Graves v. St. Louis, Memphis & Southeastern Railway Co.

BLAND, P. J. 1. (after stating the facts). The objection interposed to the admission of the deed in evidence was a decision of the Supreme Court in the case of the Southern Missouri & Arkansas Railroad Company against plaintiffs herein (182 Mo. 211). The purpose of that suit was to compel the plaintiffs to acknowledge the deed. The circuit court denied the relief and the Supreme Court affirmed the judgment, on the ground that the evidence tended to show the signatures of plaintiffs to the deed were obtained through false and fraudulent representations. The defendants (plaintiffs here) did not ask for affirmative relief and hence the deed was not cancelled. In its instructions on the first count of the petition ('asking damages for the value of the land)' the court ignored the deed and instructed the jury if they found the land had been taken and appropriated by defendant, and plaintiffs had not been compensated therefor, to find for them and assess their damages at the value of the land so taken and appropriated for railroad purposes. Defendant, on this and on all other counts of the petition, offered a demurrer to the evidence. Defendant contends that the deed is valid between the parties, and plaintiffs [97] are estopped to deny it was given without consideration. The deed, .though unacknowledged, is valid as between the parties (Genoway v. Maize, 163 Mo. 224) and imports a valid consideration and is not open to collateral attack. If a stipulated price had been agreed upon and defendant had failed to pay the agreed price, plaintiffs, on a proper pleading, might have recovered the agreed price, but nothing of that kind was pleaded or proved. Plaintiffs may, in an appropriate proceeding, have the deed set aside and cancelled and then recover the value of the lands appropriated for railroad purposes and the damages, if any, caused thereby, but until this is done, they cannot recover on the first count in the petition. 2. On the second count plaintiffs did not recover anything. 3. Defendant objected to the introduction of any evidence on the third count for the reason four separate and distinct causes of action (rental value of six acres of overflowed land for four separate years) are stated in one count. The contention is that this objection ivas a demurrer to the petition and should have been sustained. This would be so if the count had wholly failed to state a cause of action, but it does not reach the objection that several causes of action are blended in one count of the petition, if they are so stated as to be severable. The rent for each year is stated separately, that is, it is itemized, so that defendant could not have been prejudiced by this pleading, even if we concede (which we do not) that more than one cause of action is stated in the third count. ' 4. In respect to the first paragraph of the fourth count, on which plaintiffs recovered $150, it is contended that plaintiffs are estopped to recover, by their deed conveying the right of way to the Southern Missouri & Arkansas Railroad Company. As stated aboye, until set aside for fraud, the deed, though not acknowledged, is [98] good as between the parties thereto, and as it 'expresses a consideration, though it be inadequate, the equitable title to the right of way passed, and plaintiffs are es-topped to recover consequential damages caused by the construction of the railroad on the right of way conveyed by them. [Bobb v. Bobb, 7 Mo. App. 501; Railroad v. Green, 68 Mo. 169; Novelty Mfg. Co. v. Pratt, 21 Mo. App. 171.] The judgment on the first paragraph of the fourth count of the petition is reversed. 5. The fifth count is for damages resulting from the erection and maintenance of a nuisance. The petition shows that the Southern Missouri & Arkansas Railroad Company, not defendant, erected the nuisance. The evidence tends to show that the nuisance is caused from stagnant surface water accumulating in the barrow pits made in the construction of the roadbed by the Southern Missouri & Arkansas Railroad Company, the grantor of defendant, therefore, defendant is not liable for the erection of the nuisance, but is liable for its continuance after receiving" notice of it, if such notice was received. [Wayland v. Railway, 75 Mo. 548; Silver v. Railway, 101 Mo. 79, 13 S. W. 410.] The instruction on this count held defendant liable for both the erection and continuance of the nuisance. This, we think was error and reverse the judgment on this count and remand the cause as to said count for new trial. 6. The sixth count of the petition is as follows: “For a sixth and further cause of action against the defendant, the plaintiffs state that because of the neglect, failure and refusal of the defendant to construct and maintain suitable ditches and drains along each side of its roadbed, to connect with ditches, drains or Avatercourses, so as to afford sufficient outlet to drain or carry off the water along such railroad, whenever such water has been obstructed or such drainage has been rendered necessary by the construction of such railroad, resulting directly to the damage of these plaintiffs, as is [99] fully stated in the third and in the fifth counts of this petition, these plaintiffs are entitled to recover the penalty of five hundred, dollars, provided by the section 1110 of the Revised Statutes of Missouri of 1899, for the violation of said section, and for the failure, neglect and refusal of the defendant to perform its duty thereunder. “Wherefore the plaintiffs pray for judgment for the sum of five hundred dollars for penalty under section .1110, aforesaid, with costs.” The point is made by defendant that this count fails to state a cause of action and for that reason its demurrer to the evidence on said count should have been given. It will be observed that to make himself understood, the pleader referred to the third and fifth counts of the petition and attempted by a mere reference to these counts to bring allegations therein, essential to the statement of a cause of action, into the sixth count; in other words, the pleader attempted to state a cause of action by reference to statements in other causes of action stated in separate counts of his petition. The statute (section 598, Mo. Ann. St. 1906) provides that when different causes of action are stated in one petition, they “must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligently distinguished.” . It has been held that where allegations that are common to all the counts are clearly stated, they need not be repeated, but a reference to them in succeeding counts will suffice. This would apply to the allegation, that defendant company bought the road of the Southern Missouri & Arkansas Railroad Company and thereafter operated it; nor is it necessary to repeat mere matter of inducement but each count must contain all the allegations necessary to the statement of a cause of action. [Boeckler v. Railway, 10 Mo. App. 448.] The allegation in respect to the failure of defendant company to construct drainage ditches is not common to all the counts of the petition, nor to the [100] second or third count, hence it was essential that plaintiffs state in the sixth count of the petition, that the construction of the roadbed obstructed the natural flow of surface water; that there were ditches, drains or natural watercourses into which such obstructed surface water could have been conveyed by lateral ditches constructed along the sides of the roadbed; that defendant failed to construct such ditches, causing plaintiffs’ land to be overflowed by obstructed surface water and resulting in damages. [DeLapp v. Railroad, 69 Mo. App. l. c. 573.] We think the demurrer to the evidence on the sixth count should have been sustained. 7. Defendant contends that there should have been a separate verdict, signed by the foreman, on each count of the petition. The law requires a separate finding and assessment of damages by the jury on each count of the petition, which may be and is generally done in one verdict, over the signature of the foreman. Such a verdict is, in effect and in law, a separate verdict on each count of the petition, and the validity of the verdict so found is not affected by the fact that at the end of the verdict the gross amount of the damages is stated. The judgment is reversed and remanded with directions that the court retain the verdict on the third count of the petition and permit plaintiffs to amend the sixth count if so advised. All concur.