Harris v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 28 February 1866
• Citation: 37 Mo. 307
• Parties: BENJAMIN E. HARRIS, Respondent, v. THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

37 Mo. 307

BENJAMIN E. HARRIS, Respondent,

v.THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Macon Circuit Court.

Carr, for appellant.

I. This suit is not based upon any statute to recover any penalty; it does not purport to be. It totally fails to show any cause of action under any statute. It is not alleged that appellant is even a corporation of this State. This it is necessary to do, in order to show a cause of action, where none existed at common law. (Welton v. Pacific R. R., 34 Mo. 358; Williams v. Hingham et al., 4 Pick. 341; R. C. 1855, § 53, p. 1239.) The first count is in the nature of the common law action of trespass de bonis asportatis.

II. The second count totally failed to state any causes of action. A party is never presumed to prove more than he alleges; and if he fails to allege facts sufficient to constitute a cause of action, and a verdict and judgment are rendered on such defective allegation, such judgment will be reversed in the Supreme Court although there was no demurrer, or motion in arrest of judgment, filed. (R. C. 1855, § 10, p. 1231; Lynn v. St. Bt. Indiana, 25 Mo. 235; 29 Mo. 169; 7 Barb. 581.)

Prewitt, for respondent.

WAGNER, Judge, delivered the opinion of the court.

Harris filed his petition in the Macon county Circuit Court against the appellant, claiming damages in the sum of two thousand dollars, for the loss of a negro slave named Isaac. The petition contained two counts, the first stated that the appellant, without leave and wrongfully, took the slave and did not return the same; the second count alleged that appellant, by failing to use ordinary care and diligence in the management of its railroad cars, caused respondent Harris to lose said negro slave.

On the trial no evidence was introduced tending in anywise to sustain the allegation in the first count, and it was therefore considered as waived.

It will not be necessary to review all the testimony and examine al the instructions in detail given and refused by the court. The evidence, in substance, showed that the respondent, being in St. Louis, wrote to his wife at Macon to send to him his slave Isaac, and in pursuance of this instruction, Mrs. Harris wrote and delivered to the negro a pass, directed to the conductor of the appellant's road, requesting him to take charge of and pass the said slave to Hannibal, and deliver him to one of the boats of the Keokuk Packet Company, and not allow him (the slave) any liberties. The writing, or pass, was not produced at the trial, and secondary evidence was admitted as to its contents, against the objection of appellant's counsel.

The slave made his escape, but whether before or after he reached Hannibal, does not appear.

The court, at the instance of the respondent, instructed the jury, that, 1. If they believed from the evidence the slave was put in the car of the defendant, with the letter of Mrs. Harris, and that it was shown to the conductor, it was his duty to take charge of him and endeavor to keep him...