Iba v. Chicago, Burlington & Quincy Railroad Company

• Decision Date: 11 January 1915
• Parties: MARY IBA, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, and THOMAS O. PHELAN, Appellants
• Court: Kansas Court of Appeals

176 S.W. 491

186 Mo.App. 718

MARY IBA, Respondent, v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, and THOMAS O. PHELAN, Appellants

Court of Appeals of Missouri, Kansas City

January 11, 1915

Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.

AFFIRMED.

Judgment affirmed.

Culver Phillip & Spencer and O. M. Spencer for appellants.

(1) The Supreme Court has superintending control over the Kansas City Court of Appeals where it has acted beyond or in excess of its power and jurisdiction. State ex rel. v Broaddus, 245 Mo. 123. (2) An appellate court in this State is limited to the errors assigned in motion for new trial filed within the time allowed by law and an attempt of an appellate court to investigate a question suggested otherwise is beyond its power and jurisdiction. Revised Statutes 1909, sec. 2081; King v. Gilson, 206 Mo 264, 280; Rodan v. Transit Co., 207 Mo. 392, 406; Winn v. Grier, 217 Mo. 461; St. Louis v. Lawton, 189 Mo. 474; Williams v. Railroad, 156 Mo.App. 675; Fussellman v. Railroad, 139 Mo.App. 198; Brenton v. Thomas, 138 Mo.App. 64; Stauffer v. Railroad, 243 Mo. 305; Ewart v. Peniston, 233 Mo. 695; Sterrett v. Railroad, 225 Mo. 99; Street v. School District, 221 Mo. 633; Lynch v. Railroad, 208 Mo. 42; Bank v. Porter, 148 Mo. 176.

C. C. Crow and John S. Boyer for respondent.

OPINION

JOHNSON, J.

Plaintiff, the widow of Frederick Iba, deceased, brought suit in the circuit court of Buchanan county, December 14, 1909, against the defendant railroad company and Thomas Phelan to recover damages for the death of her husband which she alleges was caused by the joint negligence of the defendants. Iba was killed October 13, 1909, at the station of Easton, while in the act of boarding a passenger train as a passenger. Plaintiff alleges "that her said husband, Frederick B. Iba, had boarded the said train and was standing upon the steps of the passenger coach of said train, holding with his hand to the handrail of said coach. That at said time the defendant Thomas Phelan, conductor of said train, was standing on the depot platform at said place and had caused the said train to begin to move and that while plaintiff's said husband was standing on the lower step of the said passenger coach, the conductor called up to him in a loud voice to get off the train, and moved toward this plaintiff's said husband and took hold of him and pulled him backward so as to cause his body to sway backward off of the steps of the said coach and that the said conductor pulled this plaintiff's husband backward from the said train and interfered with, and prevented this plaintiff's said husband from going up the steps of the said coach and inside of the said train, by his words and acts aforesaid. That the said defendant Thomas Phelan, conductor of said train, also pushed this plaintiff's said husband forward into the steps of said train and caused his body to sway forward and then backward, while the plaintiff's said husband was in the position aforesaid. That immediately thereafter the said defendant, Thomas Phelan, conductor of said train, and agent, servant and employee of defendant as above stated, pulled this plaintiff's husband backward and forward as above stated and caused his body to sway forward and backward while in the position above stated; that the body of this plaintiff's said husband struck one end of the large freight truck above mentioned, while standing in the place and position above described, and that by striking the end of the said truck the body of this plaintiff's said husband was again knocked forward and caused to sway and strike the said truck again, and thereby and on account of the actions of the said conductor, and the defendant, Chicago, Burlington & Quincy Railroad Company, and on account of their joint carelessness and negligence as herein specifically stated and detailed, this plaintiff's said husband was caused to lose his balance upon the steps of the said train between the said depot platform and the said train, upon the ground and under the wheels of said train, where this plaintiff's said husband was dragged and crushed under the wheels of the said train, and on said railroad tracks, from which he instantly died."

The defendant railroad company filed a petition and bond to remove the case to the United States court on the ground that said defendant was an Illinois corporation; that plaintiff and Phelan were citizens of Missouri and that the cause of action pleaded in the petition being founded on section 2864, Revised Statutes 1899 (5425, R. S. 1909) was separable and not joint. The circuit court approved the bond and made an order transferring the cause, but the Supreme Court reviewed this ruling on certiorari, and quashed the order on the ground that the petition stated "but one cause of action and that is against both defendants and it is under sections 2865 and 2866, Revised Statutes 1899, now sections 5426 and 5427, Revised Statutes 1909." [State ex rel. v. Mosman, 231 Mo. 474, 133 S.W. 38.] Pursuant to this decision the circuit court of Buchanan county resumed jurisdiction over the cause and tried it in February, 1911, upon the issues raised by the petition and answers and the jury returned a verdict for plaintiff assessing her damages at $ 5000.

In due time defendants filed their motion for a new trial and at the same term but after the time had expired for filing a statutory motion for a new trial, defendants filed a paper called "a suggestion to the court" in which they alleged that Albert Rise, a witness introduced by plaintiff, had given perjured testimony, and invoked the exercise of the inherent power of the court to remedy the injustice perpetrated by such means. At about the same time a criminal proceeding was instituted by the State against Rise on a charge of perjury. The circuit court did not dispose of the motion for a new trial until after the trial of the criminal case which ended in the acquittal of the accused. A new trial then was refused and in passing on the suggestions addressed by defendants to the judicial conscience, the court made a statement of its views which was taken down by the stenographer and afterward preserved in the record. These views were of a nature to raise a serious question concerning the propriety of the court's ruling. Defendants appealed to this court and presented for our decision the following questions:

First: "The order removing this cause to the Federal court not having been set aside by the trial court, it had no jurisdiction to try the case."

Second: "The petition and bond for removal of the defendant railroad company being in form and the case being removable, the trial court lost jurisdiction when said petition and bond were filed."

Third: "Defendants' demurrers at the close of all the testimony should have been given."

Fourth: "The court committed error in instructing the jury that 'defendant company, its agents, servants, and employees, owed deceased the highest degree of care such as would be exercised by practical and skillful railroad employees under like circumstances.'"

Fifth: "The court should have granted the defendants a new trial because of perjury committed by plaintiff's witness Albert Rise."

We found the fifth question difficult to solve but at last held that a new trial should have been granted on the ground that since it appeared in the record that the trial court was convinced of the perjury of Rise and that the verdict was against the weight of the evidence, its refusal to give defendants a new trial out of deference to the finding of the jury in the criminal case was an error which should be reviewed and corrected on appeal. We refer to the report of that decision for a full statement of the case and the reasons which led to our final conclusion that reversible error had been committed. [Iba v. Railroad, 172 Mo.App. 141.]

Further we held that the decision of the Supreme Court on the issue of the removal of the cause to the Federal court was final and conclusive and that "it was not necessary for the trial court to first set aside its removal order before trying the case since the Supreme Court had effectually disposed of it." We are bound to follow the decision of the Supreme Court that the cause pleaded in the petition is under sections 5426 and 5427, Revised Statutes 1909, is, therefore, joint and that no ground exists for removal (See also Railway v. Schwyhart, 227 U.S. 184, affirming Schwyhart v. Barrett, 145 Mo.App. 332, 130 S.W. 388), and shall not again refer to the first two assignments of error. We did not discuss the demurrer to the evidence and the alleged error in plaintiff's first instruction, for the reason that while they were not formally abandoned, they were treated by both parties as negligible questions, and the issue of Rise's alleged perjury and the trial court's treatment of it became the sole subject of argumentative controversy between the parties.

Following the announcement of our decision the Supreme Court, at the relation of plaintiff, reviewed the case on certiorari and held, in substance, that the trial court's ruling on the weight of the evidence, under the facts disclosed, was not reversible error. Reference to that opinion, which is reported in Vol. 256 of the Missouri Reports at page 644, will disclose the reasons for the decision that our opinion was in conflict with prior cases of the Supreme Court and that the judgment based thereon should be set aside. The command was that the judgment rendered in this court "be quashed and for naught held and that said cause should be remanded to that court to be retried by it and determined in conformity with the views announced herein."

The opinion of the Supreme Court does not refer to any other assignment...