133 Mo. App. 91 | Mo. Ct. App. | 1908
In its instructions on the first count of the petition ('asking damages for the value of the land)' the court ignored the deed and instructed the jury if they found the land had been taken and appropriated by defendant, and plaintiffs had not been compensated therefor, to find for them and assess their damages at the value of the land so taken and appropriated for railroad purposes. Defendant, on this and on all other counts of the petition, offered a demurrer to the evidence. Defendant contends that the deed is valid between the parties, and plaintiffs
“For a sixth and further cause of action against the defendant, the plaintiffs state that because of the neglect, failure and refusal of the defendant to construct and maintain suitable ditches and drains along each side of its roadbed, to connect with ditches, drains or Avatercourses, so as to afford sufficient outlet to drain or carry off the water along such railroad, whenever such water has been obstructed or such drainage has been rendered necessary by the construction of such railroad, resulting directly to the damage of these plaintiffs, as is*99 fully stated in the third and in the fifth counts of this petition, these plaintiffs are entitled to recover the penalty of five hundred, dollars, provided by the section 1110 of the Revised Statutes of Missouri of 1899, for the violation of said section, and for the failure, neglect and refusal of the defendant to perform its duty thereunder.
“Wherefore the plaintiffs pray for judgment for the sum of five hundred dollars for penalty under section .1110, aforesaid, with costs.”
The point is made by defendant that this count fails to state a cause of action and for that reason its demurrer to the evidence on said count should have been given. It will be observed that to make himself understood, the pleader referred to the third and fifth counts of the petition and attempted by a mere reference to these counts to bring allegations therein, essential to the statement of a cause of action, into the sixth count; in other words, the pleader attempted to state a cause of action by reference to statements in other causes of action stated in separate counts of his petition. The statute (section 598, Mo. Ann. St. 1906) provides that when different causes of action are stated in one petition, they “must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligently distinguished.” . It has been held that where allegations that are common to all the counts are clearly stated, they need not be repeated, but a reference to them in succeeding counts will suffice. This would apply to the allegation, that defendant company bought the road of the Southern Missouri & Arkansas Railroad Company and thereafter operated it; nor is it necessary to repeat mere matter of inducement but each count must contain all the allegations necessary to the statement of a cause of action. [Boeckler v. Railway, 10 Mo. App. 448.] The allegation in respect to the failure of defendant company to construct drainage ditches is not common to all the counts of the petition, nor to the