Ross v. Cleveland & Aurora Mineral Land Company

• Decision Date: 07 May 1901
• Citation: 62 S.W. 984,162 Mo. 317
• Parties: ROSS et al., Appellants, v. CLEVELAND & AURORA MINERAL LAND COMPANY et al
• Court: Missouri Supreme Court

62 S.W. 984

162 Mo. 317

ROSS et al., Appellants, v. CLEVELAND & AURORA MINERAL LAND COMPANY et al

Supreme Court of Missouri, Second Division

May 7, 1901

Appeal from Lawrence Circuit Court. -- Hon. J. C. Lamson, Judge.

Affirmed.

Cloud & Davis, Wm. B. Skinner and H. H. Bloss for appellants.

(1) The order of the court in sustaining defendants' motion to strike out plaintiffs' second amended petition, does not state any reasons why it was sustained. The motion certainly should not have been sustained for the first reason assigned in said motion, for the reason that, as appears, and as alleged in the said second amended petition, the several acts committed by the defendants were done in pursuance of an arrangement between the defendants for the joint purpose of depriving plaintiffs of the right of carrying on their mining operations. These acts all tended to one end and one object and that was the one designed by the defendants in pursuance of their joint arrangement. This was a statement of but one cause of action. Ray v. Railroad, 25 Mo.App. 107; Mayberry v. McClurg, 51 Mo. 256; Bobb v Bobb, 8 Mo.App. 257; 89 Mo. 411; Heitkamp v. Granite Co., 59 Mo.App. 253. Distinct acts forming a series of transactions tending to one common end, as in this case, do not constitute distinct causes of action. Oglesby v Railroad, 150 Mo. 137; Gannon v. Gas Co., 145 Mo. 502; McGlothlin v. Hemery, 44 Mo. 350. All the defendants were liable jointly and severally if, as alleged in the second amended petition in pursuance of an arrangement between them one or more of them were doing acts that tended to bring about this joint purpose. Mohr v. Langan, 77 Mo.App. 488; Walters v. Hamilton, 75 Mo.App. 257; Willi v. Lucas, 110 Mo. 219; McNichols v. Nelson, 45 Mo.App. 453. (2) The cause of action originally declared on was the violation by the defendants of plaintiffs' right to conduct, unmolested by the defendants, their mining operations. It was not sought to charge defendants with the violation of any lease covenant they made, but as joint tortfeasors, and this is the cause of action stated in the second amended petition, and does not constitute a change as contended by defendants. Clothing Co. v. Railroad, 71 Mo.App. 241. The seriousness with which defendants urged the change theory on the court will be made apparent from the second assignment by them that this is a change of a cause of action, because in the first petition the defendants are charged as ordinary tortfeasors and in the second amended petition they are charged as conspirators. Brief or comment on such a point is unnecessary. Where another item of damage is added growing out of the same negligence or tort, it is not a change of the cause of action. Hall & Robinson v. Railroad, 80 Mo.App. 466; James v. Railroad, 69 Mo.App. 431. (3) The motion in this case was directed against this petition as a whole; it is therefore like a general demurrer and should have been overruled if the petition was good as to subject-matter or as against any one of the defendants. Herf & Frerichs v. Railroad, 78 Mo.App. 305; Ridgeway v. Herbert, 150 Mo. 606; Philbert Mfg. Co. v. Dawson, 77 Mo.App. 122; Robertson v. Cleveland & Aurora Min. L. Co., 70 Mo.App. 262.

T. K. Skinker, McNatt & McNatt and Henry Brumback for respondents.

(1) In filing their third petition the plaintiffs did not comply with the order of the court requiring them to elect upon which one of the causes of action, set out in the second petition, they would go to trial. For this reason the third petition was properly stricken out. Eisenbour v. Stein, 37 Kan. 281; Mahoney v. Fitzsimmons, 2 Brightley's N. Y. Dig., 2628, par. 61. (2) The third petition did not set out the same cause or causes of action alleged in the first. This was fatal. Sanguinett v. Webster, 153 Mo. 343; Liese v. Meyer, 143 Mo. 555; Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. 621; Holt County v. Cannon, 114 Mo. 519; Heman v. Glann, 129 Mo. 325; Sims v. Fields, 24 Mo.App. 557; Sears v. Loan Company, 56 Mo.App. 122. (3) One departure consists in this: The first petition counted upon a violation of contract rights alleged to have been acquired by plaintiffs by virtue of a lease of land "having some two years yet to run," an allegation which could only be supported by production of a written document. R. S. 1889, sec. 5182; 2 Black. Com., 317; Austin v. Huntsville, 72 Mo. 541. The third counts upon a violation of a statutory mining permit, an allegation which may be supported by evidence of verbal permission or even silent acquiescence. Boone v. Stover, 66 Mo. 430; R. S. 1889, sec. 8766; Desloge v. Pearce, 38 Mo. 588; Chynonitch v. Granby Company, 74 Mo. 173; Shepard v. Drake, 61 Mo.App. 140; Foundry & Machine Co. v. Cole, 130 Mo. 1; Kirk v. Mattier, 140 Mo. 23; 15 Am. and Eng. Ency. of Law, 594. This difference involves the further difference that the first petition is founded on a common-law right, the third on a statute, which is a fatal variance. Sims v. Fields, 24 Mo.App. 557; Sears v. Loan Company, 56 Mo.App. 522. (4) Another departure is, that the third petition charges defendants as conspirators, the first as ordinary tortfeasors. Hornblower v. Crandall, 78 Mo. 581; Holborn v. Naughton, 60 Mo.App. 100; Kimball v. Harman, 34 Md. 407; Page v. Parker, 43 N.H. 363; Strout v. Packard, 76 Me. 148; Cooley on Torts (2 Ed.), 144; State v. Walker, 98 Mo. 95. (5) Another departure is, that the first petition charges defendants with having seized and taken certain mineral under legal process; while the third charges the taking but does not mention legal process. Scovill v. Glasner, 79 Mo. 449. (6) By filing their third petition plaintiffs waived any error the trial court may have committed in sustaining the motion to compel them to elect. Williams v. Railroad, 112 Mo. 463; Liese v. Meyer, 143 Mo. 547; Sauter v. Leveridge, 103 Mo. 615; Heman v. Glann, 129 Mo. 325; Sanguinett v. Webster, 153 Mo. 342; Holt County v. Cannon, 114 Mo. 514; Ely v. Porter, 58 Mo. 158; Fuggle v. Hobbs, 42 Mo. 537; Gale v. Foss, 47 Mo. 278. (7) When the plaintiffs, after their third petition had been stricken out, announced that they would stand upon it and declined to plead further, the court had no alternative but to enter judgment against them. This would have been the course after a demurrer sustained, and the motion to strike out is to be treated as a demurrer. Cashman v. Anderson, 26 Mo. 67; Paddock v. Somes, 102 Mo. 226; Paxon v. Talmage, 87 Mo. 13; Howell v. Stewart, 54 Mo. 407; Sapington v. Jeffries, 15 Mo. 628.

BURGESS, J. Sherwood, P. J., and Gantt, J., concur.

OPINION

BURGESS, J.

In 1893, plaintiffs began suit against the defendants in the circuit court of Lawrence county, alleging in their petition, that in January, February and March of that year, and long prior thereto, they were in the possession of certain real estate in the petition described.

The petition then proceeds as follows:

"That plaintiffs, during the months aforesaid and long prior thereto, had been engaged in mining on said tract of land and taking out lead and zinc ores therefrom, and had therein and thereon mining shafts, drifts, machinery, buildings and other appliances for the carrying on of said mining business. That plaintiffs had a mining lease on said land for a period having some two years yet to run, at a royalty of fifteen per cent, and the mining operations conducted by plaintiffs thereon prior to said months had been of great profit to the plaintiffs, to-wit, of the net profit of four hundred dollars per week. That plaintiffs, in their shafts and drifts on said land, had developed a large body of valuable mineral, and were constantly taking the same out in large quantities, and plaintiffs' mining lease on said land, on account of the large amounts which plaintiffs had invested therein, and the extensive body of mineral which they had developed, was of great value, to-wit, of the value of twenty-five thousand dollars.

"Plaintiffs further state that in the conduct of their mining business they employed a large number of men; that at the end of each week they sold to mineral buyers the ore which they had mined during the said week, and that the funds so realized paid off the men and defrayed the other expenses of operating the mine and thus kept their business moving. That on or about the first day of January, last, the defendants, with a view of compelling plaintiffs to abandon said premises and mining operations thereon and surrendering their mining rights and lease, so that the defendant, the Cleveland & Aurora Mineral Land Company, whose agents and officers the other defendants are, might get possession of said premises and the mines thereon, and the large body of mineral which plaintiffs had developed thereon and were entitled to take out for the unexpired term aforesaid, and to deprive plaintiffs of their mining rights on said land entered upon said premises and began to dig and mine thereon and undertook to lease said premises to other parties and to deprive plaintiffs of their possession thereof, and did lease said premises, or portions thereof, to other parties, in contravention of plaintiffs' rights, and did dig and mine thereon and cause digging and mining to be done thereon, and did maliciously interfere with and prevent plaintiffs from carrying on their mining operations on said land, and did state and declare to divers persons that they intended to vex and harass plaintiffs in their operations on said land and in their possession thereof until they compelled plaintiffs to surrender their rights thereon to the Cleveland & Aurora Mineral Land Company. That with this end in view the said Cleveland & Aurora Mineral Land Company, and the other defendants as its agents and officers,...