New Harmony Lodge No. 71 v. Kansas City, Fort Scott & Memphis Railroad

GOODE, J. That sparks from one of the company’s locomotives ignited the house, is a reasonable but not an irresistible inference from the evidence, and whether the fire- was thus caused or not was an issue of .fact to be settled by a finding. Whose function was it to make the finding, the court’s or the jury’s? [413] The action is one to recover a money judgment! Our statutes provide that an issue of fact in an action for the recovery of money only must be tried by a jury unless a jury is waived or the cause referred. R. S. 1899, sec. 691. The main issues were probably withdrawn from the’ jury because the respondent’s title was equitable. But under our code practice the criterion by which the right to a jury trial is determined is the character of the action — that is, the relief sought; not the distinction between legal and equitable properties. Smith v. Canning Co., 14 Mo. App. 522. This does not mean that the right depends on the prayer for relief, but that it depends on whether the contents of the pleadings call for a legal judgment or for one in the nature of a decree in chancery; whether the issues to be tried are legal or equitable. No relief of the sort peculiar to equity practice is demanded by the petition or authorized by the proof in this case; hence, by the very words of the statutes the parties were entitled to have the jury pass on all the contested issues. Respondent argues that the appellant lost the right to have the jury weigh the evidence in reference to the cause of the fire by asking an instruction in the nature of a demurrer to the evidence — that the refusal of that instruction was a ruling by the court that a. prima facie case had been made and left nothing for the jury to find except the amount of damage done. There is no such rule in this State. The refusal of the peremptory instruction for a verdict in favor of the railroad company was, in effect, a decision that there was evidence enough to warrant a verdict against it; not that a verdict for it was impossible. Gannon v. Gas Light Co., 145 Mo. 502. Without passing on any point except the one presented, we take the liberty of referring to the opinion in Hoffman v. Columbia, 76 Mo. App. 553, and the cases [414] cited therein, as throwing light on Gideon’s right as the trustee of the lodge, and the party in actual possession of the premises under a contract for the title when the fire occurred, to maintain this action. . The judgment is reversed and the cause remanded. Bland, P. J., and Reyburn, J., concur.