*1 MISSOURI, COURT OF SUPREME Reynolds. & Co. v. Box State ex rel.
ages, Article 21 of with. is in conflict void because Section 2 of our Constitution.
Again what calling is the fact attention to holding one as a in way be construed this behalf should not point such attach to whether or the other on pro- sort be made in this could, if raised time, calling ceeding, dispose atten- we contention point, properly tion to even if one to the fact that proceeding, timely made. be made in was not question A constitutional be raised at the should appellant oppor- opportunity. first tunity In this ease had an question raise the in her and also reply. her She it in but neither, mentions mentions for the time in first the motion for new trial. many rulings late
This was too under former of this (Speer v. Sheets In surance l. c. and cases therein cited), point and the for that is reason disallowed. upon judgment No other attach made is below. affirmed. therefore
All concur. THE STATE ex rel. ST. LOUIS BASKET & BOX v. GEORGE
COMPANY D. REYNOLDS et al., Judges, Appeals. Louis St. Two, September 15,
Division 1920. Appeals: Opinions. 1. CERTIORARI: Court of Conflict in In certiorari ground directed to Court of on the it bas refused previous ruling or Supreme failed follow the last of the question equity, Supreme on some law Court does not application determine whether said court its erred in of rules of it, law facts the record-before but whether in an- nouncing the law of the case the -facts stated in its previous ruling failed to Supreme follow the last Court. Renewed 2. NONSUIT: Within Pleading. allega- Year: Defective An ¡the plaintiff’s tion in the death of father was due Vol. 284.] Box
State ex rel. Basket bring a negligence, failed mother had their defendant’s damages had within months that within six suit for *2 damages brought year “and for death an action of their father’s action,” a plaintiffs state- said is defective nonsuit in that suffered amendment, judg- subject action, and a to is ment a cause petition the did not because thereon not be ment specifically allege will reversed year brought after within one suit was the by suffered, trial defendant at the it admitted where was nonsuit year. judgment not a A renewed within will the suit was allegation necessary on omission of a be reversed because of the maintained, have been a demurrer could account of which omission objection offered, except an in- in the form of to the not but was testimony. troduction of -; for -: Admission. An admission counsel 3. -: year petition filed the was within one defendant at trial that the defendant, suffered, binding not is whether or after on nonsuit effect, petition allegation to that and makes an in the there be unnecessary proof fact; of the and admission likewise makes such petition adding unnecessary allegation an to the an to amendment defectively action, petition a cause that effect. Where a states necessary allegation supplying an amendment a would and change action, an admission the fact the nature unnecessary. opposite party amendment makes such Assignments: TRIAL: General MOTION BOR NEW Instructions. Assignments in the that “the court motion for a new trial at objection plaintiffs request of defend- instance and and over giving improper in and erroneous instructions ant erred refusing proper jury” and “the court erred in correct instruc- requested by are sufficient in tions offered defendant” a civil appeal; require review of instructions and the case to a assignments Appeals ruling in that the in Court of language were couched instructions, general too to authorize a review of Supreme Wampler the decision of failed Court follow disapproves ruling prior point, on the 269 Mo. which assignments general in civil cases. sufficient and holds such But if -: Reviewed Nevertheless. 5. -:--: assignments Appeals, spite fact that of the ruled pertaining to too the instructions were the motion for new trial them, proceeded require general a review of nevertheless error was committed determined that review them and no either instructions, ruling giving so contra- or refusal of Court, appellant Supreme previous ruling vened no Appeals harmed, be will not of the Court assign- quashed, only much of as ruled that the but so its quashed. general review will be ments were too to invite SUPREME COURT OP MISSOURI, State ex Basket & Box Co. v.
Certiorari.
(in part);
part).
(in
quashed
Record
aeeir.med
Kelley &
relator.
Starke and Charles E. Miorrow
(1)
The
state facts sufficient
does not
constitute
cause
its face that
of action. It shows
brought
year
this suit
after the
ten months
date
al-
of the death
of deceased. While
leges
prior
had
suffered
non-suit
allege
brought
this,
does not
within one
action was
year
required
after
statute.
non-suit;
question
decision
*3
following
direct conflict with the
decisions of
court:
this
Chandler
251
592;
Mo.
Clark v.
Railroad,
Railroad,
v.
Damage
provided by
The doctrine the of the case tried below does apply question. (3) this The by admission made 1920. Vol. 284.] v. Basket & Box Co. State ex rel. brought within at trial this suit counsel the dispense year the effect after had nonsuit Ed.), (2 proof sec. on Evidence, with Jones fact. (4) (16 Ed.), 186. see.
257; Evidence Greenleaf on assignment trial for new motion The in the defendant’s improper giving erroneous court erred in request in refus- plaintiffs and instructions at ing proper asked defendants instructions correct require a the instructions was sufficient review of Ap- Appeals. of the Court the Court peals The decision question the de- conflict with on this is in direct Wampler M,o. v. Railroad, this cisions of Railway Lead 382; Stid v. Collier Co., 236 Barrington, 198 Mo. Co., 208 State v. (5) permitting The
v.' 111 Mo. Noland, instruction negligent acts therein to recover if directly the death of de- contributed to referred to requiring jury to further without find ceased, negligent directly contributed with causes acts negligence other than the deceased himself, is erroneous. decision question with the conflict decisions direct
this
ICrehmeyer
Co.,
v. Transit
Mo. 639;
this court
(6)
State Basket & ex rel. Box Co. v. respond- Sibley Leonard and Otto F. Karbe for ents.
(1)
by
The facts in the
will be ascertained
case
opinion
Supreme
solely from
in the
Court
rendered
Appeals.
case
ex
St. Louis Court of
rel.
State
.Douglass Reynolds,
v.
ex rel.
101;
W.
S.
State
Reynolds,
Bankers
v.
Life
208 S.
ex rel.
618;W.
State
Ry.
Met.
Ellison,
443;
v.
State ex rel. St.
S. W.
Regis Reynolds,
v.
1039;
W.
ex reh
S.
Shaw-
State
Rey-
v.
Ellison,
1044;
han
W.
S.
ex rel.
v.
State
Wahl
(2)
Supreme
nolds,
the brief filed State (6) evi- not the or 408. 199 Whether Ellison, S. W. in- justified refusing giving certain of a or dence appearing set contrary the facts from struction, not Appeals, matter is a out in the the Court pass Appeals is not a matter for the Court of on Supreme for the Court. State consideration of ex rel. Arel 11; S. Ellison, rel. Natl. News v. 176 W. State Farrington, (7) which A 272 163: v. from Mo. con- or a material will be amended averment is omitted, though facts, aver- when fact amended, sidered as provided evidence omitted, ment of are which was Appellant, objection ob- introduced thereto. without theory jecting will be bound evidence, having proceeded, viz., which he must be considered as be and will held to case, issue right object peti- insufficiency to the waived Sawyer 32; 104 Rail- rel. v. Scott, tion. State ex Mo. v. Bragg Railway Mo. v. 192 331; 356 Mo. road, 468; Co., Machinery Bottling Ridge, 547; Mo. v. Tebeau v. 261 Co. (8) speci- L. R. 841. 342; 3916D, 273 A. Mo. Co., p. fications of error a motion for new trial that the court improper giving erroneous instructions,” “erred giving each the instructions,” “erred proper refusing instructions,” “erred correct appellate review in But not sufficient to obtain an court. them, the court does review is immaterial where expressing was correct in whether or the court specifications that the said of error view were not suf- Maplegreen v. Trust Co., ficient. Co. 237 Kan- 350; Mfg. County, City Wynne v. Bates W. 92; S. sas Undertaking Wagoner Lampe Co., S. v. W. v. Rys. Pelligreen S. W. 438; Seitz v. Co., United Inv. 203 S. W. Co., Baker v. Const. Bakewell, Chitty Duestrow, Mo. 44; W. S. 445; Hanson v. Neal, 166 Mo. Railroad C. Writ certiorari MOZLEY, issued February the St. court to Louis Court *6 COURT QP MISSOURI,. SUPREME Reynolds. Basket & Box ex rel. in 1919, and thereto obedience the record of said cause is here for review. opinion
Said record consists of the St. Louis Appeals, reported which in is 891. S. W. caption) in (omitting as out set said as follows: that “Plaintiffs are the state lawful chil- dren day one John Probst, of or the was, who 25th about January, employ in
of of defendant in its factory engaged guidance said under the and and control logs removing of in from or defendant, certain tank boiling vat filled with water live steam, and said which operated by being vat at was, time, defendant in con- nection with said its business.
“Plaintiffs state that at said time said tank-or vat rectangular was constructed concrete and of was shape, about 14 feet with dimensions of that feet; ground depth it projected sunk to a was of several and feet, height approximately ground above the top nine inches; two feet and walls of capped by plank said approximately tank wooden ran wide, 14 inches which around walls said tank; partly top that the of said was tank with covered loose planks any boards, or tank and said was under exposed protection, but roof or other was to the action continually was of rain and the elements and moist from escaping steam and that on water; said date John employed removing Probst was steamed boil- logs said aforesaid; ed from as and, tank as was the cus- department, employees tom said as defendant by well *or knew exercise reasonable care would known, have as was the instruction of the defend- department agents charge ant’s servants said factory, standing pur- tank of said for the pose aforesaid. “Plaintiffs that at time state said there was rail- no appliance safety any
ing or handhold or other kind although provided tank, said on or about would have Yol. 284.] yel. Box Co.
State ex protec- entirely practicable been some afforded negligent tion, so. and it was in defendant to do maintaining state, that defendant was “Plaintiffs operating factory, herein at the times re- said ferred near the south which was situated to, a derrick, purpose tank, and was of hoist- wall of used exposed logs ing out of said derrick was tank; rain the action of the steam elements, or, consequence the also said wood- vat; tank planks top tank, en wall of said as well around the- *7 said were derrick, the cover and the wooden thereof rope slippery wet and the in said derrick was new and through stiff be moved the and and swollen and could great difficulty, derrick and blocks with in said improper apparatus and unsafe and all of said dangerous by or as well defendant condition, knew, and known, reasonable care would exercise of negligence condition defendant’s and careless- was due to ness. poles and hooks- further state that
“Plaintiffs provided by plain- time for the use of defendant at said getting logs employees in other out of said tiff and properly defective, and not too con- short, were vat dangerous purpose and intended, structed for employees. plaintiff and for the use of other dangerous under all of these state that “Plaintiffs allege long prior plaintiffs existed which conditions, to January, day 25th 'on or about said said and by just defendant before instructed Probst was John logs alleged, scalding out of take hereinafter said repeatedly required instructed and tank, and was impossible for him as to render his hasten in work so against consequences safeguard of the himself dangerous negligent above described; conditions and tank been in said had care- water at time the said permitted negligently defendant lessly to reach and stage or four feet below was three that it so low very as make "so dif- top tank, walls said of the MISSOURI, SUPREME COURT OF & Box Co. logs get. ficult to out of and state that same; standing while the said John Probst was the south pur- wall bending of said tank, and while over pose, swung lightly said near him derrick and touched slipped up- or him, attracted his attention, his foot slippery on the footing wet and he fell in- aforesaid, and negligence to said all vat, because of defendant’s carelessness aforesaid.
“Plaintiffs state that further said0derrick was, at swing, said caused as time, aforesaid, the endeavor representatives charge opera defendant’s of said straighten rope tion to out said derrick, which operation unreasonably rendered difficult reason negligent of the unsafe condition of the derrick equipment pulling rope and its aforesaid, and at the purpose set for pectedly above out, derrick was unex swing lightly
caused to near touch at tract attention of said John Probst.
“Plaintiffs- further state that as a result of care- lessness of defendant above set con- out sequence falling the said into vat as above de- John Probst scribed, was scalded and burned body. *8 over his whole state
“Plaintiffs further that he was removed to City Hospital the Alexian in Brothers said of St. Louis, injuries. where á later from he few his died hours said provided “Plaintiffs that state defendant and main- apparatus equipment, all tained and said and con- operation factory, all the methods of trolled said used negligent that and the defendant was and careless there- totolly inadequate the same in that unsafe in, dangerous, as defendant or would knew, have known of care, the exercise reasonable and had it not been for the defendant’s and carelessness the said nearliu’ence injuries and would not have said death occurred. further
“Plaintiffs state that thev law- ful the said John Probst ever children had. he or children; no lawful child that their has other mother, 284.] Vol.
; & Box Co. rel. Basket mem- times hereinabove all was at Probst, Elizabeth ac- an Probst; John lawful wife said tioned death, because wife tion accrued her such to as Probst, John related, above the manner never Probst, Elizabeth the said mother, but brought against prosecuted defendant any action period causing months six within such death, of this State the statutes death, as allowed after such action a cause of mother, reason whereof plaintiffs, of said the minor children has accrued' Probst. deceased John they heretofore further state that did
“Plaintiffs bring year an said death, the time of and within damages against the defendant herein action for petition, of action in this and that same cause set forth a nonsuit said action. suffered negligence state because of “Plaintiffs causing their the death of father above defendant as damaged they set forth been the sum ten dollars, thousand for which sum the costs of this (Italics pray judgment.” ours). .action consisting Appellant filed an answer on merits plea general negligence. contributory denial and a general reply The denial. defendant, it will be noted,
The did file a de- yto petition, murrer but answered the merits After above stated. first witness was sworn and any appellant before evidence was introduced an made objection ore introduction tenus of evidence “be- cause the does not state facts sufficient con- objection stitute a cause of action.” was overruled. during, before nor Neither or after the trial, did counsel point for defendant out to the trial wherein he thought did not state cause of action, but. appellant appeal argues counsel for learned here with *9 plaintiffs’ great earnestness that does not state allege action because it a cause of fails the time when present was and that the had, the nonsuit action 382 MISSOURI, OF SUPREME COURT Co. v. Box
State rel. ex year “brought judgment of non- within after plaintiffs.” against suit
The trial for thousand resulted in five plaintiffs’ which was in Appeals. dollars, favor, and hundred five by affirmed
Appellant contends holding overruling Appeals, his de- enough; holding by murrer the trial was well time, brought by suit the instant provisions 5425, under the Revised Statutes Section appellant’s assignments holding’ that in his 1909, respecting giving refusing for new trial motion general instruction were warrant review too following- conflict with the court, thereof (1) relating to demurrer, authorities: v. Chandler 592; 251 Mo. Railroad, Clark v. 524; Mo. Boatwright, Alward v. 193 S. 568;W. State v. ex rel. Brewing. McQuitty 100; Co., Mo. v. 218 Mo. Wilhite, 591; Neal, l. c. Hanson 215 Mo. l. 278; v. c. Cantwell l. Co., 42; v. Mo. c. Lead Hudson v. Cahoon, (2) assignments 547; Mo. motion being general new trial too to warrant a review Wampler court, Railroad, 269 Mo. v. Stid v. Rail v. 236 Mo. Collier road, Lead 208 Mo. Barrington, 198 23;Mo. v. State Noland, I. In the case of State Goodrich, l. c. it was held J., as follows: Walker, procedure our “Under the office of the writ of certiorari is the same as at common law, and, consistent spirit existing with the letter statutes, our courts may Properly adopt usages principles Pleading. applicable issuance of the writ as same inay developed system. have been under the common-law developed The officeof the writ as procedure, under our precedents following the bring the common law, proceedings record of of inferior courts before superior legality court to determine the of the former’s *10 284.] Yol. Co. v. Box
State ex rel. brings up for review therefore, acts. The writ, proper. record case, the instant certiorari,
“In in such as writs [214 question conflict.” S. W. we limited to the rulings to de this court is not “Under its latest 369.] Appeals erred whether Louis termine the St. application in to the facts the record in rules law its announcing in of the whether the law before but it, stated in fol case its failed to facts previous ruling [State court.” low the last of this Reynolds, 214 c. 122, W. Peters S. l. cases cited.] appellant’s
The crux of contention as to demur- following wrapped petition: averment rer they “Plaintiffs state that did heretofore within year bring after the time of said an action for death, against damages the defendant herein on the same cause petition, plaintiffs forth action set in this and that (Italics ours.) a nonsuit in said action.” suffered supra, An examination the authorities cited will conclusively application show have no to the' ease because the hand, facts are different. In this point appellant very sought case the reach its verbal demurrer, when is, nonsuit was had and rebrought suit was not in time under the statute, open during progress later, court and of the admitted to be trial, incorrect.. While attempting offer the nonsuited in evidence, following occurred: you “The Court: Do admit filed time? yes,
Mr. It is, sir, the children’s suit was. Kelley': year I will admit he filed suit within after the nonsuit; denying no use the record.” think, We as ruled the Appeals,
said admission counsel binding appellant. Conway, [Pratt v. 148 Mo. l. p. c. par. 299; 1 R. C. L. O‘scanyan v. Arms S. 261; U. Butler v. Natl. U. Ridge, S. Tebeau Home, l.Mo. c. 558; MISSOURI, COURT OF SUPREME y. Reynolds. & Box rel. Basket
State ex (16 Ed.), Jones sec. 1 Greenleaf on Evidence (2 Ed.), 257.] sec. Evidence offering necessity for being And bound thus present proof filing time within the suit as to the appellant, above required Counsel waived. *11 in and counsel time, was that it stated, admitted filed plaintiff endeavoring prove filed that was was the admission. We in endeavor time, which evoked ought time taken in to be think the filed fact was as settled. made, had admission been we
Moreover, think since an was amendable amendment changed nature of the would have action. It “ supra, was Tebeau ‘Our statute case, very and we broad, are forbidden amendments is omitting any any allegation “for reverse proving the triers averment without which issue ” ought given not to such verdict.’ Or “for the allegation any want of or averment account of on which a demurrer could have been [R. omission maintained.” 2113, S. sec. which 1889, 1909; is now Sec. 2119, R. S. Seekinger Mfg. 129 598; v. Mo. l. c. Grove Kansas v. City, The 672.] 75 action merely Mo. cause de fectively in the' stated and could have as been, above amended that not been stated, had un rendered necessary appellant’s supra, petb admission that the tion Ap filed in time. had been think We peals correctly sustaining overruling ruled appellant’s appellant’s demurrer and that admission, supra, binding him.
II. ruling further sets forth the court’« complained refusal review the instruction language because couched general, too as ‘‘ follows: The court at request the instance plain objection over the giv tiffs of defendant, erred in ing improper and erroneous jury,” instructions to the
and, “the court erred refusing7proper an<^ correct (cid:127) instructions offered re General Assignments. quested defendant.” 385 Yol. 284.] TERM,' & Co. v. State Box rel. proposition the support of said
The court cited in County, Mfg. Disinfecting v. Bates cases of Co. Wampler Mo. Louis, Polaski St. Mo. v. Sanders, v. Rowe and 88.Mo. except Wampler case dis
All of these cases proposition. citing support tinctly cases these In supporting proposition assignment in as that said general justify the motion for new trial are too reviewing court in the learned Court them, Wampler assignments was in error. The case holds general in the motion for new trial as those in the sufficiently specific case at bar are re for this points view In the raised. recent case of State ex Rys. Reynolds, United 554, W. S. expression Wampler case is held to be the last general assignments this court to the effect that such here, the motion for new trial sufficient for review *12 assignments holding and that other cases such be too to general justify longer a review here should be followed. assign-
The citation of authorities that the general in the for ments motion new trial were too must disregarded. be judge
II. The opinion learned who rendered the Appeals the court further held as follows: assign- we have “However, each examined of these relating ments of error to the instructions and con-' Furthermore, each of them eluded be to without merit. the instructions in the case show the that learned trial judge very properly narrowed the issues ease withdrawing jury’s instructions from the consideration supported of such issues had not been by testimony plaintiff’s adduced on behalf, the instruction as to remaining the fully issues covered the fairly.” case expressly Thus court the holds that it did' review complained the instructions of and determined that MISSOURI, COURT OP SUPREME Box Co. Basket & unable presented In of this fact we no error. view relator is harmed. understand how merits on the facts The court further set out overruling re- the case, sustained trial court testimony, the close of lator’s demurrer offered at jury, submitting for their deter- and in said facts plaintiff for for returned a mination, which verdict $5,500.
The fact that cited the court authorities the. effect assignments trial for new motion general for in that court or in court, too review does this anywise not in affect merits of the case and would justify quashing simply not quash us in entire record. We portion holding record that the motion opinion general, may new too for trial that this so expression harmonize with the last as set court, supra. Rey [State forth in the authorities, ex rel. v. nolds, Mo. c. 602.] l. Judge speaking In this case, for the court, Graves, opinion agree
said: “We do not to the says in so far as voluntary that there was a payment judgment of these taxes, but the entered proper quashed. one and should be The Constitution makes the part of the court a quash record, portion of its and we will such pf its record assigned paragraph for reason in our one, but will permit judgment its right because stand, ’’ party. judgment of the court in the instant case is a proper quash portion one, we will while of its permit record indicated, we will to stand, *13 right party. because for the It sois ordered. White, Bailey, C., sitting. concurs; not G., PER foregoing CURIAM: The Mozley, hereby adopted the‘opinion isC., of the court. All of judges concur; J,, in Walicer G. the result.