66 Mo. App. 75 | Mo. Ct. App. | 1896
This is an action which was commenced before a justice of the peace. The plaintiff’s statement of his cause of action was that the defendant on, etc., at, etc., “did kill five head of hogs, the property of plaintiff, of the value of $25, wherefore the plaintiff asks judgment,” etc.
The defendant by his motion in arrest of the judgment assails the sufficiency of the statement. The statute requires that a statement filed before justice of the peace shall contain “a statement of the facts constituting the cause of action.” R. S., sec. 6138.' The requirement of the practice act applicable to courts of record is that the petition shall contain “a plain and concise statement of the facts constituting a cause of action.” R. S., sec. 2039. The supreme court of this state have, in several instances, declared that a statement of a cause of action, while sufficient in form and substance, under the former of said statutes, would be insufficient under the latter. Iba v. Railroad, 45 Mo. 470; West v. Railroad, 34 Mo. 177; Dyer v. Railroad, 34 Mo. 127.
Speaking for myself alone, I may state that I am unable to perceive that there is any substantial difference in the requirements of these two statutes. Under either of them, the plaintiff must state the facts constituting his cause of action. Under the latter, the statement of his cause of action is required to be “plain and concise.” But he must, in either case, state a cause of action; that is to say, facts upon which the law authorizes a judgment. It is likely true that, under the latter statute, the petition, in addition to stating facts which constitute a cause of action, must also state the same, more artistically than under the former, in order to meet the requirement of the terms, “plain and concise.” But there is and can be no other diffeence in the requirements of the two statutes. I can not resist the conclusion that the construction placed on these two statutes by Judge Sherwood in his dissenting opinion delivered by him in Razor v. Railroad, 7 Mo. 471, was the correct one. But as we are expressly
Early v. Fleming, 16 Mo. 154, was where the statement or bill of items was “for three hogs,” but whether sold to defendant or killed, or taken away by him, was not mentioned in the statement. It appeared from the evidence in the case that the plaintiff’s hogs were in the defendant’s inclosure and that he shot them while there. The defendant’s field was not inclosed by a lawful fence. It was insisted that the statement was not sufficient. Judge Gamble, who delivered the opinion of the court, stated that “all formality is dispensed with in the statement of a cause of action before a justice of the peace and here the parties manifestly understood the nature of the plaintiff’s demand.” Coughlin v. Lyons, 24 Mo. 534, was where the ordinary account setting forth the items thereof was filed before the justice. It was ruled that a cause of action was sufficiently stated to authorize the admission of evidence to the effect that the articles enumerated were the property of the plaintiff and had been wrongfully seized at the instance of the defendant in an attachment suit. It was declared in the course of the opinion in that case, that though the account shows it to be for goods, wares, and merchandise sold by plaintiff to defendant, and the proof did not support it, yet the action might be considered as trespass or trover, according to the nature of the real transaction. It was in effect further said in the same case, that the practice before justices of the peace was differ
Burt v. Warne, 31 Mo. 296, was an action of trespass for damages before a justice, where the statement was as follows: “E. W. Warne, in account Calvin Burt, Dr. To damage done to buildings and premises in block 84 of the city of St. Louis.” When the action was brought, the statute of 1855 was in force. Its requirement as to what the statement of a cause, of action, filed before a justice of the peace, should contain, was the same as that in the present statute hereinbefore quoted. It was said by Judge Ewing, who wrote the opinion of the court in the case that: “The statement contained all the statute required. Although in the form of an account, it states the cause of action and the nature of the demand, amount of the damages claimed, names of the parties, description of the property injured, dates, etc. It was unnecessary to set forth more in detail the particulars of the transaction. All formality is dispensed with in such statements before justices of the peace.”
Iba v. Railroad, 45 Mo. 469, was where plaintiff filed a statement in the form of an account, “for damages amounting to sixty-five dollars, for a cow killed on railroad, on or about seventh of November, 1867, $65.” Which was signed by plaintiff. The court, after ruling the statement sufficient, remarked that “justices’ courts are popular tribunals, before which ordinary disputes can be adjusted without the aid of attorneys; and it would defeat the end of their organization, if the rules of practice and pleading found necessary' in courts of record were applied to their proceedings.” The last case was approvingly cited by the same court in Razor v. Railroad, 73 Mo. 472. In Hale v. Van Dever, 67 Mo. 732, what was said in Coughlin v. Lyons, ante, was quoted and followed. It was
It must be admitted that the adjudications in this state are not all in strict harmony. Brashears v. Strode, 46 Mo. 221; Swartz v. Nicholson, 65 Mo. 508; Nutter v. Houston, 32 Mo. App. 451. But the cases first cited, we think, declare the doctrine most recently recognized by the supreme court, and, therefore, they are binding on us. Force v. Squier, 34 S. W. Rep. 574.
The statement in the present case, we are constrained to think is sufficient, when viewed in the light of the rulings in the cases to which we have already adverted.
The defendant further objects that the trial court erred in permitting the plaintiff to introduce evidence tending to show that the defendant was a man of violent temper, and also that he had on several occasions been guilty of acts of great cruelty to his own stock. The plaintiff in answer to this objection states in his
The defendant further objects that the court erred in giving for the plaintiff an instruction presenting to the consideration of the jury the question of wanton
The plaintiff’s second instruction given by the court told the jury that if defendant’s dog was fierce and would worry hogs when put after them, and that the defendant, knowing the propensities of-his dog, set him after the, plaintiff’s hogs and they were therefore bitten and worried, and that as a result they died, then the finding should be for the value of the hogs, even though defendant in putting his dog after the hogs did no more than a prudent man would have done under the circumstances, knowing the propensities of his dog. This instruction is wholly unintelligible. All that part of it embraced in the proviso should have been omitted. It is probably in conflict with the first instruction given for the defendant. It was better calculated to obfuscate than to enlighten the mind of the jury, with respect to their duty under the evidence. It is to be regretted that an error should supervene in a case like this, of so serious a nature as to call for a reversal.
The judgment must be reversed and ' cause remanded.