Hancock v. State Highway Commission

• Decision Date: 18 April 1941
• Docket Number: 37263
• Citation: 149 S.W.2d 823,347 Mo. 944
• Parties: James R. Hancock v. State Highway Commission of Missouri, Appellant
• Court: Missouri Supreme Court

149 S.W.2d 823

347 Mo. 944

James R. Hancock v. State Highway Commission of Missouri, Appellant

No. 37263

Supreme Court of Missouri

April 18, 1941

Appeal from Osage Circuit Court; Hon. R. A. Breuer, Judge.

Affirmed.

Louis V. Stigall and Wilkie Cunnyngham for appellant.

(1) The right to trial by jury is a sacred right under our Constitution and history. Hasty v. Pierpoint, 146 Kan. 517, 72 P.2d 69; Barger v. Beach, 127 S.W. 121; Sharp v. Mayor of New York, 18 How. Pr. 213. (a) If the bars should be let down so that trial courts would have the right indiscriminately to submit cases to referees in the place of juries this would greatly increase the delays of the law, the expense of litigation and the opportunity for corruption. Magown v. Sinclair, 5 Daly, 70; Mugler v. Castleton Hotel & Realty Co., 153 N.Y 1026; Snyder v. Crutcher, 137 Mo.App. 133. (b) Our Bill of Rights in the Missouri Constitution guarantees the right to trial by jury as heretofore enjoyed. Mo. Const. (1875), Art. II, Sec. 28; Mo. Const. (1820), Art. XIII, Sec 8; Mo. Const. (1865), Art. 1, Sec. 17; Ex parte Higgins v. Hoctor, 332 Mo. 1031, 62 S.W.2d 410; Magown v Sinclair, 5 Daly, 63; Steck v. Colo. Fuel & Iron Co., 142 N.Y. 236; Furman v. Amer. Laundry Mach. Co., 256 N.Y.S. 252; Hemmerich v. Geneva, 295 N.Y.S. 660; Thorton v. Life Assn. of America, 7 Mo.App. 546; R. S. 1939, Sec. 17 of Art. 5, p. 467; Mo. Territorial Laws, sec. 62, chap. 38, p. 123, chap. 363, p. 851; Sheppard v. Bank of Missouri, 15 Mo. 150; Elks Inv. Co. v. Jones, 187 S.W. 74. (c) The meaning of the provision "where the trial of an issue of fact shall require the examination of a long account on either side." R. S. 1929, sec. 976. The meaning of the word "account." The word "account" is used in its common or ordinary sense. Its primary idea is that of a debit and credit record of sales of goods or services, financial or commercial transactions between the parties, as kept by one or both of the parties at the time of the transaction. The account must be a record of transactions between two parties -- the debtor and the creditor. Whitewell v. Willard, 42 Mass. 216; Thornton v. Life Assn. of America, 7 Mo.App. 546; Pollard v. Carlisle, 218 S.W. 921; Furman v. Amer. Laundry Mach. Co., 256 N.Y.S. 249. Unliquidated damages or items of damage, be they either numerous or few, either for tort or for breach of contract, do not constitute an "account" within the contemplation of the statute and Constitution. Harrison v. Thompson, 61 Colo. 87, 156 P. 151; Bell v. Mayor of N. Y., 11 Hun, 511; Ross v. Combs, 37 Super. Ct. 289; Williams v. Ingle, 99 Ore. 358, 195 P. 570; Reed v. Young, 248 Mo. 616; Foster v. Mo. Pac. Ry. Co., 143 Mo.App. 551; Andrus v. Home Ins. Co. of N. Y., 73 Wis. 642, 41 N.W. 956; Harnischferger Sales Corp. v. Pickering Lbr. Co., 97 F.2d 692; Blake v. Harrington, 11 N.Y.S. 209; Roth Tool Co. v. Spring Co., 146 Mo.App. 32; Hasty v. Pierpoint, 146 Kan. 517; Elks Inv. Co. v. Jones, 187 S.W. 71; Untermyer v. Beinhauer, 105 N.Y. 524. How long is a "long account?" Prentice v. Huff, 90 N.Y.S. 780, 98 A.D. 111. Compulsory reference can be allowed only where the "long account" is directly involved, i.e., when the "long account" is the immediate object of the suit or ground of the defense. It is not allowed when the "long account" is only incidental or collateral -- not the graveman of the suit.

James E. Carroll and James Potter for respondent.

(1) The appellant was not prejudiced by reference of the case, because it was not entitled to trial by jury. The constitutional right of trial by jury (Art. II, Sec. 28) only guarantees juries "as heretofore enjoyed;" the Constitution of 1875 preserves but does not extend the common-law right to trial by jury. St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729; Kansas City v. Vineyard, 128 Mo. 75, 30 S.W. 326; St. Joseph v. Geiwitz, 148 Mo. 210, 49 S.W. 100; State ex rel. Highway Comm. v. Bates, 317 Mo. 696; Wooster v. Plymouth, 62 N.H. 193; State ex rel. Cleveland v. Board of Finance & Taxation of Jersey City, 38 N. J. L. 259; Borough of Dunmon's Appeal, 52 Pa. 374; Champaign County v. Church, 62 Ohio St. 318, 57 N.E. 50; Allbright v. Board of Commissioners of Douglas County, 108 Kan. 184, 194 P. 913; In re Condemnation of Certain Lands for State House, 16 R. I. 326, 33 A. 448. (2) The appellant cannot challenge the constitutionality of the reference statute. (a) It failed to raise that issue at its first opportunity -- at the time the order of reference was made, and failed to keep issue alive by again raising it in its amended answer. Aetna Ins. Co. v. O'Malley, 124 S.W.2d 1167; Troeger v. Roberts, 284 Mo. 363, 223 S.W. 798; Gould v. C., B. & Q. Ry. Co., 315 Mo. 713, 290 S.W. 141; Barnett v. Bellows, 315 Mo. 1100, 187 S.W. 606; Diener v. Sutermeister, 266 Mo. 505, 178 S.W. 759; McGrath v. Meyers, 341 Mo. 412, 104 S.W.2d 794; Syz v. Milk Wagon's Union Local 603, 18 S.W.2d 441. (b) Raising the issue before the referee is of no avail. State ex rel. Kimbrell v. People's Ice, Storage & Fuel Co., 246 Mo. 168, 151 S.W. 110; Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 740; Young v. Powell, 87 Mo. 128. (c) The reference statute has repeatedly been held constitutional. Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 385, 39 S.W. 791; Johnson v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1143; Wentzville Tobacco Co. v. Walker, 123 Mo. 662; Tinsley v. Kemery, 170 Mo. 310, 70 S.W. 691; Edwardson v. Garnhart, 56 Mo. 81; Shepard v. Bank of Missouri, 15 Mo. 144. (3) The action of the court in referring the case was proper under the reference statute (Sec. 976, R. S. 1929); and even if it were not, appellant failed to preserve any error in that regard. (a) The case comes within the language and the spirit of the reference statute. Bank of Oak Ridge v. Duncan, 328 Mo. 182, 40 S.W.2d 658; Kline Cloak & Suit Co. v. Morris, 293 Mo. 478; St. Louis v. Parker Washington Co., 271 Mo. 229, 196 S.W. 769; Fine Arts Picture Corp. v. Karzin, 29 S.W.2d 174; Johnson v. Star Bucket Pump Co., 274 Mo. 414, 202 S.W. 1149; Ajax Rubber Co., Inc., v. White, 216 Mo. 283, 264 S.W. 466; Vandagrift v. Masonic Home of Mo., 242 Mo. 138, 145 S.W. 448; Third Natl. Bank v. Owen, 101 Mo. 558, 14 S.W. 639; McCormick v. St. Louis, 166 Mo. 315, 65 S.W. 1045; National Fire Ins. Co. v. Nevils, 217 Mo.App. 630, 274 S.W. 503; Rawleigh Medical Co. v. Woodward, 230 S.W. 647; Ellsworth Collieries Co. v. Pennsylvania Railway, 94 Misc. 659, 159 N.Y.S. 1020; Pearson v. Oregon-Washington R. & Nav. Co., 135 Ore. 336, 295 P. 203, Id., rehearing 296 P. 51; Sullivan v. Martinelli, 261 Mass. 261, 158 N.E. 663. (b) Appellant failed to make any legal objection to the action of the court in referring the case, and cannot now claim that the court erred. Bank of Darlington v. Atwood, 36 S.W.2d 430; Nodaway County v. Kidder, 129 S.W.2d 862; Smith v. Baer, 166 Mo. 392, 66 S.W. 168; Hansen v. Duvall, 333 Mo. 59, 62 S.W.2d 740; Williams v. Williams, 259 Mo. 618; Heinbach v. Heinbach, 274 Mo. 301, 202 S.W. 1123; Nelson v. Cowles, 193 S.W. 579; Treadgall v. United Rys. of St. Louis, 279 Mo. 466, 214 S.W. 161; Cazzell v. Schofield, 319 Mo. 1169, 8 S.W.2d 580; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053; Callahan v. Shotwell, 60 Mo. 398. (4) The letter from T. H. Cutler, Chief Engineer of the Highway Department, to Mr. Stigall, Chief Counsel of the Highway Department, was properly admitted in evidence.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is an action for damages for breach of contract. On motion of plaintiff, opposed by defendant, the cause was referred. The referee recommended that plaintiff have judgment, including interest, for $ 14,820.05. Both side filed exceptions which were overruled. The referee's report was approved, judgment entered as recommended, and defendant appealed.

January 30, 1934, plaintiff entered into a contract with defendant by which plaintiff was to construct four bridges, and adjacent approaches, between Berger and Washington, in Franklin County. The contract provided that plaintiff was to do all the labor and to furnish all material called for in the plans and specifications, and it was recited that the project was financed in part by the federal government under the National Industrial Recovery Act. Also, it was provided that an employment agency in Franklin County, designated by the United States Employment Service, would prepare and furnish plaintiff lists of workmen, laborers, and that when plaintiff needed men he would inform the labor agency of the number needed, and the agency would thereupon furnish a list of qualified men, 25 per cent in excess of the number requested, and give the residence, age, and previous occupation of each man. If the labor agency failed to furnish such list, in 48 hours, then plaintiff could employ men of his own choosing. The contract provided that any man employed, and found not qualified, could be discharged by plaintiff, but replacement was to be made from the furnished lists. Both skilled and unskilled laborers were limited to 30 hours work per week, except that time out because of weather or shutdowns could be made up. The 30 hours requirement was not applicable to operators of power shovels, cranes, and concrete mixers.

It is alleged that defendant breached the contract by failure, on the part of the employment agency, to furnish lists of qualified men, and by defendants' refusal to permit plaintiff's foremen to do any manual labor. Defendant denied generally, and alleged that plaintiff waived the furnishing of names by the labor agency "because of the burden upon and difficulty to plaintiff in notifying the persons named in said lists at their homes scattered over Franklin County, Missouri, as to each time and place said men were to...