Allen v. Wabash, St. Louis & Pacific Railway Co. , 84 Mo. 655 ( 1884 )

LeAbmond, C. —

Action for the value of the rock alleged to have been taken from plaintiff ’ s land by the St. Louis, Kansas City & Northern Railway Company and the defendant respectively. The first count is for the rock taken by said St. Louis, Kansas City & Northern Railway Company, and judgment for seven hundred dollars is asked. It is alleged that defendant was formed by the consolidation, in 1879, of the said St, Louis, Kansas City & Northern Railway Company with the Toledo, Wabash & Western Railway Company, and by such consolidation assumed and became responsible for the liabilities and indebtedness of said St. Louis, Kansas City & Northern Railway Company, and for said $700 worth of rock taken by it. The other count was for rock taken by defendant, for which eight hundred dollars was asked. The land from which the ■ rock was alleged to have been taken is the one hundred and twelve-acre tract mentioned in the opinion in the other case, of same title {ante, p. 646), just decided. Part of the rock came from the ten rod-wide strip, and part from other portions of the tract. The answer was as in the other case. There was a general verdict for Griros for one hundred and eighty-eight dollars, on which he had judgment.

There appears to have been no proof of the alleged, consolidation or assumption of liabilities. These averments were material, and necessary to be proved to support a recovery on the first count. The evidence in the case, however, relates solely to the second count. Griros, himself, testifying as a witness, said the rock he was suing for were taken about two or two and a half years ago. It was in August, 1881, that he testified on the-trial of the cause. The testimony of Collins, a witness for defendant, tended to show that the defendant got the rock Griros claimed pay for. So it seems that there was no evidence whatever touching the first count, and we must, therefore, regard it as informally abandoned. The verdict should have specified the count upon which it was based. St. Louis v. Allen, 53 Mo. 44; Brownell v. Pacific R. R. Co., 47 Mo. 239. But, as the evidence all related to the second count, we must uphold the verdict as founded upon that count. All the other questions in the case are disposed of in the other case above referred to, and what is there said we need not repeat here.

The judgment should be affirmed.

All concur.