Houck v. Cape Girardeau Waterworks & Electric Light Co.

• Decision Date: 23 December 1908
• Citation: 215 Mo. 475,114 S.W. 1098
• Parties: HOUCK et al. v. CAPE GIRARDEAU WATERWORKS & ELECTRIC LIGHT CO.
• Court: Missouri Supreme Court

114 S.W. 1098

215 Mo. 475

HOUCK et al. v. CAPE GIRARDEAU WATERWORKS & ELECTRIC LIGHT CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1908.

COURTS (§ 231) — APPELLATE JURISDICTION — CERTIFICATION OF QUESTIONS TO SUPREME COURT BY COURT OF APPEALS.

Under Const. Amend. 1884, art. 6, § 6 (Ann. St. 1906, p. 244), providing that, where the Court of Appeals renders a decision which one of its judges deems contrary to any previous decision of the Supreme Court, it shall certify the cause to the Supreme Court, which shall consider it as an appeal, and the last previous ruling of the Supreme Court on any question shall be controlling on the Court of Appeals, the Court of Appeals must determine for itself such last previous ruling, and then follow it, and it cannot determine a case contrary to what it unanimously agrees is the last previous ruling of the Supreme Court, claiming to follow a prior decision of the Supreme Court not expressly overruled, and then certify the case to the Supreme Court.

Appeal from Cape Girardeau Court of Common Pleas.

Action by Louis Houck and others against the Cape Girardeau Waterworks & Electric Light Company. From a judgment for defendant, plaintiffs appealed to the Court of Appeals, which certifies the case to the Supreme Court. Remanded to Court of Appeals.

Giboney Houck, for appellants. Wilson & Dempsey, for respondent.

GRAVES, J.

We shall not go into the merits of this case. The case reaches us from the St. Louis Court of Appeals. The per curiam opinion by which it reaches us reads: "Appellant insists that this case ought to be certified to the Supreme Court because our decision is in conflict with the decision of that tribunal in Crone v. Stinde, 156 Mo. 262, 55 S. W. 863, 56 S. W. 907. The facts of this case, as stated in the petition, so greatly resemble those in Howsmon v. Waterworks Co., 119 Mo. 304, 24 S. W. 784, 23 L. R. A. 146, 41 Am. St. Rep. 654, that we felt controlled by the decision of the Supreme Court in the latter case; but it looks like the principle on which the Howsmon Case was decided was disregarded in the later case of Crone v. Stinde, and all the judges of this court deem the decision of the present case opposed to the logical deduction to be drawn from the decision of the Supreme Court in Crone v. Stinde. Now, in St. Louis, etc., Ry. v. Lowder, 59 Mo. App. 3, an opinion was delivered in which all the judges of this court concurred, but all of them deemed that decision opposed to the principle of a previous decision of the Supreme Court and therefore certified it to the Supreme Court for final decision. That court, on such certificate, entertained jurisdiction of the cause and decided it. Its decision is reported in 138 Mo. 533, 39 S. W. 799, 60 Am. St. Rep. 565. If a case may be certified from this court to the Supreme Court under such circumstances, and it seems from the decision of the Lowder Case that it may, we deem it highly important that the present case should go there for final decision, inasmuch as it is argued that the rule of decision adopted in Crone v. Stinde is opposed to the rule of decision followed in the Howsmon Case, and therefore the latter is no longer sound law in this state. It is ordered that this cause be certified to the Supreme Court, as the judges of this court deem it opposed to the reasoning of the opinion and the principle of the decision in Crone v. Stinde. They followed the Howsmon decision as exactly in point on identical facts and a controlling authority, noticed, but not overruled or condemned, in the Crone Case."

The constitutional provision as to certifying cases from the Courts of Appeals to this court reads: "When any one of said Courts of Appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said Courts of Appeals, or of the Supreme Court, the said Court of Appeals...