State ex rel. National Newspapers' Ass'n v. Ellison

• Decision Date: 02 April 1915
• Docket Number: No. 18394.,18394.
• Citation: 176 S.W. 11
• Parties: STATE ex rel. NATIONAL NEWSPAPERS' ASS'N v. ELLISON et al., Judges.
• Court: Missouri Supreme Court

176 S.W. 11

STATE ex rel. NATIONAL NEWSPAPERS' ASS'N v. ELLISON et al., Judges.

No. 18394.

Supreme Court of Missouri.

April 2, 1915.

Rehearing Denied May 3, 1915.

In Banc. Original certiorari proceeding by the State, on relation of the National Newspapers' Association, against James Ellison and others, Judges of the Kansas City Court of Appeals. Judgment of the Court of Appeals quashed.

Frank M. Lowe, of Kansas City, for relator. Edward P. Garnett and Russell Garnett, both of Kansas City, for respondents.

GRAVES, P. J.

Original proceeding by writ of certiorari against the judges of the Kansas City Court of Appeals. In obedience to our writ, their record has been certified to this court. The question, therefore, is: Shall we quash their record, or shall we quash our writ as having been improvidently issued?

The case has drawn itself within a very narrow compass. David Kinney sued the relator in our case, National Newspapers' Association, a corporation, publishing the Kansas City Post, for damages for personal injuries. This suit was brought in the circuit court a Jackson county, and, upon a trial there, verdict and judgment was found for plaintiff. Upon a motion for new trial, this verdict and judgment was set aside by the trial court on the ground that it had committed error in giving an instruction for the plaintiff. From this order the plaintiff appealed to the Kansas City Court of Appeals, which court reversed and remanded the cause, with direction to reinstate the verdict and judgment.

By this petition it appears that it was the duty of plaintiff to distribute papers for the defendant, relator here, in Kansas City, and to that end he was to be furnished with a motor truck and driver by such defendant. The petition charges that the defendant was negligent in selecting a driver for this truck, and there is also a statement in the petition about the truck being overloaded, but, when the petition reached the point where it undertakes to couple plaintiff's injuries and defendant's negligence, we find this language:

"That, by reason of the lack of experience, knowledge, and ability of said chauffeur or operator, he lost control of said car and was incapable of guiding and controlling the same; that thereupon, and by reason thereof, said motor truck car was then and there at the date last aforesaid, by and through the carelessness, recklessness, and negligence of the defendant, through its said incompetent chauffeur or operator, who was incapable of guiding and controlling said car, run into the curbstone on the south side of said Eleventh street at or near the corner of Walnut street, in said city, with such force and violence as to throw plaintiff out of said car, and did throw plaintiff out of said car with great force and violence across the feet of one previous occupant of said car and onto said occupant and onto the pavement and street with terrific force and violence, thereby wounding, bruising, maiming, and injuring the plaintiff in the bowels, stomach, groins, and testicles, and thereby causing plaintiff intense physical pain and great mental anguish and suffering."

The instruction reads:

"The court instructs the jury that If they find from the evidence that the plaintiff, at the time of the alleged, injury, was employed by the defendant to distribute its newspapers in Kansas City, Mo., and that, as a part of said employment, it became the duty of the plaintiff to ride upon motor trucks furnished by the defendant, then it became and was the duty of the defendant to exercise reasonable and ordinary care in the selection of experienced, careful, and capable chauffeurs to manage said trucks, and to exercise reasonable and ordinary care in loading said trucks, so that plaintiff would have a reasonably safe place in which to perform his duties; and if the jury find from the evidence that, at the time of the alleged injury, the defendant, through its agents, servants, and employés, had failed and neglected to use ordinary and reasonable care in the selection of the chauffeur for the motor truck in question, and that by reason of the incompetency of the chauffeur in charge of said motor, truck, if the jury find he was incompetent, or if the jury shall find that the motor truck upon which plaintiff was riding was so overloaded that it could not be controlled by the chauffeur, and that defendant knew, or by the exercise of ordinary and reasonable care could have known, that said motor truck was so overloaded, and if the jury further find that by reason of the incompetency of said chauffeur, if they find he was incompetent, or by reason of said motor truck being overloaded, if they find it was overloaded, the said chauffeur was incapable of managing the same, and that by reason thereof said motor truck was run into the curbing of Eleventh street near Walnut street, in Kansas City, Mo., on or about the 21st day of August, 1910, with such force and violence as to throw plaintiff out of said truck onto the streets and sidewalks of said city, if you so find, and that plaintiff was hurt and injured thereby, if so, without any fault or negligence on his part, then the jury should find for the plaintiff and assess his damages at such sum as would compensate him for the injuries received, according to the measure of damages defined in other instructions herein."

It was for the giving of this instruction that the trial court set aside its verdict and judgment This instruction the Kansas City Court of Appeals, in its opinion, says was proper, under the pleadings in the case. The trial court, upon reflection, thought that the instruction went further than the pleadings, and therefore granted the new trial. The Court of Appeals held that the instruction was within the purview of the petition, and reversed the trial court, and directed such court to reinstate the judgment. The issue is therefore a simple and pointed one.

I. The brief in this case again urges that this court has no power to reach the judgment of the Kansas City Court of Appeals by our writ of certiorari. It cites the long line of decisions in this state prior to the case of State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S. W. 340. In this Curtis Case the judges of this court began to break away from former rulings, and we have since adhered to the doctrine that this court can, by the writ of certiorari given us by section 8 of the amendment of 1884 to the Constitution, cause to be sent to this court the record of any cause decided by a Court of Appeals, wherein it appears that such court has failed to follow the last ruling of ...