Gray v. Steamboat Reveille , 6 Wis. 59 ( 1858 )

By the Oow't,

Cole J.

This Court decided, in the case of the Stewriboat Galena vs. Beals, 4 Wis. R., 91, that in a suit brought under Chap. 116, R. S., to recover damages for the non-performance of a contract of affreightment, it was abso-solutely essential that the complaint set forth those matters of fact, and contain those allegations, which would show that the case fell fully within the provisions of the statute. The proceeding is a special one, given by statute, and facts which are jurisdictional cannot be presumed, but must affirmatively appear in the complaint. The doctrine of the case just cited is strictly applicable to the questions arising upon this appeal. In the case under review a suit was instituted under Chap. 116 for alleged injuries done by the steamboat Reville to the steamboat H. T. Teat-man, (of which latter boat the respondents are owners,) by a collision on the Mississippi River. But there is no allegation in the complaint that the collision arose from any neglect, default, or culpable misconduct on the part of the officers, or men who had charge of the Reveille. For aught that appeal’s in the complaint, the collision might have been the result of unavoidable accident; the Reveille might have become unmanageable in consequence of the breaking of her machinery, or the crew might have lost control of her from some other cause, or the crew of both boats might have been equally in the wrong; or the collision might have wholly resulted from the gross negligence or want of skill on the part of those who had charge of the Yeatman. There certainly should he some averment in the complaint that the collision was occasioned hy the wilful neglect or design of the parties having charge of the Eeveille, without any fault on the part of the crew of the Yeatman. Eor if the collision was the result of the common fault of both parties, it is manifest-no action would lie; and for a stronger reason it is evident that the Eeveille could only he liable to respond in damages for the injuries committed, because the party having control of her were inexcusably in the fault.

Considering the complaint radically defective, we think the motion made in the Circuit Court -to quash the writ, and dismiss the proceedings, should have been sustained.

The order, therefore, overruling this motion, must be reversed, and the proceedings dismissed.