State ex rel. Tunget v. Shain
Decision Date | 05 January 1937 |
Docket Number | No. 34533.,34533. |
Citation | 101 S.W.2d 1 |
Parties | STATE OF MISSOURI at the relation of CHRISTLE TUNGET, Relator, v. HOPKINS B. SHAIN, EWING C. BLAND and FRANCIS H. TRIMBLE, Judges of the Kansas City Court of Appeals. |
Court | Missouri Supreme Court |
Harry L. Thomas and Inghram D. Hook for respondents.
Relator begins by a reference to her suggestions in support of her application for the ceriorari, wherein we find the mistaken statement that to deny the writ would be to overrule forty cases holding that it is proper to submit a case to a jury under both primary negligence and the humanitarian doctrine. For, none of the cases he cites, nor any others, justify such a submission where on the facts of the record it presents "an irreconcilable inconsistency," as the Court of Appeals has found to be the case here with the whole record before it as to plaintiff's given instructions 1 and 2. State ex rel. Himmelsbach v. Becker, 85 S.W. (2d) 421; State ex rel. Superior Min. Co. v. Hostetter, 85 S.W. (2d) 743; State ex rel. v. Daues, 19 S.W. (2d) 703; Cox v. Reynolds, 18 S.W. (2d) 575; Elliott v. Richardson, 28 S.W. (2d) 410; White v. Railroad Co., 202 Mo. 558; Crews v. Wilson, 312 Mo. 643, 281 S.W. 46; Sisk v. Railroad Co., 67 S.W. (2d) 837; Williams v. St. L. Pub. Serv. Co., 73 S.W. (2d) 199; Todd v. Ry. Co., 37 S.W. (2d) 561.
This is an original proceeding in this court by certiorari. Our writ issued to the Kansas City Court of Appeals in a case decided by the court entitled, Tunget v. Cook (Mo. App.), 84 S.W. (2d) 970, which was an action for damages for personal injuries sustained by plaintiff in a collision between an automobile in which she was riding and an automobile driven by defendant. The cause was tried in the Circuit Court of Jackson County and plaintiff had verdict and judgment in the amount of $4500. Upon defendant's appeal the Kansas City Court of Appeals reversed the judgment of the trial court and remanded the cause for a new trial. Whereupon plaintiff invoked our writ of certiorari.
[1] We make the preliminary observation that so far as the facts of the case under examination are involved we are, on certiorari, "limited to the facts" set out in the opinion of the Court of Appeals and "we will not go beyond the opinion to ascertain the facts." [State ex rel. Himmelsbach v. Becker, 337 Mo. 341, 85 S.W. (2d) 420; State ex rel. Shawhan v. Ellison, 273 Mo. 218, 200 S.W. 1042, 1045; State ex rel. Silverforb v. Smith (Mo.), 43 S.W. (2d) 1054.] Quoting from the opinion, all and the only facts stated therein are as follows:
The opinion then sets out the allegations of negligence; that plaintiff's petition charges primary negligence, in several respects therein enumerated, and negligence under the humanitarian rule. Plaintiff's instruction numbered 1 (set out in full in the opinion) submits primary negligence and authorizes a verdict for plaintiff upon a finding of the facts hypothesized therein while her instruction numbered 2 (also set out in full in the opinion) authorizes a finding for plaintiff under the humanitarian rule. Plaintiff's Instruction 1, submitting primary negligence, requires the jury to find, that as defendant's automobile "approached and collided with the motor vehicle in which plaintiff was riding ... defendant drove and operated his said motor vehicle at a high, excessive and dangerous rate of speed and failed and omitted to have and keep his said motor vehicle under reasonable control." Plaintiff's Instruction 2, submitting a violation of the humanitarian rule, requires a finding, "that as defendant's said motor vehicle approached and collided with the said automobile in which plaintiff was riding, plaintiff was then and there in a place and position of imminent danger and peril from the approach and movement thereof and was unable to extricate herself therefrom and escape injury, if so, and that defendant knew, or by the exercise of the highest degree of care could have known that plaintiff was in such position of danger and peril in time thereafter by the exercise of the highest degree of care and without danger to himself or any person, if you so find, to have stopped his said motor vehicle and turned the same aside and could thereby have prevented said collision, if so, and injury to plaintiff, if any, and failed and omitted so to do." The only assignment of error made was that the trial court "erred in giving plaintiff's instructions No. 1 and No. 2 because said instructions, respectively submitting plaintiff's case under primary negligence and the humanitarian doctrine, did so under two inconsistent and irreconcilable theories." That is the sole basis of the opinion. The Court of Appeals in ruling the assignment says:
Having set out the two instructions in full and made the foregoing observation that they present "an irreconcilable inconsistency" the opinion states: That was an action for damages for personal injuries which plaintiff sustained in a collision between an automobile in which she was riding and defendant's automobile "occupied solely by his chauffeur Frank Roehrig." The opinion of the St. Louis Court of Appeals points out that plaintiff's The opinion of the St. Louis Court of Appeals then holds, and this is the excerpt from that opinion which the Kansas City Court of Appeals quotes and the principle or ruling of which it adopts in its opinion: "
[2] In a proceeding of this kind, by certiorari, to quash the opinion and record of a Court of Appeals, the Supreme Court is concerned only with conflict in decisions. [State ex rel. American School of Osteopathy v. Daues, 322 Mo. 991,...
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