Perpetual Insurance v. Steamboat Detroit

6 Mo. 374

• Court: Supreme Court of Missouri
• Decided: May 15, 1840
• Status: Published

Opinion

Opinion of the Court delivered by

Tompkins Judge.

The St. Louis perpetual Insurance Company brought its action against the Steam boat Detroit, in the circuit court of St. Louis county. Judgment being there given against the company, they prosecute their writ of error to reverse that judgment.

The plaintiff filed his complaint against the Steam boat,, under the provisions of the fourth section of the act to provide for the collection of demands against boats and vessels, found in the digest of 1835, at page 102. It is as follows: “ The St. Louis Perpetual Insurance Company complains of 6 the steam boat Detroit, in this, to wit: For mal performance ‘ of a contract of affreightment, to wit, dry goods from the £ port of the city of Louisville, commonwealth of Kentucky, £ to the port of St. Louis, State of Missouri, entered into by £ Thompson and F. A. Nants, clerks of said Steam boat De- £ troit, and is, in all particulars, as follows, to wit: for amount £ of dry goods lost .from one box owned by F. S. Rutherford £ $174, &c.,” enumerating the charges for-damages sustained, and some credits to the boat; and it then, proceeds, “As, al- £ so, per bills of lading, to wit, three in number, two of which £ signed by William Gore, and one by Samuel Deane, mas- £ ter of Steam boat Lilly, at the port of Pittsburg, for said £ goods, with the privilege of re-shipping;” wherein, said steam boat Lilly obligated herself to transport said goods from the port of Pittsburg, to the port of St. Louis, Missouri; and which said goods were re-shipped, at the said port of Louisville, to be transported to the said port of St, Louis, Missouri, on said steam boat Detroit, by said steam boat Lil-Iy, as per privilege in said bills of lading, here to the court shown; and which said goods, lost as aforesaid, have been abandoned by the owners thereof* in the port of St. Louis, to the said St. Louis Perpetual Insurance Company; it having insured the safe transportation of the said goods to the said port of St. Louis, from the said port of Pittsburg, &c.

To this complaint a demurrer was filed.

In the fourth section of this act, it is provided that the' complaint shall set forth the plaintiff’s demand in all its particulars, and on whose account the same accrued; and that it shall be verified by the oath of the plaintiff, or of some credible person or persons for him, and shall stand in lieu of a declaration.

No objection is taken to the sufficiency of the affidavit. The act in requiring a complaint to be filed, and in declaring that such complaint shall stand in lieu of a declaration, clearly indicates a disposition, that it shall not be required to frame a complaint with the same regard to technical forms as is observed in a declaration at common law. A contract ought to be set out with proper parties. No person is named in this complaint as contracting with the boat, by its agents. Most clearly the boat made no contract with the Insurance Company. We are not told on what terms the goods were to be transported; as has been observed, by the counsel of the boat, these goods might have been lost by the perils of the water, &c., which are usually excepted. The terms of the contract, as to the re.shipment, are not set out; whether the Lilly, on board of which the goods were shipped at Pittsburg, might not be liable to the owner of the goods, and the Detroit answerable over to the Lilly, does not appear. The twenty-first section of the act, under which this action is brought, requires, that all actions against a boat or vessel, under the provisions of this act, shall be commenced and sued within six months after the cause of such action shall have accrued. Although, the complainant ought not to be confined to proving that the cause of action accrued on the particular day that may be named in the complaint, yet some time ought to bedaid in the complaint, at least, as a date of the contract, to direct the attention of the defendant, so as to enable him to ascertain whether he is annoyed by a stale demand. It would have satisfied the law if the party had related, with a moderate degree of certainty, who were the parties to this contract; when it was entered into; the terms, &c. The complaint appears to be entirely deficient in the requisites of a correct statement of the cause of action. It s^ou^ properly have begun with a statement of the contract with the Lilly, at Pittsburg; the quantity of goods delivered and so many bales, boxes, &c.; the time and terms of delivery; that part of the contract -which authorized the Lilly to * x *• transfer the freight to the Detroit, &c. Then the breach ^a.ve been assigned. As the complaint is framed, it does not so clearly appear what right the company has to be , . ,T • , . piamtifl m this action, or to sue m its own name, on a contract -vyhich must have been made with others. Regard to ° . the rights of the defendants, ought to have induced the plain-tosíate where as well as when this loss took place, if it could have been done; as for instance, on board of which boat, if the character of the loss were such as to enable the p]ajntifF to state it.

A complaint Sled against t.nder tho°act concerning líüOfits and vessels,” for •añee of ícon-tract of af-ircightment for the dcliv-cry of goods, should set forth the pro-fatate'wVtlf’ whomthc con-.-nade — tile terms of the contract— when it was thf'quantity ef goods do-should also show that the suit was commenced with:n six months after the cause of action ac crued: otherwise, the complaint does not "set forth the plaintiff’s demand in all its particulars,” as required by the 4th section of the above act.

The judgment of the circuit court was not then, in my opinion, erroneous, in sustaining the demurrer to the plaintiff’s complaint. The other members of this court concur-ingin this opinion, the judgment of that court is affirmed.