Wm. A. Smith Contracting Co., Inc. v. Missouri Pac. R. Co., No. KCD

CourtMissouri Court of Appeals
Writing for the CourtPER CURIAM
Citation575 S.W.2d 865
PartiesWM. A. SMITH CONTRACTING CO., INC., Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Respondent. 29554.
Docket NumberNo. KCD
Decision Date27 December 1978

Page 865

575 S.W.2d 865
WM. A. SMITH CONTRACTING CO., INC., Appellant,
v.
MISSOURI PACIFIC RAILROAD COMPANY, Respondent.
No. KCD 29554.
Missouri Court of Appeals, Kansas City District.
Dec. 27, 1978.

Robert A. Babcock, Margolin & Kirwan, Kansas City, for appellant.

B. Kent Snapp, James M. Beck, Johnson, Lucas, Bush & Snapp, Kansas City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

PER CURIAM.

Wm. A. Smith Contracting Co., Inc. (Smith), a Missouri corporation, entered

Page 866

into a written contract with Missouri Pacific Railroad Company (Railroad), also a Missouri corporation, for the rehabilitation of certain main and auxiliary tracks between Marlin and Waco, Texas. Controversies arising between the parties after Smith completed work in the project have bred a series of litigation.

The first action in this series of litigation commenced on January 21, 1972, when Smith filed a petition for damages for breach of contract against Railroad in the Circuit Court of Jackson County, Missouri. In a motion for summary judgment filed therein Railroad affirmatively alleged that paragraph 24 of the contract constituted an arbitration clause, that the contract was one "evidencing a transaction involving commerce", 1 and pursuant to the Federal Arbitration Act, Title 9, U.S.C.A., arbitration was Smith's "sole and exclusive remedy" for resolving all controversies which had arisen between the parties. Prior to any judicial disposition of said breach of contract action filed January 21, 1972, the same was voluntarily dismissed by Smith without prejudice on June 6, 1975.

The second action in this series of litigation commenced on November 21, 1975, when Smith filed a four count petition against Railroad in the Circuit Court of Jackson County, Missouri. By way of Count One Smith sought a declaratory judgment with respect to whether paragraph 24 of the contract was a binding arbitration clause, and, if it was, its "meaning and effect" upon the parties with regard to the controversies which had arisen between them. 2 Counts Two, Three and Four, each pleaded in the alternative, respectively sought a judgment for damages for breach of contract, a judgment for the reasonable value of additional work done and completed pursuant to an oral amendment to the written contract, and a judgment for the amount retained by Railroad under a "1% Retention" provision contained in the contract.

Railroad filed a motion for summary judgment on all four counts of the petition in the latest action in the series of litigation, disposition of which resulted in the following judgment being entered: "Judgment is granted in favor of the defendant (Railroad) and against the plaintiff (Smith) on all counts of plaintiff's petition. Costs against the plaintiff, for which let execution issue."

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Legal requisites of judgments in declaratory judgment actions have been a seldom discussed subject in this state. Those few cases which have done so hold that it is the express duty of a trial court in a declaratory judgment action to make a declaration of the rights of the parties and include such declaration in the judgment or decree. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285 (1940); and Smith v. Worsham, 552 S.W.2d 367, 370 (Mo.App.1977). Simply put, as applied to this case (assuming for purposes of discussion that the matter was ripe for summary judgment pursuant to Rule 74.04(c)), the trial court was...

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4 practice notes
  • Hillman v. Hedgpeth, Nos. 11156
    • United States
    • Court of Appeal of Missouri (US)
    • May 27, 1980
    ...2 The same principle applies in an action for a declaratory judgment. Wm. A. Smith Contracting Co., Inc. v. Missouri Pac. R. Co., 575 S.W.2d 865 3 The general rule was recognized but the grantee was not permitted to recover by reason of an outstanding interest created by his conduct when he......
  • Shelter Mut. Ins. Co. v. Kramer, No. 15051
    • United States
    • Court of Appeal of Missouri (US)
    • December 15, 1987
    ...of all issues between the parties." Goldberg v. Mos, 631 S.W.2d 342, 345 (Mo.1982). In Wm. A. Smith, etc. v. Missouri P.R. Co., 575 S.W.2d 865 (Mo.App.1978), the plaintiff initiated an action by filing a petition in four counts. Count I sought a declaratory judgment. The judgment with respe......
  • State ex rel. Boyer v. Stussie, No. 40113
    • United States
    • Missouri Court of Appeals
    • December 11, 1979
    ...judgment or decree. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285 (1940); Wm. A. Smith Contracting Co. v. Missouri Pac. R. R., 575 S.W.2d 865, 867(1) The court order of November 25, 1977, is not a judgment as that term is employed in Rule 75.01. It is, at most, an order merely su......
  • Fireman's Fund American Ins. Co. v. Ditz, No. 43273
    • United States
    • Missouri Court of Appeals
    • December 29, 1981
    ...sufficient must necessarily declare the rights and liabilities of the parties. Wm. A. Smith Contracting Co. v. Missouri Pacific R.R. Co., 575 S.W.2d 865, 867 (Mo.App.1978). We disagree with defendant's claim that the present judgment fails to adequately declare the rights and liabilities of......
4 cases
  • Hillman v. Hedgpeth, Nos. 11156
    • United States
    • Court of Appeal of Missouri (US)
    • May 27, 1980
    ...2 The same principle applies in an action for a declaratory judgment. Wm. A. Smith Contracting Co., Inc. v. Missouri Pac. R. Co., 575 S.W.2d 865 3 The general rule was recognized but the grantee was not permitted to recover by reason of an outstanding interest created by his conduct when he......
  • Shelter Mut. Ins. Co. v. Kramer, No. 15051
    • United States
    • Court of Appeal of Missouri (US)
    • December 15, 1987
    ...of all issues between the parties." Goldberg v. Mos, 631 S.W.2d 342, 345 (Mo.1982). In Wm. A. Smith, etc. v. Missouri P.R. Co., 575 S.W.2d 865 (Mo.App.1978), the plaintiff initiated an action by filing a petition in four counts. Count I sought a declaratory judgment. The judgment with respe......
  • State ex rel. Boyer v. Stussie, No. 40113
    • United States
    • Missouri Court of Appeals
    • December 11, 1979
    ...judgment or decree. Smith v. Pettis County, 345 Mo. 839, 136 S.W.2d 282, 285 (1940); Wm. A. Smith Contracting Co. v. Missouri Pac. R. R., 575 S.W.2d 865, 867(1) The court order of November 25, 1977, is not a judgment as that term is employed in Rule 75.01. It is, at most, an order merely su......
  • Fireman's Fund American Ins. Co. v. Ditz, No. 43273
    • United States
    • Missouri Court of Appeals
    • December 29, 1981
    ...sufficient must necessarily declare the rights and liabilities of the parties. Wm. A. Smith Contracting Co. v. Missouri Pacific R.R. Co., 575 S.W.2d 865, 867 (Mo.App.1978). We disagree with defendant's claim that the present judgment fails to adequately declare the rights and liabilities of......

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