Ray v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 08 March 1887
• Citation: 25 Mo.App. 104
• Parties: NEWTON RAY ET AL., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 104

NEWTON RAY ET AL., Respondents, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY. Appellant.

Court of Appeals of Missouri, St. Louis.

March 8, 1887

APPEAL from the Wayne County Circuit Court, JOHN G. WEAR, Judge.

Reversed and remanded.

GEORGE H. BENTON, for the appellant: The petition states several independent causes of action in one count or paragraph, and the court erred in overruling the defendant's motion to require the plaintiffs to elect. Rev. Stat., sects. 3512, 3529; Bliss on Code Pleading, sect. 412; Pomeroy on Bemedies and Remedial Rights, sect. 447; House v. Lowell, 45 Mo. 881; Clark's Adm'r v. Railroad, 36 Mo 202; Bass v. Comstock, 38 N.Y. 21; Money v Kennett, 19 Mo. 550; Childs v. Bank, 17 Mo 213. The court should have taken the evidence, and tried the merits of the case after the defendant elected to stand on its motion, and had no authority to affirm the judgment of the justice. Smith v. Railroad, 20 Mo.App. 689; Rev. Stat., sect. 3057.

OPINION

THOMPSON J.

This suit was originally brought before a justice of the peace, to recover double damages, under Revised Statutes, section 809, for injuries to a crop of corn, alleged to have been done by hogs, which got into the inclosed fields of the plaintiffs, by reason of the failure of the defendant to maintain a fence along its line or road, as required by the statute. The plaintiffs' statement (omitting the caption) was as follows:

" The plaintiffs state that the defendant, at the time hereinafter mentioned, was running and operating a railroad through Williams township, county and state aforesaid, along and adjoining the inclosed and cultivated fields of the plaintiffs; that the plaintiffs were, in the year 1884, cultivating their said inclosed and cultivated fields, along and adjoining which the defendant's said railroad runs, as aforesaid, in corn, and that the said corn was the property of these plaintiffs; that from August until the thirtieth day of December, 1884, hogs straying and escaping from the defendant's said railroad and right of way, at the point aforesaid, where the defendant's said railroad runs along and adjoining the plaintiffs' said inclosed and cultivated fields, continuously came upon and entered into the plaintiffs' inclosed and cultivated fields, and destroyed a large quantity of the plaintiffs' corn, then being standing and growing, to-wit: One hundred bushels, of the value of forty cents per bushel, and of the aggregate value of forty dollars; that the destruction of the plaintiffs' corn, as aforesaid, was occasioned by the failure of the defendant to erect and maintain good and lawful fences, cattle-guards, and farm crossings, along the sides of said railroad at the point of its said road running along and adjoining the plaintiffs' said inclosed and cultivated fields aforesaid, where the said hogs escaped and strayed upon and into the plaintiffs' said corn, then being standing and growing, as aforesaid; that, by reason of the destruction of the plaintiffs' corn, as aforesaid, by hogs straying and escaping from the defendant's railroad and right of way, as aforesaid, at the time and place aforesaid, the plaintiffs say they were damaged in the sum of forty dollars, wherefore," etc.

This cause was before this court at a former term and was reversed on a point of practice, which does not touch the merits of this appeal. Upon this cause being remanded to the circuit court, the defendant filed the following motion:

" Now comes the defendant, by attorney, and moves the court to require the plaintiffs herein to elect upon which cause of action stated in their petition they will stand, for the reason that said petition states several separate and independent causes of action in one single count or paragraph, irregularly, and improperly."

The court overruled this motion and the defendant excepted. Then, as the record recites, " the defendant thereupon elected to stand on said motion, whereupon the court affirmed the judgment of the justice of the peace."

The entry of the judgment was as follows:

" Now, again come the said parties herein, by attorney, and this cause coming on for trial, and the defendant electing to stand on its said motion, the court doth find the issues for the plaintiffs. Wherefore it is considered and adjudged by the court that the judgment of the justice in this cause, be, and the same is, hereby affirmed," etc.

I. The motion to elect was not well taken. There were no separate and independent causes of action set up in the plaintiffs' statement, between or among which the plaintiffs could elect. The answer was for a continuing injury by trespassing animals to the plaintiffs' growing crop, for a period of about four months, in consequence of a continuing failure on the part of the defendant in the performance of the duty enjoined by the statute. The printed argument of the defendant indicates that the motion was based on the idea that a failure to fence was one cause of action and the failure to maintain a fence was another cause of action. This is a clear misapprehension. The cause of action was the injury, which the plaintiffs sustained through the failure, on the part of the defendant, to perform the duty enjoined by the statute; and the language of the statute is, " shall erect and maintain lawful fences," etc. The duty of erecting and maintaining is not divisible in the sense in which the defendant argues, but it is the aggregate duty, the failure to perform which, followed...