72 Mo. 338 | Mo. | 1880
The petition is as follows : Plaintiff states that the defendant is a corporation duly incorporated by the laws of the State of Missouri, and, as such, operates a railroad known as the St. Louis, Kansas City & Northern Railway within the limits of said State. Plaintiff states that at a point in the county of Clay, known as Minneville, the defendant’s road, as a separate roadway and track, ceases, and that from that point to Harlem depot, all in Gallatin township, Clay county, Missouri, defendant runs its train of cars, managed and directed by its own servants and agents,and drawn by their own engines over the road-bed and track of the Hannibal & St. Joseph Railroad Company,by an arrangement with said Hannibal & St. Joseph Railroad Company for that purpose ; that, during the month of July, 1876, defendant was running its engines and cars over said road-bed and track from Minneville to Harlem under and by virtue of such an agreement. Plaintiff further states that on or about the 9th day of July, 1876, she was the owner and possessor of two cows, to-wit: one large dark-red cow, six years old, of the value of $60, and one large pale-red cow, with white spots and white back, five years old, and
This petition was held sufficient on a general demurrer, i. e., that the petition did not state facts sufficient to constitute a cause of action. Defendant declining to plead further, the court proceeded to assess the damages, found from the evidence adduced that they were $200, and gave judgment accordingly.
The statute on which this proceeding is based, is as follows: “ Every railroad corporation formed or to be formed in this State, and every corporation formed or to be formed under this chapter, or any railroad corporation running or operating any railroad in this State, shall erect and maintain lawful fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed lands, * * sufficient to prevent horses, cattle, mules and other animals from getting on the railroad ; and until fence's, * * as aforesaid, shall be made and maintained, such corporation shall be liable in double the amount of all
It would have been very easy, it would seem, for the pleader to have simply followed the language of the statute just quoted, and to have stated that defendant was running (or was operating) the Hannibal & St. Joseph Railroad between the points mentioned in the petition, etc., etc. But this he failed to do, and the question arises: Is the failure a fatal one ? We think not, and for these reasons: •It is to be observed that under our code, a code which seems “adapted, devised and designed” to make poor pleaders, it is not at all necessary that the petition should state a cause of action, but only “facts sufficient to constitute a cause of action.” If the petition, however bunglingly drawn,- contain the facts which make a cause of action, it is not obnoxious to the attack of a general demurrer, nor of a motion in arrest, nor of attack in this court for the first time. But if the necessary facts are not set forth, the objection may be taken here in the first instance; and is as fatal as the lack of jurisdiction over the subject matter of the action, at least so far as bringing about a judgment of reversal is concerned. Weil v. Greene Co., 69 Mo. 281, and cases cited. So that a party gains no advantage by a general demurrer which he might not ultimately gain by a similar objection in this court. This case then stands here as if defendant were making objection now for the first time to the fundamental sufficiency of the petition, and not on the ground of some formal insufficiency of its statements.
Had no demurrer been interposed, and did this case come up to us by appeal or writ of error, would we reverse the judgment on the face of this petition? We are not prepared to go so far as that. Literally speaking, it could