McCormick v. Kate

Gill, J.

The petition in this case contains two counts, one under section 3921, Revised Statutes, 1879, demanding treble damages, the other under section 3923, Revised Statutes, 1879, page 669, demanding double damages. The time laid in the petition when the wrongful acts were done was the eighteenth and twentieth of October, 1882. The same acts — the removal of the fence — constitute the cause of action in both counts. Suit was commenced in February, 1887. The answer was a general denial — a plea of justification, that the loaos in quo was a public road, and that Charles Johnson, road overseer, required the other defendants to assist in removing obstructions, and that what was done was in the discharge of his duty as such road overseer, third, a plea of the statute of limitations of three years. To this answer a general denial was filed.

*267 On the trial defendants objected to the introduction of any testimony, upon the ground that the statute of limitations was pleaded, and that upon the face of the petition such plea was confessed; that it showed on its face that the several causes of action therein set forth were all barred, and that the petition did not state facts sufficient to constitute any cause of action. This objection was overruled and defendants excepted. The plaintiff then proceeded with his testimony tending to sustain the allegations of the petition, and to prove that whatever was done by defendants was done on the eighteenth and twentieth of October, 1882, and that since that time they have not in any way interfered with or taken down his fences, and it was admitted that this suit was not commenced until February, 1887. The defendants then asked the court to give to the jury the instructions found in the printed record in the nature of a demurrer to the evidence, on the ground that the petition and all the evidence showed that the acts complained of were done more than three years next before the commencement of this suit. These instructions the court refused to give, and defendants excepted. Defendants did not offer any evidence.

Upon instructions given by the court at the instance of the plaintiff the cause was submitted to the jury, and a verdict was rendered for plaintiff on both counts of the petition, — on the first count in the sum of one hundred and twenty-five dollars, and on the second count for three hundred dollars. But it seems the court did not enter judgment for treble the damages found on the first count, and double the damages found on the second count, as the statute authorizes in such actions, and only gave judgment for single damages on both counts. Defendants have brought the case here by writ of error.

I. It requires but few words to dispose of this case. The first count is based clearly and specifically *268 upon section 3921, Revised Statutes, 1879, and asks judgment against defendants in treble the damages committed by tearing down and destroying a quantity of plank fence and some hedge fencing belonging to the plaintiff. The second count quite as definitely charges damages under section 3922, wherein defendants, for the same act of tearing down said fences and letting cattle onto plaintiff ’ s premises to the destruction of his crop, are charged in double damages as provided in said section 3922. The two counts- are framed clearly, and avowedly on these two sections — alleging, as near as may be, the very language of the statute, and referring in express words to such sections as legal grounds for relief. The action, then, being upon a statute for a penalty where the right of action is given to the party aggrieved, was barred by the statute of limitations three years after the action accrued, R. S. 1879, sec. 3231; Holliday v. Jackson, 21 Mo. App. 660 ; Young v. Rail road, 33 Mo. App. 509 , and other cases cited in brief for appellants. The petition and evidence, all, show that the matters complained of by the pláintiff occurred more than three years before this suit was commenced, and hence the action was barred, and the court should have instructed the jury to find for defendants. This being, in form and substance, an action for a penalty on the statute, the plaintiff will not be permitted at the trial — with the view of avoiding the limitation of three years applicable to such an action — to recover as for a common-law trespass, which may not be barred. Plain-, tiff has chosen his ground of action, and invited defendants to meet him thereon, and he cannot avoid the result of his own choosing. Young v. Railroad, 33 Mo. App. 518 .

II. Defendants by their answer, containing a general denial, a justification and limitation of three years, have not deprived themselves of the right to invoke the said statute of limitations, as claimed by plaintiff’s *269 counsel. These several defenses are not so inconsistent that the proof of the one necessarily disproves the other. This, as repeatedly held in this state, is the test of inconsistent defences. Nelson v. Brodhack, 44 Mo. 596; Cohn v. Lehman, 93 Mo. 583 and cases cited. It results from the foregoing considerations that the judgment of the circuit court should be reversed, and it is so ordered.

All concur.