author: HOUSER, Commissioner.

text:
    Margaret WOOD, d/b/a Bay View Resort and Subdivision, Appellant, v. SOUTH RIVER DRAINAGE DISTRICT, a Public Corporation, et al., Respondents.
    No. 52720.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.
    J. Andy Zenge, Jr., Dennis W. Smith, Canton, for appellant.
    Myrl B. Sternke, Palmyra, for respondent.
   HOUSER, Commissioner.

This is an appeal from an order sustaining defendants’ motion for a summary judgment on the pleadings on the basis that as a matter of law plaintiff “has stated no cause of action.” Plaintiff, a landowner, brought an action for damages against South River Drainage District, a public corporation, and the members of its board of supervisors, in two counts. Count I follows:

“Comes now the Plaintiff, Margaret Wood, and for Count I of her first amended petition states:
“1. That the Plaintiff is a resident of Marion County, Missouri and is the sole owner of land in Marion County, Missouri, operated under the business name of Bay-view Resort and Subdivision.
“2. That the South River Drainage District is a public corporation created, organized and existing under and by virtue of an act of the legislature of the State of Missouri relating to the organization of drainage districts by Circuit Courts.
“3. That said Drainage District was incorporated by Decree of the Circuit Court of Marion County, Missouri and entered of record in the office of the Recorder of Deeds in Marion County, Missouri.
“4. That the Board of Supervisors of the South River Drainage District are the governing Board of the Drainage District and are joined as parties to this petition in their representative capacity only and not as individuals.
“5. That the South River Drainage District was organized to construct a levee fourteen miles in length, said levee to separate the Mississippi River from the Bay de Charles and that the Bay de Charles and the Bay de Charles Basin are both in Marion County, Missouri; that on February 12, 1918, the South River Drainage District was given the additional authority by the Circuit Court of Marion County, Missouri, to purchase and install a pump and to construct a pumping station to use to pump drainage and seepage water from the land behind the levee, to increase the land available for agricultural purposes, said land lying in the Bay de Charles, Basin, with said additional authority including the construction of ditches, bridges, private roads, tile lines and repairs of said facilities.
“6. That the Bayview Subdivision has been platted as a subdivision by James H. Fleming, Registered Land Surveyor and certified on the 6th day of October, 1960, to enable Plaintiff to sell plated (sic) lots in said subdivision.
“7. That the lots of the Bayview Subdivision lay within the South River Drainage District and adjacent to the Bay de Charles which is a natural body of water lying within the South River Drainage District and separated from the Mississippi River by a levee constructed and maintained by the South River Drainage District.
“8. That the Decree of the Marion County Circuit Court authorized Defendants to use the pumping station of the Drainage District to drain the Bay de Charles so as to facilitate the drainage of seepage and drainage water which collected in the Basin and behind the 'levee separating the Bay de Charles from the Mississippi River to make additional land available for agricultural purposes.
“9. That the Defendants have pumped water from the Bay de Charles much in excess of the normal and reasonable needs of the Drainage District, and in excess of the authorization granted to said district by the Circuit Court of Marion County, Missouri in its Decree creating the district and pumping operations.
“10. That by virtue of the excessive and unreasonable pumping of the Bay de Charles by the Defendants the Bay de Charles is no longer suitable or usable as a pleasure or fishing area due to the face that the level of the water in the Bay is so diminished by the excessive and unreasonable pumping of the Defendants as to make the Bay a low, swampy and muddy pool of water.
“11. That the severe, unreasonable, excessive and damaging pumping operations of the Defendants began and have occurred from and after the time that damages were awarded by Commissioners, and that the damages awarded did not, or could not have anticipated damages suffered by Plaintiff from and after the beginning of the excessive and unreasonable pumping by the Defendants.
“12. That by virtue of the Defendants excessive pumping of the Bay de Charles, the Defendants have taken the land and property of the Plaintiff by the severe and permanent diminution in value of the same and have done so without just compensation to the Plaintiff for the loss of the value of her land.
“13. That the Plaintiff has suffered a direct, permanent, and continuous pecuniary loss by the excessive pumping of the Defendants in the diminution of the value of her land without just compensation therefor.
“WHEREFORE, Plaintiff prays judgment against the Defendants in the amount of Thirty-two Thousand Five Hundred Dollars ($32,500) and for such other and further relief as the Court shall deem just and proper in the premises, and for her costs expended for Count I of this petition.”

In Count II plaintiff made many of the same allegations, tailored to recover $14,000 “for the permanent loss of her fishing and pleasure resort business.”

The drainage district moved for summary judgment for the reason that the facts stated in their affidavit “establish as a matter of law that Plaintiff has stated no cause of action against this Defendant.” The affidavit recited that the drainage district was originally organized by the County Court of Marion County at its August Term, 1903; that the land in which Bay View Subdivision lies was viewed by commissioners appointed by the court, who made a report of benefits and damages on the basis of which the court issued an order assessing benefits against the land; that plaintiff’s predecessors in title made no objection to the report and did not appeal therefrom; that the district was reorganized by circuit court decree in 1917; that the lands now owned by plaintiff were continued as a part of the district and that plaintiff’s predecessors in title made no objection thereto; that by county court order in 1909 and a circuit court decree in 1918 the district was given additional authority to purchase and erect a pumping plant at its present site and authority to remove accumulated waters from within the district by pumping from the Bay de Charles; that commissioners were appointed to assess benefits and damages accruing to all the lands in the district and to appraise the lands to be used for holding basins and drainage works; that the commissioners’ report was filed in and incorporated in a decree of the circuit court, to which no objections were made or filed by plaintiff’s predecessors in title. Attached to the affidavit were two decrees of the circuit court, dated May 16, 1917 and February 12, 1918, by which the following was made to appear: The reclamation work for which the district was originally organized contemplated the construction of a 14-mile levee, and the filling in of the Bay de Charles where the water from the Mississippi River flows into the bay, in order to prevent overflow from the river; and contemplated that Bay de Charles with its tributaries were to be taken over by the district to provide an internal drainage system which it was thought would be “almost sufficient to protect said lands from all surface and seepage waters upon said lands in the district.” It was further contemplated that proper openings be left in the levee at a point where it crosses the Bay de Charles-, and at various other places for the outlet of all accumulated surface waters. The plan of reclamation was amended in 1909 by providing for the construction of a revetment along the inner side of the levee and by the purchase and installation of a pumping plant with necessary engines and equipment with which to remove accumulated waters from within the district. By 1918 all of the works contemplated by the original and amended plans had been constructed, fully paid for and were in existence. In 1918 it was found that the full and complete reclamation, drainage and protection from overflow or damage by water of the lands in the district presented three problems: protection from overflow from the Mississippi and South Rivers; internal drainage; and removal of the surface and seepage waters when collected into the storage basin. The first problem was well taken care of by the levees theretofore constructed. A different situation existed in 1918 with respect to the problem of internal drainage. Although at the time of the construction of the levee it was thought that Bay de Charles with its tributaries would be “almost sufficient” to take care of the internal drainage, fifteen years of experience demonstrated that additional means had to be provided to enable surface and seepage waters to pass off the lands so that the lands could be cultivated, completely reclaimed and protected. In order to more effectively and economically remove the waters when collected into the storage basin certain other additional works, installations, structures and machinery were necessary. It was further necessary, in order to accomplish the full and complete reclamation of the lands in the district, to construct certain other ditches, bridges and tile lines, and to repair the levees and make additions to the pumping station. The further amendments and changes to the plan of reclamation described in the court order were authorized in 1918, and commissioners were again appointed to appraise the lands within and without the district to be acquired and used for rights of way, holding basins and other drainage works, and to assess benefits and damages to the lands in the district by reason of the amended plan of reclamation.

The amended plan was implemented, and the pumping plant was operated for years. During this time plaintiff established and engaged in the successful operation of a resort property and subdivision adjacent to the water of the Bay de Charles. As stated in her brief, “With the past several years the level of water in the Bay de Charles has declined as the result of accelerated pumping from the Bay, and appellant consequently” commenced this action.

No counteraffidavits were filed by plaintiff.

Claiming that there are genuine issues as to material facts, plaintiff-appellant makes the point that the court erred in granting the motion for summary judgment, and proposes that as a matter of law appellant has a legally protected right, based on disputed facts, which entitles her to a trial of her suit on the merits. The basis of her proposition is that she has a legally protected interest in retaining the water of the Bay de Charles at the level which has made her property adjacent to the bay valuable as a pleasure and fishing area. In effect conceding that as owner of lands lying within the drainage district she could not recover damages occasioned by the proper prosecution of the work because “such damages are awarded and adjudged in the organization of the district,” Greenwell v. A. V. Wills & Sons, 210 Mo.App. 651, 239 S.W. 578, 583, appellant asserts that she has been damaged by an improper prosecution of the work; that the pumping activities were excessive and that excessive pumping was not within the authorization of the plan of reclamation; that such extra-reclamation activities have taken a property right from her and damaged her property. Appellant denies that she is seeking recovery on any theory of negligence (which she concedes is not available to her because of the doctrine of governmental immunity from tort liability). She goes on the theory of inverse condemnation ; that she has a property right which has been taken or damaged for public use without just compensation; that eminent domain proceedings should have been, but were not, brought; and that under the doctrine of United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171, and Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66, 70, she is entitled to recover her loss in this damage suit.

We find no issue of material fact in the question whether there has been excessive pumping or whether appellant’s damages are in excess of the damages contemplated by the commissioners at the time of the assessment of damages, as appellant claims.

In the first place, the pleadings are insufficient to raise any such material questions of fact. The allegations in the petition that the pumping of water from the bay was excessive and unreasonable, in excess of the normal and reasonable needs of the drainage district, and in excess of the authorization granted the district by the circuit court decree, are mere conclusions and not statements of fact. That her damages were not contemplated in the condemnation proceedings is self-evident, since the resort and subdivision business was not then in existence.

More decisively, the affidavit and exhibits filed by defendants, which have not been controverted by appellant, conclusively show that the supervisors acted within their powers in conducting the pumping operation as they did.

Under the powers granted to the drainage district at the time of the original organization in 1903 the district took over the Bay de Charles and its tributaries for the purpose of providing internal drainage system for the lands in the district. The hay was filled in and provision was made for the outlet of all accumulated surface waters. The drainage district was reorganized by circuit court decree dated February 12, 1918 under the provisions of Laws of Missouri 1913, pp. 232-267, enacted for the purpose of reclaiming and protecting swamp, wet or overflowed lands from the effect of water “for sanitary or agricultural purposes, or when the same may be conducive to the public health, convenience or welfare, or of public utility or benefit.” The circuit court then found that additional means of removing the seepage and surface waters that accumulated in the storage basin (the Bay de Charles) were necessary. Provision was made for a pumping station, additional ditches, and other works, all of which were designed to accomplish this objective. The statutory basis for the exercise of the power to remove the waters from the Bay de Charles is found in Laws of Missouri 1913, p. 232, § 26, p. 249, authorizing and empowering the board of supervisors to change the course and flow of any watercourse or bayou in the district; to concentrate, divert or divide the flow of water in or out of the district; to construct and maintain holding basins, pumping stations and syphons and any other improvements necessary to preserve and maintain the works, and to hold and control any reservoir or holding basin for draining, protecting and reclaiming the lands in the district. Neither that section nor any other section of the law regulating drainage districts organized by circuit courts nor any provision of the circuit court decree circumscribed, limited or restricted the right of the supervisors to pump and exhaust water from Bay de Charles. Drainage districts are governmental agencies exercising governmental functions. They operate under the police powers of the state. See cases collected in Missouri Digest, Drains, ‘§=>13. “Drains are established to take off water.” Grand River Drainage Dist. of Cass and Bates Counties v. Reid, 341 Mo. 1246, 111 S.W.2d 151, 152. In the performance of their duties the supervisors were empowered, in the free exercise of their discretion, to maintain the level of the water within the bay at any height deemed advisable by them. No right to have the water maintained at any particular level vested in appellant by reason of the fact that she established a profitable resort business adjacent to the bay, at a time when the bay was and previously had been part and parcel of the drainage system and under the control of the supervisors. The restriction appellant seeks to impose upon the free exercise by the supervisors of the powers entrusted to them for the public good conceivably might impair and interfere with the effective reclamation of the lands in the district. Appellant’s private interests must yield to the public interest. Under the un-controverted facts no issue of “excessive” or “unreasonable” pumping arose or could arise.

In the operation of the bay as a holding basin the district “did not encroach upon the lands or property of the appellant, and there was no actual and physical taking or damaging of plaintiff’s property, or enforced occupation thereof or interference therewith, or the exercise of any proprietary functions in relation thereto. * * * Acts of a governmental agency in the proper exercise of the police power of the state which do not directly encroach upon private property or private rights, though their consequence may impair the use or enjoyment thereof, are held not to be a taking or damaging within the meaning of constitutional provisions relating to eminent domain and do not entitle the owner of such property to compensation from the state or its agent for such incidental or consequential damage.” Max v. Barnard-Bolckow Drainage Dist., 326 Mo. 723, 32 S.W.2d 583, 586. In that case plaintiff sought damages from a drainage district for interfering with the flow of a river which operated plaintiff’s gristmill. Some eighty years previously plaintiff’s predecessor in title on application to the circuit court under the Mills and Mill-Dams Act, RSMo 1845, Chapter 121, had been granted a permit to erect a dam across the river, to be connected with a saw and gristmill. Plaintiff’s position was that the state “could not, by its own subsequent acts, reduce the natural flow and depth of the water in the stream so as to impair the water power used to operate his mill without compensation by the state to him therefor.” It was held that the plaintiff’s rights were subject to the superior and paramount right of the state to use the stream for the public purpose of draining wet and overflowed lands; that no legal right had been infringed or invaded; that the damages were indirect, incidental and consequential, and did not come within the constitutional provision that private property shall not be taken or damaged for public use without just compensation. The same considerations are applicable in the instant case.

The damage to the property of appellant and her loss of business revenue consequent upon the drainage of the bay is one of the incidents of the ownership of property, comparable to loss of trade or business, or of commercial value, as a result •of diversion of traffic resulting from an improvement or relocation of streets or highways. Such a loss is the result of an exercise of the police power, is damnum absque injuria, and is not compensable. State ex rel. State Highway Commission v. Meier, Mo.Sup., 388 S.W.2d 855 [4]; State ex rel. State Highway Commission v. Brockfeld, Mo.Sup., 388 S.W.2d 862, 865; Filger v. State Highway Commission, Mo.App., 355 S.W.2d 425; 29A C.J.S. Eminent Domain § 162, p. 702.

In support of her position appellant cites Bohannon v. Camden Bend Drainage Dist., 240 Mo.App. 492, 208 S.W.2d 794, revers- . ing a judgment of dismissal of a petition by resort owners against a drainage district. This was an action to enjoin the construction of a ditch under a plan of reclamation. The proposed ditch would open into a lake on which the resort owners had built cabins, docks and other facilities and lower the lake below its normal and natural level, thus rendering plaintiffs’ lands useless and of little value, converting the lake from a thing of utility to a low, swampy, wet piece of land. The court indicated that injunction was not the proper remedy but remanded, apparently to give plaintiffs an opportunity to sue for the “taking of plaintiffs’ proprietary interest in the lake or the waters thereof, which taking is prohibited by the constitution until compensation is made therefor.” Bohannon is distinguishable on the facts. Plaintiffs, riparian owners on the lake, had built their cabins, docks and facilities and established their businesses prior to the time the drainage district adopted and commenced to implement its plan of reclamation. As riparian owners they had a common-law right to the continuance of the lake in its natural state. The district invaded a vested right held and enjoyed by the property owners. Not so here. The bay was a natural body of water prior to the construction of the levee by the district, but appellant’s resort business was not established while the bay was in that natural state. At the time appellant invested her money in her resort business the plan of reclamation had been implemented, the bay filled in, the gravity flow of water from the Mississippi River had been dammed, and the bay for years had been incorporated into and appropriated for use as an integral part of the drainage system. Appellant acquired no vested right in a natural body of water by establishing her business adjacent to the lake after the bay had been thus changed and appropriated. She had no common-law right to the continuance of the bay in its new, artificial state, and had no legally protected interest in the maintenance of the water at any particular level. There is no real or genuine issue as to any material fact. As a matter of law appellant cannot recover.

The circuit court correctly ruled the motion for summary judgment and the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: FINCH, Judge. STORCKMAN, Judge.

license: Public Domain

text:
    Thomas A. MILLER, Appellant, v. Arvid OWSLEY, Lloyd Hilburn, and Travelers Insurance Company of Hartford, Connecticut, Respondents. Lee Roy REED, Appellant, v. Arvid OWSLEY, Lloyd Hilburn, and Travelers Insurance Company of Hartford, Connecticut, Respondents.
    Nos. 52264, 52443.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.

      Philip C. Ehli, Kansas City, for appellant.
    Donald G. Stubbs, Kansas City, for respondents.
   FINCH, Judge.

These two cases were consolidated for briefing and argument on appeal and one opinion will cover both cases. The petitions are nearly identical and each was dismissed for failure of the petition to state a cause of action. Each plaintiff filed suit against Arvid Owsley, Sheriff of Jackson County, Lloyd Hilburn, his Chief Deputy, and Travelers Insurance Company of Hartford, Connecticut, surety on their official bonds, seeking to recover $50,000 actual and $50,000 punitive damages for injuries received at the hands of fellow prisoners while incarcerated in the Jackson County Jail. The trial court sustained defendants’ motions to dismiss the petitions and plaintiffs appeal.

The petition in the Reed case recites that plaintiff was arrested on burglary charges and was placed in the Jackson County Jail in the care, custody and control of Owsley and Hilburn on or about May 3, 1964. It alleges that as a result of negligence, carelessness, maliciousness, willfulness, and utter disregard of the rights of plaintiff, he was placed by defendants Owsley and Hilburn in a compartment in the jail with inmates of vicious and murderous disposition, by whom plaintiff was assaulted and seriously injured. It alleges further that said Owsley and Hilburn failed to exercise reasonable care and prudence in knowingly permitting and consenting to a system wherein these hardened criminals established cell units in which such criminals exercised autonomous control over other inmates in the cell, imposing injury, abuse and other indignities on such fellow inmates. The petition also alleges failure and refusal of Owsley and Hilburn to provide medical aid to plaintiff after he was injured and physically abused and had requested medical aid. These two alleged failures are the things for which the petition apparently seeks recovery. Other sub-paragraphs allege failure to make reasonable inspection of cells, failure to check on the well-being of prisoners, and failure in connection with the selection and training of employees. Apparently, these latter allegations are made in connection with the two ultimate contentions of mistreatment of plaintiff by placing him in a cell with vicious criminals and by failing to provide medical attention. In and of themselves, these allegations about failure to make reasonable inspections, etc., do not provide a basis for recovery by plaintiff. They appear to be pertinent only as they may pertain to and help to establish the two asserted grounds alleged to have resulted in damage to plaintiff.

The second count reiterated the allegations in Count I and alleged the acts to have been wanton, willful, malicious, and in utter disregard of the rights and safety of plaintiff.

Plaintiff Miller was arrested and jailed on a charge of possessing and uttering forged instruments. In his case the petition does not contain the paragraph relative to the cell units which is included in the Reed petition, but it does contain the other allegations relative to knowingly placing plaintiff in the same cell with inmates of vicious disposition. For purposes of our consideration, we treat the petitions as substantially similar.

Defendants’ motions to dismiss alleged (1) failure of the petition to state facts showing that plaintiff was entitled to relief and (2) immunity of defendants as Sheriff and Chief Deputy of Jackson County because “all of the acts alleged in plaintiff’s petition were acts performed by said defendants in the carrying out of the duties of the office of Sheriff of Jackson County, Missouri, as required by the Constitution and Statutes of the State of Missouri.”

Section 57.020 (all statutory references are to RSMo 1959, V.A.M.S.) requires every sheriff to give a bond with approved surety “conditioned for the faithful discharge of his duties.” This bond would cover both duties prescribed by statute and common law duties.

We have concluded that each of the petitions herein alleges enough to state a claim and that the trial court erred in sustaining motions to dismiss. Each petition obviously is intended as a suit on the bond of defendant officers, although a copy of the bond is not attached and there is no allegation in the petition as to the penalty of the bond or any details as to its execution and approval. It does allege that defendant Travelers Insurance Company was surety on the official bond of the individual defendants and that the bond was executed in accordance with law. Whatever deficiencies there are in the details of the allegations with respect to the bond can and should be remedied by amendments in the trial court on remand of these cases. A copy of the bond should be attached and the allegations of the petition should recite the conduct and acts alleged to constitute violations of the faithful performance of the officers’ duties and hence violations of the terms of the bond. Acts which do not constitute violations of the sheriff’s duties should not be included.

The courts of this state have recognized in various situations a liability on the part of peace officers and their sureties for which recovery has been permitted on their official bonds. A few cases will illustrate.

In State ex rel. and to Use of Donelon v. Deuser et al., 345 Mo. 628, 134 S.W.2d 132, there was a verdict against the sheriff and his surety for injuries inflicted by a deputy sheriff in making an arrest. Plaintiff and three companions had been drinking beer and started walking home. Plaintiff and a young man named Burns were walking together and as they passed some other people a difficulty arose between Burns and these other parties. Burns was struck over the head with a bottle which broke, cutting Burns on the head. He staggered toward the street and plaintiff followed him, intending to aid him and prevent him from being struck by cars. At about that time, the deputy sheriff appeared and, according to plaintiff’s evidence, struck plaintiff over the head with his club, placed him in a car and took him to jail, without making any investigation as to who was causing the disturbance. Plaintiff was held in jail about twenty hours and discharged. He brought suit to recover for injuries alleged to have been sustained as a result of the assault committed on him by the deputy sheriff. The trial court granted a new trial on the ground that the damage instruction was erroneous. This court, in an opinion by Judge Westhues, held that alleged trial errors did not justify a new trial and reinstated the verdict. The opinion quotes from 6 C.J.S. Assault and Battery § 23 b, p. 825, as follows: “A peace officer or other person duly empowered is not liable for injuries inflicted by him in the use of reasonably necessary force to preserve the peace and maintain order, or to overcome resistance to his authority.” The court pointed out that, at defendant’s request, the trial court so instructed the jury. However, it also properly instructed the jury that plaintiff could recover if Donelon did not resist arrest and if the deputy sheriff unnecessarily and without cause struck and beat Donelon. The court noted that the evidence of plaintiff and his witnesses, if true, indicated that the assault by the deputy was unprovoked, unjustified and brutal. The fact that the officer was making an arrest in which he had some discretion did not cloak him and his surety with complete immunity, regardless of what he did in exercising that discretion in making the arrest.

In State ex rel. and to Use of Kaercher v. Roth et al., 330 Mo. 105, 49 S.W.2d 109, plaintiff sought to recover for injuries resulting from gunshot wounds received when a deputy constable, in seeking to make an arrest, shot at an automobile in which the plaintiff was a passenger. The deputy constable observed this car speeding in Central township, where he was a deputy constable. The deputy pursued the car into the City of St. Louis, and in attempting to stop the car and make the arrest, fired at the car, some of the shots hitting plaintiff. This court’s opinion points out that, even leaving out of consideration the fact that they had crossed township lines, the deputy had no right to shoot in seeking to make an arrest for a misdemeanor, and that the constable and his surety were liable. The contention that when the deputy crossed the township line he ceased to act in his official capacity so that his surety would not be liable was rejected. The court said, 1. c. 110: “If the act was done by virtue of his office or under color of office, then the bondsman, surety company, is liable in damages for the injuries inflicted.” The trial court had sustained a demurrer to the petition, but this court sent the case back for trial.

In City of Advance ex rel. Henley v. Maryland Casualty Company, Mo., 302 S.W.2d 28, the city marshal observed plaintiff speeding within the city limits of Advance. Later that evening, the marshal went outside the city limits and, without a warrant, arrested the plaintiff for speeding within the city limits. Plaintiff sued for personal injuries sustained during an alleged unlawful assault upon and battery of plaintiff by the defendant marshal when making the arrest. The defendants alleged that no more force was used than reasonably necessary for the marshal to defend himself after plaintiff first struck and hit him and for the purpose of preventing plaintiff from escaping custody.. This court held that the statutes did not authorize the defendant marshal to make the arrest in question, that the arrest was unlawful, and that the marshal and his surety were liable for any injuries sustained by plaintiff directly resulting from his unlawful arrest and restraint.

In Parrish v. Herron et al., 240 Mo.App. 1156, 225 S.W.2d 391, plaintiff obtained a verdict for false arrest and imprisonment against the sheriff and his deputies and their surety. Plaintiff was arrested and imprisoned on a charge of having taken property of another. The officers claimed that they had been able to track the plaintiff from the scene where the things were taken and that they had reasonable cause to suspect that plaintiff had committed a felony, which would entitle them to arrest him without a warrant. Upon the evidence, the court declined to hold as a matter of law that the officers had reasonable grounds to suspect that plaintiff had committed a felony, and therefore ruled that this was a question for the jury. In so holding, the court recognized that the general rule is that whether there is reasonable cause for suspecting that a person has committed a felony is for the jury, except when the facts are undisputed. Clearly, this was an instance in which the officers were called upon to exercise their discretion, but since the facts were disputed, the court held that whether there was in fact reasonable cause, and therefore whether that discretion had been exercised reasonably or arbitrarily, was a question for the jury. Thus, the mere fact that the peace officers exercised some judgment in determining whether there was reasonable cause for arrest did not cloak them with absolute immunity from suit and liability.

It is true that in the foregoing cases liability was imposed on the basis of affirmative acts of the sheriff or his deputy against the person of an individual, such as false arrest or imprisonment, excessive force in making an arrest, or an assault by an officer on a person where there was no right to make an arrest. We have held that these acts constitute violations of the officer’s official bond. In the petitions which we now consider, the plaintiff alleges that there was a system in the jail, known to the sheriff and his chief deputy, wherein hardened criminals in the jail conducted a cell unit in which, in a kind of kangaroo court, such persons administered their own “justice” and punishment, resulting in injury and abuse to other inmates of that cell, and that the individual defendants knowingly placed plaintiff in such a cell with inmates known to the defendants to do these things. The question we must determine is whether this conduct, if proved, would constitute failure on the part of a sheriff to faithfully perform the duties of his office and thereby establish liability on his official bond.

The case of Village of Nixa ex rel. and to Use of Hedgpeth v. McMullin, 198 Mo. App. 1, 193 S.W. 596, dealt with a common law duty of an officer with reference to the care and treatment due a prisoner in his custody. That was a suit against a town marshal and his bondsmen in two counts, plaintiff claiming in Count 1 that he had been wrongfully arrested and imprisoned by the marshal, and in Count 2 that it was the duty of the marshal to look after the jail and give the prisoner humane treatment, whereas, in fact, he confined plaintiff in a jail which was filthy, insanitary and cold, without furnishing any food or water. The jury found for the defendant marshal on Count 1, evidently on the theory that plaintiff was intoxicated and disorderly, justifying the arrest, but it gave the plaintiff a verdict for $50 on Count 2. Judge Farrington reversed the judgment on the basis that the evidence simply did not sustain any recovery by plaintiff for inhumane treatment. He reviewed the evidence and pointed out why there was no evidence to show inhumane treatment. In the course of the opinion, however, 1. c. 598, he stated: “We hold the law to be that a marshal who makes a lawful arrest must use care to see that his prisoner is not oppressed, and that he must not be treated inhumanely, and that, if a calaboose is in such condition — known to the officer — as to be an unfit place in which to confine a man over night without endangering his physical condition, he must not put him in there; and a failure to use such due care and accord ordinary decent treatment will be a breach of his bond to faithfully perform his duty. The arrest, as shown in this case being lawful, the marshal acting by virtue of his office in detaining the plaintiff, would, if he failed to exercise ordinary care for his prisoner, make him and his bondsmen clearly liable. This is undoubtedly the law in this and other states.” See, also, Annotation — Liability for death or injury to prisoner, 61 A.L.R. 569, and Annotation — Civil liability of sheriff or other officer charged with keeping jail or prison for death or injury of prisoner, 14 A.L.R.2d 353.

Defendants cite cases such as Hinds v. City of Hannibal, Mo., 212 S.W.2d 401, wherein plaintiff sought recovery from the city for injuries allegedly received as a result of an assault by a police officer. Governmental immunity of the city itself was sustained and the suit dismissed. The case is not authority, however, for the proposition that there may be no recovery on a sheriffs bond for treatment of a prisoner, as the cases hereinbefore discussed clearly indicate. The case of City of St. Louis ex rel. Forest v. Nicholas, Mo.App., 374 S.W.2d 547, also is cited. That was a suit wherein an inmate of the city workhouse who had an artificial leg fell and was injured when taking a shower pursuant to a rule of procedure applicable to the workhouse. The Court of Appeals sustained the action of the trial court in dismissing the suit against the director of public welfare and the director of the workhouse, but the court specifically noted, 1. c. 550, that the situation was not analogous to suits involving bonds of sheriffs or constables for acts of their deputies. We find nothing in these or other cited cases which cause us to conclude other than as we have stated herein.

The sheriff is not an insurer of the safety or health of his prisoners. However, if he has knowledge of a custom of certain prisoners to assault or beat or physically abuse other prisoners, such as plaintiffs, then it is his duty, in the exercise of ordinary care, to use such means as are at his command to prevent such unlawful acts. He also has certain duties relative to medical attention for prisoners imposed by § 221.120. The issues of whether he has breached the duties enumerated in this paragraph are jury questions if sufficient evidence is offered to make a sub-missible case thereon, just as the issue of probable cause for arrest in the Parrish case was a jury issue.

It is true, as defendants point out, that the petitions in these two cases characterize alleged acts of Owsley and Hilburn as negligence. It also is true, as we have indicated, that at least some of the allegations also constitute the assertion of a failure on the part of the officers to faithfully discharge the duties of their office. We do not remand these cases for trial on the basis that the petitions state a cause of action for negligence. We do so on the basis that they state a cause of action for breach of the official bond. Our holding herein that the sheriff has a duty, under certain circumstances, to use ordinary care and that the jury will be required to determine whether he breached that duty does not alter the fact that the suits are for breach of his official bond.

The action of the trial court in sustaining the motion to dismiss the petition in each of these cases is reversed and the causes are remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

HOLMAN, C. J., and HENLEY, DON-NELLY, and SEILER, J J., concur.

EAGER, J., dissents.

STORCKMAN, J., dissents in separate dissenting opinion filed.

Dissenting Opinion

STORCKMAN, Judge.

I do not consider Parrish v. Herron, 240 Mo.App. 1156, 225 S.W.2d 391, to be adequate authority to support the conclusion reached in this case. The weight of authority seems to be that a peace officer may be held liable for unlawful acts or torts deemed to be willful or intentional, but not for acts of simple negligence. That the petition charges negligence was Confirmed by counsel for the parties in oral argument. The majority opinion states that the cause is not remanded “on the basis that the petitions state a cause of action for negligence”, yet in the immediately preceding paragraph the opinion states that it is the duty of the sheriff “in the exercise of ordinary care” to use the means at his command to prevent any of his prisoners from being beaten or abused by others and to secure and furnish medical attention. In my opinion, everything charged in the petition is based on negligence.

Furthermore, all of the matters charged call for the exercise of judgment within the domain of sovereign immunity. If the times demand that this doctrine be changed, then the liability should be imposed on the county or state if the law-abiding citizen is to be protected. Otherwise, no self-respecting person will be found to serve as police officers, jailers and prison physicians. I would affirm the judgment of the trial court.

For these reasons I respectfully dissent.


author: PER CURIAM:

text:
    Tyrone JACKSON, by and through his Mother and Next Friend, Adella Jackson, Respondent, v. The CITY OF ST. LOUIS, a Municipal Corporation, Appellant.
    No. 52059.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Dec. 11, 1967.

      Thomas C. Hullverson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
    Thomas F. McGuire, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for appellant.
   PER CURIAM:

This is an action for personal injuries sustained by Tyrone Jackson, a minor, when he struck his eye on a post standing in an alley adjacent to a public park of the defendant, City of St. Louis. The jury’s verdict was for plaintiff for $21,500.00. The city appealed following the overruling of its motion for new trial.

Catalpa Park is a small public park, owned and maintained by the City of St. Louis. The park is bounded on the north by a public alley, running parallel to what was, at the time of the incident here, the Hodiamont Avenue car line. The facilities at Catalpa Park included a baseball diamond. We find no evidence of distances involved, but the outfield of the baseball diamond in the left and center field area was bounded, at least in part, by the alley mentioned above. In 1963 a number of steel posts were erected by the city along the north boundary of the park. Some, judging from the photographic evidence, supported a fence which had been partially removed. Others, according to witnesses, bore “No Parking” signs and were intended to keep automobiles from encroaching upon the park area.

In the afternoon of July 17, 1964, Tyrone Jackson was at the park with two friends. One, Michael Roberts, was knocking fly balls to Jackson who was between second and third bases, some ten feet behind the base line. Roberts knocked a ball toward Jackson. Jackson at first thought the ball would fall in front of him and started to come in toward the batter. Then he realized that the ball would go over his head and he started to run or “trot” back, watching the ball. He leaped up, turning to his left, to catch the ball. The sun hit him in the eyes and he turned his head and struck his left eye on the top of a steel post, sustaining injuries which eventually required removal of the eye.

The post which Jackson struck was a steel post, painted green, some five feet high and two or three inches wide. It was some three feet south of the travelled portion of the alley, but a survey made by the city located the pole three feet inside the alley and, therefore, outside the park boundary. Grass was growing on all sides of the pole and the photographic evidence showed no demarcation of the actual line between the alley and the park.

Jackson and his two companions testified that, although they had been at the park on numerous prior occasions, they had never noticed the particular post. Jackson described the location of the post as in “left center field.” He had played first base on previous occasions in the park. Another witness for plaintiff testified that he had noticed the post in the spring of 1963. At that time, it bore no sign. The city’s evidence was that some posts had been erected for carrying “No Parking” signs, but the witnesses did not know whether the particular post had been so used. No sign appeared on the post and the fence did not extend to it.

On this appeal, the city first contends that its motion for directed verdict should have been sustained because plaintiff’s evidence of a post standing in an alley adjacent to a park was not sufficient to support a submissible case of negligence for failure to exercise ordinary care to provide or maintain a reasonably safe place for patrons of a public park. The city acknowledges that it was under an obligation to exercise ordinary care to maintain its parks in a reasonably safe condition for use by the public. Volz v. City of St. Louis, 326 Mo. 362, 32 S.W.2d 72; Bagby v. Kansas City, 338 Mo. 771, 92 S.W.2d 142; Bronson v. Kansas City, Mo.App., 323 S.W.2d 526. However, relying upon Taylor v. Kansas City, Mo.Sup., 361 S.W.2d 797, the city contends that its duty does not require it to “guard against possible injuries to a child running backwards into an object in or close to a public park.” Both Taylor and this case involved injuries sustained by a minor in a city park while going backwards in pursuit of a fly ball. Otherwise, the cases are far different. In Taylor, the plaintiff, playing in a school ground, crossed a curb marking the school ground boundary, into the adjacent park, continued backward, at least 19 feet inside the park, where he bumped against the 7-inch paved wall of a 60' x 80' swimming pool, into which he fell, sustaining injury. “The pool and the portion of the top wall extending above the level of the paved area surrounding it are made of white cement, which causes the pool to be readily distinguishable from the darker pavement surrounding it; no one looking forward as he approached it could avoid seeing it.” 361 S.W.2d 1. c. 798. The plaintiff was familiar with the pool. As the court observed, “He knew, as he thus walked backward, that he might trip over or run into something.” The crux of the city’s nonliability in Taylor was the open and obvious condition which produced the injury, not the fact that the injury was sustained while the plaintiff was walking or running backward. Taylor did not establish the rule that a city is not liable in any event for injuries sustained by a patron of a public park who falls while walking or running backward in the park. The duty of the city in such circumstances is unchanged. Here, the jury could certainly find that a slender green steel post surrounded by green grass was not an open and obvious condition and that the city did not exercise reasonable care in permitting such a post to stand within an area owned by the city and used as part of a baseball ground. The evidence here did not show that the outfield limits of the baseball playing area had in any manner been bounded. Plaintiff’s testimony would support the conclusion that the post was within an area in which players could reasonably be expected to pursue balls. Whether or not the city had met its obligations in these circumstances was a question for the jury.

The second point raised by the city is that the court erred in giving Instruction No. 2 because it was not supported by the evidence, was not pleaded by plaintiff and did not require the jury to find an essential issue, viz., “whether the park was in a reasonably safe condition for those using it.”

In our judgment Instruction No. 2 is supported both by the pleadings and the evidence, and its language required the jury to find the essence of the allegedly missing element.

Plaintiff’s second amended petition alleged :

“(4) That on or about July 17, 1964, while playing baseball at the aforementioned Catalpa Park and using the baseball diamond located therein as an invitee thereon plaintiff came in contact with the iron post located there on Catalpa Park property proper or on ground immediately adjacent thereto as a direct result of defendant’s negligence in the following respects, to-wit:
“A. Defendant knew or could have known by the exercise of ordinary care that said post at said location was a hazard, and that persons particularly children using said baseball diamond were likely to come into contact therewith and be injured and defendant negligently and carelessly permitted said post to be and remain in said location under the circumstances aforesaid and defendant negligently and carelessly under conditions and circumstances aforesaid failed to remove said iron post.
* * *
“C. By reasons aforesaid, defendant negligently and carelessly failed and omitted to furnish plaintiff with a reasonably safe place in which to recreate and use while an invitee at Catalpa Park.”

Instruction No. 2 was as follows:

“Your verdict must be for plaintiff if you believe :
“First, there was a metal post without anything attached to it close to a public park, and
“Second, such post was so close to the public park that children playing in the park in the exercise of ordinary care were exposed to a danger of running against the post and being injured, and
“Third, defendant, by using ordinary care, should have known of the existence of this condition and such danger, and
“Fourth, the defendant failed to use ordinary care to remedy it, and
“Fifth, as a direct result of such failure plaintiff was injured, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 4.”

Each of the five paragraphs of required findings in Instruction No. 2 finds support in the evidence. From the evidence the jury reasonably could find that there was a metal post with nothing attached to it so close to a public park that children playing in the park in the exercise of ordinary care were exposed to the danger of injury from running into the post; that the condition and attendant danger was one of which the city, in charge of and maintaining both park and alley, should have been aware and could have foreseen; that the city failed to exercise ordinary care to remedy the condition and eliminate the danger, and that as a result of the failure of the city to do so plaintiff was injured.

Instruction No. 2 is not erroneous and did not result in prejudice to the city by its failure to contain the words “and that the park was not in a reasonably safe condition for those using it,” as claimed by the city. In support of its claim the city cites three cases: State ex rel. City of Jefferson v. Shain, 344 Mo. 57, 124 S.W.2d 1194; Guy v. Kansas City, Mo.Sup., 257 S.W.2d 665 and Sutton v. Fox Missouri Theatre Co., Mo.Sup., 356 S.W.2d 41, for the proposition that “an instruction which leaves out the essential element of whether the public area was in a reasonably safe condition, is preju-dicially erroneous.”

In City of Jefferson the instruction authorized a finding based upon a mere defect, “whether dangerous or not.” This case held that an instruction which required the jury only to find that the sidewalk was defective was a positive misdirection. In the Kansas City case the instruction authorized a verdict on the basis of a finding of a crumbled, worn and broken place in a curbing, without requiring a finding that this condition was dangerous or not reasonably safe. This instruction was held erroneous. In the Fox case plaintiff fell over a navy recruiting sign on the sidewalk in front of a theatre. The theatre and the city were sued. The city gave an instruction, held by this court to be erroneous, which directed a verdict for the city upon a finding that the sign did not unreasonably obstruct pedestrian traffic at the time and place. That was not the issue. The issue was whether under the circumstances the city exercised ordinary care to keep the street in a reasonably safe condition for such travel; whether the sign would endanger public travel. These cases, and many others, point up the necessity of submitting something more than the defective condition. The instruction must further require a finding that the defect rendered the public facility dangerous and not reasonably safe to use. In City of Jefferson the opinion indicated that “the defect must be one to cause a condition not reasonably safe or one dangerous to travelers.” 124 S.W.2d, 1. c. 1196 [1], In the Kansas City case it was said' that “The breach of duty and hence negligence consists not alone in the defective street or curbing, but in the permitting and maintenance of a defective public way which is not reasonably safe but dangerous by reason of the defect. The defect complained of must be one calculated to cause injury and for that reason dangerous and unsafe for normal use. * * * The determinative factor the jury is to find, in addition to the physical facts complained of, for example the broken curbing, is that those facts constituted an unsafe, insecure and dangerous condition; that the described condition was not reasonable safe.” 257 S.W.2d, 1. c. 667. In the Fox case it was written that the issue “was not whether the sign merely unreasonably obstructed pedestrian traffic; it was whether, under the circumstances shown in evidence, the City exercised ordinary care to keep the street in a reasonably safe condition for such travel.” 356 S.W.2d, 1. c. 50 [6],

These cases do not, however, prescribe any particular form of language that is required in order to submit this concept. “This is not to say that any particular language must be used, there have been variations in terminology, but invariably the finding has been required in some language.” Guy v. Kansas City, supra, 257 S.W.2d, 1. c. 668. It was therefore not necessary for Instruction No. 2 to submit a finding that the park was “not in a reasonably safe condition” in that exact language or in those terms. The submission of the legal equivalent of the “not reasonably safe” terminology was sufficient. That is what was done in paragraphs Second and Third by the use of language submitting that the post was so close to the park that children playing in the park were exposed to the danger of running against the post and being injured. A condition which exposes the public to a certain specified danger is a condition that is not reasonably safe. Although often done, it is not necessary to say the same thing twice — it is not necessary to submit that the condition was dangerous and that it was not reasonably safe. Either is sufficient. The two terms are synonymous. The antonym of “dangerous” is “safe.” A recognized definition of “safe” is “untouched by danger”; “not exposing to danger.” Webster’s New International Dictionary, Second Edition. In Franklin v. Kansas City, Mo.App., 260 S.W. 502, it was contended that an instruction omitted an essential element in not submitting the issue whether a street was reasonably safe for travel in the ordinary modes. The instruction submitted whether there was a hole in the street which was “large, deep, and dangerous,” and that it was a “dangerous condition.” This was held sufficient, the court stating that “If the hole was large, deep, and dangerous, it would seem that necessarily the street was not reasonably safe.” 260 S.W., 1. c. 505. In Hebenheimer v. City of St. Louis, 269 Mo. 92, 189 S.W. 1180, a finding that a sidewalk was in “an unsafe, insecure and dangerous condition” was held “equivalent to a finding that it was not reasonably safe,” In Roy v. Kansas City, 204 Mo.App. 332, 224 S.W. 132, the court ruled that if the jury found that an obstruction on a viaduct constituted a dangerous and unsafe obstruction to traffic, they found that the viaduct was “not reasonably safe.”

The city urges that Instruction No. 2 is a submission of the “hard-by” rule; that this rule is not appropriate in the circumstances of this case, and that it is error to extend the hard-by rule to cover such cases as this. The city quotes the definition of the hard-by rule from Restatement of Torts and argues its inapplicability for these reasons : the accident did not happen “close to” a public highway, hut within a public thoroughfare ; a public park does not qualify as a public thoroughfare; a post is not a “dangerous artificial condition,” and the hard-by doctrine is limited to such conditions.

Plaintiff is not to be cast on the basis of labels and pigeonholes. We do not intend to extend or affect the hard-by rule by approving the use of Instruction No. 2 under these very unusual circumstances. We are simply ruling that this instruction, under these facts, properly and sufficiently submitted the city’s duty, breach of duty, and consequent injury and damage.

Judgment affirmed.