Kansas City

• Decision Date: 06 May 1887
• Citation: 14 P. 5,36 Kan. 534
• Court: Kansas Supreme Court
• Parties: THE KANSAS CITY, LAWRENCE & SOUTHERN KANSAS RAILWAY COMPANY v. HENRY BOLSON

14 P. 5

36 Kan. 534

THE KANSAS CITY, LAWRENCE & SOUTHERN KANSAS RAILWAY COMPANY v. HENRY BOLSON

Supreme Court of Kansas

May 6, 1887

Error from Montgomery District Court.

ACTION brought by Bolson before a justice of the peace, against The Railway Company, to recover damages of the defendant for killing a cow belonging to plaintiff. The defendant made no appearance before the justice; judgment for plaintiff defendant appealed; plaintiff filed an amended bill of particulars; defendant filed no answer. Trial by jury, at the December Term, 1884, and judgment for plaintiff for $ 35 damages and $ 225 costs. The defendant brings the case to this court.

Judgment reversed.

Geo. R Peck, A. A. Hurd, and Robert Dunlap, for plaintiff in error.

CLOGSTON C. All the Justices concurring.

OPINION

CLOGSTON, C.:

The defendant in error has filed no brief, and therefore we cannot say upon what theory he claims that the judgment ought to be sustained. The plaintiff in error claims, first, that there is no evidence shown in the record to prove that the defendant is a corporation; and second, that there is a failure to prove that the injury complained of was caused by the negligence of the defendant, or of its agents or servants. As to the first of these propositions, we think the learned counsel are in error; and we first suggest this question: Was it necessary for the plaintiff to prove that the defendant was a corporation, under his bill of particulars, to entitle him to recover? The statute under which this action was brought, is as follows:

Every railway company or corporation in this state, and every assignee or lessee of such company or corporation, shall be liable to pay to the owner the full value of each and every animal killed, and all damages to each and every animal wounded by the engine or cars of such railway, or in any other manner whatever in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee or lessee thereof, or not." (Comp. Laws of 1885, P 5205.)

This statute makes the distinction between railway companies and railway corporations, and makes both liable for damages for stock killed or injured in the operation of the road. When the legislature framed this section it doubtless thought, as counsel suggest, that a partnership or an individual may operate a railroad without being incorporated, and if they do, they ought to be liable as well as if they are incorporated. In this case, while the plaintiff alleged in his bill of particulars that the Kansas City, Lawrence & Southern Kansas Railway Company is a corporation, would this description of the defendant prevent him from recovering, provided he brought his action against the right railway company defendant? He brought his action against the company which was in fact operating the road, but described it as being a corporation; and his failure to make that proof that the company was incorporated, we think, under his bill of particulars, not necessary. He established the fact that the train of cars that caused the injury was operated by the agents and servants of the Kansas City, Lawrence & Southern Kansas Railway Company. Again, the defendant made no appearance in the justice's court, but after judgment against it, appealed to the district court. Who appealed? What company or corporation? Whoever it was, it was the defendant, and although it had been described as a corporation, yet it was the company which was sued that was appealing, and in the name of the Kansas City, Lawrence & Southern Kansas Railway Company, removed said cause to the district court, and to this court, thereby admitting its existence either as a corporation or a railway company operating that line of road. And it having done this, it is unnecessary for the plaintiff to prove more. But should we be mistaken in this proposition, we...