Kinion v. Kansas City, S. & M. R. Co.

• Decision Date: 24 April 1888
• Citation: 30 Mo.App. 573
• Parties: B. J. KINION, Respondent, v. KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Appellant.
• Court: Missouri Court of Appeals

30 Mo.App. 573

B. J. KINION, Respondent, v. KANSAS CITY, SPRINGFIELD & MEMPHIS RAILROAD COMPANY, Appellant.

Court of Appeals of Missouri, St. Louis.

April 24, 1888

APPEAL from the Howell Circuit Court, HON. J. F. HALE, Judge.

Reversed and remanded.

WALLACE PRATT and OLDEN & GREEN, for the appellant: The suit was brought before a justice of the peace of Dry Creek township. The petition alleges, and the proof shows that the killing occurred in Hutton Valley township, but there is not one word of proof that Hutton Valley township adjoins Dry Creek township. Mitchell v. Railroad, 82 Mo. 106; Palmer v. Railroad, 21 Mo.App. 437; Ellis v Railrood, 83 Mo. 372; Wright v. Railroad, 25 Mo.App. 236. In an action before a justice of the peace for damages against a railroad company for the killing of stock the statement must show, in addition to other jurisdictional facts, that the animal was killed in the same township in which the justice is a justice, or in an adjoining township. Rev. Stat., sec. 2839; Vaughn v. Railroad, 17 Mo.App. 4; Matson v. Railroad, 80 Mo. 229; Backenstoe v. Railroad, 86 Mo. 492; Rohland v Railroad, 89 Mo. 180.

LIVINGSTON & PITTS, for the respondent.

OPINION

THOMPSON J.

This was an action under section 809, Revised Statutes, to recover double damages for killing the plaintiff's cow at a place on the defendant's railway where its track was not fenced. The action was brought before a justice of the peace of Dry Creek township, in Howell county. The statement averred, inferentially, tat the cow was killed in Hutton Valley township, and the evidence showed that such was the fact. It was not alleged in the statement, nor was there any evidence tending to show that Hutton Valley township adjoins Dry Creek township. The rule in such actions is, that, where the statement alleges that the killing occurred in a township other than the one in which the action is brought, and does not aver that the two townships adjoin, and the evidence adduced fails to show that they adjoin, a demurrer to the evidence should be sustained. Ellis v. Railroad, 83 Mo. 372; Backenstoe v. Railroad, 86 Mo. 492. Not only must the statement show that the township in which the animal was killed adjoined the township in which the action was brought, but this must also be shown in the evidence. Mitchell v. Railroad, 82 Mo. 106; Palmer v Railroad, 21 Mo.App. 437; Wright v. Railroad, 25 Mo.App. 236; Backenstoe v. Railroad,...