48 Mo. 387 | Mo. | 1871
delivered the opinion of the court.
The plaintiff brought suit before a justice of the peace, and filed the following as his “statement of facts constituting the cause of action,” as required by the statute. “Plaintiff states that defendant, by its agents, engine and cars, on the 6th day of April, 1869, on its road, about one mile east of Kidder, in Hamilton township aforesaid, at a point on said road where the same was not fenced by defendant, did strike, bruise, wound and kill a white cow, the property of plaintiff, aged about five years, and worth seventy-five dollars. Plaintiff therefore states that by virtue of the statutes of the State of Missouri, as found in Gen. Stat. 1865, chapter 63, entitled ‘ Of Railroad Companies,’ and especially by the* forty-third section of said chapter, pp. 342 and 343, he is entitled to-double the amount of seventy-five dollars,’ etc. The plaintiff obtained judgment for $75 only, and appealed to the-Circuit Court, and there defendant moved to dismiss the case for want of a sufficient statement of facts. The motion was overruled, the plaintiff amended his statement, and obtained judgment for $150, double the damages suffered.
It does not become necessary to consider the amended statement, for if the original was insufficient theré was nothing to amend by. That this statement would be insufficient as an original petition in a court of record is very clear, inasmuch as it lacks averments necessary to bring the pleader within the statute. It should appear among other things that the cattle strayed on the jroad through the defect of cattle-guards at a road-crossing, or
the judgment will be affirmed.
