Minter v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1884
• Parties: MINTER v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 128

MINTER

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Clay Circuit Court.--HON. GEORGE W. DUNN, Judge.

AFFIRMED.

George W. Easley for appellant.

The original statement was a common law action; the amended statement was under the damage act. “It is evident that the whole cause of action was here changed. Instead of a common law action it was based on a statutory provision, clothed with new incidents and requiring different proofs.” Hansberger v. Railroad Co., 43 Mo. 199.Simrall & Sandusky for respondent.

The lower court did not err in permitting the amendment. Calvert v. Railroad Co., 34 Mo. 242, and 38 Mo. 467; Iba v. Railroad Co., 45 Mo. 470; Norton v. Railroad Co., 48 Mo. 388; Iby v. Railroad Co., 54 Mo. 469; Coughlan v. Lyons, 24 Mo. 533.

PHILIPS, C.

This action was begun before a justice of the peace by filing the following amended statement:

Hannibal and St. Joseph Railroad Company,

To John F. Minter,

Dr.

For killing three hogs, his property, on the 31st of July, 1881, at Arnold station, in Gallatin township, Clay county, Missouri

$22.00

Plaintiff recovered judgment from which defendant appealed to the circuit court. In the circuit court the plaintiff against the objection of defendant, by leave of the court, filed the following statement:

Hannibal and St. Joseph Railroad Company

To John F. Minter,

Dr.

To defendant negligently and wrongfully killing (3) three hogs of plaintiff on or about the 31st day of July, 1881, at a point on track of defendant's railroad company where same passes through Gallatin township, Clay county, Missouri, and where the track of defendant was not enclosed by a lawful fence, and where defendant could have lawfully fenced its said track, said hogs being killed because said defendant did not have its track lawfully fenced at said point, and that said hogs were reasonably worth about ($22) twenty-two dollars.

Plaintiff again had judgment from which the defendant after ineffectual motion for new trial, etc., has appealed to this court.

I. The principal error assigned by appellant for reversal of this judgment is, the action of the circuit court in permitting the plaintiff to file said amended statement. We are referred by appellant's counsel, in support of this objection, to the case of Hansberger v. P. R. R. Co., 43 Mo. 196. The report of that case does not contain the statement filed with the justice. On examination of the transcript on file here it appears that the original statement in the justice's court, on which the justice rendered judgment, alleged that the railroad company “did injury to plaintiff as follows, that is to say, on or about the month aforesaid, at the county and state aforesaid, the employees of said company did run against, with a locomotive or cars, and did knock down and kill, two head of cattle of the value of $50, and said cattle belonged to plaintiff.” It was of this statement that Wagner, J., in his opinion said: “The original statement filed with the magistrate was in the nature of a declaration at common law, and devolved on the plaintiff the burden of proving negligence in the defendent before he could succeed in maintaining his action.” On appeal in the circuit court, the plaintiff filed an amended statement based on the fifth section of the damage act. Of this amendment he observed: “It is evident that the whole cause of action was here changed. Instead of a common law action it is based on a statutory provision, clothed with new incidents and requiring different proofs.” Under the statement appealed from in that case to the circuit court the plaintiff would have been required to maintain his action, to prove that the injury resulted from the negligence of the employees of the defendant company in running and managing the train, because by his averments he had limited himself to that character of proof. Whereas by the amendment he proposed to show that the injury resulted from neglect to fence the road at that point on which he might recover without any proof of negligence in running the train. This amendment clearly was not permissible.

But, the case at bar is different. The original statement was ““for killing hogs, etc.” It did not limit the proof to any particular character of negligence as the basis of defendant's liability. If a sufficient statement of a cause of action, the plaintiff might have given any proof of a negligent killing, whether of common law negligence or statutory, for failure to fence. In Calvert v. Railroad Co., 34 Mo. 242, this court plainly suggested that under a petition alleging that defendant, a railroad company, did “negligently and carelessly run over, maim and kill certain cattle belonging to plaintiff,” the plaintiff might prove, either actual negligence arising from the attendant circumstances of the killing, or mere constructive negligence arising from the failure to erect and maintain a fence. This case was again before this court in 38 Mo. 467 when the railroad made the distinct point that the petition showed only a common law liability,...