State ex rel. United Railways Co. v. Reynolds
213 S.W. 782
Mo.
1919
Check Treatment

Lead Opinion

BLAIR, J.

Certiorari. In the case of Lampe v. United Railways/202 S. W. 438, thе 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 rеad 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 *557on behalf of plaintiff and over defendant’s objections thereto. ’ ’

The Court of Appeals held that these аllegations of the motion were insufficient to present for review the question of the correctness or incorrectness of the instruсtions 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 оf the case.” The principle thus announced and applied by Court in. Banc is applicable to this case. The language in the mоtion 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 thе 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 pos*558sible to hold thаt it overrules or displaces a decision of Court in Banc except in so far as it affects the particular case in which it is madе. When a divisional judgment becomes final it is final despite any conflict between the decision upon which it rests and decisions of Court in Banс. 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 thе 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. е. that a part is greater than the whole. For these reasons we conclude the decision in the Wampler case was the “last рrevious ruling” within the meaning of the Constitution.

Another thing worthy of note is that in the divisional case cited, a second and independent reason wаs 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.



Dissenting Opinion

WALKER, J.

(dissenting.)—I do not concur in the conclusion reached in the majority opinion, that the motion for a new trial therein is sufficiently specific in regard to the instructions, to authorize a review of ‍‌‌​‌‌​​​​‌‌​​‌​‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​‌​​​‌​​‌‌​​‌‍same. The cardinal purpose of our code of procedure is onе of simplicity" and directness. This purpose is manifest wherever the clear current of the administrative law has not been clouded by incсngru*559eras amendments. In no particular instance is this truth more strikingly illustrated than in Section 1841, Revised Statutes 1909, which provides that “all motions shall he accompanied by a written specification of the reasons upon which they are founded; and no reason not so specifiеd shall be urged in support of the motion.” An observance of the requirements of this section cannot but aid the trial court in readily ascertaining and speedily determining the errors assigned, especially as to the instructions. These, as even the novice in the practice knows, are only subjected to general objections when given or refused, and the trial judge is afforded no intelligent opportunity to cоrrect an error therein until he rules upon the motion for a new trial. Unaided by any specific allegations, and having only for his guidance аn indiscriminate, general declaration challenging the correctness of the instructions, he must perforce in the discharge of his duty, review the entire record to determine whether or not in the heat and haste of the trial, error in that regard has been committed.

It is cleаr to my mind that this “slip-shod” and misleading practice of making general assignments of error, in regard to the instructions in motions for a new trial, is in the very teeth of the statute (Sec. 1841)’; contrary to, the purpose of the code; and that it entails what would otherwise be unnecessary labor upon the trial courts. Of such evident importance, therefore, to our practice is the right interpretation of this statute that I have not hesitated to express at some length my protest against the adoption of the majority opinion. This too, notwithstanding the fact thаt the writer of the dissenting opinion in the Wampler case, 269 Mo. l. c. 486, and his associate, Judge Faris, in the Rowe case, 271 Mo. 88, traced the history and mutations of Section 1841 from its early incorporation into our code down to the present revision, with the result that it is shown beyond cavil that ‍‌‌​‌‌​​​​‌‌​​‌​‌‌‌​​‌​‌‌‌​​‌‌​‌​​‌‌​‌​​​‌​​‌‌​​‌‍this section was intended to apply to motions for new trials as well as others, and that a disregard of same is unauthorized under all reasоnable rules of interpretation.

*560Furthermore, it was not necessary to a determination of the matter actually at issue in the motion fоr a new trial in the majority opinion in the Wampler case, that it be there held that a general assignment of error in such motion concerning the instructions will suffice to authorize a review of same. This for the reason,that the motion in that case was sufficiently specific to conform to the requirements of Section 1841, which was not the."fact in the case at bar; and hence ther general observations оf the learned writer of that opinion may not unfairly be classified as obiter so far as they conclude that said section is not controlling.

Explicit in its terms, mandatory in its nature, and helpful in its purpose, the section should not be ignored. Hence this dissent.