Star Bottling Co. v. Louisiana Purchase Exposition Co.

LAMM, J. Appellant’s charter expired pending this appeal by limitation. By stipulation the (unnamed) trustees of the Louisiana Purchase Exposition Company enter their appearance as party defendant, and are • substituted by consent of respondent. The bottling and exposition companies entered into an extensive contract giving the bottling company a “soft drink concession” at the World’s Fair in St. Louis in 1904. That concession gave the bottling company the right to manufacture and sell on the exposition grounds carbonated water, flavored and unflavored, lemonade, orangeade, cider, root beer, pearine, ice creams, ices, soda water and all hot and cold drinks — 637 — usually served at soda fountains, and all other so-called “soft drinks.” Certain reservations were made in favor of restaurants,- lunch stands and exhibitors of spring, mineral or other-water, root beer, malto grapo, orangeade-, cider, grape juice, chocolate, cocoa, coffee and tea, and. the right to provide free drinking water was reserved to the exposition company. During the whole life of the exposition there was friction in the relations of the contracting parties. Complaints were made by the bottling company, and rasping controversies arose on the meaning of this, that or the other term of the contract — for example: On the contract authority of a certain officer of the exposition company to settle controversies, on whether the bottling company held divers and sundry exclusive rights, on whether it got at the hands of the exposition company the number of stands contemplated by the contract as well as sewerage, water and light, on whether the exposition people dealt fairly with the bottling people in changing stands, on whether water was a “soft drink” and could be sold by the bottling-company after the exposition company permitted' the sale of drinking water on the ground, on the meaning of “hot drinks,” on whether ice cream cornucopias (yclept “gopherettes”) pertained-to an ice cream concession or were a food because of the edible wafer wrapping the ice cream and pertained to a restaurant or lunch, stand concession, on whether the bottling company could make and sell coffee as restaurants make and sell it or must be confined to a kind of coffee usually prepared and drawn at soda fountains, and so on and so on. When the exposition closed plaintiff sued, alleging performance on its part and non-performance on the other side. Issue was joined on its fifth amended petition. Thereby it formulated a long list of grievances, alleged breaches of the concession contract m many ways, claiming damages in the sum of $257,351.24. — 638 — In its answer the exposition company set forth its theory of the contract, pleaded compliance therewith and non-compliance by the bottling people, and then set np a counterclaim with many specifications, claiming damages fox breaches of the contract on the part of its adversary in the sum of $14,143.59. A reply came in consisting of allegations of confession and avoidance, waiver, estoppel and denial. By consent of all parties the cause was referred to John M.-Holmes, Esq., of the St. Louis bar, “to try all issues and report his decision with all convenient speed.” The learned .referee heard a volume of testimony and made and filed his report. To that report in due time both the bottling and the exposition company filed formidable written exceptions. Presently the court overruled all exceptions, approved the report of the referee and judgment followed. Thereat both companies filed their several motions for a new trial. Presently that of the exposition company was overruled, that of the bottling company sustained (the court giving reasons in a memorandum filed) and a new trial was granted. From that order the exposition company on apt steps and in due time appealed. The first question is: Will an appeal lie from an order, nisi, granting a new trial uihen both parties litigant ashed a neiv trial and one is grmited to eitherf Or to put the question more pointedly: Will an appellate court review and pronounce upon the reasons assigned below for granting a new trial, when both parties litigant ashed for one and one is granted to either? Any court of general jurisdiction in Missouri may award a new trial on any issue on cause shown. [R. S. 1909, sec. 1994.] So, at a pinch, ex debito justiciae, and of inherent right, it may award one on its own motion during the term. [Ewart v. Penniston, 233 Mo. 695.] The statute quoted means, of course, that a new trial may be awarded generally (as here) on all — 639 — the issues, for a power to award on any issue is broad enough to cover all. There is nothing peculiar to a reference case prohibiting the award of a new trial where a proper motion looking to that end is interposed. Such is within the reasoning of State ex rel. v. Hurlstone, 92 Mo. 327, and cases cited, and Maloney v. Railroad, 122 Mo. 106. What is a new trial where one is granted generally by a trial court? To attempt to define a term that defines itself is to invite danger of making obscure what is already clear- — to conceal the fruit with leaves. The term “new trial” means what it says— i. e., a trial anew, de novo, — “with as little prejudice to either party as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule of court for awarding such second trial on the other.” [3 Black. Com., *391.] In a case where there has been a reference by consent of parties, as here, and the selected referee qualified, took evidence, made his report, accompanied by the evidence, and exceptions have been filed thereto and ruled upon, as here, then (whatever conclusion might arise by mere cold definition and a chopping of logic) the common sense of it is that a new trial would not necessarily cut behind the order of reference and the report, and call (whether or no) for a new referee or for new evidence covering the whole case and a new report; but a new trial would be confined to the hearing on the exceptions on both sides, the action of the court thereon which led directly up to and produced the judgment and the mischief to be abated. Those exceptions, those rulings and that judgment each and all would be opened up for re-examination and redetermination in the light of the evidence on file. We do not mean to rule that for good cause shown a court might not in a proper case on a retrial order the referee to hear further evidence, or even — 640 — order a new reference, if a just determination of the issues required it and the exceptions were broad enough to cover the point. What we want to say is that, as a general rule (and this has a bearing on a contention made here that we should go into the reasons for granting a new trial) a new trial in a reference case only opens, as said, in the first instance, the issues generally on the exceptions to the report, on the rulings and the judgment — the exceptions and the report standing somewhat in the nature of pleadings on the final hearing, and the judgment following as a legal conclusion from the hearing and rulings on those exceptions. We have been moved to say what we have about a new trial in a reference case because logically, on strict and last analysis, a new trial might mean beginning all over again in hearing testimony. It would mean that in a jury trial. But the trial undone here by the court’s order is not a jury trial. It is a trial by the judge after the trial by the referee is over. Speaking of logic in connection with legal exposition, it will do to say that no argument against the use of a thing can be drawn from the abuse of the thing {Ex abusu non arguitur ad usum) and yet the use of logic may be abused and care is due on that score. For instance: Logic was logic in the poetical story of the “Deacon’s Masterpiece, or, the Wonderful One-Hoss Shay” (q. v.). But the result was not satisfactory as the whole bar of Missouri know. Logic has its uses in administering law — high uses and many of them. But, after the last word is said, “the life of the law has not been logic. It has been experience.” [Holmes, Com. Law, p. 1.] Law, having to do with the practical, everyday affairs of mankind, should sub-serve the ends and purposes of good sense and broad justice, not those of mere logic, though when the two go hand in hand they are a helpful and pleasant pair of judicial handmaidens, and pexadventure, when they — 641 — sit smiling as they often do on either side of a good judge at labor he feels restful. Why in a new trial in a reference ease, having regard to experience, order a new reference or further evidence at great delay and expense when the data for a just result is at hand? An appeal was unknown at common law. It rests alone on statute. Before a litigant can appeal.he must be “aggrieved.” [R. S. 1909, sec. 2038.] If he is not aggrieved he cannot appeal. What grievance can a litigant have who gets what he asked for? How can he be injured in the way lie gets it, so long as he gets it? If the bottling company was alone loosed by the new trial, and the exposition company was left bound by the old trial, then indeed would it have a grievance. But it is not so, a new trial for one is a new trial for both in all that term implies. It is a loaf baked in the oven of the law to be sociably shared by both parties. Verity, withal, the benefits of a new trial, like the rain and the dew, descend alike upon the just and the unjust, on defendant as well as plaintiff — the terms “just” and “unjust” being used only for the purpose of the simile. As appellant is not aggrieved, it was not entitled to an appeal in a case where its antagonist was granted a new trial and its own motion is overruled. [Deiermann v. Bag Company, 144 Mo. App. 474.] In that case Gray, J., speaking for the Springfield Court of Appeals, holds language in point, viz.: “If the court had sustained appellant’s motion for new trial and overruled respondent’s motion therefor, the case would have been in the identical condition that it was when the court overruled appellant’s motion and sustained the respondent’s. And this being true, the appellant was not aggrieved by the action of the court in granting a new trial, and the appeal is without merit.” It is suggested that the Springfield Court of Appeals was without jurisdiction in the Deiermann case, — 642 — it having gone there from St. Louis and the statute warranting that transfer having been declared unconstitutional (State ex rel. v. Nixon, 232 Mo. 496) and, therefore, that ruling is in the nature of obiter. That is so. But it arises to the dignity of sound exposition, and, with the benediction of our present vise, the brand “.obiter,” may be taken as effaced. There is a maxim running that every consent removes error (Omnis consensus tollit errorem). Sometimes it is expressed in other ways' — for- example, consent always removes the effect of error, or consent heals error, or participating in error cures the error. Courts are fond of applying that maxim in many ways, for it is a fair and convenient rule. (For instance, Crum v. Crum, 231 Mo. l. c. 639, illustrates its application in one phase, and other illustrations abound in any volume of our reports.) We think the rule applies in this case, for do we not announce a proposition hitherto accepted and acted on by the bar, nisi, when we say that when both sides asked a new trial and one is granted to either, both are bound by the order and an appeal will not lie? We take it that ever since the statute allowed an appeal from an order granting a new trial (Laws 1891, p. 70) it has been the understanding of the bench and bar on the circuit that if a litigant wishes to preserve the right to complain of a new trial he must not ask one himself; for if either get it both get it and to that appellant consented. At least in the fifth of a century since the statute has been in evidence no appeal has come here of that sort. It is argued, however, that we should go into the reasons given by the court for granting a new trial, and if we find them insufficient we should set the order aside — this, on the theory that by asking a new trial appellant consented to one, but not to the one it got. Otherwise, the argument runs, the court will be in the leading strings of its erroneous reasons when — 643 — the new trial comes on, and in that way appellant is aggrieved. There would be much force in this argument if there was any rule, practice or good reason requiring a trial court to continue in the same mind it was when the new trial was granted, and was bound to rule in accord with its reasons for granting one; or if the successor of a trial court was in anywise precluded or handicapped by the reasons assigned by his predecessor in granting a new trial. But we know of no rule of that sort. To the contrary when a new trial is granted the reason for granting one, the ratio decidendi, fills no appreciable office thereafter. It has served its purpose and is drowned in the order. At the new trial the court presumptively will proceed to try and determine issues presented for its judgment in accordance with the law and the very right of the case. We have no call to presume or anticipate that error will be committed at the new trial. Yre deal here with error actually committed, not with imaginary or non-existing error, sounding in prophecy and hid away in the womb of the future. Both parties are at liberty to make their contentions below at the new trial, with the presumption they will be heard fairly and determined well. If they are not determined in that way it will be time enough for us to ’ interfere after the fact, and in the course of orderly procedure. If we were reversing and remanding a case for errors a different rule would apply. We ought to point them out, in such a case, so they could be avoided. But it is argued this court overruled a motion to dismiss the appeal on the very point discussed in this opinion. We did overrule such a motion. But the question was novel in this court, we did not have the record before us at that time, nor did we stand informed by briefs and arguments of counsel. That interlocutory ruling was wrong. When a ruling is sharply wrong it accords with correct practice to cor — 644 — rect it at the first opportunity in the same case. [Gardner v. Robertson, 208 Mo. l. c. 610.] Finally we are referred to the ease of Cramer v. Barmon, 193 Mo. 327. The case is reported with a wrong title in the Kansas City Court of Appeals for we find it reported in 126 Mo. App. 54, as Cramer v. “Harmon.” We make two observations on that case, to-wit: First, it is not in point. Second, if in point, we would not follow it. Apropos to the last observation we make' some further observations, viz.: On a fiction (wholly contrary to the fact, based on a notion of the common law) that a judgment is not entered until a motion for a new trial is disposed of, it was reasoned out that since there can be but one final judgment in a ease where there are separate counts, or issues, or separate trials (R. S. 1909, secs. 1971, 2097) plaintiff could not, at one stroke, appeal from a judgment against him on the first count and from an order granting defendant a new trial on a second count. In that case plaintiff asked for $5000 on his first count, and the jury, coerced by the court, found against him. On the second count he got a verdict for $1500. The court granted defendant a new trial on the second count, refused plaintiff one on the first, and plaintiff undertook to appeal here from the result of tlie trial on the first and from the order granting a new trial on the second count. At that time we had jurisdiction' where the amount in dispute was over $4500. On that condition of things, we ruled we had no jurisdiction, that the only question here was on the order granting a new trial on the second count, of which the Kansas City Court of Appeals had jurisdiction. It was further held that if plaintiff desired to test the correctness of the result at the first trial as to the first count he must stand by with folded arms, await a determination of the appeal 'on the second count, and when that was determined on a first appeal he must then take-a second appeal on a new final judgment to be ren — 645 — clered below. That ruling was not administering justice without “delay” as the Constitution requires. Moreover, that case introduced an anomaly in the practice and by over nice reasoning and speculative refinements reached a result never in the mind of the lawmaker. "We assert boldly that there is no warrant in the written law for forcing tioo appeals when one will serve the purpose. Properly construed, section 2038, Revised Statutes 1909, does not forbid taking-up a final judgment on one count together with an order granting a new trial on a second count. Why force two, absent a mandatory statute? Is it the policy of our law to make two bites of one cherry and' multiply appeals? It is one of the comedies of case law that the Kansas City Court of Appeals quite missed our dainty reasoning. We sent that court the case. It took it and passed on the entire appeal on both counts and made an end of it. [Vide, Cramer v. Harmon, 126 Mo. App. 54.] I agreed to the Cramer case and make amends by retracting. Again, for appellate purposes in that ease, there was a final judgment in point of fact on the first count. It stood there a menace to plaintiff and he was entitled to be eased of it if erroneous. Could not plaintiff have appealed at once if the verdict had not been disturbed on the second count — this because of error in the trial on the first? It was so held in the Scott case, infra. Why does he lose that right because he got an additional right to appeal from the order on the second? In law do I lose what I have because the law gives me something-more? In effect, the entire case was disposed of below on both counts. Strictly, by the reasoning- adopted in the Cramer case, the first appeal could not itself be heard for it was premature, since (so ran the case) there was no final judgment settling all the issues of the case. In that sense the Cramer doctrine is a two-edged sword which, cutting both ways, cut out any appeal at all — a palpable absurdity. We have given a — 646 — construction of our statutes in that behalf in Stone v. Perkins, 217 Mo. 586; Mann v. Doerr, 222 Mo. 1; Smith v. Kiene, 231 Mo. 239, and in Scott v. Parkview Realty Co., 241 Mo. —, on reasoning running counter to the Craméx case. The premises all considered, the order granting a new trial is affirmed because appellant cannot question it — not because the reasons granting one are sound or unsound. All concur; Valliant, J., in result in separate opinion.