Moling v. Barnard

Smith, P. J. This is an action based on section 2611, Revised Statutes, to recover damages for the killing of a mare, the property of the plaintiff, by the locomotive and cars of the Omaha & St. Louis Railway [603] Company, of -which railway company the defendant Barnard was receiver. There was a trial and judgment for the plaintiff. Defendant has appealed. The defendant m his brief states that: “There are but two simple questions presented by the record, namely: First. That the receivership was improperly proven; and, second, that the evidence wholly failed to show which of the railroads mentioned in the testimony killed the animal in question.” The first of these objections finds quite a sufficient answer in the admission of record made by the defendant’s counsel, at the very inception of the trial, which is as follows: “The defendant admits that on the thirtieth day of September, 1894, he was the receiver of the Omaha & St. Louis Railway Company, and that at said date (that on which the plaintiff’s mare was killed) he was operating the said railway as such receiver, in the county of Grentry and state of Missouri.” This was an admission injudicio, which was expressly made as a substitute for proof of the fact. It is of a class of admissions which fall under the head of conclusive presumptions of law. The recitals of the admission are conclusively presumed to be true. 1 Greenl. on Ev., secs. 27, 186, 205; Wharton’s Ev., secs. 1110, 1184, 1185; State v. Brooks, 99 Mo. 137; Young v. Wright, 1 Camp. 139. And this admission of defendant’s counsel so made is supplemented by testimony which was received without objection, to the effect that the defendant was operating said railway, at the time and place the plaintiff’s mare was killed. Even if the proper way to prove defendant’s receivership was by the production of a duly certified copy of the record of the court showing the appointment, yet this was, according to the authorities just cited, dispensed with by the solemn admissions of defendant’s [604] counsel. It follows that the defendant’s first point must be ruled against him. And as to the second point of objection, it is to be observed the testimony of the counsel for the defendant discloses the fact that the trains of both the Wabash railway and the Omaha & St, Louis railway were run over the road of the latter, under the direction of certain’ officers at Stanberry, who were in the joint employ of the receiver of such latter company and the Wabash Railway Company. If therefore the control of the operation of the defendant’s railway was joint, and the train which injured plaintiff’s mare was under the joint control of the officers and agents of the receiver of the Omaha & St. Louis Railway Company, and the Wabash Railway Company, then either or both of said companies were liable to plaintiff for the damages he sustained. Railroad v. Carroll, 6 Hark. 348; Vary v. Railroad, 42 Iowa, 246; Railroad v. Shacklet, 105 Iowa, 364. It is in effect conceded in the argument here that the plaintiff adduced evidence sufficient to entitle him to recover under the damage act, for the loss of his mare, against one or the other of said companies, the only question being as to which of them inflicted the injury and is, consequently, liable therefor. If we are in error in our conclusion that the said companies are liable, under the rule just stated, then we think the plaintiff is entitled to recover on another ground, which is this: There being no evidence that a locomotive and train of the Wabash company struck and killed the plaintiff’s mare, in the absence of such proof, we may, from the solemn admission made by defendant’s counsel, stated at the outset, that the defendant, at the date of the injury to plaintiff’s mare, was operating said Omaha & St. Louis railway, presume that the injury was inflicted by the locomotive and cars of the latter. [605] Railroad v. Booker, 41 N. E. Rep. 470; Railroad v. Carson, 4 Ind. App. 470; Railroad v. Snapp, 61 Ind. 303. The defendant’s second point must likewise be ruled against him. The court gave quite a number of instructions for defendant, which fully and fairly submitted the case to the jury, leaving the defendant, as we think, no just ground for complaint. The judgment will be affirmed. All concur^