Silver v. Kansas City, St. L. & C. Ry. Co.

• Decision Date: 15 February 1886
• Citation: 21 Mo.App. 5
• Parties: GEORGE H. SILVER, Respondent, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILWAY COMPANY, Appellant.
• Court: Kansas Court of Appeals

21 Mo.App. 5

GEORGE H. SILVER, Respondent, v. KANSAS CITY, ST. LOUIS & CHICAGO RAILWAY COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

February 15, 1886

APPEAL from Audrain Circuit Court, HON. ELIJAH ROBINSON, Judge.

Affirmed.

Statement of case by the court.

In the spring of 1878 defendant commenced the location and construction of a railroad from Mexico to Kansas City. About March it commenced grading its road from Mexico, commencing at several points west of Mexico at the same time. The construction of the road was done by the Chicago & Alton Railway Company, under contract with defendant. Plaintiff owned forty acres of land inclosed by fence, about four miles west of Mexico, through which the road as located passed. The grading was commenced on plaintiff's land about the first of March. The grading was completed from Mexico, twenty-five or thirty miles west and track was laid from Mexico west and was completed through plaintiff's farm about June 10, and was extended west at once. Defendant commenced building fences and cattle guards at once, at such points as in the judgment of its officers they were most needed. As soon as grading was commenced through plaintiff's field his fences were left open and cattle commenced going into plaintiff's fields, which was continued until July, when cross fences and cattle guards were built.

In July a lot of plaintiff's sheep came upon the track from his field and were struck and some of them killed by an engine operated by and belonging to the Chicago & Alton Railroad Company, in carrying materials to Wolf & Sons who had a sub-contract. The side fences were not built through plaintiff's field until October or November.

In August, 1878, plaintiff commenced suit for damages. The petition contained four counts. (1) for double damages under section 809 for killing the sheep. (2) for negligence in killing the sheep. (3) for trespass under section 3922 (as claimed by defendant). (4) trespass at common law for breaking plaintiff's close. The case was tried on these counts and defendant had judgment on all of them. Plaintiff appealed to the supreme court and judgment was reversed and cause remanded. In January, 1884, over five years after the commencement of the original suit plaintiff filed an amended petition containing two counts, both under section 809. One for killing the sheep, the other for damage to his crops by cattle, both occasioned by failure to fence.

Defendant moved to strike out the second count as not being an amendment to the original petition, the motion was overruled and defendant pleaded the statute of limitation to that count. To both counts it pleaded a general denial. That the damage complained of was done by contractors, and that defendant used due diligence in fencing its road.

Defendant took the depositions of two witnesses in Chicago. The certificate of the notary public, before whom they were taken, showed that he was a notary of Dupage county Illinois, and that the deposition was taken in Cook county in said state. On this ground, on motion of plaintiff, the deposition was suppressed, to which action error is assigned. Defendant asked the court to declare the law to be that the cause of action set up in the second count was barred by the statutes of limitation. That as a matter of law upon the pleadings and evidence plaintiff could not recover on the first count. That defendant had the right to determine what part of its completed road should first be fenced. That plaintiff could not recover on the first count for injuries caused by the engines, cars and servants of a contractor. All these instructions were refused, and the action of the court is assigned as error. Upon the trial plaintiff asked a witness when stock commenced trespassing upon his field. Defendant objected to any testimony as to damage done by trespassing cattle before its road was completed, on the ground that the statute did not require defendant to fence its road until completed. Objections were overruled and witness testified to damages done by stock in March as soon as grading commenced. The action of the court in admitting such evidence is assigned as error. The verdict was for plaintiff on both counts. On plaintiff's motion judgment was entered for double the amount of the verdict. Defendant moved in arrest of judgment on the ground that neither count in plaintiff's petition stated a cause of action and the judgment was not authorized by the pleadings and evidence and the motion was overruled.

MCFARLANE & TRIMBLE, for the appellants.

I. The amended petition states a different cause of action from that contained in the original petition; is under a different statute and requires different proof. Such an amendment will not be allowed. Bliss on Code Pleading, sect. 429; Lottman v. Barnett, 62 Mo. 159. The cause of action must be determined by the petition itself.

II. The notary public in Illinois had jurisdiction to take the depositions in Cook county in said state. The statute of that state is broad enough to authorize a notary to act in any part of the state. In case of a notary taking a deposition our law confers a jurisdiction regardless of the laws of the state in which the deposition is to be taken. Sect. 2123 Rev. Stat. The presumption would be that an officer acting under authority of our law was acting within his jurisdiction under the laws of his own state. People v. Snyder, 41 N.Y. 402; Squire v. Stockton, 5 La. 120; Rev Stat. Illinois (1881) sect. 9.

III. The obligation to fence does not arise until the road is completed; the statute contemplates a completed road. Sect. 809, Rev. Stat.

IV. There can be no recovery for injury to plaintiff's sheep by a collision with a train belonging to another corporation. The statute is penal, and must receive a strict construction. Fowler v. Railroad, 37 Mo. 228; Ingals v. Cole, 47 Me. 336.

V. The petition stated no cause of action which would enable plaintiff to recover from one company for the act of another. Railroad v. Booker, 90 Ind. 581.

I. HALL, for the respondent.

I. Defendant answered the amended petition, and made its defence to it on the trial. Ward v. Pine, 50 Mo. 38; Ely v. Porter, 58 Mo. 158; Scovill v. Glasner, 79 Mo. 449.

II. The depositions from Illinois were rightfully suppressed. The certificate showed the notary to be acting outside of his jurisdiction. If he had authority throughout the state, or in any other county, it devolved upon defendant to show it by competent evidence at the time. Our statute confers no powers beyond what notaries possess in their state. The decisions of Illinois sustain this view as to that state. Van Dusen v. People, 78 Ill. 45. So in this state. Hoggard v. Railroad, 63 Mo. 302; State v. Baker, 74 Mo. 394.

III. All the questions raised herein by appellant, as to the duty of defendant to fence its road, and when that obligation commences, have been decided against it by the supreme court in this case, reported in 78 Mo. 528.

IV. Section 809, Revised Statutes, did not intend that there should be an absolute ownership of the engines, etc., in the railroad corporation owning the road; but that it should be liable for stock killed or injured by engines operated for its use, by reason of failure to construct...