Riffe v. Wabash Ry. Co.

• Decision Date: 02 December 1918
• Docket Number: No. 12823.,12823.
• Citation: 207 S.W. 78,200 Mo. App. 397
• Parties: RIFFE et al. v. WABASH RY. CO. et al.
• Court: Missouri Court of Appeals

207 S.W. 78

200 Mo. App. 397

RIFFE et al. v. WABASH RY. CO. et al.

No. 12823.

Kansas City Court of Appeals. Missouri.

December 2, 1918.

Appeal from Circuit Court, Ray County; Frank P. Divilbiss, Judge.

Action by Arch M. Rife and others against the Wabash Railway Company and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

J. L. Minns, of St. Louis, S. J. & G. O. Jones, of Carrollton, and Lavelock & Kirkpatrick, of Richmond, for appellants.

Geo. W. Crowley, A. M. Clark, and M. M. Milligan, all of Richmond, for respondents.

TRIMBLE, J.

In June, 1915, plaintiffs' crop north of and adjacent to the right of way of the railroad hereinafter mentioned was overflowed. This suit was instituted to recover $1,200 damages. The jury returned a verdict for $398, and defendants appealed.

Plaintiff's land is about a quarter of a mile west of Rollins creek, which flows south to the railroad, which crosses said stream, practically at right angles, over what is known as bridge No. 575, and from thence said creek flows in a southerly direction, emptying into the Missouri river. The land north of the railroad and west of the creek, including plaintiff's, is higher than the land south of the railroad. Consequently all water, surface included, flowing against the railroad at the place in question would be obstructed by the roadbed unless suitable and sufficient openings across and through the right of way were constructed and maintained, as required by section 3150, R. S. Mo. 1909. The only opening available for the proper care of water along the railroad adjacent to the land in question was the channel of the above-named creek under said bridge No. 575. Therefore, if said channel opening were reduced so as to be insufficient for said purpose in ordinary times, then there would be a failure to have and maintain the statutory openings. And if plaintiff's land was, in an ordinary time, overflowed either because of the failure of the railroad to construct and maintain lateral ditches to connect with said stream, or because the railroad has reduced the stream opening under the bridge so that it was no longer sufficient, then, under section 3150, the plaintiff had a cause of action for the loss sustained. The fact that a cause of action would arise from either one of these failures to obey the statute is mentioned here to show that plaintiff, in bringing his suit under the statute, had a right to allege both violations, and to submit his case to the jury upon whichever one the evidence disclosed was the cause of the damage. Hence the fact that plaintiff included in his petition allegations of a failure to maintain lateral ditches as a cause of the overflow ought not to be regarded as basing the petition wholly upon that. The petition does allege a failure to construct and maintain suitable openings across and through the railroad as the cause of the overflow. The statute gives a right of action if either caused it. The petition alleged both did it, and therefore the fact that the case was submitted to the jury upon the failure to construct and maintain suitable openings did not create a difference between the pleaded cause of action and the one submitted. The petition hereinabove referred to is the second amended petition, but, as it is the only one Under which summons was issued and service had, we may regard it as the original foundation of the suit. Even if it could not be so regarded, and even though the first petition alleged only a failure to maintain lateral ditches, nevertheless plaintiff had the right to include, in his second amended petition, the failure to construct and maintain openings through the roadbed. Only one cause of action existed, namely, the right to recover loss from overflow caused by defendant's failure to obey the statute, though there are two ways in which such failure may arise. However, the first petition charged a failure in both respects; so that, even if we could otherwise look to the first petition, as defendant suggests, in order to confirm defendant's view that plaintiff's pleading did not in fact rest upon anything more than the failure to maintain lateral ditches, nevertheless no such confirmation is to be found.

Objection is made to the jurisdiction of the court over the defendants. To understand this properly it should be stated that, when the cause of action accrued in June, 1915, the railroad, then belonging to the Wabash Railroad Company, was in the hands of the defendant receivers, under an order and appointment of the federal court. In October, 1915, and before the present suit was instituted, there was a sale under the receivership of the railroad to the defendant Wabash Railway Company. Under the terms of the decree of sale the liabilities incurred by the receivers while operating the road were taken care of; one of the conditions of purchase being an agreement on the part of the Purchaser that, if such liabilities were not paid, the road itself could be taken from the purchasers and sold to pay the liabilities incurred as aforesaid. Plaintiff's claim comes within that category. The first petition was filed April 8, 1916, and was against the Wabash Railway Company alone. The second amended petition was filed June 9 1917, in which the receivers were joined as parties to the suit, the receivership and the sale to the Wabash Railway Company, together with its obligation to pay the liabilities hereinabove referred to, all being properly set forth along with a statement of the cause of action as having arisen in June, 1915, against the receivers by reason of their failure to obey the statute in the respects hereinabove mentioned. As stated before, it was under the second amended petition the summons was issued. Hence the petitions preceding it are not to be regarded as prior foundations of the suit, and for this reason the fact that the first petition was against the Wabash Railway Company alone can have no effect upon the question of jurisdiction about to be considered. The suit was brought in Ray county, through which the railroad runs, and summons was issued to said county for the defendant Wabash Railway Company and to St. Louis for the receivers of the Wabash Railroad Company. Service was obtained in these respective places. The situation, then, is this: At the time suit was brought, the railroad had been sold to, and was in the hands of, the Railway Company. It did not commit the wrong, but was only the...