State ex rel. Central Coal & Coke Company v. Ellison

• Decision Date: 22 May 1917
• Parties: THE STATE ex rel. CENTRAL COAL & COKE COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and JOSEPH HOLVEY, Sheriff
• Court: Missouri Supreme Court

195 S.W. 722

270 Mo. 645

THE STATE ex rel. CENTRAL COAL & COKE COMPANY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and JOSEPH HOLVEY, Sheriff

Supreme Court of Missouri

May 22, 1917

Record quashed.

B. R Dysart and W. C. Goodson for relator.

(1) It is now well settled that the Supreme Court has the power as well as the duty to quash the decision of one of the appellate courts of the State, where its rulings are not in accord with, but against the rulings of the Supreme Court. State ex rel. v. Ellison, 266 Mo. 604; State ex rel. v. Reynolds, 265 Mo. 88. (2) If the Court of Appeals approves the admission or exclusion of evidence contrary to prior rulings of the Supreme Court; and if the Court of Appeals approves an instruction, which instruction was not in accord with the last or prior instruction of the Supreme Court, then the Supreme Court on certiorari will quash the record of the Court of Appeals. State ex rel v. Ellison, 256 Mo. 644. (3) It is submitted by the relator that the Kansas City Court of Appeals failed to follow the last ruling decision of the Supreme Court in the following particulars: (a) The Court of Appeals approved an instruction authorizing a recovery if plaintiff's husband was killed anywhere in the relator's coal mine, provided he was so killed away from his working place; and this in the face of the fact that her petition alleged that he was killed fifteen or twenty-five feet north of his working place, and that he was killed by reason of the fact that the relator had negligently failed and neglected to care for and keep in repair the roof of the entry at a point fifteen or twenty-five feet north of his working place. This instruction was evidently a broadening of the issues, and if so, it contravenes prior rulings of the Supreme Court. Degonia v. Railroad, 224 Mo. 589; Mansur v. Bott, 80 Mo. 658; Bank v. Murdock, 62 Mo. 70; State ex rel. v. Ellison, 176 S.W. 11; State ex rel. v Ellison, 181 S.W. 998; State ex rel. v. Ellison, 187 S.W. 23. (b) There was palpable and radical error in Instruction 2 given by the trial court on the measure of damages, which was contrary to the former rulings of the Supreme Court. Said instruction authorized the jury to take into consideration the character of the defendant's negligence. The verdict and judgment of the court was for $ 6000. Said instruction sounded in punitive damages. It was equivalent to saying: "You should take into consideration the aggravating circumstances of the defendant's negligence." Boyd v. Railroad, 236 Mo. 54; Goode v. Coal Co., 167 Mo.App. 176. (c) Instruction 7 was evidently correct, and in palpable conflict with the plaintiff's instruction 1, and therefore in conflict with the last and prior rulings of the Supreme Court. Sheperd v. Transit Co., 189 Mo. 373; Porter v. Railroad, 199 Mo. 96; Imp. Co. v. Ritchie, 143 Mo. 612.

Dan R. Hughes and Burns, Burns & Burns for respondents.

(1) Plaintiff's instructions declare the law. Boyd v. Railroad, 236 Mo. 94; Boyd v. Railroad, 249 Mo. 136; Goode v. Coal & Coke Co., 179 Mo.App. 207; Goode v. Coal & Coke Co., 167 Mo.App. 169. (2) The opinion of the Kansas City Court of Appeals is not in conflict with decisions of the Supreme Court. Holman v. Macon, 177 S.W. 1078; Mansur v. Botts, 80 Mo. 658; State ex rel. v. Reynolds, 265 Mo. 88; Dagonia v. Railroad, 224 Mo. 564; National Newspaper Assn. v. Ellison, 176 S.W. 11; State ex rel. v. Robertson, 262 Mo. 535. (3) Plaintiff's instruction on the measure of damages correctly declares the law. Boyd v. Railroad, 236 Mo. 5494; Boyd v. Railroad, 249 Mo. 110-136; Secs. 5426, 5427, R. S. 1909. (4) Where the judgment is for the right party it will not be reversed, although error was committed. Sec. 2082, R. S. 1909; Putnam v. Bowyer, 173 Mo.App. 394; Redd v. Railroad, 161 Mo.App. 522.

GRAVES, C. J. Bond, J., dissents, and Williams, J., did not sit.

OPINION

In Banc.

Certiorari.

GRAVES C. J.

Certiorari to the Kansas City Court of Appeals, directing that said court certify up its record in the case of Catherine Goode, Respondent, v. Central Coal & Coke Company, Appellant. The case has experienced a rather checkered career. The judgment now certified to us by the Court of Appeals is the third judgment entered therein by that court. When the case was first there (167 Mo.App. 169) a judgment for plaintiff was reversed for errors in instructions. So, too, when there the second time (179 Mo.App. 207) it was likewise reversed for errors in instructions. By the present (third) judgment the plaintiff is sustained in a recovery of $ 6000 for the alleged negligent killing of her husband whilst working as a coal miner for defendant in one of its mines in Macon County. The record is somewhat broadened because the opinion before us refers specifically to the two previous opinions for the facts. We have, therefore (by this reference in the last opinion) not only the three opinions of the Court of Appeals, but likewise such records and evidence as are incorporated therein, either by reference or by direct quotation. Under these circumstances it would be indeed singular if the complete record in the Court of Appeals was not before us through their several opinions. From them all we gather the facts thus: Plaintiff's husband was killed in one of defendant's coal mines in Macon County, Missouri. She, conceiving that the negligence of the defendant occasioned his death, brought suit for $ 10,000 damages. The petition charges (1) that it was the duty of defendant to exercise reasonable care to keep its shafts, entries and drifts in a reasonably safe condition; (2) the petition then proceeds in this manner:

"Plaintiff further states that said Mine No. Sixty-One is a large mine, at which defendant employs a large number of men; that on the said 27th day of March, 1911, the defendant and its officers and agents ordered and directed the said James V. Goode to go through one of the main entries of said Mine No. Sixty-one, known as the third south entry off the sixth west entry, being an entry running north and south in said mine, and at the east side of said entry engage in taking out coal by what is known as pulling pillars; that the said James V. Goode, deceased, did go to said point and did work as so ordered; that the said point, where defendant and its officers and agents so directed James V. Goode to work and where he did work as aforesaid, was a great distance from the shaft or place of entrance to said mine, and for economy of time it was necessary for the deceased, James V. Goode, to take his noon lunch with him into said mine.

"Plaintiff further states that the defendant and its officers and agents carelessly and negligently permitted and suffered the roof of said entry in said mine in which the said James V. Goode was ordered and directed to work and at a point from fifteen to twenty-five feet north of the working place of said James V. Goode, on said March 27, 1911, to be and remain dangerous and unsafe and then and for some time prior thereto carelessly and negligently failed and neglected to prop, brace or otherwise support or protect the roof of said entry at a point from fifteen to twenty-five feet north of the working place of the said deceased James V. Goode and at a place in said entry where it was the duty of the defendant to use reasonable care to keep the same in a reasonably safe condition. The roof of said main entry was composed of fragile and breakable rock, slate and dirt, and was on March 27, 1911, and for some time prior thereto had been loose, unsafe and dangerous; all of which the defendant and its officers and agents well knew, or by the exercise of ordinary care could have known.

"Plaintiff further states that on the 27th day of March, 1911, at about twelve o'clock, noon, the deceased, James V. Goode while engaged as a coal miner as aforesaid and while in the exercise of due care and caution and without fault or want of care on his part 'stepped from the point' at his working place about the east side of said main entry to a point from fifteen to twenty-five feet north of his working place in said main entry in said Mine No. Sixty-one, where it was the duty of the defendant to use reasonable care and diligence to keep the roof thereof in a reasonable safe condition, for the purpose of eating his lunch, and while so engaged, a large slab of rock fell from the east side of the roof of said main entry westward down to and upon the deceased, James V. Goode, thereby crushing, mangling, injuring and cutting off the top of his head, from which crushing, mangling and injuring the said James V. Goode then and there instantly died.

"Plaintiff further states that the death of the said James V. Goode was caused, occasioned and brought about by reason of the carelessness and negligence of the defendant and its officers and agents in so carelessly and negligently failing and neglecting to use reasonable care and diligence to make the roof of said main entry in said Mine No. Sixty-one reasonably safe at and about the point where the deceased, James V. Goode, was killed as aforesaid, when the defendant through its officers and agents knew, or by the exercise of ordinary care and diligence, could have known that the roof of said main entry at said point and away from the working place of the said deceased, James V. Goode, was ordered to work was dangerous and unsafe as aforesaid."

The answer consisted of (1) a general denial; (2) plea of contributory negligence; and (3) a plea of assumption of risk. The petition for certiorari charges several conflicts between the opinion of the Court of Appeals and opinions of this court, which, in connection with this general outline, will be noted in the course of the opinion.

I. It is clear...