text:
    Leeman C. HAHN, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
    No. 48742.
    Supreme Court of Missouri. Division No. 1.
    March 12, 1962.
    Rehearing Denied April 9, 1962.

      Robert C. Ely, St. Louis, for appellant.
    Chopin & Boisaubin, George D. Chopin and Alfred L. Boisaubin, St. Louis, for respondent.
   COIL, Commissioner.

Plaintiff claimed $75,000 as damages for personal injuries sustained when he fell from a boxcar as a result of an inefficient hand brake thereon. A jury’s verdict for $100,000 was reduced by voluntary remitti-tur to $75,000 and by compliance with the trial court’s conditional order to $65,000. Defendant has appealed.

Plaintiff’s action was under Section 11 of the Safety Appliance Act, 45 U.S.C.A. sections 1 to 16, which provides in pertinent part: “It shall be unlawful for any common carrier * * * to haul, or permit to be hauled or used on its line, any car * * * not equipped with * * * efficient hand brakes; ⅜ *

Defendant contends that plaintiff’s verdict-directing instruction was erroneous in that it failed to submit the issue whether the boxcar in question was on defendant’s “line” at the time of plaintiff’s injury. The railroad’s initial position is that there was substantial evidence to support a finding either way on that issue, and that, consequently, the question was one for the jury; its alternative position is that if that question was one of law, the trial court erred in refusing to direct a defendant’s verdict. The railroad contends further that the trial court erred in giving instruction 2 and that the judgment is excessive.

Just north of the mill of the Colorado Milling and Elevator Company, d/b/a St. Louis Flour Mills (hereinafter sometimes called the mill) are two of defendant’s main line east-west tracks located on its right of way. Between the eastbound main line track and the mill’s buildings are three tracks numbered 1, 2, and 3 from north to south and referred to as “industry tracks.” All of track 1 is within defendant’s right of way and connects with defendant’s eastbound main line track at points east and west of the mill. Industry track 2 is located on the mill’s property except for a few feet at both its east and west ends where it joins track 1. All of industry track 3 is on the mill’s property. A written agreement in effect between the mill and defendant provided in pertinent parts: that the mill granted to railroad the exclusive right tO' enter on its land for the purpose of constructing and maintaining and operating over the three industry tracks to be located as heretofore noted; that the mill was to furnish and maintain a satisfactory roadbed and the railroad would construct the industry tracks and “thereafter maintain and repair the same”; that industry would reimburse defendant for the cost of construction (except the cost of plain rails and splices which were to remain the property of the railroad) and for all costs of operation, maintenance, and alteration of tracks 2 and 3; that industry track 1 was to be constructed and maintained by and at the expense of the railroad; that the railroad had a perpetual right to use the industry tracks free of charge (provided it did not unnecessarily interfere with the mill’s business) and so long as the defendant offered rates as reasonable as competing lines, the mill would consign and have consigned all its freight over such of defendant’s lines as could be used in the shipment of such goods.

Track 1 was 700 feet long. At a place slightly east of midway in its length there was a shaker track or mechanism installed by the mill with the knowledge of defendant and put into operation in August 1957. The shaker track was a separated section of track. A car full of grain would be placed on such section, the car secured by clamps, tilted to the south, and then by a “see-saw” mechanism the section of track was so rocked that within seven to ten minutes all the grain would flow from the car into the mill’s storage bins.

The routine followed by the mill and defendant with respect to handling cars of grain was about as follows: The mill’s elevator superintendent would direct defendant to deliver from its railroad yard certain boxcars of grain, normally about ten cars at a time. Defendant’s train crew would place the ten boxcars coupled together at the west end of track 1 with their air brakes set. Mill employees would then set the hand brakes on the two westernmost cars so that if the air leaked from the air brakes, the hand brakes so set would tend to hold the string of coupled cars. The mill owned and operated a trackmobile which ran both on tracks and, by lowering rubber tires, on roads or on the ground. The trackmobile operator would uncouple the easternmost car from the others and pull it eastwardly onto the shaker track. The trackmobile would then uncouple and go from the east to the west end of the car. After the car had been emptied the track-mobile would push it eastwardly to give it a start, then disengage itself and permit the boxcar to travel on eastwardly downgrade. Stationed on a platform at the brake end of each of such emptied boxcars would be the elevator dumper operator’s helper, who would control the speed of the car by operating the hand brake and thus cause the car to couple properly with any car which was standing on the east portion of track 1.

Plaintiff was the helper at the time in question and about 5:50 p. m. took his place on the platform provided below the brake on the end of a boxcar which had just been emptied at the shaker track. The car was shoved eastwardly by the track-mobile. Plaintiff immediately, as was routine, turned the hand-brake wheel five or six turns to remove the slack. When the car had traveled some distance and had reached its usual speed of four to six miles per hour, plaintiff began to turn the wheel to tighten the brake so that a proper coupling could be made with a car standing near the east end of track 1. He wound the brake 18 to 25 times but it had no effect. The boxcar did not slow but increased in speed and as a result of the force of its collision with the standing boxcar plaintiff was thrown to the ground and received injuries which will be hereinafter described.

The mill maintained no track crew. When it wished track repairs made, it hired an independent company. The mill’s employees were not qualified to inspect railroad equipment brakes. The moving of railroad cars within the mill area was done by a mill company employee and its employees operated the trackmobile and the shaker.

There was testimony that it was possible,, though not probable, that if a boxcar’s hand brake was on at the time the “see-saw” action was applied to empty a car, brake parts could fail as a result of that action; that if the hand brake were off, such action would not create any stress on the brake and would not cause any part of the mechanism to fail.

By reason of the provisions of the Safety Appliance Act, the railroad was liable if the hand brake failed to operate efficiently while the boxcar was being hauled or used on its line, irrespective of fault. Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615. Defendant concedes that there was substantial evidence that the brake in question did not operate efficiently and that the inefficient brake was a proximate cause of plaintiff’s injuries. The question is whether the boxcar was on defendant’s line and, if there was evidence to so show, whether the jury should have been required to so find.

It is our view, for the reasons which will appear, that, as a matter of law, the boxcar from which plaintiff fell was being used on defendant’s line at the time of plaintiff’s injury.

Defendant’s position is that when fact situations are presented in which an industry is being served by a single railroad, the test which determines whether the track in question is part of the railroad’s line is the extent of “the control by the industry”; and that determinative matters include whether the industry maintains its own crew for inspection and repair of cars and its own motive power for moving cars on industry tracks. Defendant argues that these five things are supported by the evidence and present a disputed fact question whether track 1 was the railroad’s “line”: (1) The shaker track, part of track 1, was installed and maintained by the mill, and corollary, possibly the shaking operation caused damage to the brake in question. (2) After the boxcars are placed on the west end of track 1 by defendant, they are thereafter moved by mill employees until they reach a stationary place at the east end of track 1. (3) Boxcars are delivered by defendant to the west end ’and removed from the east end of track 1 only upon order of the mill’s elevator supervisor. (4) The mill, in practice, hires an independent company to repair the three industry tracks even though track 1 is wholly within the railroad’s right of way and even though, as defendant says, it is obligated by the contract to maintain track 1. That is true by a specific provision of the contract, and it is also true that another paragraph of the contract obligates defendant to maintain all three tracks. (5) Track 1, as well as are tracks 2 and 3, is designated an industry track by the contract and all three serve the mill.

While some of the foregoing facts might, in connection with other factual circumstances, tend to indicate a degree of control by industry which, together with other facts, could be decisive of whether a certain railroad car was or was not being used on a certain railroad’s “line,” it seems to us that none of the suggested facts change the conclusion which is compelled under the undisputed facts in this case that the boxcar from which plaintiff fell was being used on defendant’s “line” at the time.

Track 1 was on defendant’s right of way, defendant owned the ties and the rails, had the duty to maintain that track, and the exclusive right to use it (when not unnecessarily interfering with the mill’s operation). That track did not cease to be an integral part of defendant’s “line” simply because mill employees moved boxcars of grain from the west end of track 1 to the shaker and thence to the east end of track 1. Under the facts of this case the act of the mill, through its employees, in moving the boxcars to and from the unloading point (all on defendant’s track) only assisted the defendant in the operation of cars on its line. It would have been no different, so far as concerns the present question, had the railroad crew delivered each car to the shaker track, waited while the mill employees unloaded each car, and then returned each car to the railroad yard. The fact that the railroad and' the mill followed an obviously mutually agreeable unloading routine on defendant’s track whereby mill employees assisted defendant in the operation of cars in interstate commerce by notifying the railroad to deliver cars of grain for unloading, by moving those boxcars, and by operating the hand brakes thereon, would not cause defendant’s track to cease to be a part of defendant’s “line.” Nor is the fact that the mill installed and maintained the shaker mechanism with the full knowledge and acquiescence of defendant of any significance on the question here. The shaker mechanism and the trackmobile used in placing the cars for unloading were simply parts of the agreed-upon unloading process and method conducted on defendant’s “line.” And the fact that the mill owned and used a trackmobile in that unloading process did not constitute the mill the operator of “a railroad system” or cause defendant’s track 1 to become a part of the mill’s “railroad line” during the time the mill employees moved the cars from the west end of track 1 to the shaker and thence to the east end of defendant’s track 1. The mill maintained no railroad crews and no brake inspectors. The fact that the three tracks were denominated “industry tracks” in the contract is not significant on the question here in view of the specific contract provisions heretofore noted. While the contract made track 1 usable by the mill for unloading cars of grain, its provisions as a whole were consistent only with the conclusion that track 1 remained an integral part and portion of defendant’s line.

Defendant relies on Patton v. Baltimore & O. R. Co., 3 Cir., 197 F.2d 732, and Risberg v. Duluth, M. & I. R. Ry. Co., 233 Minn. 396, 47 N.W.2d 113. In each of those cases an employee of a quarrying company was injured while railroad cars were being loaded or moved by quarry employees on tracks owned by the quarry company. In each case the court held that the Safety Appliance Act was not applicable because the cars were not being used on the respective railroad’s line. In each case the court treated the system of tracks on the industry’s property as though it constituted a private railroad system and decided each case as though the facts were that a common carrier had delivered cars to another private railroad system and thereafter, until returned, the cars were operated upon the “lines” of the private system. The Patton and Risberg cases are clearly distinguishable, and that fact is sufficient for present purposes, making it unnecessary to approve or disapprove the results in or the rationale of those cases. It is apparent in the present case that the mill company was not operating a private railroad system; and, furthermore, the facts in this case are that the injury occurred on defendant’s track on defendant’s right of way, and not on a track owned by an industry and part of a railroad system located on industry’s property.

In Rush v. Thompson, 356 Mo. 568, 202 S.W.2d 800, a railroad contracted with the government to operate trains over the government’s tracks from Bundy, Missouri, to Ft. Leonard Wood and return, to furnish freight and passenger service, and to perform maintenance on the government’s railroad facilities. Pursuant thereto, railroad employees spotted certain cars of coal on a spur track within the fort. Thereafter, the railroad employees had nothing further to do with those cars until they had been unloaded by government employees, when the empty cars were picked up and returned to Bundy by railroad crews. The unloading routine was this: The cars of coal left on the spur track by the railroad would be unloaded by placing them, one at a time, over a conveyor. When one car was almost empty, another full one would be brought within six or twelve feet of the end of the one being unloaded. When unloaded, the empty car would be rolled on down a grade and the loaded car moved over the conveyor. Sometimes the loaded car would be permitted to bump the empty to give it the start needed to roll it downhill, and sometimes a diesel engine was used to move the empty car. On the occasion in question plaintiff, a government employee, was engaged in unloading an almost empty car of coal. The next car to be unloaded (which had been delivered by the railroad three days before) was uncoupled from other standing cars of coal and given a start so it would roll north toward the conveyor. A government employee was on the loaded car to operate the hand brake. He intended to stop the loaded car before it reached the empty (in which plaintiff was working), but when he applied the brake it had no effect and the loaded car bumped the empty and injured plaintiff. The court held that at the time of plaintiff’s injury, the coal car was being used on defendant’s line within the meaning of the Safety Appliance Act. It is true, as pointed out by the Minnesota court in the Risberg case, supra, in attempting to distinguish the Rush case, that the railroad’s contract with the government made the government’s tracks a part of defendant’s “line” of railroad; but it is also true, and more relevant, that in so far as control is concerned, the government had far more control of the coal cars in the Rush case than the mill had of the grain cars in the present case.

In Monongahela Railway Co. v. Black, 4 Cir., 235 F.2d 406, four side tracks (which were downgrade from north to south) served a coal mine and passed under the mine’s loading tipple. After empty cars were placed on the north end of a sidetrack by the railroad, mine employees released the brakes and the cars rolled south to the tipple where they were stopped, loaded, and the brakes again released so that the cars coasted downhill to the south end of the sidetrack where the brakes were applied and the cars left standing until the railroad picked them up and carried them to their destinations. One of the coal company’s employees was riding a loaded car south from the tipple in order to apply the brake and stop the car before it collided with other loaded cars which were standing at the south end of the track. The brake was ineffective and the ensuing collision injured plaintiff who was a railroad conductor standing on the track checking numbers on the loaded cars preparatory to returning them to the main line. The court said at 235 F.2d 407: “Even in the broadest sense, it cannot he said in this case that the Coal Company operated an independent railway system. The Coal Company owned no engines or other rolling stock and it operated none. It did not and was not equipped to' inspect and repair freight cars; nor did appellant expect it to do so. The Coal Company was a customer of appellant whose sole contention with the cars was the loading of them. The placing of the cars for loading and the loading of them were all a part of the interstate movement of coal over appellant’s railway system. At some inconvenience, the cars might have been loaded on appellant’s main line, in which case there could he no doubt as to the application of the Act. We are not prepared to hold that a railroad is relieved of its responsibility to provide safe appliances when it places one of its cars on a side track for the sole purpose of having it loaded with freight to be hauled by it. In this case, the side tracks would have been utterly valueless without the railroad. As used, they operated to promote commerce over appellant’s line of railroad.” See also Callahan v. New York Cent. R. Co., Ohio Com.Pl.Court, Hamilton County, 8 Ohio Supp. 45.

We have said that the “undisputed” facts compelled the conclusion as a matter of law that the car was being hauled and used on defendant’s line at the time of plaintiff’s injury. Now, of course, simply because facts are undisputed does not eliminate the requirement in most instances that a jury must find those “undisputed” facts before the one having the burden of proof may recover. As we understand, defendant in this case does not on this appeal object to plaintiff’s verdict-directing instruction because it failed to hypothesize the facts which, if found, would (as we have held) compel the conclusion, as a matter of law, that the boxcar was on defendant’s line; defendant’s objection to the instruction is that it did not permit the jury to determine the ultimate question, viz., whether the car was being used on defendant’s line. We hold, therefore, that instruction 1 was not erroneous-for its failure to hypothesize that “the railroad car was being operated on defendant’s line,” for the reasons heretofore stated. What we have said with respect to defendant’s contention as to instruction 1 necessarily answers defendant’s (seemingly inconsistent) alternative contention that it was entitled to a directed verdict on the ground that, as a matter of law, the boxcar was not being used on defendant’s line.

Defendant contends that instruction 1 conflicts with instruction 2 in this: that the effect of instruction 1 was to authorize the jury to find for plaintiff if it found that plaintiff was injured as a proximate result of the failure of the hand brake to operate properly, i. e., the recovery was based on a violation of an absolute duty irrespective of fault; while instruction 2, a nonverdict-directing instruction, apparently intended to make it clear to the jury that it could find for plaintiff even though it found that “some portion or portions” of track 1 (shaker track?) belonged to the mill, provided however, said the instruction, that the jury found: that track 1 was on defendant’s right of way; that it was defendant’s duty to have constructed' and to maintain track 1; and that defend— ant had the right to use track 1 free of charge. We agree with defendant that any facts which the jury must have found prerequisite to a verdict for plaintiff should have been hypothesized in plaintiff's verdict-directing instruction, and we agree also that the instructions are in conflict in that instruction 1 authorizes a verdict without reference to whether the mill owned part of track 1 while instruction 2 told the jury that mill ownership of a part of track 1 was of no consequence only if it found certain hypothesized facts. We do not agree, however, that whatever conflict thereby existed was prejudicial to defendant; nor do we agree with defendant’s further contention that instruction 2 was confusing and misleading because of the proviso noted. Our conclusions in those respects are because: (1) Under our holding heretofore it was not essential to plaintiff’s recovery that the jury find the hypotheses in the proviso of instruction 2 and, consequently, their omission from instruction 1 was harmless and any conflict arising by reason of the unnecessary burden plaintiff assumed by the proviso of instruction 2 could not have prejudiced anyone other than plaintiff; and (2) inasmuch as instruction 1 contained hypotheses of the essential facts (as against the contentions on this appeal) entitling plaintiff to recover, it was immaterial whether the jury did or did not also find the facts hypothesized in the proviso of instruction 2, and thus, the confusion, if any, as to whether the jury needed to and did find only the facts hypothesized in instruction 1 or needed to and did find also the facts hypothesized in the proviso of instruction 2, could not have prejudiced defendant.

Defendant contends that plaintiff’s $65,000 judgment is excessive. Plaintiff was 47 at trial time in December 1960 and 45 when injured on November 20, 1958, when, as noted, he fell to the ground from a brake platform near the top of a boxcar. He sustained a severe injury to. his right lower leg. He suffered intense pain at the time of his fall and his right foot and ankle were bleeding. He was taken to a hospital where he was given medicine to relieve his pain, was treated for shock and his leg immobilized. The following morning he was examined by an orthopedic surgeon who found that plaintiff’s right leg was badly lacerated, the tissues thereof were badly mangled, and that plaintiff had suffered a comminuted compound fracture of both the tibia and the fibula of the right leg with the bone protruding from the wound and involving many bone fragments. The fracture of the tibia extended into the ankle joint; the fibula was fractured at the junction of its middle and lower third. Plaintiff was in surgery for five hours under a general anesthetic, during which he received blood transfusions. Two incisions, one on each side, were made, extending the full length of the leg. The leg was cleansed and six pins, each five thirty-seconds of an inch in diameter, were placed through the tibia so that the ends of the pins extended for two or three inches beyond the bone on each side. The pins began at a point above the fracture site and were placed at intervals down to the heel bone. The fracture was reduced, the torn ligaments sutured and placed in position, and a bar was clamped to. the ends of the pins on each side to hold the fracture securely. Plaintiff had lost skin as a result of the accident on the inner side and front part of his leg and developed a skin thrombosis which caused drainage and required four or five skin grafts at different times. The first skin graft was performed March 24 and the second on April 9, 1959. The grafts were surgical operations and were performed under anesthetics. While in the hospital, plaintiff developed a localized osteomyeli-tis, an infection of the bone, including the presence of some dead fragments of bone. The dead fragments were removed and the bone was scraped. The pins were removed from the leg on April 9, 1959, and a plaster-of-Paris cast applied. During the period of his hospitalization plaintiff’s right leg continued to hurt and he was given medicine for pain and sedatives for rest.

When plaintiff was discharged from the hospital at the end of six months he was directed to and did return for checkups every five to seven days. During those visits three new casts were applied. He re-entered the hospital on November 24, 1959, because of an inadequate bone union. A bone graft was performed which involved reopening the leg, removing some infected bone, positioning the bone, removing a piece of bone (4½-5 inches long and ½ inch in diameter) from the ilium and attaching it to the upper portion of the tibia by a pin and wedging it in a slot which had been made in the lower portion of the tibia. Fragments taken from the pelvic bone were ground into bone meal which was molded around the graft area to stimulate bone healing. Two more skin grafts were performed, one on January 14 and the other on March 11, 1960. One of them involved taking twenty-two pieces of skin from plaintiff’s left side and placing them on his leg. He was discharged from the hospital the second time on May 5, 1960, after having been hospitalized for more than five months. A new cast was applied at the time of discharge and plaintiff was using crutches. Since then the doctor had seen plaintiff once a week at the hospital. The cast was removed two months before trial. Less than a month prior to trial plaintiff began using a cane. Osteomyelitis again developed after plaintiff left the hospital the second time and it was certain at trial time that he would need to return to the hospital and undergo another operation to remove the dead fragments of bone and have the infected bone scraped. This would require future hospitalization of from two to six weeks.

Plaintiff was suffering pain in his right foot at trial time and noticed the pain particularly when he was on his feet for any length of time. At trial time he did not have the same use of his right foot as of his left; the right ankle joint and the area above it were stiff. Plaintiff had been unable to do any work since the accident.

Plaintiff will have future disability including considerable loss of motion of and stiffness in his right ankle. The doctor was of the opinion that it was problematical as to when plaintiff could return to any kind of work; the date depended upon how he recovered from the additional surgery, but it was certain that plaintiff could not return to work for at least six months following the trial. It was the doctor’s further opinion that if and when plaintiff returned, he should begin with light work until such time as his leg could tolerate a certain amount of abuse; but that whether plaintiff could ever return to even light work depended upon whether the bone infection could be stopped. The doctor was unable to state with certainty whether the bone infection could be arrested but he had “a reasonable idea” that it could be stopped based on the progress plaintiff had made because of the last bone graft. The doctor also said that when a man, 47 years of age, has had osteomyeli-tis for two years, he may have numerous attacks when the skin will break open and form a blister resulting in drainage; if such happens to plaintiff he will be prevented from working, depending on the amount of drainage. The enlargement of the ankle and loss of motion therein are permanent conditions. The smaller bone, the fibula, is still out of position but such has no effect on the use of the leg. It was the doctor’s prognosis that ultimately plaintiff’s leg will be usable provided the bone infection is stopped. The tibia is in good alignment and there is bone union which has been showing continued improvement, but the doctor made it clear that the residual osteomyelitis would have to be corrected if plaintiff was to have a usable leg.

Reasonable charges for medical service for which plaintiff was liable at trial time amounted to $4,000 and the doctor’s estimate of his charges for future surgery was $500 to $750. The total hospital bill to the time of trial, including outpatient charges, was $6,552.75. Plaintiff’s take-home pay at the time of his injury was $96 or $97 per week. Thus a jury reasonably could have found that plaintiff’s special damages, including estimated future medical and hospital expenses which it was reasonably certain plaintiff would incur and including loss of wages to trial time and for the minimum 6-months’ period thereafter, exceeded $25,000.

The foregoing résumé demonstrates that plaintiff suffered severe and painful injuries requiring a long course of extensive and painful surgery and care; that he has been hospitalized for eleven months and will be hospitalized in the future; that he has sustained special damages in the large amount of $25,000; that he has certainly sustained as permanent injuries the enlargement of and considerable loss of motion of his right ankle; that the jury reasonably could have believed that plaintiff will suffer not only future pain and disability but that future use of his leg sufficient to enable him to work and earn is extremely problematical, even though it was the doctor’s qualified opinion that eventually the bone infection would be eradicated; that, consequently, the amount of his future loss of earnings is somewhat speculative because it depends, of course, upon whether he can and, if so, when he can return to work. The jury was entitled to reason from the evidence that the period during which he would lose earnings would extend well beyond the suggested minimum period of six months following the trial.

Defendant cites these three cases to demonstrate the excessiveness of the judgment: Moss v. Mindlin’s, Inc., Mo., 301 S.W.2d 761, 773-775; Carnes v. Kansas City Southern Ry. Co., Mo., 328 S.W.2d 615, 622-624; and Bowyer v. Te-Co., Inc., Mo., 310 S.W.2d 892, 897-901. Plaintiff -counters with these two cases and relies on the Moss case cited by defendant to demonstrate that the judgment is not excessive: Tatum v. Gulf, M. & O. R. Co., 359 Mo. 709, 223 S.W.2d 418; Sanders v. Illinois Cent. R. Co., 364 Mo. 1010, 270 S.W.2d 731. We have examined and have considered those cases and others, including our recent case of Erbes v. Union Electric Co., Mo., 353 S.W.2d 659. Some of them, particularly the Moss, Carnes, and Erbes cases, have been helpful in our effort to arrive at a conclusion in this case.

Giving effect to the dates of and the holdings in those cases, having regard for the rule of reasonable uniformity, and taking into account the purchasing power of the dollar; duly considering plaintiff’s age, the nature and extent of his injuries, his extensive hospitalization, surgery, and the course of his treatment; giving attention to the fact that he sustained a monetary loss of $25,000; giving recognition to the fact that the jury and the trial judge reasonably could have believed that the prognosis as to plaintiff’s leg due to the recurrence of osteomyelitis was unfavorable and made the extent of the leg’s future use and the extent of plaintiff’s future earning capacity problematical, but justifying the conclusion that it was probable that plaintiff would have a substantial impairment of his future earning capacity; we are of the opinion that we would not be justified in holding that the trial court abused its discretion in limiting the amount.of the re-mittitur to $10,000.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge. EAGER, Judge DALTON, Judge

license: Public Domain

text:
    Frank J. MARSHALL, d/b/a Marshall’s Restaurant, et al., Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
    No. 48419.
    Supreme Court of Missouri, En Banc.
    April 9, 1962.

      John Phillip Ryan, City Counselor, Anthony P. Nugent, Jr., Associate Counselor, Harold L. Holliday, Associate Counselor, Kenneth L. Gottschall, Asst. City Counselor, Kansas City, for appellant, Kansas City, Mo.
    Bellemere & Bellemere, Kansas City, for respondents.
    Alvin Shapiro, Kansas City, Jack N. Fingersh, Kansas City, Sol Rabkin, Paul Hartman, New York City, Theodore Leslies, New York City, amici curiae.
    Thos. J. Neenan, City Counselor, David S. Hemenway, Asst. City Counselor, St. Louis, for City of St. Louis, amici curiae.
    William K. Hayden, Leonard S. Hughes, Jr., Kansas City, amicus curiae N.A.A.C.P.
   STORCKMAN, Judge.

This case involves the constitutionality of an ordinance of the city of Kansas City, Missouri, purporting to render it unlawful for restaurants, hotels and motels to refuse to serve or accommodate any person for any reason directly or indirectly relating to the race or color of such person. The plaintiffs, all engaged in the restaurant business, filed this action against the city of Kansas City seeking a declaration of the rights of the parties under the ordinance. The trial court sustained plaintiffs’ motion for judgment on the pleadings, held the ordinance unconstitutional, and permanently enjoined the defendant from enforcing it against the plaintiffs. The defendant appealed. In addition to the briefs filed by the parties, three briefs by amici curiae in support of the ordinance have been filed by leave.

Jurisdiction of the appeal is in the supreme court since the constitutionality of the municipal ordinance was within the issues of law tendered by the pleadings and decided by the trial court. Art. V, § 3, Constitution of Missouri 1945, V.A.M.S.; Kansas City v. Hammer, Mo., 347 S.W.2d 865.

On January 25, 1960, the plaintiffs filed their petition for a declaratory judgment under S.Ct. Rule 87.01 et seq., V.A.M.R. and Chapter 527, RSMo 1959, V.A.M.S., with a prayer that the ordinance be declared unconstitutional and void and that the defendant be enjoined from enforcing the ordinance. The defendant’s amended answer admitted the passage of the ordinance as set out in the exhibit attached to plaintiffs’ petition and asserted among other things that the ordinance was constitutional and enacted in the proper exercise of the defendant’s police power. The case was heard on plaintiffs’ motion for judgment on the pleadings and the defendant’s motion to dismiss and, in the alternative, for judgment on the pleadings. The judgment of the trial court rendered on June 20, 1960, overruled the defendant’s motion to dismiss and alternative motion for judgment on the pleadings and sustained plaintiffs’ motion for judgment on the pleadings and found the ordinance to be unconstitutional and void and not enforceable against the plaintiffs and permanently enjoined the defendant from enforcing the ordinance against the plaintiffs.

The defendant attacks the right of the plaintiffs to maintain the declaratory judgment action. The Declaratory Judgment Act specifically authorizes any person whose rights, status or other legal relations are affected by a municipal ordinance to have the validity of the ordinance determined and, even though the plaintiffs did not assert an intention to violate the ordinance, there was a justiciable controversy because uncertainty and insecurity existed with respect to the rights, status and other legal relations of the parties. Sections 527.020 and 527.120, RSMo 1959, V.A.M.S.; Sta-Whip Sales Co. v. City of St. Louis, Mo., 307 S.W.2d 495, 497-498 [1]; City of Nevada v. Welty, 356 Mo. 734, 203 S.W.2d 459, 460 [2]; Hudson v. Jones, Mo.App., 278 S.W.2d 799, 804 [5]. The trial court did not err in overruling defendant’s motion to dismiss plaintiffs’ petition.

The ordinance passed on January 15,1960, is as follows:

“AN ORDINANCE AMENDING CHAPTER 39 OF THE REVISED ORDINANCES OF KANSAS CITY, MISSOURI, 1956, ENTITLED 'OFFENSES GENERALLY AND REGULATION OF CERTAIN BUSINESSES,’ BY ENACTING ONE NEW SECTION TO BE ADDED THERETO TO BE KNOWN AS SECTION 39.261.

“BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

“Section A. That Chapter 39 of the Revised Ordinances of Kansas City, Missouri, 1956, entitled 'Offenses Generally and Regulation of Certain Businesses,’ is hereby amended by enacting one new section to be added thereto to be known as Section 39.261, said section to read as follows:

“Section 39.261. (a) It shall be unlawful for any owner, operator or manager of any hotel, motel or restaurant in Kansas City, •Missouri, which offers lodging or food to the public, or for any agent or employee of such owner or operator to refuse, withhold from or deny to any person, for any reason directly or indirectly relating to the race or color of such person, any of the accommodations, advantages, facilities or services of such hotel, motel or restaurant.

“(b) The terms ‘hotel’ and ‘motel,’ as used in this ordinance, shall include every establishment offering lodging to transient guests for compensation, and which is not a bona fide private club, but said terms shall not apply to any such establishment if the majority of occupants therein are permanent residents.

“(c) The term ‘restaurant,’ as used in this ordinance, shall include every cafe, cafeteria, coffee shop, sandwich shop, snack bar, supper club, soda fountain, soft drink or ice cream parlor, luncheonette, or other similar establishment which offers food for purchase and consumption on the premises, and which is not a bona fide private club, but the term ‘restaurant’ shall not apply to taverns and bars.

“(d) There is hereby established a fair public accommodations committee, to be composed of three members of the commission on human relations, appointed by the Mayor for terms of one year. The committee shall receive and investigate, with assistance from the staff of the city counselor and the said commission, all complaints of alleged violations of this ordinance. The committee shall endeavor to adjust such complaints by education, persuasion, and conciliation between the parties affected. If these efforts fail to resolve the problem promptly, and no later than thirty days after receiving a complaint, the committee shall refer the complaint to the city counselor for appropriate action.

“(e) Conviction of any violation of the provisions of this ordinance shall be deemed a misdemeanor punishable by a fine of not less than $25 and not more than $200 for each offense.

“(f) This section shall neither add to nor detract from any civil remedies now available to persons subjected to racial discrimination in hotels, motels and restaurants.”

In general the plaintiffs contend that they have no common-law obligation to serve every orderly person who presents himself such as innkeepers have, that they have a constitutional right to serve or reject customers for any reason they may choose, and that the defendant city is without authority to enact a valid ordinance prohibiting their discriminating against customers on account of race or color. Whether restaurateurs are under a common-law obligation to serve all proper persons alike does not seem to have been decided in this state, but there are cases from other states tending to support the plaintiffs’ contention. We may assume for the purpose of this case that the common-law obligation of innkeepers does not extend to restaurateurs.

A number of states have adopted statutes designed to secure to all persons equal rights and privileges in places where the public is generally served, accommodated or entertained. In some instances violation of such statutes is made a misdemeanor and others provide a forfeiture to the party aggrieved or give him a right of action to recover damages. “Laws containing such guaranties are generally known as ‘civil rights statutes,’ and their validity has been made the subject of frequent attack, based upon the contention that they violate constitutional provisions prohibiting the deprivation of life, liberty, or property without due process of law. Where the question has been raised, however, it has been held that such legislation is a proper exercise of the police power of the state.” 10 Am.Jur., Civil Rights, § 8, p. 902. Under some of these civil rights statutes, restaurants are among the businesses specifically forbidden to discriminate on account of race or color. 10 Am.Jur., Civil Rights, § 21, p. 914.

Such statutes are in harmony with the 14th Amendment to the Constitution of the United States, § 1, which provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Since the decision in “The Civil Rights Cases”, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 83S, it has generally been held that these provisions of the 14th Amendment are prohibitory as to the states only, that acts of Congress with respect thereto are not operative directly upon private persons in the several states and that states, though not required to do so, may pass laws consistent with and not in violation of the provisions of the 14th Amendment. Unquestionably this state under its police powers has the right to pass civil rights laws of this sort hut has not done so. The essential question in this case is how much of the state’s police power to regulate businesses and vocations at the local level can he and has been delegated to the defendant city.

Businesses, trades, occupations and vocations carried on within a municipal corporation are subject to reasonable regulation by the municipal corporation under its police power which may be delegated to the municipal corporation in express terms or by implication. Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838, 840 [4]; 7 McQuillin Municipal Corporations, 3d Ed., § 24.321, pp. 191-192. Generally the cases from other jurisdictions cited by the plaintiffs which hold that restaurateurs have the right to serve or not to serve persons as they may for any reason choose are damage actions and a prosecution under a statute or municipal ordinance of the kind before us was not involved. Younger v. Judah, 111 Mo. 303, 19 S.W. 1109, 16 L.R.A. 558, also a damage suit, held there was no actionable wrong in a theater operator having and enforcing rules for the separate seating of whites and negroes and stated, 19 S.W. 1109, 1110: “This state has enacted no law having any application to the present case. It does not undertake to say how theaters and other places of amusement shall be managed. As the state does not by itself or through the city of Kansas undertake to regulate theaters, and as the clauses of the fourteenth amendment before noted are prohibitory of state action only, they have nothing to do with the question in hand.” Emphasis added.

The defendant is a municipal corporation under a home rule charter as provided by Art. VI, § 19, of the Constitution of Missouri. As such it has the right to adopt and amend its charter and has such powers as are designated by its charter and which are consistent with the constitution and laws of the state. Article I, § 1, subd. § 57, of the Charter of Kansas City authorizes the city: “⅞ * * to license, tax and regulate any and every person, firm, association, or corporation engaged in the occupation, business, trade, pursuit, profession, calling, employment, vocation, avocation or practice of keeping, maintaining, conducting, managing, directing, operating, overseeing or superintending any * ⅛ * hotel * * * or * * * restaurant * * *.”

Other pertinent charter provisions are:

Article 1, § 1, subd. § 29: “To define, prohibit, abate, suppress, prevent or regulate all acts, practices, conduct, businesses, occupations, callings, trades, uses of property, and all other things whatsoever detrimental or liable to become detrimental to the health, morals, comfort, prosperity, safety, convenience or welfare of the inhabitants of the city, and to prescribe limits within which the same shall be prohibited.”

Article 1, § 1, subd. § 61: “To enact all needful ordinances for preserving order, securing persons or property from violence, danger and destruction, for protecting public and private property, for promoting the public health, safety, convenience, comfort, morals, prosperity and general interests and welfare, * * *.”

Article 1, § 3, of the charter provides: “The enumeration of any particular power granted in this charter shall not be construed to limit or impair any general grant of power in this charter contained.”

Thus Kansas City has the general power to define, prohibit and regulate acts, practices and conduct of businesses which are detrimental to the health, comfort, safety, convenience and welfare of its inhabitants as well as the specific power to license and regulate restaurants. The term “regulate” as used in a delegation of municipal powers is one of broad import; it means generally to prescribe the manner in which a thing licensed may be conducted. Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 100 [10]; Lauck v. Reis, 310 Mo. 184, 274 S.W. 827, 832; State ex rel. Wagner v. Fields, 218 Mo.App. 155, 263 S.W. 853, 857 [5]; Sluder v. St. Louis Transit Co., 189 Mo. 107, 88 S.W. 648, 651, 5 L.R.A.,N.S., 186.

A grant of power to regulate a business or vocation carries with it the authority on the part of the city to exercise the police power impliedly and necessarily vested in it in order to accomplish the municipal function delegated. Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838, 840 [3]; Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 488 [5] ; City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, 1003 [3]; Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70, 73 [8, 9]; Wilhoit v. City of Springfield, 237 Mo.App. 775, 171 S.W.2d 95, 100 [10]; McGill v. City of St. Joseph, 225 Mo.App. 1033, 38 S.W.2d 725, 729 [10]; Roper v. Greenspon, 272 Mo. 288, 198 S.W. 1107, 1109 [4], L.R.A.1918D, 126; Dillon, Municipal Corporations, 5th Ed., § 237, pp. 448-449.

The plaintiffs contend, however, that the enactment of a “civil rights” ordinance is beyond the police powers of a municipal corporation, citing 7 McQuillin, Municipal Corporations, 3d Ed., § 24.430, which states: “While a municipality must observe and itself not violate constitutional or statutory guaranties of equality of civil rights irrespective of race or social condition, insofar as these guaranties bind municipal governments, a municipal corporation ordinarily is without power to legislate upon, or extend, equality of civil rights. For example, a 'civil rights’ ordinance relating to restaurants has been held to be beyond municipal power.” Another section of the same work throws additional light upon what is meant by a civil rights ordinance as used in § 24.430. 6 McQuillin, Municipal Corporations, 3d Ed., § 22, p. 281, states: “The well-established general rule is that a municipal corporation cannot create by ordinance a right of action between third persons or enlarge the common law or statutory duty or liability of citizens among themselves. Accordingly, an ordinance designed as a ‘civil rights’ measure is void.” Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773, is cited as the sole authority in support of McQuillin’s statement in these two sections that a civil rights measure or ordinance is beyond municipal power and void. Nance was an action to recover damages for defendant’s refusal to serve food to plaintiff. The ordinance of Salt Lake City provided in substance that “no orderly person shall be refused admission” to a restaurant during the time it was open for business. Whether the ordinance purported to create a civil liability for damages does not appear from the opinion. Without defining the kind of “civil rights” measure intended, the Utah court held that there was no statutory or constitutional authority for municipalities “to legislate in regard to civil rights.” 150 P.2d at page 774, column 2. It further held that the duties and liabilities placed upon inns and innkeepers did not .apply to restaurants and concluded that the complaint did not state a cause of action for damages because the defendant had breached no duty owed to the plaintiff under the common law, by statute or by valid city ordinance. If the Salt Lake City ordinance undertook to impose a liability for damages, it was broader in scope than the Kansas City ordinance which expressly disavows any intent or purpose to create an action for damages by expressly providing that the ordinance “shall neither add to nor detract from any civil remedies now available to persons subjected to racial discrimination”. Paragraph (f) of § 39.261. We regard the Nance case as authority only for the proposition that a municipal corporation absent statutory or constitutional authority cannot by ordinance create a cause of action for damages for denial of “civil rights”.

The pocket part annotation to § 24.430 cites a more recent case, apparently considered contrary to Nance; it is District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480. The Thompson case was a prosecution for violation of an enactment by the legislative assembly of the District which provided a fine and forfeiture of license for the refusal of restaurateurs, among others, to refuse to serve a person on account of race, color, or previous condition of servitude. The District government was likened to a municipal corporation and the grant of police power was held to be broad enough and sufficient to authorize the adoption of a law prohibiting discriminations in the service at restaurants. In the course of the opinion in the Thompson case, the United States Supreme Court stated: “And certainly so far as the Federal Constitution is concerned there is no doubt that legislation which prohibits discrimination on the basis of race in the use of facilities serving a public function is within the police power of the states.” 73 S.Ct. 1012. With respect to the nature of such an antidiscrimination law, the court further stated: “The laws which require equal service to all who eat in restaurants in the District are as local in character as laws regulating public health, schools, streets, and parks.” 73 S.Ct. 1014. These are the only two cases touching directly on the powers of a municipal corporation to enact a “civil rights” ordinance. We consider the Thompson case to be more persuasive than the Nance case especially since the type of ordinance is shown to be essentially the same as the one involved in the case at bar.

A municipal corporation has been referred to as a miniature state within its locality and as an instrumentality of the state established for the convenient administration of local government. State ex inf. Ellis ex rel. Patterson v. Ferguson, 333 Mo. 1177, 65 S.W.2d 97, 99 [9], cert. den. 291 U.S. 682, 54 S.Ct. 559, 78 L.Ed. 1070; District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 1012, 97 L.Ed. 1480.

We are constrained to hold that this municipal ordinance, designed to prevent discrimination by reason of race or color in restaurants, bears a substantial and reasonable relation to the specific grant of power to regulate restaurants and to the health, comfort, safety, convenience and welfare of the inhabitants of the city and is fairly referable to the police power of the municipal corporation. Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 490 [10]; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 636-637 [8]; City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, 1003 [3]; District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480; City of Springfield v. Mecum, Mo.App., 320 S.W.2d 742, 748 [10],

State ex rel. Carpenter v. City of St. Louis, 318 Mo. 870, 2 S.W.2d 713, 722 [13], has adopted this definition of police power as it now appears in 16 C.J.S. Constitutional Law § 174, p. 889: “Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals, and the general welfare of society, within constitutional limits.” The police power is an essential attribute of government without which constitutional guaranties of personal and property rights would be ineffective and meaningless. In their very nature, neither the police power nor constitutional limitations can be absolute; they are necessarily relative and dependent in the complexities of modern life. 5 Mc-Quillin, Municipal Corporations, 3d Ed., § 19.22, p. 531; Ex parte Smith, 231 Mo. 111, 132 S.W. 607, 609 [3].

In support of their contention that the ordinance violates their constitutional rights to contract with whom they choose in regard to their restaurant services, the plaintiffs cite Gideon-Anderson Lumber Co. v. Hayes, 348 Mo. 1085, 156 S.W.2d 898, which holds at p. 899 [2, 3] : “It is fundamental that liberty to contract is one of the rights protected by the due process clause. * * * But it is equally well established that the right is not absolute and universal. As stated broadly in the texts cited below, the state may restrict the right under the police power for the general welfare, and prescribe the manner in which contracts shall be made. However such restrictions must not be arbitrary or unreasonable and can be justified only by conditions calling for their imposition. * * * ” The case does not support the plaintiffs’ contention that the right to contract is an absolute one. It recognizes that the state may under its police power impose reasonable restrictions on the right.

It has not been demonstrated that the ordinance in question is an arbitrary or unreasonable exercise of the police power of the city; hence the ordinance is not unconstitutional as being in violation of the plaintiffs’ asserted rights under Art. I, §§ 2 and 10 of the Missouri Constitution to choose and contract discriminately with their customers on the basis of race and color. Readey v. St. Louis County Water Co., Mo., 352 S.W.2d 622 [2, 4]; Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 488 [1, 2]; Thompson v. St. Louis-San Francisco Ry. Co., 334 Mo. 958, 69 S.W.2d 936, 942 [7, 8]; Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 636-637 [8]; City of St. Louis v. Southcombe, 320 Mo. 865, 8 S.W.2d 1001, 1003 [4],

The plaintiffs further contend that the ordinance is a special law in violation of Art. Ill, § 40, of the Missouri Constitution, because it does not include other businesses such as clothiers whose services the plaintiffs contend are as necessary as their own. As a general rule, it is not what a law includes that makes it unconstitutional as a special law, but what it excludes, and a law is not special in the constitutional sense if it applies alike to all of a given class provided the classification thus made is not arbitrary or without a reasonable basis. It is common knowledge that “food and shelter” or “food and lodging” are among man’s basic needs and are often provided by the same establishment. They are often the subject of legislation either singly or in combination. There was no showing that any other business had been unreasonably or arbitrarily excluded from the Act. In these circumstances the businesses embraced by the ordinance do not constitute an improper classification and it is not a special law in violation of the constitutional provision. The Borden Co. v. Thomason, Mo., 353 S.W.2d 735 [5, 33-36]; ABC Liquidators, Inc. v. Kansas City, Mo., 322 S.W.2d 876, 885; Thompson v. St. Louis-San Francisco Ry. Co., 334 Mo. 958, 69 S.W.2d 936, 943 [9]; City of Springfield v. Stevens, 358 Mo. 699, 216 S.W.2d 450.

The plaintiffs further assert that the ordinance is illegal and void in that it attempts to establish a misdemeanor which is an offense beyond the municipal powers of the city. The nature or classification of the ordinance is not determined by its designation but rather by its content and character. The term misdemeanor is defined by statute as including “every offense punishable only by fine or imprisonment in a county jail, or both”. Section 556.040, RSMo 1959, V.A.M.S. The penalty of the ordinance is a fine only. Its character, content and form is that of a city ordinance. It is not rendered invalid by reason of being referred to as a misdemean- or.

We have considered all of plaintiffs’ attacks upon the validity of the ordinance and •find them to be without merit. The court •erred in holding and declaring that the ordinance was unconstitutional and invalid.

The judgment is reversed and the cause remanded with directions to enter a declaratory judgment not inconsistent with views expressed in this opinion.

■WESTHUES, C. J., and HOLLINGS-WORTH and HYDE, JJ., concur.

EAGER, J., dissents in separate opinion filed.

LEEDY, J., dissents and concurs in the dissenting opinion of EAGER, J.

DALTON, J., dissents in separate opinion filed.

EAGER, Judge

(dissenting).

I dissent for the reason that I do not think the City of Kansas City has the authority under its charter to enact this legislation. The authority must come from the state, either by a specific legislative delegation of power, or from express or fairly implied grants of power in the City’s charter. Tietjens v. City of St. Louis, 359 Mo. 439, 222 S.W.2d 70. We are not concerned here with the state’s authority to act in the premises. But it is interesting to note, from a practical standpoint, that the 1961 Missouri Legislature declined to enact an all-inclusive civil rights bill (HB 421), and that it was defeated on the floor of the House. The ■general welfare clause of the City’s charter “may not be construed so as to enlarge the powers of a city further than is necessary to carry into effect the specific grants of power.” Tietjens, supra, loe. cit. 73. Thus, the general welfare clause does not support the ordinance unless the power to enact is fairly comprehended in the powers -specifically granted. We note here that the plaintiffs are operators of private restaurants, none of which are in any way connected with any governmental facility or means of transportation. While the ordinance is applicable to hotels and motels, no such operations are involved in this case. The principal opinion here assumes that the “common-law obligation of innkeepers does not extend to restaurateurs,” and we shall do likewise. Consequently, there must be a valid and proper exercise of the City’s police power in order to justify an interference with plaintiffs’ private and basic rights of freedom of contract.

The authority to enact this ordinance is primarily claimed under the charter provisions permitting the City “ * * * to license, tax and regulate any and every person” engaged in various occupations and business, including restaurants (Art. 1, § 1, subd. § 57) ; and to “regulate all acts, * * businesses * * * trades * * * detrimental * * * to the health, morals, comfort, prosperity, safety, convenience or welfare of the inhabitants * * (Art. 1, § 1, subd. § 29.)

I do not believe that this ordinance constitutes a true and bona fide “regulation” of the restaurant business, within the meaning of and for the purposes announced in the above sections of the charter. It is actually an enactment of the type often described as “civil rights” legislation, though presented here in the guise of a regulation. As such, it is not a valid exercise of the City’s police power. It has nothing to do with matters of health, purity of food or drink, hours of operation, morals, or any of the ordinary things inherent in the normal operation of such a business. And, if this is truly a regulation, why should the regulatory function stop with the three categories named in the ordinance, when the same supposed necessity of regulation would apply just as well to many others ? Generally, a municipality has no power to enact “civil rights” ordinances. 7 McQuillin, Municipal Corporations, 3rd Ed., § 24.430. While 6 Mc-Quillin, 3rd Ed., § 22 is quoted in the principal opinion as supposedly qualifying the principle somewhat, I do not so interpret it, for it seems merely to state a supplementary rule.

There has been little adjudicated authority on this question. The case of Nance v. Mayflower Tavern, 106 Utah 517, 150 P.2d 773, fully supports the views expressed in this opinion, as I understand it. The principal opinion here makes a distinction based upon the provisions of the Kansas City ordinance disclaiming the intent to create any right of action for damages. It would seem chat such an ordinance, with or without a right to damages, comes within the clearly announced rule of invalidity (from mere lack of authority) expressed by the Utah Court.

In District of Columbia v. John R. Thompson Co., Inc., 346 U.S. 100, 73 S.Ct. 1007, 97 L.Ed. 1480, the court upheld an Act of the Legislative Assembly of the District, which had been enacted as post Civil War legislation in 1872 and 1873, making it a crime to discriminate against or to refuse service in restaurants, hotels, ice-cream saloons, barber shops or bath houses, to any person on account of race, color, or “previous condition of servitude.” Congress had much earlier granted legislative powers to the Legislative Assembly. In the course of the opinion the court stated that this grant of power was “substantially identical with the grant of legislative power to territorial governments * * The court noted also that legislation by states against discrimination was not violative of the federal constitution, and that the scope of the legislative powers so delegated to the District was “as broad as the police power of a state” (346 U.S. loc. cit. 110, 73 S.Ct. loe. cit. 1013). While the court later referred to the acts as “local in character,” we must remember just what the particular locality really was. In so far as the court may have implied that the act was a “regulation,” if so, it was construing federal law in the light of its own decisions. We construe for ourselves our own laws and the grants of power to our municipalities, so long as there is no infringement upon the federal functions.

Concluding, I would hold that this ordinance bears no reasonable and substantial relation to the powers granted to the city in its charter, and that it is therefore not a valid exercise of the police power. I would affirm the judgment, not for the reason that the ordinance is unconstitutional but because the City had no power to enact it.

DALTON, Judge

(dissenting).

It is with great regret that I find it necessary to dissent from the conclusions reached i'n the majority opinion in this case, because I recognize that the sole purpose of the ordinance in question is to prevent discrimination between citizens on account of race or color, but if the ordinance, regardless of its meritorious purpose, has been enacted in such a manner that its provisions are so limited in its application as to make it a limited, local, or special law where a general law could have been made applicable, the ordinance is void under Art. Ill, Section 40(30), of the Constitution of Missouri 1945, and it is the duty of this court to apply that provision of the Constitution, regardless of the good faith of the sponsors of the enactment, or the meritorious purpose of the ordinance.

The constitutional provision provides: “The general assembly shall not pass cmy local or special law * * * (30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on the subject.” (Italics ours.) This constitutional provision also applies to municipal corporations under home rule charters, such as Kansas City, Missouri, since Art. VI, Section 19 of the Constitution of Missouri provides that such charters shall be “consistent with and subject to the constitution and laws of the state.” The ordinance in question must comply with the mentioned constitutional provision. McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815, 816; Laclede Power & Light Co. v. City of St. Louis, 353 Mo. 67, 182 S.W.2d 70, 72(1); City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1, 3(1) ; Ex parte Lerner, 281 Mo. 18, 218 S.W. 331, 333; City of St. Louis v. Atlantic Quarry & Construction Co., 244 Mo. 479, 488, 148 S.W. 948.

In the last cited case the court said: “It is illogical to suppose that, in matters affecting the security of the citizen with respect to his person and property, the municipal corporation, in its legislative capacity, should not be subject to the same restrictions as the Legislature from which it derives its powers. This question also presented itself to the people in their capacity of makers of the organic law, so that, in authorizing the charter which we are now considering,’ they provided * * * that it ‘shall be in harmony with and subject to the Constitution and laws of the state.’ The Constitution is largely devoted to the restriction of the legislative power in the granting of special privileges, and in the enactment of special and arbitrary legislation affecting the rights of the people, and we cannot harmonize with these restrictions an unlimited power to grant special privileges, and by special legislative act to discriminate between individuals of a municipality with respect to the use of their property and the conduct of their business.”

We fully agree with the majority opinion insofar as it holds that: “Businesses, trades, occupations and vocations carried on within a municipal corporation are subject to reasonable regulation by the municipal corporation under its police power which may be delegated to the municipal corporation in express terms or by implication.”

We further fully recognize the portions of the Charter of Kansas City, quoted in the opinion, to wit: Article 1, Sec. 1, subd. 29; Article 1, Sec. 1, subd. 57; Article 1, sec. 1, subd. 61 and Article 1, Sec. 3. We also agree with certain other portions of the opinion, to wit: “ * * * Kansas City has the general power to define, prohibit and regulate acts, practices and conduct of businesses which are detrimental to the health, comfort, safety, convenience and welfare of its inhabitants as well as the specific power to license and regulate restaurants. The term ‘regulate’ as used in a delegation of municipal powers is one of broad import; it means generally to prescribe the manner in which a thing licensed may be conducted. * * * A grant of power to regulate a business or vocation carries with it the authority on the part of the city to exercise the police power impliedly and necessarily vested in it in order to accomplish the municipal function delegated * * and a “municipal ordinance, designed to prevent discrimination by reason of race or color in restaurants, bears a substantial and reasonable relation to the specific grant of power to regulate restaurants and to the health, comfort, safety, convenience and welfare of the inhabitants, of the city and is fairly referable to the police power of the municipal corporation” ; and further: “ ‘Police power is the exercise of the sovereign right of a government to promote order, safety, health, morals, and the general welfare of society, within constitutional limits.’ The police power is an essential attribute of government without which constitutional guaranties of personal and property rights would be ineffective and meaningless. In their very nature, neither the police power nor constitutional limitations can be absolute; they are necessarily relative and dependent in the complexities of modern life.”

Nor do we find the ordinance in question to be “an arbitrary or unreasonable exercise of the police power of the city; hence the ordinance is not unconstitutional as being in violation of the plaintiffs’ asserted rights under Art. I, Sections 2 and 10 of the Missouri Constitution to choose and contract discriminately with their customers on the basis of race and color.” Our objection to the opinion is on the sole ground that the ordinance violates the mentioned specific constitutional provision.

The majority opinion quotes from Article 1, Sec. 1, subd. 57 of the Charter of Kansas City, which authorizes the city “ * * * to license, tax and regulate any and every person, firm, association, or corporation engaged in the occupation, business, trade, pursuit, profession, calling, employment, vocation, avocation or practice of keeping, maintaining, ■conducting, managing, directing, operating, overseeing or superintending any * * * hotel * * * or * * * restaurant * * However, subd. 57 names dozens of other occupations, businesses, trades, etcetra, as to which the city possesses the same powers, such as: “Any academy, * * * airdrome, * * * amusement, amusement park, * * * apartment house, * * * athletic exhibition or contest, * * * ball alley, barbecue stand, barber shop, * * * bath house, * * * beer house, beauty parlor, * * * billiard parlor, boarding house, * * * boxing contest, * * * cattle show, college, * * * concert, * * * correspondence schools or agency, * * * dance house, dancing school or hall, * * * dog show, dramatic school, * * * dram shop, educational institute, * * * hai.r-dressing establishment, * * moving-picture exhibition, * * * nursery, * * * office building, * * * passenger station, * * * piano studio, pin alley, * * * pool room, * * * public garage, * * * saloon, * * * shooting gallery, shooting rack, show, skating rink, * * * sparring exhibition, * * * theatre, * * * theatrical or other exhibition; tippling house, * * * trade school or college, * * * turkish bath, * * * wine or beer garden, ⅛ * *" and many other businesses, trades and professions.

The same subdivision of Section 1, Article 1 further authorizes the city to license, tax and regulate other trades, businesses and callings, as follows: “ * * * and to license, tax and regulate all occupations, businesses, trades, professions, callings, employments, vocations, avocations or pursuits, and other institutions, establishments, articles, utilities and commodities; and things not heretofore enumerated of whatsoever name or character, alike or unlike, * * * >J

From the foregoing list of named and unnamed businesses, the city has selected hotels, motels and restaurants and makes it unlawful for them to discriminate on account of race or color, but discrimination as to race or color is not prohibited in any other trade, business or calling. In fact, on the face of the ordinance itself it appears that by Section 39.261 subd. (c) discrimination on account of race or color is prohibited in coffee shops, soda fountains, soft-drink and ice-cream parlors, but not in “taverns or bars.” This is an arbitrary and unreasonable discrimination in view of the purpose of the ordinance.

From the face of the ordinance it appears that, considering the purpose of the ordinance and the evils sought to be corrected thereby, the city has arbitrarily and unreasonably selected hotels, motels and restaurants from the entire list of businesses, etcetra, over which it has the same control and has enacted a special and local law where a general could have been made applicable. It clearly appears that the purpose of this ordinance is not to promote, regulate or control the hotel, motel or restaurant businesses as such, or in any respect except with reference to race or color discriminations. The ordinance is not for the protection or advancement of the named businesses and the evils sought to be corrected by the ordinance are not limited or special to hotels, motels and restaurants. It is common knowledge that many other businesses unfairly discriminate on account of race or color. A city ordinance whose sole purpose is to prevent discrimination on account of race or color cannot be limited to one local or special field where a general law could be made applicable. All citizens, regardless of race or color, are entitled to equal treatment in all business establishments open to the public and all are entitled to the benefits enjoyed by other members of the public generally. Any local, special or limited ordinance which purports to pro-Mbit discrimination on account of race or color as to “accommodations, advantages, facilities or services” in one small field is unconstitutional and void.

In McKaig v. Kansas City, supra, 256 S.W.2d 815, 817(7), this court held that a city ordinance prohibiting automobile dealers from keeping their places of business open on Sundays and six national holidays was unconstitutional as a “special law” excluding from its operation all persons engaged in businesses of selling all other commodities and merchandise, except automobiles, and without any reasonable basis for such distinction.

After pointing out that “the laws of this state that prohibit work on Sunday * * are based upon a sound public policy which recognizes that rest one day in seven is for the general' good of mankind,” the court further said: “The ordinance before us excludes all persons engaged in the business of selling all commodities and all merchandise except automobiles. In other words, it excludes all persons engaged in the business of selling television sets, radios, phonographs, refrigerators, washing machines, electric and gas ranges and heaters, trailers, golf equipment, furniture, hardware, clothing and many other articles. * * * There is no reasonable basis for singling out those people who are engaged in the business of selling automobiles and excluding those people who sell the above enumerated articles of merchandise who are permitted to keep open their places of business on Sundays and the six named holidays.’1 (Italics ours.) (256 S.W.2d 815, S17(7).)

The ordinance in question now before us proceeds on exactly the same basis as the ordinance in the McKaig case, since the city council has selected hotels, motels and restaurants for the application of an ordinance making it illegal for them to discriminate against members of the public on account of race or color, while excluding all other businesses, professions or callings where such discriminations are made. “The test of a special law is the appropriateness of its provisions to the objects that it excludes. It is not, therefore, what a law includes, that makes it special, but what it excludes.” (Italics ours.) Reals v. Courson, 349 Mo. 1193, 164 S.W.2d 306, 307; McKaig v. Kansas City, supra, 815, 817(5). Considering the subject matter of the ordinance and the evils sought to be corrected thereby, a general ordinance could have been made applicable and it was clearly unreasonable and arbitrary to exclude all other businesses where discrimina-tions on account of race or color is the common practice.

In City of Springfield v. Smith, supra, 19 S.W.2d 1, a city ordinance prohibited on Sunday only the keeping “open of any theatre, playhouse, or any other place where theatrical performances, vaudeville shows or moving picture exhibitions are given or conducted,” or conducting or taking part in any such performance, show or exhibition. This court pointed out that omitted from the ordinance was any prohibition against “the keeping open and operation of such public amusement businesses as concerts, circuses, amusement businesses as concerts, circuses, amusement parks, public halls, sparring exhibitions, wrestling exhibitions, and like public amusement businesses * * The court said: “Each and all of the public amusement businesses above enumerated, but omitted from the operation of the ordinance, affect the permissible subject-matter of this legislation in very much the same way. The keeping open and operation of each requires similar labor activities, each furnishes to the public for a consideration an opportunity for excitement and entertainment, and each is sufficiently attractive to induce large portions of the public to attend, and each is fairly and reasonably comparable with theaters, vaudeville shows, and moving picture exhibitions in their possibilities of disturbing a day of rest. We find no reason which would justify the regulation of one in this regard which will also not apply with equal force to the others. They all appear to be similarly situated with reference to the permissible subject-matter sought to be dealt with by the ordinance.” (Italics ours.)

The court further said: “We are not here so much concerned with determining how many activities which threaten to disturb the subject-matter sought to be protected could or might be included in the one piece of legislation, but our problem of instant concern is whether some have been omitted from the ordinance now involved which it would be clearly and unreasonable and arbitrary to omit.” (Italics ours.) (19 S.W.2d 1, 4, 5.)

In Ex parte Lerner, supra, 218 S.W. 331, 333, in a case where a city ordinance prohibited solicitation of all prospective purchasers while such purchasers were on the street or sidewalk in front of the place of business of a competitor of the soliciting person, but which ordinance did not prohibit the general personal solicitation of persons for business purposes upon the streets and sidewalks was held void as being special in its terms and local in its application. The court said: “Instead of prohibiting the general personal solicitation of persons for business purposes upon the streets and sidewalks of the city, its application is limited to the prohibition of such solicitations to persons in like lines of trade in front of the store or place of business of a competitor. Such a classification is neither general in its terms as to the persons to whom it is intended to apply, or to the streets the use of which is attempted to be regulated. Certainly, if it be an ill requiring legislative supervision to regulate the solicitation of business upon the streets and highways within the limits prescribed in the ordinance, then it must follow that it is equally an ill to solicit business elsewhere upon any of the thoroughfares of commercial activity in the city. The ordinance therefore cannot be otherwise construed than as special in its terms and local in its application, contravening the constitutional provision that ‘where a general law can be made applicable, no local or special law shall be enacted’, * * * which salutary rule regulating legislation we have shown applies with equal force to an ordinance as well as a state law.”

Since I consider the ordinance in question to be void in view of Art. Ill, Section 40(30) Constitution of Missouri, I would affirm the judgment.


author: BARRETT, Commissioner.

text:
    Herman ANDREWS, Plaintiff-Appellant, v. ROBINSON STEEL CONSTRUCTION COMPANY, a Corporation, Defendant-Respondent. ROBINSON STEEL CONSTRUCTION COMPANY, a Corporation, Third-Party Plaintiff-Respondent. v. HARTMAN-WALSH PAINTING COMPANY, a Corporation, Third-Party Defendant-Respondent.
    No. 48723.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.
    Motions for Rehearing or for Transfer to Court en Banc Denied April 9, 1962.

      Glennon T. Moran, Hilmar L. Lax, St. Louis, and George Moran, for appellant.
    Luke, Cunliff & Wilson and Robert R. Schwarz, St. Louis, for respondent Hartman-Walsh.
    Evans & Dixon and William W. Evans, St. Louis, for respondent Robinson Steel Const. Co.
   BARRETT, Commissioner.

Robinson Steel Construction Company was the general contractor in repairing the United States Army Engineer Depot in Granite City, Illinois, and the Hartman-Walsh Painting Company was its subcontractor, engaged to paint the interior of the depot. The plaintiff, Herman Andrews, was a painter employed by Hartman-Walsh Company. On July 17, 1957, while painting the ceiling, Andrews fell from a scaffold and was injured. The parties have stipulated that at the time of Andrews’ injury Hartman-Walsh had insured and guaranteed its liability to pay compensation to its employees under the workmen’s compensation law of Illinois. To recover damages for his injuries resulting from the fall, Andrews has instituted this action under the Illinois Scaffold Act (1 I11.R.S.1959, Ch. 48, Secs. 60, 69) against Robinson Steel Construction Company, the general contractor. In his petition Andrews has alleged that the general contractor willfully violated the Illinois Scaffold Act and has therefore incurred a liability to him. The respondent does not now object to the allegations of the petition with respect to its liability under the scaffold act, and we are not concerned with whether the petition states a cause of action in this respect and neither are we concerned with whether the proof will be sufficient, for the purposes of this opinion it is assumed that the petition is sufficient in this particular regard. Kennerly v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785; Miller v. B. F. Goodrich Co., 7 Cir., 295 F.2d 667. Hartman-Walsh Painting Company is a third-party defendant-respondent and Robinson Steel states that its third-party claim is one of indemnity only, ancillary to the plaintiff’s claim, and that the dismissal of the plaintiff’s claim necessarily disposes of all causes and controversies as far as this court is now concerned.

The trial court, upon motion, dismissed the plaintiff’s petition for the reason that Robinson Steel Construction Company was Andrews’ “statutory employer” under the law of Illinois and therefore his only relief was under the workmen’s compensation law. The controversy and question for decision is precisely pointed up by reference to the respondent’s brief. Robinson Steel contends that Andrews was its "statutory employee,” or, as the general contractor, that it was his “statutory employer” and therefore exempt from statutory liability to Andrews under the scaffold act. In support of its contention the respondent argues, since both it and Andrews were engaged in the construction business, that they were automatically under the Illinois Workmen’s Compensation Act. 1 Ill. R.S.1959, Ch. 48, Sec. 138.3. In this connection it is said that the Illinois compensation law is the exclusive remedy of an injured employee against his employer “even though the employer under the Act is not liable for the payment of compensation.” And, furthermore, it is said that by “mandatory definition” Robinson Steel is plaintiff’s employer with the consequence that his exclusive remedy is the Illinois compensation law.

In this background it is obvious that the question for decision is whether a statutory employer is a third person, “some person other than his employer,” within the meaning of the workmen’s compensation law of Illinois and therefore liable in damages to the employee of a subcontractor (1 Ill.R.S. 1959, Ch. 48, Sec. 138.5(b)) injured by reason of the general contractor’s violation of the scaffold act. The question is further complicated in that the Illinois compensation law has been amended several times, particularly in 1951, and the Illinois courts have not recently considered this particular problem. Thus it is not as if we were more or less authoritatively construing our own statutes, here the court is confronted with the unrewarding task of unauthorita-tively interpreting the Illinois statutes.

In further background but persuasively bearing upon the immediate question, it may be noted that two types of statutes have been employed in the compensation laws of at least forty-one states: one, those which merely require the general contractor to see that his subcontractor carries compensation insurance, and, two, those which directly impose liability on the general contractor for injuries to employees of his subcontractor. The latter type statutes have generally been construed as creating an exclusive remedy, precluding the maintenance of either a statutory or common-law action against the general contractor, even though rights against third persons are preserved in the acts. On the other hand, the type one statutes are generally construed in favor of the retention of common-law or other rights of subcontractors’ employees against the general contractor, at least where the general contractor is not in fact liable under the act. Annotations 151 A.L.R. 1359, 166 A.L.R. 813. “The distinctions to be drawn between the statutes lie rather in the nature of the obligation which is placed upon the general contractor by the statutes of various jurisdictions. Where the general contractor is subjected to a primary obligation to provide compensation for the employees of a subcontractor, the courts have generally denied common law actions by the employees of the subcontractor against the general contractor on the ground that he is by statute the ‘employer’ and therefore immune from liability. On the other hand, where the statute imposes only a secondary obligation on the general contractor, that of providing compensation in the event that the subcontractor fails to do so or is not subject to the compensation law, the tendency is to find that a general contractor who has not in fact been held liable for compensation is a third person against whom an action for damages may be brought.” McCoid, “The Third Person In The Compensation Picture,” 37 Tex. L.R. 389, 407-408; 108 Pa.L.R. 155. Professor Larson summarizes the lines of cases under the various statutes in this way: “But if the facts necessary to his liability are not complete, as when the sub-contractor is insured, most courts have held that the general contractor remains a third party subject to common law liability. These cases test the general contractor’s status by his actual relation to the sub-contractor’s employee on the given facts, not by his potential liability if, for example, the subcontractor failed to carry insurance.” 2 Larson, Workmen’s Compensation Law, Sec. 72.31, pp. 175-176.

The parties rely on the two lines of cases from other jurisdictions, the respondent lists the cases under the type two statutes, while the appellant lists the cases under the type one statutes. There is no point to listing or attempting an analysis of the cases here, they are collected in the cited texts, annotations and law review articles. The rationale of the cases is plain enough, there are two points of view, however, (37 Tex.L. R., l. c. 444-454), and Larson persuasively criticizes the retention of liability theory even under the conditional type statute. 2 Larson, Workmen’s Compensation Law, pp. 176-177. See also the note, inspired in part by the leading case of Sweezey v. Arc Electric Const. Co., 295 N.Y. 306, 67 N.E.2d 369, 166 A.L.R. 809, in 39 Va.L.R. 951, 958.

In so far as material here the Illinois act defines an “employer,” and as to one in the relationship of Robinson Steel, a general contractor, provides that “he shall be liable to pay compensation to the employees of any such contractor or sub-contractor unless such contractor or sub-contractor shall have insured * * * or guaranteed his liability to pay such compensation.” 1 Ill. R.S.1959, Ch. 48, Sec. 138.1(a) 3. While this particular subparagraph was a separate section (section 31) in the compensation law prior to 1951 and was not contained in the definition of an “employer,” and may now have the effect of automatically subjecting a general contractor to the act, the language is plainly that of the type one statutes and imposes a conditional or secondary liability. Annotations 151 A.L.R. 1359, 166 A.L.R. 813; 37 Tex.L.R., l. c. 407-408. Here the subcontractor has insured or guaranteed its liability under the compensation law to its employees, including Andrews, and Robinson Steel is not in point of fact liable to the employees of its subcontractor, Hartman-Walsh, for benefits under the compensation law. Since the subcontractor is insured the facts necessary to Robinson Steel’s liability for compensation are not complete and there is no “actual relation to the sub-contractor’s employee.” 2 Larson, Workmen's Compensation Law, Sec. 72.31, p. 175; 1957 University of Ill. Law Forum, 277, 287-288.

Then too, prior to the amendments, the Illinois court applied the auxiliary rules and construed sections 31 and 29 (now amended section 138.5(a) (b) reserving to employees a cause of action against third persons) together, and enforced a subrogation claim against a general contractor for compensation benefits paid to the dependents of a subcontractor’s employee. In the course of its opinion the court said, “The defendant urges that under the statutory-employer doctrine it could also be a statutory employer of the deceased. This does not necessarily follow. By section 31 the principal contractor is not liable to pay compensation to the injured employee of the subcontractor unless the subcontractor has failed to take out insurance to protect the employee.” Baker & Conrad, Inc. v. Chicago Heights Const. Co., 364 Ill. 386, 398, 4 N.E.2d 953, 959. Likewise, in another subrogation action, the Illinois Court of Appeals declared, “It is evident that section 31 has reference only to the class of persons that may be liable to pay compensation under the act, and not to the third person who may be liable at common law for the negligence causing the injuries.” Foglio v. City of Chicago, 229 Ill.App. 472, 478-479; 1957 University of Illinois Law Forum, l. c. 287-288.

In Kennerly v. Shell Oil Company it was unsuccessfully urged that the scaffold act had been superseded by the compensation law, and it may or may not be that the Kennerly case has been modified by Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., supra—there is some doubt about it. Miller v. B. F. Goodrich Co., 7 Cir., 295 F.2d l. c. 669. It was the theory of the plaintiff in Moushon v. National Garages, Inc., 9 Ill.2d 407, 137 N.E.2d 842, that he had sustained a noncompensable injury and could therefore maintain an action for negligent injury directly against his immediate employer.

For the indicated reasons, it may not be confidently said, up to now at least, that the plaintiff’s claim is barred by the Illinois compensation law and, accordingly, the judgment is reversed and the cause remanded.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court.

All of the Judges concur.