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

• Decision Date: 31 October 1873
• Citation: 54 Mo. 240
• Parties: GERHARD GRAU, Defendant in Error, v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY COMPANY, Plaintiff in Error.
• Court: Missouri Supreme Court

54 Mo. 240

GERHARD GRAU, Defendant in Error,

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

Supreme Court of Missouri.

October Term, 1873.

Error to Warren Circuit Court.

Woodson & McKeag, for Plaintiff in Error.

I. The subject matter constituting the cause of action being for injuries to personal property, the justice of the peace had only jurisdiction to the amount of fifty dollars; consequently the case must be dismissed. (W. S., 807, 808, §§ 2, 3; Han. & St. Joe. R. R. Co. vs. Mahoney, 42 Mo., 467; Webb vs. Tweedie, 30 Mo., 488; Langham vs. Boggs, 1 Mo., 476; Lindell's Adm'r vs. Han. & St. Joe. R. R. Co., 36 Mo., 543; Voorhees vs. Bank, U. S., 10 Pet., 449.)

II. There is no testimony showing that it was the failure to erect the fence that was the cause of the destruction of the crops. It was the act of turning the cattle into the field, and the destruction of the corn and fodder, that constituted the cause of action, and § 43 (W. S., 310-11) was only intended for cases where stock escapes from, or comes upon, lands, where such fences are not maintained, and § 8 (W. S., 1346) was only intended for cases where there was wantonness in the trespass, but the case at bar, and the evidence of the witness, show, that the trespass was involuntary. (W. S., 814, § 13; Walther vs. Warner, 26 Mo., 143; Marmaduke vs. McMasters, 24 Mo., 51; Franz vs. Hilterbrand, 45 Mo., 121; Engle vs. Jones, 51 Mo., 316.)

E. A. Lewis, for Defendant in Error.

I. No objection to the jurisdiction of the justice can be urged in this court. No such objection was raised, either before the justice or in the Circuit Court. (Newton vs. Miller, 49 Mo., 298; Boyse vs. Burt, 34 Mo., 74; Cornelius vs. Grant, 8 Mo., 59; Swearingen vs. Newman, 4 Mo., 456; Alexander vs. Hayden, 2 Mo., 211.) It was not claimed in the court below, that the doubling of the damages effected an excess over the jurisdiction of the justice.

II. There was no error in doubling the damages. (W. S., 310, § 43; Cross vs. U. States, 1 Gallison, 26; Withington vs. Hilderbrand, 1 Mo., 280; Brewster vs. Link, 28 Mo., 147; Ellis vs. Whitlock, 10 Mo., 781.)

VORIES, Judge, delivered the opinion of the court.

This action was brought before a Justice of the Peace to recover for damages charged to have been done to plaintiff's corn and fodder by the conduct of the employees of the defendant while running and operating cars on defendant's railroad.

The cause of action filed with the justice charges, that the defendant is a corporation, &c., and that as such it was on the 22d day of Oct., 1872, operating its railroad running through Hickory Grove Township in Warren County; that it was the duty of the defendant, by virtue of the statutes of this State, to erect and maintain fences on the side of said railroad, where the same passed through or adjoined inclosed or cultivated fields, &c. that on said day plaintiff was the owner and in possession of a cultivated field, through which said road was located for a distance of one-fourth of a mile, that defendant failed and neglected to erect or maintain fences along the side of said road and field as required by law, and that by reason thereof a large number of hogs and steers on the 22d day of October, 1872, were turned into said field of plaintiff by the servants and agents of defendant, and beat down, injured and destroyed the corn and fodder standing and being in said field, by which the plaintiff was damaged in the sum of fifty dollars, for which he asked judgment.

The statement then stated, that, in pursuance of the statute in such case made and provided, he prayed the court to render judgment for double damages, one hundred dollars.

The cause was heard before the justice, where a judgment was rendered in favor of plaintiff for one hundred dollars, double the damages claimed or proved to have been done plaintiff by the injury complained of.

From this judgment the defendant appealed to the Warren Circuit Court, where the case was tried by the court, a jury having been waived by the parties. The evidence given on the trial in the Circuit Court was uncontradictory and showed the following facts: On the 22d of October, 1872, while a train of freight cars was being conducted along defendant's railroad through plaintiff's field, and where the said road was unfenced, it by some accident ran off of the track, and a number of the cars were badly wrecked; that several of the cars were freighted with hogs and cattle; that the hogs and cattle in these wrecked cars necessarily had to be unloaded, that some of them were injured, that the road was so blocked up with wrecked cars, that it was impossible to drive the cattle and hogs, which were being unloaded, along the railroad to where defendant had stock pens, at Wright City, about one mile distant, consequently, as the hogs and cattle were unloaded, they were turned into and driven through plaintiff's field; that the time occupied in unloading the stock and driving it through plaintiff's field was from forty-five minutes to one hours; that in this time the shocks of corn, belonging to plaintiff and situated in the field, were considerably eaten and tramped down; that the cattle were driven out of the field by the hands and servants of the defendant, as soon as it could conveniently be done after they were extricated from the wrecked cars. It was admitted by the parties, that the evidence justified the finding of the damages done plaintiff to be thirty-five dollars as single damages.

At the close of the evidence, the defendant asked the court to declare the law to be, “that if the cattle and hogs, that destroyed plaintiff's corn and fodder, were cattle and hogs that were in defendant's cars in transit, and, in consequence of a train running off of the track and the cars getting wrecked, the agents and servants of the defendant turned said cattle and hogs into plaintiff's field after getting them extricated from the wreck of said train, and that they had said stock removed as soon as possible out of plaintiff's field, the plaintiff is only entitled to recover the actual amount of damages done to his corn and fodder, and is...