The State ex rel. Bush v. Sturgis

Citation221 S.W. 91,281 Mo. 598
PartiesTHE STATE ex rel. B. F. BUSH, Receiver of ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, v. JOHN T. STURGIS et al., Judges of Springfield Court of Appeals
Decision Date26 March 1920
CourtUnited States State Supreme Court of Missouri

Writ quashed.

J. F Green and Barbour & McDavid for relator.

(1) In disposing of the case on appeal, the respondents have done so on a theory not presented below and thus have affirmed the cause on issues never presented to the trial court or jury by pleadings or instructions. In so doing respondents have failed to follow the rule announced on that subject in the latest controlling decisions of the Supreme Court in Brunswick v. Standard Accident Ins. Co., 213 S.W 46; Degonia v. Railroad, 224 Mo. 588; Chinn v Naylor, 182 Mo. 595; Deschener v. Railroad, 200 Mo. 332; Mirrielees v. Ry. Co., 163 Mo. 486; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 369; Henry County v. Citizens Bank, 208 Mo. 226. (2) A reading of respondents' opinion discloses that the case was affirmed on issues and matters contained only in the replication and not in the petition. In so doing respondents have failed to follow a long line of decisions of the Supreme Court wherein it has been held that a plaintiff must recover if at all, on the matters alleged in the petition, and may not eke out such petition by matters brought into the case by reply. Mathieson v. Railroad, 219 Mo. 522. (3) Crossing signals are for the benefit only of travelers on the public highway, and not for trespassers, and trespassers may not expect or depend upon signals and they may not expect or depend upon headlights. It has been so ruled in the following cases: Degonia v. Railroad, 224 Mo. 592; Burger v. Ry. Co., 112 Mo. 246; Frye v. Ry. Co., 200 Mo. 407; Bell v. Railroad, 72 Mo. 58; Maxey v. Ry. Co., 113 Mo. 11; Gurley v. Ry. Co., 104 Mo. 223; Evans v. Ry. Co., 62 Mo. 57; Ayers v. Railroad, 190 Mo. 237; Milliken v. Commission Co., 202 Mo. 654; Moss v. Fitch, 212 Mo. 502; Hill v. Mining Co., 119 Mo. 30. (4) The law as settled by the Supreme Court is that where a case has been tried and appealed the opinion rendered by the appellate court on such an appeal becomes the law of that case for any subsequent trial and is binding on the trial court, the parties in interest, and on the appellate court on any subsequent appeal. May v. Crawford, 150 Mo. 524; Benton v. St. Louis, 248 Mo. 102; Gracey v. St. Louis, 221 Mo. 5; Armor v. Frey, 253 Mo. 465; Bridge Co. v. Stone, 194 Mo. 184. See opinion on previous appeal of this case of the Springfield Court of Appeals, 198 Mo.App. 615.

Collins, Holloday & Stough, Geo. W. Thornberry and Hamlin & Hamlin for respondents.

(1) A judgment clearly for the right party under the facts and the law applicable thereto whether declared to the jury or not declared to the jury should not be disturbed for the very good reason that by such judgment the real aim of the law is accomplished. Facts do not give way to theory nor are shadows or technicalities the real trunk of the law. And in a case of this sort a pertinent inquiry always is, has the object of the law been accomplished? Boyes' Admr. v. Smiths' Admr., 16 Mo. 322. (2) In a proceeding of this nature the Supreme Court wholly ascertains the facts in a case fro the written opinion of the judges of the Court of Appeals. State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19; State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S.W. 804. (3) It cannot be said by relator that the plaintiff pursued one theory in the trial court and then changed her theory in the Court of Appeals. (4) The Court of Appeals having adjudged and determined from the whole record before it upon what real or actual theory this case was tried, suppose it erred in its judgment, this court cannot quash its record. State ex rel. Brown v. Broaddus, 216 Mo. 336.

OPINION

Certiorari.

WALKER C. J.

Certiorari to the Springfield Court of Appeals to review the record of that court in the case of Susie E. Kerr against Bush, Receiver of the St. Louis, Iron Mountain & Southern Railway Company for damages for the killing of her husband through the negligence of that company. Upon a trial before a jury a verdict was rendered in her favor in the sum of $ 3500. From this finding an appeal was perfected to the Springfield Court of Appeals, which affirmed the judgment of the trial court (215 S.W. 393). We are asked to quash the record of the Court of Appeals on the ground that its ruling contravenes certain decisions of this court.

I. The limit of our review is the opinion of the Court of Appeals. If it does not disclose a conflict with the former rulings of this court then our power of superintendence is at an end. [State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19, 165 S.W. 729; State ex rel. Dunham v. Ellison, 213 S.W. 459; State ex rel. Com. Tr. Co. v. Reynolds, 213 S.W. 804].

II. The first contention as to a contrariety of opinion is that the Court of Appeals disposed of the case upon a different theory from that upon which it was tried below. As to the theory at the trial, the opinion states that "the negligence, alleged in the petition, is the failure of the defendant to give the statutory signal by bell or whistle on the train in question approaching and passing over the public crossing. The petition alleges and the jury found that the deceased reached this crossing by traveling the public highway. In plaintiff's reply primarily to meet the defense of contributory negligence in that the deceased went on the railroad track in front of the moving train heedlessly and without looking or listening, it is alleged 'that the night was very dark, the engine without a headlight and pushing a car in front and that no signal whatever was given for this crossing.'"

The court, after reviewing the testimony at length, states "that there is neither any presumption nor any evidence on which to base a finding that the deceased approached the crossing where he was killed along the dirt road and not along the railroad." Following this conclusion the court adds "that if defendant's liability is to rest on the finding that the deceased approached the crossing along the public road, then to sustain such verdict would be violative of the rule that where the injury may with equal or greater probability have resulted from a different cause for which the defendant is not liable, then the verdict cannot stand; for it devolves on the plaintiff to prove with reasonable certainty that the cause for which the defendant is liable produced the result and this cannot be left to conjecture" (citing cases).

It is evident, therefore, that the specific nature of relator's contention as to a variance between the theory of the trial court and the Court of Appeals consists in their respective findings as to the manner in which the deceased approached the crossing. This difference to avail the defendant must be of such a nature as to constitute an essential factor in determining defendant's liability. A mere difference in findings not so determinative will not authorize a ruling adverse to the judgment. This in no wise militates against the well established rule that if an injury may have resulted from one of two causes for one of which and not the other the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture the defendant is not liable.

To this effect and no further is our ruling in Degonia v. Railroad, 224 Mo. 564, in which we held that although there was a good case on the facts it was not submitted upon a proper theory of the law and hence the judgment could not be sustained.

In Henry County v. Citizens Bank, 208 Mo. 209, 106 S.W. 622, we held that a suit could not be brought upon one cause of action and a recovery had upon another; and that a case could not be tried upon one theory and a recovery had upon another on appeal.

In Deschner v. Railroad, 200 Mo. 310, we held that where a case was tried and instructions on both sides proceeded on the theory that it was the motorman's duty to see and warn the injured party, the case will be reviewed upon that theory in the appellate court.

In McGrath v. St. Louis Tr. Co., 197 Mo. 97, 94 S.W. 872, specific acts of negligence having been pleaded, a recovery if had at all must be upon the acts as pleaded.

In Chinn v. Naylor, 182 Mo. 583, 81 S.W. 1109, where the case was tried below upon the theory that the land in controversy was an accretion to the shore land of plaintiff, the latter would not be heard upon appeal upon a different theory.

In Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354, 78 S.W. 579, we held that litigants will not be permitted to contest a proceeding upon one theory and on appeal shift their position by demanding formal proof of facts practically admitted in the court below.

In Mirrielees v. Railroad, 163 Mo. 470, where both parties tried the case upon the theory that the defendant was bound to exercise ordinary care to prevent injury to a trespasser after it knew of his peril, we are relieved upon a review of the case here from considering whether a carrier's liability is limited to willful or wanton injuries or extends to injuries caused by want of ordinary care.

From these cases, relied upon by relator, and many others which might be cited to the same effect, it appears that the difference in theory between the trial of a case and its review and disposition upon appeal must, to authorize the invoking of the rule, involve a matter essential to the rendition of the judgment. The correctness of this conclusion is rendered more apparent when we consider the province of an appellate court, which is that of review. Such review is for...

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