State v. Becker

Citation293 S.W. 783
Decision Date02 March 1927
Docket NumberNo. 26558.,26558.
PartiesSTATE ex rel. UNION BISCUIT CO. v. BECKER et al., Judges.
CourtUnited States State Supreme Court of Missouri

Grover, Tipton & Graves, of Kansas City, and Wilfley, Williams, McIntyre & Nelson, of St. Louis, for relator.

Lich & Miller, of St. Louis, for respondents.

ATWOOD, J.

Relator seeks to quash the record and judgment of the St. Louis Court of Appeals sustaining a judgment for plaintiff in the personal injury case of Maria Spina (Plaintiff), Respondent, v. Union Biscuit Company, a Corporation (Defendant), Appellant.

Counsel for relator with commendable point and brevity state their position as follows:

"The case ruled on by the Court of Appeals was an action for damages for negligent injury of plaintiff by her employer, the defendant.

"The allegations respecting negligence, as set forth in plaintiff's petition, are set forth in full in relator's petition for this court's writ of certiorari.

"Superficially considered, it might be concluded that plaintiff's petition sets forth three grounds of negligence upon which, if supported by evidence, she might have her case submitted to the jury. Carefully considered, however, there is only one alleged ground of negligence stated in plaintiff's petition, this for the reason that two other purported grounds of negligence do not allege that they in any way caused or contributed to plaintiff's injury, nor is there any such allegation in any other place in plaintiff's petition. There was, under plaintiff's petition, therefore, only one ground of negligence to go to the jury.

"Defendant, at the close of plaintiff's case and at the close of the whole case, requested peremptory instructions, general in form, in the nature of demurrers to the evidence.

"The Court of Appeals, overlooking the fact that there was only one ground of negligence stated in the petition, erroneously held that sine there were three assignments of negligence and the peremptory instructions were general, defendant was in no position to urge in the appellate court that the trial court erred in refusing the peremptory instructions.

"Torrance v. Pryor, decided by this court (2:.0 S. W. 430, par. III, loc. cit. 432, 433), clearly lays down the rule that where the demurrer is directed to the specific point of lack of proof it may, when overruled in the trial court, be urged in the appellate court, and that the fact the appellant, after its demurrer is overruled, seeks the best instruction possible on the theory adopted by the court, does not estop itself from urging the error in the overruling of its demurrer. Clearly, if there is only one issue stated in the petition, a demurrer general in form is, in fact, specific.

"It is unnecessary to cite any authority for tho proposition that assignments of negligence (so-called) which do not allege causal connection with plaintiff's injury do not present issues for the jury. The Court of Appeals has reached its erroneous conclusion because it has overlooked the fact that the purported second and third assignments of negligence were not alleged to have any causal connection with plaintiff's injury, and therefore only one ground of negligence was stated in the petition."

It is frankly conceded that conflict with controlling decisions of this court is not apparent on the face of respondent's opinion filed in the case, but relator claims recourse in the petition itself, and on the authority of State ex rel. National Newspapers' Association v. Ellison et al. (Mo. Sup.) 176 S. W. 11, loc. cit. 12, and State ex rel. Kansas City v. Ellison, 281 Mo. 667, loc. cit. 677, 220 S. W. 498, urges that we examine the petition which is referred to in the opinion and is a part of the record brought up by our writ. Before ruling this point in the instant case we deem it not inappropriate to review some of our case law pertinent thereto.

Since our decision in banc in State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S. W. 340, we have adhered to the doctrine that we can, by the common-law 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 this court upon any doctrine of law or equity. Such exercise of our broad power of "superintending control" is in the interest of uniformity of judicial decision in this state on all issues of law and equity, and its propriety is no longer seriously questioned. State ex rel. Evans v. Broaddus, 245 Mo. 123, loc. cit. 135, 149 S. W. 473, Ann. Cas. 1914A, 823; Curtis v. Sexton, 252 Mo. 221, loc. cit. 252, 159 S. W. 512; State ex rel. Gilman v. Robertson, 264 Mo. 661, loc. cit. 672, 175 S. W. 610.

It was early ruled that this writ of certiorari was one of discretion and not of right (State ex rel. Evans v. Broaddus, 245 Mo. 123, 149 S. W. 473, Ann. Cas. 1914A, 823), and in State ex rel. Pedigo v. Robertson, 181 S. W. 987, loc. cit. 959, 990. a majority of this court agreed that the scope of the common-law writ of certiorari is thus correctly stated in 5 R. C. L. 264:

"The writ of certiorari, as a general rule, brings up for review only the record proper of the tribunal to which it is addressed, and not the evidence. But if it becomes necessary for the court of review to be put in possession of the facts upon which the court below acted, and which are not technically of record, it is competent to require the lower court to certify such facts in its return to the writ, and this statement of facts will then be a part of the record."

In the majority opinion, with the concurrence of a majority of the court on this point, Judge Faris said (loc. cit. 990):

"It is fairly plain, the nature of the writ of certiorari considered, that there can be no hard and fast rule in all jurisdictions as to what constitutes the record to be sent up by the court of administrative body to which the writ is directed. Even a cursory examination of the authorities discloses this. * * * So clearly we have the authority to so regulate the command of this writ that it will bring up from the inferior tribunal only so much of the record as may be necessary for our use in deciding the questions in issue."

This rule as to the scope and efficacy of the common-law writ of certiorari is consonant with reason and supported by the weight of authority. The opinion properly concludes that we may regulate the command of the writ in accordance with the purpose sought to be accomplished by the use of this extraordinary legal remedy, and that without impairing the remedy. However, without promulgating any court rule or handing down any decision clearly limiting the command of our writ in such cases, we have from time to time with some contrariety of expression said what we would and what we would not examine on the return to our writ.

In State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19, loc. cit. 36, 165 S. W. 729 732, Judge Brown, speaking for a majority of this court, said:

"We are of opinion that we should not examine the evidence, but rely upon the facts as found and recited by respondents. * * * We will consider only the pleadings, evidence and facts as recited by the Court of Appeals whose judgment is sought to be quashed."

The latter part of this opinion, however, holds that the very information which occasioned these remarks was not necessary to a decision of the case, thus making these remarks obiter dicta.

In State ex rel. C., R. I. & P. Ry. Co. v. Ellison, 263 Mo. 509, 173 S. W. 690, Judge Bond, treating the above expressions as the controlling opinion of the court, applied them to the case in hand, but in this he received the specific concurrence of only two other judges, James T. Blair, J., concurring only in result.

In State ex rel. Gilman v. Robertson, 264 Mo. 661, 175 S. W. 610, the arguments for and against our power to issue these writs were respectively presented by Judge Graves, in the majority opinion, and by Judge Bond, in a dissenting opinion. The former is of prime importance in its bearing upon the question of what shall be examined on the return to the writ, because it constitutes a clear expression and holding of this court that the fundamental purpose of the exercise of this phase of our "superintending control" is to bring about "harmony in the law" to the end that one doctrine of law and equity shall apply in all appellate jurisdictions.

We now come to a case cited by relator herein, State ex rel. National Newspapers' Association v. Ellison, 176 S. W. 11. It was decided by this court in banc April 2, 1915, opinion by Graves, P. J., in which all concur except Brown, J., and Bond, J., who dissent, the latter on question of our jurisdiction only; Blair, J., not sitting. In this opinion it is said (loc. cit. 12), although the opinion of the Court of Appeals set forth the substance of the petition, that the petition would be looked at "being just as much a part of the record as is the opinion of the court." Here we have a definite ruling by this court that at least this much of the record in the Court of Appeals brought here by our writ of certiorari is the record in this court, and that we may examine the petition for the purpose of determining whether the Court of Appeals has decided the case according to the controlling decisions of the Supreme Court. If the doctrine applied in State ex rel. C., R. I. & P. Ry. Co. v. Ellison et al., 263 Mo. 509, 173 S. W. 690, supra, contravenes, it was here clearly overruled. As to the facts of the case, however, a different rule is thus announced:

"For the facts...

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