245 S.W. 618 | Mo. Ct. App. | 1922
This is an action to recover the value of a sow. At the close of all the evidence the court gave on behalf of defendant an instruction in the nature of a demurrer to the evidence, resulting in a verdict and judgment for the defendant. Plaintiff has appealed.
The cause arose in a justice court where there was a judgment for plaintiff in the sum of $25 and defendant appealed. Plaintiff in his statement alleges that he and defendant were residents of the same township, that defendant was the owner of a sow and that on the 30th day of September, 1921, "defendant carelessly and negligently permitted said sow to run at large and break into the lot and premises of plaintiff in the town of *312 Linneus; that . . . said sow belonging to the defendant broke into the plaintiff's lot and there jumped upon and abused and mistreated" a sow belonging to plaintiff, causing the death of plaintiff's sow; "that said sow belonging to plaintiff was killed by defendant's sow solely by reason of the carelessness and negligence of the defendant in permitting his said sow to run at large and break into the lot of plaintiff." Plaintiff asked judgment for $60, the amount alleged to be the value of the sow.
The evidence taken in its most favorable light to plaintiff tended to show that he was the owner of a sow which was within an enclosure upon his premises in the town of Linneus, and that said premises were fenced with a lawful fence such as is prescribed by section 5512, Revised Statutes 1919; that defendant's sow, which was spreeing, got out of defendant's enclosure and broke through plaintiff's fence worrying plaintiff's sow to death.
The reason that the court sustained a demurrer to the evidence was apparently on the ground that the evidence failed to prove the cause of action alleged. After a careful review of the authorities we are convinced that the action of the trial court was correct. While we are mindful that this case arose in a justice court and that a statement filed before a justice may be informal and that it is good if it sufficiently discloses the cause of action claimed and fairly warns defendant of the nature and extent of plaintiff's demand and is sufficiently specific to bar another action, yet it is well settled that plaintiff, even in a justice court, may not sue on one cause of action and recover upon another. [Turner v. McCook,
The question before us then is what kind of action plaintiff intended to present in his statement, regardless of any niceties or accuracy of pleading. [Nave v. *313
Dieckman, 208 S.W. 273, 274.] Plaintiff contends that he was entitled to recover under section 5813, Revised Statutes 1919, creating a cause of action against the owner of stock which breaks over or through a lawful statutory fence (Sec. 5512, R.S. 1919), but no facts bringing the case under this section are alleged. While it is alleged that defendant's sow killed plaintiff's sow "by reason of the carelessness and negligence of the defendant in permitting his said sow to . . . break into the lot of plaintiff," which allegation carries with it an inference that the lot where plaintiff's sow was killed was enclosed by a fence, there are no facts alleged to show that such fence complied with the provisions of section 5512, Revised Statutes 1919, or any intimation to defendant that plaintiff was claiming under such section. It is apparent that plaintiff was basing his action upon negligence. No negligence is necessary to be shown to recover under sections 5512 and 5513, Revised Statutes 1919. Such recovery is based upon the theory of trespass. There is no question but that if plaintiff was relying upon sections 5512 and 5513 as a basis of a recovery in this case the facts should have been stated in the petition in some way so as to bring the case within the terms of the statute. [Blewett v. Smith,
It is held in Bean v. St. Joseph,
While it is not claimed that the statement and evidence are sufficient to make out a case for the jury for trespass quareclausum fragit, for the breaking and entering the inclosure of plaintiff, a cause of action existing in this State (Becket v. Becket,
But plaintiff insists that we may disregard the allegation of carelessness and negligence on the part of *315
defendant as being merely surplusage or overcharge. Where facts are set out in plaintiff's statement filed before a justice of the peace showing that he intends to state a certain cause of action and he alleges more than is necessary to support the cause of action, it has been said that the additional facts alleged may be regarded as surplusage. [McReynolds v. Q.O. K.C.R. Co.,
There is no question but that there is a cause of action given to the owner of stock killed by the stock of another, based upon the negligence of the defendant. There is a cause of action known to the common law for the damage done by a domestic animal of vicious propensities or accustomed to do mischief, known to the owner. [Becket v. Becket, supra.] It is said that the gravamen of such an action is negligence. [Merritt v. Matchett,
"It is not necessary that an animal should be vicious to make the owner responsible for injury done by it through the owner's negligence. The vice of the animal is an essential fact only when, but for it, the conduct of the owner would be free from fault." [3 C.J., p. 92, par. 323.]
We think that the court did not err in excluding the ordinances. The first one was properly excluded because in order to show a violation of the ordinance it was necessary for plaintiff to show that defendant's hog was out without his knowledge or consent. [Evans v. Holman,
The judgment is affirmed. All concur.