Theener v. Kurn

• Citation: 132 S.W.2d 707
• Decision Date: 30 October 1939
• Docket Number: No. 19404.,No. 19405.,19404.,19405.
• Parties: THEENER v. KURN et al.
• Court: Court of Appeal of Missouri (US)

132 S.W.2d 707

THEENER v. KURN et al.

No. 19404.

No. 19405.

Kansas City Court of Appeals. Missouri.

October 30, 1939.

Appeal from Circuit Court, Cass County; Leslie A. Bruce, Judge.

"Not to be published in State Reports."

Actions arising in the justice court, by Paul F. Theener and by George F. Theener, against J. M. Kurn and another, trustees of the St. Louis & San Francisco Railway Company, to recover damages for the killing of livestock. From a judgment for the plaintiffs, the defendants appeal.

Reversed and remanded.

Henderson & Deacy and W. M. Raines, all of Kansas City, for appellants.

Will H. Hargus, of Harrisonville, for respondents.

BLAND, Judge.

This is an action, arising in the justice court, to enforce a common law remedy for defendants' negligence in the performance of a statutory duty to fence their railroad right of way, resulting in the killing of plaintiff's live stock.

There are two cases which, by stipulation, were consolidated in the trial court and likewise in this court. Case No. 19404 is to recover damages by reason of injuries to one horse and the death of another belonging to plaintiff Paul F. Theener and case No. 19405 is to recover for the death of one mule owned by the plaintiff George F. Theener. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of Paul F. Theener in the sum of $200 and in favor of George F. Theener in the sum of $150. Defendants have appealed.

Defendants operate a railroad through Cass County. On April 9, 1937, the horses and mule belonging to the plaintiffs were upon the premises of the plaintiffs in a pasture adjoining the railroad right of way and, by reason of a defective fence, they entered thereon. After proceeding for a short distance along the right of way they passed therefrom through a defective fence along the same into plaintiffs' premises, being a garden at the rear of the residence thereon. They then proceeded through said garden and through a gate, which was open, into a private road or driveway leading north from the residence to U. S. Highway No. 71, thence west upon said highway about a quarter of a mile, at which point they were struck by an automobile being driven upon the highway, resulting in the mule and one horse being killed and the other horse being injured. The place where the animals were killed and injured was about a half a mile from the place where they first entered the right of way of defendants. The pasture from which the animals escaped was entirely enclosed except for a place along defendants' right of way where the fence was down for a distance of about 40 feet. The garden adjacent to the right of way and premises through which the animals went in reaching U. S. Highway No. 71 were not used or maintained at any time for the pasturing of live stock.

At the close of all the evidence the defendants offered an instruction in the nature of a demurrer to the evidence, which the court refused.

The case was instituted before a justice of the peace in Grand River Township in Cass County. The statement or petition alleges that the animals were killed in said township. The case was tried in the circuit court upon an agreed statement of facts. The stipulation, under which the case was tried, recites that a jury was waived and the case was submitted "on the following facts". Then appears the statement of facts, at the conclusion of which appears the following: "Therefore, at the conclusion of the evidence, which amounted to the above stipulation, the defendants submitted the following demurrer".

There was no evidence introduced in addition to that contained in the stipulation and nowhere in the stipulation does it appear that the case was brought before a justice of the peace in the township in which the injury happened or in any adjoining township. Section 2170, R.S.Mo. 1929, Mo.St.Ann. § 2170, p. 2374, provides: "Every action recognizable before a justice of the peace shall be brought before some justice of the township either: * * * fifth, an action against a railroad company for killing or injuring horses, mules, cattle or other animals, shall be brought before a justice of the peace of the township in which the injury happened, or in any adjoining township."

It has been held that there must be proof that an action of this kind was brought either in the township in which the injury happened or in an adjoining township. It is not sufficient merely to plead such a matter. Mitchell v. Mo. Pac. R. Co., 82 Mo. 106; Ellis v. Mo. Pac. R. Co., 83 Mo. 372; King v. Chicago Rock Island & Pac. Ry. Co., 90 Mo. 520, 3 S.W. 217; Backenstoe v. Wabash, St. Louis & P. Ry. Co., 86 Mo. 492; Jewett v. K. C., C. & S. Ry. Co., 38 Mo.App. 48; Geltz v. St. Louis & S. F. Ry. Co., 38 Mo.App. 579; Jones v. Chicago, B. & K. C....