Brown v. City of Cape Girardeau

Decision Date20 December 1886
Citation2 S.W. 302,90 Mo. 377
PartiesBrown et al., Plaintiffs in Error, v. The City of Cape Girardeau
CourtMissouri Supreme Court

Error to Cape Girardeau Court of Common Pleas. -- Hon. Robert L Wilson, Judge.

Affirmed.

Lewis Brown for plaintiffs in error.

Fraud and damage will give a party relief in any court, either of law or equity. The malicious prosecution of a civil action without reasonable or probable cause, is a good cause of action against the party prosecuting such suit. Alexander v. Harrison, 38 Mo. 258; Brady v. Ervin, 48 Mo 533. A municipal corporation is liable in damages for injuries to the citizen. The nature of the injuries is not the test of liability. Soulard v. St. Louis, 36 Mo. 546; Maleck v. Tower Grove, 57 Mo. 17; Howenstein v. Railroad, 55 Mo. 33; Perkins v. Railroad, 55 Mo. 201; Imler v. Springfield, 55 Mo. 119. The current of American authorities is, that such corporations are not responsible for acts of political or legislative authority, but in the discharge of ministerial or specified duties, assumed in consideration of the privileges conferred by their charter, they are responsible for the misconduct, negligence or omission of its servants. Cooley's Const. Lim., 248-9; Cooley on Torts, 122-3; Richmond v. Long, 17 Gratt. 375; Rochester, etc., v. Rochester, 3 N. Y. App. 463; Lloyd v. Mayor, 1 Seldon (N. Y.) 369; Delmonico v. Mayor, 1 Sanford (N. Y.) 222; Iveet v. Trustees, etc., 16 N.Y. 161; Hannon v. St. Louis, 62 Mo. 316-17; St. Louis v. Gurno, 12 Mo. 419. A municipal corporation is liable, in an action of tort, for the irregular and illegal exercise, by its authorized agents, of a power which the corporation possesses. Howell v. Buffalo, 15 N.Y. 512; Wilde v. New Orleans, 12 La. Ann. 15; Soulard v. St. Louis, 36 Mo. 546; Hildreth v. Lowell, 11 Gray, 345; Wallace v. Muscatine, 4 Greene, 373; McCombs v. Ackron, 15 Ohio 474; Thayer v. Boston, 19 Pick. 511; Boom v. Utica, 2 Barb. 104; Smith v. Birmingham, 1 A. & E. 526.

W. D. Penny and J. B. Dennis for defendant in error.

(1) The question as to whether or not a municipal corporation is liable in an action for malicious prosecution, cannot properly arise in this action: (a) Because the pleadings nowhere allege, or admit, that defendant is a corporation of any kind. (b) If the petition had so alleged, the objection would have been taken advantage of by demurrer to plaintiffs' cause of action. (2) The petition was manifestly defective. Revised Statutes, 1879, section 3511, provides that the petition shall contain "a plain and concise statement of the facts constituting the cause of action without unnecessary repetition." In Scott v. Robards, 67 Mo. 298, this court say: "All the facts which constitute the cause of action, must be stated." "Every fact which the plaintiff must prove, to maintain his suit, must be alleged." Pier v. Heinrichoffen, 52 Mo. 333. And the facts, when pleaded, must show a legal cause of action; such as, if true, would entitle the plaintiff to a judgment. Jones v. Fuller, 38 Mo. 363; Biddle v. Boyce, 13 Mo. 532; Bankston v. Farris, 26 Mo. 175. The petition does not state, (a) That the defendant is a municipal corporation, a necessary allegation. Higgins v. Railroad, 36 Mo. 418; State v. Patton, 42 Mo. 530; State v. Watson, 38 Mo. 489. (b) Does not state that defendant is empowered by its charter to sue and be sued. (c) Does not affirm or deny that defendant is authorized to assess taxes. (c) Does not affirm or deny that defendant is authorized to sue for and collect taxes. These and other omitted averments we think necessary to state a cause of action, because it is well settled that, "to create a liability for damages, it is fundamentally necessary that the act done, which is injurious to others, must be within the scope of the corporate power, as prescribed by charter or positive enactment." 2 Dill. Mun. Corp. [3 Ed.] sec. 968; Hunt v. Brownville, 65 Mo. 620; Schumacher v. Louis, 3 Mo.App. 297. And in State v. Harper, 58 Mo. 530, this court say: "The powers conferred on municipalities are subordinate to the powers of the legislature over the same subject, and the latter will never be presumed to have abdicated its right to exercise these powers unless it is plainly so stated," etc. In Bowie v. Kansas City, 51 Mo. 454, it is said: "Where the existence of a public corporation within this state is admitted, particularly of a municipal corporation, the courts will take judicial cognizance of the laws regulating its organization, rights and duties." (3) But the pleadings neither affirm nor admit the existence of a corporation of any kind, and, from the petition in this case, it could not be ascertained whether defendant is a steamboat or passenger car. The allegation in plaintiffs' petition that defendant "wilfully, maliciously, and without probable cause, instituted, and caused to be instituted against these plaintiffs, a certain false, groundless, malicious and vexatious suit," etc. * * * "for taxes," smacks more of a conclusion of law, than a plain and concise statement of the facts constituting plaintiffs' cause of action. The one matter upon which plaintiffs seem to rely for recovery, etc., the continuance of said suits from term to term, from 1879 to 1884, does not constitute a cause of action.

OPINION

Ray, J.

The first count of the petition in this case is as follows:

Plaintiffs state that they are now, and for more than fifteen years last past have been, husband and wife. Plaintiffs state that defendant wilfully, maliciously and without probable cause, instituted, and caused to be instituted, against these plaintiffs, a certain groundless, false, malicious and vexatious suit in this court, on, or about the ninth day of April, 1879, for certain taxes, alleged to be due and owing by this plaintiff, Theodocia Brown; that said suit was made returnable to the May term, 1879, of this court; and by the statutes in such cases made and provided, said suit was triable at said May term, 1879; nevertheless, plaintiffs state that said action was never brought to a hearing by this defendant, although solicited, demanded, and requested so to do; that thereafter the said city of Cape Girardeau, on, to-wit, January 30, 1884, in term time of said court, did, voluntarily, dismiss the same, and so said cause of action had wholly ceased, and been determined as aforesaid; that by reason of said false, malicious and groundless suit, as aforesaid, plaintiff, Theodocia Brown, hath been put to great trouble, annoyance, and the employment of an attorney, to her damage in a great sum, to-wit: the sum of five hundred dollars, for which she demands judgment.

The second count is for damages for the institution of another suit for taxes in the following July, and its allegations are in all respects similar.

The answer of defendant was a general denial. The cause coming on for trial, defendant objected to the introduction of any evidence, upon the grounds that the petition did not state facts sufficient to constitute a cause of action, and because a municipal corporation is not liable in damages for the malicious prosecution of...

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