Keller v. Summers

• Decision Date: 02 December 1914
• Docket Number: No. 16536.,16536.
• Citation: 262 Mo. 324,171 S.W. 336
• Parties: KELLER et al. v. SUMMERS.
• Court: Missouri Supreme Court

171 S.W. 336

262 Mo. 324

KELLER et al. v. SUMMERS.

No. 16536.

Supreme Court of Missouri, Division No. 1.

December 2, 1914.

1. COURTS (§ 231) — STATE COURTS — MISSOURI SUPREME COURT — CERTIFIED CASES.

For the Supreme Court to obtain jurisdiction of a cause certified to it from one of the Courts of Appeals, on the theory that the decision of that tribunal is in conflict with a decision of the Supreme Court or of one of the Courts of Appeals, the Court of Appeals must have rendered a decision in the case or proceeding, and not have made a mere ruling on a preliminary or interlocutory motion not decisive of the case.

2. COURTS (§ 231) — STATE COURTS — MISSOURI SUPREME COURT — CERTIFIED CASES.

The purpose of Const. Amend. 1884, § 6, allowing the certification of cases from the Courts of Appeals to the Supreme Court in case one of the judges shall deem the decision contrary to a decision of the Supreme Court or of one of the Courts of Appeals is to prevent conflict in the rulings of the appellate courts.

3. COURTS (§ 231) — STATE COURTS — MISSOURI — CERTIFICATION OF CASES TO SUPREME COURT — "OPINION" — "DECISION."

In a case before the Springfield Court of Appeals, part of a judgment for plaintiff was reversed and one of the judges of that court filed a dissent, stating that to reverse the judgment was in conflict with named cases, which were decisions of the Supreme Court. The majority opinion recited that such judge dissented from part of the opinion, and requested that the cause be certified to the Supreme Court, wherefore it was so ordered. Held, that as the words "opinion" and "decision" are used interchangeably, and as the language of the dissenting judge clearly showed that he deemed the reversal of the case in conflict with decisions of the Supreme Court, the cause could be certified to the Supreme Court in accordance with Const. Amend. 1884, § 6, providing that where one of the judges of a Court of Appeals deems a decision in conflict with decisions of one of the other Courts of Appeals or of the Supreme Court, the cause shall be certified to the Supreme Court.

4. COURTS (§ 231) — STATE COURTS — MISSOURI SUPREME COURT — JURISDICTION OVER CERTIFIED CASES.

Where a case is certified to the Supreme Court on dissent of a member of the Court of Appeals, who asserted that the decision was in conflict with decisions of the Supreme Court, the Supreme Court, under the direct provisions of Const. Amend. 1884, § 6, takes jurisdiction of the whole case just as if it had been brought there originally.

5. DAMAGES (§ 87) — EXEMPLARY DAMAGES — RIGHT TO.

Punitive damages may be recovered where a proper basis therefor is laid in the petition and proof, although plaintiff recovers only nominal actual damages.

6. TRIAL (§ 251) — INSTRUCTIONS — APPLICABILITY TO PLEADINGS.

Where one count of a petition to recover the value of a certificate of deposit wrongfully taken from plaintiff did not charge larceny of the certificate, an instruction, which authorized an award of punitive damages in case the certificate was stolen, is improper, going beyond the pleadings.

7. APPEAL AND ERROR (§ 1140) — DETERMINATION — REMITTITUR.

Where the award of punitive damages which was based on an erroneous instruction could be separated from the award of actual damages, the error in the instruction may be cured by a remittitur of the punitive damages.

Error to Circuit Court, Jasper County; Haywood Scott, Judge.

Action by R. F. Summers against S. A. Keller and another. Judgment for plaintiff, and defendants bring error. The Springfield Court of Appeals (152 Mo. App. 626, 133 S. W. 1180) reversed the judgment and certified the case to the Supreme Court. Affirmed on condition that plaintiff enter a remittitur; otherwise reversed and remanded.

This suit was decided by the Springfield Court of Appeals by the affirmance of the judgment for plaintiff on the second count of his petition and the reversal and remand of his judgment on the fourth count of his petition. One of the members of that court dissented to the reversal and remand in a written opinion, setting forth the grounds of his dissent and stating that "to reverse that part of this judgment, etc., is also in direct conflict with Cartwright v. Culver, 74 Mo. 179, * * * and also in direct conflict with Foster v. Railway, 115 Mo. 165, 21 S. W 916." Thereupon the majority opinion concludes, to wit:

"Self, Special Judge, concurs; Cox, J., dissents as to that part of the opinion reversing the judgment and remanding the cause on the fourth count of the petition, and requests that the cause be certified to the Supreme Court, and it is so ordered. Gray, J., not sitting." Summers v. Keller, 152 Mo. App. 626, 646, 651, 133 S. W. 1180, 1186.

As shown in the two opinions of the Judges of the Springfield Court of Appeals, this cause was lodged there after a writ of error had been sued out in the Kansas City Court of Appeals by the defendants in a judgment in favor of plaintiff in the circuit court of Jasper county, by the transference of the cause to the Springfield Court of Appeals. It is shown by the record and briefs in the latter court that the three first counts of plaintiff's petition were different statements of a cause of action for the alleged recovery by defendants of a certificate of deposit for $500, that the next three counts were for the value of a certificate of deposit for $300, and that the seventh count was dismissed on the trial. Plaintiff prayed actual and punitive damages separately on both causes of action, and alleged in each a proper basis for the recovery of both measures of relief. Plaintiff had judgment on the first cause of action for $507.50 actual and $937.50 punitive damages. On the second cause of action plaintiff recovered $314.50 as actual and $562.50 as exemplary damages. The first recovery was rendered on count No. 2 of the petition, and the second on count No. 4. So far as necessary, the language and scope of these counts will be adverted to in the opinion. The cause is here under the above-quoted order of the Springfield Court of Appeals, based upon the above-quoted dissenting opinion of one of its judges and his request for its certification and transfer.

M. R. Lively, of Webb City, for plaintiffs in error. H. W. Currey and Geo. V. Farris, of Webb City, and W. J. Owen, of Joplin, for defendant in error.

BOND, J. (after stating the facts as above).

I. Although no question is made by either of the counsel in this case as to the acquisition of jurisdiction of this court, it is not improper that we should determine that for ourselves before considering the merits of the writ of error by which the cause was taken to the Springfield Court of Appeals. By section 6 of the amendment of the Constitution adopted in 1884, specific provision is made by that instrument for the certification and transfer of any case or proceeding pending in any Court of Appeals to this court, and in the event that method is complied with, this court acquires the same jurisdiction of such case or proceeding as if it had been rightfully brought here by appeal or writ of error from the trial court, and must rehear and determine it. To vest jurisdiction in this constitutional mode it is necessary: First, that the particular Court of Appeals where the case or proceeding is pending shall render a decision therein, not a mere ruling on a preliminary or interlocutory motion which is not decisive of the case (Gipson v. Powell, 167 Mo. 192, 66 S. W. 969); second, some one of the judges of that court must state of record by adequate terms that he deems the decision of the majority of the Court of Appeals contrary to a previous decision of this court or some one of the Courts of Appeals; third, upon the filing of such a statement by one of its judges, the Court of Appeals must, of its own motion pending the same term, certify and transfer said case or proceeding and the original transcript therein to the Supreme Court; fourth, this procedure was devised to prevent disharmony in the rulings of the appellate courts of this state and to enforce in all others the paramount authority of the "last previous rulings of the Supreme Court on any question of law or equity" (Ex parte Conrades, 185 Mo. 411, 85 S. W. 160).

It has been uniformly held in this state since the adoption of this constitutional provision that this method of transfer of jurisdiction is accomplished solely by the statement of one of the judges of a Court of Appeals that he deems the ruling on which its judicial action is taken to be contrary to the previous ruling of this court or some Court of Appeals. He is not required, under the Constitution, to employ any set or stereotyped terms to express that idea. It is only necessary that in some authentic way he declare his opinion of the contrariety of the Court of Appeals with a subsisting previous opinion of this court or some one of the Courts of Appeals. It does not at all affect the displacement of jurisdiction by this process that the judge so stating should be in error in his opinion or mistaken as to the fact. It is enough to oust the...