New Harmony Lodge, I. O. O. F. v. Kansas City, Ft. S. & M. R. Co.

• Decision Date: 14 April 1903
• Citation: 74 S.W. 5,100 Mo. App. 407
• Court: Missouri Court of Appeals
• Parties: NEW HARMONY LODGE, NO. 71, I. O. O. F. v. KANSAS CITY, FT. S. & M. R. CO.

74 S.W. 5

100 Mo. App. 407

NEW HARMONY LODGE, NO. 71, I. O. O. F. v. KANSAS CITY, FT. S. & M. R. CO.

Court of Appeals at St. Louis, Missouri.

April 14, 1903.

RAILROADS — FIRES — EMISSION OF SPARKS— QUESTION FOR JURY—RIGHT TO JURY TRIAL —WAIVER—PEREMPTORY INSTRUCTION—REQUEST.

1. Under Rev. St. 1899, § 691, providing that in an action to recover a money judgment an issue of fact must be tried by a jury, unless a jury is waived or the cause referred, where, in an action against a railroad company to recover damages for the destruction of plaintiff's house, the evidence was wholly circumstantial, and, though authorizing a finding that the house was fired by sparks emitted from defendant's locomotives, did not require such finding, it was error for the court to withdraw such issue

from the jury on the ground that plaintiff held only an equitable title to the property.

2. The right to a jury trial of an issue of fact depends on whether the issues as they appear from the pleadings are legal or equitable, and whether the relief demanded is legal or in the nature of a decree in chancery.

3. In an action against a railroad company for the destruction of plaintiff's building by sparks from defendant's locomotive, defendant's request for an instruction in the nature of a demurrer to the evidence did not constitute a waiver of its right to have the issue as to the cause of the fire submitted to the jury.

Appeal from Circuit Court, Greene County; J. T. Neville, Judge.

Action by New Harmony Lodge, No. 71, I. O. O. F., against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

L. F. Parker and J. T. Woodruff, for appellant. Petterson & Patterson, for respondent.

Statement.

GOODE, J.

The petition in this case is as follows:

"New Harmony Lodge, No. 71, I. O. O. F., by T. J. Gideon, Trustee, Plaintiff, v. The Kansas City, Fort Scott & Memphis Railroad Company (a corporation), Defendant.

"Plaintiff states that the defendant is and was at all times hereinafter mentioned a corporation organized under the laws of the state of Kansas, and having capacity to sue and liable to be sued as such; that the defendant, at times hereinafter stated, operated a line of railroad running from Kansas City, Mo., through Springfield, Mo., to Memphis, Tenn.

"Plaintiff states that the New Harmony Lodge, No. 71, I. O. O. F., is a voluntary unincorporated beneficial association; that it was the owner of a note for $800, dated July 19, 1898, bearing interest at the rate of eight per cent. per annum, signed by Albert T. Rowden, and secured by a deed of trust executed by Albert T. Rowden and Mary V. Rowden, his wife, to A. B. Lovan, party of the second part, for D. D. Shepard, trustee of the New Harmony Lodge, No. 71, I. O. O. F., conveying the following described property: Lot 23, Ellis' subdivision of Springfield, Mo., according to the plat thereof recorded in platbook C, at page 43, records of Greene County, Mo.

"Plaintiff further states that the aforesaid note was the property of the benefit and relief fund of the aforesaid lodge, and that he [T. J. Gideon] is the duly elected trustee in whom all the property belonging to the benefit and relief fund is vested, and whose duty it is to manage, control, and collect for the benefit of the aforesaid lodge all outstanding claims belonging to the benefit and relief fund, and that he has been trustee as aforesaid since the ____ day of January, 1900. Plaintiff further states that on the ____ day of March, 1900, Albert T. Rowden, mortgagor of the property aforesaid, orally covenanted with New Harmony Lodge, No. 71, through its trustee, the plaintiff, to surrender and convey his interest in the land aforesaid; and in consideration of the above covenant T. J. Gideon, trustee as aforesaid, by and with the consent of the lodge aforesaid, orally covenanted with the said Albert T. Rowden to entirely release him from paying the note aforesaid.

"Pursuant to the aforesaid parol contract, the said Albert T. Rowden surrendered possession of the lot aforesaid to the said T. J. Gideon, trustee for New Harmony Lodge, No. 71, I. O. O. F., and the said T. J. Gideon entered into possession of the above lot, and expended $50 improving same. That afterwards, to wit, December 7, 1900, the said Albert T. Rowden, pursuant to the above parol contract, executed a quitclaim deed to T. J. Gideon, trustee of the New Harmony Lodge, No 71, to the premises aforesaid, and the said T. J. Gideon released and satisfied the deed of trust aforesaid.

"Plaintiff further states that on the 27th day of March, 1900, and after the contract heretofore mentioned, engine No. 143 of train No. 46 of the Kansas City, Fort Scott & Memphis Railroad Company set out a fire by escaping sparks, and thereby destroyed a frame dwelling reasonably worth $620, and a summer house 8×12 feet, worth...