Witthouse v. Atlantic & Pacific R.R. Co.
Decision Date | 30 April 1877 |
Citation | 64 Mo. 523 |
Parties | HENRY WITTHOUSE, Respondent, v. ATLANTIC & PACIFIC RAILROAD CO., Appellant. |
Court | Missouri Supreme Court |
Appeal from Osage County Circuit Court.
John O'Day, for Appellant, cited: Cecil vs. Pacific R. R. Co., 47 Mo. 247; Shearm. & Redf. Negl. § 462; G. W. R. R. vs. Northland, 30 Ill. 451; Morrison vs. N. Y. & N. H. R. R. 32 Barb. 568; Ellis vs. Pacific R. R. Co., 55 Mo. 278, and authorities there cited; Woodfolk vs. Gate, 25 Mo. 597; Cocker vs. Cocker, 56 Mo. 180.
Lay & Belch, for Respondent, cited: Seaton vs. C., R. I. & P. R. R. Co., 55 Mo. 416; Hudson vs. St. L., K. C. & N. R. R. Co., 53 Mo. 525.
This was a suit brought before a justice of the peace in Benton Township, Osage County, under Wagn. Stat. § 43, 310, for the recovery of damages for killing a bull of plaintiff at a point on said road where it had not been fenced according to law.
The complaint is in all respects formal and complete, and sufficiently states a cause of action. Upon a trial in the circuit court plaintiff obtained a verdict and judgment for $50.00, from which defendant has appealed, and seeks a verdict of the same for alleged errors of the court in admitting evidence and in giving and refusing instructions.
It appeared from the evidence that the animal in question went upon the track at a point on said road where the fence was not more than three feet high, and that this was a place at which defendant was bound under the law to maintain a fence.
Plaintiff offered in evidence a certified copy of a deed of lease, executed by the Pacific Railroad Company to the defendant, which was admitted in evidence against the objection of defendant that the original was the best evidence and was not accounted for, and no notice was given to produce it.
It appears that the deed was offered for the purpose of showing that the defendant was a corporation operating the road.
The defendant was sued in this capacity, as is shown by the statement, and the appearance of defendant to the action is an admission of its corporate existence and dispenses with the necessity of establishing it by evidence. If, therefore, the objections taken to the certified copy were technically well founded, the admission of it to prove a fact not necessary to be proved affords no reason for interfering with the judgment. (Seaton vs. Chicago, R. I. & P. R. R. Co., 55 Mo. 416.)
The instructions given for the defendant and those refused, which were asked by the defendant, are the only instructions preserved in the bill of exceptions. Those given for the plaintiff are not preserved, and the reason assigned for their not being copied in the bill of exceptions is, that they were either taken by the jury, or the lawyers, and not returned. We are asked to reverse the judgment on this ground, and it is claimed that in this respect the case is within the principle of the case of Cocker vs. Cocker, 56 Mo. 180. The case at bar is distinguishable from that, in this, that the same judge who gave the instructions complained of determined the motion for a...
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