The State ex rel. St. Louis Basket & Box Company v. Reynolds

• Decision Date: 15 September 1920
• Parties: THE STATE ex rel. ST. LOUIS BASKET & BOX COMPANY v. GEORGE D. REYNOLDS et al., Judges, of St. Louis Court of Appeals
• Court: Missouri Supreme Court

224 S.W. 401

284 Mo. 372

THE STATE ex rel. ST. LOUIS BASKET & BOX COMPANY v. GEORGE D. REYNOLDS et al., Judges, of St. Louis Court of Appeals

Supreme Court of Missouri, Second Division

September 15, 1920

Record quashed (in part); affirmed (in part).

Kelley & Starke and Charles E. Morrow for relator.

(1) The petition does not state facts sufficient to constitute a cause of action. It shows upon its face that this suit was brought one year and ten months after the date of the death of deceased. While the petition alleges that plaintiffs had suffered a prior non-suit it does not allege that this action was brought within one year after said non-suit, as required by the statute. The decision of the Court of Appeals on this question is in direct conflict with the following decisions of this court: Chandler v. Railroad, 251 Mo. 592; Clark v. Railroad, 219 Mo. 524. The limitation provided by the Damage Act creating this cause of action (R S. 1909, secs. 5427, 5429) is not merely a remedy, but is a part of the action itself, and the petition must show that it was brought within the time allowed by law. (2) The petition was attacked by an objection to the introduction of any evidence at the beginning of the trial; again by a demurrer at the close of plaintiffs' evidence, and also at the close of all the evidence in the case. The point was kept alive by a motion in arrest of judgment. But the fact that a petition fails to state a cause of action is jurisdictional and cannot be waived. It can be raised in the appellate court for the first time. The decision of the Court of Appeals on this question is in direct conflict with the following decisions of this court: Alward v. Boatwright, 193 S.W. 568; State ex rel. v. Brewing Co., 270 Mo. 100; McQuitty v. Wilhite, 218 Mo. 591; Hansen v Neal, 215 Mo. 278; Cantwell v. Lead Co., 199 Mo. 42; Hudson v. Cahoon, 193 Mo. 547; Weil v Green County, 69 Mo. 281; Chandler v. Railroad, 251 Mo. 592; Nance v. Railroad, 79 Mo. 196; Childs v. Railroad, 117 Mo. 427. The doctrine of the theory of the case tried below does not apply to this question. (3) The admission made by counsel at the trial that this suit was brought within one year after the nonsuit had only the effect to dispense with proof of the fact. Jones on Evidence, (2 Ed.), sec. 257; Greenleaf on Evidence (16 Ed.) sec. 186. (4) The assignment in the defendant's motion for new trial that the court erred in giving improper and erroneous instructions at the request of the plaintiffs and in refusing proper and correct instructions asked by defendants was sufficient to require a review of the instructions by the Court of Appeals. The decision of the Court of Appeals on this question is in direct conflict with the decisions of this court in Wampler v. Railroad, 269 Mo. 464; Stid v. Railway Co., 236 Mo. 382; Collier v. Lead Co., 208 Mo. 246; State v. Barrington, 198 Mo. 23; State v. Noland, 111 Mo. 473. (5) The instruction permitting the plaintiffs to recover if the negligent acts therein referred to directly contributed to the death of the deceased, without requiring the jury to further find that said negligent acts directly contributed with causes other than the negligence of the deceased himself, is erroneous. The decision of the Court of Appeals on this question is in direct conflict with the decisions of this court in Krehmeyer v. Transit Co., 220 Mo. 639; Hof v. Transit Co., 213 Mo. 445. (6) There was no evidence that deceased was ordered or directed by the defendant to stand upon the wall of the tank, and defendant's instruction withdrawing this matter from the jury should have been given. The decision of the Court of Appeals on this question is in direct conflict with the decisions of this court in Russell v. Barcroft, 1 Mo. 663; Higgins v. Railway Co., 197 Mo. 314. (7) The instructions on the measure of damages approved by the Court of Appeals is erroneous, because it permitted the jury to take into consideration the condition in life of the deceased, as well as the condition of the plaintiffs as shown by the evidence, and is in direct conflict with the decisions of this court in McGowan v. Railroad, 109 Mo. 518; Barth v. Railroad, 142 Mo. 535; McPherson v. Railroad, 97 Mo. 253; Stoher v. Railroad, 91 Mo. 509.

Leonard & Sibley and Otto F. Karbe for respondents.

(1) The facts in the case will be ascertained by the Supreme Court solely from the opinion rendered in the case by the St. Louis Court of Appeals. State ex rel. Douglass v. Reynolds, 209 S.W. 101; State ex rel. Bankers Life v. Reynolds, 208 S.W. 618; State ex rel. Met. Ry. v. Ellison, 208 S.W. 443; State ex rel. St. Regis v. Reynolds, 200 S.W. 1039; State ex rel. Shawhan v. Ellison, 200 S.W. 1044; State ex rel. Wahl v. Reynolds, 199 S.W. 978. (2) The Supreme Court will consider one question and only one question, and that is whether or not the decision of the Court of Appeals is in conflict with the latest previous rulings of the Supreme Court on the same point. State ex rel. Byrne v. Ellison, 199 S.W. 408; State ex rel. Wahl v. Reynolds, 199 S.W. 978. (3) The Supreme Court will not consider any argument directed to the claim that the decision of the Court of Appeals was wrong on the merits and worked injustice. The Supreme Court is only concerned to see that no decision of the Courts of Appeal establishes a rule of law contrary to a rule of law previously established by the Supreme Court. State ex rel. Mech. Bank v. Sturgis, 208 S.W. 458; State ex rel. Byrne v. Ellison, 199 S.W. 406; State ex rel. Wahl v. Reynolds, 199 S.W. 978; State ex rel. Arel v. Farrington, 272 Mo. 157; State ex rel. Majestic Co. v. Reynolds, 186 S.W. 1073. (4) Although the opinion of the Court of Appeals conflicts with prior rulings of the Supreme Court in certain particulars, it will not be quashed upon certiorari if upon good reasons in law, the judgment directed by it was right. State ex rel. Am. Mfg. Co. v. Reynolds, 270 Mo. 589. (5) The writ of certiorari was issued on a petition. The petition is required to set forth the divergence relied on. Any matters not set forth in the petition will not be considered. Matters of divergence may not be presented for the first time in the brief filed for the hearing. State ex rel. Byrne v. Ellison, 199 S.W. 408. (6) Whether or not the evidence justified the giving or refusing of a certain instruction, the contrary not appearing from the facts set out in the opinion of the Court of Appeals, is a matter for the Court of Appeals to pass on and is not a matter for the consideration of the Supreme Court. State ex rel. Natl. News v. Ellison, 176 S.W. 11; State ex rel. Arel v. Farrington, 272 Mo. 163. (7) A petition from which a material averment is omitted, will be amended or considered as though amended, when the fact or facts, averment of which was omitted, are provided by evidence introduced without objection thereto. Appellant, not objecting to the evidence, will be bound to the theory on which he must be considered as having proceeded, viz., that the issue was in the case, and will be held to have waived the right to object to the insufficiency of the petition. State ex rel. v. Scott, 104 Mo. 32; Sawyer v. Railroad, 156 Mo. 468; Bragg v. Railway Co., 192 Mo. 331; Tebeau v. Ridge, 261 Mo. 547; Machinery Co. v. Bottling Co., 273 Mo. 142; L. R. A. 1916D, p. 841. (8) The specifications of error in a motion for new trial that the court "erred in giving improper and erroneous instructions," and "erred in giving each of the instructions," and "erred in refusing proper and correct instructions," are not sufficient to obtain review in an appellate court. But where the court does review them, it is immaterial whether or not the court was correct in expressing the view that the said specifications of error were not sufficient. Maplegreen Co. v. Trust Co., 237 Mo. 350; Kansas City Mfg. Co. v. Bates County, 201 S.W. 92; Wynne v. Wagoner Undertaking Co., 204 S.W. 15; Lampe v. United Rys. Co., 202 S.W. 438; Seitz v. Pelligreen Const. & Inv. Co., 203 S.W. 503; Baker v. Bakewell, 208 S.W. 844; State v. Duestrow, 137 Mo. 44; Chitty v. Railroad Co., 166 Mo. 445; Hanson v. Neal, 215 Mo. 277.

MOZLEY, C. White, C., concurs; Railey, C., not sitting. Walker, C. J., concurs in the result.

OPINION

Certiorari.

MOZLEY C. --

Writ of certiorari issued by this court to the St. Louis Court of Appeals on February 15, 1919, and in obedience thereto the record of said cause is here for review.

Said record consists of the opinion of the St. Louis Court of Appeals, which is reported in 207 S.W. 891. The petition as set out in said opinion (omitting caption) is as follows:

"Plaintiffs state that they are the only lawful children of one John Probst, who was, on or about the 25th day of January, 1913 in the employ of defendant in its said factory and engaged under the guidance and control of defendant, in removing certain logs from a tank or vat filled with boiling water and live steam, which said vat was, at the time, being operated by defendant in connection with its said business.

"Plaintiffs state that at said time said tank or vat was constructed of concrete and was rectangular in shape, with dimensions of about 14 feet by 28 feet; that it was sunk in the ground to a depth of several feet, and projected above the ground to a height of approximately two feet and nine inches; that the top of the walls of said tank were capped by a wooden plank approximately 14 inches wide, which ran around the walls of said tank; that the top of said tank was partly covered with loose planks or boards, and that said tank was not under any roof or other protection, but was exposed to the action of rain and the elements and was continually moist from the escaping steam and water; that on said date John Probst was...