STATE EX REL. SECURITY INS. CO. v. TRIMBLE

1. CERTIORARI: Jurisdiction. The Kansas City Court of Appeals is a court of final resort in cases coming within its jurisdiction, and its decisions in such cases, whether right or wrong, are final, subject only to certification, or to the issuance of the writ of certiorari when its judgment is deemed to be in conflict with the last previous ruling of this court on the subject.

2. ____: Constitutional Grounds. The right to a writ of certiorari to a Court of Appeals is based on two provisions of the Constitution: Section 6 of the Amendment of 1884, declaring that "the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said courts of appeals," and Section 8 of said amendment, declaring that "the Supreme Court shall have superintending control over the courts of appeals by mandamus, prohibition and certiorari."

3. ____: Conflict with Any Case: Misleading Instruction. If the decision of the Court of Appeals that a given instruction was not misleading, this court, upon certiorari, will quash the opinion, if said instruction conflicts with the last previous ruling of this court holding such instruction to be misleading, whether such conclusion was reached in a case cited by counsel, or some other case decided by this court; and that, because the giving of a misleading instruction constitutes error.

4. INSTRUCTIONS: Conflicting and Misleading: Theft Insurance. In an action on a policy insuring plaintiff against the loss of his automobile by theft, wherein the court in one instruction tells the jury that they must return a verdict for plaintiff if they find that defendant executed and delivered to plaintiff the theft policy, that the automobile was stolen, that plaintiff made proof of loss and that defendant refused to pay the amount of the loss, another instruction which, without regard to these basic facts, tells the jury they must find for plaintiff if they find that a tender of the automobile was made more than sixty days after the proofs of loss were made, is misleading, and conflicts with the principle and basic situation developed in Stuart v. Dickinson, 290 Mo. 516.

5. CERTIORARI: Reference to Instruction Not Quoted. Where the opinion of the Court of Appeals says that "there are other instructions in the case purporting to cover the entire case," and proceeds to hold that the instruction being considered was not misleading and did not conflict with any of them, this court, upon certiorari, will consider the instruction which covered the entire case, as thus brought into the opinion by reference, and will determine whether the instruction being considered did conflict therewith and was misleading. 6. CERTIORARI: Conflicting Instructions: Omission of Basic Facts. An instruction telling the jury that they must return a verdict for plaintiff if they find that the stolen automobile was not tendered to plaintiff for more than sixty days after proof of loss was made, conflicts with another which authorizes a recovery upon the finding of the basic facts entitling plaintiff to a verdict, namely, that defendant executed and delivered the theft policy; that the automobile was stolen; that proof of loss was made, and that defendant had refused to pay the amount of the loss. The one requires a verdict for plaintiff upon proof of only one of these basic facts — proof of loss; the other requires the jury to find them all as necessary to plaintiff's right to recover, and it cannot be known which the jury obeyed.

Corpus Juris-Cyc. References: Courts, 15 C.J., Section 511, p. 1079, n. 42.

DAVIS, C.

Certiorari on behalf of Security Insurance Company, Relator, to review the judgment of the Kansas City Court of Appeals relative to their opinions, original and on rehearing, in the case entitled Leonard Benanti v. Security Insurance Company of New Haven, Connecticut. Relator avers the opinions conflict with the last previous rulings of this court on the subject, warranting their quashal.

The history of the case develops that the Court of Appeals, on May 25, 1925, handed down an opinion affirming the judgment of the trial court, later sustaining a motion for rehearing. Subsequently, on February, 1, 1926, the court again affirmed the trial court's judgment, adopting its former opinion and adding a supplemental opinion. Later a motion for a rehearing was overruled.

Relator then applied to this court for a writ of certiorari which was granted. Upon a hearing, this court determined that the opinions of the Kansas City Court of Appeals were in conflict with the last previous rulings of this court on the subject and quashed their record. Upon a motion for rehearing filed and sustained, the case was again submitted for our consideration.

The petition seeks to recover on a theft insurance policy, dated October 26, 1920, for the loss of plaintiff's automobile, which the policy covered to the extent of $2400. The petition comprises two counts, the first of which prays reformation for the mutual mistake of issuing the policy to Antonio Benanti instead of Leonard Benanti. The second count asks that the defendant be made to pay the loss for the theft as the policy provides.

The opinions of the Court of Appeals develop the facts that relator issued a theft insurance policy to plaintiff (under the name of Antonio Benanti, which the court reformed to read Leonard Benanti, and with respect to which no contention is made in this court), covering his automobile in the sum of $2400. On March 14, 1921, the insured car was stolen. The opinions state that one Medes, who solicited the policy of plaintiff, was defendant's agent; that plaintiff made no representation to the company, the policy being constructed upon information which Medes personally procured and furnished defendant — relator; that relator failed to tender the return of the premiums collected on the policy until in the midst of the trial, nearly three years after the denial of liability. Relative to Instruction D, which we later quote, the court say: "It seems that the facts stated in the instruction are undisputed, the only complaint made against it being that it directs a verdict while totally ignoring the other issues in the case." A pertinent portion of the opinion on rehearing reads:

"It was pointed out that the policy was introduced in evidence showing insurance in the amount of $2400; that the car was a 1919 model, factory number 21,177, list price $3490, and that it was purchased by assured in July, 1918, at an actual cost of $2500. Plaintiff introduced in evidence proof of loss showing the car was a 1916 model and that plaintiff paid $2200 for it, secondhand. Plaintiff testified on cross-examination on all questions contained in defendant's answer and in explanation of the transactions.

"Defendant called George D. Long, who also testified to the matters in issue relative to the alleged false representations by insured; that he was the recording agent of defendant at the time the policy was issued; that he issued the policy and inserted therein the information given him by Mr. Medes, who was the agent of defendant company and that he secured the business."

Instruction D is herewith quoted:

"The court instructs the jury that if you should find and believe from the evidence that on or about July 8, 1921, the defendant, Security Insurance Company of New Haven, Connecticut, advised plaintiff that his automobile had been recovered, and was at Junction City, Kansas, and that automobile would be delivered to him, if you so find, upon payment of garage charges and a reward of $100 if you so find, then you are instructed that no duty devolved upon plaintiff, if you so find, to accept said automobile or to take any steps to secure possession of the same, and that such tender, if any, is no defense to an action upon said policy. Or, you are instructed, if you further find and believe from the evidence, that defendant tendered said automobile to plaintiff here in Kansas City, and that said tender, if any, was more than sixty days after said proofs of loss, if any, if you so find, had been furnished to defendant, then such tender is no defense to an action upon said policy for the theft of said automobile and your verdict must be for the plaintiff."

The trial court read to the jury an instruction offered by plaintiff, marked "E," which may be designated the main or comprehensive instruction, and which contained the salient facts on which plaintiff's right of recovery was predicated. Epitomized, the instruction compelled the jury to find prior to their ultimate finding for plaintiff, first, that relator executed and delivered to plaintiff the theft policy; second, that the theft of the automobile occurred; third, that plaintiff made proof of loss; fourth, that relator refused to pay the amount of the loss; and, fifth, upon a finding of the above facts, the jury were directed to return a verdict for plaintiff.

I. The Kansas City Court of Appeals, with respect to controversies over which it has jurisdiction, is a court of last resort, with power to finally determine a cause whether its judgment be right or wrong, subject only to certification, or the issuance of a writ of certiorari when its judgment Final is deemed in conflict with the last previous Adjudication. ruling of this court on the subject. Consequently, the Court of Appeals having acquired jurisdiction and decided the case, inasmuch as the case is here by writ of certiorari, we are relegated to the sole question of determining whether its judgment conflicts with the last previous ruling of this court on the subject. [State ex rel. v. Trimble, 250 S.W. 396.]

II. The right to a writ of certiorari to the Courts of Appeal is based on Section 6, Amendment to the Constitution, 1884, providing, "The last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeal," and on Constitutional Section 8 reading, "The Supreme Court shall have Grounds. superintending control over the Courts of Appeals by mandamus, prohibition and certiorari." This rule affords citizens and litigants throughout the State the equal protection of the law and maintains to the greatest extent possible uniformity and harmony in the administration of the law. (Article by GRAVES, J., in the University of Missouri Bulletin, Volume 23, Number II, Law Series 24, April, 1922.)

Bearing in mind the rule of equal protection, uniformity and harmony in the administration of the law, which is founded on logic and reason, we are not limited, with respect to the subject-matter presented, to a determination that the subject-matter does or does not conflict with a case cited and pointed to, but will determine whether the opinion conflicts with the last previous ruling of this court as to any case we may find. The original opinion expressly held that Instruction D was not misleading. If then we find any case that holds that an instruction similar in nature is misleading, and that Instruction D conflicts therewith, it is our duty to quash the record.

In the case of Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 446, it was held that the giving of a misleading instruction constituted error. In that case it was said: "The facts submitted in the last paragraph were not controverted; the direction to return a verdict for plaintiff if they were found was, therefore, tantamount to a peremptory instruction. . . . But Misleading we are unable to reach the conclusion that the jury Instruction. necessarily, or even probably, understood that they were required to find for plaintiff under the first and second paragraphs of the instruction before they could find for him under the third, in the face of the plain import of the latter."

Here the record contains two instructions, but we see no difference in effect between the situations. Embodying them in one instruction would not obviate the defect. The vice would remain and we would then have the exact situation presented by Stuart v. Dickinson, supra. Without regard to the basic facts for recovery, plaintiff's Instruction D tells the jury they must find for plaintiff if they find that a tender of the automobile was made more than sixty days after proofs of loss. It may have been intended by Instruction D to convey to the jury that it was essential for them to find the facts certified in Instruction E before they could find for plaintiff, but it is apparent that Instruction D does not so require. Finding the instruction misleading, it is clear that it conflicts with the principle and basic situation developed by Stuart v. Dickinson, supra, on the subject presented.

III. Relator contends that Instruction D conflicts with Instruction E. The question arises on the record as to whether we may notice the latter instruction. The opinions do not mention Instruction E, eo nomine, but, in discussing Instruction D, the original opinion refers to all instructions in this wise: "There are other instructions in the case purporting to Instruction cover the entire case and still others on other Brought in issues and while Instruction D is somewhat by Reference. awkwardly worded, the jury could not have been misled into believing that the issues therein submitted were the only ones, but could arrive at no other conclusion from the concluding parts of the instruction, to-wit, `and your verdict must be for plaintiff,' than that the instruction meant that their finding must be for plaintiff as to merely the matters and things mentioned in that instruction." Inasmuch as the opinion refers to an instruction covering the entire case and to all instructions, it authorizes us, under the rule that we can only look to the opinion for evidentiary facts and documents set forth or referred to therein, to point to and consider Instruction E in determining conflict with Instruction D. [State ex rel. Kansas City v. Ellison, 220 S.W. 498; State ex rel. v. Allen, 306 Mo. 197, 267 S.W. 832.]

IV. Relator asserts that Instruction D conflicts with State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 984. Plaintiff argues that relator is in this court on no other theory, taking the position that conceding, arguendo, the instruction is erroneous, it is not in conflict with the ruling there found, Conflicting because the instruction in that case purported to Instructions. cover the whole case, and recited hypothetical facts necessary to be found before plaintiff could recover, but omitted to require an essential hypothetical fact, and that the situation relative to Instruction D is dissimilar, in that it does not purport to require the finding of a fact omitted from the instruction purporting to cover the basic facts. Plaintiff then avers the rule is controlling, found in the cases cited by him, to the effect that an instruction otherwise wanting may be harmonized and brought into perfect unison with other instructions given as to correctly advise the jury.

In State ex rel. v. Cox, 270 S.W. 113, cited by plaintiff as controlling, an instruction for plaintiff omitted an affirmative defense asserted by defendant, which defendant's instruction covered, wherein it was said the instructions were harmonized and the jury competently advised as to the issues. Cassin v. Lusk, 277 Mo. 663, 210 S.W. 902, and Sturtevant Co. v. Ford Mfg. Co., 253 S.W. 76, again cited by plaintiff, support the rule, as suggested, that instructions, directed to particular phases of the evidence or particular issues only, may be corrected or supplemented by another instruction or instructions given in the case, all of which must be considered together. It was also held, in these cases, that the instructions harmonized and by them in their entirety the jury was correctly advised. A reading of Kines v. Jamison, 277 S.W. 969, and Treadway v. United Railways Co., 282 S.W. 441, also cited, advises of the rule stated therein that even though an instruction is given for plaintiff that cannot be approved, yet the instructions must be read together, resulting that error does not appear if they harmonize and correctly advise the jury.

The above rules, relied upon by plaintiff, are sound and logical, but are inapposite to the situation developed by this record. Logically, the instructions cannot be harmonized. That they are in conflict is evident, for Instruction D directs a verdict for plaintiff upon the sole finding that defensive facts are untrue, casting aside the basic facts required by Instruction E, upon which facts plaintiff's right to recover depended, as unessential. Instruction E permits the jury to return a verdict for plaintiff on believing a certain state of facts, while Instruction D, without reference to the pivotal facts, permits such verdict on their finding that a tender was not made by defendant within a certain time. Which instruction did the jury abide? Who knows? We may speculate that they found the pivotal facts found in both instructions, but we may also speculate that they ignored Instruction E and returned a verdict solely upon the facts embodied in Instruction D. Because Instruction D authorizes a recovery by plaintiff without binding the jury to find the basic facts necessary for recovery, a conflict with Instruction E obtains, and we see no possible way of harmonizing them. We think a conflict exists with the broad rule found in State ex rel. v. Ellison, 272 Mo. 571, 199 S.W. 984, and in Stid v. Railroad, 236 Mo. 382, 139 S.W. 172, to the effect, that repugnant or conflicting instructions constitute error.

It follows that the record and judgment of the Kansas City Court of Appeals should be quashed. It is so ordered. Higbee and Henwood, CC., concur.