Floyd Carpenter v. The Chicago & Alton Railway Company
| Decision Date | 18 June 1906 |
| Citation | 95 S.W. 985,119 Mo.App. 204 |
| Parties | FLOYD CARPENTER, Respondent, v. THE CHICAGO & ALTON RAILWAY COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Lafayette Circuit Court.--Hon. Samuel Davis, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Richard Field and Scarritt, Griffith & Jones for appellant.
(1) The evidence showed that plaintiff was not the proprietor of, in fact had no right, title or interest in the Denham field. (2) In the next place plaintiff's instruction number 1 does not submit to the jury whether or not the fence between the Bates (Kibler) and Denham fields was a good and lawful fence. Ferris v. Railway, 30 Mo.App. 122; Harrington v Railroad, 71 Mo. 384; Rinehart v. Railway, 80 S.W. 910. (3) Plaintiff's instruction number 1 did submit to the jury whether or not plaintiff's horse escaped from "plaintiff's field" and whether or not it was "lawfully" in the Bates field, but we contend that the instruction is erroneous not only because plaintiff's own evidence shows that his horse did not escape from "plaintiff's field;" but also in that it submits to the jury the question of the right of plaintiff's horse upon the Bates field as a question of law. The instruction reads as follows: "And while lawfully in said Bates field entered upon defendant's right of way." This was manifest error. State v Forsythe, 89 Mo. 667; Speak v. Dry Goods Co., 22 Mo.App. 122; Miller v. Railroad, 56 Mo.App. 72; Rowen v. Railway, 82 Mo.App. 24. (4) In a law case both the plaintiff and the court are found by the ad damnum clause of the petition and it is error to enter judgment for more than the sum prayed for in the petition. Reed v Crane, 89 Mo.App. 670; Balch v. Myers, 65 Mo.App. 422, 427; Carter v. Shotwell, 42 Mo.App. 663; Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131.
John Welborn and Charles Lyons for respondent.
Filed argument.
--This action was brought for the damages done plaintiff by the killing of his horse. The plaintiff prevailed in the trial court. It appears that the action is founded on section 1105, Revised Statutes 1899, providing that railway companies shall provide and maintain gates in their fences at farm crossings and that if on account of not so providing them injury results by reason of cattle, horses, etc., escaping onto the railway track, the owner may recover "double the amount of all damages which shall be done" to such horses, cattle, etc. The petition in this case states a cause of action under the statute. It places the value of the horse at one hundred dollars and closes with the following prayer; "Wherefore, by reason of the premises, plaintiff says that he has been damaged in the sum of $ 100, for which he asks judgment, and for all other and proper relief according to the statute in such cases made and provided." The jury returned a verdict assessing plaintiff's damages at $ 100 and this sum was afterwards doubled by the court and judgment accordingly entered for two hundred dollars.
The point is made that error was committed in entering judgment for two hundred dollars when only one hundred dollars was prayed for in the petition. We ruled in Young v. Railway, 33 Mo.App. 509, 518, that on a petition on a statute allowing treble damages for overcharge for freight in certain conditions, which stated the overcharge and concluded with a prayer for that amount and other proper relief, would authorize the court to treble the damages on a motion to that effect. It has always been the rule in this State that in cases where the amount of a plaintiff's damages as assessed by a jury may be doubled, trebled, etc., it becomes the duty of the court to make such increase and render judgment accordingly. [Wood v. Railway, 58 Mo. 109.] So therefore, it would seem that when a cause of action is stated under such a statute and a verdict is had for the actual damage, it becomes the duty of the court, at the plaintiff's instance, to render judgment for double the sum assessed, without regard to whether the petition had formally asked that it be doubled. It is a matter arising on the statute after the trial and independent of it. We so ruled in the Young case, supra, and we find nothing to the contrary in the decisions in this State. In an early case in California the following rule stated in Bacon's Abridgment was sustained; "That when treble damages are given by a statute, the demand for such damages must be expressly inserted in the declaration, which must either recite the statute or conclude to the damage of the plaintiff against the form of the statute." [Chipman v. Emeric, 5 Cal. 239.] But subsequently it was held in a case of forcible entry and detainer that when the jury assessed the actual damages claimed, it became the duty of the court to treble the sum without a prayer to that effect in the petition. [Tewksbury v. O'Connell, 25 Cal. 262.] So in Clark v. Worthington, 12 Pick. 570, an action under the statute for injury caused by defective highway, where the sole point made was that the actual damage found could not be doubled by the court when the petition did not so request, it was ruled that it could and that it was unnecessary to include it in the petition. And the same thing was afterwards held in Worster v. Canal Bridge, 16 Pick. 541, 549.
Defendant cites us to cases decided in this State which we think are not in point. The case of Balch v. Myers, 65 Mo.App. 422, was forcible entry and detainer and the damage assessed by the jury was more than asked for. That, of course, was improper. The same may be said of Moore v. Dixon, 50 Mo. 424. These cases do not meet the question we have discussed.
On the merits of the case: There are three pieces of land concerned. Plaintiff lived...
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