Wilson v. St. Louis, Iron Mountain & Southern Ry. Co.

• Decision Date: 31 October 1885
• Citation: 87 Mo. 431
• Court: Missouri Supreme Court
• Parties: WILSON v. THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

87 Mo. 431

WILSON

v.THE ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Wayne Circuit Court.--HON. R. P. OWEN, Judge.

AFFIRMED.

Geo. H. Benton for appellant.

(1) On the pleading, the judgment in this case should have been for defendant. Cooksey v. Railroad Co., 74 Mo. 477; Freeman on Judgments, sec. 215; Blake v. Downey, 51 Mo. 437. (2) The burden of proof to sustain the allegation of the replication was on the plaintiff, and as there was no evidence at the trial to sustain the replication, the judgment should have been for the defendant. Bank v. Burnam, 61 Mo. 76; Spurlock v. Railroad Co., 76 Mo. 67; Childress v. Cutter, 16 Mo. 24; Brown v. Brown, 45 Mo. 412; Hamilton v. Mark, 63 Mo. 167; Henry v. Lowe, 73 Mo. 96. (3) The court erred in refusing defendant's declarations of law. Rutledge v. Railroad Co., 78 Mo. 289; Clardy v. Railroad Co., 73 Mo. 576; Case v. Railroad Co., 75 Mo. 668; Berry v. Railroad Co., 65 Mo. 172; Clark v. Railroad Co., 36 Mo. 202; Price v. Railroad Co., 49 Mo. 438. (4) Section 809, Revised Statutes, is unconstitutional. It violates the provisions of the constitution of the state of Missouri. Article 2, sec. 20; also the provisions of article 2, sec. 8. It also violates the constitution of the United States. Article 14, sec. 1; Cooley Const. Lim. 573, and authorities cited; Vanzant v. Waddell, 2 Yerger, 260; Lenz v. Choulton, 23 Wis. 478; Wynchamer v. People, 13 N. Y. 432; Gibson v. Mason, 5 Nev. 302; Gorman v. Pac. R. R., 26 Mo. 450; Trice v. H. & St. J. R. R. Co., 49 Mo. 440; Hudson v. St. L., K. C. & N. R. R. Co., 58 Mo. 536; Seaton v. C., R. I. & P. R. R. Co., 55 Mo. 416; Paris v. M., K. & T. R. R. Co., 63 Mo. 286. Because it is not an exercise of the police power. Judge Field in Munn v. Illinois, 94 U. S. 141; Const. 1875 (Mo.) sec. 5, art. 12; Cooley Const. Lim. (2 Ed.) 706; Const. 1875 (Mo.) sec. 14, art. 12; State ex rel. v. Greer, 78 Mo. 188; State v. Noyes, 47 Me. 211; Commissioners v. Railroad, 63 Me. 211; Erie v. Erie Canal Co., 59 Pa. St. 174.

J. N. Morrison for respondent.

(1) Defendant alleged in its answer that there was “a judgment before a justice of the peace,” etc., but did not say whether it was valid or void, or that it was duly given. In pleading a judgment of a court that has not general jurisdiction, the pleader ought to state the facts that confer jurisdiction, but if he does not he must at least allege that the judgment was duly given. R. S., 1879, sec. 3551; Wichersham v. Johnson et al., 51 Mo. 313. Defendant, in its answer, did not state either of these things. (2) The plaintiff should not be put upon his proofs to sustain the new matter set up in his replication, because said new matter was in response to an allegation in defendant's answer that was itself insufficient in law, as we have seen, in that it did not state sufficient facts to constitute a defence; and the said new matter set up was merely seeking to avoid that thing which is insufficient as and for a defence, and is simply surplusage in the replication. But the record of the judgment offered by the plaintiff was held sufficient to sustain the theory of the new matter of the replication. (3) The court properly refused defendant's declarations of law. Williams v. H. & St. J. R. R. Co., 80 Mo. 597; Gee v. St. L., I. M. & S. R. R. Co., 80 Mo. 283; Clardy v. St. L., I. M. & S. R. R. Co., 73 Mo. 576; Vineyard v. St. L., I. M. & S. R. R. Co., 80 Mo. 92; Rutledge v. H. & St. J. R. R. Co., 78 Mo. 29.

NORTON, J.

This suit was instituted in the Wayne county circuit court on the thirteenth of August, 1881, to recover double damages under section 809, Revised Statutes, for the alleged killing of two hogs and injury to plaintiff's crops, by reason of defendant's failure to erect and maintain good and lawful fences along the sides of its road, where it passed through the cultivated field of plaintiff. The answer of defendant set up as a bar to plaintiff's action, that on or about the nineteenth of April, 1881, the plaintiff instituted a suit against defendant, before a justice of the peace in Benton township, county of Wayne, for the same cause of action for which this suit is brought, and for the same property and items of damage for which this suit is brought, and a final judgment was rendered against defendant on the thirtieth of April, 1881, and that said judgment remains in full force and effect. To this answer plaintiff filed a replication admitting that plaintiff obtained a judgment before the justice of the peace on the same cause of action for which this suit is brought, but denying that said judgment remains in full force and unreversed, and averring that said judgment had, by agreement of the parties and judgment of the court, been perpetually enjoined, and that it was in said judgment agreed between plaintiff and defendant that plaintiff should not be prevented or precluded from pursuing his identical cause of action, upon which said enjoined judgment was founded.

A demurrer was interposed to the replication, which was overruled, and we think properly, inasmuch as the facts therein stated showed a distinct agreement that the enjoined judgment should not interfere with the right of plaintiff to prosecute his suit based on the same cause of action. While the rule is that a cause of action, when prosecuted to a judgment, becomes merged in the judgment, and such judgment is a bar to the prosecution of another for the same cause of action, it is, nevertheless, competent for the parties (as the replication in this case avers they did), to agree that such judgment may be set aside and enjoined on the condition that it shall not affect the right of plaintiff in such judgment to prosecute his suit on his original cause of action, which formed the basis of such judgments.

The evidence offered on the trial tended to show that the fences erected by defendant along the sides of its road, where it passed through plaintiff's field, had become so dilapidated and out of repair, that hogs and cattle passed through it into plaintiff's fields, of which defendant had knowledge, and that the fences had remained so out of repair for a period of two or three months, and that plaintiff had been damaged by reason thereof to the extent of his claim.

The cause was tried by the court without the intervention of a jury, and the chief error assigned is the refusal of the court to give certain declarations of law asked by defendant, one of which was in the nature of a demurrer to the evidence. It is claimed that this instruction ought to have been given because pl...