Johnson v. Wabash, St. L. & P. Ry. Co.
| Decision Date | 14 June 1886 |
| Citation | 22 Mo.App. 597 |
| Parties | JOHNSON & COLLINS, Respondents, v. WABASH, ST. LOUIS & PACIFIC RAILWAY COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Macon Circuit Court, HON. ANDREW ELLISON, Judge.
Affirmed.
The case and facts are stated in the opinion of the court.
GEO. S GROVER, for the appellant.
I. There was a misjoinder of two independent causes of action in one count of the petition. Sect. 3512, Rev. Stat.; Southworth Co. v. Lamb, 82 Mo. 247. And this point was properly saved by defendant's motion to strike out and compel plaintiff to elect. Christal v. Craig, 80 Mo. 367.
II. There was no proof that defendant negligently permitted the steer to escape from the car, while in transit. McBeath v. Railroad, 20 Mo.App. 445.
III. The finding of the court was based on incompetent testimony. McDermott v. Railroad, 78 Mo. 516; Adams v Railroad, 74 Mo. 558; City of Chillicothe v Raynard, 80 Mo. 185.
No brief on file for the respondent.
This is an action to recover for the loss of a steer, the property of plaintiffs, who are partners. The petition stated, in substance, that on the sixth day of February, 1882, the plaintiffs contracted with the defendant, a railroad corporation, to carry and transport for them a car load of live cattle from La Plata, Macon county, to the Union Stock Yards, at St. Louis, without unnecessary delay, etc. That the cattle were accordingly duly delivered and loaded into defendant's freight car, and one of the steers so loaded was not so carried, but was negligently suffered to escape from said car. That afterwards, on or about the fifteenth day of February, 1882, the defendant found said steer, knowing the same to be the property of plaintiff, and sold and converted the same to its use. Wherefore, judgment for one hundred dollars is prayed.
The answer, after admitting the co-partnership of plaintiffs, and the corporate existence of defendant, that the contract for said shipment was in writing, and the fact of shipment, tendered the general issue as to the other allegations of the petition. The answer then made some special plea as to the contract, but as the contract is not set out in the abstract of record, and no special point is made in respect thereof, we will not further notice it.
The cause was tried before the court without the intervention of a jury. Verdict and judgment for plaintiffs in the sum of one hundred dollars, from which defendant has appealed.
I. After filing the answer defendant withdrew the same, and filed several successive motions, the object of which were to compel an election by plaintiffs as to which of the two counts (claimed by defendant to be set out in the petition) they would proceed to trial on, and to strike out the other. The court declined to so do.
It is a most reasonable construction of the petition to regard it as setting forth but one cause of action contained in a single count.
The action is manifestly, as we think, in trover. Had the petition been drawn after the common law form in such action all the material facts set out in this petition might well have been admitted in...
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