Sinclair v. Missouri, Kansas, & Texas Railway Co.

Smith, P. J. This is an action based on section 2611, Revised Statutes, to recover damages for killing three hogs. The original petition was in two counts, the first of which alleged that at the time of the injury therein complained of the defendant was a legally organized corporation operating a line of railway running through Howard county, in this state, and that on a certain day therein mentioned two hogs of the plaintiff escaped from plaintiff’s premises and entered upon defendant’s right of way at a point where its railroad runs through inclosed fields, farming and cultivated land, and where the same was not inclosed by a lawful fence, etc., and was struck and killed by a passing train, etc. The [593] second count differed from the first only as to the description of the hog alleged to have been injured, the date of the happening of the same and the amount of damage claimed. The answer of the defendant admitted that it was a corporation engaged in operating a line of railroad as alleged in the plaintiff’s petition and denied every other allegation contained in either count thereof. There was a trial before the court, a jury being dispensed with. The plaintiff had judgment and defendant appealed. Fo?causeslfinder rerfanswcr.ur" During the progress of the trial the plaintiff testified that the two hogs described in the first count of his petition were not killed at the same time or in the same collision, and thereupon the defendant moved the court to strike out all of his testimony relating to the killing of such hogs on the ground that the injuries happened at different times and by different trains and constitute different causes of action which could not be properly united in one count. The injuring of each" of the hogs on different occasions constituted distinct causes of action. These causes of action being of the same class could all be joined in one suit but each loss or injury should have been stated in a separate count. Bricker v. R’y, 83 Mo. 391. The statute, section 2043, Revised Statutes, provides that the defendant may demur to the petition when it shall appear upon the face thereof that several causes of action have been improperly united. But when such objection does not appear upon the face of the petition it may be taken by answer but if not taken either by demurrer or answer it shall be deemed waived. R. S., see. 2047. Accordingly it has been ruled in this state that when it appears that two different causes of action are blended in the same count the defendant must make [594] Ms objection based on that ground by demurrer and if he answers over, such objection will be deemed waived. Thompson v. School District, 71 Mo. 495. And so, too, it has been ruled that when the objection does not appear on the face of the petition and the defendant does not set it up by answer he will be presumed to have waived the same. Walker v. Deaver, 79 Mo. 665; Horskotte v. Minier, 50 Mo. 160. In Elfrank v. Seiler, 54 Mo. 134, it is said that: “There are only tivo things under our liberal system which are fatal to a suit, and these are, first, that the petition does not state facts sufficient to constitute a cause of action, and, second, that the court has no jurisdiction over the subject-matter of the suit. And the fatality as to the first instance cited may be obviated so far as concerns a formal sufficiency by amendment, but if the pleader refuse to amend, defeat awaits him. Aside from this fatal defect in the pleading the pleader has nothing to fear. His petition, however inartificially drawn, if it but state a cause of action is, unless objections are made by demurrer or answer, as valid to all intents and purposes as though prepared by the most skillful hand. For unless objections are made in the manner above stated they are deemed waived.” It is conceded the first count of the petition stated a good cause of action, and it must therefore inevitably result that the action of the court in refusing to strike out evidence adduced on the ground previously stated must be upheld. Kkiinn°gstock: ®yTi¡ce°iiseebl1’ II. The defendant further objects that whatever proof there was tending to show any killing of the plaintiff’s hogs was to the effect that it was done by the Missouri, Kansas & Eastern Railway Com-pany- Whether this is another name by which the defendant was commonly known in the locality of the injuries or whether [595] there is a different and independent railway corporation running its cars over the defendant’s track the record gives no information. It is in effect conceded that the locus in quo was on the line of the defendant’s railway and that the evidence was sufficient to authorize the finding of the court that the defendant had failed to perform its statutory duty in respect to erecting and maintaining fences on the sides of its right of way at the point where the plaintiff’s hogs escaped from his premises and entered upon such right of way. Indeed, the pleadings admit that the defendant is a railroad corporation operating its railroad in this state along and through the cultivated land of the plaintiff and at the place where it had neglected its duty in respect to fencing its right of way as already stated. If, as insisted by the defendant, the evidence tends .to prove that the plaintiff’s hogs were struck and injured by the trains of the Missouri, Kansas & Eastern Railway Company while the same were being run over the track of the defendant this was sufficient to establish the defendant’s liability for the injuries complained of. The defendant’s liability could be established either by proof that the hogs were struck by its own cars or those of the Missouri, Kansas & Eastern Railway Company. The legal effect would be the same in either event. The primary liability of defendant arises out of its conceded neglect to perform a statutory duty in respect to the fencing of its road. A reference to what is said in Price v. Barnard (decided at the present term), McCoy v. Railway, 36 Mo. App. 445, and Price v. Railway, 65 Mo. App. 649, will render a further discussion of this point of objection superfluous. [596] “^e 1Éiíor.harnüess [595] III. The defendant objects further that the court erred in its action refusing to permit it to read in evidence the certain depositions tending to prove the value [596] of similar hogs to those injured in the markets at St. Louis and Kansas City at the date of the several injuries. The court should prob-ably have permitted the reading of these depositions. Proof of the actual sales in the market of hogs similar to those killed by defendant was admissible to establish the value of the plaintiff’s hogs at the time they were killed. This was, however, not the only way the value could be established. The rule is that upon the question of the value of property, real or personal, and as to the amount of damages done to it, parties shown by the evidence to be acquainted with the value or damage may, in connection with the facts, state their opinion as to value or damages. R’y v. Calkins, 90 Mo. 538; Young v. R’y, 52 Mo. App. 530. The value of hogs or any other marketable commodity is necessarily more or less a matter of opinion among dealers in such property. Actual sales may be more reliable evidence of the. market price, but experts may be allowed to give their opinions based on either actual sales at the time and place or on general observations and experience. Cantling v. R’y, 51 Mo. 385. The plaintiff’s witnesses, without objection, testified their opinion as to the value of the hogs. Their testimony was ample to sustain the finding of the court as to values. It does not appear that the offered depositions tended to prove directly or inferentially that the plaintiff’s hogs were of less value than they were shown to be by the testimony of the plaintiff’s witnesses. It does not, therefore, appear that the defendant was in any way prejudiced by the action of the court. As far as we can discover from anything presented by the record before us the error, if such it was, was harmless. [597] appellate prac- [596] IV. We think the evidence was sufficient to authorize a submission of the case to the jury. It is [597] true that there was no testimony of any eyewitness to the collision in which the plaintirrs hogs were injured, but there are circumstances detailed in evidence which leave no reasonable ground to doubt that they were so killed. Circumstantial evidence that an animal was killed by a collision with a railroad train will support a verdict for plaintiff. Combs v. R’y, 58 Mo. App. 467. It has been repeatedly declared by the supervisory courts of this state that when the trial court has been intrusted with both facts and law, as in this case, they will assume the facts to be as the court found them. Swayze v. Bride, 34 Mo. App. 416; Taylor v. Penquite, 35 Mo. App. 403; Hamilton v. Boggess, 63 Mo. 251; Gains v. Fowler, 82 Mo. 509. Trial practice: cmHorS^the mint for idíiíng stock. V. At the conclusion of all the evidence the plaintiff asked and obtained leave to file an amended petition. In conformity to such leave he filed an amended petition containing three separate counts, in each of which was charged a distinct injury and damage. ° tJ J ° The two hogs alleged m the first count of the original petition to have been billed in the same collision were alleged in the first and second counts of the amendment to have been injured on different occasions. The statute, section 2098, Revised Statutes, confers upon the trial courts the power at any time before final judgment in furtherance of justice to correct a mistake in any pleading or to amend the same so as to make it conform to the facts proved, provided the amendment does not change substantially the claim or defense. The plaintiff’s several causes of action arose out of the defendant’s continuous breach of its statutory duty. The actionable negligence or the proximate cause of the injuries as alleged is the same in both petitions. The consequences flowing out of and resulting to the plaintiff from such negligence is [598] also the same. But there is a difference between the two as to the dates when the plaintiff was injuriously affected by such negligence. It seems to us clear that the action of the court in permitting the plaintiff to so amend his petition as to specify in separate counts the precise dates when each injury occurred so as to make the allegations of his petition conform to the proof was a proper exercise of discretion by the trial court under the statute. Manifestly there was no substantial change of the original cause of action, which was the negligence of defendant in respect to its fences and certain consequences resulting therefrom. structlons:náfrmance. VI. No instructions were asked or given for plaintiff. The court, at the instance of defendant, and on its own motion, gave several instructions for defendant embodying the theories upon which it disposed of the case, and which, we think, were substantially correct. Some of those refused were rendered inapplicable by the amendment of the plaintiff’s petition whilst others were substantially the same as those given by the court on its own motion. We think the judgment is clearly for the right party, and that it should be affirmed. All concur.