Manz v. St. Louis, Iron Mountain & Southern Railway Co.

Sherwood, J. I. Action under section 809, commonly known as the double damage act, for killing a cow. The statement filed with the justice of the peace must be held insufficient under frequent decisions of this court in this, that it does not allege that the cow got on the track at a point where by law the company was required to erect and maintain fences. This is a fatal defect under the decisions cited and others referred to therein. The statement is also defective in another particular. It does not allege either that the animal got on the track where the “same passes through, along or adjoining enclosed or cultivated fields, or unenclosed lands,” or that the killing took place at any such point. It requires but a casual inspection of the section in question to observe the materiality of the words I .have quoted. None would contend that a recovery could be had in cases of this sort,'except upon proof that would bring the case within the terms of the statute. If proof be necessary, [281] then, a fortiori, allegations of the fact to be proven. From aught to the contrary appearing in the statement, the facts in question in this instance may have occurred where no obligation lay upon defendant to fence its track in order to escape the statutory liability of double damages. Frequent .rulings of this court establish that no liability of the kind mentioned occurs, for failure to fence in certain localities, though those localities are apparently embraced within the purview of the statute. Cousins v. R. R., 66 Mo. 573 ; Edwards v. R. R., Ib., 567, and cases cited ; Robertson v. R. R., 64 Mo. 412 ; Swearingen v. R. R., Ib. 73, and cases cited. And it. has been ruled by this court that the statement must show by direct averment or necessary implication that the killing did not occur within the limits of some incorporated town, or else no liability of the railroad company will be set forth. Rowland v. R. R., 73 Mo. 619 ; Schulte v. R. R., 76 Mo. 324. And in a later case it was ruled that such a state of facts was sufficiently negatived by an allegation that the animal “strayed upon the track, etc., at a point where said railroad passes along, through and adjoining enclosed or cultivated fields, or unenclosed lands, and was killed,” etc. Williams v. R. R., 80 Mo. 597. It will be observed that there is no such allegation in the present record. Moreover, the statute under discussion is a penal one; ove,r and above all compensation for injury done it exacts a penalty. It is needless to say that, where this is the situation, greater strictness of construction, both as to the allegata and the probata, is requisite than in ordinary cases. Fusz v. Spaunhorst, 67 Mo. 256; Kreitzer v. Woodson, 19 Mo. 327; Howell v. Stewart, 54 Mo. 400 ; Sedgwick’s Stat. and Const. Law, 281, and cases cited. II. Notwithstanding the plaintiff has failed in his complaint to state a cause of action, yet, under the provisions of section 3060, Revised Statutes, on return of this cause to the circuit court, he may, if the facts will [282] warrant liis so doing, amend his statement and make it conform to the requirements of the statute and the rulings of this court. King v. Railroad, 79 Mo. 328; Minter v. Railroad, 82 Mo. 128. The judgment will be reversed and the cause remanded.