State ex rel. and to Use of Brancato v. Trimble

• Citation: 18 S.W.2d 4,322 Mo. 318
• Parties: The State at Relation and to Use of Sam Brancato v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Decision Date: 27 March 1929
• Court: United States State Supreme Court of Missouri

18 S.W.2d 4

322 Mo. 318

The State at Relation and to Use of Sam Brancato v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

March 27, 1929

Rehearing Overruled May 25, 1929.

Opinion and judgment quashed.

Harding Murphy & Tucker for relator.

(1) The opinion of the Court of Appeals is contrary to the last and controlling opinions of this court, touching the following points: (a) That the petition stated a cause of action against relator; (b) That the res ipsa loquitur doctrine applied to relator, and (c) by overruling relator's motion to make petition definite and certain. McGrath v. Transit Co., 197 Mo. 97; Hartman v Ry. Co., 261 Mo. 279; Kirkpatrick v. St. Ry. Co., 211 Mo. 68; Orcutt v. Century Bldg. Co., 201 Mo. 424; Roscoe v. St. Ry., 202 Mo. 576; Fuchs v. St. Louis, 167 Mo. 645; State ex rel. v. Shelton, 249 Mo. 660; Price v. Ry. Co., 220 Mo. 435. (2) The ruling of the Court of Appeals is in conflict with the latest and controlling decisions of this court on the following points: (a) By holding that the petition stated a good cause of action for general negligence; (b) that it stated a good cause of action after verdict; and (c) that relator waived his objection to the overruling of his motion to make the petition definite and certain by answering, even though he preserved his exceptions in the term bill of exceptions thereafter made a part of the final bill. Kramer v. Power & Light Co., 311 Mo. 369; Hopkins v. Daues. 6 S.W. (2 Ed.) 893; Sidway v. Land & Live Stock Co., 163 Mo. 342; Mt. Vernon v. Hirsch Rolling Mills, 285 Mo. 669; Bailey v. Kansas City, 189 Mo. 503; Zasemowich v. Company (Mo.), 213 S.W. 799; Mallinckrodt v. Nemnich, 169 Mo. 388.

Jacobs & Henderson and Thomas E. Deacy for respondents.

(1) The opinion of the Court of Appeals is not contrary to the last and controlling opinions of this court touching the following points: (a) That the petition stated a cause of action against relator; (b) that the res ipsa loquitur doctrine applied to relator, or (c) by overruling relator's motion to make more definite and certain. Stauffer v. Railroad, 243 Mo. 305; State ex rel. Hopkins v. Daues, 6 S.W.2d 893; Kramer v. Power & Light Co., 311 Mo. 369; Porter v. Power Co., 277 S.W. 913; Clark v. Railroad, 127 Mo. 197; Price v. Met. St. Ry. Co., 220 Mo. 435; Anderson v. K. C. Rys. Co., 233 S.W. 203; Brown v. Railroad, 256 Mo. 522; Gibson v. Wells, 258 S.W. 2; Stauffer v. Met. St. Ry. Co., 243 Mo. 305; Olsen v. Citizens Ry. Co., 152 Mo. 426; Mayne v. K. C. Rys. Co., 229 S.W. 386; Smith v. Motorbus Co., 296 S.W. 456; Stegman v. Motorbus Co., 297 S.W. 189; Dougherty v. Railroad, 81 Mo. 325; Kilroy v. Railroad, 195 S.W. 522; Svast v. White, 5 S.W.2d 668; Allie v. Wall, 272 S.W. 999; Stroud v. Booth Storage Co., 285 S.W. 165; Thompson v. Railroad, 243 Mo. 336; Loftus v. Met. St. Ry. Co., 220 Mo. 470. (2) The ruling of the Court of Appeals is not in conflict with the latest and controlling decisions of this court: (a) By holding that the petition stated a good cause of action for general negligence; or (b) that it stated a good cause of action after verdict; or (c) that relator waived his objection to the overruling of his motion to make petition definite and certain by answering, even though he preserved his exception in the term bill of exceptions thereafter made a part of the final bill. State ex rel. Hopkins v. Daues, 6 S.W.2d 893; Kramer v. Power & Light Co., 311 Mo. 369; Porter v. Power Co., 277 S.W. 913; Price v. Met. St. Ry. Co., 220 Mo. 435; Anderson v. K. C. Rys. Co., 233 S.W. 203; Brown v. Railroad, 256 Mo. 522; Gibson v. Wells, 258 S.W. 2; Stauffer v. Met. St. Ry. Co., 243 Mo. 305; Olsen v. Citizens Ry. Co., 152 Mo. 426; Mayne v. K. C. Rys. Co., 229 S.W. 386; Smith v. Motorbus Co., 296 S.W. 456; Stegman v. Motorbus Co., 297 S.W. 189; Dougherty v. Railroad, 81 Mo. 325; Kilroy v. Railroad, 195 S.W. 522; Svast v. White, 5 S.W.2d 668; Allie v. Wall, 272 S.W. 999; Stroud v. Booth Storage Co., 285 S.W. 165; Jackson v. Johnson, 248 Mo. 680; Dakan v. Mercantile Co., 197 Mo. 238; Loftus v. Met. St. Ry. Co., 220 Mo. 470; Clark v. Railroad, 127 Mo. 197; Hansen v. Neal, 215 Mo. 256. (3) The Supreme Court on certiorari to quash opinion of Court of Appeals for conflict is limited to the facts and issues stated in the opinion, and judgments of the Court of Appeals are conclusive unless conflicting with prior controlling Supreme Court decisions on similar facts. State ex rel. Am. Mfg. Co. v. Reynolds, 194 S.W. 878; State ex rel. Basket & Box Co. v. Reynolds, 224 S.W. 401; State ex rel. Nat. Ammonia Co. v. Daues, 10 S.W.2d 931; State ex rel. Winters v. Trimble, 315 Mo. 1295; State ex rel. Bradley v. Trimble, 289 S.W. 922; State ex rel. Security Ins. Co. v. Trimble, 300 S.W. 812; State ex rel. Koenen v. Daues, 288 S.W. 14; State ex rel. Am. Express Co. v. Allen, 256 S.W. 1049; State ex rel. v. Cox, 274 S.W. 373; State ex rel. v. Allen, 312 Mo. 111; State ex rel. Indemnity Co. v. Daues, 285 S.W. 480; State ex rel. Cox v. Trimble, 279 S.W. 65; State ex rel. Vogt v. Reynolds, 295 Mo. 396.

OPINION

Gantt, J.

Relator seeks to have quashed the opinion of the Kansas City Court of Appeals in Eppstein v. Brancato (No. 15318). By invitation and as a guest of the defendant Brancato, the plaintiff was traveling in an automobile, owned and driven by said defendant, from Leavenworth, Kansas, to Kansas City, Missouri. Enroute the automobile collided with a bus of the Inter-State Stage Lines Co., moving in the same direction. Plaintiff was injured, and recovered judgment in the circuit court against Brancato and the Inter-State Stage Lines Co. The trial court sustained the motion of the Inter-State Stage Lines Co. for a new trial, and overruled the motion of Brancato for a new trial. He appealed to the Kansas City Court of Appeals, where the judgment was affirmed. In that court he contended his demurrer to the petition should have been sustained, for the reason the petition did not charge any act of negligence against him. The charging part of the petition follows:

. . . and when said automobile driven by said Brancato, and said motor bus operated by said defendant corporation, its agents, servants, and employees as aforesaid, reached a position parallel the one with the other upon said public highway, and while plaintiff was in the exercise of ordinary care and caution for her own safety, the defendant Brancato, and the defendant corporation, its agents, servants and employees, so negligently and carelessly operated their respective automobiles or motor vehicles as to operate them one against the other with great force and violence. . . .

"The carelessness and the negligence of the defendants consisted in the following, to-wit:

"2. The defendant, Sam Brancato, carelessly and negligently operated his said automobile or motor vehicle, which he was then and there driving and in which plaintiff was riding, as aforesaid, violently and forcibly upon and against the motor bus or motor vehicle belonging to the defendant, the Inter-State Stage Lines Company."

The Court of Appeals held the petition charged general negligence and was good after verdict. This ruling is challenged as being in conflict with Kramer v. Power & Light Co., 311 Mo. 369, 279 S.W. 43.

I. Relator insists the charge in the Kramer case and in the instant case are almost identical and that we held in the Kramer case the charge was "but the statement of a legal conclusion" and did not charge the defendant with negligence.

The Court of Appeals rules this contention against defendant Brancato, on the ground that the charges of negligence set forth in the petitions were not similar. It will not be necessary to determine if this ruling is correct, for the reason we did not rule in the Kramer case that the charge of negligence was insufficient to support a verdict. The case was reviewed in Division Two, and the opinion was written by Railey, C., who did so rule, but a majority of the judges of that division, in a concurring opinion by White, J., held the petition charged general negligence and was good after verdict. [State ex rel. Hopkins v. Daues, 6 S.W.2d 893.] The contention is overruled.

II. Defendant Brancato also moved to compel the plaintiff to make the petition more definite and certain. Upon the motion being overruled, the defendant answered and went to trial on the merits. The Court of Appeals ruled that by doing so the defect was waived. Brancato insists this ruling is in conflict with White's, J., concurring opinion in the Kramer case (l. c. 390), in which it was said:

"It is true the authorities are in conflict as to whether answering over after a motion directed at the petition is overruled, waives the defect. . . . It appears to me a harsh rule to hold that a defendant in such case would waive his right to claim an error where he made the point in the only way he could, and at the earliest moment he could."

By this statement Judge White expressed his view, but did not rule on the question.

The last opinion of this court on the question is recorded in Sperry v. Hurd, 267 Mo. l. c. 639, 185 S.W. 170, where we said:

"Plaintiffs in error are not now in a position to urge as error the action of the court in overruling their motion to make the petition more definite and certain. This point was waived when they answered over and went to trial upon the merits. [Sauter v. Leveridge, 103 Mo. 615; State ex rel. v. Bank, 160 Mo. 640; Dakan v. Chase & Son Mercantile Co., 197 Mo. 238; Ewing v. Vernon County, 216 Mo. 681.]

"In the main opinion in the case of Shohoney v Railroad, 223 Mo. 649, l. c. 673, an attempt was made to overrule the above cases on the point in question, but since the opinion as to that point did not receive...