The State ex rel. Kansas City Light & Power Company v. Trimble

• Decision Date: 14 June 1926
• Docket Number: 26479
• Citation: 285 S.W. 455,315 Mo. 32
• Parties: The State ex rel. Kansas City Light & Power Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals, and John C. Miller
• Court: Missouri Supreme Court

285 S.W. 455

315 Mo. 32

The State ex rel. Kansas City Light & Power Company v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals, and John C. Miller

No. 26479

Supreme Court of Missouri

June 14, 1926

Record quashed.

William C. Lucas and Ludwick Graves for relator.

The majority opinion of the Kansas City Court of Appeals is in conflict with the last ruling decisions of the Supreme Court as follows: (1) In that it holds that there was liability on the relator. The defendant company owed no duty to Marvin Miller, the deceased. Kelly v. Benas, 217 Mo. 1; Glaser v. Rothschild, 221 Mo. 180. (2) In that it holds that the trial court did not err in submitting the case to the jury under the "attractive nuisance" doctrine, and in holding the "attractive nuisance" doctrine applicable. Rallo v. Heman Construction Company, 291 Mo. 221; State ex rel. v. Ellison, 281 Mo. 667; Buddy v. Union Terminal Railway Co., 276 Mo. 276; Kelly v. Benas, 217 Mo. 1. (3) In that it holds that Marvin Miller, an intelligent boy, fourteen years of age, and twice warned of the danger, was not guilty of contributory negligence as a matter of law. Boezel v Wells-Fargo Co., 260 Mo. 463; McGee v. Wabash Railroad Co., 214 Mo. 530; Payne v. Railroad Co., 136 Mo. 562. (4) In that it refused to hold that the act of Marvin Miller in going into a place of danger after being fully warned thereof, and his foot slipping and his grabbing the wire was the proximate cause of the injury. Morris v. Kansas City Light & Power Co., 302 Mo 475; State ex rel. v. Ellison, 271 Mo. 463; American Brewing Assn. v. Talbot, 141 Mo. 671.

Henry M. Griffith, George H. Kelly, William Buchholz, I. B Kimbrell and Martin J. O'Donnell for John G. Miller.

(1) This court is without jurisdiction for the reason that the first judgment of affirmance by the Court of Appeals was final, because said judgment was rendered in accordance with the then existing law, and the judgment of this court on mandamus reported in 303 Mo. 284 was void for the reasons (a) This court was without jurisdiction or power to create the duty and require its performance by the writ of mandamus which it imposed on the judges of the Kansas City Court of Appeals. It was without power to change the existing law and substitute a new law in its stead. (b) John G. Miller could not properly be a party to the said mandamus proceeding for the reason that this court had no jurisdiction to consider any issue that he could raise and hence it was without jurisdiction to deprive him of his property unless he could raise issues concerning his rights in the judgment. Hargadine-McKittrick Dry Goods Co. v. Garesche, 227 S.W. 824. (2) Relator, by electing to proceed in this court by way of mandamus in cause number 26477 now pending in this court and submitted on November 13, 1925, has by virtue of the doctrine of election of remedies precluded itself from pursuing the remedy by certiorari after having pursued the remedy by mandamus. Article on Election of Remedies, 20 C. J. 1. (3) This proceeding should be stayed pending the disposition of the suit in the Federal courts. Johnson v. American Surety Co., 292 Mo. 521. (4) There is no conflict between the opinion of the Court of Appeals and any previous opinion of this court, and none of the cases cited by relator are based upon the same or a similar state of facts and hence there is no conflict. State ex rel. Ins. Co. v. Allen, 303 Mo. 618; State ex rel. v. Trimble, 271 S.W. 43. (5) While expressions have been used in the opinion herein concerning the attractive nuisance doctrine, yet that doctrine has really no application to the facts in this case. Davoren v. Kansas City, 273 S.W. 401.

OPINION

Graves, J.

Certiorari to the Kansas City Court of Appeals on the ground of conflict of opinions. The case out of which this proceeding grows (John G. Miller, Respondent, v. Kansas City Light & Power Co., appellant) has had a long and checkered career. When the case of Miller v. Kansas City Light & Power Co. was tried in the Circuit Court of Jackson County, the plaintiff had judgment for $ 7,000. The defendant appealed to the Kansas City Court of Appeals, and there (without going into the merits of the case) the judgment was affirmed upon an alleged defect in appellant's abstract of record, without a consideration of the merits of the case. The Kansas City Light & Power Company, as relator, in State ex rel. v. Trimble, 303 Mo. 284, asked this court, by its writ of mandamus, to compel the Kansas City Court of Appeals to hear and determine the case upon the merits. We ruled that the record was sufficient, and by our writ of mandamus compelled the Kansas City Court of Appeals to determine the case upon the merits. [State ex rel. v. Trimble, 303 Mo. 284.] Later the court did undertake to determine the merits, and by a majority opinion affirmed the judgment of the circuit court. To this opinion Judge Trimble filed a vigorous dissent. Notice was given that application would be made for a writ of certiorari to this court. To thwart this action, Miller, the plaintiff, sought an injunction in the U.S. District Court at Kansas City, to prevent the prosecution of an application for a writ of certiorari in this court. A temporary restraining order was issued, but upon motion such order was dissolved within a few days, and the application for our writ of certiorari was, within due time filed, prosecuted, and our writ granted. Later the said Miller appealed to the United States Court of Appeals for the Eighth Circuit, and this appeal had been argued, and was pending when we heard the argument here, in the instant case. We delayed opinion out of respect for the U.S. Court of Appeals. Our opinion in State ex rel. v. Trimble, 303 Mo. 284 (in the U.S. Court of Appeals), was severely criticized by and through the youthful exuberance of counsel for Miller, but the court, meeting all contentions of counsel, fully sustained our opinion. [Miller v. Kansas City Light & Power Co., 13 F.2d 723.] Being temporarily restrained from filing an application here for writ of certiorari, counsel for the Light & Power Company filed an application for and got our alternative writ in mandamus to compel the Kansas City Court of Appeals to certify the case of Miller v. Kansas City Light & Power Company to this court. Such case is here, and has been argued, and is our number 26477. We are concerned, however, solely in the disposition of the case in certiorari, as the mandamus case fell to another. So much for preliminary history. In this case there is a plea to our jurisdiction, all of which was fully threshed out by Van Valkenburgh, Circuit Judge, in the U.S. Court of Appeals, supra. The question needs no further notice by us in view of the elaborate opinion of Judge Van Valkenburgh, which had the full concurrence of that court. We shall not discuss this dead issue.

I. There are two opinions in the case out of which this proceeding grows. Judge Trimble filed a vigorous dissent, in which the law of the case (in our judgment) was written. However, in this proceeding in certiorari we go to the majority opinion for the facts. Much is said in the majority opinion about our opinion in the first mandamus case, but this has nothing to do with the real matter in issue here now. However, in passing it will suffice to say that the majority opinion has wholly misconceived our cases, as is thoroughly demonstrated by the learned opinion of Judge Van Valkenburgh, supra. We quote in full the facts from the majority opinion, as follows:

"Proceeding now to a consideration of the case on its merits, we find the record discloses the following:

"At the time of his death Marvin Miller was an unmarried minor past fourteen years of age. He was bright, intelligent healthy and did well in his school. In summer he lived with his father on a farm in Platte County, and from the time he was seven or eight years of age he had resided during the winter months with his sister at 5012 Walrond Avenue and attended school in Kansas City, Missouri. He met his death at about 9:15 P. M. October 31, 1919, upon a telephone and electric light pole set in the parking on the south side of Forty-ninth Street and a little east of its intersection with Walrond Avenue. Forty-ninth Street runs east and west and intersects Walrond Avenue at right angles. The night was rainy and misty.

"The pole upon which the boy lost his life was the property of the Kansas City Home Telephone Company. The line of poles of which this was one ran east and west on the south side of Forty-ninth Street, and the poles were set in the parking space between the sidewalk and the pavement. About seventeen feet from the ground, the Missouri & Kansas Telephone Company (known as the Bell System) had attached to the south side of said pole and running east and west, a hundred-pair cable one and five-eights inches in diameter, encased in lead armor, said cable being supported by means of rings by a five-sixteenth-inch messenger wire. This messenger wire was fastened to the pole. Just opposite the Bell cable and parallel thereto the Home Telephone Company had a similar cable similarly attached to the pole, and at the same height from the ground.

"The Home Telephone Company had placed iron steps on the pole alternating the north and south sides thereof, beginning ten feet from the ground and extending up as far as the telephone cables only. These alternating steps were about eighteen inches apart and in climbing the pole one took an eighteen-inch step. Later the Bell Telephone Company placed wooden cleats or steps on the pole beginning about eighteen inches from the ground and alternating on the east and west sides thereof up to where the iron steps began. So that it was necessary for a climber to go...