Harding v. Missouri Pacific Railway Co.

GRAVES, J. This is a second motion for a transfer of this case from this court to the St. Louis Court of Appeals. The first motion was overruled before this term began, on the ground-that there was a constitutional question involved as indicated by the record. The present motion was filed because, as counsel suggest therein, since said ruling on their previous motion, Division Two of this court has handed down an opinion in the case of Sheets v. Iowa State Insurance Co., 226 Mo. 613, which, it is charged, — 445 — takes out of the case the alleged constitutional question. This second motion to transfer we have but recently overruled, but it was thought best to follow such ruling with an opinion, and therefore this opinion in pursuance of an assignment for that purpose. The constitutional question appears by reason of the giving of an instruction. In the present motion counsel for the respondent says: “The appeal in this case was taken to this court on the theory that a constitutional question was involved on the record. This alleged constitutional question appears for the first time on the record in the twelfth, thirteenth, fourteenth and fifteenth grounds of appellant’s motion for a new trial and is predicated exclusively, as I understand it, upon the giving of one instruction in behalf of the plaintiff, which was the only instruction given for the plaintiff. It is contended that that instruction violates the provisions of the Constitution mentioned in the motion for a new trial. “This alleged constitutional question is not before this court for review. “1st. Because the abstract of the record shows that no such objection was made by the appellant when the instruction was given by the court. [Sheets v. Iowa State Ins. Co., 226 Mo. 613, 619.] “2d. Because the abstract of the record fails to show that any objection, either general or specific, was made to the giving of such instruction. [Sheets v. Iowa State Ins. Co., supra.]” The bill of exceptions, now printed and on file in the case, sets out the instruction complained of, and is followed by this language: “To which action of the court in giving said instruction to the jury, defendant then and there excepted at the time.” Counsel contend that under the ruling in the Sheets case, supra, this language is not sufficient to — 446 — preserve the instruction for review here, and that if such instruction is not here for review, then the alleged constitutional question is not in the case. Under the language of the Sheets case, the contention is well founded, but to our mind that case is wrong and should be overruled upon this point. The effect of the Sheets case is this: A party must first object to the giving of the instruction, and then the court overrules such objection, and the party then excepts to the action of the court in overruling the objection. In other words the course of proceeding to save the point as to an instruction must be the same as that of saving the point as to the introduction of evidence. This has never been understood as the rule in this State, and has never in recent years been announced as the rule until the Sheets case, supra. We have always held that to preserve the point for review as to the admission of evidence counsel must object to the introduction of the evidence. This objection calls for the ruling of the court, and counsel must then except to the ruling of the court if such ruling be adverse to him. In the same way we preserve the point as to improper remarks of counsel. [Eppstein v. Railroad, 197 Mo. l. c. 738.] In each case the objection is directed to a thing done by one other than the judge or court. The exception, however, goes to the action or ruling of the court. And herein lies the fallacy of the Sheets case. Instructions both given and refused are actions of the court. If instructions are asked by counsel they simply amount to a request to so instruct. If the request is refused, the party excepts to the action of the court in refusing such declaration of law. In such cases counsel do not object to the court refusing the instruction, and then except to the court’s action in overruling the objection. And on the other hand if the court grants the request of one counsel and gives a declaration of law, such instruction is — 447 — the action of the court, and counsel upon the other side have only to except to the action of the court in giving the same. So, too, as to the motions for new trial and in arrest of judgment. When the court acts upon such motions the party simply excepts to the action of the court thereon. As to an instruction the bill of exceptions should show an exception to the action of the court in giving or refusing it. As to the evidence it should show that the party objected to its introduction (thus calling for a ruling of the court) and then further show an exception to the action of the court. No book was more consistently followed in Missouri in the early days than Whittelsey’s Missouri Practice. In this work at page 481 is given a form for a bill of exceptions. I dare say that this form has been practically if not literally followed from that day to this. Upon the question of instructions this form puts it thus: “Whereupon the plaintiff prayed the court to instruct the jury as follows (here insert the same): “Which instructions the court gave to the jury, to the giving of which instructions in behalf of the plaintiff, the defendant by his counsel then and there excepted at the time. “The defendant upon his part prayed the court to instruct the jury as follows (here insert the same): . . . “Which instructions the court refused, to which refusal of the instructions thus prayed, the defendant by his counsel then and there excepted at the time.” At page 487 the author again speaks of the matter in language as follows: “It should be sufficient to say, ‘To which ruling of the court in admitting said evidence against the objection of the party or in giving or refusing such instructions, the party excepted.’ A bill of exceptions concluding thus, ‘To which decisions of the court, the defendant excepted at the moment, shows that exceptions were properly taken to — 448 — the giving and refusing of instructions.' [Steamboat v. Smith, 10 Mo. 527; Ranney v. Thomas, 45 Mo. 111.” The italics in the foregoing are ours. The author only uses the word ‘objection’ in connection with evidence. He does not use it in the clause relating to instructions. No lawyer within recent years has not substantially followed the old form in Whittelsey in preparing his bill of exceptions, and I dare say that the ruling in the Sheets case reaches practically every case upon appeal here and in the several courts of appeals. "Within the writer’s experience at the bar and upon the bench, that case is the first to challenge the sufficiency of the bill of exceptions in so far as instructions are concerned, when the exceptions were saved in language as quoted in the Sheets case. There is a case in the 8th Missouri (Vaulx v. Campbell, 8 Mo. 224) where it is said that there must be an objection and an exception as to refused or given instructions, but this case relies for authority on Shelton v. Ford, 7 Mo. 211, and when the latter case is examined it will be found that the rule stated was with reference to evidence and not instructions. In fact it furnished no basis for the ruling in the Vaulx case. And be it further said, that upon this point, the Vaulx case has not been cited from that day to this. The Shelton case, considering the point ruled, was well enough, and in accordance with our present rule. In the later case of Elsner v. Supreme Lodge, 98 Mo. l. c. 644, the court practically settled the question now under consideration. There we had an erroneous instruction and the point made was that the exception had not been sufficiently preserved. The language of the exception is quoted and approved. We then said: “Plaintiff’s counsel, to destroy the force of this error, contend that no exception to it was saved. On this point the recital in the bill of exceptions is this: ‘ To which action of the court, in giving said instruction, defendant then and there objected.' Here — 449 — the objection was made immediately after the ruling and evidently for the purpose of review. Although the word ‘excepted,’ in that connection, would more fully meet the requirements of technical nicety, we are not prepared to say that it is essential. The law dictionaries of Bouvier and Burrill mention an ‘objection’ made to the decision of a judge in the course of a trial, as one of the definitions of the word ‘exception,’ and in Webster’s Dictionary the latter word is given as a synonym for objection. Our duty is to so construe the code of practice as to distinguish between substance and form. [R. S. 1879, sec. 3586.] We think we do so in declaring that the word ‘objected,’ as above quoted from the record before us, should be regarded as of the same significance as ‘excepted.’ ” Here we hold that the w,ord ‘objected’ if used after the ruling of the court is made is equivalent to the word ‘excepted’ and preserves the instructions for review. To the same effect is Meyberg v. Jacobs, 40 Mo. App. l. c. 137, whereat Ellison, J., says: “On the original consideration of this cause we did not pass upon interpleader’s objections to instructions given for plaintiff, for the reason that we did not consider that exceptions had been saved by the action of the trial court. We are now satisfied that the bill of exceptions, as set forth in appellant’s printed abstract, sufficiently stated an exception to the action of the trial court. [Elsner v. Supreme Lodge, 98 Mo. 640.] It shows the objections to the instructions were made after they had been passed upon, and was not a mere objection, in tbe first instance, to them being given.” In the early case of Steamboat Raritan v. Smith, 10 Mo. 527, Judge Scott, at the March term, 1847, of this court, had to deal with this question. In that case the exception as to the instructions was in this language: “To which several decisions of the court, — 450 — the defendant by his counsel excepted at the moment.’.’ Judge Scott in his usual terse and lawyer-like way thus disposes of an objection to the sufficiency of this exception: “We do not think that the bill of exceptions sustains the objection that no exceptions were taken to the giving and refusing of instructions.” We might go further, but we deem this sufficient. We try cases upon appeal from a bill of “exceptions,” not a bill of ‘‘ objections. ’’ True it is that the word ‘‘ object” in certain connections may have the same meaning as “except.” In the course of a trial an objection is made to the end that a ruling of the court may he had. This ruling is not upon what the court itself has done, but upon what the parties are doing or offering to do. The objection goes to the act of persons other than the court and is made to get action from the court. When the court acts the error is preserved by an exception to the ruling. Thus the origin of the term “bill of exceptions.” Nor will it do to say that trial courts are imposed upon by reason of the rule existing in this State from the opinion of Scott, J., in 1847, to this date, as indicated in the Sheets case, supra. Counsel do not give or refuse- instructions. They simply request the same. The court gives instructions and frequently tells the jury that the declarations of law given are the instructions of the court. At common law' the instructions were orally given and no previous objection could be made. An exception to the action of the court was all that could be done. When, under our law the court acts, either upon request of counsel or upon its own motion in the matter of instructions, counsel only have to except to shell ruling. They are not required to object to the instruction, and have their objection overruled, and then except to the action of the court in overruling the objection, rather than to the .action of the court in giving the instruction. The Sheets case, supra, is at — 451 — variance with the heretofore well recognized rule in this State. It establishes a new departure and one not founded in reason. If counsel “at the time” excepts to the action of the court in giving or refusing an instruction, the trial court is apprised that error is to be charged' thereon. Before reading the same to the jury, such court can, if desired, be fully informed' as to the ground of exception. But we need not go further. Upon the question at issue the Sheets case is wrong, and should be and is overruled. Another - reason might be assigned for the overruling of this second motion, but the question herein discussed was the one calling for an opinion upon a motion (a thing not unusual) and having discussed it, we conclude by saying that the motion was rightfully overruled. Valliant, C. J., Kennish, Ferriss and Brown, JJ concur; Lamm, J., concurs in separate opinion; Woodson, J., dissents in opinion filed.