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

• Citation: 53 Mo. 525
• Parties: JAMES W. HUDSON, Respondent, v. ST. LOUIS, KANSAS CITY AND NORTHERN RAILWAY CO., Appellant.
• Decision Date: 31 October 1873
• Court: Missouri Supreme Court

53 Mo. 525

JAMES W. HUDSON, Respondent,

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

Supreme Court of Missouri.

October Term, 1873.

Appeal from Warren Circuit Court.

John M. Woodson, for Appellant.

I. The double damage liability imposed by section 43, is a penalty recoverable only in the name of the State of Missouri. (W. S., 310, §§ 42, 43.)

The peculiar language of this section must be observed. It provides, after declaring that railroad corporations shall erect and maintain fences, &c., that, “Until such fences, openings and gates or bars, farm crossings or cattle guards, shall be duly made and maintained, such corporations shall be liable in double the amount for all damages which shall be done, &c., occasioned in either case by a failure to construct or maintain such fences or cattle guards.”

It is nowhere provided, that such double amount shall be; recoverable by the owner of any animal killed or injured, &c. but 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, a full and complete remedy is given to the owner of any animal killed or injured, &c., in W. S., 520, § 5.

Construing the two statutes as consistent statutes, and each defining, as respondent claims, a right of recovery in the owner, we conclude; 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.

This Statute, (W. S., Chap. 37,) 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. (Trice vs. Han. & St. J. R. R., 49 Mo., 438.) 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.

Section 42, (W. S., 310,) says, that the penalties may be sued for in the name of the State. This word so used, in regard to bringing the suit in the name of the State and before a justice of the peace, ought to be considered as imperative, and as used in the sense of the word “shall.” (State vs. Hannibal & St. Joseph R. R. Co, 51 Mo., 532.) To conclude this point, the provisions of section 43 are designed to punish the company for a neglect of duty, viz: A failure to fence, and a suit to recover the penalty, shall be brought in the name of the State. (Smith vs. Lockwood, 13 Barb., 209; McKeon vs. Caherty, 3 Wend., 494; Simmons vs. Borland, 10 Johns., 467; Allen vs. Ehle, 7 Cow., 496; Stafford vs. Ingersol, 3 Hill, 38; Rennick vs. Morris, 7 Hill, 575; Cecil vs. Pac. R. R., 47 Mo., 246; Riddick vs. Governor, 1 Mo., 147; W. S., 310, §§ 42, 43; Millar vs. Taylor, 4 Burr., 2305; Donaldson vs. Beckett, 7 Bro. P. C., 88; Dudley vs. Mayhew, 3 N. Y., 9; Lindell's Admr. vs. Han. & St. Jo. R. R. Co., 36 Mo., 543; Harris vs. Han. & St. Jo. R. R. Co., 37 Mo., 307; Moffatt vs. Conklin, 35 Mo., 453; Leary vs. Han. & St. Jo. R. R. Co., 38 Mo., 485.)

II. The justice of the peace had no jurisdiction, the penalty sought to be recovered, exceeding one hundred dollars. (W. S., 807, § 2.)

It may be said, that by the fifth sub-division of section 3 of same chapter, page 808, which gives justices of the peace concurrent jurisdiction with the Circuit Courts, this case is covered.

The fifth sub-division only covers such cases as may arise under the 5th section of chapter 43, (W. S., 520,) which gives the owner the right of recovery, and does not confer jurisdiction for the recovery of the penalty for a failure to fence, under section 43, as before stated.

III. The court allowed incompetent and partial jurymen to try said cause after challenge for cause. These jurors were asked, “If the evidence in this case should be evenly balanced between plaintiff, an individual, and defendant, a corporation, which way would you incline to find?” They severally replied, “I would incline to find for the plaintiff.” (Chicago & Alton R. R. Co. vs. Adler, 56 Ill., 344.)

IV. The language of the instruction, given by the court on its own motion, “that the hogs got upon the track by reason of defective fencing,” without stating at a point where the appellant was required to fence, is error. (Cecil vs. Pacific R. R. Co., 47 Mo., 246.)

V. The giving of double damages by the court, after a general verdict for $50 by the jury, was error. There is nothing in section 43 of the Railroad Corporation law of this State, fixing, or in any manner regulating, the practice in regard to doubling a verdict of a jury. We hold that the only rule that could be applied, would be to instruct the jury to find such double amount as their verdict, or find single damages specially, and then the court to double; and that, on a general finding, the presumption must follow that such judgment was for all damages given by the statute. (Walther vs. Warner, 26 Mo., 143; Cross vs. United States, 1 Gallison, 26.)

VI. There was no proof of the corporate existence of the defendant.

E. A. Lewis, for Respondent.

I. Service of process on defendant was properly made, and no erroneous decision of the justice could be regarded in the Circuit Court. (W. S., 849, § 13; 810, § 9; Ser vs. Bobst, 8 Mo., 506; Harper vs. Baker, 9 Mo., 116.)

II. There was no error in the qualifying of the three jurors objected to; the court tested their fitness by a proper inquiry to which their answer was conducive. Their response to the question by defendant's attorney evinced rather an ignorance of the law, than a disqualifying bias.

III. The court committed no error in doubling the damages. (Norton vs. Han. & St. Jo, R. R., 48 Mo., 387; Cross vs. United States, 1 Gallison, 26; Withington vs. Hilderbrand, 1 Mo., 280; Brewster vs. Link, 28 Mo., 147.)

VORIES, Judge, delivered the opinion of the court.

This action was brought before a justice of the peace to recover damages for the killing of stock belonging to the plaintiff, by the locomotive and cars of the defendant,

The statement, filed as a cause of action before the justice, charged, that the defendant was a corporation duly organized under the laws of this State, and was at the time of the wrongs complained of, on the 8th day of July, 1872, the owner and occupier of a railroad running through Hickory Grove Township, in Warren county, Missouri; also was the owner and occupier of a certain locomotive and train of cars running on said railroad; that at said time plaintiff was the owner and in possession of twelve blooded hogs of the value of seventy-two dollars, which said hogs casually, and without the fault of plaintiff, strayed upon the track of said railroad at a point in said township about three miles west of the town of Wright City in said township, where said railroad runs through cultivated fields of land, and where said road was not inclosed by a lawful fence, and not at either a public or private crossing of said road; that defendant negligently, by and with said locomotive and train of cars running as aforesaid, on said road by defendant's agents and servants, ran over and killed eight of said hogs of plaintiff, and crippled the remaining four thereof, being so as aforesaid strayed upon said railroad, to the damage of the plaintiff in the sum of seventy-two dollars; that said hogs were so killed and crippled in Hickory Grove Township as aforesaid, and that said killing and crippling was occasioned by the negligent failure of defendant to construct and maintain fences on the sides of said railroad, &c.

The justice issued a summons in the cause on the 27th of July, 1872, requiring the defendant to appear on the 24th day of August, 1872. The summons was returned by the constable, with the following return indorsed thereon: “The within summons was served by me, by delivering a copy to J. C. Atterbury, depot agent of the defendant, at Wrights in the county of Warren and Township of Hickory Grove, on the 27th day of July, 1872.

HERMAN HULSHER, Const.”

On the 24th day of August, the day set for trial, the plaintiff appeared, but the defendant made no appearance. The justice heard the evidence of the plaintiff, and rendered a judgment in his favor for $144. On the 31st day of August, 1872, the defendant appeared, and moved the justice to set aside the judgment by default, and grant a new trial; this being overruled by the court, the defendant appealed to the Warren Circuit Court. On the 25th day of November, 1872, the defendant appeared in the Warren Circuit Court, and moved said court to dismiss the cause, because, 1st. The justice had not by law jurisdiction over the subject matter contained in the statement of the plaintiff in the cause. 2nd. The justice had not by the process in the cause, and the service thereof, acquired jurisdiction over the person of defendant, and in proceeding to judgment did so without authority of law, and the service is defective, and insufficient to confer jurisdiction. 3rd. The statement of the plaintiff filed with the justice, containing the grounds of his cause of action against defendant, is defective, uncertain and insufficient in law, and upon it plaintiff should not recover judgment. 4th. By the statute, under which plaintiff instituted his suit herein, an action in his name is not authorized, and the plaintiff is not entitled to recover, and cannot properly recover in an action in his own name.”

This motion being overruled by the court, the defendant at the time excepted.

When the case came on to be heard, a jury was demanded. Eighteen jurors were called and examined by the parties as to their competency. The attorney for the defendant put the following question to three of the jurors,...