State ex rel. Hopkins v. Daues

• Citation: 6 S.W.2d 893,319 Mo. 733
• Decision Date: 09 April 1928
• Docket Number: 28323
• Parties: The State ex rel. Wallace Hopkins v. Charles H. Daues et al., Judges of St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

6 S.W.2d 893

319 Mo. 733

The State ex rel. Wallace Hopkins v. Charles H. Daues et al., Judges of St. Louis Court of Appeals

No. 28323

Supreme Court of Missouri

April 9, 1928

Motion for Rehearing Overruled May 18, 1928.

Record quashed.

Louis J. Robinson and Earl M. Pirkey for relator.

A general plea of negligence in the petition, although it would be adjudged bad on demurrer before answer or on a motion to make definite and certain, is good after answer. Geninazza v. Leonori Auction Co., 252 S.W. 419; Ehrlich v. Mittelberg, 252 S.W. 676; Sec. 1550, R. S. 1919.

Watts & Gentry and Arnot L. Sheppard for respondent.

(1) The cases and the section of the statute cited by relator have no application in this proceeding. The two cases cited are neither the latest nor the controlling decisions of this court on the questions here involved, and the statute has no application whatever. State ex rel. v. Davis, 284 S.W. 467; Swift v. Fire Ins. Co., 279 Mo. 606. (2) To warrant this court in quashing an opinion of one of the courts of appeals there must appear on the face of the opinion sought to be quashed a conflict between the holding in such opinion and the latest and controlling decision or decisions of this court. State ex rel. Lehrack v Trimble, 308 Mo. 597; State ex rel. Tummons v Cox, 313 Mo. 672; State ex rel. Packing Co. v Reynolds, 287 Mo. 697; State ex rel. Reynolds, 262 S.W. 579; State ex rel. v. Robertson, 262 Mo. 613. (4) If it be conceded, which it is not, that respondents have misapplied the rule announced by this court in the latest and controlling decision or decisions, such misapplication could not constitute error cognizable in this proceeding, for the reason that an erroneous application of a doctrine of law announced by this court does not constitute a conflict between the decision or decisions of this court and the opinion of respondents under consideration, but is merely an error in applying the doctrine announced by this court and recognized by respondents. As this court has said in several cases, the courts of appeals of this State have as much right to make mistakes as has this court. State ex rel. v. Reynolds, 233 S.W. 485.

Louis J. Robinson and Earl M. Pirkey for relator in reply.

Respondents in their briefs do not offer anything to show that the language used in the Geninazza case is not squarely in conflict with the decision of the Court of Appeals, but they say that it is not the opinion of all of the judges. This is a mistake. The opinion written by Judge Higbee was adopted by Court en Banc, and but one judge dissented. While some of the judges had views on some of the paragraphs different from other judges, the entire opinion was adopted by the court by six judges, and but one judge dissented. The opinion was promulgated as the opinion of the court, and it is therefore the law. The entire opinion undoubtedly is the law, otherwise Judge Higbee would not have so written it. The law laid down in that case is: "That a general plea of negligence, whether in the petition or answer, is sufficient without specifying the particular acts, unless objected to by motion or otherwise before trial." And such has been the settled law for many years. Conrad v. De Montcourt, 138 Mo. 325; Schneider v. Railroad, 75 Mo. 295; LeMay v. Railroad, 105 Mo. 361; Morgan v. Mulhall, 214 Mo. 457; Collinsworth v. Zinc & Co., 260 Mo. 703.

Blair, J. All concur, except Graves, J., absent.

OPINION

BLAIR

This is an original proceeding in certiorari, whereby relator seeks to quash the opinion of the St. Louis Court of Appeals in the case of Wallace Hopkins v. American Car & Foundry Company, decided by respondents on June 7, 1927, because of alleged conflict between said opinion and controlling decisions of this court. Our writ issued and respondents have certified up the record before them. The case has been briefed and argued and thus is before us for decision.

It appears from the opinion of respondents that relator as plaintiff filed his petition in the Circuit Court of the City of St. Louis, praying damages because of injuries sustained by him through alleged negligence of the defendant. He recovered judgment for $ 1750. After moving unsuccessfully for a new trial, defendant appealed. Respondents reversed the judgment of the trial court and remanded the cause for a new trial.

The facts in the case are not involved in this proceeding. It suffices to say that the evidence tended to prove that relator was injured by the collapsing of a pile of pieces of steel, which were piled in an insecure manner by another employee, under the direction of defendant's foreman. Respondents held that a case was made for the jury on the facts in evidence. They held, however, that the petition, though unchallenged until after verdict, alleged mere legal conclusions as to the negligence of defendant and did not allege the facts showing such negligence, and that the petition was so fatally defective and insufficient for that reason that it could be attacked after verdict for the first time.

Respondents' opinion quoted the petition and stated the issues in the circuit court as follows:

"The place where plaintiff was so working was not reasonably safe for him by reason of the fact that said pile was insecure and there was probable danger of it falling on and injuring plaintiff, and defendant knew, or by the exercise of ordinary care would have known that said pile was insecure, and of the danger of injury to plaintiff therefrom before plaintiff was injured, as hereinafter mentioned, and in time to have, by the exercise of ordinary care, remedied said condition before plaintiff was injured as aforesaid and thereby averted the injuries to plaintiff, but defendant negligently failed to do so, and negligently piled said pile in an insecure manner; and after defendant knew, or by the exercise of ordinary care would have known, that said pile was insecure, and of the danger of injury to plaintiff therefrom, defendant negligently required plaintiff to be and work near said pile, all without protection or notice of any kind to him (italics ours)" (respondents').

"The answer is a general denial.

"Appellant's assignment of errors are to the effect, first, that the court erred in refusing the demurrers requested by appellant at the close of plaintiff's case, and again at the close of the whole case, and for the reason that the petition wholly failed to state facts sufficient to constitute a cause of action, and because the undisputed evidence shows that the proximate cause of the falling of the pile of iron was either conjectural or was the result of the act of a fellow-servant. And under the latter assignment appellant's counsel say in their brief: 'Frankly, appellant considers that the evidence showed that the proximate cause was the negligence of a fellow-servant.'"

Omitting the customary marks, we quote from respondents' opinion as follows:

But a more difficult question arises, and that is as to the petition itself. We have set out above the charge of negligence in the petition. Does same allege facts sufficient to charge an unsafe place to work? In determining the sufficiency of this petition it is insisted by appellant that two cases of the Supreme Court, one from each division, squarely hold the petition bad. The respondent denies this and relies on a case from that court en banc. We will lay these cases side by side to determine the effect of these decisions as we understand them. Of course, if the case en banc is decisive, we must follow it as against the divisional opinions. [State ex rel. v. Reynolds, 213 S.W. 782.]

In the case of Sabol v. Cooperage Co., 282 S.W. 425, decided by the Supreme Court, Division One, in October, 1925, and in which a motion to transfer to Court en Banc was overruled, the court had under review a petition drawn by the same counsel as appear for plaintiff in this case and in which the language of the petition is almost exactly as here, except as to the portion italicized by us. The petition there charged that the place at which plaintiff was working was not reasonably safe "by reason of said pile of material being insecure so that there was probable danger of it falling on and injuring plaintiff, and that defendant knew, or by the exercise of ordinary care would have known, that said pile was as aforesaid insecure and there was probable danger of it falling on and injuring plaintiff, etc."

There, too, there was a general denial, and there, as here, appellant assigned error in denying a directed verdict on the ground as here, that the petition did not state a cause of action. There the court said of the petition:

"Reference to plaintiff's petition herein discloses that the gravamen of the charge of negligence therein stated (whether it be termed a general or specific allegation of negligence) in that:

"'The place where plaintiff was working was not reasonably safe for said work plaintiff was as aforesaid engaged in by reason of said pile of material being insecure so that there was probable danger of it falling on and injuring plaintiff, and defendant knew or by the exercise of ordinary care would have known that said pile was as aforesaid insecure and there was probable danger of it falling on and injuring plaintiff . . . in time to have by the exercise of ordinary care remedied said condition before plaintiff was injured, but it negligently failed to do so, and . . . defendant negligently required plaintiff to work and be at and about said pile, all without protection or notice of any kind to him.'

"The word 'insecure' is defined as meaning 'unsafe' and therefore 'dangerous.' [Century and Webster's Dictionaries.] A petition containing like or similar allegations was considered by Division Two of ...