45 Mo. 469 | Mo. | 1870
delivered the opinion o£ the court.
The plaintiff commenced his suit before a justice of the peace, and filed the following’statement of his cause of action:
“ EastoN, Mo., February 15, 1868.
“ The Hahnibal ahd St. Joseph R.R. Co., to Hehby B. Iba, Dr., for damages amounting to sixty-five dollars, for a cow killed on railroad, on or about the 7th day of November, 1867, $65.
Henby B. Iba.’
The defendant appeared, and, without objecting to the statement, the case went to trial. The plaintiff recovered judgment for sixty-five dollars — “double the valuation of the cow” — and defendant appealed. The Circuit Court gave judgment for only the actual value of the cow, which was reversed in the District Court. The first objection to the judgment is based upon-the alleged defects of plaintiff’s statement. The statute (Wagn, Stat. 814, § 13) requires “ a statement of the facts constituting the cause of action;” but the same completeness requisite to a petition in the Circuit Court has never been required. It is sufficient if it advise the opposite party of the nature of the claim,' and be sufficiently specific to be a bar to another action. This statement would be clearly defective as an original petition in a court of record, both in form and substance, and probably would not sustain a verdict. (West v. Hann. & St. Jo. R.R. Co., 34 Mo. 177; Dyer v. Pacific R.R., id. 127.) But before a justice of the peace it is not necessary to set out in writing all the facts which must be proved. Until 1855, no statement at all was required in cases like the one at bar — section-13, p. 814, Wagn. Stat., being then enacted. In Burt v. Warne, 31 Mo. 296, the plaintiff sued for damages to a building, making his statement in the form of a simple account, without any averment showing force or negligence, or any other fact that would charge the defendant, and the court held it sufficient. In Coughlan v. Lyons, 24 Mo. 533, the action was for damages for a wrongful seizure of plaintiff’s property, in attachment against a third person; and the statement in the form of a simple account, without any allegation of tort, was held sufficient. The opinion could have been
The defendant complains of the declarations of law in the Circuit Court, in which the court held: first, that the plaintiff was not entitled to the double damages given by the statute, but only to that actually suffered; second, that he was entitled to such damage notwithstanding that actual negligence, other than neglect to build the fence, was not proved; third, that the defendant is not required to fence the road where it passes through a town or village.
Of the first and third propositions the defendant can not complain, and the plaintiff does not; and'it is only necessary to consider the second and its application. It appears that the plaintiff’s cow was killed by defendant’s cars on that part of its track running through the open prairie near the village of Easton, and within the paper .plat of the town, as filed in the county recorder’s office; but there were no streets in fact near Avhere the accident happened. It also appears that there had been no election of ■officers and no actual organization since 1861. . The court, in ■order to make its judgment consistent Avith its formal declarations ■of law, must also have held, first, that the toAvn of Easton was .not a corporation de facto, being dissolved and suspended; and
The court was clearly right in holding that the obligation to fence could not extend to the track within towns and cities ; for though the streets be not actually opened, they are liable to be at any day, when the fence would be found an obstruction to crossing. (Meyer v. N. Mo. R.R. Co., 35 Mo. 352.) But it was also right in refusing to excuse the defendant in the case at bar. If any streets had been actually laid across its track, they only existed on paper, and there was no power to open them. The record does not advise as to wdiether the corporation was actually dissolved or only suspended.
The general rule is that a corporation is dissolved when it has lost its capacity to act or sustain itself by a new election of officers. (Ang. & Ames on Corp., ch. 22, § 3.) Nor does it greatly matter. The act of 1865 for the first time required the track tobe fenced along “uninclosed prairie lands.” The corporation of Easton had been at least suspended for several years, and the possibility that it might “be revived at some future day was altogether too remote to excuse the performance of a plain duty. Upon the second point, the court considered the claim as one for actual damages, and not for the liability imposed by the statute ; and as the plaintiff does not object to this view, it is immaterial whether his statement was broad enough to embrace the latter. The first paragraph of the section (Wagn. Stat. 310-11, § 43) positively requires the corporation to fence. If the section had stopped there, no doubt could reasonably exist as to the liability, without averment or proof of other negligence than the neglect to fence. A quasi corporation, like a county or township, is not liable for the neglect of its,officers, as in failing to repair a road or bridge, unless expressly made so by statute, and then only liable according to the terms of the statute. (Mower v. Leicester, 9 Mass. 247; Bartlett v. Crozier, 17 Johns. 439.) But corporations aggregate are in general, like individuals, liable for misfeasance and non-feasance, whether that liability be expressly provided for or not. (Riddle v. Proprietors, etc.,
Parsons, J., in Riddle v. Proprietors, etc., supra, says: “For the proprietors, in support of their motion (in arrest), a reference was made to the several statutes creating our turnpike corporations, in which an action is given to any person specially injured by a neglect to repair the road.' This provision was cumulative ex mqjori cautela, by the framers of the bills,” etc.
Morris v. Androscoggin R.R. Co., 39 Maine, 273, was an action of case for damages to plaintiff’s horse escaping from plaintiff’s inclosure through a gap in the fence dividing it from the railroad. Defendant’s charter, and also a general statute, imposed'upon it an obligation to maintain fences, and provided a forfeiture to the owner of the land for its neglect. The'court sustained the common-law action notwithstanding the statutory liability.
There is one fatal objection, however, to this record. It has always been held that the proceedings of inferior courts should show jurisdiction; and though it were better in this case that it appear in the statement of the cause of action, yet if it were shown in the writ or transcript, it would suffice. In actions for injuries to cattle, etc., the justice’s jurisdiction is confined to such as arise “within their respective townships,” thus making it a local action. Though it might perhaps, be gathered from the evidence that the injury occurred in Marion township, yet the record proper fails to show the fact; and on the authority of The State v. Metzger, 26 Mo. 65, and of Hausberger v. Pacific R.R. Co., supra, we must affirm the judgment of the District Court, reversing that of the Circuit Court.