Miller v. Ste. Genevieve County, 48580

• Decision Date: 11 June 1962
• Docket Number: No. 2,No. 48580,48580,2
• Citation: 358 S.W.2d 28
• Parties: Jesse B. MILLER, individually, and as a member of a class of taxpayers, Appellant, v. STE. GENEVIEVE COUNTY, Missouri, and Joseph X. Flieg, Rudolph E. Field and Oswald H. Meyer, individually, and as Judges of the County Court of said County, Respondents
• Court: Missouri Supreme Court

Page 28

358 S.W.2d 28

Jesse B. MILLER, individually, and as a member of a class of taxpayers, Appellant, v. STE. GENEVIEVE COUNTY, Missouri, and Joseph X. Flieg Rudolph E. Field and Oswald H. Meyer individually, and as Judges of the County Court of said County Respondents.

No. 48580.

Supreme Court of Missouri, Division No. 2.

June 11, 1962.

William C. Barnett, St. Louis, for appellant.

Charles A. Weber, Ste. Genevieve, for respondents.

STOCKARD, Commissioner.

Plaintiff has appealed from a judgment dismissing his petition for failure to state a claim upon which relief can be granted.

The action was brought in two counts. Plaintiffs alleged in Count I that he is the owner of 907 acres in Ste. Genevieve County. The defendants are Ste. Genevieve County and Joseph X. Flieg, Rudolph E. Field and Oswald H. Meyer who are alleged to be the judges of the county court of said county. Plaintiff alleged that on or about December 1, 1959, the defendants trespassed on his land and caused their agents and servants to operate thereon a bulldozer, grader and trucks, and in doing so destroyed growing timber of the value of $1,000, and 'as a direct result thereof defendants are liable to plaintiff for damages in the sum of $3,000, according to law.' In separately numbered paragraphs, but in the same count, plaintiff alleged that he was the owner of a private road which was of 'great value' as an access road, and the defendants caused 'highly destructive work' to be done thereon which rendered the road impassable. He then alleged that his actual damage was $10,000, and because the acts of the defendants were 'intentional, unwarranted, unlawful, malicious, and without just cause or excuse' he is entitled to punitive damages in the amount of $10,000.

Plaintiff apparently attempted to state a claim for treble damages for trespass pursuant to Section 537.340 RSMo 1959, V.A.M.S., and he improperly commingled in the same count an attempt to state a cause of action for actual and punitive damages resulting from a common law trespass on his private road. See Civil Rule 55.13, V.A.M.R. Although defendants have filed a brief in this court they do not question the right of plaintiff to maintain an action in tort against Ste. Genevieve County or against the named individuals as judges of the county court. Plaintiff presents nothing in his brief in justification of his right to do so. We are compelled, under the circumstances, to raise the question sua sponte.

Aside from any right of plaintiff to just compensation if Ste. Genevieve County has taken or is in the process of taking or damaging his property for a public use, see Art. I, Sec. 26, Constitution of Missouri, V.A.M.S., counties are territorial subdivisions of the state, Clark v. Adair County, 79 Mo. 536, and are quasi corporations and political subdivisions of the state exercising purely governmental functions, and as such are clothed with the state's immunity from tort liability, including that for trespass, in the absence of a statute or constitutional provision to the contrary. Cullor v. Jackson Township, Putnam County, Mo., 249 S.W.2d 393; Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306, 309; 20 C.J.S. Counties Sec. 320 and Sec. 319; 14 Am.Jur. Counties Sec. 48; 25 Am.Jur. Highways Sec. 94. See also Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279; Clark v. Adair County, supra; Sharp v. Kurth, Mo.App., 245 S.W. 636; Dillon, Municipal Corporations, Vol. IV, 5th Ed., Sec. 1640, p. 2856. Plaintiff has alleged nothing in his petition to take this case out of the above general rule, and we necessarily conclude that insofar as Count I purports to state a claim against Ste. Genevieve County for tort, that is, for statutory or common law trespass, it was properly dismissed for failing to state a claim upon which relief can be granted.

This leaves the question of whether a claim is stated in Count I upon which relief may be granted against the individual members of the county court. Other than naming the individuals in the caption, the only specific reference to them in the petition is that 'Defendants Joseph X. Flieg, Rudolph E. Field and Oswald H. Meyer, are, and were at all such times, Judges of the County Court of defendant Ste. Genevieve County, Missouri.' It is then alleged that the 'defendants,' meaning the county and the individual judges thereof, did or caused to be done the acts complained of. While it is not clear from the petition, it is reasonably apparent that the acts were done in the construction of a road, an activity expressly authorized and directed to be carried on by the county court. Section 229.040 RSMo 1959, V.A.M.S. The effect of the allegations in the petition is that in doing the acts complained of the named individuals acted in their official capacity as judges of the county court and within their authority, and 'The officials of [a] county * * * are agents of the state in the performance of their duties with reference to bridges and roads.' State ex rel. Reynolds County v. State Highway Commission, 328 Mo. 859, 42 S.W.2d 193, 196. Any allegations which might be said to imply that the acts complained of were in excess of or outside of their authority as county judges are mere conclusions only, and as such are to be considered as no statement at all. Goodson v. City of Ferguson, Mo., 339 S.W.2d 841. When acting in their official capacity no personal liability for tort is incurred by the county judges in the absence of a statute imposing such liability. Cullor v.Jackson Township, Putnam County, supra; 20 C.J.S. Counties Sec. 97. See also 25 Am.Jur. Highways Sec. 605, and 39 C.J.S. Highways Sec. 171, and the general rules there set out as to when public officers may be personally liable for injuries to property.

Under the circumstances, Count I does not state a claim upon which...