197 Mo. 382 | Mo. | 1906
This is an action for ten thousand dollars damages alleged to have been sustained by plaintiff by reason of the wrongful and unlawful acts and assault by one Fritz Brunke, agent and servant of defendant, upon plaintiff.
The petition, leaving off the formal parts, is as follows:
“Plaintiff for his cause of action, by leave of court first had and obtained for his amended petition herein, states that at all times hereinafter mentioned, he was the lessee of the Cape Girardeau Street Railway Company, a corporation duly incorporated under and by the laws of the State of Missouri, and which said corporation was and is the successor or assign of W. A. Penney and L. S. Joseph, to whom was granted by the*386 defendant, by ordinance No. 484, duly passed and adopted by said defendant, tbe right to construct and operate a street railway within the City of Cape Girardeau, Missouri, and especially over and along and through Spanish street of said city; that by the terms of his said agreement with said street railway company he had the same right to operate and run street cars over said streets in said city that the said street railway company has and had at said times, and the plaintiff was at the times hereinafter mentioned running and operating street ears, under and by virtue of his said agreement, over the said streets within said city.
“That the defendant is and was at all said times a municipal corporation, organized and existing under the laws of the State of Missouri, and was and is a city of the third class, exercising all the powers and bound by all the duties of cities of that class. That at all said times said Spanish street of said city was a public highway and it became and was then and there the duty of the defendant to at all times keep the same in repair and free from obstructions; but not regarding its duty in that behalf, on or about the 21st day of August, 1902, the said defendant, by its agents, servants and employees, and especially its agent and servant Fritz Brunke, did, carelessly, negligently and wrongfully, place and deposit in and on said Spanish street near Merriwether street a large quantity of gravel or broken stones; and in so doing, carelessly, negligently and wrongfully covered up and thereby obstructed the rails or track on which plaintiff’s cars had to run, with said gravel or broken stones, so that it became and was then and there impossible for plaintiff to operate and run his cars over said streets and carry his passengers to their destinations without great danger to his said car and passengers. Thereupon plaintiff stopped his car, and for the purpose of avoiding said danger, began to remove said gravel or broken stones from his said*387 rails and tracks; and the said Fritz Brnnke, being then and there the agent and servant of the defendant, and engaged in placing said gravel, or broken stones on said street for the purpose of repairing the same, and seeing the plaintiff removing said stones from his said rails and tracks, ordered him, the said plaintiff, not to interfere with said gravel or broken stones which had been placed on said rails as aforesaid by the said city defendant, and upon nlaintiff’s refusal to obey said order, the said Fritz Brunke then and there seized plaintiff by the right arm and jerked him away with great force and violence; and the plaintiff to save himself from being dragged over the streets and injured, caught hold of one of the iron rods on his car with his left hand; but the said Brunke, as the said agent and employee of the defendant and still trying to prevent said gravel and stones from being interfered with and for the purpose of protecting the defendant’s streets from interference by the plaintiff, then and there negligently^ carelessly and wrongfully jerked plaintiff’s hand loose from said car with such force and violence that plaintiff’s left arm was thereby greatly strained, bruised and injured. And to further protect defendant’s streets and to prevent said gravel and broken stones from being removed, the said Brunke then and there struck, beat and otherwise abused this plaintiff by dragging him over the streets, taking him away from his car and attempting to lock him up in a dungeon in a remote part of the said city. That by reason of said injuries plaintiff’s said left arm has been rendered useless and permanently disabled; that he has suffered great pain of body and distress of mind; that in consequence of said injuries inflicted as aforesaid he has been forced to give up his said contract with said street railway company, and ever since has been wholly incapacitated for any kind of labor; and altogether he has been damaged by reason thereof in the sum of ten thousand dollars, for which he asks judgment.”
The principal question for consideration is whether defendant city is liable to respond in damages to plaintiff under the petition, admitting all of' the material facts therein alleged to be true. By the charter of Cape Girardeau the general power is conferred upon the city to “open and improve streets, avenues, alleys and other highways, and to make sidewalks and build bridges, culverts and sewers within the city, and to exercise exclusive control over streets and alleys, and establish grades therefor. ’ ’
It stands admitted by the demurrer that Fritz Brunke was the servant of defendant at the time of the commission of the injury complained of by plaintiff; but if the injury was committed while Brunke was in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, the corporation is not liable for the wrongful acts of its servant. On the other hand, if Brunke was in the exercise of a power conferred upon defendant corporation for its private benefit, then the defendant is liable for the wrongful acts of its servant, as in the case of a private individual. [Murtaugh v. St. Louis, 44 Mo. 479; Williams, Municipal Liability for Tort, see. 11.] In Hilsdorf v. St. Louis, 45 Mo. 94, it is said:
“Corporations, whether municipal or aggregate, are now held to the same liability as individuals, and will not be permitted to screen themselves behind the plea that they are impersonal, and that their acts are but the acts of individuals; and if an agent or servant of a corporation, in the line of his employment, shall*389 be guilty of negligence or commit a wrong the corporation is responsible in damages. ’ ’
The making and improving of the streets by the city and keeping them in repair, is a ministerial function, and relates to corporate interests only. It is well settled in this State that a municipality is liable for negligence in the construction of streets or sewers. [Broadwell v. Kansas City, 75 Mo. 213; Worth v. Springfield, 78 Mo. 107; Wegmann v. Jefferson City, 61 Mo. 55; Thurston v. St. Joseph, 51 Mo. 510.]
In McKenna v. St. Louis, 6 Mo. App. 320, it is said:
. “Municipal corporations are considered by law in two aspects. In one, their functions are chiefly ministerial, and relate to corporate interests only. These include the making and improving of streets, the construction of sewers and other improvements and keeping them in repair, the holding of property for corporate purposes, etc. But as to these matters of strictly corporate interest there are often duties to be performed of a legislative or judicial character. In the other aspect, the corporation is regarded as holding a quasi-delegated sovereignty for the preservation of the public peace and safety and the prevention of crime. This includes the maintenance of a police force, the appointment of officers charged with the public health, the establishing of regulations for the suppression of vice, and other matters of public concern in which all people have a common interest which it is the chief end of every good government to protect.” The same rule is announced in Donahoe v. Kansas City, 136 Mo. 657.
In Bullmaster v. St. Joseph, 70 Mo. App. 60, it is said the authorities “make plain the distinction between those powers of a municipal corporation which are public governmental functions delegated to it by the State and conferred upon it exclusively for the public good, such, for instánce, as that to maintain a city
In Maxmilian v. Mayor, 62 N. Y. 160, it is said:
“And the duty of keeping in repair streets, bridges and other common ways of passage, and sewers, and a liability for a neglect to perform that duty, rests upon, an express or implied acceptance of the power and an agreement so to do. It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents, as its own corporate act. [Conrad v. Trustees of Ithaca, 16 N. Y. 158.] It is not always easy to say within which class a particular case should be placed. But when it is determined that the power*391 and duty are given and taken for the benefit of the corporation as a corporate body, and the act to be done is to be done by it through agents of its appointment and under its control and power, of removal, there is no doubt of its liability for negligent omission or negligent attempt at performance. When the powers created and duly enjoined are given and laid upon officers to be named by the corporation, but for the public benefit and as a convenient method of exercising a function of general government, and the corporation has no immediate control nor immediate power of removal of those officers, nor of their subordinates and servants, then it is not liable for their negligent omission or action.”
It is true there are cases, some of which are cited in behalf of defendant, which are seemingly supposed by defendant’s counsel to be in conflict with the views we have expressed, but they are clearly distinguishable, and have for their bases principles quite in harmony with those relied upon as supporting this action. When the duty is upon the city itself and not upon public officers appointed by it, when it accepts the duty and has the power to perform it, and by its own agents, servants or employees, does the work, and does it in a negligent way, or while in the line of their employment, its servants injure some one, whether intentionally or by carelessness, it may be held liable. [Jones v. New Haven, 34 Conn. 1.]
The petition charges that it was the duty of defendant city to keep its streets in repair; that it was in the act of repairing the same when the injury occurred; that Fritz Brunke was the agent and servant of the defendant in making the repairs, and that the injury was inflicted in trying to prevent the repairs from being interfered with.
It is a well-settled principle of law that when an agent or servant is employed to perform a certain piece of work and, while in the line of his duty, he in
Our conclusion is that the petition states a cause of action, and that the demurrer thereto should have been overruled. The judgment is therefore reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed.
