State Ex Rel. Union Biscuit Co. v. Becker , 316 Mo. 865 ( 1927 )

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 in State ex rel. Pedigo v. Robertson, 181 S.W. l.c. 989, 990, a majority of this court agreed that the scope of the commonlaw writ of certiorari is thus correctly stated in 5 Ruling Case Law, 264:

"The writ of certiorari, as a general rule, brings up for review only the record proper of the tribunal to which it is addressed and not the evidence. But if it becomes necessary for the court of review to be put in possession of the facts upon which the court below acted, and which are not technically of record, it is competent to require the lower court to certify such facts in its return to the writ, and this statement of facts will then be a part of the record."

In the majority opinion, with the concurrence of a majority of the court on this point, Judge FARIS said (l.c. 990):

"It is fairly plain, the nature of the writ of certiorari considered, that there can be no hard-and-fast rule in all jurisdictions as to what constitutes the record to be sent up by the court or administrative body to which the writ is directed. Even a cursory examination of the authorities discloses this. . ..

"So clearly we have the authority to so regulate the command of this writ that it will bring up from the inferior tribunal only so much of the record as may be necessary for our use in deciding the questions in issue."

This rule as to the scope and efficacy of the commonlaw writ ofcertiorari is consonant with reason and supported by the weight of authority. The opinion properly concludes that we may regulate the command of the writ in accordance with the purposes sought to be accomplished by the use of this extraordinary legal remedy, and that without impairing the remedy. However, without promulgating any court rule or handing down any decision clearly limiting the command of our writ in such cases, we have from time to time with some contrariety of expression said what we would and what we would not examine on the return to our writ.

In State ex rel. United Rys. Co. v. Reynolds, 257 Mo. l.c. 36, Judge BROWN, speaking for a majority of this court, said: "We are of opinion that we should not examine the evidence, but rely upon the facts as found and recited by respondents. . . . We will consider only the pleadings, evidence and facts as recited by the court of appeals whose judgment is sought to be quashed." The latter part of this opinion, however, holds that the very information which occasioned these remarks was not necessary to a decision of the case, thus making these remarks obiter dicta.

In State ex rel. C.R.I. P. Ry. Co. v. Ellison, 263 Mo. 509, Judge BOND, treating the above expressions as the controlling opinion of the court, applied them to the case in hand, but in this he received the specific concurrence of only two other judges, JAMES T. BLAIR, J., concurring only in the result.

In State ex rel. Gilman v. Robertson, 264 Mo. 661, the arguments for and against our power to issue these writs were respectively presented by Judge GRAVES in the majority opinion, and by Judge BOND in a dissenting opinion. The former is of prime importance in its bearing upon the question of what shall be examined on the return to the writ, because it constitutes a clear expression and holding of this court that the fundamental purpose of the exercise of this phase of our "superintending control" is to bring about "harmony in the law" to the end that one doctrine of law and equity shall apply in all appellate jurisdictions.

We now come to a case cited by relator herein, State ex rel. National Newspapers' Association v. Ellison, 176 S.W. 11. It was decided by this court, in Banc, April 2, 1915. Opinion by GRAVES, C.J., in which all concur except BROWN, J., and BOND, J., who dissent, the latter on question of our jurisdiction only; BLAIR, J., not sitting. In this opinion it is said (l.c. 12), although the opinion of the court of appeals set forth the substance of the petition, that the petition would be looked at, "being just as much a part of the record as is the opinion of the court." Here we have a definite ruling by this court that at least this much of the record in the court of appeals brought here by our writ of certiorari is the record in this court, and that we may examine the petition for the purpose of determining whether the court of appeals has decided the case according to the controlling decisions of the Supreme Court. If the doctrine applied in State ex rel. C.R.I. P. Ry. Co. v. Ellison,263 Mo. 509, supra, contravenes, it was here clearly overruled. As to the facts of the case, however, a different rule is thus announced: "For the facts of the case we should go to the opinion of the Kansas City Court of Appeals. . . . It should therefore be taken as true that the facts in the case were broad enough to authorize the instruction, because the Court of Appeals so says."

This latter ruling apparently does not question the competency of the commonlaw writ of certiorari, if it becomes necessary for the court of review to be put in possession of the facts upon which the court below acted, to require the lower court to certify such facts in its return to the writ. It simply states a rule of practice, possibly ab inconvenienti, that in this class of cases "for the facts we should go to the opinion" of the court of appeals, and we have ever since adhered to this rule.

The ruling that we will examine matter incorporated by reference in the opinion was followed in State ex rel. Hays v. Ellison, 191 S.W. 49, decided in Court en Banc, opinion by JAMES T. BLAIR, J., in which all concurred except FARIS, J., not sitting, and BOND, J., who concurred only in result. On this point the view of the court is thus expressed on page 53:

"The order of publication is not set out in the opinion. Nevertheless, it is expressly referred to and made the basis of a distinct holding. The effect of this is to incorporate it in the opinion and require that it be treated and examined as a part of it. No one would doubt that any court in citing and applying the decision on this point would be under the necessity of consulting the record and construing the opinion in connection with the order of publication the record shows. If a reference of this sort in an opinion does not, in accordance with the general rule, warrant this court in treating the matter referred to as thereby made a part of the opinion for the purposes of writs like this, then the harmony of decision required to be maintained means only a surface harmony which may disappear as soon as it is determined what the opinion under examination really means. Such a result is unreasonable. The order of publication is to be held incorporated by reference."

It was followed in State ex rel. Quercus Lumber Co. v. Robertson, 197 S.W. 79, decided in Court en Banc, where one opinion referred to another opinion for a statement of the facts as to how the plaintiff was injured.

In State ex rel. Wahl v. Reynolds, 272 Mo. 588, l.c. 596, the majority opinion held that our review would not "embrace any consideration of the record of the case in the Court of Appeals further than the same is set forth in the opinion under review."

In State ex rel. St. Regis Realty Inv. Co. v. Reynolds, 200 S.W. 1039, Judge WILLIAMS, with Judge FARIS only concurring, uses much the same language, but the point adversely ruled upon was the relators' request that the whole record be examined for facts not stated in the opinion. In a separate concurring opinion (l.c. 1041), Judge GRAVES took pains to state his own construction of Judge BOND'S words "set forth," consistent with State ex rel. Natl. Newspapers' Assn. v. Ellison, 176 S.W. 11, supra, thus:

"In my judgment when the opinion of the Court of Appeals refers to a pleading, an instruction, or any other written document, and makes such written document the subject-matter of a ruling, then such pleading, instruction, or other written document is by such reference just as much a part of the opinion as if fully ``set forth' therein."

It is apparent that mere allusion to a written document is not sufficient to incorporate it in the opinion. It must further appear from the opinion that the pleading, instruction or other written document referred to was the subject-matter of a ruling therein.

In State ex rel. Kansas City v. Ellison, 281 Mo. 667, the opinion referred to the pleadings and instructions, and we examined them in our review of the case. The majority opinion written by GRAVES, J., in which BLAIR, GOODE and WILLIAMSON, JJ., concur, comprehensively reviews the previous cases, including State ex rel. Wahl v. Reynolds, 199 S.W. 978, and again announces the rule above stated in State ex rel. Natl. Newspapers Assn. v. Ellison, 176 S.W. 11. Since this decision we have uniformly adhered to this rule which we have found expressly stated or referred to in State ex rel. City of St. Joseph v. Ellison, 223 S.W. 671; State ex rel. Iron Mt. So. Ry. Co. v. Reynolds, 286 Mo. l.c. 217 (in which Judge JAMES T. BLAIR discusses the nature of incorporation by reference); State ex rel. Continental Ins. Co. v. Reynolds, 235 S.W. 88; State ex rel. Natl. Council v. Trimble, 292 Mo. 371; State ex rel. Raleigh Inv. Co. v. Allen,294 Mo. 214; State ex rel. Vogt v. Reynolds, 295 Mo. 375; State ex rel. Studebaker Corporation v. Trimble, 297 Mo. 667; State ex rel. Western Auto Ins. Co. v. Trimble, 297 Mo. 659; State ex rel. Seibel v. Trimble, 299 Mo. 164; State ex rel. Vulgamott v. Trimble, 253 S.W. 1014; and State ex rel. John Hancock Ins. Co. v. Allen, 282 S.W. 46.

In the instant case respondents ruled and their opinion states that "in the petition there were three assignments of negligence." The face of the opinion discloses that the petition was the subject-matter of a ruling, and on the authority of the above cases we should examine the petition, which for the purpose of our review is thus made a part of the opinion and record before us. Counsel for each side have briefed and submitted the case in the light of our unequivocal and repeated ruling, and on the assumption that we would examine the petition. This we shall now proceed to do.

The part of the petition charging negligence is as follows:

"Plaintiff states that it was the duty of the defendant to exercise reasonable care to furnish and provide her with a reasonably safe place in which to work, and to keep said place in a reasonably safe condition, but that defendant was careless and negligent in this respect, in that the floor over which plaintiff was obliged to pass was in a wet, sloppy and slippery condition; that the defendant knew of this condition of said floor, or by the exercise of reasonable care could and should have known thereof; and that this condition of said floor directly caused plaintiff to slip, fall and be injured as aforesaid.

"Plaintiff, for a further assignment of negligence, states that the defendant was careless and negligent in ordering and directing her to cross said floor when said floor was in a wet, sloppy and slippery condition, this being known to the defendant, or by the exercise of ordinary care could have been known to it.

"Plaintiff, for a further assignment of negligence, avers that the defendant was careless and negligent in causing and permitting said floor to be scrubbed during regular working hours, the scrubbing thereof causing said floor to become wet, sloppy and slippery and dangerous to walk over, this being known to the defendant."

There is no allegation in the petition that either the second or the third of the above so-called assignments of negligence caused or contributed to cause the plaintiff's injury, and hence plaintiff was not entitled to go to the jury on either as stating a separate and distinct ground of negligence. The petition in fact presented only one ground of negligence, namely, that covered by the first assignment which is alleged to have "directly caused plaintiff to slip, fall and be injured."

The opinion further reads:

"At the close of the plaintiff's case, and again at the close of the whole case, defendant requested an instruction in the nature of a demurrer to the evidence. These instructions were not specific, but general in their nature. After the court had overruled same defendant did not ask for any specific withdrawal instruction as to any assignment of negligence in the petition, but requested, and the court gave in its behalf, six instructions. . . . It is now in no position to complain of the court's action in refusing to give its peremptory instruction in the nature of a demurrer which it requested at the close of the plaintiff's case and at the close of the whole case."

Having erroneously concluded that three separate and distinct grounds of negligence were pleaded when only one was stated, respondents of course did not consider that when only one ground of negligence is stated in the petition a demurrer though general in form is in fact specific, and failed to follow the controlling decision of this court in Torrance v. Pryor, 210 S.W. 430, and other cases, holding that where the demurrer to the evidence is specific the defendant is not estopped to urge the insufficiency of the evidence in the appellate court by reason of the fact that after the demurrer was overruled defendant asked instructions on the issues. On the record in the Torrance case we ruled for plaintiff because (l.c. 432-3) more than one ground of negligence was submitted, and hence the general demurrer to the evidence was in no sense specific. State ex rel. Miss. River B.T. Ry. v. Allen, 272 S.W. l.c. 927, was apparently decided on the authority of the Torrance case, but the record on this point was evidently not the same. While the opinion recites (l.c. 926) that "the petition, as is disclosed in the Court of Appeals' opinion, counted on several acts of negligence," etc., it further states that "the plaintiff abandoned her other assignments, and by an instruction submitted the case to the jury, asking a recovery under the humanitarian doctrine."

For the reasons above stated it is ordered that respondents' record and judgment herein be quashed. Graves, Ragland andGantt, JJ., concur; White, J., dissents in a separate opinion, in which Blair, C.J., and Walker, J., concur.