State ex rel. St. Louis Pub. Serv. Co. v. Haid

Citation63 S.W.2d 15
Decision Date04 September 1933
Docket NumberNo. 32749.,32749.
PartiesSTATE OF MISSOURI at the Relation of ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Relator, v. GEORGE F. HAID, WILLIAM DEE BECKER and CHARLES H. DAUES, Judges of the St. Louis Court of Appeals.
CourtUnited States State Supreme Court of Missouri
63 S.W.2d 15
STATE OF MISSOURI at the Relation of ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Relator,
v.
GEORGE F. HAID, WILLIAM DEE BECKER and CHARLES H. DAUES, Judges of the St. Louis Court of Appeals.
No. 32749.
Supreme Court of Missouri.
Division Two, September 4, 1933.

Certiorari.

WRIT QUASHED.

T.E. Francis, B.G. Carpenter and Allen, Moser & Marsalek for relator.

(1) The Court of Appeals in its opinion in the cause of Frances Sneed v. St. Louis Public Service Company, in holding and deciding that the refusal by the trial court of Instruction E, requested by relator, defendant in said action, did not constitute error prejudicial to relator, is in direct conflict with the following controlling decisions of this court, holding that a defendant is entitled to have his proper defenses or valid theories of nonliability affirmatively and pointedly submitted to the jury by instructions properly submitting the same, and that it is prejudicial error to refuse an instruction requested by the defendant so submitting any such proper or valid defense or theory of nonliability, within the pleadings and supported by the evidence, if the same is not so submitted by other instructions. Northam v. United Rys. Co., 176 S.W. 227; Mues v. Century Electric Co., 280 S.W. 414; State ex rel. Dunklin Co. v. McKay, 325 Mo. 1098; Finnegan v. Railroad, 244 Mo. 608; Root v. Railroad Co., 237 Mo. 653; King v. Railroad Co., 211 Mo. 15; Allen v. Transit Co., 183 Mo. 436; Murray v. Transit Co., 176 Mo. 190; De Vitt v. Railroad, 50 Mo. 302. (2) If a decision of a Court of Appeals contravenes a prior controlling decision of this court which announces some general principle of law upon the subject involved in such decision, or contravenes a prior controlling decision of this court which has been ruled upon the same or a similar state of facts, the opinion and judgment of the Court of Appeals will be quashed on certiorari. State ex rel. Automobile Co. v. Daues, 323 Mo. 395; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 181. The ruling of the Court of Appeals, that the refusal of said Instruction E was not error prejudicial to relator, contravenes the prior controlling decisions of this court cited under point 1, supra, both in announcing a rule or principle of law contrary to that announced by this court in its said prior decisions, and in ruling contrary to the rulings of this court in its said decisions upon the same or a similar state of facts. (3) Since the Court of Appeals in its opinion not only sets out the substance of refused Instruction E. but refers to plaintiff's Instruction 3, on the measure of damages and to Instructions 1 and 2, given at relator's request, and all of these Instructions constitute the subject-matter of its ruling here under review, all of said instructions are by reference made a part of the record for review in this court. State ex rel. Union Biscuit Co. v. Becker, 316 Mo. 65; State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 179.

J. Edward Gragg for respondents.

(1) This court is not concerned with the question of whether the Court of Appeals erred in applying the law to the facts, but only whether, upon the facts as found in the opinion, the ruling announces a general principle of law contrary to the latest utterances of this court on the subject, or failed to follow the last previous decision of this court on the same or similar facts. State ex rel. Am. Pack. Co. v. Reynolds, 287 Mo. 697, 230 S.W. 642; State ex rel. Peters v. Reynolds, 214 S.W. 121; State ex rel. Natl. Bank v. Sturgis, 276 Mo. 559, 208 S.W. 458; State ex rel. Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384; State ex rel. Raleigh Inv. Co. v. Allen, 294 Mo. 214, 242 S.W. 77; State ex rel. Calhoun v. Reynolds, 289 Mo. 506, 233 S.W. 483. (a) While it is true that defendant has a right to instruct on his theory of the case, the court is not bound to give an instruction which is covered by instructions already given, and where the jury, by reading all the instructions together, could not fail to comprehend the issue sought to be presented. Turnbow v. K.C. Ry. Co., 277 Mo. 644, 211 S.W. 41; Quinn v. Van Raalte, 276 Mo. 71, 205 S.W. 59; Beane v. St. Joseph, 211 Mo. App. 200, 256 S.W. 1093; Beauchamp v. Pike, 251 Mo. 529, 158 S.W. 321; Woods v. Railroad Co., 188 Mo. 229, 86 S.W. 1082; Norris v. Whyte, 158 Mo. 20, 57 S.W. 1037; Volkart v. Groom, 9 S.W. 247.

WESTHUES, C.


Original proceedings in certiorari. Relator challenges and seeks to quash the record and judgment of the St. Louis Court of Appeals in the case of Sneed v. St. Louis Public Service Company, reported in 53 S.W. (2d) 1062.

Plaintiff, Sneed...

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