Lucas v. Central Missouri Trust Co.

• Decision Date: 13 June 1942
• Docket Number: 37428
• Parties: Ray B. Lucas, Superintendent of the Insurance Department, Appellant, v. Central Missouri Trust Company
• Court: Missouri Supreme Court

162 S.W.2d 569

349 Mo. 537

Ray B. Lucas, Superintendent of the Insurance Department, Appellant, v. Central Missouri Trust Company

No. 37428

Supreme Court of Missouri

June 13, 1942

Reported at 349 Mo. 537 at 574.

Original Opinion of May 5, 1942, Reported at 349 Mo. 537. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Clark, J. Leedy and Douglas, JJ., and Ellison, C. J., concur; Tipton, J., concurs in first, second and last paragraphs; Hays, J., dissents; Gantt, J., absent.

OPINION

CLARK

Opinion on Motion For Rehearing.

Appellant has filed a motion for rehearing divided into eighteen numbered sections. The first seventeen of them relate to matters which have been twice briefed and argued in this Court and fully discussed in our opinions on file.

In the eighteenth subdivision of the motion, appellant seeks to raise a Federal question by contending that our decision is so palpably wrong as to constitute a denial of due process and equal protection as guaranteed by the Fourteenth Amendment to the Constitution of the United States. This is ultimately a question for the United States Supreme Court. We have no desire to pass upon it further than is necessary in ruling on appellant's motion for rehearing here. We find no error in our principal and concurring opinions, and therefore overrule this assignment in the motion.

In this connection appellant refers to our exclusion of the opinions of two of the judges. He does not ask that these opinions be ordered filed nor does he clearly explain just how their exclusion is related to the point under discussion.

On our right to exclude the opinions, appellant's argument may be summarized as follows: that our constitution and statutes require all opinions to be filed; that until an opinion is filed it is not before the court for consideration; and that, since we did not find that the excluded opinions consist entirely of improper matter, we should have excluded only the offensive portions.

It is unnecessary to decide whether there is any legal requirement that a concurring or dissenting opinion be filed. It has been and is the custom to permit the filing of such opinions. That custom is a wise one and has always been, and will continue to be, adhered to by this court provided such opinions do not transcend the bounds of propriety. In the instant case a dissenting opinion by one of our judges has been filed and will be published in the official reports.

If appellant is correct in his assumption that an opinion is not properly before the court for consideration until it has been filed in the clerk's office, then no opinion has ever been legally adopted by this court. It has been the unbroken practice of this court to submit copies of proposed opinions to the judges before conference, and to consider them in conference before they are filed in the clerk's office. That practice was followed in the instant case. Two opinions were considered and voted on in division one, but neither was filed because each failed to receive a carrying vote. The majority opinions in this case were considered in conference before being filed. We believe that the same, or a similar, practice prevails in every appellate court in this country.

Appellant concedes (pages 35 and 37 of the motion) that "the right to strike after filing has ample authority to support it," but argues that, even then, we should strike only such portions as contain improper matter.

The duty of courts to keep their records free from being made the vehicle and repository of scandal and abuse is universally recognized. Many cases could be cited in which courts have performed this duty by excluding from the record offensive or improper matter contained in pleadings, briefs or other documents. It has seldom been necessary to exclude the opinion of a judge, but in Nadeau v. Texas Co., 104 Mont. 558, 69 P.2d 593, 111 A. L. R. 874, the Supreme Court of Montana expunged an opinion of its Chief Justice because it was said to be "scandalous, scurrilous and defamatory." Usually the offensive paper has been filed before the court has an opportunity to pass upon it, but in some instances courts have exercised the power to prevent the filing of such papers. In Wenborne-Karpen Dryer Co. v. Cutler Dry Kiln Co., 292 F. 861, a United States Circuit Court of Appeals, on its own motion, denied the filing of a motion for rehearing because: "The form of criticism adopted, and the manner in which what may fairly be called accusations are made, are not in accord with the code of professional manners hitherto recognized in this court." Certiorari to review this case was denied by the United States Supreme Court. [263 U.S. 708, 68 L.Ed. 517, 44 S.Ct. 36; see also People ex rel. Allen v. Murray, 22 N.Y.S. 1051.]

The filing of a scandalous paper permits the dissemination of the scandal under unmerited privilege, while it remains on the record, and thereby causes harm which is not entirely cured by striking such paper from the record. This is especially true as to the opinion of a judge for, no matter how malicious or unjustified it may be, the injured person ordinarily has no redress. We think it is the duty of the court, when possible, to prevent the filing of such paper...