Pacific Lime & Gypsum Co. v. Missouri Bridge & Iron Co.

• Decision Date: 30 December 1920
• Citation: 226 S.W. 853,286 Mo. 112
• Parties: PACIFIC LIME & GYPSUM COMPANY et al., Appellants, v. MISSOURI BRIDGE & IRON COMPANY
• Court: Missouri Supreme Court

226 S.W. 853

286 Mo. 112

PACIFIC LIME & GYPSUM COMPANY et al., Appellants, v. MISSOURI BRIDGE & IRON COMPANY

Supreme Court of Missouri, Second Division

December 30, 1920

Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.

Reversed and remanded.

M. N Sale and David Goldsmith for appellants.

(1) The allegations of the petition, showing partiality on the part of the arbitrator, in themselves warrant the reversal of the judgment in this cause. Hyeronimus v. Allison, 52 Mo. 105, 106; Shawhan v. Baker, 167 Mo.App. 36; Bridgman v. Bridgman, 23 Mo. 272; Scholz v Mills, 176 Mo.App. 377; Allen v. Hickam, 156 Mo. 58. (2) The complete misconception by the arbitrator of the evidence concerning the investment, even if unintentional, vitiates his award. Newman v. Labeaume, 9 Mo. 36; Roberts Brothers v. Can Co., 102 Md. 362; Torrance v. Amsden, 3 McLean, 509; Donaldson v. Buhlman, 134 Wis. 117; Bartlett v. L. Bartlett & Son Co., 116 Wis. 450; American School Co. v. Sheldon, 12 R. I. 324; Arnold v. Mason, 11 R. I. 242; Tomlinson v. Tomlinson, 3 Iowa, 575; Rand v. Redington, 13 N.H. 76; Fluharty v. Beatty, 22 W.Va. 706; Buys v. Eberhardt, 3 Mich. 631; Barrows v. Sweet, 143 Mass. 316; Allen v. Smith's Admr., 4 Harrington (Del.) 236; White Railroad Co. v. Beane, 39 N.H. 107; Interstate Commerce Comm. v. Railroad, 227 U.S. 91. (3) The failure of the arbitrator to exercise the powers entrusted to him vitiates his award without proof of bad faith on his part. Newman v. Labeaume, 9 Mo. 37; Raleigh Coal Co. v. Mankin, 97 S.E. 299.

Cobbs & Logan for respondent.

(1) It is the established general policy of this State to encourage arbitrations and to uphold awards. Newman v. Labeaume, 9 Mo. 35; Bennett's Admr. v. Russell, 34 Mo. 528; Tucker v. Allen, 47 Mo. 487; State ex rel. Kennedy v. Merchant's Exchange, 2 Mo.App. 99. (2) The award of an arbitrator is a final judgment. 5 C. J. 43, 139, 162; Buchell v. Marsh, 17 How, (U.S.) 344; Searles v. Lum, 81 Mo.App. 611; Williams v. Branning Mfg. Co., 153 N.C. 7, 31 L. R. A. (N. S.) 681; Thatcher I. M. Co. v. Brubaker, 193 Mo.App. 627. (3) The amended petition is fatally defective because it omits material parts of the award. (4) The amended petition is insufficient because it shows on its face that there is an adequate remedy at law. (5) Plaintiff waived all defenses and all right to object to the award. (6) The allegations of the amended petition are neither specific enough nor sufficient to justify vacating the award. 5 C. J. 199, 203, 205; Bennett's Admr. v. Russell, 34 Mo. 527; Shawhan v. Baker, 167 Mo.App. 34; Allen v. Hickman, 156 Mo. 58; Cochran v. Bartle, 91 Mo. 647; Bridgman v. Bridgman, 23 Mo. 274; Taylor v. Scott, 26 Mo.App. 250, 252; Reeves v. McGlochlin, 65 Mo.App. 542. (7) Equity follows the law, and plaintiffs will be required to allege and prove one of the statutory grounds for vacating the award. Sec. 877, R. S. 1909. (8) There was no misconception by the arbitrator of the evidence concerning the investment. (9) A court of equity will not correct a misake which "results from the mere negligence of the losing party." Valle v. Railroad, 37 Mo. 451; Shawhan v. Baker, 167 Mo.App. 34.

OPINION

WALKER, J.

This is a suit in equity to set aside the award of an arbitrator. A demurrer to the petition was sustained in the circuit court. Plaintiffs refused to plead further, judgment was rendered on the demurrer, and an appeal was perfected to this court. The only question involved is the sufficiency of the petition. Before discussing same the propriety or, more forcefully stated, the authority for the filing of such a demurrer as is here submitted, is necessary. An abstract rather than a prolix incorporation herein of this entire pleading will suffice to afford an intelligent discussion and an authorized construction and disposition of same. After stating that it is a demurrer to the petition, craving oyer and asking a production by the plaintiff of the arbitration agreement which had been filed with the petition as an exhibit, the pleader proceeds to set forth in haec verba said agreement, the formal appointment of the arbitrator and his opinion and award. Following this voluminous presentation, the specific grounds of the demurrer are thus stated:

"First: That said first amended petition does not state facts sufficient to constitute a cause of action.

"Second: That the facts stated in said first amended petition are not sufficient to justify the relief prayed for therein.

"Third: That nothing in said first amended petition shows that there has been any fraud, mistake, or misconduct which would justify a court of equity in setting aside said award.

"Fourth: That said award as set out in said first amended petition is not the full and complete award as filed in this court, and as shown above.

"Fifth: That said award shows on its face and from the first amended petition that it is a full, mutual, final and definite award on the subject-matter submitted to said arbitrator, and that it is free from any partiality, injustice, fraud or misconduct, which would justify any court in vacating the same.

"Sixth: That the said first amended petition sets out only part of said award and omits some of the essential parts thereof, and that the parts so omitted are necessary to make said petition complete, and that the failure to incorporate the whole of said award renders said petition insufficient and subject to demurrer.

"Seventh: That, as shown by said first amended petition, the said award mentioned therein and the arbitration agreement mentioned therein were filed in this court on, to-wit, the 28th day of January, 1916, and in cause numbered 1892, and that a motion was filed in this court by the defendant to confirm said award, and that the plaintiff herein filed a motion in said cause to vacate said award prior to the filing of the original petition in this cause, and that said motion is still pending, and that said cause numbered 1892 has been referred to and assigned to the same division, and is now pending in the same room with this cause, and is undetermined; and that by filing said motion to vacate said award in said cause 1892, plaintiff elected the statutory remedy and waived its right to file this suit in equity, and cannot at the same time and in the same court and the same division of the same court prosecute two causes of action for the accomplishment of the same purpose.

"Wherefore, defendant prays the court to sustain its demurrer to said first amended petition and to hold the same wholly insufficient."

First as to the form, second as to the subject-matter of the demurrer, that the extraneous and improper averments therein, if any, may be excluded and only those directed against the face of the petition considered. The archaic ceremonial of "craving oyer" in unknown, not only to our procedure but to modern practice elsewhere. [Livingston County v. White, 30 Barb. (N.Y.) 72; Bright v. Currie, 5 Sandf. (N.Y.) 433; Welles v. Webster, 9 How. Pr. (N.Y.) 251.] Where a profert is authorized and becomes necessary to a proper statement of the issuable facts the instrument prayed for may be incorporated in the pleading, or, if not necessary but deemed essential to a clear understanding of the issues, it may by proper reference be attached to the pleading as an exhibit. [31 Cyc. 547, Subdiv. IX & notes.] If any authority existed for the incorporation of the prayer in the demurrer it was unnecessary because the agreement of arbitration, whose production was prayed, was not only filed as an exhibit to the petition, but was incorporated in the demurrer. Under any state of facts, however, the prayer for oyer was unauthorized.

Our code expressly defines the purview of a demurrer as being limited to what appears on the face of the petition in the following particulars:

"First, that the court has no jurisdiction of the person of the defendant, or the subject of the action; or, second, that the plaintiff has not legal capacity to sue; or, third, that there is another action pending between the same parties, for the same cause, in this State; or, fourth, that there is a defect of parties plaintiff or defendant; or, fifth, that several causes of action have been improperly united; or, sixth, that the petition does not state facts sufficient to constitute a cause of action; or, seventh, that a party plaintiff or defendant is not a necessary party to a complete determination of the action." [Sec. 1800, R. S. 1909.]

The purpose of this statute is to direct the trial court's attention to the precise ground of objection relied on. [Hanson v. Neal, 215 Mo. 256, 114 S.W. 1073.] To accomplish this the demurrer should contain only affirmative averments assailing the sufficiency of the petition in one or, if need be, more of the particulars prescribed. The incorporation in a demurrer, therefore, of other matter than such affirmative averments as are necessary to assail the sufficiency of the petition in the particulars stated, has neither the sanction of the code nor of precedent, and calls for no ruling of the trial court except such as may be necessary to the determination of a motion by opposing counsel to strike the same from the files.

A pleading such as was filed herein by the defendant is what is termed "a speaking demurrer," that is, a dem...