Knight v. Quincy, Omaha & Kansas City Railroad Co.

• Decision Date: 01 October 1906
• Citation: 96 S.W. 716,120 Mo.App. 311
• Parties: ASHLEY G. KNIGHT, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant
• Court: Kansas Court of Appeals

96 S.W. 716

120 Mo.App. 311

ASHLEY G. KNIGHT, Respondent, v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 1, 1906

Appeal from Grundy Circuit Court.--Hon. Paris C. Stepp, Judge.

AFFIRMED.

Judgment affirmed.

J. G Trimble and Hall & Hall for appellant.

(1) The circuit court had no jurisdiction over the subject-matter of this suit. The original petition and cause of action was based on section 1082 of the Revised Statutes of 1899 for failure to receive and ship a hog. The damages claimed was two dollars which was asked to be trebled, so the amount sued for was six dollars. The circuit court in such case has jurisdiction only when the amount involved, exclusive of interest and costs, shall exceed fifty dollars. R. S. 1899 sec. 1674. (2) The attorney's fee sued for could only be allowed and taxed as costs. R. S. 1899, sec. 1140; Waters v. Waters, 49 Mo. 388. (3) Section 1140, so far as it relates to the attorney's fee is unconstitutional. Paddock v. Railroad, 155 Mo. 524. (4) The attorney's fee being illegal, and only recoverable as costs, at best, the amount involved was below the jurisdiction of the circuit court. Bradley & Co. v Asher, 65 Mo.App. 589. (5) Sections 1140 and 1141, Revised Statutes 1899, do not have any application or reference to section 1082 and are not found in the original act. Paddock v. Railroad, 155 Mo. 524; Pool v. Brown, 98 Mo. 675; State ex rel. v. Heidorn, 74 Mo. 410; Cape Girardeau v. Riley, 52 Mo. 424. (6) The original petition was for a statutory action for treble damages; the second or additional count of the amended petition is for punitive or exemplary damages and is a departure and an entire change of the cause of action, and the trial court erred in overruling defendant's motion to strike out the same. Amendments are not admissible where they change the cause of action. R. S. 1899, sec. 657; Sims v. Field, 24 Mo.App. 557; Barnes v. Prewitt, 28 Mo.App. 163; Drake v. Railroad, 35 Mo.App. 553; Burnham & Co. v. Tillery & Co., 85 Mo.App. 453. (7) The second count of the amended petition required different evidence to support it and called for a different measure of damages than the original or first count of the amended petition. Purdy v. Pfaff, 104 Mo.App. 331, 339; Ross v. Land Company, 162 Mo. 317, 329. (8) The original petition being a statutory proceeding, and as the circuit court had no jurisdiction of the subject-matter in the beginning, the plaintiff could not give the court jurisdiction by amending his petition by adding a common-law count and then dismissing as to the original statutory count and recover on the second or common-law count. The court having no jurisdiction in the beginning there was nothing to amend and it could not acquire jurisdiction by amendment, or such jockeying process. Norton v. Railroad, 48 Mo. 387; Abernathy v. Moore, 83 Mo. 65; Brown v. Woody, Admr., 64 Mo. 547; Elfrank v. Seiler, 54 Mo. 134. (9) Traffic being obstructed on defendant's railroad for an uncertain length of time, taking into consideration the nature of the property offered for shipment and the time of year, the defendant was justified in refusing to receive the same at the time offered, when the plaintiff refused to sign a contract releasing defendant from liability, or to send some person along to feed and water the hog. Faulkner v. Railroad, 51 Mo. 311; Schwab v. Union Line, 13 Mo.App. 163; Dawson v. Railroad, 79 Mo. 296; Guinn v. Railroad, 20 Mo.App. 453; Bussey v. Railroad, 13 F. 330. (10) The court erred in giving plaintiff's third instruction, especially that part of it which relates to exemplary or punitive damages. There was no evidence that appellant's agent Huff acted wantonly, or maliciously in refusing to receive the hog for shipment. Exemplary damages are allowed against a corporation only in cases where the injury is intentionally, willfully and maliciously done. Printing Company v. Kahn, 59 Am. St. 485, note 591; Leahy v. Davis, 121 Mo. 227, 232; State v. Jungling, 116 Mo. 162; Brown v. Cape Girardeau M. & P. Road Co., 89 Mo. 152; Seibel v. Siemon, 72 Mo. 526; Graham v. Railroad, 66 Mo. 536; Doss v. Railroad, 59 Mo. 27; Franz v. Hilterbrand, 45 Mo. 121; Hoffman v. Gill, 102 Mo.App. 320; Yowell v. Vaught, 85 Mo.App. 206; Dorsey v. Railroad, 83 Mo.App. 528; Lewis v. Jannoupoulo, 70 Mo.App. 325; Berlin v. Thompson, 61 Mo.App. 234; Clark v. Fairley, 30 Mo.App. 335; Railroad v. Prentice, 147 U.S. 101; Avinger v. Railroad, 29 S.C. 265, 13 Am. St. 716.

E. M. Harber, H. C. Smith and Hubbell Bros. for respondent.

(1) What is meant by the term "cause of action?" "The act on the part of the defendant which gives the plaintiff his cause of complaint." It may be said to be composed of the right of the plaintiff and the obligation, duty, or wrong of the defendant. Anderson Law Dict., page 157. (2) "The cause of action should not be mistaken for the remedy. The remedy is the object of the action, not the cause. To illustrate: A is deprived of a certain right. To secure that right is the object of his action; while the deprivation or invasion, or threatened deprivation or invasion, of the right, furnishes his cause of action." Bliss on Code Pldg. (3 Ed.), sec. 1, page 2, note 4. "The cause of action, then, is the wrong." Bliss on Code Pldg. (3 Ed.), sec. 113. "The breach of duty is substantially the cause of action." 1 Boone Code Pldg., sec. 36; Emory v. Powder Co., 53 Am. Rep. 732; 2 Words and Phrases, 1015. (3) In the first count of his amended petition, the plaintiff alleged the same cause of action as in the original petition--in fact, the first count of the amended petition being substantially a copy of the original petition. In the second count of his amended petition, the plaintiff alleged that the defendant "contemptuously, insolently, wrongfully, and maliciously refused to ship said hog or to receive the same for transportation," after alleging proper, tender, etc. (4) Plaintiff's original petition stated a cause of action both under the statute and at common law. Lawson on Bailments (1895), sec. 89; 5 Am. and Eng. Ency. Law (2 Ed.), 159; 5 Am. and Eng. Ency. Law (2 Ed.), 430; R. S. 1899, sec. 1128; 5 Am. and Eng. Ency. of Law (2 Ed), 160, 161, 167; R. S. 1899, sec. 1082; Avinger v. Railroad, 35 Am. and Eng. R. R. Cases 525; Smyth v. Ames, 18 S.Ct. 433; s. c., 169 U.S. 466, 42 L.Ed. 819; Railroad v. Smith, 22 Am. and Eng. Railroad Cases 424. (5) The circuit court had jurisdiction of the cause of action stated in plaintiff's original petition. R. S. 1899, sec. 1674; Sess. Acts. 1903, page 140; Monks v. Strange, 25 Mo.App. 16. (6) When an attorney's fee is one item involved and for which plaintiff seeks a judgment, the attorney's fee is not costs within the meaning of the above statute defining the jurisdiction of circuit courts. Bay v. Trusdell, 92 Mo.App. 380; St. Louis v. Meintz, 107 Mo. 611; 2 Words and Phrases, 1634. (7) The sum demanded, exclusive of interests and costs, shall determine the jurisdiction. "The test of jurisdiction in such cases is the aggregate amount of damages prayed for, and not the amount of damages prayed for in a single count." Vineyard v. Lynch, 86 Mo. 685; Fickle v. Railroad, 54 Mo. 225; Clothing Co. v. Watson, 168 Mo. 143; Funk v. Funk, 35 Mo.App. 246; Posthlewaite v. Ghislin, 97 Mo. 424; Liese v. Meyer, 143 Mo. 556. (8) Is the second count of plaintiff's amended petition a change of the cause of action stated in his original petition? "But the penalty is not the cause of action. The penalty is a result from the cause of action. The cause of action is the wrong done for which the penalty is a punishment as well as recompense for the injured party's loss. McGrew v. Railroad, 87 Mo.App. 225; Hill v. Mo. Pac., 49 Mo.App. 534; Castleman v. Castleman, 184 Mo. 440; Scovill v. Glasner, 79 Mo. 449; Carter v. Baldwin, 107 Mo.App. 228; Powell v. Co., 104 Mo.App. 718; Liese v. Meyer, 143 Mo. 556; Holt County v. Cannon, 114 Mo. 519. (9) Plaintiff's instructions are correct. App. Abst. 57; Trauerman v. Lippincott, 39 Mo.App. 488; Buckley v. Knapp, 48 Mo. 161; State v. Jones, 78 Mo. 281; 19 Am. and Eng. Ency. Law (2 Ed.), 623; Bussey v. Railroad, 13 F. 331; 5 Am. and Eng. Ency. Law (2 Ed.), 169. (10) Plaintiff is entitled to recover exemplary damages. 35 Am. and Eng. R. R. Cases, 525, 527; Avinger v. Railroad, 13 Am. St. 720, 724; 12 Am. and Eng. Ency. Law (2 Ed.), 7; Goddard v. Railroad, 2 Am. St. 45; s. c., 57 Maine 202; Arnold v. Co., 76 Mo.App. 182. (11) Railroad corporations, like other people, are liable for exemplary damages. Canfield v. Railroad, 59 Mo.App. 354; Haehl v. Railroad, 119 Mo. 343. Exemplary damages have been allowed for the following causes of action in the following cases: Trespass; Gildersleeve v. Overstolz, 90 Mo.App. 518. Assault and battery; Johnson v. Bedford, 90 Mo.App. 43. False imprisonment; Monson v. Rouse, 86 Mo.App. 97. Forcible entry and detainer; Wamsganz v. Wolff, 86 Mo.App. 205. Libel; Jones v. Murray, 167 Mo. 25. Injuries by vicious dog; Fragstern v. Windler, 2 Mo.App. 598. Malicious prosecution; McGarry v. Mo. Pac., 36 Mo.App. 340.

OPINION

JOHNSON, J.

--Action against a common carrier to recover damages for an alleged wrongful refusal to receive and transport a hog offered by plaintiff for shipment. Plaintiff had judgment in the sum of two dollars compensatory and $ 63 exemplary damages and defendant appealed. The suit was brought in the circuit court and in the petition plaintiff alleged in substance that he brought the animal properly crated and in good condition, to defendant's station at Trenton and requested defendant's agent to ship it to Green City, another station on defendant's line some forty miles east of Trenton, and that defendant not only wrongfully refused to...