Fields v. Wabash, St. Louis & Pacific Ry. Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 203
• Parties: FIELDS v. THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

80 Mo. 203

FIELDS

v.THE WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Daviess Circuit Court.--HON. JNO. C. HOWEL, Judge.

AFFIRMED.

Wells H. Blodgett and Geo. S. Grover for appellant.Rush & Alexander for respondent.

NORTON, J.

This suit originated before a justice of the peace, and upon a trial of the same in the circuit court, upon defendant's appeal, judgment was rendered in favor of plaintiff, from which defendant has appealed. The sufficiency of plaintiff's statement of his cause of action and the action of the court in giving and refusing instructions, are questioned by the appeal.

So much of the statement as is necessary to an intelligent disposition of the question raised, is as follows:

“Plaintiff says that on or about the 17th day of December, 1880, at the county of Daviess in the State of Missouri, and in Benton township, in said county, where defendant's road runs and passes through and along inclosed and cultivated fields, and where defendant was bound by the statute of Missouri to make, construct and maintain lawful fences and cattle-guards on and along the sides of its road, and where defendant had wholly failed to make, construct and maintain any such fences or cattle-guards, the defendant did, by its agents, cars and locomotives, on its said road and at the point aforesaid * * wound and kill one steer, the property of plaintiff, of the value of $30, and did strike, wound and bruise one steer, of the value of $30, injuring him to the amount of $20 * *; and plaintiff says the injuries aforesaid to his cattle were done and the damage aforesaid arose solely on account of the defendant's failure to make, construct and maintain lawful fences and cattle-guards, as required of it by law, as aforesaid, in and along the inclosed field aforesaid on the sides of its road.” The statement concluded by asking judgment for double damages under the statute.

1. RAILROADS: killing stock: justice's jurisdiction.

It is urged by counsel that the statement is fatally defective because it does not show that the suit was brought before a justice of the peace of the township where the stock was injured. If in determining this question we were confined to the statement alone, the objection would be well taken. We are not, however, restricted to limits so narrow, it having been held in the cases of Barnett v. Railroad Co., 68 Mo. 556, and Iba v. Railroad Co., 45 Mo. 469, that if it appear, either from the statement filed or from the justice's transcript, that the stock was killed in the township where suit was brought, it is sufficient. In the case last above cited it was said: “It has always been held that the proceedings of inferior courts should show jurisdiction; and though it were better in this case that it appear in the statement of the cause of action, yet if it were shown in the writ or transcript it would suffice.” Under the principle of these cases we can resort to the transcript for the purpose of fixing the locus in quo of the justice who tried the case, and looking at it, it shows that he was a justice of the peace of Benton township, where the statement alleges the stock was injured.

2. ____: ____: pleading.

It is also urged that the statement is insufficient because it does not aver that the stock got on the track of the road at a point where it was not fenced as required by law....