Daniels v. St. Louis

• Decision Date: 31 January 1876
• Citation: 62 Mo. 43
• Parties: JOHN M. DANIELS, Defendant in Error, v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILROAD COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

62 Mo. 43

JOHN M. DANIELS, Defendant in Error,

v.ST. LOUIS, KANSAS CITY AND NORTHERN RAILROAD COMPANY, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1876.

Error to Audrain Circuit Court.

Wells & Blodgett, for Plaintiff in Error, cited Gorman vs. Pac. R. R., 26 Mo., 441; Sloan vs. Pac. R. R. 61 Mo., 24; Sly vs. Penn. R. R. Co., 65 Penn. St., 209; Campbell vs. Marietta & Cin. R. R., 23 Ohio St., 188-9; Tomlinson vs. Branch, 15 Wal., 465; Phil. & Wilm. R. R. vs. Maryland, 10 How., 376; State ex rel. vs. Greene Co., 54 Mo., 540.W. O. Forrest, with Daniel Brothers, for Defendant in Error.

I. Plaintiff in error was subject to the rule of damages as fixed by its own charter. (Wagn. Stat, 310, § 43, et seq.; Bac. Abr., vol., 2, Title Corporation, p. 452; Beatty vs. Marine Ins. Co., 2 Johns., 109; Ruggles vs. Collier, 43 Mo., 375, and cases cited.)

II. Plaintiff in error did not, and could not, by the conveyance mentioned in the record, acquire any of the corporate franchises of the North Mo. R. R. Co., so as to change or alter its duties or liabilities, as imposed and fixed by its own charter. (Bac. Abr., vol. 2, p. 439; Stewart vs. Jones, 40 Mo., 140; Ohio ex rel. vs. Sherman, 22 Ohio St., 428; Coe vs. Col. Piq. & Ind. R. R. Co., 10 Ohio St., 378; Atkinson vs. The M. & C. R. R. Co., 15 Ohio St., 33, et seq.; Campbell vs. M. & C. R. R. Co., 23 Ohio Stat., 168.)

NAPTON, Judge, delivered the opinion of the court.

This was an action for damages under section 43 of the 2nd article of the general corporation act. (Wagn. Stat., 310.)

It is unnecessary to state the details of the petition and answer, or the instruction, verdict and judgment for the plaintiff, as the only question is, whether the defendant is subject to all the duties and liabilities imposed on railroad corporations by the 43d section above referred to. The facts necessary to an understanding of the point in controversy were agreed on, and are substantially these:

The North Mo. R. R. Co. was incorporated in 1851, and the charter was amended in 1853, and again by an act of February 18, 1865. By this last act, which it is agreed was duly accepted by the company, the following provisions were made: 1. “When any part of said N. M. R. R. now constructed, or to be constructed, passes through any improved lands, it shall be obligatory on said R. R. Co. to fence each side of said road with a good, lawful fence of rails or posts and plank, and after the lands are so fenced, the fence shall be maintained and kept in good order at the expense of the owner of said lands; and should the owner neglect to keep up said fence and keep gates closed, and stock belonging to the owner of said lands should be killed in consequence thereof, the said R. R. Co. shall not be liable for the killing of stock where the road has been so fenced at the expense of the company.” 2d. “When any portion of said road or its branches, now constructed, or to be constructed, shall pass through unimproved lands, the N. M. R. R. Co. shall not be required to fence such lands; but in the event of stock being killed by the carelessness of the running of trains by said company, it shall be required to pay the full value of said stock, and where stock shall not have been killed by carelessness in running trains of said company, it shall pay one-half of the value of all stock killed, and the carcasses of all animals killed shall belong to the owner of the animals killed; but when full compensation is made, the value of the carcass shall be credited, and only the actual loss paid.”

On the 1st of October, 1868, the N. M. R. R. Co. borrowed four millions of dollars, and to secure the payment thereof executed a mortgage of the road, and all the privileges, franchises, powers, etc., belonging to said corporation, to Humphreys and Vail, trustees. Default being made in the payment, on the 26th of August, 1871, the trustees advertised the road and sold it, in accordance with the mortgage, to one Jessup. It is agreed that the N. M. R. R. Co. had the power and authority to borrow money and to mortgage and convey the railroad and all its property, rights and franchises, etc., to secure the payment of any sum so borrowed.

On the 2d day of January, 1872, the St. Louis, Kansas City and Northern Railway Company was duly organized under the general laws of the State. This last company, the present defendant, was authorized to build a road in the city and county of St. Louis, from North Market, the then terminus of the N. M. R. R., to Plum street, and in the counties of Clay and Jackson, from the terminus of the N. M. R. R., in Clay county, to the Union depot in Kansas City. The road was built, and on the 5th of February, 1872, the company purchased from Jessup all the N. M. R. R., its privileges, rights, franchises, real estate and other property.

This purchase was made under the authority of an act of the legislature passed March 24th, 1870, which provided that any railroad company organized in pursuance of the laws of this State, might lease or purchase all, or any part of a railroad, with all its privileges, rights, franchises, real estate and other property, the whole or a part of which was in this State, and constructed, owned or leased by any other company, if the lines of the road or roads of said companies were continuous, or connected at a point within or without this State, upon such terms as might be agreed upon, etc.; provided that no such lease or purchase should be perfected until a meeting of the stockholders of said company or companies of this State, party or parties to such agreement, whereby a railroad in this State might be leased or purchased, should have been called by the directors thereof, at such time and place and in such manner as they might designate, and the holders of the majority of the stock of such company, in person or by proxy, should have assented thereto.” It is agreed that the purchase thus made was with the unanimous consent of the stockholders of the St. Louis, Kansas City and Northern Railway Company.

The question is as to the liability of the defendant to damages under the 43d section of the general railroad law.

The...