Head v. Powell
| Citation | 245 S.W. 618,212 Mo.App. 310 |
| Parties | J. W. HEAD, Appellant, v. ENOS POWELL, Respondent |
| Decision Date | 06 November 1922 |
| Court | Court of Appeals of Kansas |
Appeal from the Circuit Court of Sullivan County--Hon. Fred Lamb Judge.
AFFIRMED.
Judgment affirmed.
Bresnehen & Burns for appellant.
Scott J. Miller for respondent.
This is an action to recover the value of a sow. At the close of all the evidence the court gave on behalf of defendant an instruction in the nature of a demurrer to the evidence resulting in a verdict and judgment for the defendant. Plaintiff has appealed.
The cause arose in a justice court where there was a judgment for plaintiff in the sum of $ 25 and defendant appealed. Plaintiff in his statement alleges that he and defendant were residents of the same township, that defendant was the owner of a sow and that on the 30th day of September, 1921 "defendant carelessly and negligently permitted said sow to run at large and break into the lot and premises of plaintiff in the town of Linneus; that . . . said sow belonging to the defendant broke into the plaintiff's lot and there jumped upon and abused and mistreated" a sow belonging to plaintiff, causing the death of plaintiff's sow; "that said sow belonging to plaintiff was killed by defendant's sow solely by reason of the carelessness and negligence of the defendant in permitting his said sow to run at large and break into the lot of plaintiff." Plaintiff asked judgment for $ 60, the amount alleged to be the value of the sow.
The evidence taken in its most favorable light to plaintiff tended to show that he was the owner of a sow which was within an enclosure upon his premises in the town of Linneus, and that said premises were fenced with a lawful fence such as is prescribed by section 5512, Revised Statutes 1919; that defendant's sow, which was spreeing, got out of defendant's enclosure and broke through plaintiff's fence worrying plaintiff's sow to death.
The reason that the court sustained a demurrer to the evidence was apparently on the ground that the evidence failed to prove the cause of action alleged. After a careful review of the authorities we are convinced that the action of the trial court was correct. While we are mindful that this case arose in a justice court and that a statement filed before a justice may be informal and that it is good if it sufficiently discloses the cause of action claimed and fairly warns defendant of the nature and extent of plaintiff's demand and is sufficiently specific to bar another action, yet it is well settled that plaintiff, even in a justice court, may not sue on one cause of action and recover upon another. [Turner v. McCook, 77 Mo.App. 196; St. Louis Trust Co. v. American Real Estate & Investment Co., 82 Mo.App. 260, 263; Green v. Crutcher, 143 Mo.App. 595, 128 S.W. 768.]
The question before us then is what kind of action plaintiff intended to present in his statement, regardless of any niceties or accuracy of pleading. [Nave v. Dieckman, 208 S.W. 273, 274.] Plaintiff contends that he was entitled to recover under section 5813, Revised Statutes 1919, creating a cause of action against the owner of stock which breaks over or through a lawful statutory fence (Sec. 5512, R. S. 1919), but no facts bringing the case under this section are alleged. While it is alleged that defendant's sow killed plaintiff's sow "by reason of the carelessness and negligence of the defendant in permitting his said sow to . . . break into the lot of plaintiff," which allegation carries with it an inference that the lot where plaintiff's sow was killed was enclosed by a fence, there are no facts alleged to show that such fence complied with the provisions of section 5512, Revised Statutes 1919, or any intimation to defendant that plaintiff was claiming under such section. It is apparent that plaintiff was basing his action upon negligence. No negligence is necessary to be shown to recover under sections 5512 and 5513, Revised Statutes 1919. Such recovery is based upon the theory of trespass. There is no question but that if plaintiff was relying upon sections 5512 and 5513 as a basis of a recovery in this case the facts should have been stated in the petition in some way so as to bring the case within the terms of the statute. [Blewett v. Smith, 74 Mo. 404, 406.] One cannot even in a justice court file a statement alleging a cause of action at common law and recover upon one created by the statute. [Jackson v. Fulton, 87 Mo.App. 228.]
It is held in Beane v. St. Joseph, 240 S.W. 840, 843, that where the statute creates a cause of action the facts bringing the case within the statute must be pleaded but where the cause of action is created by the common law an applicable statute is not a part of plaintiff's case but is merely a matter of evidence and need not be pleaded. The cause of action upon which plaintiff attempted to recover being one created by the statute, the statute was not merely evidentiary and the facts should have been pleaded. While there was considerable evidence on behalf of plaintiff that his fence was a statutory one and there was evidence which tends to show that plaintiff at the trial was relying upon the statute, yet, apparently, plaintiff was not secure of his ground, and thought that it would be well to show some negligence on the part of defendant, for the reason that he attempted to introduce in evidence two ordinances of the town of Linneus. The first of these ordinances provides a penalty for the allowing of stock, including hogs, to run at large within the city limits by the person having custody of the stock; the second, declaring that the running at large, grazing, herding or staking out of stock "to be a nuisance and the same is hereby prohibited," and provides for impounding of such stock found outside of the owner's inclosure by the city marshal and prescribes what fees shall be paid for releasing such stock, in default of which the stock may be sold.
While it is not claimed that the statement and evidence are sufficient to make out a case for the jury for trespass quare clausum fragit, for the breaking and entering the inclosure of plaintiff, a cause of action existing in this State (Beckett v. Beckett, 48 Mo. 396) although the common law...
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