Larson v. Metropolitan Street Railway Co.

<p>Appeal from Jackson Circuit Cornt. — Hon. James Gtibson, Judge.</p> <p>(1) There was error in overruling the motion to quash the panel of jurors drawn under the act of April 1, 1891. Said act is unconstitutional in that it violates section 53, article 4, of the constitution. State v.Kring, 74 Mo. 612; State ex rel. v. Miller, 100 Mo. 439; State ex rel. Bicharás v. Hammer, 42 N. J. L. 436. (2) The negligence, if any, and the cause of the injury was the act of Seymore, for which the coal company and not this defendant is liable because, under the facts, Seymore was not the servant of defendant. Bennett v. Truebody, 66 Cal. 509; Clapp v. Kemp, 122 Mass. 481; McCullough v. Sherman, 105 Pa. St. 169; Fuller v. Banlc, 15 Fed. Bep. 875; Sweeney v. Murphy, 32 La. Ann. 628; Stevens v. Armstrong, 6 N. Y. 435; Schermerhorn v. Gas Co., 5 Daly, 144; Larow v. Clute, 14 N. Y. Supp. 616; Sawyer v. Martins, 25 111. App. 521; DeForest v. Wright, 2 Mich. 368; Kellogg v. Payne, 21 Iowa, 575; Linton v. Smith, 8 Gray, 147; Wood v. Cobb, 13 Allen, 58; King v. Bailroad, 66 N. Y. 181. (3) More than this, the coal company was an independent contractor, which excuses and relieves the defendant. Bennett v. Truebody, 66 Cal. 509; McKinley v. Bailroad, 40 Mo. App. 449; Barry v. St. Louis, 17 Mo. 121; Ciarle v. Bailroad, 36 Mo. 202; Blumb v. City of Kansas, 84 Mo. 112. (4) The true test of defendant’s liability, if any, under the facts in this case, was negligence in failing to discover that Seymore left the coal cover out of place. Lampert v. Gas Co., 14 Mo. App. 376; Kirlepatricle v. Knapp dc Go., 28 Mo. App. 428; Grogan v. Foundry Co., 87 Mo. 321; Bennett v. Truebody, 66 Cal. 509; Clapp v. Kemp, 122 Mass. 481; Daniel v. Potter, 4 Car. & P. 262; Harrison v. Collins, 86 Pa. St. 153; Doherty v. Waltham, 4 Gray, 596; Fisher v. Thirleell, 21 Mich. 1; Ciarle v. Fry, 8 Ohio, 358; Cooley on Torts [1 Ed.], 626, 627. (5) Since the time the coal cover was displaced before the accident could not have ex

Buy and Sell Contract—Mineral Rights—Warranty Deed—Negligence—Breach of Contract—Statute of Limitations—Third Party—Cause of Action—Accrual Date. The Bells hired Orr Land Company LLC (Orr) and its employee Ellerman to represent them in selling their real property. Orr found a buyer and the Bells entered into a buy and sell contract with the buyer, which provided, as pertinent here, that the sale excluded all oil, gas, and mineral rights in the property. Orr then retained Land Title Guarantee Company (Land Title) to draft closing documents, including the warranty deed. In 2005 the Bells signed the warranty deed and sold the property to the buyer. The Bells didn't know that the warranty deed prepared by Land Title didn't contain any language reserving the Bells' mineral rights as provided in the buy and sell contract. For over nine years, the Bells continued to receive the mineral owner's royalty payments due under an oil and gas lease on the property. In 2014 the lessee oil and gas company learned that the Bells didn't own the mineral rights, so it began sending the payments to the buyer. After that, the Bells discovered that the warranty deed didn't reserve their mineral rights as provided in the buy and sell contract. In 2016 the Bells filed this negligence and breach of contract action against defendants Land Title, Orr, and Ellerman. Defendants moved to dismiss, arguing that the Bells' claims were untimely because the statute of limitations had run. The district court granted defendants' motion to dismiss. On appeal, the Bells contended that the district court erred in granting defendants' motions to dismiss because they sufficiently alleged facts that, if true, establish that the statute of limitations didn't begin to accrue on their claims until the oil and gas company ceased payment in September 2014, which is when they contended they discovered that the warranty deed didn't reserve their mineral rights. A plaintiff must commence tort actions within two years