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

• Decision Date: 18 June 1887
• Parties: ST. LOUIS, I. M. & S. RY. CO. <I>v.</I> BROWN.
• Court: Arkansas Supreme Court

Page 781

4 S.W. 781

ST. LOUIS, I. M. & S. RY. CO.

v. BROWN.

Supreme Court of Arkansas.

June 18, 1887.

Appeal from circuit court, Clark county.

Dodge & Johnson, for appellant.

COCKRILL, C. J.

In July, 1886, Brown sued the railroad company on the following complaint: The plaintiff, Randolph Brown, states that the defendant, the St. Louis, Iron Mountain & Southern Railway Company, is indebted to him in the sum of $103 for damages done to personal property, particulars of which are set out in an account herewith filed, leaving due and unpaid the sum above mentioned; wherefore he prays judgment for $103, as above claimed, and for other relief." Appended to the complaint was a statement charging the company, in separate items, with the value of several cows and hogs, the property of the appellee, which had been injured or killed in Clark county by the appellant's locomotives. The statement showed that the injuries had been inflicted more than one year before suit brought, with one exception,—a hog had been injured within the year. The company offered to confess judgment for the value of the hog, demurred generally to the complaint, and demurred to each item of the accompanying statement, upon the ground that they were severally barred by the statute of limitations. The demurrer was overruled, the company declined to answer, the claims were duly proved, judgment was rendered for the plaintiff, and the company appealed.

Only the questions arising upon the demurrer are presented.

There is nothing in the misnamed statement of account that pertains properly to an exhibit to the complaint. Each of the so-called items was a separate cause of action, and everything that was material in the statement should have been specifically averred in the body of the complaint. Instead of seeking to take advantage of this state of pleadings, the company elected to treat the two parts as one complaint, and upon this lead the court so treated it. It is too late now for the defendant to call the statement an exhibit, and complain that it cannot be looked to to aid the allegations of the complaint.

2. The objection that negligence on the part of the company was not averred is not well taken. It was shown that the stock was injured by the company's train, and this the statute makes prima facie evidence of negligence. A legal conclusion need not be alleged.

3. The objection that the court had not jurisdiction because it was not shown by the complaint that the injuries...