Barree v. City of Cape Girardeau ( 1908 )

BLAND, P. J.

(after stating the facts). — In the opinion, of the Supreme Court in the case (Barree v. Cape Girardeau, 197 Mo. loc. cit. 388, 389) the court said:.

“It stands admitted by the demurrer that Fritz Brunke was the servant of defendant at the time of the commission of the injury complained of by plaintiff;' but if the injury was committed while Brunke was in the exercise of a corporate franchise conferred upon the corporation for the public good, and not for private corporate advantage, the corporation is not liable for the wrongful acts of its servant. On the other hand, if Brunke was in the exercise of a power conferred upon defendant corporation for its private benefit, then the defendant is liable for the wrongful acts of its servant, as in the case of a private individual. [Murtaugh v. St. Louis, 44 Mo. 479; Williams, Municipal Liability for Tort, sec. 11.] In Hilsdorf v. St. Louis, 45 Mo. 94, it is said:

“ ‘Corporations, whether municipal or aggregate, are now held to the same liability as individuals, and will not be permitted to screen themselves behind the plea that they are impersonal, and that their acts are but the acts of individuals; and if an agent or servant of a corporation, in the line of his employment, shall be guilty of negligence or commit a wrong, the corporation is responsible in damages.’

“The making and improving of the streets by the city and keeping them in repair is a ministerial function, and relates to corporate interests only. It is well settled in this State that a municipality is liable for negligence in ■ the construction of streets or sewers. [Broadwell v. Kansas City, 75 Mo. 213; Worth v. Springfield, 78 Mo. 107; Wegmann v. Jefferson City, 61 Mo. 55; Thurston v. St. Joseph, 51 Mo. 510.]”

Defendant concedes that it is liable for the wrong complained of by plaintiff, if committed by Brunke while engaged in his duties as street commissioner. On the other hand, it is not contended by plaintiff that defendant is liable for the wrong if committed by Brunke as a police officer of the city; for the reason the act would not be for the corporate advantage of the defend-, ant city, but for the public good and in the exercise of a corporate franchise. The contention of the defendant is that Brunke was acting at the time he committed’ the injury on plaintiff as a policeman in the exercise of a corporate franchise and for the public good and on this theory of the case asked the court to give the following instruction:

“The court instructs the jury that if they believe from the evidence that the plaintiff, Elijah Barree, was-arrested by Fritz Brunke and that at the time of said arrest said Brunke was a duly appointed and acting policeman of the city of Cape Girardeau, and as such, policeman of said city, arrested said Barree, and although you may believe from the evidence that said Elijah Barree received at the hands of said policeman in making said arrest, serious and permanent injuries,, that said defendant, the city of Cape Girardeau, is not liable in this action, and your verdict will be for the defendant.”

The court refused to give the instruction and this ruling is assigned as error. This instruction should have been given, if there is any evidence tending to show Brunke made the arrest as a policeman. The evidence is all one way, that at the time Brunke injured plaintiff, he was engaged as the agent of the defendant city in making and superintending repairs of the street and that the assault was made on plaintiff because, as Brunke testified, plaintiff was displacing gravel which Brunke himself had- spread on the street and while Brunke was replacing gravel plaintiff had shoveled it away from the railroad track. Brunke could not in the ■same transaction and at the same moment act as the authorized agent of the defendant city in the performance of an act for the private benefit of the city and as a police officer in the discharge of a function for the good of the public. He could not at the same time in -one transaction, nse one of his hands in the discharge ■of his duties as street commissioner and the other as a special police officer. Besides, the evidence wholly fails to show the occasion demanded or required that Brunke could rightfully exercise his powers as a policeman, for the plaintiff was not violating any law of the State or ordinance of the city, hut was doing what he had a perfect right to do and what was necessary to be done to enable him to proceed with his car.

2. Defendant asked the following instruction which the court refused to grant, to-wit:

“The court instructs the jury that although you may believe and find from the evidence that plaintiff was injured by Brunke as a servant and agent of the defendant yet, if you further find that plaintiff, Barree, was himself engaged in a wrongful act at the time of the injury, and that- the injury is the direct result of his wrongdoings, then your verdict must be for defendant.”

No error was committed by refusing this instruction for the reason it submitted to the jury to find the legal effect of the evidence in respect to plaintiff’s action in removing gravel from the rails. It was the province of the court, not of the jury, to pass upon the legal effect of the evidence. [Charles v. Patch, 87 Mo. 450.]

3. Defendant contends very strenuously that the damages are excessive. Plaintiff was over sixty years of age at the time he was injured. His evidence tends to show that the injury not only caused a permanent and almost total loss of the use of his left arm, but that it is the source of almost constant pain and suffering. It is true defendant’s evidence tends to show the injury was but slight. The question as to the extent of the injury was one for the jury, as was, also, the amount of the compensation and in determining whether or not the verdict is excessive, the evidence most favorable to jilaintiff should be considered, and it should be given its full probative force. When this is done, if it yet clearly appears the verdict is excessive, then an appellate court may safely conclude the jury was influenced by passion or prejudice, or misapprehended the court’s instructions on the measure of damages. But it should be kept constantly in mind that the jury and the trial court who saw the witnesses and the complaining party, are in a much better position to judge of the extent of the injury than is an appellate court, and it should also be remembered that the compensation to be awarded is peculiarly the province of the jury. While it seems to us the compensation awarded to plaintiff is large, yet in the light of his evidence we are not prepared to say it is excessive, and affirm the judgment.

Q-oode, J., concurs; Nortoni, Jdissents.