State v. Trible

• Decision Date: 05 June 1925
• Docket Number: No. 25633.,25633.
• Citation: 274 S.W. 416
• Parties: STATE ex rel. LEHRACK v. TRIBLE et al., Judges.
• Court: Missouri Supreme Court

274 S.W. 416

STATE ex rel. LEHRACK v. TRIBLE et al., Judges.

No. 25633.

Supreme Court of Missouri, Division No. 2.

June 5, 1925.

Certiorari to Kansas City Court of Appeals.

Certiorari by the State, on the relation of Otto J. Lehrack, against Francis H. Trimble and others, Judges of the Kansas City Court of Appeals, to quash the opinion of that court in an action by Sim Farley against the relator. Writ quashed.

John D. Wendorff, of Kansas City, for relator.

Hogsett & Boyle, of Kansas City, for respondents.

WHITE, J.

Certiorari. Relator seeks by this proceeding to quash the record of the Kansas City Court of Appeals, affirming the judgment in the case of Sim Farley, Plaintiff, v. Otto J. Lehrack, Appellant. The facts are thus stated by the Court of Appeals:

Exhibit A.

"Appeal from Jackson Circuit Court. This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff through negligence of defendant.

"Defendant, a contractor, was engaged in erecting an eight story building in North Kansas City, Clay county, Mo., to be used as a flouring mill. Plaintiff was employed by defendant as a laborer under the direction of a foreman named Toner. On the day of the accident, and a few minutes before the occurrence, on May 5, 1921, plaintiff was working on the fifth floor, when he was directed by Toner to proceed to the fourth floor and remove some trash by the use of a shovel and a wheelbarrow. The trash consisted of brick, shavings, pieces of board, tin, and such articles as ordinarily accumulate in the course of building construction. The building in question was of reinforced concrete throughout, and plaintiff had been employed in and about the premises for a period of four or five weeks.

"The evidence shows that in constructing the floors numerous holes of varying shapes and sizes were left, extending through said floors for the purpose of proving passages for parts of mill machinery, such as belts, shafts, conveyors, etc. In addition to these, there were about four other holes about 12 by 14 inches extending through the fourth, fifth, and sixth floors, substantially in the same relative position on each floor, designed for the insertion of timbers in providing spouts for conveying concrete used in constructing flour bins. When no longer required for such purpose, these timbers and spouts were removed, and the holes left open until such time as they could be closed permanently These holes were slightly larger at their upper than their lower dimension, and their edges were rough and uneven.

"On the morning of the day in question, and for some time prior thereto, plaintiff had been engaged in cleaning up rubbish on the fifth floor, when he was instructed by Toner, the foreman, to proceed to clean up the fourth floor. Plaintiff then went to the fourth floor, and set about his work there. The main building extends north and south, and the fourth floor is divided into two rooms, of which the north room is the larger. At the southwest corner of the south room there was a chute through which plaintiff was instructed to dump the rubbish gathered up in the process of cleaning. Plaintiff's testimony is that one of the holes into which the timbers previously had been placed was covered with a piece of scrap tin which was barely large enough to cover the opening; that the tin was rusty and somewhat covered with debris, thus rendering that particular hole invisible, as its surface resembled the general appearance of the floor. Plaintiff began work in the north room, filled the wheelbarrow with the first load, and was pushing it along toward the dumping chute, when, with his right foot, he stepped on the piece of tin which covered the hole above described, the tin gave way, and plaintiff's foot and leg went down through the hole, resulting in the injuries of which he complains."

I. It seems that we cannot often enough say that a writ of certiorari to a Court of Appeals cannot perform the office of a writ of error. We entertain a proceeding of this kind, not for the purpose of discovering errors, but only for the purpose of maintaining uniformity in statements of the law as they appear in the written opinions. We quash an opinion of a Court of Appeals only because it conflicts with a ruling of this court, and thereby impairs that uniformity. State ex rel. v. Allen, 295 Mo. loc. cit. 315, 243 S. W. 839; State ex rel. v. Reynolds, 290 Mo. loc. cit. 371, 235 S. W. 88. Any conflict between a decision of the Court of Appeals and decisions of this court must of necessity appear on the face of the opinion. There could be no apparent conflict, unless it did so appear. For that reason our review of such cases should be limited to the opinion of the Court of Appeals. State ex rel. Bush v. Sturgis, 281 Mo. loc. cit. 601, 221 S. W. 91, 9 A. L. R. 1315; State ex rel. United Railways v. Reynolds, 257 Mo. loc. cit. 36, 165 S. W. 729. In the case Last cited the court en banc thus stated the principle:

"Where that class of cases is brought before us for certiorari we will consider only the Pleadings, evidence and facts as recited by the Court of Appeals whose judgment is sought to be quashed."

"It may be argued that should the Judges of the Courts of Appeals fail to state the pleadings and facts correctly (a point upon which I Personally have no fears) it might result in some individual case being decided incorrectly and not in harmony with our previous ruling; but that would not militate against the primary object sought by section 6, article 6, supra [of the Constitution] e., the uniformity of judicial construction on issues of law and equity in this state."

That expression was concurred in by all the court en banc. In later cases (such as State ex rel. Kansas City v. Ellison, 281 Mo. 667, loc. cit. 674, 220 S. W. 498, 500) the court en banc by a divided vote has held that—

"Reference in the opinion to a written document in the case makes it as much a part of the opinion as if fully written out therein."

It is my individual view that the principle announced in the United Railways Company Case and the Bush Case, supra, will, of necessity finally have to be adhered to by this court. It is not at all necessary to go into documents referred to in the opinion in order to secure "uniformity of judicial construction." There is no conflict in the law as announced, unless it appears on the face of the opinions published. When we say that any documents referred to in the opinion is made a part of it, we are traveling in uncertain territory. What is meant by being "referred to" in the opinion? Is the petition, in a case under review, incorporated in the opinion when the latter merely states what kind of an action is brought, as when it states in a general way that the allegations state a cause of action for damages? If the opinion quotes a passage from the petition, does that incorporate in the opinion the balance of the petition, although there are no allegations that further explain or amplify the part quoted? What sort of reference to a petition, incorporates it? Very often the petition in a case is much longer than the opinion. When it is...