149 Mo. App. 539 | Mo. Ct. App. | 1910
This is an action for damages alleged to have been caused by the construction of a sidewalk and curbing on an established street in front of residence property owned by plaintiff in Kansas City. A trial to a jury resulted in a verdict and judgment for plaintiff in the sum of one thousand dollars and the cause is before us on the appeal of defendant.
Material facts disclosed by the evidence are as follows: The property claimed to be damaged is known as Lot Eleven, Block Three, Mellier Place, an addition now in Kansas City, Missouri. That addition was platted by a private corporation in 1890, at a time when the land it covered was outside the corporate limits of any city. The street in front of Lot Eleven — then called Darragh avenue and afterwards Bell street — was graded and macadamized by the company; a house facing that street was built on Lot Eleven and the lot was otherwise improved. The grade of the street as paved was about
On behalf of plaintiff, the court instructed the jury: “You are instructed that if you find from the evidence
The principal contention of defendant is that its demurrer to the evidence should have been sustained.
Both parties concede that the ordinance of the city of Westport establishing the grade of Bell street was valid under the provisions of the statutes governing cities of the. fourth class (section 1589, Revised Statutes 1889), and that the grade thus fixed remained the established grade after the absorption of Westport by Kansas City. Further it is conceded that the charter of Kansas City (1889), Article VIII, in force in 1901,
Defendant argues that since an ordinance establishing the grade was enacted by Westport plaintiff’s grantor “was awarded any damages resulting to the lot in question as a consequence of the establishment of the grade in front of the lot and no further or other damages could be recovered in any subsequent action by any subsequent owner for the same established grade.” The conclusion of defendant does not follow of necessity from the fact that the grade was established by ordinance. The proof shows that no damages were assessed or paid the property-owners affected by the ordinance. The city left them to the remedy they would have when a physical change of grade would inflict actual injury on their property. That time came when Kansas City proceeded to lay the curbing and sidewalk to the established grade and a cause of action then inured to the property-owners for the damages sustained by them.
“A city may, by ordinance, direct a street to be graded. If it proceeds with the work and damages property without first taking steps to ascertain and pay such damage, it is a trespasser and those actively participating in the work by directing it are co-trespassers.” [Rives v. Columbia, 80 Mo. App. l. c. 177; Reed v. Peck, 163 Mo. 333; Faust v. Pope, 132 Mr. App. l. c. 294.]
Under this rule the city and the contractor became co-trespassers and each incurred liability for the trespass of the other committed in the construction of the improvement authorized by ordinance. We do not think the liability of the city to respond for the trespass of its contractor was destroyed or lessened by the fact that the contractor negligently built the sidewalk and curbing on a slightly higher plane than that of the established grade. The ordinance required the contractor to conform the improvement to the established grade. His
“It is argiied for the defendant however, that as the city had no authority under its charter to commit a trespass, or to order the commission of a trespass, an order to its servants to do an act which, when performed, constituted a trespass, would not make the city liable, as both the order and the act would be ultra vires. This argument fails to distinguish between the doing of an act in its nature unlawful, or prohibited, and the doing of an act in its nature lawful and authorized, at an unauthorized place, or in an unlawful manner. On the defendant’s theory municipal corporations could never be held liable for the negligent or tortious acts of their agents and servants. As they have no opportunity to do wrong and cannot authorize their officers or servants to do wrong, therefore, it is argued, they can never be held liable for injuries inflicted by them. This is an unwholesome doctrine and is not supported either, by reason or authority. [Soulard v. City of St. Louis, 36 Mo. 546; Hickerson v. The City of Mexico, 58 Mo. 61; Lee v. Village of Sandy Hill, 40 N. Y. 447; Dillon on Mun. Cor., sec. 769.]”
The demurrer to the evidence was properly overruled. We have examined other questions raised by defendant and find that no prejudicial error was committed by the trial court. Accordingly the judgment is affirmed.