The State ex rel. Union Biscuit Company v. Becker

• Decision Date: 02 March 1927
• Docket Number: 26558
• Citation: 293 S.W. 783,316 Mo. 865
• Parties: The State ex rel. Union Biscuit Company v. William Dee Becker et al., Judges of St. Louis Court of Appeals
• Court: Missouri Supreme Court

293 S.W. 783

316 Mo. 865

The State ex rel. Union Biscuit Company v. William Dee Becker et al., Judges of St. Louis Court of Appeals

No. 26558

Supreme Court of Missouri

March 2, 1927

Motion for Rehearing Denied April 8, 1927.

Record of Court of Appeals quashed.

Grover Tipton & Graves and Wilfley, Williams, McIntyre & Nelson for relator.

(1) The decision of the Court of Appeals in failing and refusing to consider and pass upon relator's demurrer to plaintiff's evidence and the failure to give the peremptory instructions requested by relator, is in conflict with the last controlling decision of this court, namely Torrance v. Pryor, 210 S.W. 430. (2) After defendant's demurrer to the evidence is overruled it is not estopped to complain of the error in the court in so ruling by requesting instructions presenting its theory of defense, and the opinion of the Court of Appeals is in conflict with the following cases: Cochran v. Peoples Ry Co., 113 Mo. 366; Kenefick-Hammond Co. v. Norwich Ins. Society, 205 Mo. 307; Everhart v. Bryson, 244 Mo 516.

Lich & Miller for respondent.

(1) The plaintiff's petition submitted the case to the court and jury under three specifications or assignments of negligence: First, that the defendant was careless and negligent in permitting the floor to be in a wet, sloppy, and slippery condition; second, in ordering and directing plaintiff to cross said floor when defendant knew that same was in a wet, sloppy, and slippery condition; and, third, that defendant was negligent in causing and permitting the floor to be scrubbed during regular working hours. The defendant now claims that there was in fact only one assignment of negligence in the case, namely, the first assignment above mentioned; and that the other assignments were only matters of inducement, and that there was no causal connection pleaded between the second and third assignments and the injuries sustained by the plaintiff. (2) No rule of law requires the pleader to state that each and every one of the specifications of negligence directly caused and contributed to the injuries of the plaintiff; and even if such an allegation were in the petition, it would at most be a conclusion of the pleader, and the court would look to the substance of the petition to determine whether or not there was any causal connection between the negligence pleaded and the injuries sustained. In the instant case, the petition pleaded a wet, sloppy, slippery, and dangerous floor, and that as plaintiff was walking over said floor at the direction of defendant's foreman, she was injured; and that said floor was made slippery by reason of the conduct of the defendant in having its employees scrub said floor during regular working hours instead of after working hours. Here are three separate specifications of negligence, to-wit: Negligent direction, negligence in maintaining a safe place to work, and negligence in creating an unsafe place by reason of scrubbing during working hours. Relator's contention that there is only one assignment of negligence pleaded, is not supported by the petition itself. (3) The ruling of the Court of Appeals does not conflict with the opinion in Torrance v. Pryor, 210 S.W. 430. The Torrance case is the one which gave rise to the rule, which has been invoked on numerous occasions since then, that a general demurrer to the evidence in a case where the plaintiff includes in his petition several assignments of negligence saves no point where the defendant joins issue with the plaintiff, after overruling of the general demurrer, in submitting the several assignments of negligence to the jury on the merits, without requesting specific withdrawal instructions. That case means that if in the instant, the defendant had requested a demurrer on the ground that the plaintiff had failed to make out a case under the first assignment of negligence contained in her petition, then the defendant could have joined issue with the plaintiff in submitting this assignment of negligence to the jury without waiving the benefit of its demurrer, because the demurrer would have been specific and directed at the first assignment of negligence. (4) The Supreme Court has had occasion to consider and reconsider the rule of law as announced in the Pryor case, and the case of Davison v. Hines, 246 S.W. 295 is one where damages were requested by a plaintiff who was run over by a switch engine. The case was submitted to the jury under several assignments of negligence, including violation of two ordinances and common law negligence. A general demurrer was offered to the evidence at the close of the case, and after the overruling of the general demurrer, the defendant sought instructions from the court as to the several theories of negligence submitted by plaintiff's petition. In other words, the defendant joined issue with the plaintiff in submitting the case to the jury on the several specifications of negligence pleaded in the same manner as the defendant in the instant case joined issue in submitting the case to the jury on the three specifications of negligence pleaded in the plaintiff's petition. State ex rel. Railway v. Allen, 272 S.W. 927.

Atwood, J. Graves, Regland and Gantt, JJ., concur; White, J., dissents in a separate opinion, in which Blair, C. J., and Walker, J., concur.

OPINION

ATWOOD

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. The 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 since 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, 210 S.W. 430, 432, 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 that 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 the 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 it 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 Newspaper Association v. Ellison, 176 S.W. l. c. 12, and State ex rel. Kansas City v. Ellison, 281 Mo. l. c. 677, 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, 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. l. c. 135; Curtis v. Sexton, 252 Mo. l. c. 252; State ex rel. Gilman v. Robertson, 264 Mo. l. c. 672.]

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), and...