Fickle v. St. Louis, Kansas City & Northern Ry. Co.

• Decision Date: 31 October 1873
• Citation: 54 Mo. 219
• Parties: WILLIAM FICKLE, Respondent, v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

54 Mo. 219

WILLIAM FICKLE, Respondent,

v.ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

John M. Woodson, for Appellant.

I. The counts in the petition first filed were below the concurrent jurisdiction of Circuit and Justices' Courts, and the Circuit Court should have dismissed the same. (Clark's Adm., vs. Han. & St. Joe R. R. Co., 36 Mo., 202.)

II. The double damage liability imposed by § 43 (W. S., 310) is a penalty recoverable only in the name of the State of Missouri, under § 42 of the same Act. By taking sections 42 and 43, and construing them together, it will be seen, if such double liability is a penalty, that it was unnecessary to provide a means for the recovery thereof in such section 43, as such remedy or means is provided in section 42. Again, by section 5 (W. S., 520,) a full and complete remedy is given to the owner of any animal killed or injured, &c. Construing the two statutes as consistent statutes, it follows that section 5 defines the owner's right of recovery to the extent of the value of his property; and section 43, being a general police regulation, enacted for the protection of the public, defines the rights of the public, the people, the State of Missouri, which alone can sue for the penalty therein provided for. To the position taken it may be said, this court has passed upon this question of double liability in the case of Trice vs. Han. & St. Joe R. R. Co., 49 Mo., 436. It is admitted that, in that case, the question of double damages was involved; but the question now presented, a want of jurisdiction in the court and the right of respondent to sue in his own name, were not considered.

That case is regarded as an authority to support this position. It undoubtedly settles the constitutionality of the statute requiring railroad companies to fence; but it as well settles the question that such statute would be unconstitutional, were it not that a penalty is imposed for a failure to fence, which the legislature may dispose of in its discretion; and being a penal statute, all of its provisions should be strictly construed. And if a means of enforcement is provided by any section of such statute, it should be pursued, and no remedy not specifically provided should be implied. (State vs. Han. & St. Joe R. R. Co., 51 Mo., 532.)

III. The instructions asked by appellant should have been given. The respondent offered no evidence to show at what point the stock strayed upon the track. (Cecil vs. Pac. R. R. Co., 47 Mo., 246.)

IV. “A general verdict on the several separate counts in respondent's petition was error.” The motion for a new trial among others, assigned as a reason for setting aside the verdict, because the finding or verdict is not specific or proper.” (Bigelow vs. N. Mo. R. R. Co., 48 Mo., 510.)

DeFrance & Halliburton, for Respondent.

I. The Circuit Court had jurisdiction of the case originally, if all the counts together claimed judgment for $20.00. (Langham vs. Boggs, 1 Mo., 476, and cases cited; Judson vs. Macon Co. U. S. Cir. Ct., West Dist., Mo. [April Term, 1873]; W. S., 343, § 11; 14 Mo., 396; Clark's Adm'r vs. Han. & St. Joe. R. R. Co., 36 Mo., 202.)

II. The plaintiff under the evidence was clearly entitled to a judgment for double damages. (W. S., 310-11, § 43; Lafferty vs. Han. & St. Joe. R. R. Co., 44 Mo., 291.)

III. Each count of the petition in this case is good under the decisions of the Supreme Court. (Quick vs Han. & St. Joe. R. R. Co., 31 Mo., 393; Miles vs. Han. & St. Joe. R. R. Co., 31 Mo., 407.) They contain every allegation required by the statute. (W. S., 310-11, § 43.)

IV. The error, if any, in the finding was not properly brought to the attention of the court below in the motion for new trial.

VORIES, Judge, delivered the opinion of the court.

This action was brought in the Adair Circuit Court, to recover double damages from the defendant for the killing of stock by the cars conducted by the agents of defendant, at a point on its railroad where the said road was not fenced, and in the inclosed field of the plaintiff where there was no public crossing, &c.

The amended petition of the plaintiff consisted of four counts, which were all similar in their allegations, except as to the description of the stock killed, and as to the amount of damages claimed.

The allegations of the first count of the petition are substantially as follows:

1st. That the defendant is a corporation, &c., and was on the 1st day of August, 1872, the owner and occupier of a certain railroad leading from the city of St. Louis to Bloomfield, Iowa, and passing through Adair county in the State of Missouri, and of certain cars and locomotives running thereon.

2nd. That the plaintiff was then the owner and possessor of two calves of the value of twenty dollars, which calves without the fault of plaintiff strayed upon the track of said railroad at a point on the same, where it passed through plaintiff's inclosed field, where said road was not fenced, and where there was no public crossing on said road.

3rd. That defendant by its agents and servants so carelessly and negligently ran and managed the said locomotive and cars, that they ran against and over said calves, killing one and crippling the other, at a point on said road where the same was not fenced, and where there was no public crossing on said road, and in plaintiff's inclosed field.

4th. That the plaintiff was damaged thereby in the sum of seventeen dollars, and prays a judgment for thirty-four dollars, double the amount of the damages so sustained.

The defendant filed a motion to dismiss the suit for the reason, that the petition consisted of four counts setting out four separate causes of action, none of which claimed damages for as much as twenty dollars, and that therefore the court had no jurisdiction of the case, except by an appeal from a justice's court. This motion was overruled, and the defendant at the time excepted.

The defendant then filed an answer, denying the material allegations of the petition, except that it did not deny its corporate existence. The case was tried by the court, a jury having been waived by the parties.

The only witness introduced on either side was the plaintiff, who was introduced in his own behalf. His testimony tended to prove, that he was the owner of the calves, one of which was killed by the cars of defendant on the 15th of August, 1872; that there was no public crossing of the road where it was killed; both calves were injured by the cars, one internally, the other had a leg broken; that he drove them from near the road track where they were found. The section hands of defendant hearing of the matter came and killed one of the calves and skinned it, the one killed was the one injured internally; that the other calf was left on plaintiff's hands, and was afterwards cured by him to a great extent; that there was no fencing on the road, where the calves were found; that it was inside of plaintiff's field; there was no public crossing inside of the field; that the value of the calf killed was $12, and the other was damaged seven dollars.

The proof on the other counts was about to the same effect, except as to the value of the stock killed; the hogs described in one count were only proved to be worth 4 or 5 dollars, and in the other two counts from 12 to 15 dollars. At the close of the evidence, the defendant moved the court to make the following declarations of law:

“1st. The court declares the law to be, that under the evidence in this case plaintiff cannot recover in this action. 2nd....