Colbert v. Missouri Pacific Railway Co.

78 Mo. App. 176, 1899 Mo. App. LEXIS 28

• Court: Missouri Court of Appeals
• Decided: January 16, 1899
• Status: Published

Opinion

SMITH, P. J.

Statement. This was an action commenced before a justice of the peace. In the statement the defendant is entitled: “The Jefferson City & Lebanon Southwestern Branch of the Missouri Pacific Railway Co.” The summons was issued against the “Missouri Pacific Railway Company,” and the service thereof was on the station agent of the latter company. There was judgment by default against the defendant by the name in which it was sued. The defendant, the Missouri Pacific Railway Company, took an appeal to the circuit court where it filed a plea in abatement, pending which the plaintiff filed an amended statement wherein the defendant was properly named; which said amendment the defendant moved to strike out but which was overruled.

The cause of action set forth in the statement was: “That on or about the eighteenth day of October, 1896, the defendant, by its employees, agents and servants, while running and operating a locomotive and train of cars over said railroad in said township of Saline, frightened one gray horse, the property of the plaintiff, and caused it to run into the barb wire fence of the defendant on the west side of the railroad track, and that said horse was cut and damaged thereby in the sum of thirty dollars, and that said horse came upon the track and right of way of the defendant where it passes through inclosed fields, then in possession of the plaintiff, and where there was no crossing of said railway by a public highway, and that said horse was frightened, torn and damaged while on defendant’s track and right of way, where it had strayed or passed, for want of a proper and lawful fence being erected, kept and maintained by defendant, as it was required to do,” etc.

There was a trial to a jury which resulted in a verdict for the plaintiff for $25. Afterwards and on motion of plaintiff the court gave judgment for double the amount of damages assessed by the jury.

Pleading: amendment of corporate name: effect. The defendant objects that the trial court erred in permitting the plaintiff to amend his statement so as to designate it by its corporate name. This was authorized by the statute, section 6347, Eevised Statutes, was a mistake in the name of the defendant and this was properly corrected by the amendment. Allowing the amendment to be so made did not have the effect either to substitute a new defendant or to change the cause of action. School Dist. v. Wallace, 75 Mo. App. 317, and cases there cited.

Railroads: in jury to stock without collision: double damages. By reference to the plaintiff’s statement, partly set out hereinbefore, it will be seen that the action is based on section 2612, Revised Statutes. There is no ac-7 Wal collision alleged therein which is essential to bring a case within the terms of section 2611, Geiser v. Railway, 61 Mo. App. 459; Harbeston v. Railway, 65 Mo. App. 161; Foster v. Railway, 90 Mo. 116. In actions under the former section — 2612—single damages only are allowed. The judgment of the lower court doubling the damages assessed by the jury was therefore clearly erroneous.

The statement is, we think, sufficient under section 2611, Eevised Statutes.

It results that the judgment must be reversed and cause remanded to the circuit court, with directions to enter judgment for plaintiff for single damages in accordance with the verdict of the jury.

All concur.