State v. Cox

• Decision Date: 05 June 1925
• Docket Number: No. 25324.,25324.
• Citation: 274 S.W. 373
• Parties: STATE ex rel. GREER v. COX et al., Judges.
• Court: Missouri Supreme Court

274 S.W. 373

STATE ex rel. GREER v. COX et al., Judges.

No. 25324.

Supreme Court of Missouri, Division No. 2.

Opinion filed June 5, 1925.

Rehearing Denied July 2, 1925.

Certiorari to Springfield Court of Appeals.

Certiorari by the State, on the relation of A. W. Greer, against Argus Cox and others, Judges of Springfield Court of Appeals, to quash opinion of that court in case of Fred. Smith against relator (257 S. W. 829). Writ quashed.

J. C. Sheppard and Arnot L. Sheppard, both of Poplar Bluff, for relator.

Sam M. Phillips and L. E. Tedrick, both of Poplar Bluff, for respondents.

WHITE, J.

Certiorari. One Fred Smith, because of personal injuries, recovered judgment for $4,000, in the circuit court of Butler county, against A. W. Greer, relator. The Springfield Court of Appeals affirmed the judgment, and relator brings the case here by certiorari, alleging conflict in several particulars between the opinion of the Court of Appeals and the decisions of this court.

Smith was employed by Greer in crowning joists by means of a band saw. The injury for which Smith sued occurred in this way: Plaintiff and a colaborer were handling joists, each of which weighed 450 pounds, was 24 feet long, and 14 inches wide. The duties of the plaintiff and his colaborer were to bevel one end of the joist and then turn it around and bevel the other end. It seems that while the plaintiff was carrying one end of the joist, and his colaborer was carrying the other end, in attempting to walk around the table on which it was to rest, his colaborer tripped over some blocks which were placed under the legs of the table to make it higher. As we gather it, the alleged negligence, upon which the matter was submitted to the jury, was the failure of defendant to furnish sufficient help to handle the heavy timbers, and the support of the table legs by placing blocks in such a way as to be in the path of the men in moving about. The Court of Appeals said, in regard to the evidence:

"There is some conflict in their testimony as to just what they were doing with the joists at the time of the injury, and some conflict as to the time of day that it happened. But on the material question at issue, which was whether the helper had tripped over the planks which had been placed on the floor and caused the plaintiff to fall, there is no material difference in their testimony."

It appears that when the helper tripped over the obstruction in the floor he fell, throwing the weight of the timber upon the plaintiff, causing him to fall and incur injuries for which he sued.

I. The purpose of the writ of certiorari from this court to the Court of Appeals is to maintain uniformity in expositions of the law. In this proceeding we are not to determine whether the Court of Appeals has erred in the application of the law to the facts in a particular case, but whether it has announced some conclusion of law contrary to the previous rulings of this court upon the same or a similar state of facts. State Life Insurance Co. v. Allen, 295 Mo. loc. cit. 315, 243 S. W. 839; State ex rel. Continental Ins. Co. v. Reynolds, 290 Mo. loc. cit. 371, 235 S. W. 88.

The writ of certiorari goes to the question of jurisdiction. A court of appeals transcends its jurisdiction when it announces a ruling in conflict with the latest ruling of this court. Obviously, then, a conflict must appear upon the face of the opinion of the Court of Appeals. We cannot examine the record presented to the Court of Appeals to determine whether the facts support the ruling, or whether such facts have been properly interpreted, or whether they justify an instruction approved by that court. We are limited to the facts and the issues stated in the opinion. This statement of the law eliminates a number of objections made by relator to the opinion of the Court of Appeals.

On the question of the sufficiency of the evidence, the Court of Appeals makes this statement:

"We think that it was entirely a question for the jury to say whether an employer had exercised the degree of care required of him under the law when he requires two men to handle the joist of the dimensions and weight that we have heretofore set out where there is an obstruction placed by him on the floor in the direct path over which they are to walk and carry this load. Likewise it is a question of fact for the jury to determine whether he was negligent in leaving the plank in the path in which they were to move in carrying on their work under these conditions."

No decision of this court is pointed out with which that statement of the law is in conflict. Relator asserts that the plaintiff should have been nonsuited, and the holding of the Court of Appeals to the contrary is in conflict with the case of McGinnis v. Hydraulic Press Brick Co., 261 Mo. 287, 169 S. W. 30, L. R. A. 1915F, 583. The plaintiff in that case stumbled over a foot scraper set beside the walk and steps leading to the building from which he came. It was not in his path, and he was not incumbered by any load which would prevent his observing its position. The facts are totally different in this case. The Court of Appeals held here that the question which the jury should decide was whether leaving an obstruction in the pathway, where a heavily loaded man must walk, was negligence. This case differs from that further in that the plaintiff was obliged to work handling heavy joists with insufficient help to prevent injury.

II. Complaint is made of instruction No. 1, given by the trial court. It authorized recovery, if the jury found that the fellow servant of Smith stumbled over either the table leg, or the 2×4 under the table leg. The Court of Appeals has this to say about that feature of the instruction:

"The testimony is uncontradicted that he stumbled over the plank on the floor under the leg or the support of the table. While there was no evidence that he did stumble over the leg, it certainly could not have been misleading or prejudicial."

Relator argues that plaintiff Smith was allowed to recover on an act of negligence which was not proven, and the instruction was therefore broader than the evidence. He cites as a conflicting opinion of this court, State ex rel. v. Ellison, 270 Mo. 645, 195 S. W. 722. That was a case where the plaintiff was permitted to recover on an act of negligence not pleaded, although there was evidence to support it. Nothing of the kind appears in this case. The ruling of the court was that there was no evidence that the helper stumbled over the leg of the table, but the evidence was uncontradicted that he stumbled over the obstruction in his path, and therefore the jury could not have been misled. We cannot examine the evidence to see whether or not that is a misconstruction of its effect.

Relator argues that the uncontroverted...