57 Mo. App. 451 | Mo. Ct. App. | 1894
— The action in this cause was instituted and tried on the following statement filed before a justice of the peace:
“Atchison, Topeka & Santa Pe Railroad Co., to L. C. Webster, Dr., for one cow killed on or about July 26, 1891, valued at- twenty-five ($25) dollars,,
The plaintiff recovered judgment and the defendant appeals and assigns for error that the court erred
While the greatest liberality has been indulged in in this state to uphold the sufficiency of statements filed before justices of the peace (Coughlin v. Lyons, 24 Mo. 533; Quinn v. Stout, 31 Mo. 160; Burt v. Warne, 31 Mo. 296), still there is a limit to this liberality affecting' such statements. Thus it has been held that a statement in an action against a railroad for killing stock, which fails to aver either a duty to fence or negligence, is fatally defective. Clemings v. Railroad, 21 Mo. App. 606; Clarkson v. Railroad, 84 Mo. 583; Boyle v. Railroad, 21 Mo. App. 416. The cases of Iba v. Railroad, 45 Mo. 470, and Minter v. Railroad, 82 Mo. 128, have upheld' statements in this class of cases which were filed in the form of an account, but • in the former of those cases there was no objection to the statement in the trial court, and in the latter case the statement was amended on appeal. Besides that, the original statement in the Minter case at least advised the defendant at what point the animal was killed. Here, as will be seen, the statement fails to show where the animal was killed, and in fact, when literally read, does not even claim any damages in a specific sum for the killing. The defendant is entitled to be advised in some manner what he is called upon to defend. The objection to the statement should have been sustained.
It would appear from the plaintiff’s evidence that he sought a recovery on the ground that the animal came upon the track and was killed at some point where the defendant, although under no legal obligation to fence, might have fenced, and hence its failure to do so was evidence of negligence under the construe
The judgment is reversed.