State ex rel. United Railways Co. v. Reynolds ( 1919 )

BLAIR, J.

Certiorari. In the case of Lampe v. United Railways/202 S. W. 438, the St. Louis Court of Appeals had before it a motion for a new trial upon these grounds:

“Because the court erred in refusing to give and read to the jury legal and proper instructions requested by defendant.

“Because the court erred in giving and reading to the jury erroneous, illegal and misleading instructions on behalf of plaintiff and over defendant’s objections thereto. ’ ’

The Court of Appeals held that these allegations of the motion were insufficient to present for review the question of the correctness or incorrectness of the instructions given and refused. It based this conclusion upon Kansas City Disinfecting & Mfg. Co. v. Bates County, 273 Mo. 300. In that case Polski v. St. Louis, 264 Mo. 458, Wampler v. Railroad, 269 Mo. 466, and State v. Rowe, 271 Mo. 88, are cited in support of a holding that an assignment in a motion for new trial that “the court refused proper declarations of law offered by the plaintiff is insufficient.”

In Wampler v.. Railroad, 269 Mo. 1. c. 476 et seq., this court, in banc, expressed its views on general assignments in motions for new trial in civil, cases. The cases were cited and discussed, and the practice for decades referred to. It was held that the true rule is (1. c. 483): “When the motion for new trial charges that the court erred as to the giving or refusing of instructions, it but calls the attention to the things which the court has done or has failed to do. It sufficiently advises the court that he has erred in his judgment of the law of the case.” The principle thus announced and applied by Court in. Banc is applicable to this case. The language in the motion in the Wampler case, which refers to “each and all of the instructions,” is no less general in fact than that in the motion considered in this case. Both formulas challenge all the instructions. Intimations to the contrary in decisions cited ought not to be followed.

The Court of Appeals was .confronted by an unusual situation. The case it cited was decided in Division and post-dated the decision of Court in Banc in the Wampler case. In these circumstances the Court of Appeals held the divisional decision to be binding and followed it. While the decision of a division (“as to causes and matters pending before it,” Sec. 1. Amd. of 1890 to Const.) is a decision of the court, it is not possible to hold that it overrules or displaces a decision of Court in Banc except in so far as it affects the particular case in which it is made. When a divisional judgment becomes final it is final despite any conflict between the decision upon which it rests and decisions of Court in Banc. So far as concerns the law in principle, however, the decision of Court in Banc is still the law and is in no wise modified or affected by a conflicting divisional decision. It is apparent that if a conflicting divisional decision does not and cannot overrule or displace or affect a principle established by a decision of Court in Banc, then the Court in Banc decision remains the law and remains the live decision on the question. To say a divisional decision conflicting with a decision of Court in Banc is “the last previous ruling of the Supreme Court” within the meaning of Section 6, Article 6, Constitution of Missouri, p. 101, Revised Statutes 1909, would be equivalent to holding that a Division had overruled Court in Banc, i. e. that a part is greater than the whole. For these reasons we conclude the decision in the Wampler case was the “last previous ruling” within the meaning of the Constitution.

Another thing worthy of note is that in the divisional case cited, a second and independent reason was given for the course pursued.

We hold that the opinion conflicts with the controlling decision of this court, and that the record must be quashed.

WooiB-on and Graves, JJ., concur; Bond. C. J., concurs in result; Walker, Faris and Williams, JJ., dissent.