Lober v. Kansas City

• Citation: 74 S.W.2d 815
• Decision Date: 18 September 1934
• Docket Number: 31596
• Parties: LOBER et al. v. KANSAS CITY
• Court: United States State Supreme Court of Missouri

74 S.W.2d 815

LOBER et al. v. KANSAS CITY

No. 31596

Supreme Court of Missouri, First Division

September 18, 1934

Original Opinion of July 17, 1934, Reported at 74 S.W.2d 815 at 824.

OPINION

STURGIS Commissioner.

On Motion for Rehearing and to Modify Judgment

The plaintiffs have filed herein a motion for rehearing and also a motion to have this court modify its opinion and judgment. The result to be attained by each motion is to have this court change its ruling so as to affirm the judgment of the trial court instead of reversing it and remanding the case. It is insisted that this should be done notwithstanding the opinion is correct both in the statement of the facts and the law applicable thereto, though not so conceding, and points out that we have reached this result only by overruling the prior decision of this court in De Mayo v. Kansas City (Mo. Sup.) 210 S.W. 380, on the question of the defendant's liability for negligence in the performance of its governmental power and function in keeping its streets clean and sanitary. Plaintiffs' reasoning is that although this court has properly overruled the De Mayo Case yet that case stood as the law of this state until so overruled and was the law of the state when the present case was tried in the circuit court, and that court cannot be put in error for having followed such case in its instructions to the jury. Our opinion holds that the trial court erred in refusing certain instructions to the jury to the effect that, if the defendant city maintained and was using the water plug causing plaintiffs' damage exclusively for the purpose of keeping its streets clean and sanitary, and the water therefrom was allowed to escape by reason of the negligence of its employee in operating the same, then, as the city was performing one of its governmental duties, it could not be held liable for negligence therein. The plaintiffs insisted then, as they do yet, that the De Mayo Case ruled the contrary on similar facts, and was the last and controlling decision of this court, and which the trial court followed, and therefore, while this court properly overruled that case and the present decision should be hereafter followed, yet such ruling cannot be given a retroactive effect so as to operate on the present case (and perhaps on no other pending case), and this case should be affirmed. To use plaintiffs' language in the motion to modify: 'It has heretofore been directly and pointedly decided by this court, that no order, ruling or decision of a trial court should be reversed because of changes that have been made in the law subsequent to the order, ruling or decision in question where said order, ruling or decision was correct when made.' And in the motion for rehearing the plaintiffs say: 'The order of the court reversing and remanding this cause is based wholly upon the so-called error of the court nisi in refusing to give two instructions requested by defendant, which, as stated in the opinion, were correct, under the law as it existed at the time of the trial herein, and are only rendered erroneous by this subsequent decision, changing the then existing law.' This contention cannot be sustained. The cases relied on by plaintiffs as sustaining this position are State ex rel. May Department Stores Co. v. Haid, 327 Mo. 567, 585, 38 S.W.2d 44, 53; State ex rel. Midwest Pipe & Supply Co. v. Haid, 330 Mo. 1093, 52 S.W.2d 183, 185, and State ex rel. Blackmer & Post Pipe Co. v. Rosskopf, 331 Mo. 793, 55 S.W.2d 287. It will be found on examination that all three of the cases cited deal with questions of procedure on appeal from a decision of the Workmen's Compensation Commission to the circuit court and from the decision of the circuit court in such cases to the proper appellate court for final review. Such procedure is purely statutory and in large measure sui generis.

In the first of these cases (327 Mo. 567, 38 S.W.2d 44, 53), this court held that under the statute giving and governing appeals in such cases the circuit court did not try the case de novo on appeal, but merely reviewed the case as an intermediary court of review on the whole record, including the evidence as certified to that court; and that, on a further appeal to the Court of Appeals or Supreme Court, no motion for new trial was necessary or proper, and no bill of exceptions was necessary to preserve the evidence or the court's ruling thereon since such was part of the record proper. As a consequence of this, it was further held that the filing of a useless motion for new trial in such a case did not have the effect of holding or continuing the case in the circuit court beyond the judgment term for the purpose of allowing an appeal, and that an appeal taken at a subsequent term was void. In other words, it was held that the procedure looking to and perfecting appeals in such cases was different from the procedure in ordinary civil cases. This court in City of Macon v. Public Service Commission, 266 Mo. 484, 181 S.W. 396, involving altogether similar statutory procedure, had held that the usual procedure in civil cases did apply and that a motion for new trial and bill of exceptions was necessary to preserve the evidence, etc., for review on appeal to this court. Other courts had held the same in workmen's compensation cases. Brocco v. May Department Stores Co. (Mo. App.) 22 S.W.2d 832; Lilly v. Moberly Wholesale Grocery Co. (Mo. App.) 32 S.W.2d 1099; Dougherty v. Manhatten Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126. These last-mentioned cases as to the method of procedure on appeal were all overruled. As to the effect of such ruling, overruling former cases, on other cases then pending in court, this court said (State ex rel May Dept. Stores Co. v. Haid, supra): 'The overruling of our former decision in the City of Macon Case should not disturb the rights of those litigants under the Public Service Commission Law who have shaped their course of action in conformity with the rule of practice as laid down in the City of Macon Case. The effect of our decision in the present case, overruling our former decision in the City of Macon Case, is prospective only, and not retroactive. * * * Consequently the courts have established and adopted the rule that, where a statute or law has received a given construction by a court of last resort, the rights, positions, and course of action of parties who have acted in conformity with, and in reliance upon, such construction of the statute, are not in any wise impaired or disturbed by reason of a change in the construction of the same statute made by a subsequent decision of the court of last resort, in overruling its former decision, and the effect of the change in judicial construction is that it operates prospectively, and not retrospectively, in the same manner as though the statute or law had been amended by the Legislature.'

It is evident that this court was dealing with the effect of a change by statute or court decision of a statute or rule of procedure in the trial of cases or on appeal, and not with the effect of a decision of a court determining what is the proper rule of general or substantive law applied to a given state of facts, and in so doing to criticize or overrule some former decision to the contrary in that respect. That is an entirely different proposition. The two cases cited by this court, Mountain Grove Bank v. Douglas County, 146 Mo. 42, 52, 47 S.W. 944, and Klocke v. Klocke, 276 Mo. 572, 582, 208 S.W. 825, deal with the question of a departure from the rule of stare decisis when to do so involves the question of depriving a person of vested rights or impairs the obligation of contracts. Those cases deal with the question of overruling court decisio...