Schafer v. St. Louis & H. Ry. Co.

• Decision Date: 17 May 1898
• Citation: Schafer v. St. Louis & H. Ry. Co., 45 S.W. 1075, 144 Mo. 170 (Mo. 1898)
• Court: Missouri Supreme Court
• Parties: SCHAFER v. ST. LOUIS & H. RY. CO.

45 S.W. 1075

144 Mo. 170

SCHAFER v. ST. LOUIS & H. RY. CO.

Supreme Court of Missouri, Division No. 2.

May 17, 1898.

SUPREME COURT — JURISDICTION — CERTIFIED QUESTIONS.

The court of appeals cannot certify a case to the supreme court on the ground, which all the judges seem to have concurred in, that the unanimous decision rendered seemed opposed to a former decision of the supreme court, under section 6 of the amendment of the constitution (Rev. St. 1889, p. 88), providing therefor when the court of appeals shall render a decision which "a judge" shall deem contrary to a former decision of the supreme court; nor can the case be certified because the decision is deemed important, and the court of appeals are not fully satisfied as to the meaning of a former decision of the supreme court.

Case certified from St. Louis court of appeals.

Action by Alfred Schafer against the St. Louis & Hannibal Railway Company. There was a judgment for plaintiff, and defendant appealed to the court of appeals, which reversed the judgment, and certified the case to this court. Remanded.

Hostetter & Jones, for appellant. Norton & Avery and J. D. Barnett, for respondent.

GANTT, P. J.

This cause was commenced before a justice of the peace in Lincoln county, June 30, 1893, and a judgment obtained by the plaintiff, July 29, 1893. Thereupon an appeal was taken to the circuit court, and a trial de novo was had on November 18, 1893. Motions for new trial and in arrest of judgment were filed in due time, and were overruled November 14, 1894, and a bill of exceptions tendered and signed July 29, 1895. Appeal was taken to the St. Louis court of appeals, and transcript filed in that court August 13, 1895. At the October term, 1895, an opinion was rendered by the court of appeals reversing the case, February 5, 1896, and giving judgment accordingly; but at the same time it was ordered that the cause should be certified to this court, upon the ground that the decision of the St. Louis court of appeals "was seemingly opposed to the decision of the supreme court in Morris v. Railway Co., 58 Mo. 78," and because, in the opinion of the St. Louis court of appeals, this court, in Morris v. Railway Co., "did not have in mind the danger to trainmen which would result from cattle guards across the main and side tracks." The amount claimed in the petition in this case is only $300, and the judgment in the circuit court was for only $225, damages for the killing of two horses of plaintiff by a train of defendant, near its station at Moscow.

The question at once suggests itself whether this court, upon the foregoing facts, has jurisdiction of this appeal. Section 6 of the amendment of the constitution of this state adopted at the general election held on the Tuesday next following the first Monday in November, 1884 (Laws Mo. 1883, p. 215; Rev. St. Mo. 1889, p. 88), provides that, "when any one of said courts of appeals shall in any cause or proceeding render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals or of the supreme court, the said court of appeals must of its own motion, pending the same term and not afterwards, certify and transfer said cause or proceeding and the original transcript therein to the supreme court, and thereupon the supreme court must rehear and determine said cause or proceeding as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the supreme court on any question of law or equity shall in all cases be controlling authority in said courts of appeals." It is apparent from the opinion of the St. Louis court of appeals that their opinion in this case was unanimous. There was no such division among the judges of that court as was contemplated and anticipated by the amendment to the constitution. Neither do we think it doubtful from the language of the opinion that all the members of that court concurred in the opinion that their own judgment was in conflict with the opinion of this court, written by Judge Vories, in Morris v. Railway Co., 58 Mo. 78; and there can be very little doubt that all the judges of the court of appeals were of the opinion that this court, in Morris v. Railway Co., had overlooked an important fact in arriving at its decision in that case, and hence reached an erroneous conclusion. If this be true, — and we think their opinion is hardly susceptible of a different construction, — then the cause is sent here with a view to have this court recede from the doctrine it laid down in that case. With all due respect to our brethren of that co...