Hoover v. Missouri Pac. Ry. Co.

• Decision Date: 25 May 1891
• Citation: 16 S.W. 480
• Court: Missouri Supreme Court
• Parties: HOOVER et al. v. MISSOURI PAC. RY. CO.<SMALL><SUP>1</SUP></SMALL>

16 S.W. 480

HOOVER et al. v. MISSOURI PAC. RY. CO.¹

Supreme Court of Missouri, Division No. 1.

May 25, 1891.

ACTION BY PARTNERSHIP — RELEASE BY ONE PARTNER — FIRES SET BY LOCOMOTIVES.

1. Where suit is brought by partners for an injury to firm property, and one of them releases his interest in the cause of action to defendant, and asks that the action be dismissed, it is not error to allow the other partner to continue the action, and to recover the value of his half interest in the property destroyed, under Rev. St. Mo. 1889, § 2207, providing that judgment may be given for or against one or more of several plaintiffs.

2. The release having been pleaded in bar of the action, there is no departure in a reply which alleges that the assets of the firm are insufficient to pay its debts, that the releasing partner is a non-resident and insolvent, and that the release is a fraud on the rights of plaintiff, and was obtained by collusion.

3. A few moments after a freight train had passed, a mill 52 feet from the track was found to be afire on the outside of the roof nearest the railroad. The engine threw sparks as large as a half dollar 30 feet high. The smoke-stack was of a pattern that did not admit of the use of a spark-arrester, and it was shown that when in good order it would not throw out large sparks. Held, that it sufficiently appeared that the smoke-stack was out of order.

4. The evidence of prior fires was relevant in proof of such negligence on the part of the company. Overruling Coale v. Railroad Co., 60 Mo. 227; Lester v. Railroad Co., Id. 265.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action brought by partners as such for damages caused by the burning and destruction of the flouring-mill of plaintiffs, who were partners in ownership. The petition alleged, in substance, their ownership of the property so destroyed, its value, and its destruction by fire on said 30th day of June; and also alleged that between the hours of 8 and 9 o'clock in the forenoon of said day one of defendant's freight trains was being moved westwardly by one of its locomotives, on the line of its said road, in charge of its servants; that said locomotive then was badly out of repair, so much so as to permit or cause the escape of large sparks and live coals of fire, in great quantities, from its smoke-stack; and that defendant knew, or by the exercise of reasonable care and diligence could have known, of its unsafe condition. They further aver that defendant's servants in charge of said locomotive were guilty of carelessness and negligence at the time of the happening of the injuries complained of in that they used a great and wholly unnecessary amount of steam in propelling said locomotive in its defective condition; that it was then and there so carelessly, negligently, and unskillfully run, managed, and operated by defendant's said servants as to cause and to permit the escape of large sparks and coals of fire from the smoke-stack of said locomotive upon plaintiffs' said mill, and set the same on fire, and totally destroyed it, wherefore they ask judgment, etc. On the 11th day of April, 1884, defendant filed answer to this petition, which was a general denial; and on the ____, 1884, there was a trial of the issue thus presented, and the jury, failing to agree on a verdict, was discharged. Afterwards, to-wit, on the 12th day of October, 1885, defendant filed an amended answer containing a general denial, and also alleging that since the suit was commenced, to-wit, on the 1st of September, 1885, Peter Shultz, one of the plaintiffs, for a valuable consideration, had released to defendant his interest — one undivided half — in and to the subject-matter of this suit; wherefore defendant prays that it be dismissed, etc. To this answer plaintiffs filed in reply a general denial. Also alleged that the firm of Hoover & Co. was composed of plaintiffs John W. Hoover and said Peter Shultz; that said firm, at the time of the burning of said mill, was indebted in the aggregate to the extent of more than $5,000; that the said firm is and was at the time of said burning not only largely indebted, but that all of its effects, including the amount sued for in this action, would be exhausted in paying its debts and in adjusting the equities of plaintiff Hoover as between himself and said Shultz, as partners; and that, after paying said partnership indebtedness and adjusting said equities, said Shultz would have no interest remaining that could or would pass to defendant under said release executed by Shultz. Said reply further alleges the insolvency and non-residence of Shultz, and that the pretended release was and is a fraud on the rights of plaintiff Hoover, and was obtained by collusion between the defendant and said Shultz. On the 14th day of October, 1885, the defendant moved to strike out all of plaintiff's said reply except that part which presents a general denial, for the alleged reason that it is frivolous, scandalous, and interposed in bad faith by plaintiff Hoover. This motion the court overruled, and defendant excepted. On the 16th day of February, 1886, defendant filed its motion, or, more properly, its protest, against the court's taking any cognizance of the matters set up in the reply, for the reasons: First. That the court, under the pleadings, had no jurisdiction to hear and determine the matter presented. Second. That the persons, etc., mentioned as having an interest in the subject of this action, are not parties thereto. Third. That the court, under the pleadings in this case, cannot settle the rights of defendant, and adjust the equities, if any there be, in the premises between said persons and corporation and said Shultz and Hoover. Fourth. Because Shultz, one of the plaintiffs, has withdrawn from the case, and filed a dismissal thereof. This motion the court overruled, and defendant excepted. Afterwards, on the 14th day of April, 1886, the court made an entry of record in the cause, reciting, among other things, the fact that Shultz, one of the plaintiffs, had assigned his interest in the suit to defendant, and refused further to prosecute the same; and that Hoover appeared and asked permission to prosecute, etc.; and ordering that plaintiff Hoover be permitted to prosecute the same in the name of the said firm, to his use, for the one-half interest in the cause of action set out and claimed in the petition. To this order defendant excepted. The cause was thereupon tried before a jury, and, under the evidence and instructions of the court, plaintiff recovered a judgment for $6,000, one-half the value of the property destroyed, as ascertained by the jury. The defendant appealed the case, and asks for a reversal of the judgment on account of alleged errors.

The evidence adduced at the trial fully sustained the allegations of the petition, and the verdict of the jury. The instructions given at the instance of the plaintiff were the following: "(2) If you believe from the evidence that fire escaped from the defendant's engine, and was communicated to the plaintiffs' mill, this fact is prima facie evidence of negligence on the part of defendant, and places upon the defendant the burden of showing to the satisfaction of the jury that its engines and appliances were of an approved pattern or make, and were in proper order, and were operated by careful and skillful servants, who were exercising due and proper care at the time. (3) The jury are instructed that if they believe from the evidence that on the 30th day of June, 1883, the plaintiff Hoover was the owner of the undivided one-half interest in the mill mentioned in the petition, and that on or about that day the said mill was destroyed by fire carelessly and negligently caused or permitted to escape from the defendant's said engine, then the jury should find their verdict for the plaintiff Hoover, and assess his damages at the one-half the value of the property at the time it was destroyed by said fire. (4) If you find for the plaintiff John W. Hoover, you will assess his damages at one-half of the value of...