Estes v. Francis, No. 8086

• Court: Missouri Court of Appeals
• Writing for the Court: STONE
• Citation: 364 S.W.2d 143
• Parties: E. E. ESTES, d/b/a Saveway Petroleum Company, Plaintiff-Appellant, v. E. C. FRANCIS, d/b/a Francis Service Station, Defendant-Respondent.
• Decision Date: 24 January 1963
• Docket Number: No. 8086

Page 143

364 S.W.2d 143 E. E. ESTES, d/b/a Saveway Petroleum Company, Plaintiff-Appellant,
v.
E. C. FRANCIS, d/b/a Francis Service Station, Defendant-Respondent. No. 8086. Springfield Court of Appeals, Missouri. Jan. 24, 1963.

Page 144

Powell & Jones, John Wm. Ringer, Dexter, for plaintiff-appellant.

No appearance for defendant-respondent.

STONE, Judge.

In this suit on account, plaintiff Estes seeks to recover from defendant Francis an alleged balance of $918.26 for gasoline, motor oil, antifreeze, and miscellaneous items sold and delivered to defendant at his service station in Fisk, Missouri, during the period of about thirteen months from February 1957 to March 1958. From the judgment entered upon a jury verdict for defendant, plaintiff appeals.

The initial complaint upon appeal is that the trial court erred in overruling plaintiff's pretrial motion in writing for a compulsory reference of the cause under Rule 68.02(1) [Section 515.020(1)], ¹ which provides, in part, that '(w)here the parties do not so consent, the court may, upon the application of either, or of its own motion, direct a reference * * * (w)here the trial of an issue of fact shall require the examination of a long account on either side * * *.' Since instant plaintiff's motion for compulsory reference was determinable upon the pleadings then before the court ² leavened by the assumption that the testimony on the issues made by the pleadings would take the widest permissible latitude, ³ we turn first to the pleadings.

In the first paragraph of his petition, plaintiff identified himself as 'engaged in the gas and oil business, including the distribution of such products, at Dexter, Missouri.' In the second paragraph, plaintiff referred to eighteen exhibits attached to

Page 145

and made a part of the petition (the first exhibit being a statement of defendant's account with plaintiff and the other seventeen being copies of itemized invoices), averred that the 'petroleum products' listed in the invoices had been sold and delivered to defendant at his special instance and request and at the prices shown on the invoices, and gave the total amount of the debits as $8,767.99. The third paragraph of the petition acknowledged defendant's payments on account aggregating $7,849.73 and alleged 'a balance owing of $918.26.' In the fourth paragraph, plaintiff asserted that the prices charged for the listed items were reasonable and proper, that defendant had promised and agreed to pay the same, but that he had failed and refused to pay the balance of $918.26 although demand therefor had been made. The prayer was for judgment in the principal sum of $918.26 and interest thereon. Defendant's answer was a general denial coupled with an affirmative plea that defendant had 'duly paid to plaintiff any sums of money heretofore due and owing by defendant to plaintiff.'

In his motion for compulsory reference, plaintiff reiterated that his suit was 'for various and sundry petroleum products' sold and delivered to defendant during the period from February 1957 to March 1958 as more fully appeared from the petition, stated that 'issue was joined on defendant's answer, setting up payment in full of said account,' and then asserted that 'the trial of the aforesaid issue (of payment) will require the examination of a long account on the side of both parties, consisting of at least 47 items of charges and credits of the aforesaid petroleum products of various dates.' After oral argument by counsel, the motion for reference was denied.

It is true that, as plaintiff here points out, compulsory reference of an action at law, otherwise triable by jury, does not deprive a litigant of his constitutional right to trial by jury [Art. I, Sec. 22(a), Const. of Missouri], if the reference is authorized by Rule 68.02. Durwood v. Dubinsky, Mo., 291 S.W.2d 909, 915(6), and cases there cited. And we think it likewise true that Rule 68.02 (in essentially the same language as Section 515.020, which has been brought down from Section 2138, RSMo 1889, through successive decennial statutory revisions) does not commit a request for compulsory reference to the absolute, untrammeled discretion of the trial court, but rather contemplates determination of such request in the exercise of a sound judicial discretion, subject to appellate review. Wahl v. Cunningham, 332 Mo. 21, 32, 56 S.W.2d 1052, 1056(5); Buchanan v. Rechner, 333 Mo. 634, 637, 62 S.W.2d 1071, 1072(1, 2); Couser v. Thayer, Mo.App., 204 S.W. 27(1).

However, use of the permissive 'may' in Rule 68.02 indicates that the trial court is invested with a substantial measure of discretion in ruling a request for compulsory reference. Home Exchange Bank of Jamesport v. Koch, 326 Mo. 369, 374, 32 S.W.2d 86, 88. And, in considering instant plaintiff's complaint that denial of his request for compulsory reference constituted an...