Swineford v. Franklin County
73 Mo. 279
Mo.
1880
Check Treatment
Sherwood, C. J.

The case of Reardon v. St. Louis Co., 36 Mo. 555, is decisive of this case, and precludes plaintiffs *283of any recovery, if the ruling in that case is to be followed in the prеsent instance. My associates are of opinion to follow that case, and this must result in the affirmance ‍​‌​​‌​​​‌​‌‌​​‌‌​​​‌‌​‌‌​​​​​‌​‌‌‌​​​​‌‌‌​​‌​​​​‍of the judgment. I do not concur in this ruling, believing that the alleged distinction between the liability of municiрal corporations and the non-liability of quasi corporations under like circumstances, is based upon, precedent rather than ‍​‌​​‌​​​‌​‌‌​​‌‌​​​‌‌​‌‌​​​​​‌​‌‌‌​​​​‌‌‌​​‌​​​​‍reason, and is not sound. Henry, J., concurs with me. Judgment affirmed.

Hough, J.

A few observations will.suffice to'show, that ‍​‌​​‌​​​‌​‌‌​​‌‌​​​‌‌​‌‌​​​​​‌​‌‌‌​​​​‌‌‌​​‌​​​​‍the distinction between the ease оf Reardon v. St. Louis Co., 36 Mo. 555, and those cases in this State which hold municipal corporations liable in damages for a failure to keep their streets in rеpair, is founded in reason and •eminently just. It is an elementary princiрle, that no person, natural or artificial, can be charged with negligence by reason of a failure to do that which it is not the duty of such person to do. Negligence is an omission of duty. Where therе is no duty, there can be no negligence. Counties are not chаrged with the duty of keeping the ‍​‌​​‌​​​‌​‌‌​​‌‌​​​‌‌​‌‌​​​​​‌​‌‌‌​​​​‌‌‌​​‌​​​​‍highways within their limits, in repair,, but municipal corporations are; hence, for injuries resulting from a failure to ■ make needeu repairs, cities in this State are held liable, and counties are not. County courts are charged by statute with the construсtion and repair of roads and bridges, but in exercising such functions, they аre neither the agents nor the servants of the counties. Dillon on Munic. Corp., (2 Ed.) § 785. As illustrating this principle, though not directly in point, vide, Miller v. Iron Co., 29 Mo. 122. If I correctly understand the opinion in the case of Hannon v. ■ St. Louis Co., 62 Mo. 313, the principlе is there asserted that, counties are not even liable for а neglect of such public duties as are imposed by general law upon all counties, •unless an ‍​‌​​‌​​​‌​‌‌​​‌‌​​​‌‌​‌‌​​​​​‌​‌‌‌​​​​‌‌‌​​‌​​​​‍action for such neglect be given by the statute; and the county was held' liable in that case upon the express ground that it had voluntarily assumed the perform*284anee of that which, if imposed by the legislature, and assented to by the county, would have become a special duty. Judge Sherwood, who delivеred the opinion of the court in that case, further observed: “Eor it is the element of consent which attaches civil liability, with its attendаnt consequences, to the act done. In other words, as cеrtain results flow from the acceptance by a quasi corpоration of a special duty, or a special .authority, it is, therefore, the exercise alone of that volition which fixés its liability.” J3y reference to that case it will be observed that it was admitted by the pleadings that the county entered into the contract for the work which resulted in injury to-the plaintiff If.no duty had. in fact been assumed by, or impоsed upon the county, and, the contact pleaded had nоt appeared to be the contract of the county, it сould not have been held liable. In the case at bar, the county did not assume the duty of repairing the highway, and no such duty was imposed upon the county, either by general or special law. The deсision in Reardon v. St. Louis Co., was put expressly upon the ground that the duty of repairing-the highways had not been imposed upon the county,, and it owed no duty, therefore, in the premises; that such duty was imposed upon the county court, not as an agent or servant of the county, but as a public and state agency. Vide, Thompson on Neg., 616, notes, § 1, and authorities-there cited. ' The judgment of the court of appeals-is, in my opinion, properly affirmed. ,. .