Zummo v. Kansas City

• Decision Date: 02 December 1920
• Docket Number: No. 21493.,21493.
• Citation: 225 S.W. 934,285 Mo. 222
• Parties: ZUMMO v. KANSAS CITY.
• Court: Missouri Supreme Court

225 S.W. 934

285 Mo. 222

ZUMMO v. KANSAS CITY.

No. 21493.

Supreme Court of Missouri, Division No. 1.

December 2, 1920.

Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge.

Action by Emeline Zummo against Kansas City. From a judgment for defendant, plaintiff appeals. Affirmed.

J. Roy Smith, of Kansas City, for appellant.

E. M. Harber, B. N. Mosman, and Bus M. Lee, all of Kansas City, for respondent.

BROWN, C.

Petition Sled in said court May 6, 1915. Omitting caption and signature, it is as follows:

"Plaintiff for her cause of action states that the defendant is now, and at all times hereinafter mentioned was, a municipal corporation, duly organized and existing according to law.

"That the General Hospital is now, and was at all times hereinafter mentioned, the City Hospital in Kansas City, Mo., and under the control and regulation of said defendant corporation.

"That under the law it is now, and was at all the times hereinafter mentioned, the duty of the defendant, Kansas City, to have, keep, and maintain said hospital, and to provide for the safety and well being of the patients therein.

"That on or about the 8th day of April, 1915, one Antonio Zummo, who was suffering from swamp fever, was taken to the General Hospital, at which hospital there was one Pete Gustia, who had been violent at times, and had been placed in restraint, from which restraint he had at least once freed himself.

"That on Friday, April 16, 1915, shortly prior to 9 a. m., the said Pete Gustia had a violent spell, and thereafter, about 9 a. m., the said Pete Gustia was placed in the same cell with Antonio Zummo, both men wearing restraints; that afterwards, to wit, on Saturday April 17, 1915, some time between 1 and 1:15 p. m., the said Antonio Zummo was murdered in the cell; that it was alleged he was strangled; that there were certain marks of violence on his head and body, which was disclosed at the coroner's inquest, and there were other marks of violence and wounds found on the head and body of the said Antonio Zummo, which were not disclosed by the said inquest, and which wounds were of a fatal nature, the result of malfeasance or misfeasance on the part of defendant's agents.

"That the defendant had carelessly and negligently suffered and permitted a lack of oversight and control over the patients in the said hospital.

"That the defendant knew, or by the exercise of ordinary care could have known, of the dangerous practice of placing two patients in the same cell in the said hospital when one or both of said patients were violent, and could have prevented this murder by the exercise of caution, care, and prudence.

"Plaintiff states that within 90 days of the occurrence of said murder, to wit, on the 5th day of May, 1915, she caused to be served upon the mayor of said defendant, Kansas City, a written notice stating the place and the time when the injury complained of was done, and the character and circumstances thereof, and that she claimed damages therefor from said defendant, Kansas City, a copy of which said notice is hereto attached as a part hereof.

"Plaintiff further states that by reason of said carelessness, negligence, malfeasance, and misfeasance of defendant and defendant's agents the same Antonio Zummo was murdered; that he was the husband and the sole support of this plaintiff; that by reason of the premises she has lost her husband, his love and affection, his care and support, and because thereof has been damaged in the sum of $10,000, for which, together with her costs in this action, she prays judgment."

On June 9 following the defendant demurred in the following words, caption and signature omitted:

"Defendant demurs to plaintiff's petition, and for ground thereof says that said petition fails to state facts sufficient to constitute a cause of action against this defendant."

On March 13, 1916, the demurrer was taken up and heard by the court and sustained.

The plaintiff refusing to plead further, judgment for defendant was entered on January 12, 1919, from which judgment this appeal was duly taken, and the cause is properly presented for our determination on the sufficiency of the petition.

[1] 1. The petition, which we have copied in full in the foregoing statement, is a model of circumlocution and uncertainty. In the ad damnum it reveals the fact that the deceased was the plaintiff's husband. A careful reading discloses that the claim is founded upon the assumed liability of the defendant city in damages for his death under circumstances which, although meagerly and indefinitely stated, indicate by necessary inference that the defendant, in its municipal capacity, owned and operated a hospital in which it received the plaintiff's husband, who was sick, as a patient, and carelesssly and negligently, by its agents and servants in charge of the said hospital, caused him to be confined in a "cell" with an insane patient known by it to be violent so as to require restraint, who killed him.

These facts, evident upon the face of thy petition, raise the question whether the defendant is liable in damages on account of acts done or omitted by its agents and employees in the conduct of its hospital. If it appears from the petition that there was no cause of action in the mind of the pleader, the form in which he has expressed himself is not important. We will therefore proceed to the question of the defendant's liability for wrongs of this character committed by its agents, without reference to the form of words in which they are pleaded.

There is no principle which stands upon a firmer foundation of reason, or which is protected by more abundant judicial authority, than the rule that the same immunity which protects the state from pecuniary liability for the wrongful acts of officers and agents employed by it in the exercise of its police powers extends also to municipal and quasi corporations created by the state for the purpose of and charged with the exercise of the same powers. The rule has been often stated by this court in cases against counties and road districts for damages resulting from failure to maintain public roads within their limits and subject by law to their supervision and control. A great number of these will be found cited in the late case of Lamar v. Bolivar Special Road District, 201 S. W. 890, which has since been followed and applied in Moxley v. Pike County; 276 Mo. 449, 208 S. W. 246.

It is said, however, that a different rule applies to municipal corporations, which are constantly held liable for damages from failure to...