Klingenberg v. Davis
| Decision Date | 19 January 1925 |
| Docket Number | No. 15216.,15216. |
| Citation | 268 S.W. 99 |
| Parties | KLINGENBERG et al. v. DAVIS, Presidential Agent. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.
Action by John S. Klingenberg and another, doing business as Klingenberg & Son, against James C. Davis, as Presidential Agent operating the Missouri Pacific Railroad. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Thos. Hackney and Richard H. Beeson, both of Kansas City, for appellant.
Ben L. Clardy, R. H. Worline, and W. W. McCanles, all of Kansas City, for respondents.
Plaintiffs sued defendant on a petition in 18 counts, for loss of grain in as many shipments. The counts are similarly stated, each one setting forth a separate and distinct cause of action for damages for loss of, or failure to deliver, a certain amount of grain named in the count. The shipments were in different cars, moving on different dates, some to one destination and some to others. All of the shipments originated at Concordia, Mo., and counts 1 to 12, both inclusive, were destined to Sikeston, Mo.; counts 13 and 14 were on shipments destined to St. Louis, Mo.; all of the foregoing being intrastate shipments; counts 16, 17 and 18 were shipments in interstate commerce, the first of the said three being destined to New Orleans, La., and the other two to Chester, Ill. Count 15 was dismissed.
Each count, after stating that plaintiffs were in the general grain business and that defendant was a common carrier for hire, alleged that on a certain date plaintiffs delivered to defendant at Concordia, Mo., for transportation to the destination named, a certain number of pounds of grain which defendant accepted and placed in a certain numbered car, but, thereafter, defendant delivered to plaintiffs a certain specified less number of pounds, and failed, neglected, and refused to deliver the balance, which balance was of a specified value, whereby plaintiffs were damaged in that amount; and the petition, at its close, prayed judgment for the total of all the amounts of damage thus stated, to wit, $569.39. The answer was a general denial of the allegations in each and every count.
The case came up for trial at the November term, 1921, of the circuit court of Jackson county, Mo., when the court, of its own motion and over the objections of the defendant, ordered that the case be referred to a referee to hear the testimony and report his findings of fact and conclusions of law in 30 days. Within 3 days, and at the same term, defendant filed motion to set aside the order of reference, which was overruled, and defendant obtained and filed a term bill of exceptions preserving the exceptions made to the court's orders in the entire matter.
A hearing was had before the referee, and his report was filed November 2, at the September term, 1922. In it the referee reported his findings on each of the 18 counts, except the fifteenth, which was dismissed by the plaintiffs during the hearing, and the referee stated therein that the "defendant is indebted to plaintiffs on the facts, as set forth in all of said counts, in the total sum of $550.11." At the same term, the defendant filed objections to said report, which the court, at the November term, December 20, 1922, overruled, and, upon confirming the report, rendered judgment for plaintiffs in the sum of $550.11. The defendant thereupon appealed.
At the hearing before the referee the defendant objected to the introduction of any testimony because the court had no power to order a compulsory reference. Defendant also objected at said hearing to certain testimony deemed incompetent, and, at the close of the hearing, objected to any finding against defendant.
Section 1426, R. S. 1919, provides that where the parties do not consent, the court, upon the application of either party, or upon its own motion, may direct a reference in the following cases: (1) "Where the trial of an issue of fact shall require the examination of a long account on either side;" (2) "where the taking of an account shall be necessary for the information of the court, before judgment;" (3) "where a question of fact other than upon the pleadings shall arise upon motion or otherwise, in any stage of the action." Manifestly, the case at bar can come, if at all, only under the first of the abovenamed instances, that is to say, only on the theory that the claims embodied in the abovementioned counts constituted a "long account" within the meaning of the statute, the examination of which was required by a trial of the issues involved. It is well settled that no case can be referred without consent unless it is expressly authorized by the statute. Thornton v. Life Assn. of America, 7 Mo. App. 544. The case must fall clearly within the letter and principle of the statute, before it can be thus referred. Creve Cœur, etc., Ice Co. v. Tamm, 138 Mo. 385, 390, 39 S. W. 791, 792. And in this last-cited case it is held, quoting Ittner v. St. Louis Exposition Co., 97 Mo. 561, 567, 11 S. W. 58, that "an account is a detailed statement of the mutual demands in the nature of a debt and credit between parties, arising out of con tract or some fiduciary relation." And that "an itemized claim for damages growing out of a breach of a contract was properly referred." (Italics ours.)
It will be observed that the petition does not allege a contract, but merely states separately, in each count, the facts out of which defendant's common-law duty arose, the breach thereof, and the damages arising therefrom, and therefore each count stated a separate cause of action ex delicto. Heil v. St. Louis, etc.. R. Co., 16 Mo. App. 363, 367; Clark v. St. Louis, etc., R. Co., 64 Mo. 440, 443, 446; Merritt Creamery Co. v. Atchison, etc., R. Co., 128 Mo. App. 420, 422, 425, 107 S. W. 462; Wernick v. St. Louis, etc., R. Co., 131 Mo. App. 37, 39, 109 S. W. 1027; Meade v. Missouri, etc., It. Co., 183 Mo. App. 353, 166 S. W. 1116.
It is furthermore well settled that an action for damages in tort cannot be compulsorily referred. Foster v. Missouri, etc., R. Co., 143 Mo. App. 547, 551, 128 S. W. 36; Ittner v. St. Louis Exposition Co., 97 Mo. 561, 567, 11 S. W. 58; Martin v. Hall, 26 Mo. 386, 389; Reed v. Young, 248 Mo. 606, 614, 615, 154 S. W. 766.
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