State v. Ellison

• Decision Date: 02 July 1914
• Docket Number: No. 17781.,17781.
• Citation: 260 Mo. 129,168 S.W. 744
• Parties: STATE ex rel. MERSEREAU v. ELLISON et al., Judges of Kansas City Court of Appeals.
• Court: Missouri Supreme Court

168 S.W. 744

260 Mo. 129

STATE ex rel. MERSEREAU v. ELLISON et al., Judges of Kansas City Court of Appeals.

No. 17781.

Supreme Court of Missouri.

July 2, 1914.

CERTIORARI (§ 33)—RIGHT TO REVIEW—JOINT TORT — FEASORS — LIABILITY INTER SE.

Where relator sued two railroad companies for injuries resulting in the death of a passenger and during the trial dismissed as to one of the defendants for a failure to prove a cause of action, the rights of the railroad companies inter se became immaterial to relator.

Bond, J., dissenting.

In Banc. Certiorari by the State, on relation of George J. Mersereau, as administrator of the estate of Elizabeth Doster, against James Ellison and others, Judges of the Kansas City Court of Appeals. Judgment of the Court of Appeals quashed, and cause remanded.

This is one of the cases coming to this court, by certiorari, from the Kansas City Court of Appeals, on the theory that we have the right to review the decisions of those courts regarding the merits of a case. Counsel for relator seem to think that the Court of Appeals erred in its ruling regarding the merits of the case, and ask this court to correct that error.

The facts of the case are few and simple, and not disputed in any of the material parts. Elizabeth Doster, a resident of the state of Michigan, purchased a ticket entitling her to transportation from her home, to the Pacific Coast, via, among other roads, the Chicago, Milwaukee & St. Paul and the Missouri Pacific Railway Companies. That while traveling upon the former road (which will hereinafter be referred to as the "Chicago Company") near Kansas City, Mo., the car in which she was riding was switched from the Chicago Company to the Missouri Pacific Railway Company (which will hereafter be refered to as the "Pacific Company"). That in making the switching the Chicago Company so negligently and carelessly drove the car in which Mrs. Doster was riding against some standing cars, on the cross-over track leading from the one road to the other, with such force and violence that she was thereby thrown down upon the floor of the car so as to fracture her hip and otherwise greatly bruise and injure her, from which she has, since this appeal, died. She brought suit in the circuit court of Jackson county for $____, and recovered a judgment for $7,500, which on motion for a rehearing was reduced to $6,000. From this judgment the Chicago Company appealed the cause to the Kansas City Court of Appeals.

The Court of Appeals upon the first hearing reversed the judgment of the circuit court upon the authority of Bagnell Timber Co. v. M., K. & T. Ry. Co., 180 Mo. 420, 79 S. W. 1130, which erroneously held that, where two or more persons were sued jointly in contract or in tort, no recovery could be had against one without against all. That case was expressly overruled in the cases of Bagnell v. Railway, 242 Mo. 11, 145 S. W. 469; Winn v. Railroad, 245 Mo. 406, 151 S. W. 98; and Hutchinson v. Safety Gate Co., 247 Mo. 71, 152 S. W. 52. The attention of the Court of Appeals was called to the case first mentioned during the pendency of the motion for a rehearing, and thereupon a hearing was granted; and upon the second hearing the Court of Appeals again reversed the judgment of the circuit court and remanded the cause for the reasons to be presently stated. The second opinion of the Court of Appeals, as I understand the record, reversed the judgment of the circuit court for the sole reason that counsel for relator used improper language during the argument of the cause before the jury.

The record as here presented, which is admitted to be true, by the demurrer of respondents, regarding this question, is substantially as follows:

Both the Chicago Company and the Pacific Company were sued jointly, but after the introduction of the evidence in the case counsel for relator concluded that no case had been made against the Pacific Company; and therefore dismissed the case as to it, which action of the trial court, in my opinion, was clearly right.

The trial of the case had occupied several days; and during the argument of counsel for relator, before the jury, the court, for some reason, not made clear (the full argument not having been reported) stated:

"Gentlemen of the jury, the Missouri Pacific is no longer in this case. That matter was disposed of Saturday.

"Mr. Harber (counsel for the Chicago Company): But that fact is in no wise to influence this jury in any way?

"The Court: No, not at all.

"Mr. Crane (counsel for relator): You are explaining that in the light of this instruction?

"The Court: Yes, sir."

Thereafter, during the argument of the cause, Col. Harber, or some one on his side of the case, made the statement, and probably repeated it, that an attempt was being made to load the entire responsibility of the injury on the Chicago Company and let the Pacific Company out. This was, as previously stated, reiterated by counsel. In trying to answer this argument, counsel for plaintiff there, relator here, stated, as the record shows:

"That the evidence before the jury shows that the injury to the plaintiff occurred while the car in which she was riding was being hauled by the defendant the Chicago, Milwaukee & St. Paul Railway Company, and that if said defendant questioned that fact it could litigate that matter with the other defendant the Missouri Pacific Railway Company, remarks were made as follows:

"Mr. Harber: I want to say to this jury, and if it is not correct I want this court to say so, that a judgment against this defendant here gives us no right whatever to ask a dollar's compensation from the Missouri Pacific.

"Mr. Crane: I say it don't prevent your doing so.

"Mr. Harber: I say we have no right, and it is absolutely conclusive as to which one's negligence caused this woman's injury.

"Mr. Crane: I deny that as not being a correct statement of the law.

"Mr. Harber: What is the ruling of the court?

"The Court: I don't rule on it at this time. I think it is a matter of argument for counsel. (To which ruling and action of the court in permitting such line of argument the said defendant the Chicago, Milwaukee & St. Paul Railway Company at the time excepted and still excepts.)"

The matter...