10 Mo. App. 344 | Mo. Ct. App. | 1881
delivered the opinion of the court.
The petition alleges that plaintiff is an institution incorporated under certain acts of the Legislature approved in. 1855 and 1857, and set out by their title and the dates of their passage ;‘that the objects of the institution is the providing for the children of depraved or destitute parents ; that in June, 1866, Isabella Semple, then a widow, placed in the charge of defendant her minor child, Annie Semple, and then agreed to pay to plaintiff $4 a month for the board and lodging of said Annie whilst she should be under plaintiff’s care ; that the child remained under plaintiff’s care until she died, on April 15, 1876, still a minor; that plaintiff boarded and lodged said Annie for ninety-six months, at the rate of |4 a month; that plaintiff, during that period, furnished to Annie necessary clothing reasonably worth $277.65 ; and paid for necessary medical attendance for her, $75 ; and for the necessary expenses of her funeral, $59.50; all which is set out in an account filed as an exhibit. The total charge is $796.10. The petition further alleges that Isabella Semple was declared insane by the Probate Court of the city of St. Louis, on March 22, 1876 ; that Fritchey is her guardian, and, as such, has in
The testimony showed that Mrs. Semple was, in 1866, a very poor woman ; that she placed the child in the institution of plaintiff, and agreed to pay for its board at the rate of $4 a month; that she was to clothe the child herself; that, after the child had been there a week or two, the mother was engaged to wash at the institution, for $12 a month ; that she paid the first month’s board, and no more ; that before the end of the second month the mother became insane, and was sent to the asylum, where she has remained ever since. The ladies in charge of plaintiff’s institution took kind care of the child, not expecting to receive any further pay. The girl had epileptic fits. When she was twelve years old they tried to place her out; and she was in various places for periods amounting altogether to more than a year; but no one would keep her, on account of the fits. The articles charged in the bill'of particulars were all furnished to the child. The items are for clothing, medical attendance, and funeral expenses. The clothing was the plain necessary clothing furnished to the other children in the institution. The medical charge is for giving the child electric baths, as to which the testimony is that they gave her relief; the funeral was a plain one — it cost $59.50 ; and it would have been possible to bury the poor girl, without absolute indecency, for something less than this'. The insane mother was constantly visited by the charitable lady who has the management of the plaintiff’s institution, and manifested a truly maternal anxiety that the funeral should be decent, and that it should be paid for. The testimony shows that the articles furnished were low in price and strictly necessary, except as to funeral expenses. The child was fed and clothed just as the other children in this charitable institution were fed and clothed.
We think that the testimony supports the judgment. The
There is a conflict of authority as to the ground of the liability of a parent for necessaries furnished to an infant child. Some insist that it springs from the natural duty of the parent to support his offspring; whilst others make it a question of agency and authority, and say that the parent is bound only for what is furnished with his consent, express or implied. The first is the doctrine of Kent and Parsons ; the latter view has been taken in Illinois, Alabama, and Vermont. 2 Kent’s Comm. 191; 1 Pars. on Con. 253; Stanton v. Willson, 3 Day, 37; Edwards v. Davis, 16 Johns. 284; Gordon v. Potter, 17 Vt. 348; Hunt v. Thompson, 3 Scam. 180; Owen v. White, 5 Port. 435; Fowlkes v. Baker, 29 Texas, 135.
In New York it is said (Poock v. Miller, 1 Hilt. 108; Van Valkenberg v. Watson, 13 Johns. 480) that a parent is under a natural obligation to furnish necessaries for his infant children, and, if he neglects to do so, a person who supplies them confers a benefit on the delihquent parent, for which the law raises an implied promise to pay on the part of such parent. If the unfortunate mother of this child had retained her reason, and left her child in this institution, where, the proof is, that all parents are expected to pay something for their children when they can possibly do so, the law under the circumstances would have, implied a promise to pay for such necessary clothing as she had
Defendant moved to strike out the bill of particulars. We think the motion was properly overruled. Dates were not put opposite each article furnished; but, from the nature of the case, it was -impossible that this should be done. Every article furnished was set out in a separate item, and the dates were given in periods of six months
It does not appear by the bill of exceptions that the acts of the General Assembly of the State of Missouri set .out in the petition, under which plaintiff was incorporated, were offered in evidence. It is contended by counsel for defendant that the fact of incorporation alleged in the petition was put in issue by the general denial; and that, for this defect of proof, the judgment must be reversed.
At common law, a corporation might declare by its corporate name without averring that it was a corporation, or stating any facts to show its corporate existence, even though it was incorporated by private act, and though it was a foreign corporation. Ang. &. Ames on Corp., sect. 632, note 2. Some of the States seem to have adopted the common-law rule in this respect, and to hold the allegation of incorporation unnecessary under the Code; a ltd in some States the allegation is rendered unnecessary by statute. O’Donald v. Railroad Co., 14 Ind. 259; Ryan v. Bank, 5 Kan. 658; Iowa Code 1873, sect. 2716. Under the Code system of pleading, however, it would seem to be in accordance with the fundamental idea of that system that, except where there is estoppel, or where the caséis that of a domestic corporation incorporated by public act, the facts that give plaintiff a legal existence should be stated in issuable shape. And this is the view taken by Judge Bliss. Bliss on Code Pl., sect. 246.
Under the common-law system of pleading it was commonly held in this country that the general issue was an admission of a corporation capable of suing and of suing in the particular action. If defendants meant to insist upon the want of a corporate capacity to sue, it was said that a special plea in abatement or bar should be interposed ; and a plea to the merits admitted corporate capacity. Society v. Town, 4 Pet. 480; School v. Blaisdell, 6 N. H. 197; 3 Metc. 235;
In New York, in Wisconsin, in Virginia, and perhaps in other States, a domestic corporation need not prove its existence unless the defendant pleads the want of incorporation in abatement or in bar. 2 Rev. Stats. N. Y. 477, sect. 3. And in Virginia this must be done under oath. Crews v. Bank, 31 Gratt. 348. But these ai’e statutory provisions, and we are aware of no such statute in Missouri.
We are, therefore, of opinion, that in Missouri, where the incorporation is not by public act, and where the action is not upon a contract made by defendant with plaintiff in the name by which it sues, the fact of incorporation should be averred ; and, if a general denial is interposed, it should be proved.
It is held, however, that though the fact of incorporation is to be proved, yet, after a verdict in favor of plaintiffs who sue as a corporation, the court will presume that the fact of their being a corporation and capable' of suing in their aggregate capacity was conceded or proved on the trial. Land Co. v. Ames, 6 Metc. 391; Williams v. Bank, 7 Wend. 539.
If ever there was a case for the application of sucha rule, this is one. It is manifest that there is no question what
There is nothing whatever in the objection that plaintiff, being a charitable corporation, cannot take pay from such parents as are able to pay something for the support of their children. The charity is none the less a charity because it is discriminating. But the objection, which is strongly urged by defendant’s counsel, is, at any rate, inconsistent with a denial that plaintiff is a corporation at all.
The judgment will be affirmed.