State ex rel. Emery, Bird, Thayer D.G. Co. v. Shain

• Decision Date: 25 October 1941
• Docket Number: No. 37333.,37333.
• Parties: STATE OF MISSOURI at the relation of EMERY, BIRD, THAYER DRY GOODS COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and WILLIAM E. KEMP, Judges of the Kansas City Court of Appeals, and AILEEN M. MASTIN.
• Court: Missouri Supreme Court

154 S.W.2d 775

STATE OF MISSOURI at the relation of EMERY, BIRD, THAYER DRY GOODS COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and WILLIAM E. KEMP, Judges of the Kansas City Court of Appeals, and AILEEN M. MASTIN.

No. 37333.

Supreme Court of Missouri.

Division Two, October 25, 1941.

Certiorari.

WRIT QUASHED.

Wright Conrad and Dick H. Woods for relator; Ryland, Stinson, Mag & Thomson of counsel.

(1) The Court of Appeals in affirming the judgment for the plaintiff in the case of Aileen M. Mastin v. Emery, Bird, Thayer Dry Goods Co., a corporation, now reported in 140 S.W. (2d) 720, has affirmed a judgment based on a verdict in which the jury was permitted to pass on the issue of notice by indulging in guess, speculation and conjecture, and the Court of Appeals in so doing has contravened the controlling decisions of this court. Coble v. St. Louis-San Francisco Ry. Co., 38 S.W. (2d) 1031; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W. (2d) 99; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W. (2d) 555; Williams v. Kansas City Term. Ry. Co., 288 Mo. 11, 231 S.W. 954; Conduitt v. Gas & Electric Co., 326 Mo. 133, 31 S.W. (2d) 21. (2) The opinion of the Court of Appeals, in affirming the judgment herein, has affirmed a jury verdict based on an inference upon an inference, in contravention of and in conflict with the controlling decisions of this court. Sexton v. Met. Street Ry. Co., 245 Mo. 254, 149 S.W. 21. (3) An opinion of the Court of Appeals will be quashed by the Supreme Court if the holding of the Court of Appeals contravenes the general principles of law announced in the controlling decisions of the Supreme Court. State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915.

Homer A. Cope, Cope & Hadsell and Walter A. Raymond for respondents.

(1) This being a certiorari proceeding, this court is necessarily concerned only with conflicts with opinions of this court. The burden is on the relator to point out that the opinion of respondent judges is in conflict with some opinion of this court on similar facts, or, that it announces some general principle of law which conflicts with an announcement of this court of a like nature. State ex rel. St. Louis-San Francisco Ry. Co. v. Haid, 327 Mo. 217, 37 S.W. (2d) 437, l.c. 438; State ex rel. Gatewood v. Trimble, 333 Mo. 207, 62 S.W. (2d) 756, l.c. 758; State ex rel. United Factories, Inc. v. Hostetter, 344 Mo. 386, 126 S.W. (2d) 1172, l.c. 1179. (2) Relator has pointed out no ruling in respondent Judges' opinion on a given state of facts, which is contrary to a controlling decision of this court on an equivalent or similar state of facts. (a) Such opinion does not conflict with any controlling opinion of this court holding a judgment based on equivalent or similar facts could not stand because based on guess, speculation, and conjecture. Cech v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W. (2d) 509; State ex rel. St. Charles v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Cole v. St. Louis-S.F. Ry. Co., 332 Mo. 999, 61 S.W. (2d) 344; State ex rel. Kansas City Pub. Serv. Co. v. Shain, 343 Mo. 1066, 124 S.W. (2d) 1097; State ex rel. Brosnahan v. Shain, 344 Mo. 404, 126 S.W. (2d) 1189; State ex rel. Trading Post Co. v. Shain, 342 Mo. 588, 116 S.W. (2d) 99; McKeighan v. Kline's, Inc., 339 Mo. 523, 98 S.W. (2d) 555; Gray v. Kurn, 137 S.W. (2d) 558; Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900; Arnold v. May Department Stores Co., 337 Mo. 727, 85 S.W. (2d) 748; Benton v. St. Louis, 248 Mo. 98, 110, 154 S.W. 473; Becker v. Aschen, 344 Mo. 1107, 131 S.W. (2d) 533. (b) Such opinion does not conflict with any controlling opinion of this court holding a judgment based on equivalent or similar facts could not stand because it based an inference on an inference. State ex rel. Mulcahy v. Hostetter, 139 S.W. (2d) 939; Wills v. Berberich's Delivery Co., 339 Mo. 856, 134 S.W. (2d) 125; Morris v. E.I. Du Pont De Nemour & Co., 341 Mo. 821, 109 S.W. (2d) 1222; Fox v. Mo. Pac. Ry. Co., 335 Mo. 984, 74 S.W. (2d) 608. (3) The opinion of the Court of Appeals herein does not contravene any general principle of law announced in the controlling decisions of this court. State ex rel. Kansas City So. Ry. v. Shain, 340 Mo. 1195, 105 S.W. (2d) 915; Harrison v. St. Louis-S.F. Ry. Co., 339 Mo. 821, 99 S.W. (2d) 841; Doyle v. St. Louis Merchants Bridge Term. Ry. Co., 326 Mo. 425, 31 S.W. (2d) 1010; Gray v. Kurn, 137 S.W. (2d) 558.

TIPTON, P.J.

This case comes to the writer on reassignment. It is certiorari to the Kansas City Court of Appeals. Our writ was invoked in a case decided by that court entitled Aileen Mastin v. Emery, Bird, Thayer Dry Goods Company, reported in 140 S.W. (2d) 720, wherein a judgment of $3000, obtained by plaintiff in the circuit court, was affirmed by the respondents. The plaintiff's action was for personal injuries. On November 3, 1938, the plaintiff and her daughter were shopping in relator's store, and decided to descend the stairway from the third floor to the floor below to the rest room. While going down these steps, the plaintiff was caused to trip and fall on account of a defective metal strip on the outside edge of the tread of one of the steps, thereby receiving severe personal injuries. Relator contends that the evidence is insufficient to show negligence on its part and the opinion of the respondents affirming the judgment of the trial court contravenes the controlling decision of this court.

[1] "`On a writ of certiorari to an appellate court, the determination of error, under our decisions, is limited to the finding of a conflict between the Court of Appeals' opinion and the latest ruling opinion of this court on the subject, either as to a general principle of law announced, or as to a ruling under a like, analogous, or similar state of facts. The purpose of certiorari is to secure uniformity in opinions and harmony in the law. [State ex rel. Vulgamott v. Trimble, 300 Mo. 92, 253 S.W. 1014.]'" [State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W. (2d) 420.]

On certiorari we are limited to the facts as found in the opinion by the Court of Appeals and to the issues presented to that court. [State ex rel. Silverforb v. Smith (Mo.), 43 S.W. (2d) 1054.]

[2] With these principles in mind, we will proceed to review the alleged conflicts. Respondents state the issue as follows:

"As to whether or not the testimony of the daughter, Eleanor Jean Mastin, presents an issue of fact as to whether or not the defendant (relator) knew, or by the exercise of due care could have known, of the defective condition of the nosing of the tenth step prior to the time plaintiff fell, presents the vital question from which must be determined the issue of directed verdict presented in defendant's point one."

Respondents quoted at length from the daughter's testimony. In substance, this testimony was to the effect that she went to her mother after she fell and then went back up the steps to pick up her gloves; she looked at the step and the metal strip had been bent up; it was torn and jagged along the top and there were several little torn places or nicks in it; they were darker than the rest of the metal; there was dirt between the edge of the step and the metal strip that was bent up; the metal strip was thin and looked like brass.

In ruling the cases, respondents said:

"The borderline of liability in respect to situations that present issue of notice presents difficulties. The Supreme Court of Missouri has declared that the issue of notice is raised if the case is one where different minds might reasonably draw different conclusions. [Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W. (2d) 58.]"

"The evidence, to the effect that a portion of the metal strip on the step was torn and jagged along the top, and there being dirt under the torn metal strip, and the metal strip where torn looked dirty, we conclude makes an...