Wolf v. Hartford Fire Insurance Co.

JAMES T. BLAIR, J. Appellants sued on a blanket policy of insurance which had been issued to the Kansas City Live Stock Exchange for its benefit and that of all shippers and purchasers who might have livestock in its yards. In Division One an opinion was written on the merits. Two judges dissented on the ground that this court had no jurisdiction. On transfer to Court in Banc the cause was re-argued and re-assigned. Appellants allege they lost by fire livestock then in the yards of which the value was $34,105 and that they have collected on fourteen specific insurance policies the sum of $29,584.06, and they ask judgment for the difference in the sum of $4519.94 and interest at six per cent from June 1,1918. They further pray judgment for $450 damages for vexatious delay and $500 attorney’s fees. Suit was begun in 1918. Judgment was rendered in October, 1921. It is shown by a term bill of exceptions, which is not incorporated in the final bill, that when the pleadings had been settled respondent filed its motion as follows: “Comes now the defendant and shows the court that the above entitled cause is an equity case : that the same was, on the 9th day of March, .1920, listed as a jury case. Wherefore, defendant moves the court that said cause be taken from said list of jury cases,'and that it be ordered that said cause be placed on the equity side of the docket and tried as an equity case.” The court on this motion ruled that “said motion is in all respects sustained and said cause is stricken from the jury docket as a jury case, and the court finds and declares that said cause is triable as an equity case by the court without a jury.” It appears that appellants excepted and protested this ruling on the ground “that the court by said action and ruling does thereby deny to these plaintiffs, and to each of them, a trial by jury guar *462 anteed to plaintiffs Jby Section 28 of Article 2 of the Constitution of the State of Missouri.” When the cause came on for trial in another division, appellants renewed their demand for a jury, but r(the record recited) “it appearing that Judge Lucas of Division No. 2 of said circuit court having already ruled adversely to plaintiffs’ demand, a jury trial was refused plaintiffs, to which action of the court in refusing plaintiffs a jury trial the plaintiffs at the time excepted and still except.” The amount sued for is not sufficient to give this court jurisdiction. Unless the ruling denying a jury raises a constitutional question of the sort which vests jurisdiction in this court, the case must be transferred. In order for a “constitutional question” to give this court jurisdiction of a case of which it otherwise would have no jurisdiction, that question must be one “involving the construction of the Constitution of the United States or of this State.” It is not suggested that the construction of the Federal Constitution is involved, and the single question is whether the construction of the State Constitution is involved. It was not denied in the trial court nor is it denied here that appellants are entitled to a jury if this is an action at law. Nor has it been claimed that they are entitled to a jury if this is a suit in equity. Neither party makes either of these untenable suggestions either in brief or oral agreement. Both are in agreement that the Constitution guarantees a jury, if one is desired, in all actions at law, and that it does not give a right to a jury trial in suits in equity. This .has been decided long ago and often. The ruling of the trial court was that the suit was in equity and for that reason no jury could be demanded as a right. It appears, therefore, that the parties and the court had no trouble in construing the Constitution. All construed it the same way. The difference of opinion arose out of the question whether the proceeding was an action at law or a suit in equity. That was the only difference of opinion in the trial court, and *463 is the only one here relevant to the question under consideration. That is the sole basis of appellants’ argument in support of their contention that they have been denied a constitutional right, i. e. that this is an action at law. It is, therefore, all that can be considered in connection with the question whether this court is to retain jurisdiction. It is obvious the solution of the problem whether this proceeding is an action at law or a suit in equity will determine whether appellants are entitled to a jury.and will answer the only question raised or presented respecting the denial of a jury trial in this ease. It is just as obvious that in order to confer jurisdiction upon this court in this case, the solution of the question which does so must involve a construction of the Constitution. It is equally clear that no court by construing the Constitution can determine whether this is an action at law or a suit in equity. That is a question which, as this court has so often held, must he answered by a construction of the pleadings in the case. If jurisdiction were retained and this court heard the case here, there is no foundation either in the record or in any question raised by appellants which would justify any construction of the Constitution. It would be singular if this court could retain jurisdiction of this case on the ground that a construction of the Constitution is involved, when the record does not present and appellants do not raise and this court, therefore, could not actually decide, any question involving such construction. If the trial court has erred in holding this to be a suit in equity, that error lies in a misconstruction of the pleadings, since it is settled the pleadings determine that question, and no mere misconstruction of pleadings can give this court jurisdiction of a case, no matter what right is affected, nor how that right is protected, nor from what source it comes. If this is not true in this case, then any and every suit in equity can be lodged here by the process of demanding a jury trial and having it refused. The principle contended for is broad enough to let in every suit on a contract on the contention *464 that the contract has been misconstrued and its obligation has been thereby impaired; and, in fact, there seems to be no reason to doubt that the same rule would give jurisdiction of every case in which error was assigned and it was claimed the guaranty that “certain remedy” must be afforded had been violated. It will not do to say that subsequent cases will be excluded by the rule that a settled constitutional question, though raised, will not give jurisdiction. If that rule does not apply in this case, even if it be assumed the question raised would otherwise give jurisdiction, there is no logical ground for saying that the addition of one more to the already very numerous decisions of the question will change the situation. The simple fact that a constitutional right has been denied does not take a case out of the jurisdiction of our courts of appeals. The construction of the Constitution must be involved. The denial of such a right is error, to be sure, but the language of the Constitution is plain, and mere error, however grave, does not vest jurisdiction in this court. To vest jurisdiction of the appeal in this court the case must come within Section 12 of Article VI of the Constitution. This one does not do so. The. opinion filed in Division illustrates the point. In that opinion it was said in the statement: “The plaintiff appealed to this court, our jurisdiction being invoked for the reason that a constitutional question is involved.” The question of jurisdiction was not discussed. When the divisional opinion took up the question to which it had referred as the foundation of this court’s jurisdiction, it devotes two pages to it. There is not a word in it which pertains to the construction of the Constitution. It is devoted solely to the question whether the answer transformed the case into a §úit in equity.' The averments of the answer pertinent to this question are discussed in detail. One by one they are held to have no such effect as respondent claims they had; and the paragraph concludes: We hold, therefore, that-the answer presented no eqitable *465 features entitling the defendant to affirmative relief, or any relief in equity, and, therefore, the case was not properly transferred to the equity docket, and plaintiffs were erroneously denied the right of trial by jury.” The writer of that opinion and the concurring judges passed on the point in this case by turning to the pleadings and construing them, and in no particular attempted to construe the Constitution in solving the question upon which it is conceded this court’s jurisdiction depends if jurisdiction it could have. Reference was made in the oral argument to State ex rel. Prior v. Kansas City, 261 S. W. 112, in which the question was whether one was entitled to a jury in' a proceeding by mandamus. The question there was whether the constitutional guaranty of trial by jury covered proceedings by mandamus. Clearly, the solution of that question required a construction of the provisions of the Constitution invoked here, to determine whether proceedings by mandamus fell within it. It is suggested that the decision in Creve Coeur • Lake Ice Co. v. Tamm, 138 Mo. 385, is authority for the retention of jurisdiction in this case. That decision was cited and relied upon in the dissent from the divisional opinion. It is an excellent portrayal of the difference between a question which gives jurisdiction and one which does not. That was an action at law. The court discussed and decided, separately, the question (1) whether the statute permitting references without consent, as construed prior to the “adoption of the present Constitution,” was constitutional, and, as the court stated it, (2) “whether the circuit court erred in holding that this was a case falling within the statute.” It held (1) that the statute was constitutional, and (2) that there was no long account in the case within the meaning of the statute. The question whether the reference statute was valid depended upon a construction of the constitutional guaranty of trial by jury. In deciding that question the court discussed and construed the pertinent provision of the Constitution and the decisions *466 relevant to tlie question of the constitutional validity of the statute in question. The presence of that question was the basis of this court’s jurisdiction in that case. Then the court, in a separate and succeeding paragraph, took up the second question. With respect to that question the court did in that case just what this court would have to do in this case if jurisdiction should be' retained — it turned to the pleadings and found the answer there. There is nothing in that paragraph of that opinion which indicates that this court thought it had anything to do with a construction of the Constitution, or with the question of the validity of the statute, or with that of its own jurisdiction. It held in that paragraph that there was no long account involved; that the statute, though valid, did not apply; and that the holding that it did and the granting of a compulsory reference constituted error, and sent the case back for trial. The court did not hold that it had jurisdiction in the Tamm Case because the trial court erred in referring a ease which did not, on its facts, come within the reference statute. It held it had jurisdiction because “a construction of that provision of the Constitution of the State guaranteeing a jury trial was and is involved.” That question of constitutional construction it then proceeded to discuss at length and to decide. It then moved on to the question whether the pleadings in the Tamm Case brought that case within the statute which it had just held to be constitutional, and held that they did not. It is upon language used in the discussion of this last question that the suggestion is based that the Tamm Case is authority for the retention of jurisdiction in this case. That language has no relevance to that question. The case of Tinsley v. Kemery, 83 Mo. App. 94, was another referred cáse and involved the same question concerning jurisdiction which was in the Tamm Case. The court expressly held'the “exact point” in the two cases to be the same. This language does not justify a construction of the opinion of the Court of Appeals such *467 as would convict it of (1) holding that the Tamm Case decided what it is plain it did not decide, or (2) of holding that a question which did not involve,a construction of the Constitution would confer jurisdiction in circumstances like those in thjat case and in this case, particularly in view of the fact that the Court of Appeals expressly recognized that to confer jurisdiction here such a question must involve a construction of the Constitution. That case was decided, as was the Tamm Case, prior to the announcement of the doctrine (Dickey v. Holmes, 208 Mo. 664) that a previously settled question of constitutional construction would not, of itself, confer jurisdiction upon this court. The opinion in Tinsley v. Kemery, 170 Mo. 310, in this court, throws no additional light upon the question or upon the Tamm Case. It cites the Tamm Case and proceeds without further discussion of the question of jurisdiction. In Lincoln Trust Co. v. Nathan, 175 Mo. l. c. 41, the trial court had cancelled a lease in which the rent reserved for the remainder of the rental period amounted to several times the sum necessary to give this court jurisdiction. It was remarked in the statement of the case that “the plaintiffs demanded a trial by jury, which the court denied, and the plaintiffs duly excepted. Hence the appeal to and jurisdiction of this court.” This is cited as authority for the retention of jurisdiction in the instant case. The court did not, in that case, mention the question of jurisdiction except as stated, and proceeded to determine the cause. It nowhere discussed or construed the Constitution or the question of jurisdiction. That decision contributes nothing, in the way of reasoning, to the subject. The quoted remark in the statement was wrong as appears from what has already been said. One argument which has been advanced for the retention of jurisdiction contains a sentence which demonstrates the continuing ability of Truth quickly to rise again after it has been crushed to earth. That sentence, written with respect to reference cases and this case, is: “The thing which calls for the construction and application of the constitutional pro *468 vision is the denial of the constitutional right, and whether that right has been denied depends upon the case made by the pleadings.” Here is a concession that it is a construction of the pleadings which is involved. The implication that a simple denial of a constitutional right calls for a construction of the Constitution in every instance is refuted by this and many other cases. It may or may not call for such construction. If it calls for such construction, that serves to give this court jurisdiction. If the solution of the question based upon it does not call for such construction, then it does not give this court jurisdiction. The language of the Constitution is plain and unambiguous and susceptible of but one meaning. This court cannot amend it. Neither party, in the briefs, attempts to urge a construction of any provision of the Constitution. Neither party raises any question which calls for -such construction. The record does not furnish a basis for any question which would do so. The court would not be called on to construe the Constitution even if it took jurisdiction. The decision in State v. Keefe, 17 Wyo. l. c. 242, is drawn into the case. The statute (Sec. 4276, chap. 72, R. S. Wyoming 1899, as amended, Session Laws 1903, p. 78, now Sec. 6398, R. S. Wyoming 1920) under which the Supreme Court of Wyoming took jurisdiction in that case reads: “When an important and difficult constitutional question arises in an action or proceeding, pending before the district court . . . the judge of said court may . . . cause the same to be reserved and sent to the Supreme Court for its decision . . .” This statute gave the Supreme Court the only jurisdiction it had in that case. Whatever may be said as to its meaning it is undeniable that the statute does not expressly require the question reserved and certified to involve a construction of the Constitution. In that respect it differs from . the provision of our Constitution relied upon to give jurisdiction in the instant case. In view of the actual situation in the Keefe Case this difference in language need not be discussed. In that case certified question “7” *469 was this: “Under Section 10, Article I, of the Constitution granting to every defendant a speedy trial, has the defendant, under the facts as set forth in the agreed statement, had a speedy trial; and would he, if he were to be tried at the present time, have a speedy trial, as contemplated in Sections 5382 and 5384, Revised Statutes 1899; and should he, under the agreed statement of facts, be discharged and not subjected to a trial under the information filed in this case?” The other questions concerned a matter related to this. The court said: “The questions thus stated require a consideration of the following constitutional and statutory provisions” and sets them out; and then: “It is apparent that the ultimate question here involved is whether upon the facts the delay in prosecuting the defendant upon the pending information has resulted in depriving him of the right to a speedy trial within the meaning of the constitutional provision” (italics ours) “and, in that connection, whether the statutory provisions quoted above were applicable to the defendant during the term of his imprisonment in the penitentiary, or whether the fact of his conviction, sentence and imprisonment upon1 the one information furnishes a sufficient excuse for not having brought him to trial upon the other. Indeed, this is practically the sole question that has been argued upon the merits of the case.” In the language just quoted the court was stating what question had been reserved and certified. That question, as it stated it, is clearly one which involved the construction of the Constitution of Wyoming. This is too plain to require argument or citation. This part of the opinion in the Keefe Case is the only part relevant to the character of the question before the Wyoming Court. The part of the opinion brought forward as authority for the retention of jurisdiction is in no way concerned with the character of the constitutional question there presented. This becomes evident from an examination of the rule of jurisdiction under the statute above set out, as that rule is laid down in the Wyoming decisions, and a consideration of the question of jurisdic *470 tion raised and what the court said about it in the Keefe Case. In exercising its jurisdiction to pass upon reserved questions the Supreme Court of Wyoming strictly restricted itself to the exact questions certified. Grand Island & N. Wyo. Rd. Co. v. Baker, 6 Wyo. l. c. 376; Rasmussen v. Baker, 7 Wyo. l. c. 149); required these questions to be specific in character (Jenkins v. Cheyenne, 12 Wyo. l. c. 79, 80; Smith v. Healy, 12 Wyo. l. c. 222), and refused jurisdiction unless the question reserved was actually involved in an “action or proceeding;” and, in the case of a constitutional question (under the amended statute), required that question to be necessary to a decision in the district court; and held that such question was not necessary, in the sense of the statute, if there were other questions involved in the case, the determination of which by the district court might dispose of the case without regard to the constitutional question. [State v. Kelley, 17 Wyo. l. c. 343-344.] In the Keefe Case this rule was invoked. It was with respect to this rule that the court wrote that part of the opinion which has been suggested as showing jurisdiction in this court in the instant case. Counsel had suggested that the case “seemed to require nothing beyond a construction of the statute” and, therefore, there was nothing to give jurisdiction. In discussing this question the Wyoming court was not called upon to consider the character of the constitutional question reserved. It had already fully stated its view of that. It was necessary, in that connection, for it to use language to characterize the reserved question as “constitutional” as distinguished from the question of “statutory” construction which counsel had suggested was all that was in the case. It was in this connection and With this purpose that the court used the language quoted in the dissent and that language has no relevance to the question whether, in Wyoming, under the statute, a “constitutional question” must or must not involve a construction of the Constitution. The question considered did involve such *471 construction and, so far as a fairly careful examination of Wyoming decisions, under the amended statute, shows the court has not, since 1903, taken jurisdiction to decide a reserved question which did not involve a construction of the Constitution of that state. In Commissioner v. Railroad, 25 Wyo. l. c. 464, the constitutionality of Chapter 55, Session Laws 1915, was involved. In State v. Peterson, 27 Wyo. l. c. 193,194, and the cases argued with it, the constitutionality of the search-and-seizure provisions of the Wyoming Prohibition Act of 1919 was involved. In Budge v. Commrs., 29 Wyo. l. c. 43, the constitutionality of other statutes was involved. In Dorrance v. Dorrance, 242 Mo. l. c. 643 et seq., cited in the dissent, the question of the constitutionality of Section 2932, Eevised Statutes 1899, was explicitly raised. The court held that “construction” of the Constitution included (1) interpretation and (2) application of the interpreted language to “the subject-matter and attendant circumstances.” The real gist of the contention that this court has jurisdiction in this case is that there can he a question involving a “construction” of the Constitution which has to do solely with the application of the constitutional language, i. e. that which does not involve “construction.” The Dorrance Case denies this, as does the constitutional provision respecting jurisdiction itself. The question in the Dorrance Case respecting the efficacy of a constitutional question to give jurisdiction, though the decision of it might he adverse to the contention of the party who raised the question, has nothing to do with the present difference of opinion and it has not been questioned in this case. The case is transferred to the Kansas City Court of Appeals. David E. Blair, White and Ragland, JJ., concur; Graves, G. J., and Walker and Woodson, JJ., dissent, Graves, G. J., in separate opinion to he filed.