Wolf v. Hartford Fire Ins. Co.

• Decision Date: 30 May 1924
• Docket Number: No. 23598.,23598.
• Citation: 263 S.W. 846,304 Mo. 459
• Parties: WOLF et al. v. HARTFORD FIRE INS. CO.
• Court: Missouri Supreme Court

263 S.W. 846

304 Mo. 459

WOLF et al. v. HARTFORD FIRE INS. CO.

No. 23598.

Supreme Court of Missouri, in Banc.

May 30, 1924.

Motion for Rehearing Denied July 3, 1924.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Jerry Wolf and another, partners, doing business as J. & A. Wolf, against the Hartford Fire Insurance Company. Judgment for defendant, and plaintiffs appeal. Case transferred to Court of Appeals.

Sebree, Jost & Sebree, Frank P. Sebree, Sam B. Sebree, and Henry Jost, all of Kansas City, for appellants.

C. G. Myers, of Chicago, Ill., and Amos Townsend, of Kansas City, for respondent.

JAMES T. BLAIR, J.

Appellants sued on a blanket policy of insurance which had been issued to the Kansas City Live Stock Exchange for its benefit and that of all shippers and purchasers who might have' live stock in its yards. In Division 1 an opinion was written on the merits. Two judges dissented on the ground that this court had no jurisdiction. On transfer to court en banc the cause was reargued and reassigned.

Appellants allege they lost by fire live stock then in the yards of which the value was $34,105, and that they have collected on 14 specific insurance policies the sum of $29,584.06, and they ask judgment for the difference in the sum of $4,519.94 and interest at 6 per cent, from June 1, 1918. They further pray judgment for $450 damages for vexatious delay and $500 attorney's fees. Suit was begun in 1918. Judgment was rendered in October, 1921. It is shown by a term bill of exceptions, which is not incorporated in the final bill, that when the pleadings had been settled respondent filed its motion as follows:

"Comes now the defendant and shows the court that the above-entitled cause is an equity ease; that the same was, on the 9th day of March, 1920, listed as a jury case. Wherefore, defendant moves the court that said cause be taken from said list of jury cases, and that it be ordered that said cause be placed on the equity side of the docket and tried as an equity case."

The court on this motion ruled that —

"Said motion is in all respects sustained and said cause is stricken from the jury docket as a jury case, and the court finds and declares that said cause is triable as an equity case the court without a jury."

It appears that appellants excepted and protested this ruling en the ground

"That the court by said action and ruling does thereby deny to these plaintiffs, and to each of them, a trial by jury guaranteed to plaintiffs by section 28 of article 2 of the Constitution of the state of Missouri."

When the cause came on for trial in another division, appellants renewed their demand for a jury, but (the record recited) "it appearing that Judge Lucas of division No. 2 of said circuit court having already ruled adversely to plaintiffs' demand, a jury trial was refused plaintiffs, to which action of the court in refusing plaintiffs a jury trial the plaintiffs at the time excepted and still except."

The amount sued for is not sufficient to give this court jurisdiction. Unless the ruling denying a jury raises a constitutional question of the sort which vests jurisdiction in this court, the case must be transferred. In order for a "constitutional question" to give this court jurisdiction of a case of which it otherwise would have no jurisdiction, that question must be One "involving the construction of the Constitution of the United States or of this state." It is not suggested that the construction of the federal Constitution is involved, and the single question is whether the construction of the state Constitution is involved.

It was not denied in the trial court nor is it denied here that appellants are entitled to a jury if this is an action at law. Nor has it been claimed that they are entitled to a jury if this is a suit in equity. Neither party makes either of these untenable suggestions either in brief or oral argument. Both are in agreement that the Constitution guarantees a jury, if one is desired, in all actions at law and that it does not give a right to a jury trial in suits in equity. This has been decided long ago and often. The ruling of the trial court was that the suit was in equity and for that reason no jury could be demanded as a right. It appears, therefore, that the parties and the court had no trouble in construing the Constitution. All construed it the same way. The difference of opinion arose out of the question whether the proceeding was an action at law or a suit in equity. That was the only difference of opinion in the trial court and is the only one here relevant to the question under consideration. That is the sole basis of appellants' argument in support of their contention that they have been denied a constitutional right i.e., that this is an action at law. It is, therefore, all that can be considered in connection with the question whether this court is to retain jurisdiction. It is obvious the solution of the problem whether this proceeding is an action at law or a suit in equity will determine whether appellants are entitled to a jury and will answer the only question raised or presented respecting the denial of a jury trial in this case. It is just as obvious that in order to confer jurisdiction upon this court in this case, the solution of the question which does so must involve a construction of the Constitution. It is equally clear that no court by construing the Constitution can determine whether this is an action at law or a suit in equity. That is a question which, as this court has so often held, must be answered by a construction of the pleadings in the case. If jurisdiction were retained and this court heard the case here, there is no foundation either in the record or in any question raised by appellants which would justify any construction of the Constitution. It would be singular if this court could retain jurisdiction of this case on the ground that a construction of the Constitution is involved, when the record does not present, and appellants do not raise, and this court, therefore, could not actually decide, any question involving such construction.

If the trial court has erred in holding this to be a suit in equity, that error lies in a misconstruction of the pleadings, since it is settled the pleadings determine that question, and no mere misconstruction of pleadings can give this court jurisdiction of a case, no matter what right is affected nor how that right is protected nor from what source it comes. If this is not true in this case, then any and every suit in equity can be lodged here by the process of demanding a jury trial and having it refused. The principle contended for is broad enough to let in every suit on a contract on the contention that the contract has been misconstrued and its obligation has been thereby impaired, and, in fact, there seems to be no reason to doubt that the same rule would give jurisdiction of every case in which error was assigned and it was claimed the guaranty that "certain remedy" must be afforded had been violated.

It will not do to say that subsequent cases will be excluded by the rule that a settled constitutional question, though raised, will not give jurisdiction. If that rule does not apply in this case, even if it be assumed the question raised would otherwise give jurisdiction, there is no logical ground for saying that the addition of one more to the already very numerous decisions of the question will change the situation.

The simple fact that a constitutional right has been denied does not take a case out of the jurisdiction of our courts of appeals. The construction of the Constitution must be involved. The denial of such a right is error, to be sure, but the language of the Constitution is plain, and mere error however grave, does not vest jurisdiction in this court. To vest jurisdiction of the appeal in this court the case must come within section 12 of article 3 of the Constitution. This one does not do so. "

The opinion filed in division illustrates the point. In that opinion it was said in the statement:

"The plaintiff appealed to this court, our jurisdiction being invoked for the reason that a constitutional question is involved."

The question of jurisdiction wan not discussed. When the divisional opinion took up the question to which it had referred as the foundation of this court's jurisdiction, it devoted two pages to it. There is not a word in it which pertains to the construction of the Constitution. It is devoted solely to the question whether the answer transformed the case into a suit in equity. The averments of the answer pertinent to this question are discussed in detail. One by one they are held to have no such effect as respondent claims they had; and the paragraph concludes:

"We hold, therefore, that the answer presented no equitable features entitling the defendant to affirmative relief, or any relief in equity, and, therefore, the case was not properly transferred to the equity docket, and plaintiffs were erroneously denied the right of trial by jury."

The writer of that opinion and the concurring judges passed on the point in this case by turning to the pleadings and construing them and in no particular attempted to construe the Constitution in solving the question upon which it is conceded this court's jurisdicton depends if jurisdiction it could have.

Reference was made in the oral argument to State ex rel. Prior v. Kansas City et al. (Mo. Sup.) 261 S. W. 112 (No. 24022, not yet officially] reported) in which the question was whether one was entitled to a jury in a proceeding by mandamus. The question there was whether the constitutional guaranty of trial by jury covered proceedings by mandamus. Clearly, the solution of that question required a construction of the provisions of the Constitution invoked here, to determine whether proceedings by mandamus fell within it.

It is argued that the decision in Creve Coeur Lake Ice...