State ex rel. Kansas City Pub. Serv. Co. v. Shain

• Citation: 124 S.W.2d 1097
• Decision Date: 21 February 1939
• Docket Number: No. 34824.,34824.
• Parties: STATE OF MISSOURI at the relation of KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and ROBERT M. REYNOLDS, Judges of the Kansas City Court of Appeals.
• Court: Missouri Supreme Court

124 S.W.2d 1097

STATE OF MISSOURI at the relation of KANSAS CITY PUBLIC SERVICE COMPANY, a Corporation, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and ROBERT M. REYNOLDS, Judges of the Kansas City Court of Appeals.

No. 34824.

Supreme Court of Missouri.

Division Two, February 21, 1939.

Certiorari.

WRIT QUASHED.

Charles L. Carr and Cooper, Neel, Kemp & Sutherland for relator.

(1) Respondent judges, in holding said plaintiff's Instruction 1 proper in a case submitted solely on the humanitarian doctrine, held contrary to recent and last controlling decisions of the Supreme Court of Missouri pointing out that our humanitarian doctrine is as puzzling to a jury as Einstein's theory (whatever that is); that the only proper defense in a case submitted solely on the humanitarian doctrine is to disprove one or more of the basic facts or issues on which said doctrine rests and the plaintiff likewise is confined to the proof and submission of such basic humanitarian facts and issues; that it is prejudicial error for a trial court not to submit instructions clearly defining the humanitarian issues and limiting the instructions strictly to said issues. Freeman v. Berberich, 332 Mo. 838, 60 S.W. (2d) 396; Millhouser v. K.C. Pub. Serv. Co., 331 Mo. 942, 55 S.W. (2d) 677. (2) Respondent judges, in holding plaintiff's Instruction 1 proper herein held contrary to recent and last controlling decisions of the Missouri Supreme Court holding that an instruction on the negligence of a third person (not a party to the suit, as here the Ford driver) has no place in a case submitted solely on the humanitarian doctrine and is prejudicially erroneous (where as here evidence of said third person's negligence is present in the case) as injecting a foreign issue resulting in the confusion of the jury. Millhouser v. K.C. Pub. Serv. Co., 331 Mo. 942, 55 S.W. (2d) 677. (3) Respondent judges, in their decision and opinion in ruling that defendant's assignment of error No. 14, contained in its motion for new trial, namely, that "court erred in modifying instruction lettered `G,' all over the objections and exceptions of defendant," is an insufficient assignment of error to review the action of the trial court in modifying said Instruction G, that is, in refusing said Instruction G as originally requested by the defendant, and in giving said Instruction G as modified by the court, held contrary to recent and last controlling decisions of the Supreme Court of Missouri, holding that assignments of error in a motion for new trial involving errors in instructions need only be assigned in the most general terms with respect to instructions in general, without designating same in particular or designating the particular error charged, said respondent judges in this respect entirely overlooking the fact that the assignment here involved is not limited to a mere border line general assignment but points out the particular Instruction G with respect to which error is assigned and likewise points out the error charged, namely, the modification of said Instruction G. Wampler v. A.T. & S.F. Ry. Co., 269 Mo. 484, 190 S.W. 913; State ex rel. United Rys. Co. v. Reynolds, 278 Mo. 557, 213 S.W. 783; State ex rel. North Kansas City Dev. Co. v. Ellison, 282 Mo. 663, 222 S.W. 783; Bobos v. Krey Packing Co., 317 Mo. 115, 296 S.W. 159; Doody v. California Woolen Mills Co., 216 S.W. 534.

Cowgill & Popham, John F. Cook and Louis Wagner for respondents.

(1) The ruling of the Kansas City Court of Appeals to the effect that plaintiff's Instruction 1, which told the jury that if they should find all of the facts and things set forth in said instruction that their verdict should be for the plaintiff, even though they should believe that he or the driver of the car in which he was riding were negligent and drunk, did not inject the issue of contributory negligence into the case; that it did not unduly single out and comment on the evidence, did not tell the jury that the court favored plaintiff's evidence; and that under the circumstances in the case at bar both reason and authority support the proposition that the court had the right to tell the jury that upon finding the facts hypothesized in the instruction, the plaintiff was entitled to a verdict, even though he was negligent and drunk, does not conflict with any controlling decision of this court. This case is here on certiorari and this court is interested only in actual conflict with its controlling decisions, and not whether the Court of Appeals erred in its application of the law to the facts or whether it erred in deciding the case as an original proposition. State ex rel. St. L.-S.F. Ry. Co. v. Haid, 37 S.W. (2d) 438; State ex rel. Gatewood v. Trimble, 62 S.W. (2d) 758. The opinion of the Court of Appeals is consistent with controlling opinions of this court. Millhouser v. K.C. Pub. Serv. Co., 55 S.W. (2d) 676, Id., 71 S.W. (2d) 163; Wholf v. K.C., C.C. & St. J. Ry. Co., 73 S.W. (2d) 195; Pence v. K.C. Laundry Serv. Co., 59 S.W. (2d) 638; Kleinlein v. Foskin, 13 S.W. (2d) 648; Wallace v. St. J. Light, H. & P. Co., 77 S.W. (2d) 1012; Estes v. Desnoyers Shoe Co., 56 S.W. 316; Freeman v. Berberich, 60 S.W. (2d) 395; Inman v. Freund Bread Co., 58 S.W. (2d) 477; State ex rel. Berberich v. Haid, 64 S.W. (2d) 677; Silliman v. Munger Laundry Co., 44 S.W. (2d) 159; Wolfson v. Cohen, 55 S.W. (2d) 680; Derrington v. K.C. So. Ry. Co., 40 S.W. (2d) 1074; Demaray v. M.-K.-T. Ry. Co., 50 S.W. (2d) 130; Steger v. Meehan, 63 S.W. (2d) 109; Morgan v. Wabash Ry. Co., 60 S.W. 195; Moran v. A.T. & S.F. Ry. Co., 48 S.W. (2d) 881; Grubbs v. K.C. Pub. Serv. Co., 45 S.W. (2d) 79; Dutcher v. Wabash Ry. Co., 145 S.W. 63; Spencer v. Quincy, O.K. & C. Ry. Co., 297 S.W. 353; Kinlen v. Met. St. Ry. Co., 115 S.W. 523; Sethman v. Union Depot Bridge & Term. Ry. Co, 218 S.W. 879; Benzel v. Anishanzlin, 297 S.W. 183; Gordon v. Postal Telegraph-Cable Co., 24 S.W. (2d) 648; Swinehart v. K.C. Ry. Co., 233 S.W. 63; Murphy v. Wabash, 128 S.W. 481; Vogt v. Union Ry. Co., 251 S.W. 418; Spencer v. St. Louis Transit Co., 121 S.W. 112; Schmitter v. United Ry. Co., 245 S.W. 632; Adams v. St. Louis Pub. Serv. Co., 32 S.W. (2d) 100; Martin v. Keifer, 95 S.W. (2d) 1214. (2) The ruling of the Court of Appeals that "defendant does not in its motion for new trial complain of the action of the court in refusing the instruction, nor of the action of the court in giving the instruction as modified. The only ground stated in the motion with respect to the instruction was that error was committed in modifying it. The modification could not of itself hurt the defendant... . Therefore, on the record before us, we cannot convict the trial court of error in refusing the instruction as requested, nor in giving it as modified," does not conflict with any controlling opinion of this court. This case is here on certiorari and this court is interested only in actual conflict with its controlling decisions, and not whether the Court of Appeals erred in its application of the law to the facts or whether it erred in deciding the case as an original proposition. State ex rel. St. L. & S.F. Ry. Co. v. Haid, 37 S.W. (2d) 438; State ex rel. Gatewood v. Trimble, 62 S.W. (2d) 758. The opinion of the Court of Appeals is consistent with all of the opinions of this court. Wampler v. A., T. & S.F. Ry. Co., 190 S.W. 912, and the cases therein relied upon by respondent and distinguished from the Wampler case by Judge GRAVES. Wilhite v. Armstrong, 43 S.W. (2d) 423; Hogan v. K.C. Pub. Serv. Co., 62 S.W. (2d) 856; Szuch v. Ni-Sun Lines Inc., 58 S.W. (2d) 474; Gentili v. Dimaria, 89 S.W. (2d) 96; Polski v. St. Louis, 264 Mo. 458, 175 S.W. 197; Carver v. Thornhill, 53 Mo. 286; Sweet v. Maupin, 65 Mo. 68; Maplegreen Co. v. Trust Co., 237 Mo. 363, 141 S.W. 621; State ex rel. v. Woods, 234 Mo. 25, 136 S.W. 339; Colin v. Moldenhuer 92 S.W. (2d) 602.

BOHLING, C.

This proceeding in certiorari by the Kansas City Public Service Company, a corporation, to test rulings of the Kansas City Court of Appeals in George King, respondent, v. Kansas City Public Service Company, appellant, decided February 17, 1936, and reported in 91 S.W. (2d) 89, reaches the writer upon reassignment.

The case arose out of a collision between an automobile in which plaintiff was riding and one of relator's street cars.

[1] I. Plaintiff's sole instruction predicating a recovery was based upon the humanitarian doctrine. Relator, not questioning here hat portion of the instruction hypothecating facts authorizing a recovery, says respondent judges erred in approving the "even though" or concluding portion of said instruction reading: "... and this is true even though you should also further believe that plaintiff, King, or the Ford driver was careless in getting into such peril, if here was such peril, and regardless of whether you believe the Ford river or plaintiff were sober or not." The issues bearing thereon are stated in the opinion of respondent judges [consult State ex rel. v. Daues (Banc), 297 S.W. 951, 953(3)]:

First. "The argument is that the instruction injected the issue of contributory negligence into the case, and that, as the case was one of negligence under the humanitarian doctrine, contributory negligence was not an issue." [91 S.W. (2d) l.c. 92(4).]

To sustain its contention of a conflict in that said "even though" clause erroneously injected the issue of contributory negligence into the case, relator relies upon the cases that may be found cited in Crews v. Kansas City Pub. Serv. Co., 341 Mo. 1090, 111 S.W. (2d) 54, 59(7), being, with one or two additions, the cases mentioned in the Court of Appeals' opinion at 91 S.W. (2d) l.c. 92. We shall not repeat the citations. Of said cases, relator places emphasis upon Schulz v. Smercina, 318 Mo. 486, 498(III, IV), 1 S.W. (2d) 113 118(5, 6, 7); Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 87-91, 85 S.W. (2d) 116, 121, 123(6); Wholf v. Kansas City, C.C....