State ex rel. Excelsior Powder Manufacturing Co. v. Ellison

WOODSON, J. — This is an original proceeding in prohibition instituted in this court by the relator seeking to prohibit the judges of the Kansas City Court of Appeals from exercising-jurisdiction in a certain cause brought by one Clara E. Liggett against the relator in the circuit court of Jackson county, to recover damages for personal injuries sustained by her through the alleged negligence of the relator, and in-which a judgment was rendered in her favor for the sum of $-2000, from which the relator appealed to the said Court of Appeals. The’ relator also asks this — 590 — court to compel the respondents to certify the cause to this court for determination. The facts of the case are undisputed and are stated by counsel for relator in substantially the following language: . . . The petition for prohibition was filed with the clerk of this court and with it was filed a certified copy of the order made by the Kansas City Court of Appeals upon the relator’s motion to transfer the Liggett case to this court, and there was also filed as an-exhibit to the petition a copy of the abstract of the record in the said Liggett case. Upon the petition being filed the court ordered a preliminary rule in prohibition to issue, and same being duly served the respondents filed a return wherein they made no denial of any of the allegations of the petition except they alleged that they had not refused to transfer the Liggett case to this court, but at. the same time they admitted that they had made the order charged in the petition, which will be subsequently set out. The respondents then alleged that the petition filed by the relator fails to state facts sufficient to entitled it to a writ of prohibition. Thereupon in due course relator filed a motion for judgment upon the pleadings. The case is therefore up for decision on the facts set forth in the relator’s petition and the exhibits filed therewith. From relator’s petition it appears that the case of Liggett v. Excelsior Powder Manufacturing Co. was tried upon the second count of the plaintiff’s petition, wherein plaintiff alleged in substance that the defendant (relator'here) operated a plant for manufacturing blasting powder near Holmes Park in Jackson county, which was situated near public schools and a public highway, to-wit, the railroad of the St. Louis & San Francisco Railroad Company, upon which it and the Kansas City Southern Railway Company operated trains; that by reason of the location of said plant its glaze mill, wherein were stored large quantities of — 591 — blasting powder, was liable to explode and injure persons being or travelling in the near vicinity thereof and especially upon said railroad, and that by reason of said facts the maintenance of said powder plant at that place constituted it a continuous, common and public nuisance. Plaintiff further alleged that one morning while she was passing said plant upon a passenger train of the Kansas City Southern Railway Company, there was an explosion in the glaze building^ of the plant, whereby the glass in the windows of the train were broken and blown upon her person and inflicted serious injuries on her, for which she claimed $25,000. "When the case came on for trial the defendant objected to the introduction of any evidence because the plaintiff alleged that she suffered her injuries while riding on a railroad train and upon the theory that the location of defendant’s plant near the railroad track constituted it a public nuisance; that although section 14 of article 12 of the Constitution declares railroads to be public highways, yet this did not mean that they were highways in the same sense as pubilc- county roads, or in such sense that the establishment of the plant near the railroad could constitute the factory a public nuisance. This objection being overruled the defendant duly excepted, and thereupon plaintiff introduced her evidence and at the close of her case the defendant requested the court to give the following instruction: “The court instructs the jury that although the railroads are declared to be public highways by section 14 of article 12 of the Constitution of Missouri, yet this does not mean that they are public highways in the same sense as are public county roads, nor are they to be considered as public highways in determining any of the issues in this case, and therefore under the pleadings and the evidence your verdict must be in favor of the defendant. ’ ’ — 592 — This instruction being refused, the defendant excepted and then offered its evidence, and at the close of all the evidence the court gave certain instructions for both parties, and thereunder, as previously stated, the jury found for the plaintiff therein, and the appeal' was duly taken to the Court of Appeals. The appellant there, the relator here, filed in the Court of Appeals the following motion to transfer the cause to this court, viz: “Now comes Excelsior Powder Manufacturing Company, appellant in the above cause, and moves the court to transfer this cause, by proper order to that effect, to the Supreme Court of Missouri for the determination of the cause and the questions involved on this appeal, and for the grounds of this motion appellant assigns the following: . “1. The determination of this appeal and the questions involved thereon, and which were raised and decided against appellant on the trial of this cause in the circuit court of Jackson county at Kansas City, involves the construction of the Constitution of the State of Missouri and particularly of section 14 of' article 12 of said Constitution. “2. This cause on appeal is within the exclusive jurisdiction of the Supreme Court of Missouri. “3. This court has no jurisdiction of the appeal in this cause because same involves the construction of the Constitution of this State.” Upon the presentation of said petition for a removal of the cause to this court, the Court of Appeals made the following order: “Now at this day the court having considered the appellant’s motion to transfer this cause to the Supreme Court doth order that the said motion be taken with the case.” Upon the making of this order counsel for relator applied to this court for the writ of prohibition previously mentioned. — 593 — Constitutional Question. I. Counsel for relator presents to this court and ably discusses several nice legal propositions; but the view we take of the case it would he improper for us to consider any of them at this time. If I correctly understand the position of counsel, it is this: That because section 3938, Revised Statutes 1909, provides that when a ease is appealed to the wrong court it shall be the duty of such court to immediately on such fact coming to its knowledge, order the cause transferred to the Supreme Court, and, therefore, whenever a litigant asserts by motion that a cause has been improperly sent to/the Court of Appeals then it becomes the immediate duty of that court to transfer the same to this court without delay. Counsel for “respondents contend that the Legislature never intended for the language of this enactment to be so construed, and never contemplated •that the Court of Appeals should not hear on brief and argument such a question, or any other question, before, pronouncing judgment on it.....It may avail itself of a hearing upon the question both by brief and- argument to the end.that no order may be made improvidently and without due consideration.” The respondents assumed that the Court of Appeals had the authority and jurisdiction to hear counsel by brief and argument, upon the question of removal, and consequently made the order previously mentioned, that the petition for a removal be taken with the cause. In my opinion there is no doubt but what the respondents are correct in the construction they have placed upon said statute. No court should be required to make an order without first being" advised of its character, and offered a reasonable time and opportunity to investigate and pass upon its validity; other — 594 — wise those courts might be forced into the commission of grievous errors, which in all probability they would not commit if given an opportunity to investigate the questions presented. There is scarcely a term of this court that passes without our taking motions of various kinds with the case. We do this in order to investigate the questions presented by the motion and thereby enable us to intelligently and properly pass upon them. We presume that the Court of Appeals was actuated by the same sensible motive when it made the order in this case taking the motion for removal with the cause. That order only signifies that the court entertained some doubt as .to its jurisdiction and that it wanted time to investigate the question in the light of briefs and argument of counsel. If the Court of Appeals should err in its ruling as to its jurisdiction in the case, the law affords the relator ample remedy. [State ex rel. v. Smith, 176 Mo. 90.] In the case of Kansas City ex rel. v. Surety Co., 196 Mo. 281, the motion to transfer was taken with the case, but the jurisdiction of the case was retained by this court and the case was here decided. In Milling Co. v. Blake, 242 Mo. 23, the same order was made and the same disposition was made of the case. In Kettelhake v. Car & Foundry Co., 243 Mo. 412, the same order was made on motion to transfer cause to the Court of Appeals, which upon investigation was sustained and the cause was transferred without being decided. And the same was true of the case of State v. Doerries, 243 Mo. 626. There are many other cases of like import decided by this court, too numerous to mention. . — 595 — Entertaining these views of the law, we are clearly of the opinion that the preliminary rule heretofore issued should be quashed, and it is so ordered, and the Kansas City Court of Appeals is directed to pass upon the petition for a removal of the cause to- this court in the manner indicated by its order herein set out. All concur.