2 S.W. 302 (Mo. 1886), Brown v. City of Cape Girardeau

Citation:2 S.W. 302, 90 Mo. 377
Opinion Judge:Ray, J.
Party Name:Brown et al., Plaintiffs in Error, v. The City of Cape Girardeau
Attorney:Lewis Brown for plaintiffs in error. W. D. Penny and J. B. Dennis for defendant in error.
Case Date:December 20, 1886
Court:Supreme Court of Missouri

Page 302

2 S.W. 302 (Mo. 1886)

90 Mo. 377

Brown et al., Plaintiffs in Error,


The City of Cape Girardeau

Supreme Court of Missouri

December 20, 1886

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


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...

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