62 S.W. 984 (Mo. 1901), Ross v. Cleveland & Aurora Mineral Land Company

Citation:62 S.W. 984, 162 Mo. 317
Opinion Judge:BURGESS, J.
Party Name:ROSS et al., Appellants, v. CLEVELAND & AURORA MINERAL LAND COMPANY et al
Attorney:Cloud & Davis, Wm. B. Skinner and H. H. Bloss for appellants. T. K. Skinker, McNatt & McNatt and Henry Brumback for respondents.
Judge Panel:BURGESS, J. Sherwood, P. J., and Gantt, J., concur.
Case Date:May 07, 1901
Court:Supreme Court of Missouri
 
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Page 984

62 S.W. 984 (Mo. 1901)

162 Mo. 317

ROSS et al., Appellants,

v.

CLEVELAND & AURORA MINERAL LAND COMPANY et al

Supreme Court of Missouri, Second Division

May 7, 1901

Appeal from Lawrence Circuit Court. -- Hon. J. C. Lamson, Judge.

Affirmed.

Cloud & Davis, Wm. B. Skinner and H. H. Bloss for appellants.

(1) The order of the court in sustaining defendants' motion to strike out plaintiffs' second amended petition, does not state any reasons why it was sustained. The motion certainly should not have been sustained for the first reason assigned in said motion, for the reason that, as appears, and as alleged in the said second amended petition, the several acts committed by the defendants were done in pursuance of an arrangement between the defendants for the joint purpose of depriving plaintiffs of the right of carrying on their mining operations. These acts all tended to one end and one object, and that was the one designed by the defendants in pursuance of their joint arrangement. This was a statement of but one cause of action. Ray v. Railroad, 25 Mo.App. 107; Mayberry v. McClurg, 51 Mo. 256; Bobb v. Bobb, 8 Mo.App. 257; 89 Mo. 411; Heitkamp v. Granite Co., 59 Mo.App. 253. Distinct acts forming a series of transactions tending to one common end, as in this case, do not constitute distinct causes of action. Oglesby v. Railroad, 150 Mo. 137; Gannon v. Gas Co., 145 Mo. 502; McGlothlin v. Hemery, 44 Mo. 350. All the defendants were liable jointly and severally if, as alleged in the second amended petition in pursuance of an arrangement between them one or more of them were doing acts that tended to bring about this joint purpose. Mohr v. Langan, 77 Mo.App. 488; Walters v. Hamilton, 75 Mo.App. 257; Willi v. Lucas, 110 Mo. 219; McNichols v. Nelson, 45 Mo.App. 453. (2) The cause of action originally declared on was the violation by the defendants of plaintiffs' right to conduct, unmolested by the defendants, their mining operations. It was not sought to charge defendants with the violation of any lease covenant they made, but as joint tortfeasors, and this is the cause of action stated in the second amended petition, and does not constitute a change as contended by defendants. Clothing Co. v. Railroad, 71 Mo.App. 241. The seriousness with which defendants urged the change theory on the court will be made apparent from the second assignment by them that this is a change of a cause of action, because in the first petition the defendants are charged as ordinary tortfeasors and in the second amended petition they are charged as conspirators. Brief or comment on such a point is unnecessary. Where another item of damage is added growing out of the same negligence or tort, it is not a change of the cause of action. Hall & Robinson v. Railroad, 80 Mo.App. 466; James v. Railroad, 69 Mo.App. 431. (3) The motion in this case was directed against this petition as a whole; it is therefore like a general demurrer and should have been overruled if the petition was good as to subject-matter or as against any one of the defendants. Herf & Frerichs v. Railroad, 78 Mo.App. 305; Ridgeway v. Herbert, 150 Mo. 606; Philbert Mfg. Co. v. Dawson, 77 Mo.App. 122; Robertson v. Cleveland & Aurora Min. L. Co., 70 Mo.App. 262.

T. K. Skinker, McNatt & McNatt and Henry Brumback for respondents.

(1) In filing their third petition the plaintiffs did not comply with the order of the court requiring them to elect upon which one of the causes of action, set out in the second petition, they would go to trial. For this reason the third petition was properly stricken out. Eisenbour v. Stein, 37 Kan. 281; Mahoney v. Fitzsimmons, 2 Brightley's N. Y. Dig., 2628, par. 61. (2) The third petition did not set out the same cause or causes of action alleged in the first. This was fatal. Sanguinett v. Webster, 153 Mo. 343; Liese v. Meyer, 143 Mo. 555; Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. 621; Holt County v. Cannon, 114 Mo. 519; Heman v. Glann, 129 Mo. 325; Sims v. Fields, 24 Mo.App. 557; Sears v. Loan Company, 56 Mo.App. 122. (3) One departure consists in this: The first petition counted upon a violation of contract rights alleged to have been acquired by plaintiffs by virtue of a lease of land "having some two years yet to run," an allegation which could only be supported by production of a written document. R. S. 1889, sec. 5182; 2 Black. Com., 317; Austin v. Huntsville, 72 Mo. 541. The third counts upon a violation of a statutory mining permit, an allegation which may be supported by evidence of verbal permission or even silent acquiescence. Boone v. Stover, 66 Mo. 430; R. S. 1889, sec. 8766; Desloge v. Pearce, 38 Mo. 588; Chynonitch v. Granby Company, 74 Mo. 173; Shepard v. Drake, 61 Mo.App. 140; Foundry & Machine Co. v. Cole, 130 Mo. 1; Kirk v. Mattier, 140 Mo. 23; 15 Am. and Eng. Ency. of Law, 594. This difference involves the further difference that the first petition is founded on a common-law right, the third on a statute, which is a fatal variance. Sims v. Fields, 24 Mo.App. 557; Sears v. Loan Company, 56 Mo.App. 522. (4) Another departure is, that the third petition charges defendants as conspirators, the first as ordinary tortfeasors. Hornblower v. Crandall, 78 Mo. 581; Holborn v. Naughton, 60 Mo.App. 100; Kimball v. Harman, 34 Md. 407; Page v. Parker, 43 N.H. 363; Strout v. Packard, 76 Me. 148; Cooley on Torts (2 Ed.), 144; State v. Walker, 98 Mo. 95. (5) Another departure is, that the first petition charges defendants with having seized and taken certain mineral under legal process; while the third charges the taking but does not mention legal process. Scovill v. Glasner, 79 Mo. 449. (6) By filing their third petition plaintiffs waived any error the trial court may have committed in sustaining the motion to compel them to elect. Williams v. Railroad, 112 Mo. 463; Liese v. Meyer, 143 Mo. 547; Sauter v. Leveridge, 103 Mo. 615; Heman v. Glann, 129 Mo. 325; Sanguinett v. Webster, 153 Mo. 342; Holt County v. Cannon, 114 Mo. 514; Ely v. Porter, 58 Mo. 158; Fuggle v. Hobbs, 42 Mo. 537; Gale v. Foss, 47 Mo. 278. (7) When the...

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