State ex rel. St. Louis Public Service Co. v. Haid

• Decision Date: 04 September 1933
• Docket Number: 32749
• Parties: 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
• Court: Missouri Supreme Court

63 S.W.2d 15

333 Mo. 845

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

September 4, 1933

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. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

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, brought suit in the Circuit Court of the City of St. Louis against relator to recover damages for personal injuries alleged to have been sustained when she attempted to step from one of defendant's street cars. The assignment of negligence in plaintiff's petition is stated in the opinion of the Court of Appeals as follows:

"The assignment of negligence in plaintiff's petition was the premature starting or moving forward of the street car while plaintiff was in the act of and before plaintiff had time or opportunity to alight in safety, and that she was thereby thrown to the street and injured."

The opinion then states that the answer consisted of a general denial. We learn from the opinion that relator, defendant in that suit, during the trial in the circuit court, relied upon two defenses: First, that the street car did not move until after plaintiff had safely departed from the car; second, that plaintiff was not injured on that occasion as pleaded in her petition.

Relator introduced evidence by at least two witnesses to the effect that plaintiff safely departed from the car and walked a number of steps before she fell. Plaintiff claimed that the car started while she was on the steps causing her to fall. Plaintiff claimed she sustained injuries to her shoulder and her left collar bone and also complained of bruises on her knees and elbows. A physician testified that X-ray pictures of plaintiff disclosed that her collar bone was torn away from the breast bone. Defendant offered evidence that this particular injury existed prior to the time of plaintiff's alleged fall.

Relator offered and the trial court refused an Instruction E telling the jury that if they found plaintiff was not injured on the occasion mentioned in the evidence then she could not recover. The Court of Appeals held that the refusal to give Instruction E did not constitute reversible error and affirmed the judgment of the trial court. It is this ruling that relator contends to be in conflict with controlling decisions of this court. If in so deciding the ruling of the Court of Appeals contravenes a prior controlling decision of this court, which announces some principle of law upon the subject matter, then the opinion of the Court of Appeals must be quashed. That part of the opinion which disposed of this question reads as follows:

"The record discloses that the trial court refused to give an instruction requested by defendant to the effect that, if the jury found and believed from the evidence that plaintiff was not injured on the occasion mentioned in the petition, then she cannot recover, and the verdict must be for the defendant. This action on the part of the court is urged here as error.

"Granting that said instruction could have been given by the court with propriety, yet in our view, under the facts and circumstances in the instant case, its refusal cannot be viewed as error prejudicial to any rights of the defendant. It needs no citation of authorities that all instructions must be read together. Examining the instruction given, we find that not alone did the plaintiff's instruction on the measure of damage specifically point out to the jury that if they found for plaintiff, they could, in assessing her damages, compensate her only for such injuries, if any, as they might find from the evidence plaintiff sustained on the occasion in question, but, in addition thereto, we find that, among the instructions given at the request of the defendant, one told the jury that 'even though you find and believe from the evidence that on the occasion mentioned therein the plaintiff fell while she was in the act of alighting from said street car and was injured,' and another told the jury that 'even though you may find that the plaintiff was injured on the occasion mentioned in the evidence.' From these instructions the jury must have thoroughly understood that, as a prerequisite to a verdict for the plaintiff, they must find and believe from the evidence that plaintiff was injured."

The cases relied upon by relator, as announcing a rule which the Court of Appeals did not follow are the following: Mues v. Century Electric Co., 280 S.W. 412, l. c. 414; Northam v. United Rys. Co., 176 S.W. 227, l. c. 229; State ex rel. Dunklin County v. McKay, 325 Mo. 1075 l. c. 1098, 30 S.W.2d 83; Root v. Railroad Co., 237 Mo. 640, l. c. 651, 653, 141 S.W. 610; King v. Wabash Railroad Co., 211 Mo. 1, l. c. 15, 109 S.W. 671; Allen v. Transit Co., 183 Mo. 411, l. c. 436, 81 S.W. 1142; Murray v. Transit Co., 176 Mo. 183, l. c. 190, 75 S.W. 611; Finnegan v. Railroad, 244 Mo. 608, 149 S.W. 612; De Vitt v. Railroad, 50 Mo. 302. Upon examination we find that the Finnegan v. Railroad; King v. Wabash; De Vitt v. Railroad; Murray v. Transit Co.; Northam v. United Rys. Co. and Allen v. Transit Co. all deal with the plea of contributory negligence. The gist of those cases upon the point in question is that, even though plaintiff's instructions required the jury to find that the plaintiff in order to recover must...