65 Mo. App. 468 | Mo. Ct. App. | 1896
The plaintiff sued the ■ defendant railroad company in a justice’s court on a statement embracing four counts. The first, second, and fourth counts are for double damages for killing and injuring stock under the double damage act, section 2611 of the Revised Statutes. The third count is for damages for obstructing a running stream of water and the consequent overflow of plaintiff’s land and destruction of her growing potato crop. The case came to the circuit court on defendant’s appeal, and, on trial anew in that court before a jury, the plaintiff got a verdict for $10 on the first count and $5 on the fourth count, the jury finding for defendant on the second count, these counts being for injury to stock. The plaintiff also had judgment for $13 on the third count for overflow of her potatoes. The plaintiff filed her motion to double the damage on the first and fourth, or double damage, counts of her petition, which the court sustained and entered judgment accordingly.
On this state of facts, and after the foregoing proceedings were had, the plaintiff filed her motion for allowance of attorney’s fee, specifying therein that the
The sufficiency of the evidence to sustain the verdict is not questioned. The only errors assigned relate to the allowance of attorney’s fee, the admission of certain testimony of plaintiff’s husband, and the giving of instruction number 3 at the request of plaintiff.
The court erred in sustaining plaintiff’s motion for attorney’s fee. Section 2611 of the Revised Statutes of 1889 is the same as section 809 of the Revised Statutes of 1879, except in so far as the latter was amended in 1885. Prior to this amendment the section in question had two general objects: First, it prescribed the duty of railroads as to maintaining lawful fences, gates, and cattle guards on certain lands, and until this was complied with made them “liable in double the amount of all damages” to stock occasioned by such default. Secondly, it provided that, upon the failure for three months to perform such duties, “then the owners or proprietors of such lands” might perform the duties thus charged upon railroads “and have a right to sue and recover from such corporation * * * the full value of such fences, openings, gates, cattle guards or farm crossings.” When the amend
By contextural position, as well as by plain meaning, the provision of the latter clause of this amendment, commencing with the words “and in every such
The next error assigned relates to the questions put to plaintiff’s husband as to the manner in which the “pigs” were killed. The questions propounded, the objections thereto, and the answer of the witness, are, to wit:
‘ ‘ Q. G-et you to state about the killing of these pigs?
“Defendant objects to testimony by this witness in regard to the killing of the hogs, because he is an incompetent witness in this case, and this matter is not a súbjeet of agency and he is not her agent in this matter. Objections overruled, and defendant excepts at the time.
“Q. Get you to state when these first hogs were killed? A. Went out of my stable lot on the right of way, got on the track and got killed. They went through the gate on railroad track.
“Q. Get you to state how that gate was with regard to hogs getting under it? A. The gate was not hung so as to turn hogs; in fact it would not turn anything; the hook was on the outside and the hook should have been on the railroad side; anything pushing against the gate would knock the hinge out, and it was that way often, only worse. These hogs got under the gate.”
Before these questions were asked the witness
Appellant also complains of the following instruction, given by the court for plaintiff: “If the jury-believe from the evidence that the defendant raised a dam or embankment, or kept or maintained a dam or embankment, across a prong of Shoal creek, and that in consequence of such dam or embankment any part of plaintiff’s lands were overflowed and that plaintiff was injured thereby,- or that plaintiff in consequence of said dam or embankment was damaged by loss of her potato crop in the year 1894, you will find for plaintiff on the third count of plaintiff’s statement and assess her damages at any sum, not exceeding $100.”
“If the jury find for the plaintiff on the third count of her .petition, which refers to the overflow, they should allow the fair cash value of the potato crop as it stood at the time of the overflow.”
These two instructions show by their language that they qualify each other. The latter in terms directs the attention of the jury to the proposition embraced in the former; hence, they must be taken together and the generality of the first, complained of by appellant, was cured by the particularity of the latter. Burdoin v. Town of Trenton, 116 Mo. loc. cit. 372; Easley v. Railroad, 113 Mo. 236. This assignment of error will, therefore, be overruled.
As the issue on the allowance of the attorney’s fee was distinct from the other issues in the case (Briggs v. Railway, 111 Mo. loc. cit. 174), and as it is to this issue alone that error has intervened, the judgment of the trial court will be affirmed on the merits and reversed on the issue as to the allowance of an attorney’s fee. It is so ordered.
All the judges concur generally in this opinion, excepting the point which decides that the husband is a competent witness to prove his own agency for the wife in a case where he is no substantial party to the record.
The plaintiff’s husband is not a party to the record, and it would seein he was not a competent witness to prove his own agency for his wife. The amount involved, however, is very small, and there is no probability that a retrial would lead to a different result. Hence, in view of the conflict in the dicta of the supreme court on the point in question,
Section 8918 of the Revised Statutes provides that no person shall he disqualified as a witness in any civil suit by reason of his interest in the event of the same as a witness or otherwise. The words “or otherwise” have been held to work a total removal of the disability of husband and wife as witnesses for or against each other, where they are substantial parties to the record, excepting testimony touching confidential communications, and a partial removal of such disability in eases falling within the provisions of section 8922, where they are not substantial parties to the record but are called to prove some business transaction done by either as the agent of the other. Fugate v. Pierce, 49 Mo. 441; Moore v. Moore, 51 Mo. 118. The question arose at an early day whether the spouses are competent witnesses in any event to prove their own agency for each other. An intimation was made by the supreme court in Chesley v. Chesley, 54 Mo. 347 (per Sherwood, J.) that they are. In that case both spouses were substantial parties to the record and the agency was shown aliunde, as the husband was trustee of the wife under a deed. In Williams v. Williams, 67 Mo. 661, the wife was no party to the record and was permitted upon the trial of the cause to prove her own agency .for her husband. The supreme court, all the judges concurring, held (per Heííry, J.) that she was an incompetent witness to prove that fact. The ruling in Chesley v. Chesley, supra, was disapproved, without noticing the fact that in the former case the wife was a substantial party to the record. In the subsequent case of Wheeler & Wilson Manufacturing Company v.
It will be thus seen that the conflict in the decisions of the supreme court is a mere conflict of dicta, and not a conflict of decisions on the point in judgment. In Chesley v. Chesley and Leete v. State Bank, the spouse called upon to testify was a substantial party to the record, and hence a competent witness for all purposes. Hence there is no obvious reason why the witness should not prove the fact of his own agency as well as any other fact. The witness was qualified by the construction placed upon section 8918. In the two other cases, however, the spouse was not a substantial party to the record, and hence was disqualified by the provisions of section 8922. In my view there is no necessary conflict between these decisions, and all the cases, considering the point in judgment, were correctly decided.
It seems to be plain that the proof of agency is not proof of an act done in the transaction of business as Bgent but proof of an anterior fact, and hence one spouse