State ex rel. Horspool v. Haid

• Citation: 40 S.W.2d 611,328 Mo. 327
• Parties: The State ex rel. Henry J. Horspool v. George F. Haid et al., Judges of St. Louis Court of Appeals
• Decision Date: 03 July 1931
• Court: United States State Supreme Court of Missouri

40 S.W.2d 611

328 Mo. 327

The State ex rel. Henry J. Horspool v. George F. Haid et al., Judges of St. Louis Court of Appeals

Supreme Court of Missouri

July 3, 1931

Certiorari to St. Louis Court of Appeals.

Record quashed.

Edward H. Robinson, A. E. L. Gardner and Allen, Moser & Marsalek for relator.

(1) In holding that the question of the liability of relator defendant in said cause of Forsythe v. Horspool, for injuries received by the plaintiff in said cause by reason of the giving way or falling of the platform of the scaffold in question, was one for the jury, despite the fact that said plaintiff, a carpenter, and a fellow-servant, another carpenter, constructed the platform of the scaffold (the only part that gave way) for their own use, and negligently constructed it by failing to nail the platform boards to the supporting lookouts, by reason of which, alone, it gave way respondents' opinion in said cause is in direct conflict with the following, among other, controlling decisions of this court holding that a master cannot be held liable either at common law or under the statute (Sec. 6802, R. S. 1919, Sec. 13338, R. S. 1929), by reason of the falling or giving way of a scaffold not furnished by him as a completed scaffold, and which falls or gives way because of the negligence of the injured servant or that of a fellow-servant, or their combined negligence, in constructing the same. Forbes v. Dunnavant, 198 Mo. 193; Williams v. Ransom, 234 Mo. 55; Guthrie v. Gillespie, 319 Mo. 1138; Van Bibber v. Swift & Co., 286 Mo. 339. (2) In holding that a jury could rightfully find relator, defendant in said cause of Forsythe v. Horspool, liable to the plaintiff in said cause (despite the negligence of said plaintiff in constructing the platform of said scaffold) because of the fact that bundles of shingles were placed on the middle part of this platform by "other employees" of relator, for the use of said plaintiff and the other carpenter, which shingles, it is claimed, combined with the weight of the two workmen, caused the platform to give way -- though there was no evidence (and respondents' opinion shows none) that relator or his foreman had any knowledge that the platform had been negligently constructed by leaving the platform boards loose on the lookouts, or had any reason to anticipate that such shingles would overburden the platform, respondents' opinion is directly in conflict not only with the authorities cited supra, but with the following, among other controlling decisions of this court holding that if an injury is one that could not reasonably have been anticipated as the sequence of an alleged act, such act is not in law the proximate cause thereof. Hunter v. Candy Co., 307 Mo. 670; State ex rel. v. Ellison, 271 Mo. 463; American Brewing Co. v. Talbot, 141 Mo. 674.

Campbell Allison, Joseph A. Falzone and Orval C. Sutter for respondents.

(1) Where the opinion refers to the pleadings, instructions or to documents in evidence, such pleading, instruction and document is as much a part of the opinion as if it had been fully set out in the opinion. State ex rel. Biscuit Co. v. Becker, 293 S.W. 783. (2) When the opinion, either in itself or by necessary inference therefrom, distinguishes the facts in the case from the facts in the case with which it is claimed to be in conflict, there is no conflict. State ex rel. Ry. v. Ellison, 263 Mo. 509. (3) This court is bound by the findings of facts in the opinion. Koenan v. Daues, 288 S.W. 14; Kilkenny v. Daues, 289 S.W. 550; Amusement Co. v. Trimble, 300 S.W. 1064. (4) "If there is substantial evidence upon which the verdict of the jury may be founded, counsel are wasting their time and the time of this court in urging a demurrer to the evidence on appeal to this court." Bechman v. Ry. Co., 310 Mo. 48, 274 S.W. 764.

OPINION

White, P. J.

Certiorari to the St. Louis Court of Appeals.

Samuel Jackson Forsythe recovered judgment against the relator, Henry J. Horspool, in the Circuit Court of the City of St. Louis for $ 3500. On appeal to the St. Louis Court of Appeals the judgment was affirmed. It is claimed by relator that the ruling of the Court of Appeals is in conflict with certain rulings of this court.

Forsythe was employed by Horspool as a carpenter in the construction of a dwelling house in the city of St. Louis and was injured by the collapse of a scaffold upon which he was working.

The opinion of the Court of Appeals sets out the allegations of the petition describing the manner in which the scaffold was constructed, alleging that it was made unsafe by being overloaded with shingles placed upon it by the defendant and thereby caused to fall. The opinion then states that the answer pleaded contributory negligence in that the plaintiff himself erected the scaffold and made it unsafe.

I. The relator claims that a conflict with the rulings of this court appears on the facts stated in the opinion.

Respondents filed a supplemental abstract of the record setting out all the pleadings filed by the parties in the circuit court, together with instructions which that court gave the jury, and in their brief refer to an alleged rule that when the instructions and documents in evidence are mentioned in an opinion of the Court of Appeals sent here on certiorari they become a part of the record and must be fully examined by us. They then argue that by the same token, when the opinion sets out part of the oral testimony upon which it is claimed the conflict arises, this court in the interest of justice should examine the whole of that testimony to determine whether there is a conflict with the rulings of this court.

Logically the respondents are in an unassailable position. There is no reason why this court should examine documentary evidence referred to in the opinion of the Court of Appeals and refuse to examine oral evidence. It is all written in the record presented to that court. There is no reason, if we must examine at length an instruction referred to in the opinion of the Court of Appeals, why we should not examine the evidence upon which the trial court saw fit to give that instruction. If we are compelled to examine a document produced in evidence in the trial court and referred to in the opinion of the Court of Appeals there is no reason why we should not, but every reason why we should, examine any other evidence before that court which might modify the effect of that document.

A writ of certiorari is not a writ of error. Its purpose is to preserve harmony in the laws as announced by the Court of Appeals and make them consistent with the rulings of this court. We have no authority to go beyond the opinion of the Court of Appeals for that. Logically we should confine our investigation to what the opinion of the Court of Appeals contains. But if we should go outside the opinion and examine part of the record upon which that ruling was based we cannot consistently refuse to consider other parts of the record which might or might not authorize such a ruling.

While logically respondents are right, legally their position cannot be maintained. The case upon which respondents rely, State ex rel. v. Becker, 293 S.W. 783, divided 4 to 3, shows that this court, mistaking the number of decisions for the weight of authority, maintains the position that we can jump half way across a bottomless chasm and yet hope to land safe on the other side.

The opinion in the Becker case refers to State ex rel. v. Reynolds, 286 Mo. 204, where that aerial limit is drawn. The opinion in the Reynolds case, l. c. 216, says that this court "will not go beyond the opinion [of the Court of Appeals] to ascertain the facts." The opinion then leaves us in doubt as to what is meant by the facts? The facts for us comprise the record before the Court of Appeals, the evidence documentary and oral, the instructions and the pleadings. Those are the facts. Then if we are limited to the opinion of the Court of Appeals to ascertain the facts we can only consider any of those things as the opinion recites them.

But the opinion in the Reynolds case then limits the rule as to the oral evidence, l. c. 217:

"The rule in the case cited [in relation to documents referred to in the opinion] has never been applied to authorize the consideration in this court, on certiorari, of testimony of witnesses upon which a Court of Appeals founds its statement of facts any further than such testimony appears in the opinion." (Our italics.)

And further, l. c. 221:

"The question before the Court of Appeals then was whether the proof conclusively showed deceased was guilty of such negligence as would bar his recovery. The question before us is whether that court's ruling that the facts it stated did not show contributory negligence as a matter of law conflicts with controlling decisions of this court."

The opinion in the Becker case, l. c. 786, also places a limit in saying that a document referred to by the Court of Appeals does not demand our consideration unless it be the subject-matter of a ruling by that court. That is true in reviewing cases appealed from the court.

However, respondents here are not complaining of a conflict. On the contrary they assert the strict correctness of their ruling. They ask us to examine the entire record on which they placed the ruling and thus assure us that they did not sufficiently fortify their position by what they said in their opinion. They have misgivings that the opinion does not sustain itself. We cannot allow them thus to disparage the quality of their work. Since relator confines his complaints to the face of the opinion we must allow it to speak for itself. It states that there were certain objections to instructions, and said:

"We refer to them but it is...