State ex rel. Missouri Electric Power Co. v. Allen

• Citation: 100 S.W.2d 868,340 Mo. 44
• Decision Date: 14 December 1936
• Docket Number: 34752
• Parties: State of Missouri at the Relation of Missouri Electric Power Company, a Corporation, Relator, v. Perry T. Allen, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

100 S.W.2d 868

340 Mo. 44

State of Missouri at the Relation of Missouri Electric Power Company, a Corporation, Relator, v. Perry T. Allen, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals

No. 34752

Supreme Court of Missouri

December 14, 1936

Writ quashed.

Henson & Woody for relator.

(1) Because the case was tried by both parties in the trial court and in the Court of Appeals, upon the theory that the constitutionality of the statutes was involved. 3 C. J. 718 sec. 618; Cameron Trust Co. v. Liebrant, 83 S.W.2d 234; Cook v. Sears Roebuck, 71 S.W.2d 73. (a) Because under the law no judgment could have been rendered for plaintiff in the trial court without the court holding that the above statutes were unconstitutional. This being true, the constitutional question is in the case, regardless of what relator may have done, or failed to do, or what the Court of Appeals may have held. Schildnecht v Joplin, 327 Mo. 126, 35 S.W.2d 35; Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, 18 S.W.2d 441; State ex rel. v. Nolte, 315 Mo. 84, 285 S.W. 501; State ex rel. v. Smith, 177 Mo. 69. (2) Sections 7950 to 7956, both inclusive, of the Revised Statutes of 1929, are constitutional and applicable. (a) The title of the Act of April 10, 1917, Laws 1917, page 479, enacting the above sections, does not violate Section 28 of Article IV of the Constitution of Missouri. State v. Miller, 45 Mo 495; State v. Brodman and Essex, 228 Mo. 25; State v. Tallo, 308 Mo. 584, 274 S.W. 466; State ex rel. v. Buckner, 308 Mo. 390; Blind v Brockman, 321 Mo. 58, 12 S.W.2d 742; State ex rel. v. Knight, 321 Mo. 1241, 12 S.W.2d 767; State ex rel. v. Terte, 324 Mo. 402, 23 S.W.2d 120; State v. Ward, 328 Mo. 658, 40 S.W.2d 1074. (b) The proviso contained in Section 7950, being repugnant to the body of the act, must give way, and the body of the act be given effect. Gist v. Construction Co., 224 Mo. 388; City of Seattle v. Rothweiler, 172 P. 825; Roseberry v. Norsworthy, 135 Miss. 845, 101 So. 514; Nichol v. Board of Education, 211 N.Y.S. 749; Dunn v. Bryan, 299 P. 253 State v. Robinson, 121 P. 851; 26 Am. & Eng. Ency. Law (2 Ed.) 681; State ex rel. v. Gideon, 273 Mo. 79, 179 S.W. 948; 59 C. J. 99, sec. 596; 49 C. J. 1000; State ex rel. v. Reynolds, 287 Mo. 169, 229 S.W. 1057; State v. Roach, 258 Mo. 541; Wilkinson v. Thom, 194 Mo.App. 173, 185 S.W. 522. (c) Sections 7954 and 7956 do not violate Subsection 32 of Section 53 of Article IV of the Constitution of Missouri. Hammon v. Central Coal & Coke Co., 156 Mo. 232; State v. Whitaker, 160 Mo. 59; Powell v. Sherwood, 162 Mo. 605; St. Louis v. De Lassus, 205 Mo. 578; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Bishop, 128 Mo. 373; Star Square Auto Supply Co. v. Gerk, 325 Mo. 968, 30 S.W.2d 447. (3) Orville Butler, in handling, molesting and interfering with the electric wires of defendant, was violating the law, and his act in violating the law directly caused his death. This being true, plaintiff, his administrator, cannot recover damages for Butler's death, and defendant's demurrers should have been sustained. 45 C. J. 968; Weller v. Railroad Co., 120 Mo. 636; Williams v. St. Joseph, 166 Mo.App. 299; Hawn v. Kansas G. & El. Co., 252 P. 245; Cupples Merc. Co. v. Bow, 32 Idaho 774, 189 P. 48; Fisher v. Railroad Co., 177 Iowa 406, 157 N.W. 860; Herres v. Waterloo, 144 Iowa 374, 86 N.W. 306; Westover v. Railroad Co., 180 Mich. 373, 147 N.W. 630; Martin v. Herzog, 126 N.E. 814; Chesrown v. Bevier, 128 N.E. 94; Cincinnati, etc., Railroad v. Ford, 139 Tenn. 291, 202 S.W. 72; Schawe v. Lydnedecker, 269 S.W. 864; So. Ry. Co. v. Rice's Admr., 115 Va. 235, 78 S.E. 592; M., K. & T. Railroad Co. v. Roberts, 46 S.W. 270; Little v. So. Ry. Co., 120 Ga. 347, 47 S.E. 953; Yano v. Stott Briquet Co., 184 Wis. 492, 199 N.W. 48; Kelly v. Brewing Co., 140 Minn. 371, 168 N.W. 131; 29 Cyc. 525; Harris v. Hatfield, 78 Ill. 298; 38 Cyc. 529; Sheehan v. Boston, 171 Mass. 296, 50 N.E. 543; Arey v. Newton, 148 Mass. 598, 20 N.E. 327; Brouck v. Holyhoke, 167 Mass. 258, 45 N.E. 732; Bourne v. Whitman, 209 Mass. 155, 95 N.E. 404.

Clyde H. Snider for respondents.

(1) The Supreme Court on certiorari can only quash or refuse to quash the opinion of the Court of Appeals, and will not review the case on its merits. State ex rel. Ely & Walker v. Cox, 73 S.W.2d 747; State ex rel. Brenner v. Trimble, 32 S.W.2d 762; State ex rel. Met. v. Ellison, 224 S.W. 822; State ex rel. Long v. Ellison, 199 S.W. 987. The only issues properly in this certiorari proceeding are raised by the grounds assigned in relator's application for quashal of the opinion. (a) Is a constitutional construction involved in the case so as to confer jurisdiction on this court? And does the decision that no such construction is involved conflict with a controlling decision of this court? (b) Does the opinion of the appellate court conflict with prior controlling decisions of this court holding that one whose violation of law directly contributes to his injury cannot recover? Said grounds so assigned do not comply with Rule 34 of this court, because they do not show wherein and in what manner the alleged conflicting rule arose. (2) The ruling of the Springfield Court of Appeals that no constitutional construction of the statute was necessary to the determination of the case is correct, because (1) said statute did not apply to the facts of this case, and (2) deceased's violation, if any, of said statute did not directly contribute to his injury as a matter of law on demurrer. Said ruling does not conflict with any decision of this court. (a) The mere fact that respondent below raised a question of constitutional construction does not involve such question in the case so as to confer jurisdiction on this court. Syz v. Milk Wagon Drivers' Union, 18 S.W.2d 445; Supreme Lodge v. Paramount, 17 S.W.2d 327. (b) The only means by which a constitutional construction can become involved in a case in order to bring the appeal within the jurisdiction of the Supreme Court are: A constitutional construction was essential to the determination of the case, or the protection of the Constitution was expressly invoked, was denied by the trial court, and its action in that behalf excepted to, and saved for review in some appropriate manner by the losing party. State ex rel. Kansas City Loan Co. v. Smith, 176 Mo. 48. (c) The decision of respondents that said statute did not apply even if wrong gives this court no right to interfere therewith on certiorari unless it conflicts with some prior controlling decision of this court. Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072; State ex rel. Harrington v. Trimble, 31 S.W.2d 785; State ex rel. Tummons v. Cox, 313 Mo. 672, 282 S.W. 694; State ex rel. Brotherhood, etc., v. Reynolds, 229 S.W. 1057; State ex rel. Am. Surety Co. v. Haid, 30 S.W.2d 103.

OPINION

Hays, J.

In this proceeding, which has recently come to the writer on reassignment, relator seeks by certiorari to quash the opinion of the Springfield Court of Appeals rendered in the case of Dr. J. C. B. Davis, Administrator of the Estate of Orville Butler, deceased, respondent, v. Missouri Electric Power Company, a corporation, appellant (relator here), reported in 88 S.W.2d 217.

The relator urges that the respondent judges had no jurisdiction to determine this cause because the constitutionality of Sections 7950 to 7956, both inclusive, Revised Statutes 1929, was directly involved. Said sections, referred to in its answer, constitute one act of the General Assembly of 1917, and appear at page 479 of the Session Acts of 1917.

As appears from respondents' opinion, the suit grew out of the death of Orville Butler, caused by shock from electricity which came from a high-tension wire of the relator, carrying 22,000 volts. The deceased was employed as a laborer by the State Highway Commission. He was assisting in moving a tool shed of the Highway Commission within the corporate limits of Mountain View in Howell County, said shed being loaded upon an automobile trailer and being moved along and off State Highway No. 60, in that city.

Butler met his death while on the roof of the shed. Just prior to receiving the shock that killed him, he had with a stick lifted a low-tension wire of the relator over the roof of the shed, while astride same, and attempted to step over the low-tension wire when he was killed by a current that leaped or arced from said uninsulated wire. Said low-tension wire was a few feet beneath the high-tension wires. This occurred just as the building was being moved under the wires and to its new location nearby.

The basis of recovery was that defendant allowed its high-tension wires to remain uninsulated whereby deceased received the electric shock that killed him.

The defendant answered by a general denial and a plea of contributory negligence, with which were coupled special pleas to the effect (1) that neither deceased, nor any one else, had filed application for a permit, or had received a permit, from the county clerk to move the building along and across said highway, as required by Section 7951, Revised Statutes 1929 (Mo. Stat. Ann., p. 6801); (2) that defendant had neither notice nor knowledge that deceased and others would move or were moving said building under its wires or were interfering or molesting the same; (3) deceased was not experienced in handling electric wires and was not such a person as required by Section 7953, Revised Statutes 1929 (Mo. Stat. Ann., p. 6801), to handle or work in close proximity to such wires then and there existing; (4) that deceased, in moving and molesting said wires, was violating the special provisions of Section 7954, Revised Statutes 1929 (Mo. Stat. Ann., p. 6802), and was committing a misdemeanor under Section 7956, ...