Kronski v. Missouri Pacific Ry. Co.

• Decision Date: 30 April 1883
• Parties: KRONSKI v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

77 Mo. 362

KRONSKI

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Lafayette Circuit Court.--HON. W. T. WOOD, Judge.

AFFIRMED.

Thos. J. Portis and E. A. Andrews for appellant.

Under the statute a failure to fence its road does not create an absolute liability against a railroad company. It is only where such failure to fence has occasioned or caused the damage. This fact is jurisdictional. It must be alleged in the complaint, and there must be some evidence tending to prove it. Curry v. R'y Co., 43 Wis. 665; Lawrence v. R'y Co., 42 Wis. 322. The return of the constable did not give the court jurisdiction over the defendant. Lake Shore & M. S. R'y Co. v. Hunt, 39 Mich. 469. The records of the county court, or at least the justice's commission, was the only evidence to show a transfer of jurisdiction. Kronski and Krinshee are not idem sonans, and defendant appealed from a judgment in favor of the former in a case where the justice's transcript does not show any jurisdiction to render such a judgment, and the suit should have been dismissed in the circuit court upon defendant's motion. Robson v. Thomas, 55 Mo. 581; State v. Hardy, 21 Mo. 498; Cato v. Hutson, 7 Mo. 142; State v. Curran, 18 Mo. 320.

Rathbun & Shewalter for respondent.

WINSLOW, C.

This is an action for damages under the 43rd section of the Corporation Act, for killing plaintiff's cow, valued in the complaint at $40. The complaint was originally filed before James W. Callahan, a justice of the peace of Lafayette county, October 25th, 1878, and the plaintiff is therein styled Martin Krinshee; and, in the summons, which was issued by Callahan, the plaintiff is also called Martin Krinshee; in all of the other pleadings and records in the case, including those filed by the defendant, he is designated as Martin Kronski. Appellant made this variance a ground for a motion to dismiss the suit in the circuit court, but did not otherwise raise it, and now insists on it for error in this court. At the August election, 1878, Franklin K. Tutt was elected as the successor of Callahan, and became the custodian of his docket; and the transcripts were made out and returned by him; in fact, all the proceedings were conducted before him, after the issuance and return of the summons. Judgment by default was rendered against defendant by the justice, from which it appealed to the circuit court.

The complaint in the case is as follows: Plaintiff states that defendant is an incorporated company under the laws of this State, and that on the 2nd day of October, 1878, at Lexington township, in Lafayette county, at a point on the track of defendant's railroad in said township, where the same passed along and adjoining inclosed and cultivated fields and uninclosed lands, and not at a public or private crossing of said road, the defendant, by its agents and servants running its locomotive and train of cars, ran the same upon and over a milk cow, property of plaintiff, of the value of $40, and thereby killed said cow; that defendant had failed and neglected to erect or maintain good or sufficient fences on the sides of its road at the point where said cow got upon the track of said road and was killed, and that by reason of said killing and by virtue of the 43rd section of chapter 63 of General Statutes of Missouri, and as amended by laws of 1877, as per Meyer's supplement, page 74, section 43. Wherefore plaintiff asks judgment for said sum of $40, the value of said cow, and that upon final judgment the same be doubled as provided by statute.

The summons is in the usual form, and no complaint is made of it. The return of the constable is as follows:

“Executed the within writ on the within named Missouri Pacific Railway Company, by reading the same to C. Ben. Russell, agent for said company, in the office of said company, on the 25th day of October, 1878, in Lexington township, Lafayette county, Missouri.”

In the circuit court defendant filed a motion to dismiss the suit, pending which plaintiff procured an order on the justice to file an amended return, which was filed; and, thereupon, the motion to dismiss was overruled. The amended transcript was intended to show the succession of Tutt to the docket of Callahan, and contained nothing additional. The following is the motion:

“Now comes the defendant by its attorney, appearing specially and for this purpose only, and objects to the jurisdiction of this court in this cause, and moves the court to dismiss this suit for the following reasons: (1) Because the justice of the peace did not have, nor has this court, jurisdiction of defendant. (2) Because the justice of the peace before whom this cause was tried, did not have, nor has this court, jurisdiction of the subject matter of this suit. (4) Because neither the transcript nor the record of the justice of the peace before whom this cause was tried, shows that plaintiff's animal was injured within the township of which he was a justice of the peace. (4) Because the complaint filed before J. M. Callahan, J. P., was made by one Martin Krinshee, and the transcript of the judgment rendered before F. K. Tutt, J. P., shows that the judgment was in favor of Martin Kronski. (5) Because the transcript herein does not show how the jurisdiction of a cause pending before one J. M. Callahan, J. P., was transferred to one F. K. Tutt, J. P., or Frank K. Tutt, J. P.”

The amended transcript filed by the justice under the order of the court contained this statement as to the succession, which was all the evidence on the subject, except the fact that Tutt had possession of the docket of Callahan, finished the case, and made the return of the transcript to the circuit court: “November 8th, 1878. At the general election held on the 5th day of November, 1878, the undersigned was duly elected justice of the peace for Lexington township, Lafayette county, Missouri, and having duly qualified as such, the docket of James M. Callahan, with the above cause, was turned over to me as his (James M. Callahan's) successor in office.”

A trial upon the merits was then had before the court without a jury. The plaintiff, to sustain the issues on his part, offered evidence tending to prove all the material allegations of the petition; no evidence was offered on the part of defendant. The court thereupon found the issues for the plaintiff, assessed his damages at $30, and rendered a judgment in his favor for $60.

The record of the judgment rendered in the circuit court recites the appearance of the parties thus: “Now, at this day, come the parties aforesaid, by their attorneys, and this cause is now taken up and submitted to the court for trial, a jury being waived,” etc. Then follows a hearing on the merits, a finding for plaintiff, a motion to double the damages, and the recital that “the defendant, by her attorney, thereupon filed her objections to the damages being doubled, which said objections are now submitted to the court, and being seen and fully heard, the said objections are overruled.” Then follows the judgment for double damages, to reverse which, the defendant has prosecuted this appeal.

1. JUSTICES' COURTS: complaint: railroads: damage to cattle.

Appellant maintains that the complaint is insufficient, because it fails to state that the injury was occasioned by the failure to erect and maintain the fences. The complaint alleges, “that the defendant had failed and neglected to erect or maintain good or sufficient fences on the sides of its road, at the point where said cow got upon the track of said road and was killed.” The inference from this statement, in connection with the preceding allegations that the injury occurred at a point on the road where the defendant was bound to fence, is almost irresistible that the injury was occasioned by the failure to fence. Complaints under the same section of the statute containing similar allegations, some of them less perspicuous, have been held sufficient, after verdict, by several recent decisions of this court; and, under those cases, this one must be held good. Edwards v. R. R. Co., 74 Mo. 117; Bowen v. R. R. Co., 75 Mo. 426; Belcher v. R. R. Co., 75 Mo. 514.

2. ______: ______: jeofails.

The second point insisted on by appellant is, that “the complaint does not allege that the animal was killed or injured in the justice's township.” As to this point, nothing further is said by counsel than the declaration that “no argument upon this point is necessary.” We gather from the record, however, that the real objection is, that the complaint does not show that the justice was a justice of the township in which the animal was killed, but only a justice of the peace of the county. The complaint alleges that the injury occurred in Lexington township; the summons describes the justice as “a justice of the peace of Lexington township, in the county of Lafayette,” and commands the defendant to appear before him as such; the summons was directed “to the constable of Lexington township,” and is returned as served in that township; the judgment was rendered in that township; the amended transcript recites that...