*1 SUPREME COURT OP MISSOURI, City. Zummо nothing. principally and does doctrine is founded on equity equity who seeks do maxims, ‘he must equity,’ equity ‘he with clean who comes into come must vigilant, hands,’ ‘the laws not those serve sleep rights,’ who over their on considera- is based public policy. object general tions of to exact Its inis adversary, complainant dealings fair adopted great largely and the rulе was after because lapse papers, parties, from death time, loss change death of intervention of title, witnesses, danger equities, doing or other causes there is in- justice, longer and there can a be no safe determination controversy. [See also 10 R. C. L. secs. 396-408, inclusive.]” 143 to 157, we conclusion have reached makes it unneces-
sary plaintiffs determine whether not also barred by final of Limitations and the Statutes settlement of the administrator.
Finding therein, error let the decree of the no chancellor be affirmed. learned below is so It ordered. except (a) par. Brown, C., concurs, of Sub. Div. Ragland, "VTII; G., concurs. opinion foregoing PER CURIAM:—The by Small, opinion adopted as the of the court.
C., All of the judges еxcept sitting. Woodson, concur, J., not Appellant,
EMELINE ZUMMO, v. KANSAS CITY. One, Division December 1920. Pecuniary Liability
1. CITIES: Police Powers: Wrongful Acts of Agents. immunity protects The same pecunia- the State from ry liability wrongful for the acts of employed officers and police powers exercise of its extends to quasi-municipal corporations purpose it for created сharged of and powers. with the exercise of the same TERM, OCTOBER 285
Ziunmo v. Kansas City is Hospital Injury Patient. -: -: -.—: patient a vio- caused for tbe death not liable city hospital patient placed cell of lent the same who *2 agents. public preservation health the its and of officers govermental appertains police power, or an to a exercise of public city duty, de- and health and a charter creates the duty partment power provides be its the and that it shall .have and of ordinances enforce the of the and charter and laws State care, health, city relating public the the and shall have management city hospitals, and make rules and control of regulations support, insane thе maintenance confinement for thereby persons persons therein; the and all other confined integral merely city agent State, made, an not but the the government, and exercise State for enforcement powers, police partakes immunities State’s State’s wrongful liability pecuniary conduct of from for city agents hospital. city Capacity. liability 3. -: -: -: Private aof damages resulting for from failure to maintain its its streets condition, parks operation public safe arises from liability profit, pecuniary has utilities no relation to wrongful a acts its officers in committed police powers, appertain governmental exercise of to its distinguished character, from acts done as private cаpacity. Kimbroug Appeal Jackson Circuit Court.—Hon. h Stone, Judge. Affirmed.
J. Smith for appellant. Roy
(1) Tbe respondent under Constitution tbe owes certain duties responsibilities. witb certain charged Mo. Cons. secs. 4 Tbe 30, art. 2. Charter of Kansas City adopted was subject to tbe limitations of Con- struction and tbe laws of Missouri, and in sub- must be stantial therewith. Charter, sec. harmony p. 97; Char- ter, Art. 14; v. Bacon, City 259; Mo. Hass Ward, 186 Mo. was аdopted Tbe Charter under laws of Missouri, tbe authority provided tbe Constitution. Tbe did give this charter given respondent; power tbe MISSOURI, SUPREME COURT OF adopt
municipality to vote which was done charter, comprising municipality; the citizens maintaining charged duty is not therefore general hospital. develops thereupon it is It governmental not a as- a ministerial but function, municipality. people comprising R. sumed seq. 9754; Constitution, sec. 970J et and sec. corpora- p. sec. “A Charter, art. possesses express power granted those words, tion necessarily express implied fairly in or incidental purposes powers, of cor- and those essential to declared poration,” using “essential” the sense of the word merely City “indispensable,” convenient. and not Long St. v. Dreisoerner, 243 Mo. Louis (Cal.) Lisenby, 333. Under common Beach v. Pac. protected inly municipality *3 law sovereignty. exercising delegated functions of while (Cal.) Long City 670; Beach, 163 Pac. Chafer v. (Idaho) City, 167 Pac. Dev. Co. v. Boise Boise change in common-law made no Constitution' The prevails. liability—the therefore Mo. common law legislative pоwer has After the Constitution, Schedule. then the establishment, location been exercised pursuant action former institution maintenance municipality liable. 28 will ministerial, be City, Cyc. Kan. Kan., 69 Kansas v. 1263, 1266; Bowden City 198 v. 105 Trower 187; Louisiana, Am. St. City, App. App. 542; 170 Mo. v. Kansas 198; Nelson Mo. Cassidy City City Ely 723; 181 v. Louis, Mo. of St. v. Bontjes, Joseph, Home v. Deaconess 206; Mo. 247 St. Cyc. performing App. 1285. “In 28 484; 104 111. corporate city sоlely relating charter, duties negligence injuries of its caused liable for City, agents.” Healy 626; 277 Mo. Barree v. Haven, v. New Cape 391; Mo. 197 Jones Girardeau, v. hospitals parks of Kan- 34 Conn. parents, the same City, and born conceived sas municipality attaches to the because 285 Mo.] OCTOBEE 225 TEEM, 1920. y.
Zummo
neglect
management
city parks
the conduct and
certainly
municipality
fоllows
its conduct
management
general hospital.
E.
sec.
S.
p.
Capps
9754;
City
Charter,
83;
Louis,
of St.
251
v.
Carey
City,
Mayhew
Mo. 252;
v. Kansas
715;
187 Mo.
v. Burns,
E. M. Harter, Burr N. Mosman and Ilus M. Lee for respondent.
(1)
petition
charge
does not contain a sufficient
negligence,
properly
demurrer
sustained.
y.
66;
’Brien
O
Transit
212
Co., Mo.
Eemovich v. Const.
Newspapers
Co.,
“That spell, a. them., sаid Pete Gustia had a violent placed thereafter 9 m. about a. said Pete Gustia was wearing cell with both Zummo, Antonio men Saturday, April restraints; that afterwards, on to-wit, p. sometime between one and one-fifteen m., Antonio Zummo cell; said was murdered alleged strangled; was, he there certain body, marks of violence on his head and which was dis- inquest, at the closed сoroner’s and there were other marks of violence and wounds found on the head body Antonio said Zummo, were not dis- inquest, closed the said and which wounds were a fatal the result nature, of malfeasance or misfeasance on agents. of defendant’s “ carelessly the defendant That had negligently permitted oversight suffered and a lack of and control hоspital. patients over the in the said *5 OCTOBER TERM, y. City. Zummo Kansas by “That defendant the exercise knew, dangerous ordinary have conld known, care patients practice placing cell the -same two patients of said both when one said prevented murder have and could this violent, prudence. of caution, exercise care , ninety days that “Plaintiff within states day of the fifth murder, to-wit, occurrence of on said upon mayor May, she to be served 1915, caused stating City, a notice Kansas written said defendant, complained place injury of was when the time and circumstances thereof, character done, from therefor said defendant, she that claimed copy at- which said notice hereto hereof. tachеd that reason of further states said
“Plaintiff negligence, malfeasance, misfeasance carelessness, agents, the Antonio and defendant’s defendant he murdered; the husband and was Zummo was plaintiff; support reason this sole 'the premises his and affection, love husband, has lost her she support, and because thereof has been care together dаmaged which, $10,000, sum judgment.” prays she action, this her costs following, demurred defendant On June signature caption omitted: following words, petition, plaintiff’s and for demurs “Defendant petition says fails to state that said ground thereof against action a cause of constitute sufficient facts defendant.” this up taken was demurrer 1916, March
On sustained. court and heard judgment plead refusing рlaintiff further, January 12, on entered' defendant was duly appeal taken, and the judgment on presented properly our determination cause sufficiency petition. SUPREME COURT OF .(cid:127) MISSOURI, y. Zummo *6 copied petition, I. The which in we have full in the foregoing ais model statement, of circumlocution and uncertainty. In the ad damnum it the fact that reveals plaintiff’s the deceased wаs A the husband. careful reading discloses that the claim is foun upon liability ded the assumed the de Agents. Axt^of11 damages fendant in for his death although under meagerly circumstances in which, definitely by necessary stated, indicate inference that municipal in capacity, defendant, its owned and operated plaintiff’s a in which it received carelessly husband, patient, who a sick, as negligently, agents by charge its in and servants hospital, said caused him be in a confined “cell” to with patient by an insane known it to be violent so require him. who killed restraint, upon petition, These facts, evident face defendant, question raise damages whether in is liable agents by on account acts done or omitted its hospital. employees aр- in conduct of its If it pears petition from there that nowas cause of action mind, pleader, in form which he has expressed important. will himself "VVe therefore proceed question liability of the defendant’s for wrongs by agents, of this character committed with- they form words out reference which are pleaded. upon principle which stands a firmer
There is no protected by which reason, or more foundation authority, judical the rule that the than same abundant pecuniary protects immunity from the State wrongful acts of for powers, employed police exercise of its it in the municipal quasi-corporations creat- also to extends charged purpose of and ed powers. The rule has been the exercise court, against in cases counties and often stated damages resulting from failure to main- districts road OCTOBER TERM, subject by law roads within their limits and tain to supervision great number of their A control. these of Lamar v. will be found late cited in case Special Bolivar 201 S. District, Road W. Moxley applied v. Pike
has since
followed and
been
County,
It is rule said, .different however, municipal corporations, constantly liable held are streets from failure to maintain their a safe condition. fact This arises true, and powers vested exercised gov- corporations purely In of a nature. twofold *7 ordinary police they capacity ernmental include police powers limits. Their of the within their State peace preserving are officers of the State, public bymeans appropriate density an order they performing population. duty urban In are this limits; persons which the owes alike to all within its State duty protect, their indi- to them the ‘exercise important rights. safety vidual No element of is more pertaining public than to The health health. those departments police parts and general o-f the are government as administered purposes. those (5 Corp. Ed.) 301, in 1 Mun. sec. Judge Dillon “Many powers exercis as
states follows: the rule municipalities as the fall what known within ed power delegated police them to- State, are to and good. public Of nature is for the this be exercised preserve pre suppress authority nuisances, health, to storing dangerоus regulate use to fires, vent markets, and control articles, establish like.. to relating the comfort,' to and ordinances -. . . Laws general good welfare order and convenience, health, styled comprehensively ‘Police inhabitants ” Regulations.’ Laws adopted and statement was and accurate clear This City, 277 Healy Kansas court v. approved SUPREME COURT OF MISSOURI, Zummо r. Kansas Cassidy following Mo. l. early c. 626, our decisions Joseph, Louis, v. St. 247 Mo. 197, Ulrich St. Murtaugh City, l. 44 Mo. c. application and other rule to cases. this Of the 1661) (Sec. cases author character, this says: power mu aof “The or even on the nicipal corporation public provision make apper health and destitute, the sick and care for in its public, governmental tains to in its ’’ corporate, private capacity. or as it is called, sometimes great refer We cases the curious to the number of support cited learned author of this statement. 14) (See. The charter of Art. es- tablishes within limits “a and health de- partment,” provides power that it “shall have the duty: and it shall be its “ (a) To the laws of State of Missouri, enforce pro- ordinances of Missouri, public relating visions health; charter this regulations, such to make rules and not inconsistent provisions with other preserve charter, will tend promote health. management “(b) have the care, To control building's property all heretofore and now used hospitals premises and’known as all lands and *8 property in used connеction all therewith, and, of also, now, hereafter, and owned or institutions controlled injur- the care for the and treatment sick of and persons; support, ed the for maintenance and confine- persons, support ment of insane and for maintenance and poor persons; and to establish locate, and maintain hospitals quarantine and stations within, of, outside corporate city, custody and limits to have the persons any of all confined in such institutions.” powers granted imposed thus thus Among could not broader or absolute. be more other things governmental it. is created the instrument of the relating public all laws enforcement of TERM, OCTOBER . ordinance rules health, to make discretion regulations, including support, con- maintenance persons. respects it insane these In finement of including government, its arm of use of the State legislative powers the Con- far as consistent with so being case tñe stitution and laws This tñe State. exemption liability enjoyed by same State itself in for inflicted its performance defend- attaches of similar duties to merely agency city. purposes an ant For these is the is, under Constitution which State but integral authority for of the State its an existence, government, partakes as well as its immunities its duties. damages resulting liability
II. The for parks in from its failure maintain to its streets question. has safe condition no-relation whatever principle liability has That foundation imposed upon upon the cor which poration operаtion damage for inflicted in the members. profit, to its for inures utilities of corse speaking Moxley County, 449-454, In Pike quasi-corporations between which con of the distinction po purpose mere alone, administration stitute, for the municipal corporations State, divisions litical profit respects organized and established some proprietorial advаntage we of their said: members, already hand, we had some have “On the other explain Holmes, in Kansas occasion against mu foundation of distinction 392, W. corporations private nicipal deep is laid wide step first mark the their creation. interests which plat. filing pro State, in this Some consists, It gains system prietor, come from a ambitious 'improvements allеys and other urban streets, city, lays according it out creation attend the development future idea, trusts the own hopes immeasurably will increase the value he *9 SUPREME COURT OF MISSOURI, which, every plat ground lot and of Pur it includes. partake hope, join chasers come who him system of-development squares p-uhlic streets, building principal limited ele districts, which plan expected profit. provides ments of the The pride inhabitants of ambition surrounding may country be benefit utilized corporations of 1909) (Chap. the urban R. Art. given corporation authority fullest improvements to control all for the best interest of property. the inhabitants other owners urban develop These and other similar conditions affect the municipal corporations, ample ground ment afford for the distinction exists in this State between governmental agencies respect them and other negligence their their agents in the construction and maintenance of class improvement upon development their peculiar property value their immovable stands.”
No condition exists this case. such resulting injury grew out of which action plainly police power related as of the State as suppressing duty of its officers disorder main- taining peace. Having arrived at this conculsion unnecessary points suggested by other notice n respondent sufficiency petition. as to County judgment Jackson Circuit Court Ragland, CC., concur. affirmed. Small foregoing opinion PER CURIAM:—The Brown, adopted opinion C., is court. All of the judges concur.