Drake v. St. Louis & San Francisco Railway Co.

Gill, J.

We are asked by plaintiff to reverse this cause on an alleged error by the. trial court in sustaining a demurrer to plaintiff’s third amended petition. The ground of demurrer to the fourth petition ( “ third amended petition” ) was a departure; that said third amended petition set forth an entirely different cause of action from that contained in the original. Briefly stated the four petitions filed in this cause were in substance as follows:

The first complained of the Springfield & Northern Railway Company for a trespass in that said corporation, while constructing its road from Springfield to Bolivar, Missouri, entered upon the farm of the plaintiff and wilfully and carelessly threw down the fences and turned in stock, etc., upon the crops of plaintiff to. his damage, etc.

The second (first amended) petition included the St. Louis & San Francisco Railway Company along with the Springfield and Northern Railway Company as a defendant, and charged the same matters of trespass as in the first and alleged further a consolidation of the two corporations, whereby they became merged, etc., and asked judgment against both for . the damages consequent on such trespass.

It is unnecessary to recite the second amended petition, since its contents add no light to an understanding of the controversy.

However, upon a demurrer being sustained to said second amended petition, the plaintiff thereupon filed his third amended petition, first having dismissed the case as to the original defendant, Springfield and Northern Railway Company.

The fourth (third amended petition ) alleged that the Springfield & Northern Railway Company committed a trespass upon the property of the plaintiff, in the manner heretofore stated, and that, by reason of such trespass, there arose on the part of the Springfield & Northern Railway Company an obligation to pay plaintiff, and that then the latter company sold its line of railway to the St. Louis & San Francisco Railway Company, and that the last-named company, by the terms of sale and deed to it assumed and agreed to pay all the obligations, liabilities and debts of the Springfield & Northern Railway Company, including the damages sought to be recovered in this suit.

Whether we regard this last amended petition as an amendment to the first or second petition, it would seem the plaintiff had clearly abandoned his original, and was seeking the enforcement of a new and distinct cause of action.

The gist of plaintiff’s complaint in either of said two first petitions is the same. In the first it is alleged a trespass was committed by the Springfield & Northern Railway Company, in that it threw down plaintiff’s fences, etc., and let in stock to damage his crops, etc. And in the second petition the same charge is made against defendant St. Louis & San Francisco Railway Company, since it is alleged to be one and the same as the Springfield & Northern Railway Company, by merger or consolidation with said company.

In the third amended petition, the action is one on contract whereby it is sought to charge the defendant St. Louis & San Francisco Railway Company by reason of its agreement and undertaking with the Springfield & Northern Railway Company to pay the liabilities of said last-named company. Of course there is no doubt that a third party may sue on a contract between two others for his benefit — but it is nevertheless an action on the contract and is a very different action from a suit in trespass, such as set out in the original or first amended petition in this cause. Under the uniform ruling in this state the court was correct in sustaining defendant’s demurrer to the third amended petition, since it alleged an entirely new cause of action from that contained in the original, or first amended petition. A clear case of departure. Fields v. Maloney, 78 Mo. 172; Parker v. Rhodes, 79 Mo. 92; Bliss Code Pl., sec. 429.

The judgment of the circuit court is affirmed.

The other judges concur.