution itself is authority for the maintenance of the cause. Counties are "legal subdivisions of the State" (Constitution, Sec. 1, Art. IX), and it has been held in this State, without exception, that the county judges, in dealing with public roads, are agents of the State and not of the counties. Quite a few actions against a county for damages have reached this court, and generally it has been held that recovery could not be had. We shall review some of these cases.

Reardon v. St. Louis County, 36 Mo. 555, was an action for damages for the death of plaintiff's husband. The husband, while walking at night along a public highway, stepped off a bridge. It was alleged that the county was negligent in failing "to provide proper guards to said bridge." Demurrer to the petition was sustained. It was held that the county court in dealing with public roads was the agent of the State and not of the county, and that "counties, as such, have no control over the repair of roads; they choose the county court, and there their power ceases. The statute gives to the county court, in express terms, the care and superintendence of the highways and bridges of the county, and confers upon it all the powers requisite to the execution of the trust; and it derives all its authority, not through the county, but directly from the statute. The county has no authority to give any direction or instruction to the county court as to the proper performance of its duty." It was ruled that the demurrer was properly sustained.

Swineford et al. v. Franklin County, 73 Mo. 279, was an action for...