source: Caselaw Access Project

author:
GRAVES, C. J.:
     BLAIR, J.

license: Public Domain

text:
    THE STATE ex rel. JOHN C. LONG v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals, and MARGUERITA CLARK.
    In Banc,
    December 22, 1917.
    1. APPELLATE JURISDICTION: Amount in Dispute: Not Considered by Court of Appeals: Decided on Certiorari. Although the Court of Appeals did not expressly rule that the amount in dispute did not exceed $7,500, yet if it assumed jurisdiction, the Supreme Court will upon certiorari, without reference to harmony of opinions, quash its decision, if the amount in dispute exceeded $7,500.
    2. -: -: Appeal from Order Granting New Trial. It is the amount involved in the appellate court that fixes appellate jurisdiction, and not what may he involved in the trial court on a new trial. Where plaintiff sued for $10,000 and recovered verdict for $10,000, and filed a remittitur for $2,500, and the plaintiff appealed from an order granting a new trial, the amount in dispute in the appellate court, from the standpoint of hoth plaintiff and defendant, was $7,500, and the Court of Appeals had jurisdiction.
    S. CERTIORARI: Directed Judgment. On certiorari, issued to a court of appeals on the ground that its opinion therein is contrary to previous rulings of the Supreme Court, the latter court, if it quashes the decision of the other, will not direct a judgment in the case, or tell it what to do when it undertakes to make a new record. The Supreme Court will only uphold or quash the judgment of the court of appeals, presuming that upon questions ruled that court will follow its rulings.
    4. INSTRUCTION: Omission of Necessary Element: Cured by Others. An instruction purporting to cover the whole case and directing a verdict for plaintiff, from which is omittee. an element of negligence necessary to ’plaintiff’s right to recover, cannot be cured by one given for defendant; and a holding by the Court of Appeals that such omitted necessary element is supplied by other instructions given, contravenes certain previous rulings' of the Supreme Court, and requires that its decision be quashed.

      Held, hy BLAIR, J., dissenting, that the Court of Appeals erred in holding that the instruction was erroneous or that it omitted any element necessary to plaintiff’s right to recover, and that being true its opinion cannot be quashed for that it further erred in holding that the ^mission was supplied by other instructions given.

      Certiorari.

    Record quashed.

      Rees Turpin and John B. Pew for relator.
    (1) The respondent judges failed and refused to follow the last controlling decisions of this court. The conflict is between this decision and the decision of this court in Wojtylak v. Kansas & Texas Coal Co., 188 Mo. 260. And said instruction is in obvious and irreconcilable conflict with the decision in Hall v. Coal Company, 260 Mo. 369. The St. Lonis Court of Appeals has construed the foregoing decisions of this court by direct reference in the following cases and such construction is in direct, obvious and irreconcilable conflict with the opinion of said respondent judges in the cases at bar. Said cases are: Trayler v. White, 185 Mo. App. 325; Humphreys v. Railway, 191 Mo. App. 710; Walter v. White, 192 Mo. App. 13; Rissmiller v. Railway, 187 S. W. 573; Pearson v. Lafferty, 193 S. W. 40.

      Hog sett & Boyle for respondents.
    (1) This court may say that the decision of the Court of Appeals conflicts in certain particulars with previous rulings of this court and quash only that portion of the opinion, permitting the judgment to stand if it is for the right party. State ex rel. v. Reynolds, 194 S. W. 878. (2) This court may inquire into the correctness of the decision with which it is claimed the opinion of the Court ' of Appeals is in conflict, and overrule' such decision and sustain the opinion of the Court of Appeals. State ex rel. v. Reynolds, 186 S. W. 1057. (3) This court has no jurisdiction to enter judgment in the caise out of which the proceedings in certiorari arose, but will simply quash or sustain the opinion of the Court of Appeals as the circumstances warrant. State ex rel. v. Reynolds, 186 S. W. 1072; State ex rel. v. Ellison, 186 S. W. 1075. (4) The opinion of the respondent judges in holding that the omission in plaintiff’s'instruction for a verdict was cured by an instruction given at the instance of defendant is not in conflict with the decisions of this court. Shaw v. Kansas City, 196 S. W. 1099; Salmons v. Railway, 197 S. W. 37; TawneyA. United Railways, 262 Mo. 602; Tranbarger v. Railroad, .250 Mo. 59; Railroad Co. v. Kemper, 256 Mo. 279; Railway v Stewart, 201 Mo. 499; Lange v. Railroad, 208 Mo. 477; Meily v. Railroad, 215 Mo. 587-8; Meadows v Life Ins. Co., 129 Mo. 97; Hughes v. Railway, 127 Mo. 452-3; Owens v Railway, 95 Mo. 181. The St. Louis Court of Appeals has announced this rule in: Bliesner v. Distilling Cov 174 Mo App. 150; Pendergrass v. Railroad, 179 Mo. App. 534; Farmer v. Railway, 178 Mo. App.' 594; Cooper v. McFarlen, 184 Mo. App. 184; Crader y. Railroad, 181 Mo. App. 542; Dorsey v. Railroad, 175 Mo. App. 164; Spalding v. L. & M. Co., 183 Mo. App. 657; Craig v. Railways Co., 175 Mo. App. 616. The Springfield Court of Appeals has announced it in: Foster v. United Zinc Co., 189 Mo. App. 288; Quinley v. Traction Co., 180 Mo. App. 287. And the Kansas City Court of Appeals in: Steele v. Ancient Order of Pyramids, 125 M.o App. 682; Forge Co. v. Engine Co., 135 Mo. App. 89; Heller v. Ferguson, 189 Mo. App. 490; Davis v. Railroad Co., 192 Mo. App. 422. (a)- The instruction submits to the jury the proper theory of negligence and is abundantly supported by the evidence. Van Verth v. Cracker Co., 155 Mo. App. 299; Johnson v. Bolt & Nut Co., 172 Mo. App. 214; Hawkins v. Railroad Co., 189 Mo. App. 201, 219; Koerner v. Car Co., 209 Mo. 141. (b) The instruction does not assume the negligence of the defendant or his foreman, (c) When the jury were required by the instruction to find that the defendant did not exercise ordinary care to prevent the board from falling, and that in failing to exercise ordinary caré to prevent the board from falling defendant was guilty of a careless and negligent act, they of necessity were required to find that it was negligence to permit the board to remain there under the conditions which' existed. Geary v. Railway, 138 Mo. 259; Dammann v. St. Louis, 152 Mo. 198; Phippin v. Railway, 196 Mo. 347; Brady v. Railroad, 206 Mo. 538; State v. Grayor, 89 Mo. 605.
   GRAVES, C. J.:

Certiorari to the Kansas City Court of Appeals, by which it is sought to quash the record of that court 'in the case of Marguerita Clark, appellant, v. John C. Long, respondent. Long is a contractor and- builder in' Kansas City, Missouri, and Marguerita Clark is the widow of Frank Clark, deceased, who came to his death by being struck with' a piece of board, which fell from the roof of or scarffolding beside a certain dwelling house then being constructed by Long. The house was in the course of construction, and on the north side thereof were two ■ dormer windows. The sheeting had not all, been fully placed upon the east dormer window. There was a scaffold on this north side of the house, which was being used in the course of the work. The evidence shows that in the course of the work then being done, pieces of boards one inch thick, six inches wide and of lengths ten to sixteen feet were being used, as sheeting, and that to make proper breaks in the roof, and to cover the dormer windows, some of these boards were sawed into shorter lengths. F;rank Clark was working in a drive-way leading to the north side of the said house, and near the scaffold on that side, and under the east dormer window. For two days the wind had been blowing quite a gale. The alleged negligence is thus stated in the petition, as we get it from the opinion of the Court of Appeals: “While so working on said retaining wall said deceased was struck in the head with a heavy board or timber, which said defendant, his foremen, superintendents and vice-principals in charge of and directing said work carelessly and negligently caused, suffered, or permitted to fall from said residence or some of the scatfolding about said residence when said defendant, his foremen, superintendents and vice-principals knew, or by the exercise of ordinary care could have known, that deceased was working at said point, and that he would be liable to be struck and injured by said board or timber.”

The evidence does not show in positive terms from whence the board came that occasioned the death of Frank Clark, but it can well be inferred from the facts shown and stated that it was blown either from the roof near the east dormer window, or from the scaffold below the roof.

For the plaintiff the court gave this instruction:

“The court instructs you that if you find from the evidence that on October 28, 1915, and prior to Frank Clark’s injury, defendant’s workmen had piled loose pieces of lumber across the top' of the east dormer window on the north side of the roof of the building in question (if - you so find), and that at said time a strong wind was blowing (if you so find), and that said boards were thereby liable to be dislodged and fall and injure persons wlio might be working near said' residence (if you so find), and that Frank Clark, deceased, was at the time herein referred to engaged in laying stone fin the automobile driveway leading to said residence from the north (if you so find), and was working in close proximity to the north wall of said residence, and at a point where he might be struck and injured by the falling of one of said boards (if you so find), and that defendant’s foreman in charge of sadd work knew, or by the exercise of ordinary care could have known the foregoing facts (if you find them to be facts) in time by the. exercise of ordinary care to have prevented any of said boards from falling, and that he carelessly and negligently failed to do so (if you so find); and if you further find from the evidence that previous to Frank Clark’s injury defendant’s workmen had also laid loose pieces of lumber upon the top scaffold on the north side of said building, over the place where Frank Clark was working, and that said scaffold was so constructed'that it vibrated and that there was danger of Said loose pieces of lumber (if any) falling from said scaffold and injuring Frank Clárk, and that defendant or his foreman knew, or by the exercise of ordinary care could have known, these facts (if you so find them) in time by the exercise of ordinary care to have prevented any of said loose pieces, if any, from falling from said scaffold and injuring Frank Clark, but negligently failed to do so (if you so find); and if you further find that thereafter on said date one of said boards (if any) fell, either from said, scaffold, by reason of the vibration thereof (if any), or from said dormer window, by reason of being dislodged by the wind (if any), and struck Frank Clark on the head (if you so find), and as a result thereof his skull was fractured and he thereby received injuries from which he died on or about October 30, 1915, and if you further find that plaintiff is the widoAv of Frank Clark, deceased, then you shall find a verdict in favor of the plaintiff and against the defendant.”

Plaintiff had a verdict nisi for $10,000, which was reduced by remittitur to $7,500. The trial court granted defendant a new trial on the ground that it was error to have given this instruction. Of this instruction the Court of Appeals said (Clark v. Long, 196 S. W. 409, l. c. 413):

“The instruction is further criticised for the reason that it permits the jury to find for plaintiff without finding that the hypothetical facts stated in the instrucion, if true, would constitute negligence. We think this criticism of the instruction is well taken. While it is true that .the jury were required "to find by the instruction that the defendant did not exercise ordinary care to prevent said board from falling, and that in failing to exercise ordinary care so to prevent said boards from falling, defendant was guilty of a careless and negligent act, still it does not require the jury to find that the boards piled upon the dormer window or the scaffold were negligently permitted to remain there after they were or could have been discovered.
“The question as to whether defendant and his foreman were negligent in permitting the boards to remain at said places after they could have discovered their presence, was one for the jury, and the court should have required the jury to find that it was negligence for defendant to. have so permitted them to remain. Defendant was not negligent as a matter 'of law in so permitting the boards to remain in such places. It was necessary in the progress of the. building of the residence to have these pieces of boards near at hand as the men were working upon the siding and sheeting at the time and must of necessity have had the boards near at hand in order to carry on their work with reasonable celerity. It was necessary for these carpenters to halve a place where they could temporarily place timbers which they were to use and it was for the jury to say that the places in which they actually plaiced the timbers were reasonably safe places under all the circumstances. We believe that this instruction taken alone was erroneous. [Lukamiski v. Foundries. 162 Mo. App. 631; Glaser v. Rothschild, 221
Mo. 180; Cross v. Northern Central Coal Co., 186 S. W. 528.] However, all of the instructions given, both for plaintiff and defendant, must be read together and if-all of the instructions fairly state the law, then the vice in plaintiff’s instruction is cured, and this is so even if the vice in plaintiff’s instruction appears in the instruction purporting to cover the entire case. [Bliesner v. Distilling’ Co., 174 Mo. App. 139.]
“On behalf of the defendant the court instructed the jury that ‘before you can find for the plaintiff you must find from the evidence that either John Long, the defendant, or Ed- Marrs, his foreman, did something a reasonably careful-man under the same circumstances would not have done, or failed to do something a reasonably careful man would have done under such circumstances, and thereby caused the death of Frank Clark.’ And in another instruction the court instructed the jury that if Frank Clark was killed as the result of a mere accident, then they could not find for plaintiff, and ‘by accident as used herein is meant an occurrence or casualty happening without the fault or negligence of the defendant or injured party.”
“The failure of plaintiff’s instruction to have the jury find that it wTais negligence on the part of the defendant to have permitted the boards to remain at the places given was merely an omission that might be supplied by other instructions, and we believe that this omission was fully covered by these instructions to which we have referred.”

This holding is charged to be in conflict with our rulings. The Court of Appeals likewise held that the petition stated a good cause of action, and this is charged as conflicting with this court. It is also charged that the court was without jurisdiction. In rotator's petition for our writ it is said: “At the time plaintiff filed her affidavit for appeal there was no-money judgment in existence. The amount claimed in the petition was ten thousand dollars and the amount in dispute was ten thousand dollars, which was in excess of the jurisdiction of the Kansas City Court of Appeals. [Powers v. Missouri Pacific Railway Co., 262 Mo. 701, l. c. 705; Eads v. Kansas City Electric Light Co., 180 S. W. 994.]”

The Court of Appeals reversed the ruling nisi as to new trial, and reinstated the judgment for $7,500. Further detaiils, if necessary, will follow in the course of the opinion.

I. As to the jurisdiction of the Court of Appeals to hear the case of Clark v. Long on the appeal of plaintiff Clark, we have no doubt. This matter is not expressly ruled in the opinion, but the whole case shows that the court assumed' jurisdiction, aBc^ this court can always quash the record of a Court of Appeals in a case wherein such

court had no jurisdiction. And we will quash, and have quashed, such- records, without reference to the matter of harmony of opinions. To illustrate:. If it appears that the Court of Appeals has exercised appellate jurisdiction in a case wherein the judgment was for $10,000, _we would (without reference to the mere harmony of opinions) quash such record, because such court would have no jurisdiction over an appeal in that case. So in the case at bar the question of jurisdiction is challenged upon the ground of jurisdiction, other than that of refusing to follow our last ruling, as well as upon the ground of such failure. The question of jurisdiction is therefore here in its double aspect (1) that the Court of Appeals had no jurisdiction at all over the appeal in the case of Clark v. Long, and (2) that it exceeded its constitutional jurisdiction in deciding questions of law contrary to the last ruling of this court upon such questions of law.

Plaintiff was the appellant. She had sued for $10,000 and obtained a verdict for $10,000. This verdict the court set aside on the ground of error in the instruction which we have set out in full in our statement. The court nisi then set aside this order granting a new trial, and thereupon the plaintiff ■ entered a remittitur of $2,500, reducing the verdict to $7,500, and upon defendant’s motion for new trial, the trial court again sustained the motion and set aside the reduced verdict of .$7,500, and granted a new trial. It is from this last order that the appeal was taken. To my mind it is clear that the amount involved upon this appeal is $7,500, and if so the Court of Appeals had jurisdiction. By setting aside the verdict of plaintiff for $7,500, the plaintiff only lost $7,500. If the order for new trial was reversed and the verdict reinstated (as was done), the plaintiff would gain but $7,500 by the action of the Court of Appeals. She would gain just what she lost nisi, i. e. $7,500. If the Court of Appeals had affirmed the order granting the new trial, the plaintiff would have only lost the verdict of $7,500, and no more. So too, as to the defendant. When the verdict was reduced to $7,500, the defendant’s liability was then fixed at that sum. When the court nisi set aside this verdict for $7,500 the defendant gained but $7,500, and had the Court of Appeals affirmed the order, it could have gained no more by that action of the Court of Appeals. On the other hand if the Court of Appeals reversed the order nisi (as it did) it only reinstated a liability of $7,500, and no more. So from- the standpoint of both appellant, and respondent, the amount involved in the Court of Appeals was only $7,500, and it is the amount involved in that court, which fixes the jurisdiction, and not what may be involved in the trial court on a new trial. The amount of the verdict set aside in the order granting a new trial, is the amount which fixes appellate jurisdiction in cases where plaintiff appeals from the order setting aside such verdict. Both Divisions of this court have so ruled. [Culbertson v. Young, 156 Mo. 261 (Div. Two.); Williams v. Railway Co., 233 Mo. l. c. 672, 674 (Div. One.).] The rule so announced should stand, and from it we are com-' pelled to hold that as to amount the Court of Appeals had jurisdiction of the case, involved in the present proceeding.

II. By the relator we are asked to direct a judgment in the case, brought here by our writ, and this is-another preliminary question which had best fog eliminated at the outset. The ca.se now before us is the certiorari. In this case we can only uphold or ■ quash the record of the Court of Appeals. At most we deal only with that record, and not with the case proper on its merits or demerits. [State ex rel. v. Ellison, 268 Mo. 238.] We have quashed a part of the opinion and sustained the remainder of the opinion and the judgment, because the reason assigned in the unquashed portion of the opinion made the judgment right, but this is as far as we have ever gone. [State ex rel. v. Reynolds, 194 S. W. 878.] If we quash the record of the Court of Appeals we have no right to tell that court what to do when it undertakes to make a new record in the ease. It will be presumed that upon questions ruled, such court will follow our rulings.

III. The basis of this action is negligence. In such cases there are but. two possible theories to be adopted by the trial court when such court comes to instructing the jury, and they are (1) the trial court may say that if the jury find that the defendant did certain things, or omitted to do certain things, then such act or acts of the defendant would constitute negligence as a matter of law, and (2) the trial court could say to the jury that if the jury found that the defendant had done or had omitted to do specified acts, and that the doing of such things, or the failure to do such things, was negligence, as negligence was elsewhere defined, then the jury should find for the plaintiff. In other words the court might declare that the proven acts constituted negligence, or it might, submit such acts to the jury, and let the jury determine the question of negligence or no negligence.

It is clear in this case, under the recited facts, that the question of negligence or no negligence was a question for the jury, and not for the court. The Kansas City Court of Appeals has so viewed it in the opinion now before us for review. That court further says . (196 S. W. l. c. 413) as to instruction numbered 1 given for the plaintiff:

“The instruction is further criticized for the reason that it permits the jury to find for plaintiff without, finding that the hypothetical facts stated in the iustruction, if true, would constitute negligence. We think this criticism of the instruction is well taken. While it is true that the jury were required to find by the instruction that the defendant did not exercise ordinary care to prevent said board from falling’ and that in failing to exercise ordinary care so to prevent said boards from falling, defendant was guilty of a careless and negligent act, still it does not require the jury to find that the boards piled upon the dormer window or the scaffold were negligently permitted to remain there after they were or could have been discovered.
“The question as to whether defendant and his foreman were negligent in permitting the boards to remain at said places after they could have' discovered their presence, was one for the jury, and the court should have required the jury to find that it was negligent for defendant to have so permitted them to remain. Defendant was not negligent as a matter of law in so permitting the boards to remain in such places. It was necessary in the progress of the building of the residence to have these pieces of hoards near at hand as the men were working upon the siding and sheeting at the time and must, of necessity have had the boards near at hand in order to carry on their work with reasonable celerity. It was necessary for these carpenters to ha;ve a place where they could temporarily place timbers which they were to use, and it was for the jury to say that the places in which they actually placed the timbers were reasonably safe places under all the circumstances. We believe that this instruction taken alone was erroneous.”

The court then undertakes to point out how the omission of this instruction was cured by two instructions given for defendant. In other words the Court of Appeals says that this instruction for plaintiff did not require the jury to find the defendant guilty of a certain negligence, which negligence was of the very essence of plaintiff’s case, and without which plaintiff had no case. The character of this instruction must not be overlooked. It is an instruction intended to cover the whole ca,se for the plaintiff. It requires the jury to find certain things, and then says to the jury that if yon do find snch things you will find for plaintiff. In an instruction of -this ldnd, the Court of Appeals finds that a necessary element of plaintiff’s case is not presented to the jury at all. Before plaintiff was entitled to recover it was necessary for the jury to say that certain acts of the defendant constituted negligence, and this question of negligence or no negligence, was not submitted to the jury, as found by the Court of Appeals and yet.a direction was given to find for plaintiff. Such a defect in such an instruction, if there is such defect, cannot be cured by any instruction given to recover it was necessary for the jury to say that for the defendant. It is not necessary for us to find that there is such defect in the instruction. The Court of Appeals says there is such defect, and violates our rule when it says it was cured.

Where an instruction for the plaintiff undertakes to cover the whole case, and where such instruction contains a direction to find for the plaintiff, provided the jury find the hypothetical facts, mentioned in the instruction in plaintiff’s favor, and where such instruction omits a hypothetical fact which must be found in favor of plaintiff before there can he a recovery, then the omission of the last named hypothetical fact cannot he cured by any instruction given for the defendant. In such case, instead of the defendant’s instruction curing the omission, it produces a conflict in the instructions. This, because the plaintiff’s instruction authorizes a verdict for plaintiff without any finding for plaintiff upon a vital question, and if the defendant’s instruction requires a finding for plaintiff upon this vital question, before plaintiff is permitted to recover, then there is a conflict, which is both pointed and dangerous. Which instruction will the jury follow? The one for plaintiff which directs a verdict for her on the more limited question of facts, or the one for defendant which requires the finding of additional facts? Imagine an ordinary jury discussing the matter. Mr. A. (on the jury) reads the defendant’s instruction, and says, “We can’t find for plaintiff unless we find this fact,” but Mr. B (likewise on tlie jury) answers, “Yes we can, just read instruction numbered 1 for plaintiff. It tells us that we should find for plaintiff if we find these facts [reading the hypothetical facts], and says nothing about what you suggest.” Thus the conflict is made apparent.

In the case at bar (according to the ruling of the Court of Appeals), the instruction which directed a verdict for plaintiff left out of consideration one of the vital facts necessary to be found before a recovery could be had, and when such occurs in an instruction purporting to cover the whole ease, as here, an instruction for defendant requiring a finding of that fact does not cure the plaintiff’s instruction, but conflicts therewith. To further illustrate: Plaintiff’s instruction covering the whole case and directing a verdict for plaintiff says, “If you find that plaintiff walked from A to B and then from B to C you will find for the plaintiff.” Defendant’s instruction says, “Unless you find that the plaintiff walked from A to B, and then from B to C, and then from C to D, you must find for defendant.” Does defendant’s instruction cure the defect in plaintiff’s instruction (granting- that there could be no recovery until the three distances were covered) or does it conflict therewith? Clearly the latter. So too, where there are three necessary facts in a negligence case, if the instruction for the plaintiff undertakes to cover the whole ease, and directs a verdict, and leaves out one of the- three necessary facts, no instruction for the defendant requiring a finding on this omitted fact can be given without being in conflict with the instruction for the plaintiff. The jury can’t tell whether they must find only two facts or all three.

In the case of Wojtylak v. Coal Co., 188 Mo. l. c. 283, Gantt, J., makes this matter clear, in this language: “Plaintiff’s instruction is a very long and general one and concludes with the direction that ‘If you find these facts from the evidence in the ease your verdict will be for the plaintiff.’ This being so, the giving of a proper instruction for the opposite party could not have the effect of correcting the error, as the two would be in conflict, and the jury at a loss to know which to obey. If the plaintiff’s said instruction had fully covered all the necessary facts which the jury must find and the defendant’s instruction had required the finding of a fact which was not necessary and thus had been more favorable to the defendant than the law allowed, then defendant could not have complained, but such is not the case with the instructions under review. [State v. Herrell, 97 Mo. 105; Gray v. Gillilan, 92 Mo. 250; Frederick v. Allgaier, 88 Mo. 598.] The jury might well have concluded under plaintiff’s instruction that it was not at all necessary to have found that the roof of the mine was in fact dangerous, and that defendant knew, or by the exercise of ordinary caire could have known that it was, but that the mere fact that defendant’s pit boss ordered the plaintiff to go to work therein, coupled with the fact-that the part of the roof did fall, was all that was necessary to entitle plaintiff to a verdict.”

The same doctrine is announced by Williams, C., in Hall v. Coal & Coke Co., 260 Mo. l. c. 367, and it was because we deemed the opinion of the Kansas City Court of Appeals in direct conflict with these two cases that our writ of certiorari was granted. The hearing in this court has not changed our views. We are convinced that the ruling by the Court of Appeals conflicts with the cases, supra, and that for this reason, if not for others, their record should be quashed.

The St. Louis Court of Appeals has taken the foregoing view of our cases. Thus in Traylor v. White, 185 Mo. App. l. c. 331, it is said: “The rule is, that where plaintiff’s instruction covers the whole case and authorizes a verdict for plaintiff on an erroneous theory of the law, one on the part of defendant touching the same matter will not supply a deficiency in plaintiff’s instruction which omits to require the finding of facts essential to sustain the cause of action.” The court cites Wojtylak v. Coal Co., 188 Mo. 260, as authority for the rule.

In Humphreys v. Railroad, 191 Mo. App. l. c. 721, it is likewise said: “On this question the most recent ruling in the Supreme Court goes to the effect that where plaintiff’s instruction authorizing a verdict for him covers the whole case hut omits a ground of negligence essential to his recovery, such may not he cured hy another one of plaintiff’s instruction, which is amply sufficient with respect to the matter omitted. [See Hall v. Coal & Coke Company, 260 Mo. 351.]”

The citation, supra, made by the Court of Appeals, is the page where the case begins. The local citation is 260 Mo. 1. c. 369, where Judge Williams uses this language: “Neither can we say that the defect in instruction number 1 was cured by'the giving of plaintiff’s instruction number 3 which' undertakes to set forth what facts would constitute a negligent assurance, etc. The terms, ‘negligent assurance’ or that the ‘assurance was negligently given’ are not contained in instruction number 1, and it ’could not be said that a definition of those terms would make clear the meaning of instruction number 1 which did not contain such terms. Furthermore, even though instruction number 1 luid contained those terms, all the facts constituting the actionable negligence should be required to be found by this instruction whklh attempted to coyer the entire ground of actionable negligence(The italics are ours.)

To like effect is Walker v. White, 192 Mo. App. l. c. 19, where it is said: “In this view, defendant’s instructions are not to be invoked in aid of that given on behalf of plaintiff in the instant case, for the omission relates to a material element of plaintiff’s cause of action, which is to be found as a prerequisite to her right to recover. The instruction for plaintiff is, therefore, inconsistent with that of defendant.” In the foregoing the court. again cites the case of Wojtylak v. Coal Co., 188 Mo. 260.

Lastly in the case of Pearson v. Lafferty, 193 S. W. l. c. 43, the St. Louis Court of Appeals again reiterates their understanding of our rule: “It is unnecessary to discuss the instruction given and refused. It may be well to note, however, that plaintiff’s first instruction is fatally defective, irrespective of the theory upon which it proceeds, in that it purports to -cover the entire case, hut leaves out of consideration elements essential to plaintiff’s recovery. It is held that an instruction which purports to cover the entire case, and directs' a verdict, cannot be pieced out by other instructions, despite the oft stated rule that instructions must be read and considered together. [See Hall v. Coal & Coke Company, 260 Mo. l. c. 369.]”

In our judgment the St. Louis Court of Appeals has properly construed our rule, and the Kansas City Court of Appeals has misconstrued it in the case before us. Our rule is, that if the instruction for the plaintiff purports to cover the whole case and directs a verdict, then if it be found that such instruction has omitted a necessary element requisite to the right of plaintiff to recover, then such omission is not, and cannot be cured by an instruction given for the defendant.

The instructions are in conflict, rather than the one curing the other. So in the case at bar the Kansas City Court of Appeals violated the rule.of this court when it held that the patent defect of instruction numbered 1 for plaintiff was cured by instructions given for the defendant.

IY. We shall not discuss the sufficiency of the petition for the reason that for the error in instruction numbered 1, the Kansas City Court of Appeals will no doubt remand the ease to the circuit

court for a new trial, and the counsel for plaintiff in the light of the discussion of the question, may conclude to amend their petition, so that the question now urged may not be a vital one in the ultimate determination of the case. The negligence charged is of the most general character, as will be seen, and the facts are now before the’ parties. Of course in cases where the doctrine res ipsa loquitur applies,. general negligence is permissible in the pleading, but for the reason last above indicated we will not now determine whether either the facts pleaded or proven bring the case within the rule. It is sufficient to say that the present record of the Kansas City Court of Appeals should be quashed for the reasons stated in the preceding paragraph. It is so ordered.

All concur, except Bond and Blair, JJ., who dissent, Blair, J., in separate opinion.

BLAIR, J.

(dissenting) — The Court of Appeals held an instruction had. It then held the error cured. In this last holding its opinion conflicts with decisions of this court. This would warrant quashing the record only in case the instruction is in fact erroneous. I do not think it is. In such circumstances, nothing further appearing, the rule in State ex rel. v. Reynolds, 270 Mo. l. c. 602, 603, is applicable, hence this dissent.


author: BOND, J.- GRAVES, G. J.

text:
    THE STATE ex rel. GEORGE A. WAHL v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    December 22, 1917.
    1. CERTIORARI: Conflict in Decisions: Errors Considered. In a certiorari to have a decision of a court of appeals declared void for that it conflicts with the last previous ruling of the Supreme Court, the scope of review does not extend to any ernrs of opinion on the part of said court of appeals which do not conflict with the latest previous rulings of the Supreme Court. The Supreme Court, in such case, is not called upon to determine whether the views as expressed by the court of appeals are correct or incorrect, but is only to decide whether they conflict with a controlling decision of its own.
    2. -: -: Confined to Majority Opinion. The review by the Supreme Court upon certiorari of a decision of a court of appeals alleged to be in conflict with the last previous rulings of the Supreme Court, does not embrace any consideration of the record of the case in the court of appeals further than the same is set forth in its majority .opinion under review.
    3. -: -: Fraud and Deceit: Evidence of Mental Incapacity: Not Pleaded. A ruling by the Court of .vp peals that evidence that the plaintiff, in a legal action for fraud and deceit, was a man of weak mentality, inexperienced, over-credulous and unqualified in business dealings, although not pleaded, was' admissible under general allegations that defendant knowingly made false and fraudulent representations, with the intent and purpose of deceiving plaintiff and that relying thereon he was deceived and led to enter into the contract, to his damage, is not in conflict with any prior decision of the Supreme Court, for said court has never made any ruling on the point, and, therefore, whether said ruling be right or wrong, the Supreme Court has no jurisdiction, by its writ of certiorari, to quash said decision.

      Held, by GRAVES, C. J., dissenting, with whom BLAIR and WOOD-SON, JJ., concur, that the evidence which tended to show that plaintiff was weak-minded not only broadened the issues made by the pleadings but contradicted the terms of plaintiff’s petition, since allegation that he contracted with defendant relying upon his false statements carried with them the presumption that plaintiff was mentally normal, and such presumption, or legal inference from the facts pleaded, is just as much a part of the petition as if written therein in express words; and to permit him to prove a weak mentality, not only broadens the pleadings, which is a course condemned by many cases of the Supreme Court, but is a contravention of the solemn admissions of his own pleading, and therefore the ruling of the Court of Appeals should be quashed.

      Held, also, that the Supreme Court on certiorari is not confined to the suggested conflicts' in decisions stated in the briefs, but knowing of other conflicts should act in the interest of harmony of opinions.

      Certiorari.

    Writ quashed.

      John Cashman for relator.
    The majority opinion and judgment of the St. Louis Court of Appeals in the case of Flack v. Wahl, in deciding that evidence of the lunacy or mental incapacity of Flack may be given in evidence to the jury without being pleaded, or made an issue by the pleadings, failed and refused to follow the last controlling decisions of the Supreme Court on that question and that decision and judgment should, therefore, be set aside and annulled by this court. The "decisions so disregarded by the Court of Appeals are: Caldwell v. Reed, 198 Mo. 379; Wells v. Mutual Benefit Assn., 126 Mo. 637; Rhoades v. Fuller, 139 Mo. 187; Jamison v. Culligan, 151 Mo. 416; Blunt v. Spratt, 113 Mo. 48; McKenzie v. Donnell, 151 Mo. 454, 455; McFarland v. Mo. Pac. Ry. Co., 125 Mo. 276; Harris v. Craven, 188. Mo. 609; Och v. Railroad, 130 Mo. 74; Chitty v. Railroad, 148 Mo. 64; Cobh v. Lindell Ry., 149 Mo. 144; Mark v. Cooperage Co., 204 Mo. 261. Other cases and text-writers sustaining the doctrine are: Banking Co. v. Loomis, 140 Mo. App. 62; 2 Chitty on Pleading, 436; Harrison v. Richardson, 1 Mood. & Rob. 504; Jackson v. Van Densen,' 5 Johns. 144; Alcock v. Alcock, 3 M. & G. 147, 268; Kendall v. May, 10 Allen, 59'; Jackson v. Caldwell, 4 Cowen, 207; Edwards, Bills & Notes (3 Ed.), sec. 26; Byles on Bills and Notes (8 Ed.), sec. 64; Randolph on Commercial Paper, sec. 251. The majority opinion says, in discussing the admissibility of this evidence: “Were the action one to rescind the contract on the ground that Flack was mentally incapable of contracting, the question would be quite a different one. ’ ’ Meaning, of course, that then the mental incapacity would have to be pleaded before proof thereof may be offered. This part of the opinion is further in conflict with the last controlling decisions of the Supreme Court on that point. Much stricter requirements apply in actions for damages on ground of fraud than on actions to rescind. McFarland v. Railroad, 125 Mo. 276; Harrison v. Craven, 188 Mo. 608. To like effect are the following text-writers: 20 Cyc. 11; Greenleaf on Evidence (16 Ed.), p. 37, sec. 14; 2 Wigmore on Evidence, p. 25,'see. 1904.

      R. P. Williams and C. B. Williams for respondents.
    (1) All facts from which the ultimate and conclusive facts may be inferred are evidential and need not be stated; but those facts from which the legal conclusion is to be drawn, .upon which the right of action depends, must be stated. Mental weakness is simply an evidential fact, from which the ultimate fact — namely, reliance — may be inferred. Fogle v. Pindell, 248 Mo. 72; Bragg v. Met. St. Ry., 192 Mo. 350; Bailey v. Kansas City, 189 Mo. 514; Planet v. St. Lonis, 115 Mo. 619; Alcorn v. C. & A., 108 Mo. 91; Robertson v. Wabash, 84 Mo. 121; Murphy'V. Price, 48 Mo. 250; Sawyer v. Walker, 204 Mo. 157; Moormeister v. Hannibal, 163 S. W. (Mo. App.) 928; See v. Cos, 16 Mo. 168; Mitchell v. Clinton, 99 Mo. 153; Edgell v. Sigerson, 20 Mo. 494 and 497; Kinsolving v. Kinsolving, 194 S. W. (Mo. App.) 530; Patterson on Missouri Code Pleading (2 Ed.), secs. 66, 127, 146. (2) In a, certiorari proceeding it is not a question as to whether or not the opinion of the Court of Appeals is sustained by authority, but the sole question is whether it contravenes one of the Supreme. Court rulings upon a similar state of facts. State ex rel. v. Robertson, 197 S. W. (Mo.) 79; State ex rel. v. Ellison, 269 Mo. 151. (3) A party cannot be surprised that his adversary introduced testimony in support of the issues made by the pleadings, even though such testimony is false. McWhirt v. Railroad, 187 S. W. (Mo.) 830; Byrd v. Vanderburg, 168 Mo. App. 120; Bragg v. Moberly, 17 Mo. App. 22; Haynes, New Trial, par. 79; Shore v. Powell, 76 S. E. (W. Va.) 126.
   BOND, J.-

I. This is an application by certiorari to declare the majority opinion of the St. Louis Court of Appeals to be void for want of jurisdiction, in that the legal doctrine announced in that decision was in conflict with the last previous rulings of this court in the cases cited by relator.

The point, as to which the petitioner alleges errancy in the opinion of the Court of Appeals, depriving it of jurisdiction, is so much of its opinion as affirms the admissibility of evidence tending to show the plaintiff in a legal action for fraud and deceit was a man of weak mentality, inexperienced, over-credulous and unqualified in business dealings, and therefore more likely to rely upon the false representations of defendant than if he had been a man of average capacity. It is urged on the part of the relator that such evidence was inadmissible in view of the fact that the petition filed by plaintiff stated the facts necessary to the sustention of an action for damages for fraud and deceit, without any averment of any insufficiency on the part of plaintiff in the respects shown by the testimony.

In dealing with the point thus presented to it, the majority opinion of the Court of Appeals (after reciting the substance of the testimony tending to show that plaintiff was weak-minded and easily influenced) disposed of the question as follows (Flack v. Wahl, 193 S. W. 56, l. c. 60):

“The only question before us in this connection is whether testimony of this character is admissible at all in the absence of an allegation in the petition to the effect that plaintiff Charles D. Flack was weak-minded or mentally incapable of protecting himself in a business transaction. . . .

“From the record before us it appears that the trial court ruled as it did upon the theory that this testimony was admissible under the allegation of the petition that plaintiffs relied upon the alleged false representations of defendant, believing them to be true, and were thereby induced to enter into the contract in question and consummate the same. A consideration of this assignment of error has led us to the conclusion that this view is sound. It was, of course, unnecessary for plaintiffs to plead anything respecting the mental capacity of plaintiff Charles D. Flack as an essential element of their action for fraud. The petition alleges all of the substantive facts constituting the cause of action sued upon. Among these is the necessary averment that plaintiffs relied upon the representations alleged to have been made to them. It was essential that plaintiffs sustain this averment by proof, and it would seem that it was proper to receive for this purpose any evidence having any probative force and effect — and not otherwise inadmissible — which tended to support such averments. An allegation that Flack was weak-minded would seem to have no proper place in this petition. The Code requires a plain and concise statement of the facts constituting the cause of action (Sec. 1794, R. S. 1909), and provides that only the substantive facts necessary to constitute the cause of action shall be stated (Sec. 1813, R. S. 1909), and provides further that a party shall not be required to state evidence in his pleading or to disclose therein the means by which he intends to prove his case (See. 1818, R. S. 1909). Here the substantive facts to be alleged are that defendant made certain specified false representations of material facts in connection with an exchange of properties; that defendant knew such representations to be false or made them of his own knowledge when he had no knowledge as to their truth or falsity; that they were made with the intent and purpose that they be acted upon by plaintiffs, and that plaintiffs did rely and act thereupon, to their damage. All of these substantive facts were properly alleged. It would have been unnecessary and improper to plead the evidence by which plaintiffs expected' to prove such substantive facts. The fact that Charles D. Flack was weak-minded, if true, was not one of the substantive facts constituting the cause of action, and hence was not alleged. Were the action one to rescind the contract on the ground that Flack was mentally incapable of contracting, the question would be quite a different one. But in the instant ease it seems quite clear that the question is not whether plaintiffs should have pleaded this matter, but whether evidence of this character is admissible at all in an action of this precise character. It was not admissible for any purpose except to prove that the representations were relied upon. In such cases reliance is a question of fact, to be established not alone by a party’s own assertion, but to be gathered from probative facts and circumstances which cast light upon the matter. And if the party alleging fraud be ignorant, inexperienced or of weak intellect, and hence guileless and readily susceptible to the artful designs of a fraud-feasor, and easily imposed upon, proof thereof ought to be held admissible in support of the allegations of reliance. Particularly is this true here, we think, since defendant strongly contended and sought to make it appear that plaintiffs had full opportunity to investigate, and did investigate, and •are not in a position to assert that they relied and acted upon the representations alleged.

“In a leading encyclopedic compendium of our law, the rule concerning this matter is thus stated:

“ ‘Evidence is admissible of any facts tending to show reasons for reliance upon defendant’s representations — as that the discovery of the true condition of things was difficult, that the relations of the parties were of a confidential nature, that plaintiff was ignorant of the matters to which the representations related while defendant was familiar with them, or that plaintiff was of weak intellect and easily imposed upon.’ [See 20 Cyc. 117.] (Italics ours.)

“In Bloomer v. Gray, 10 Ind. App. 326, cited in support of the italized portion of the text above quoted, the action was one for fraud and deceit. A witness was permitted to state that the plaintiff was weak-minded at the time of the transaction in question. As to the propriety of admitting his testimony, the appellate court, said:

• “ £"\Ye fully concur in the statement of counsel for appellant, that the gravamen of the action is not to recover on account of the weak-mindedness of the appellee, but we cannot for that reason say that this evidence was. not competent; on the contrary, we think it was proper for the purpose of showing his susceptibility to the representations of the decedent. The representations made, if false, would have created a liability against the decedent, whether the appellee was weak-minded or not, and to show that he was weak-minded did not increase the liability or entitle him tó a recovery which otherwise he did not have. The fraud consisted in misleading the appellee and then taking advantage of him after he had been thus deceived. Any fact which tends to throw light on the manner in which the artifice was perpetrated is proper. True, the wrong done was no greater on account of appellee’s Weak mental condition, yet he was probably more, susceptible to the wiles and cunning of the artful than if his mental faculties were strong and unimpaired. The jury were to determine the question of fraud from all the facts and circumstances, hence were entitled to know not only what the representations were which the decedent made, but what the probable effect of the same was upon the mind of the appellee, and what influence, if any, 'they had upon his making the trade.’

“It is true that in that case the petition alleged that certain false representations were made to plaintiff, ‘who was weak-minded.’ But these words, thus thrown into a petition charging actual fraud, did not, in our opinion, affect the question of the admissibility of the testimony mentioned. And it appears from the quotation above that the court so considered the matter, and placed its ruling upon the ground that the testimony was admissible under the allegation of reliance.

“In Cummings v. Thompson, 18 Minn. 246, a similar question was considered. The action was upon a promissory note and the defense was one of fraud in obtaining the note, without consideration, perpetrated by the payee, through a false reading thereof to defendant. It was not alleged that the defendant was unable to read. A portion of the opinion is as follows:

- “ ‘We aré also of opinion that under the allegation that the defendant relied upon and believed the false reading and misrepresentations of the contract by Ensign, and was misled thereby, it was competent for the defendant to prove the facts offered to be proved relating to his inability to read. The averment that the defendant relied on, and believed, the reading of the contract, and the representations of its contents by Ensign, is an allegation of fact and essential to constitute a fraud. . . . And it would seem to be apparent, that the evidence offered of the inability of the defendant to read, in connection with the facts that he executed the contract without reading it, or further inquiry, would tend directly to show that in thus executing the instrument he did, in fact, rely upon and was misled by Ensign’s reading and misrepresentations of it. The defendant’s inability to read is, therefore, merely a specific fact which goes to support the general allegations in the pleadings and need not be' specially stated. ’

“These authorities we regard as here in point, and strongly persuasive in support of respondent’s position. We are referred to no case in this State directly in point. A multitude of our cases might be cited in support of the general principles which we have attempted to state and apply above, but it is unnecessary to encumber the opinion with such citations.”

In the rulings of this court permitting the use of a writ of certiorari in cases like the present (in which I am unable to concur) it is distinctly announced, as I understand, that the scope of review does not extend to any errors of opinion on the part of the Court of Appeals, which do not conflict with the latest previous rulings of this court on the subject, nor does it 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. It follows that we are not called on to determine whether the above quoted views of the Court of Appeals are correct or incorrect, but simply whether they conflict with a controlling decision of this court.

II. Unless there is a subsisting decision of this court declaring the law to be that evidence tending to prove weak-mindedness and incompetence on the part of the plaintiff in a legal action for fraud and deceit, is not admissible under a petition which alleges fully all the constitutive facts and legal elements warranting a recovery in such an action without a special allegation that the plaintiff was also a weak-minded man and incompetent in business affairs, there is and was no conflict in the opinion of the Court of Appeals with the last previous ruling of this court. None of the cases cited by the applicant for the writ, either expressly or by necessary implication, decided any proposition of law contrary to the views expressed in the opinion of the Court, of Appeals.

Chadwell v. Reed, 198 Mo. l. c. 379, was a suit to annul a deed to land on the ground of the alleged mental unsoundness of the grantor. After a thorough review of the testimony the court held that the advisory verdict of the jury on certain interrogatories submitted to them by the chancellor, which the trial court séems to have adopted, was unsupported by any evidence and the decree was reversed. This was a purely equitable action for the rescission or annulment of a contract, and contains no hint or suggestion of a ruling contrary to that applied by the Court of Appeals in the distinctively legal action of fraud and deceit. The plaintiff in this case exercised the option, which the law gave him, of bringing a common law action for damages for fraud and deceit, instead of asking for a rescission of the contract and a restoration of the status quo by a court of equity, which he might have done by acting seasonaby afte'r discovery of the fraud. He chose rather to avail himself of a purely legal redress based upon an adherence to the contract and a right to recover for damages caused to him by the consummation of the contract. [Brown v. Lead & Zinc Mining‘Co., 231 Mo. l. c. 175, 176; Cottrill v. Krum, 100 Mo. 397.]

Harrison v. Craven, 188 Mo. 590, was a suit in equity to compel a conveyance of property and an accounting for rents and profits, coupled with a count for damages for fraud and deceit and delay and prevention in the construction of a building. It made no announcement whatever of any rule of law applicable to the kind or extent of evidence admissible in a legal action of fraud and deceit under a petition containing sufficient allegations to warrant a recovery in such an action.

Cobb v. Lindell Ry. Co., 149 Mo. 135, does not touch the matter in hand from any point of view. It deals only in general terms with the rule of pleading as applied to a case where suit was brought for personal injuries against a street car company.

Chitty v. Railroad, 148 Mo. 64, is equally off the point, relating simply to the truism that a plaintiff cannot plead one cause of action and recover upon another not pleaded.

Neither does the decision in McKenzie v. Donnell, 151 Mo. l. c. 454, touch the present inquiry. It merely recites that a contract made by an insane person in ward is void and one made by such a person not in ward is only voidable.

So, also, is Jamison v. Culligan, 151 Mo. l. c. 416, to a similar effect with a similar citation of authorities in support; but making no announcement in the slightest degree opposed to anything ruled by the Court of Appeals.

The case of Rhoades v. Fuller, 139 Mo. 179, was a suit in equity to set aside a contract of an insane person not under guardianship. Nothing said or ruled in the case in any way supports the theory that the Court, of Appeals conflicted with any ruling of this court in its opinion in this case.

The case of Och v. Railroad, 130 Mo. l. c. 74, contains a discussion as to the probative force of evidence tending to show incapacity to make a contract and a ruling of the then state of the law, that the issue of mental incapacity to make a release should not have been submitted to the jury.

The case of Blount v. Spratt, 113 Mo. 48, simply related to the circumstances under which a conveyance would be set aside in equity on the ground of the insanity of the grantor, if that was not made known to the grantee at the time of the contract.

Wells v. Mut. Benefit Assn., 126 Mo. l. c. 637, refers only to the voidability of a contract of an insane person not under guardianship.

McFarland v. Railroad, 125 Mo. 253, is a suit for personal injuries. The local citation on page 276 discusses the distinction between legal and equitable rights and remedies though administered in the same court, and can have no bearing on the present proceeding.

Mark v. Cooperage Co., 204 Mo. l. c. 261, simply interprets statutes requiring pleadings to be in writing.

Newham v. Kenton, 79 Mo. l. c. 386, is to the effect that new matter could not be introduced under a general denial.

It is perfectly plain that none of these citations contain any rulings opposed to the views of the St. Louis Court of Appeals as to the scope of the evidence permissible in an action for fraud and deceit under a petition containing all the allegations necessary to a recovery. It is impossible, therefore, to declare the opinion of that court to be in conflict with the last previous ruling of this court on the point suggested by relator. The learned writer of the dissenting opinion evidently did not deem the opinion of his associates contrary to any decision of- this court or any of the courts of appeals or he would have exercised his constitutional prerogative to cause a certification of the case to this court for determination and harmonization of the laiw.

It follows that onr writ was improvidently granted and should be quashed. It is so ordered.

Walicer, Faris and Williams, JJ., concur; Graves, C. J., dissents in separate opinion, in which Woodson and Blair, JJ., join.

GRAVES, G. J.

(dissenting) — I do not agree with our learned brother, when he concludes that there is no conflict between the opinion of the Court of Appeals and this court. The evidence which tended to show that plaintiff was feeble-minded, not only broadened the issues made by the pleadings, but contradicted the terms of plaintiff’s very petition. When plaintiff stated in his petition (without alleging the condition of his mind) that he contracted with defendant, relying upon statements of defendant, which statements were false, and that he was injured thereby, such statements in the petition carried with them all the legal presumptions and inferences growing out of the facts stated. The presumption, under the facts pleaded, is that plaintiff was mentally normal — not weak-minded, feeble-minded, idiotic or insane. This legal presumption, or legal inference from the facts pleaded, is just as much a part of the petition, as if written therein in express words. To permit plaintiff to prove a weak mentality is (1) broadening the issues made by the pleadings, which contravenes a school of cases, from this court, and (2) contradicting tlie solemn admissions of bis own pleadings. "Wlien by certiorari we order up tlie record of a Court of Appeals in order to have their opinion conform to the opinions of this court, we are not confined to the suggested conflicts stated in the briefs. If this court knows of conflict not cited by counsel, we should act in the interest of harmony of opinions. I therefore dissent.

Blair and Woodson, JJ., concur in these views.


author: WALKER, J.

text:
    THE STATE ex rel. WAYNE COUNTY et al. v. GEORGE E. HACKMAN, State Auditor.
    In Banc,
    December 22, 1917.
    1. REPEALED STATUTE: Continued Operation Thereunder. Sections 8060 and 8062, Revised Statutes 1909, were intended to continue in force repealed statutes until proceedings commenced thereunder maybe completed. Sections 10520 to 10525, Revised Statutes 1909, under which bonds were issued by a county to build public roads, though repealed by the Act of 1917, without a saving clause, were so far kept in force by Sections 8060 and 8062 as to authorize the county court, under Section 1249, to refund the bonds by the issuance of new bonds of the denominations and bearing the rate of interest authorized by said act.
    2. -: -: Continued in Now Enactment. Where the purpose and operative force of an existing statute and the one repealing it are the same, differing only in minor particulars, the repealing act is to be construed as a continuation of the one repealed, and proceedings in compliance with the latter prior to its repeal and continued thereafter in conformity with the former are regular and in accordance with legislative direction.
    3. REFUNDING DEBT: Within Twenty Years After Creation. A statute authorizing the refunding of an existing indebtedness by the issuance of new bonds is not invalid because it does not require the bonds to be paid within twenty years from the time the debt was originally created.
    4. -: Sale of Bonds to Original Purchaser. Under Section 1249, Revised Statutes 1909, a county has the right to refund its pub'lic road bonds whenever it can do so at a lower rate of interest, and the refunding bonds are not invalid because they were sold to the purchaser of the original bonds.

      Mandamus.
    Peremptory Writ Awarded. •

      D. N. ILolladay, V. V. Ing, 8. G. Ray and Charles é Rutherford for relators.
    (1) Where there is an express repeal of an existing statute, and a re-enactment of it at the same time, or a repeal and a re-enactment of a portion of it, the reenactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption when the re-enactment takes effect at the same time. 1 Lewis’s Sutherland on Stat. Const. (2 Ed.), sec. 238; 36 Cyc. 1083; Brown v. Marshall, 241 Mo. 728; State ex rel. v. Mason, 153 Mo. 58; State ex rel. v. County Court, 53 Mo. 129; Smith v. People, 47 N. Y. 335-342; Moore v. Kenockee Twp., 4 L. R. A. (Mich.) 555; Fullerton v. Spring, 3 Wis. 671; Laude v. Railroad, 33 Wis. 643; Seheftels v. Tahut, 46 Wis. .446; Middleton v. Railway, 26 N. J. Eq. 273; Glentz v. State, 38 Wis-. 554; Junction City y. Webb, 44 Kan. 73-4; Swamp Land Dist. y. Glide, 112 Cal. 90; Rock Pav. Co. v. Lyons, 133 Cal. 116; Callahan v. Jennings, 16 Colo. 476; People v. Board of Eq., 20 Colo. 231; Hancock y. Dist. Twp., 78 Iowa, 554. (a) Inchoate statutory rights are not defeated. Capron y. Strout, 11-Nev. 304, 310; Skyrme v. Occidental Co., 8 Nev. 233; Moore v. Kenockee, 75 Mich. 333. (b) Statutory powers are not taken away. Middleton v. Railway, 26 N. J. Eq. 269. (d) Pending proceedings are not affected. Dennison v. Allen, 106 Mich. 296-300. (2) The effect of a repeal upon inchoate rights, and upon incomplete proceedings is avoided by a general statute for that purpose. R. S. 1909, secs. 8060, 8062; 1 Lewis’s Sutherland on Stat. Const. (2 Ed.), sec. 287; United States v. Reisinger, 128 U. S. 401; Railroad v. United States, 208 U. S. 464; State ex rel. v. Drainage District, 192 Mo. 517; State v. Helms, 136 Ind. 131; Rogers v. Railroad, 35 Mo. 153; State ex rel. v. Vernon County, 53 Mo. 128; State v. Matthews, 14 Mo. 134; State y. Proctor, 90 Mo. 336; State y. Walker, 221 Mo. 515; State v. Grant, 79 Mo. 117; State ex rel. v. Willis, 66 Mo. 133; Starr v. State, 149 Ind. 594; Meagher v. Drury, 89 la. 372; Commonwealth v. 'Duff, 87 Ky; 588. (3) Such a general provision has the same effect a|s a saving clause in the repealing statute. R. S. 3909, secs. 8060i, 8062; Lewis’s Sutherland on Stat. Const. (2 Ed.), sec. 287; Treat v. Strickland, 23 Me. 236; Hiñe v. Pomeroy, 39 Vt. 223; State v. Boyle, 10 Kan. 116; State v. Crawford, 11 Kan. 46; MeCuén v. State, 19 Ark. 635; People v. Sloan, 2 Utah, 329; McCalment v. State, 77 Ind. 250; Barton v. Gadsden, 79 Ala. 496; Grace v. Donovan, 12 Minn. 580; Mongeon v. People, 55 N. T. 615; State v. Hardman, 16 Ind. App. 359. (4) The filing in the office of the clerk of the county court of Wayne County, of a tax-paying citizens’ petition asking for an election to vote bonds, adjudication of the sufficiency thereof by the county court, the ordering of an election and giving notice thereof, holding the election, and determining the result thereof, was an act done, a right accrued,' a right established and a proceeding had and commenced previous to the time of taking effect of the act repealed under which the bonds are sought to be issued, and within the meaning and provisions of Sec. 8062, R. S. 1909. State ex rel. v. County Court, 53 Mo. 128; State ex rel. v. Topeka, 68 Kan. 179; Ex parte McGee, 33 Ore. 165. (5) Article 4, Chap. 15, R. S. 1909, is not in violation of Section 12 of Article 10 of the Constitution of Missouri, because it provides for the issue of bonds payable more than twenty years after the original debt was created. State to use v. Walker; 193 Mo. 693. (a) The court must presume that a statute is constitutional, and the burden is on him who asserts its unconstitutionality to show its invalidity, beyond a reasonable doubt. Shohoney v. Railroad Co., 231 Mo. 131; State v. Webber, 214 Mo. 272; State ex rel. v. Johnson, 234 Mo. 338; State ex rel. v. Williams, 232 Mo. 56; State v. Distilling Co., 136 Mo. 219; State ex rel. v. Burton, 266 Mo. 711; State ex rel. v. Walker, 193 Mo. 693. (b) Sec. 1249, R. S. 1909, under which' tire refunding bonds are issued, has been held constitutional by this court in the only case in which its constitutionality has been attacked in the third of a century that the act has been on the statute books, and during all this time the constitutionality thereof has been recognized by the people and the lawyers of the State, and millions of dollars of refunding bonds have been issued thereunder. State ex rel. v. Walker, 193 Mo. 693.

      Frank W. McAllister, Attorney-General, Shrader P. Howell and John T. Qose, Assistant Attorneys-General, for respondent.
    (1) “A subsequent statute revising the whole subject matter of a former one and evidently intended as a substitute, although it contains no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former.” State v. Roller, 77 Mo. 120;. Yawl v. Gillham, 187 Mo. 45; State v. Crane, 202 Mo. 80-81; State ex rel. v. Shields, •230 Mo. 102; City v. Sperry, 189 Mo. App. 483. An examination of the Laws of 1917 discloses that the law in question was repealed both by express words and by implication. Laws 1917, p. 442. Not only is the statute repealed by express words but the new act covers the entire subject-matter and shows upon its face that it was intended as a substitute for all existing law upon this subject. Laws 1917, pp. 444-477. (2) The repeal of a statute has the effect of blotting it out as completely as if it had never existed and of putting an end to- all proceedings under it. Vance v. Rankin, 194 111. 627; 1 Lewis’s 'Sutherland on Statutory Construction, p. 552; Sec. 478, p. 680, Endlich on Interpretation of Statutes. Only vested rights escape the effect of this rule. Amy right not vested falls with the repeal of the statute on which it rests. Bishop on Written Laws, sec. 177-A; Bailey v. Mason, 4 Minn. 546; Butler v. Palmer, 1 Hill (N. Y.), 324; 1 Lewis’s Sutherland on Statutory Construction, p. 546; Smith’s Commentaries on Constitution Construction, p. 896. (3) To escape the effect of a repeal, the repealing act must contain a saving clause, or there must be a general statute directed to that end. There is. no saving clause in the Repealing Act of 1917. Relator must depend upon Sections 8060 and 8062, R. S. 1909, to preserve the steps taken under the old law. Said sections were not intended to preserve, and do not preserve proceedings of this charaicter. They relate to and preserve only matters connected with and growing out of judicial matters and have no reference to proceedings outside of steps taken in actions pending. Gordon v. State, 4 Kan. 496; Moorewood.v. Hollister, 6 N. Y. 319; Fisk v. Kenne, 35 Me. 349; Butler v. Palmer, 1 Hill (N. Y.), 324; County Commissioners, 30 Me. 222; Erwin v. United States, 37 Fed. 270; People v. White, 14 How. Prac. 501; Hopewell v. State, 22 Ind. App. 489; Strom v. Montana Cent. Ry. Co., 81 Minn. 346. (4) The policy of this State is that municipal indebtedness should not be created to extend beyond a period of twenty years. See. 12, art. 10, Mo. Constitution; Káne v. Charleston, 161 111. 179. The law under which these bonds sought to be registered were refunded permits the refund bond to run for thirty years from the date of issuance, and is, in this, repugnant to the policy of the State expressed in Section 12 of Article 10 of the Constitution. Sec. 1249, R. S. 1909. The provisions of Section 1249 which permits a refunding without the submission of the question to the people is repugnant to the Constitution, which provides that no political corporation or subdivision shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. Sec. 12, Art. 10, Mo. Constitution. (5) The refunding bonds in this case were issued to evade the law. Section 1249, if constitutional, still presupposes a •bona-fide issuance of refunding bonds, and not a mere subterfuge or evasion to procure indirectly bonds which could not be issued directly. The refunding bonds in this case were issued to comply with' an agreement made between the county officials and the bond purchaser, prior to the purchase of the original bonds. In plain language, they were issued in the furtherance of a scheme to obtain a different kind of bond from that which could be issued under the law. “In disposing of it, it must be borne in mind that the law regards substasnce, rather than form — the spirit and essence of a thing, rather than the mere dry letter. One may not do by indirection what he cannot do directly; or, as said by Yaluant, J., in a case just handed down, ‘If it could not be done on a straight line, it could not be done in a circle. ’ ’ ’ Cobe v. Lovan, 193 Mo. 250; State v. Kenton, 43 Mo. 53. .Moreover, the county officials had no authority to make such a contract, and both the contract and the. bonds issued pursuant thereto are void.
   WALKER, J.

This is a proceeding in mandamus to require the respondent as State Auditor to register an issue of two-hundred thousand dollars refunding bonds of Wayne County.

These bonds were issued under the provisions of Section 1249, Revised Statutes 1909, authorizing the funding of bonded or judgment indebtedness. The original bonds had been issued by virtue of Sections 10520 to 10525, Revised Statutes 1909, which grant the power and define the method to be pursued by the people of a county and their administrative agent,- the county court, in the issuance of bonds for the improvement of public roads. One-half of the aggregate amount of this original issue was in the denomination of one-hundred dollars each and bore interest at the rate of four and one-half per cent per annum, payable annually, and to mature within twenty years after their date, subject' to prior payment at any time within twenty years upon the call of the county, as provided for in Section 10522, Revised Statutes 1909. These sections were repealed by an act approved April 9, 1917 (Laws 1917, p. 442), and statutes kindred in their nature and conferring similar powers were enacted in lieu thereof. [Secs. 83, 84 and 85, Laws 1917, p. 470.]

The preliminary steps necessary to authorize the issuance of the original bonds in conformity with the statute then in force had been complied with' prior' to its repeal, but the bonds were not issued until April 29, 1917. In June, 1917, they were presented to the respondent for registration as' required by Section 1275, Bevised Statutes 1909, and were by him registered. Soon thereafter they were sold and paid for at their par value.

At the time of- the execution and before the delivery of the original bonds to the purchaser, the county court levied a tax uipon the taxable property of the - county in an amount sufficient to pay the interest and a portion of the principal each year upon said bonds, in conformity with the conditions of their issuance.

Afterwards on June 10, 1917, the county court called for the payment of all of said bonds and in order to provide funds necessary to pay off and retire the same prepared and executed, under the provisions of said Section 1249, refunding bonds in the aggregate sum of two-hundred thousand dollars, each of the face value of one-thousand dollars, dated May 1, 1917, and bearing interest at the rate of four and one-fourth per cent per- annum, or one-fourth of one per cent less than-the interest required to be paid on the original bonds, which interest was made payable' semi-annually, the bonds maturing in the year 1922 and serially thereafter to the year 1937. These refunding bonds were presented to the respondent as Auditor of the State in compliance with the requirements of the law in this behalf and their registration was by him refused. Hence this proceeding.

That the steps taken antecedent to the issue of the original bonds were in conformity with the law then in force is conceded. Bespondent contends, however, that the writ, should not issue for the following reasons: (1) that the statute under which the original bonds were issued was expressly repealed before such bonds were actually issued, registered and negotiated; (2) that Section 1249 under which it is sought to refund these bonds is unconstitutional; and (3), if not unconstitutional, the attempt at refunding is not within the intent and purpose of the statute and as a consequence is unauthorized.

I. As a general rule, a statute expressly repealed is thereby abrogated and all proceedings commenced thereunder which have not been consummated are rendered nugatory unless the repealing act is modified by a saving clause. Despite the fact that the courts with .that conservative spirit which looks to permanence in the law, do not fawor repeals (St. Louis v. Kellman, 235 Mo. 687), there is except for modifications which may be effected by a saving clause but one unqualified exception to the rule as above announced and that is where a vested right is involved. Present here, this character -of right may serve to solve the matter at issue. That statutes áuthorizing the issuance of bonds for the construction and improvement of highways are remedial in their nature seems beyond question. Although they result in the creation of a burden, they confer a benefit. The standard of civilization of a people may well be marked by the condition of their roads. Well constructed they facilitate travel, thereby encouraging a more extended intercourse which is promptive of intelligence, and at the same time facilitate trade uipon which all material prosperity is based. However, the public nature and salutary character of these statutes will not alone suffice to render the rights they may confer, if not consummated, vested. By a vested right we mean one which is absolute, "complete and unconditional (Orthwein v. Insurance Co., 261 Mo. l. c. 665), to the exercise of which no obstacle exists and which is immediate and perfect in itself and not dependent upon a contingency. [Young v. Jones, 180 Ill. l. c. 221; Bailey v. Railroad, 4 Harr. (Del.) l. c. 400; Day v. Madden, 9 Colo. App. 464; Royston v. Miller, 76 Fed. l. c. 53.] The facts do not sustain the conclusion that such a right exists here. While a right existed which liad been partly executed at the time of the repeal of the statute, it was at best inchoate or initiatory' in its nature, its consummation being dependent upon the contingency of the issuance of the bonds and the registration of same. This being the nature of the right, it does not furnish authority for the exercise of the mandatory power of the court,

Limited to this reason alone the conclusion would be justified that it was the purpose of the. Legislature in the enactment of the repealing law to obliterate or destroy the power of counties to issue bonds to provide funds for road purposes; and in the absence of a saving clause to have a like drastic effect upon this power when partly exercised under the statute repealed. No special' saving clause was attached to the repealing act. Except by way of emphasis to give explicit application to general laws, such special saving clause was unnecessary. A repealing statute which construed alone would paralyze partly executed powers is, under our legislative system, so modified by Sections 8060 and 8062, Bevised Statutes 1909, as to perpetuate such powers to the extent of authorizing the completion or consummation of the purpose sought to be effected under a former law. Section 8060 so far as applicable to the case at bar is as follows: “nor shall any law repealing any former law, clause or provision be construed to abate, annul, or in any wise affect any proceedings had or commenced under or by virtue of the law so repealed; but the same shall be as effectual and be proceeded on to final judgment and termination, as if the repealing law had not passed, unless it be otherwise expressly provided.” This court in Rogers v. Railroad Co., 35 Mo. 153, discussing a question as to the modifying effect of said section upon a repealing statute, said, in effect, that this provision (Section 8060) preserves the relator’s right of action notwithstanding the repeal of the statute under which the right was given. The Legislature, however, not satisfied with leaving the validity of acts done to implication, where the facts in regard to a repeal were as in the case at bar, enacted Section 8062, which provides that: “The repeal of any statutory provision shall not affect any act done or right accrued or established in atny proceedings, suit or prosecution, had or commenced in any civil case previous to the time when such repeal shall take effect; but every such act, right and proceeding shall rem.ain as válid and effectual as if the provisions so repealed had remained in force.” These sections, construed together, so modify a repealing statute, as to not only render valid initiatory or preliminary acts in the exercise of a power conferred by a former statute, but authorize such subsequent acts as may he necessary to effect the purpose originally contemplated. This conclusion does not require us to travel over an untrodden field in this jurisdiction. In a mandamus proceeding against the county court of Vernon County in State ex rel. Stone v. County Court, 53 Mo. 128, the purpose of which was to compel the completion of action by a county court, which had been initiated under a statute then repealed, the Supreme Court construed and applied what are now Sections. 8060 and 8062, and held thatt a repealing statute, although express in its terms and having no special saving clause attached, did not, on account of the modifying effect of said general saving sections, render nugatory preliminary acts done or prohibit further action in the completion of same. The limitation of the operative effect of these sections to judicial transactions as contended for by respondent, is not in accord with their terms, nor with the evident purpose of their enactment. Their general nature authorizes the conclusion that they were intended-to continue in force repealed laws until proceedings commenced thereunder, regardless of their nature, might be completed. This was the construction placed, upon them in the cases cited, and we have been unable to reach a contrary conclusion. -

The reasoning above employed and the conclusion deduced therefrom are based upon the assumption that the repealing law left no operative statute authorizing county courts to issue bonds for road, purposes and that the extension of this power in this case was'due solely to the modifying effect of the general saving sections. For the reasons stated we deem the conclusion reached irrefutable; but the assumption is not in accord with the fact and is proper only to illustrate the continuing power of the former law in the-absence of a like subsequent enactment. The facts are that simultaneously with the repeal of - Sections 10520-10525 another statute (Secs. 83, 84, 85, Laws 1917, p. 470) was enacted to effect the purpose of the repealed láw. The purpose to be effected and the powers conferred by these statutes were similar in all .of their material features. Each was intended to authorize, upon a compliance with their conditions, the issuance of bonds by county courts for road purposes. They differ only in minor particulars. The latter differs from the former in requiring two hundred petitioners to initiate action by the county court instead of one hundred;' in limiting the bond issue to ten per cent of the assessed valuation of the property of the county; in the form of ballot which is slightly changed; in the statement of the rate of interest which is omitted from the order for the election ; and in authorizing the court to prescribe the terms of the bonds, instead of requiring one-half of them to be in denominations of. one hundred dollars each and the payment of one-twentieth of the issue each year, the same is limited to multiples of one hundred dollars and the time of payment is left to the determination of the court, the term not to exceed twenty years. Although there was an express repeal of the former statute the immediate reenactment of same, except as to the changes noted, left, so far as the practical application of the law is concerned, the same power in the county court. Under these conditions, although the latter law does in terms repea.1 the former, the effect is not to be ascribed to it of annulling all proceedings commenced when the former law was in force. The operative force of both laws.being essentially the same, the latter may properly be construed to be a continuance of the former; and, it is only necessary to render the steps taken regular that subsequent proceedings are required to conform to the latter. [State ex rel. v. Vernon County, supra.]

II. It is contended that Section 1249, Revised Statutes 1909, which authorizes the issuance of refunding bonds, is in contravention of that provision of the State Constitution (Sec. 12, art, 10) requiring the payment of county indebtedness within twenty years from the time of contracting same; and that the' effect of such refunding is to extend the time of payment, of the bonds thus issued to a period of more than twenty years from the date of the original issue. This court has held to the contrary in a well considered case of State ex rel. Proctor v. Walker, 193 Mo. 693. «Without burdening this opinion with quotations therefrom, it will be sufficient to say that it marks the distinction between the original creation of a county debt and its subsequent refunding, and limits the constitutional inhibition as' to time to the former. A different construction would practically prevent any other adjustment of such a debt than unconditional payment at its maturity. Drastic as are the limitations of the organic law, due to conditions existing at the time of its adoption, it would, as was clearly held in the Walker case, be too narrow and crabbed a construction to apply its provisions to the refunding of such an indebtedness as was here created. Well satisfied with-the ruling in the Walker casé we are not inclined to a different conclusion than is therein reached.

III. The respondent attacks the validity of the refunding bonds for the alleged reason that the county court made an agreement with the purchaser ox'ig-ina^l boiids that he should have the right to purchase the refunding issue. This position of the respondent, however, is wholly unwarranted by either the statutory law or by reason based upon the facts.

The statute in this regard is broad and sweeping, and indicates generally' the legislative intent that outstanding bonds may be refunded at any time after their issue. The language of Section 1249 is as follows-:

,. . Nothing in Sections ’ 1249 to 1251, inclusive, shall be so construed as prohibiting any County . . . that now has or may hereafter have a bonded or judgment debt . . . from funding or refunding such debt without the submission of the question to a popular vote, whenever such funding or refunding can be done at a lower rate of interest than the debts so funded or refunded bore . .

Given concrete application, this language warrants the construction that Wayne County had the right to refund its road bonds whenever it could be done at a lower rate of interest, as was done in this case.

If the refunding bonds had been sold at a lower rate of interest, to any investor other than the purchaser of the original bonds, the question raised by the respondent could not have appeared in this record. Under such circumstances, it would have been the duty of the county court to accept the offer of such subsequent investor in order to secure for the county a lower rate of interest.

If the purchaser of the original bonds be denied the privilege of purchasing the refunding bonds, he is penalized for purchasing the original bonds as being the only one not entitled to purchase the refunding bonds, which would be contrary to public policy.

If the purchaser of the original bonds be denied the privilege of purchasing the refunding bonds, then the statute (Section 1249 ) must necessarily be construed as not applicable to county road bonds. This would result in a construction of. the statute not authorized by its language or intent.

If county road bonds may not be refunded under Section 1249, in accordance with its unqualified conditions, then such bonds are stripped of one of the most important and valuable characteristics of all municipal bonds.

The foregoing alternative reasoning which in the main is that of relators, presents plausible grounds in support of the action of the county court in refunding these bonds. Under the provisions of Section 1249, however, the court is authorized at any time to take such action whenever it will effect a reduction in the rate of interest. This was accomplished by the action of the court in this case, which, in our opinion, was not only within the spirit and purpose of Section 1249, but was in conformity with its letter. There is, therefore, no merit in this contention. From all of the foregoing we are of the opinion that the peremptory writ of mandamus should issue herein, and it is so ordered.

• All concur, Bond, J., in paragraph 2 and result, except Baris, J., who dissents.