Parish v. Missouri, Kansas & Texas R.R. Co.

• Decision Date: 31 October 1876
• Citation: Parish v. Missouri, Kansas & Texas R.R. Co., 63 Mo. 284 (Mo. 1876)
• Parties: E. C. PARISH, Respondent, v. THE MISSOURI, KANSAS AND TEXAS RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

63 Mo. 284

E. C. PARISH, Respondent,

v.THE MISSOURI, KANSAS AND TEXAS RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Randolph County Circuit Court.

John Montgomery, for Appellant.

The statute being penal in its nature should be strictly construed.

When the 5th clause was enacted there existed no liability for double damages, as the act imposing double damages was not passed until long after this clause, conferring this jurisdiction, was enacted, and clause 5 contemplated no such liability.

We claim that the double damages here sued for are not included in this clause conferring jurisdiction in these cases upon justices of the peace; that, whether the double damages be regarded as punitive or compensatory, the justice had no jurisdiction to enter the judgment for the amount thereof in this action. Of course, justices of the peace have no jurisdiction not specially conferred by statute, and cannot take any by implication. The language conferring it must be plain and unmistakable. Regard the double sum as a fine or as a penalty, or simply as compensation, given to the owner for the injury to his stock, or as a police regulation, it cannot be made “damages to stock,” so that jurisdiction would be conferred upon a justice. Such jurisdiction can only be sustained by a very liberal construction of a highly penal statute.

Martin & Porter, for Respondent.

This is an action brought by respondent Parish vs. appellant, in Union township, in Randolph county, for stock killed by respondent's engine and cars in said township, at a point where defendant's road runs along an inclosed field, and where defendant's road is not fenced.

The justice has jurisdiction. (See Wagn. Stat. p. 809, clause 5, § 3; also, 53 Mo. 525.) The fact that defendant is a corporation, organized out of this State, does not alter the case, for by its act of extending its road into this State, or leasing the Hannibal Central Missouri Railway, on which the killing took place, and which defendant was at the time operating, it became liable the same as other corporations organized in this State. (Wagn. Stat. 1870, pp. 314, 315, §§ 56, 57, acts of 1870.)

NORTON, Judge, delivered the opinion of the court.

This suit was instituted before a justice of the peace for the recovery of damages for two horses killed by the defendant in operating its road. The complaint alleges that the horses were killed by defendant's locomotive at a place where said road passed through plaintiff's cultivated field, and at a point where defendant had failed to erect and maintain good and substantial fences along the sides of its track.

The plaintiff recovered judgment before the justice under the statute for double damages, from which defendant appealed to the circuit court of Randolph county.

On a trial de novo in the circuit court, plaintiff obtained a verdict for $210 damages, which, on motion, the court doubled, and rendered judgment for $420. From this judgment, after motions for new trial and in arrest had been overruled, defendant appealed to this court.

The only ground for error relied upon by defendant's counsel is, that the 5th clause of the 3rd section, art. 1, Wagn. Stat., p. 808, which declares that justices of the peace shall have concurrent jurisdiction with the circuit court “in all actions against any railroad company in this...