Rogers v. Thompson, 44595

• Decision Date: 16 January 1958
• Docket Number: No. 44595,No. 1,44595,1
• Citation: 308 S.W.2d 688
• Parties: James C. ROGERS, Respondent, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 688

308 S.W.2d 688

James C. ROGERS, Respondent, v. Guy A. THOMPSON, Trustee, Missouri Pacific Railroad Company,

a Corporation, Appellant.

No. 44595.

Supreme Court of Missouri, Division No. 1.

Jan. 16, 1958.

Harold L. Harvey, Oliver L. Salter and Donald B. Sommers, Marvin Boisseau, Jr., St. Louis, for appellant.

Mark D. Eagleton, Thomas F. Eagleton, and Leland Jones, Eugene K. Buckley, St. Louis, for respondent.

COIL, Commissioner.

James C. Rogers brought an action against Guy A. Thompson as trustee of the Missouri Pacific Railroad Company, a corporation, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., claiming damages for personal injuries. Judgment for $40,000 was entered on a jury's verdict. The trustee appealed to this Court, contending that plaintiff below failed to make a submissible case, that the trial court erred in giving instruction 1, and that the verdict and judgment were excessive. In November 1955, this Court held that Rogers failed to make a submissible case and reversed the judgment of the trial court. Rogers v. Thompson, Mo., 284 S.W.2d 467. We did not consider, pass upon, or dispose of defendant's contentions that instruction 1 was erroneous or that the judgment was excessive. Rogers v. Thompson, supra.

In February 1956, the United States Supreme Court granted certiorari, Rogers v. Thompson, 350 U.S. 964, 76 S.Ct. 440, 100 L.Ed. 837, and in April 1956 entered on order substituting the Missouri Pacific Railroad Company for Thompson, trustee, Rogers v. Thompson, 350 U.S. 1004, 76 S.Ct. 649, 100 L.Ed. 866. On February 25, 1957, the United States Supreme Court rendered its opinion, reversing the judgment of the Supreme Court of Missouri for the stated reason that our opinion erroneously held that Rogers had failed to make a submissible case and thereby erroneously denied Rogers' right to a jury determination as to whether the railroad was negligent, and, if so, whether that negligence played any part in producting plaintiff's injury. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, 515. A petition for rehearing was denied on April 22, 1957, 353 U.S. 943, 77 S.Ct. 808, 1 L.Ed.2d 764. After the United States Supreme Court had disposed of the submissibility question, the final paragraphs of its opinion were (352 U.S. 511, 77 S.Ct. 451, 1 L.Ed.2d 502):

'We have considered the remaining questions not passed upon by the Supreme Court of Missouri, and find them to be unsubstantial. Accordingly, we remand the case for proceedings not inconsistent with this opinion.

'The judgment is

'Reversed.'

The mandate of that Court, dated April 26, 1957, filed in this Court April 29, 1957, advised us that our judgment had been reversed with costs, ordered that Rogers recover from the railroad $708.57 for his costs in the certiorari proceeding, and ordered further 'that this cause be, and the same is hereby, remanded to the Supreme Court of Missouri for proceedings not inconsistent with the opinion of this Court.'

Because we were doubtful as to what 'proceedings' to take to comply with the mandate's direction to take 'proceedings not inconsistent with' the opinion of the United States Supreme Court, and because of our desire to, and in recognition of our duty to, respect that Court's mandate and, therefore, not 'reconsider questions which the mandate * * * laid at rest,' but also believing that a serious question remained as to 'what issues were laid at rest' by the mandate, Federal Communications Comm. v. Pottsville Broadcasting Co., 309 U.S. 134, 140, 60 S.Ct. 437, 84 L.Ed. 656, 661, we ordered that the case again be set at the Suptember Session, 1957, for the purpose of receiving the advisory views of counsel as to what 'proceedings' we should next take. And, as may well have been forecast, Rogers contended that the only was we could comply with the mandate was to forthwith affirm the judgment of the trial court, while the railroad contended that we were not foreclosed by the opinion and mandate from considering and disposing of its original contentions as to the instruction and judgment.

For the reasons which will appears, we are of the opinion that to take 'proceedings not inconsistent with the opinion of' the United States Supreme Court and thus to comply with its mandate, we are precluded from ruling railroad's contentions as to instruction 1, but that we are not precluded from ruling and, therefore, we do rule the question of excessiveness of verdict and judgment.

While the ambiguity ¹ of and various meanings of this language of the United States Supreme Court have been suggested, 'We have considered the remaining questions not passed upon by the Supreme Court of Missouri, and find them to be unsubstantial,' we think that language meant that the United States Supreme Court had passed on the railroad's contentions that instruction 1 was erroneous and that the verdict and judgment were excessive, and had decided that there was no merit in either of them. We therefore seek the effect on our 'proceedings' of that Court's finding that those two questions were 'unsubstantial.'

The United States Supreme Court has invariably held that, as to cases which reach it from other courts in the Federal Judicial System, it is a court of general review; but that as to cases which reach it from a state court, its scope of review is limited to ruling the state court's judgment on federal questions of substance. In Seaboard Air Line Ry. v. Duvall, 225 U.S. 477, 32 S.Ct. 790, 56 L.Ed. 1171, it was said, 'This case does not come here from a Federal court, and we are therefore not a court of general review.' 225 U.S. 485, 32 S.Ct. 792. And in German Savings & Loan Society v. Dormitzer, 192 U.S. 125, 24 S.Ct. 221, 48 L.Ed. 373, a case in the United States Supreme Court on writ of error to the Supreme Court of Washington, Mr. Justice Holmes said, 'Hill v. Mendenhall, 21 Wall. 453, 22 L.Ed. 616, relied on by the plaintiff in error, came from the circuit court of the United States, and when a case properly is brought here from the circuit court upon constitutional grounds the whole case is open. Horner v. United States, 143 U.S 570, 12 S.Ct. 522, 36 L.Ed 266. But it is otherwise when a case comes, as this does, from a state court.' 192 U.S. 127, 24 S.Ct. 222. See also Central Vermont Ry. Co. v. White, 238 U.S. 507, 508, 515, 35 S.Ct. 865, 59 L.Ed. 1433, 1435, 1438; Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 679, 50 S.Ct. 451, 74 L.Ed. 1107, 1113; and Note in 63 L.R.A. 572, where the annotator states the general rule: 'From the beginning the Federal Supreme Court has uniformly been of the opinion that on writs of error to state courts the scope of its review was restricted to the correction of errors committed by those courts in the decision of Federal questions.'

The Supreme Court of the United States has said, in a case on writ of error to the Supreme Court of California, that it could look beyond the federal question only when question had been decided erroneously and then only to determine whether there were other matters 'adjudged by the state court sufficiently broad to maintain the judgment, notwithstanding the error in the decision of the federal question. Murdock v. City of Memphis, 20 Wall. 590, 591, 22 L.Ed. 429.' McLaughlin v. Fowler, 154 U.S. 663, 14 S.Ct. 1192, 1193, 26 L.Ed. 176.

And the fact that the instant case was brought under the FELA did not of itself give the United States Supreme Court any jurisdiction to review this Court's judgment beyond or in addition to the jurisdiction conferred by 28 U.S.C.A. § 1257(3). See Seaboard Air Line Ry. v. Duvall, supra. And note United States Supreme Court Rule 19, 28 U.S.C.A., which provides in applicable parts:

'1. A review on writ of certiorari is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor. The following, while neither controlling nor fully measuring the court's discretion, indicate the character of reasons which will be considered:

'(a) Where a state court has decided a federal question of substance not theretofore determined by this court, or has decided it in a way probably not in accord with applicable decisions of this court.'

It would appear to follow that as to cases reaching the United States Supreme Court from the various federal courts, the Supreme Court has the power of general review and thus jurisdiction to decide questions left undecided by those federal courts, and that, irrespective of the nature of those questions. See dissenting opinion in Cahill v. New York, N. H. & H. R. Co., 351 U.S. 183, 184, 187-190, 76 S.Ct. 758, 100 L.Ed. 1075, 1077, 1079, 1080, and the cases there cited in footnote 4, and note the conclusion there reached based upon the cited cases (all of which were cases which had reached the United States Supreme Court from federal courts) that 'At least where there are unsubstantial points left undecided below this Court should not remand the case for consideration of those points.' (Our italics.) 351 U.S. 189, 76 S.Ct. 762, 100 L.Ed. 1080. And see Webb. v. Illinois Central Railroad Co., 352 U.S. 512, 513, 77 S.Ct. 451, 452, 1 L.Ed.2d 503, 505, wherein the opinion was written by the writer of the Rogers opinion and handed down the same day. The Webb case reached the Supreme Court from the United States Court of Appeals for the Seventh Circuit. 228 F.2d 257. There the Supreme Court used language almost identical to that used in the Rogers case, viz., 'We have considered the remaining questions, not passed upon by the Court of Appeals, and find them to be unsubstantial. Accordingly, we remand the case for proceedings in conformity with this opinion.' 352 U.S. 517, 77 S.Ct. 455. But in so ordering in that case, the United States Supreme Court was acting in the capacity of a court of general review. A like order, however, even as to a decision...