Zummo v. Kansas City

• Decision Date: 02 December 1920
• Citation: 225 S.W. 934,285 Mo. 222
• Parties: EMELINE ZUMMO, Appellant, v. KANSAS CITY
• Court: Missouri Supreme Court

225 S.W. 934

285 Mo. 222

EMELINE ZUMMO, Appellant, v. KANSAS CITY

Supreme Court of Missouri, First Division

December 2, 1920

Appeal from Jackson Circuit Court. -- Hon. Kimbrough Stone, Judge.

Affirmed.

J. Roy Smith for appellant.

(1) The respondent under the Constitution owes certain duties and is charged with certain responsibilities. Mo. Cons. secs. 4 and 30, art. 2. The Charter of Kansas City was adopted subject to the limitations of the Construction and the laws of Missouri and must be in substantial harmony therewith. Charter, sec 1, p. 97; Charter, Art. 14; Kansas City v. Bacon, 147 Mo. 259; Hass v. Ward, 186 Mo. 325. The Charter was adopted under authority of the laws of Missouri, as provided for in the Constitution. The State did not give this charter of 1908 to the respondent; the power was given the municipality to adopt a charter, which was done by vote of the citizens comprising the municipality; the city is not therefore charged with the duty of maintaining a general hospital. It thereupon develops that it is not a governmental function, but a ministerial duty assumed by the people comprising the municipality. R. S. 1909, sec. 9703 et seq. and sec. 9754; Mo. Constitution, sec. 16, art. 9; Charter, p 18. "A municipal corporation possesses power granted in express words, those necessarily or fairly implied in or incidental to express powers, and those essential to declared purposes of corporation," using the word "essential" in the sense of "indispensable," and not merely convenient. City of St. Louis v. Dreisoerner, 243 Mo. 217; City of Long Beach v. Lisenby, 166 P. 333. Under common law the municipality is protected from liability inly while exercising delegated functions of sovereignty. Chafer v. City of Long Beach, 163 P. 670; Boise Dev. Co. v. Boise City, 167 P. 1032 (Idaho) . The Constitution made no change in the common-law liability -- the common law therefore prevails. Mo. Constitution, Schedule. After the legislative power has been exercised in location and establishment, then the maintenance of the institution pursuant to former action is ministerial, and the municipality will be liable. 28 Cyc. 1263, 1266; Bowden v. Kansas City, Kan., 69 Kan. 587, 105 Am. St. 187; Trower v. City of Louisiana, 198 Mo.App. 198; Nelson v. Kansas City, 170 Mo.App. 542; Ely v. City of St. Louis, 181 Mo. 723; Cassidy v. City of St. Joseph, 247 Mo. 206; Deaconess Home v. Bontjes, 104 Ill.App. 484; 28 Cyc. 1285. "In performing the duties relating solely to its corporate charter, the city is liable for injuries caused by the negligence of its agents." Healy v. Kansas City, 277 Mo. 626; Barree v. Cape Girardeau, 197 Mo. 391; Jones v. New Haven, 34 Conn. 1. The city parks and city hospitals of Kansas City, were conceived and born of the same parents, and the liability that attaches to the municipality because of neglect in the conduct and management of city parks certainly follows the municipality in its conduct and management of the general hospital. R. S. 1909, sec. 9754; Charter, p. 83; Capps v. City of St. Louis, 251 Mo. 252; Carey v. Kansas City, 187 Mo. 715; Mayhew v. Burns, 103 Ind. 328.

E. M. Harber, Burr N. Mosman and Ilus M. Lee for respondent.

(1) The petition does not contain a sufficient charge of negligence, and the demurrer was properly sustained. O'Brien v. Transit Co., 212 Mo. 66; Removich v. Const. Co., 264 Mo. 43; State ex rel. Newspapers Assn. v. Ellison, 176 S.W. 11; Taylor v. Iron Co., 133 Mo. 358; Knapp, Stout & Co. v. St. Louis, 156 Mo. 353; Benjamin v. Railroad, 245 Mo. 598; State ex rel. v. Ellison, 266 Mo. 423; Darrow v. Briggs, 261 Mo. 278. (2) A municipal corporation, while in the exercise of a governmental function, is not liable for the negligence of its officers and employees and the demurrer was properly sustained. 28 Cyc. 1305; 4 Dillon, sec. 1661; 6 McQuillin, sec. 2623; Murtaugh v. St. Louis, 44 Mo. 479; Richmond v. Long's Admr., 17 Grat. (Va.) 375; McKenna v. St. Louis, 6 Mo.App. 320; Ulrich v. St. Louis, 112 Mo. 143; Cassidy v. St. Joseph, 247 Mo. 197; Healy v. Kansas City, 277 Mo. 626; Browder v. City of Henderson, 207 S.W. 479; Frost v. Topeka, 98 Kan. 636; Butler v. Kansas City, 97 Kan. 239; Benton v. Trustees City Hospital, 140 Mass. 13; Hill v. Boston, 122 Mass. 344; Evans v. Kankakee, 231 Ill. 223; Tollefson v. Ottawa, 228 Ill. 134; Culver v. Streator, 130 Ill. 238; Adams v. University Hospital, 122 Mo.App. 673; Whittaker v. St. Luke's Hospital, 137 Mo.App. 116; Nicholas v. Deaconess Home, 219 S.W. 643.

BROWN, C. Small and Ragland, CC., concur.

OPINION

BROWN, C. --

Petition filed in the Circuit Court of Jackson County Court May 5, 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, Missouri, 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 eighth 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, sometime between one and one-fifteen 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 ninety days of the occurrence of said murder, to-wit, on the fifth 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.

I. 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 plaintiff's husband, who was sick, as a patient, and carelessly 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 the 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...