Kinion v. Kansas City, Springfield & Memphis Railroad

Thompson, J., delivered the opinion of the court. This was an action under section 809, R evised Statutes, to recover double damages for killing the plaintiff ’s cow at a place on the defendant’s railway where its track was not fenced. The action was brought before a justice,of the peace of Dry Creek township, in Howell county. The statement averred, inferentially, that the cow was killed in Hutton Valley township, and the evidence showed that such was the fact. It was not alleged in the statement, nor was there any evidence tending to show that Hutton Valley township adjoins Dry Creek ■township. The rule in such actions is, that, where the statement alleges that the killing occurred in a township other than the one in which the action is brought, -and [575] does not aver that the two townships adjoin, and the evidence adduced fails to show that they adjoin, a demurrer to the evidence should be sustained. Ellis v. Railroad, 83 Mo. 372; Backenstoe v. Railroad, 86 Mo. 492. Not only must the statement show that the township in which the animal was killed adjoined the township in which the action was brought, but this must also be shown in the evidence. Mitchell v. Railroad, 82 Mo. 106; Palmer v. Railroad, 21 Mo. App. 437; Wright v. Railroad, 25 Mo. App. 236; Backenstoe v. Railroad, supra. For the failure to aver and prove this essential fact, the demurrer to the evidence should have been sustained ; and accordingly we must reverse the judgment. As the defect may be cured by amendment in the circuit court and by evidence on another trial (Mitchell v. Railroad, 82 Mo. 106), we shall remand the cause. The judgment will be reversed and the cause remanded. All the judges concur.