Clem v. Quincy, Omaha & Kansas City Railroad Company

• Decision Date: 18 June 1906
• Citation: 96 S.W. 226,119 Mo.App. 245
• Parties: W. A. CLEM, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

96 S.W. 226

119 Mo.App. 245

W. A. CLEM, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

June 18, 1906

Appeal from Sullivan Circuit Court.--Hon. John P. Butler, Judge.

AFFIRMED.

Judgment affirmed.

J. G Trimble and Wilson & Clapp for appellant.

(1) The first count of the petition does not state facts sufficient to constitute a cause of action. It nowhere states in what manner the fences and cattle guards were defective. It merely alleges that the company failed to keep and maintain lawful fences and cattle guards. This is the statement of a legal conclusion and does not help the petition. Pattison's Mo Code Plead., secs. 34, 108, 109, 131, 144; Pomeroy's Rem and Rem. Rights, sec. 529; Bank v. Mulhall, 8 Mo.App. 558; Hart v. Wire Co., 91 Mo. 414. (2) Wherever a general demurrer to a petition would be well taken a motion in arrest of judgment is equally available. Hart v. Wire Co., 91 Mo. 414. (3) The giving of plaintiff's instruction numbered 1 was reversible error. To submit to a jury questions of law or mixed questions of law and fact for their determination is error. This instruction left the jury to find that there was a failure to keep and maintain "lawful" fences and cattle guards, without calling their attention to what constituted a "lawful" fence or cattle guard. Fugate v. Carter, 6 Mo. 267; Hickey v. Ryan, 15 Mo. 63; Turner v. Railroad, 76 Mo. 261; Carroll v. Campbell, 110 Mo. 557; Estes v. Fry, 22 Mo.App. 80; Boot & Shoe Co. v. Bain, 46 Mo.App. 581; Lesser v. Railway, 85 Mo.App. 326; Jones v. Railway, 59 Mo.App. 137.

Wattenbarger & Bingham and R. E. Ash for respondent.

(1) The rule that a pleading will be construed most strongly against the pleader, will not be applied in the appellate court when the supposed defect was not called to the attention of the trial court. Vivian v. Robertson, 176 Mo. 223. (2) Defendant's instruction in the nature of a demurrer to the evidence admitted all the facts the evidence tended to prove. Montgomery v. Railroad, 181 Mo. 477. (3) The petition stated a good cause of action and plead every fact necessary, and would at all events be good after verdict. Marshall v. Furgeson, 78 Mo.App. 645; Young v. Sickle, 103 Mo. 324; Maugh v. Hornbeck, 98 Mo.App. 392; Andrew v. Lynch, 27 Mo. 169. (4) This instruction covered the law of the case and is similar to the instruction given in Kavanaugh v. Railroad, 75 Mo.App. 78; Colyer v. Railroad, 93 Mo.App. 152. (5) Appellant must stand or fall on its demurrer to the evidence. Wheeler v. Bowles, 163 Mo. 398; Cornwell v. Transit Co., 106 Mo.App. 140; Bank v. Ragsdale, 171 Mo. 168.

OPINION

JOHNSON, J.

--In the first count of the petition plaintiff seeks to recover double damages under the provisions of section 1105, Revised Statutes 1899, for the killing of two horses by defendant. He had judgment on this count in the sum of $ 470, double the amount of the verdict returned, and defendant appealed. In addition plaintiff had judgment on the causes of action pleaded in the remaining two counts of the petition, but defendant does not claim that error was committed in the trial of either of them and our inquiry will be confined to the cause pleaded in the first count.

First, it is insisted by defendant that no cause of action is pleaded. The allegations criticized are as follows: "Plaintiff further states that on said 28th day of November, 1903, defendant failed, neglected and refused to keep and maintain lawful fences along the sides of its railroad track and to construct and maintain cattle guards, as required by law, where said road passes through over and across the farm and cultivated fields of plaintiff. That by reason of defendant's failure and neglect to keep and maintain proper and lawful fences along the sides of its said track and to construct and maintain cattle guards as provided by law inclosing its railroad on plaintiff's farm, the horses aforesaid, owned by plaintiff and by him kept on said farm, without the fault or procurement of plaintiff went upon defendant's railroad and upon the track thereof through and over said defective fences and cattle guards where said railroad passes through plaintiff's farm, in Sullivan county, Missouri, at a point where defendant was by law required to erect and maintain good and lawful fences along the sides of its said railroad and to construct and maintain cattle guards, and not at the crossing of any public highway or other road and not within the limits of any incorporated town or city."

No attack was made on this pleading by demurrer or motion, but defendant answered to the merits. At the trial defendant made the general objection that this count of the petition fails to state a cause of action, but did not state the ground of the objection. In the motion in arrest the objection was renewed. It is supported here by the argument that the pleader should have stated in what manner the fences and cattle guards were defective and that the omission of such averment is not supplied by the statement that defendant "failed, etc., to keep and maintain lawful fences . . . and to construct and maintain cattle guards as required by law," since such statement embraces nothing more than a mere legal conclusion.

We have noted the fact that the attention of the trial court was not called to this supposed defect until after verdict. In this state of the case the defect, if one exists, will be deemed to have been cured by verdict. The rule is well settled that "after verdict the petition should not be most strictly construed against the pleader, but should be construed liberally with a view to substantial justice." [Saxton v. Railroad, 98 Mo.App. 494; Munchow v. Munchow, 96 Mo.App. 553, 70 S.W. 386; Vivian v. Robertson, 176 Mo. 219, 75 S.W. 644.] It cannot be denied that defendant was notified by the averments under consideration to meet the charge of a breach of the duty imposed on it by the provisions of Revised Statutes 1899, section 1105 to erect and maintain on the land in question fences and cattle guards of the standard fixed by law (Revised Statutes 1899, sec. 3294, King v. Railway, 79 Mo. 328); and this being true, a fair and liberal construction of the petition necessitates the inference that the existence of the essential fact was sufficiently alleged to support a verdict.

The court at the request of plaintiff gave the following instruction: "The court instructs the jury that if they find and believe from the evidence that plaintiff was on the 28th day of November, 1903, the owner of the farm described in his petition and that defendant company on said day owned and operated a railroad through, over and across said farm and the inclosed and cultivated fields thereof in Duncan township, Sullivan county, Missouri, and that plaintiff was on said date the owner of the two...