Kreis v. Missouri Pac. Ry. Co.

• Decision Date: 05 February 1896
• Parties: KREIS v. MISSOURI PAC. RY. CO.
• Court: Missouri Supreme Court

33 S.W. 1150

131 Mo. 533

KREIS v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri.

February 5, 1896.

In banc.

For majority opinion, see 33 S. W. 64.

BARCLAY and GANTT, JJ. (dissenting).

We do not join in overruling McShane v. Sanderson (1892) 108 Mo. 316, 18 S. W. 912. In our view, that decision gave a correct construction to the law of successive new trials.

1. The history of legislation shows that that construction conforms to the intent of the lawmakers. The first law on the subject (1807) declared absolutely that only one new trial should be granted. 1 Terr. Laws, p. 122, § 55. Later, in 1810, error of the jury upon a "question of the law" (substantially the same as "a matter of law") was declared to be ground for granting more than one new trial. Id. p. 245, § 7. Then the additional ground of misbehavior of the jury was added. Rev. St. 1825, p. 632, § 41. The statute law remained in that form until after the adoption of the present constitution, which guaranties to the citizens of Missouri the right of trial by jury as enjoyed theretofore. Const. 1875, art. 2, § 28. The law in that shape had been frequently construed before the constitution of 1875; yet no decision earlier than of that date has been cited in which appears any allusion to the matter now emphasized as important, namely, the ground on which a first new trial was granted. The older cases, down to a comparatively recent date, treat only of the grounds advanced to obtain the second new trial, and assume that the reasons for granting the first motion are wholly immaterial. Hill v. Wilkins (1835) 4 Mo. 86; Dickey v. Malechi (1839) 6 Mo. 185; Humbert v. Eckert (1841) 7 Mo. 259; Pratte v. Judge of Court of Common Pleas (1848) 12 Mo. 194; Ramsey v. Hamilton (1851) 14 Mo. 358; State v. Adams (1882) 76 Mo. 605. We consider that some, at least, of these reported cases established a public construction of the law, the terms of which have been several times re-enacted in the same language (Rev. St. 1835, p. 470, § 2; Rev. St. 1845, p. 830, § 3; Rev. St. 1855, p. 1286, § 4; Gen. St. 1865, p. 684, § 4; Rev. St. 1879, § 3705, etc.), and that that construction should yet be followed, just as McShane v. Sanderson followed it.

2. The object of the section is twofold, — to guard the right of trial by jury, and to put an end, at some time, to litigation. The latter purpose is wholly lost sight of, we think, by the ruling here in the case at bar. That object is clearly exhibited in reference to trials of issues under Rev. St. 1889, § 2165, which only allows one trial of the same issue to any one party, without regard to any reason that may be given for another trial. Nor should that object be ignored in the construction of section 2241.

3. We do not, however, propose to argue the question at length, or to review the Missouri precedents, which, since the present constitution was adopted, are not wholly in accord on this topic. We wish merely to record our dissent to the interpretation placed now on section 2241. W...