State ex rel. Kansas City Public Service Co. v. Shain

• Decision Date: 12 November 1942
• Docket Number: 38066
• Citation: 165 S.W.2d 428,350 Mo. 316
• Parties: State of Missouri at the relation of Kansas City Public Service Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals
• Court: Missouri Supreme Court

165 S.W.2d 428

350 Mo. 316

State of Missouri at the relation of Kansas City Public Service Company, a Corporation, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals

No. 38066

Supreme Court of Missouri

November 12, 1942

Opinion of Court of Appeals quashed in part.

Charles L. Carr and Watson, Ess, Groner, Barnett & Whittaker for relator.

(1) Respondent's instructions cast too great a burden upon appellant and conflict with controlling decisions of the Supreme Court. Oesterreicher v. Grupp, 119 S.W.2d 307; Nagy v. St. Louis Car Co., 37 S.W.2d 513; Hall v. Mfgs' Coal & Coke Co., 260 Mo. 351; Smith v. Southern Illinois & Missouri Bridge Co., 326 Mo. 109; State ex rel. Snider v. Shain, 345 Mo 950, 137 S.W.2d 527; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Connole v. East St. Louis & S. Ry. Co., 340 Mo. 690, 102 S.W.2d 581; State ex rel Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722; Dodson v. Gate City Oil Co., 338 Mo. 183 88 S.W.2d 866; Oglesby v. St. Louis-S. F. Ry. Co., 318 Mo. 79, 1 S.W.2d 172; Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 812. (2) The evidence relied on by respondents and set forth in their opinion to support the submission of permanent injuries is insufficient to support such submission. In holding said evidence sufficient to support the submission of permanent injuries, respondents held contrary to last controlling decisions of this court. Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Weiner v. St. Louis Public Serv. Co., 87 S.W.2d 191; Lebrecht v. United Rys. Co. of St. Louis, 237 S.W. 112. (3) Respondents, in ruling that the evidence in this case with respect to plaintiff's injuries set forth in respondent's opinion -- internal injuries -- is of such a nature as to make the permanency apparent to a person of ordinary intelligence -- a layman -- demonstrates its own error and such ruling is contrary to the very controlling decision of this court relied on by respondents in their opinion and is contrary to the other last controlling decisions of this court referred to under (2) supra. Clark v. Mississippi River & Bonne Terre Ry. Co., 324 Mo. 406, 23 S.W.2d 174; See also authorities cited under (2), supra. (4) Under controlling decisions of this court where a defendant complains that an element of damage (permanent injuries here) is improperly included in a plaintiff's instruction (plaintiff's Instruction 5 here) for the reason that there is no substantial evidence upon which to base such submission, such point will be reviewed by the upper court without the necessity of a separate assignment of error directly charging that the verdict is excessive, all contrary to the hybrid opinion of the St. Louis Court of Appeals in the case of Higgins v. St. Louis R. Assn., 221 Mo.App. 837, 97 S.W.2d 892, at first relied on by respondents in their original opinion, but which decision, while still cited by respondents in their modified opinion, is not made the basis of respondents' opinion with respect to plaintiff's Instruction 5. Last controlling decisions of this court contrary to the decision of the St. Louis Court of Appeals in said Higgins case are: Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Derschow v. St. Louis Public Serv. Co., 339 Mo. 63, 95 S.W.2d 1173; Weiner v. St. Louis Public Serv. Co., 87 S.W.2d 191; Svehla v. Taxi Owners Assn., Inc., 157 S.W.2d 225.

Henry L. Jost and Roger C. Slaughter for respondent Judges and for plaintiff McEntee.

(1) Plaintiff's given Instruction 1 was properly given because: (a) It correctly states the ordinance duty of defendant's motorman in respect to his management and operation of defendant's street car, and his plain duty under the terms of the ordinance to immediately bring his car to a stop on the approach of a fire department vehicle with siren audibly warning of its approach. Raymore v. K. C Pub. Serv. Co., 141 S.W.2d 103; Duffy v. K. C. Rys. Co., 217 S.W. 883; Hogan v. Fleming, 218 Mo.App. 172, affirmed 294 S.W. 404, 317 Mo. 524. (b) It correctly instructed the jury that plaintiff driving a fire department automobile in the performance of his duties was entitled to rely on said ordinance, and that it would be observed and obeyed (authorities next, supra). (c) It did not call for a verdict and must be reckoned and construed along with other given instructions for both plaintiff and defendant. (d) The ordinance imposing on defendant's motorman the duty to exercise the highest degree of care in the operation of defendant's street car around and about the approach of a fire department vehicle was valid (authorities under subdivision (a) supra, and agreed to by defendant's given Instruction F.) (2) Plaintiff's given Instruction 2 defining in detail, under the applicable evidence, that a breach of duty imposed by the ordinance on defendant's motorman, if found by the jury to be a fact, was negligence is a proper declaration of the law particularly so when considered along with all the other instructions given at the request of both parties, and in particular in consideration of defendant's given Instruction F. (3) Plaintiff's given Instruction 3 that if the jury found defendant negligent as defined in plaintiff's Instruction 2, and under such negligence, if any, directly injured the plaintiff, if it did, that plaintiff was then entitled to recover notwithstanding that the negligence of another may have combined and concurred with defendant's negligence, if any, to produce the injuries, if any, was proper. Robison v. Floesch Const. Co., 242 S.W. 421; Meadows v. Wabash Ry. Co., 273 S.W. 130, 220 Mo.App. 165; Ballard v. K. C. P. & L. Co., 221 Mo.App. 1116, 298 S.W. 131. (4) No single instruction given to the jury is to be determined and ruled solely by itself, but must be taken together with all the other instructions in order to determine whether it be free from error. This, of course, has become academic law in this State and does not warrant citations. Childers v. Ins. Co., 37 S.W.2d 490; Bales v. K. C. Pub. Serv. Co., 328 Mo. 171, 40 S.W.2d 665; Haynie v. Jones, 233 Mo.App. 948, 127 S.W.2d 105; Schroeder v. Rawlings, 155 S.W.2d 189. (a) Defendant's given Instruction F is but the complement to all of plaintiff's given instructions and defendant by that given instruction has clarified and made certain any uncertainty or ambiguity, if any existed, in any of the other instructions, Williams v. Guyot, 126 S.W.2d 1137, 344 Mo. 372; Hiatt Inv. Co. v. Buehler, 16 S.W.2d 219, 225 Mo.App. 151. (b) In considering these instructions collectively and as a whole, it should be borne in mind that defendant had testimony that its motorman complied with the ordinance mandate and did bring his car to a complete standstill, but that this testimony is sharply disputed by the plaintiff and other witnesses. This, of course, presented to the jury the credibility of the witnesses and the jury preferred not to believe the defendant's witness, but to believe those produced by plaintiff on this point. Reardon v. St. L. & S. F. Ry. Co., 215 Mo. 105. (5) The question whether plaintiff's injuries were permanent or temporary was properly submitted under the pleadings and the evidence to the jury by plaintiff's given Instruction 5. Chapman v. K. C. Rys. Co., 217 S.W. 623; Wilkerson v. Met. St. Ry., 126 Mo.App. 613; Clark v. Rys. Co., 324 Mo. 406, adopting ruling in Wilbur v. Ry. Co., 110 Mo.App. 689. (a) Moreover defendant did not assign error on appeal that the verdict was excessive and must therefore be held to have abandoned that prior complaint in its motion for a new trial. Higgins v. St. L. R. Assn., 231 Mo.App. 837, 97 S.W.2d 892; Henry v. Ill. Cent. R. Co., 3 S.W.2d 1004, 319 Mo. 432. (6) In certiorari to a Court of Appeals based on an alleged conflict with the last and controlling opinion of the Supreme Court, this court will go to the opinion of the Court of Appeals for the facts, and not elsewhere. State ex rel. Greer v. Cox, 274 S.W. 373; State ex rel. Frisco R. v. Reynolds, 289 Mo. 479, 233 S.W. 219; State ex rel. First Natl. Bank v. Hughes, 346 Mo. 938, 144 S.W.2d 84. The right of the Court of Appeals to ascertain and declare the facts, primary and inferential, and the ultimate fact conclusions arrived at by it, upon which it bases its opinion, is within the exclusive province of that court, and will be taken as conclusive in the Supreme Court on a proceeding in certiorari. State ex rel. C. & A. R. Co. v. Allen, 291 Mo. 206, 236 S.W. 868; State ex rel. Amusement Co. v. Trimble, 318 Mo. 274, 300 S.W. 1064. The opinion statement that plaintiff's "injuries were of such nature as to make the permanency apparent to a person of ordinary intelligence," and therefore submissible to the jury by plaintiff's Instruction 5, as to its finding as to whether such injuries were temporary or permanent, is a fact statement on the quoted evidence is conclusive and not reviewable here. State ex rel. Fitchner v. Head, 324 Mo. 130, 22 S.W.2d 1045. It is the prerogative of the Court of Appeals to decide a case as it sees proper provided its ruling is not in conflict with a controlling decision of the Supreme Court, this court having held that the Court of Appeals has jurisdiction to decide wrong as well as to decide right. State ex rel. v. Ellison, 216 S.W. 967; State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694. The Supreme Court will not quash an opinion of the Court of Appeals until the relator has shown a definite, clear and unmistakable conflict as to a controlling and a governing rule of law between the instant opinion and a controlling decision of this court, ...