ON MOTION NOB BEHEABING-.
Ellison, J.Counsel practically admits that if the decision of the supreme court in Hanford v. Ins. Co., 122 Mo. 50, is followed by this court, it will defeat plaintiff’s case. But he insisted in his brief (and now on motion for rehearing) that we should pass upon the question as an original proposition, and if we concluded the supreme court had erred in its conclusion in that case, we should refuse to follow such decision, by deciding the case in plaintiff’s favor and then certifying it to the supreme court. By. provision of section 6, article 6, of the constitution, the last ruling of the supreme court on any question of law or equity applicable to a case before this court, “shall in all cases, be controlling authority” in this court. Counsel seems to be aware of this provision, but yet urges that since the decision of the supreme court in question here is one of the first impression and was evidently rendered without having had attention called to the - arguments and reasons now advanced against the correctness of the conclusion reached in that case, we should not accept it as authority, but render judgment for plaintiff in spite of it and then certify to the supreme court, to the end that that court might again consider the question *116involved. The only mode pointed out by the constitution for certifying a cause to the supreme court (relating to conflict of decisions with the supreme court) is, when one of the judges of this court deems the decision of this court contrary to a decision of the supreme court. It is not contemplated by the constitution that a majority of this court will render a decision in conflict with the supreme court; indeed, as we have seen, the constitution pointedly directs this court not to do so.
Zeal of counsel is commendable, especially when directed in a cause which appeals to sympathy. But it must not be forgotten that the opposite party has rights under the law which, when insisted upon, can not be disregarded. It is a right belonging to a litigant to have judgment in this court in accordance with the last previous ruling of the supreme court. So, if we determine that the case presented to us by a litigant is covered by a decision of the supreme court, we have but one duty to perform and that is to give him judgment in accordance therewith. And if we should announce in an opinion that a case was covered by a decision of the supreme court and yet refuse to follow it, we would, besides stultifying ourselves, give just cause to the party aggrieved for enforcing his right by mandamus. And if we should, under such circumstances, certify such a case to the supreme court, that court would, doubtless, retransfer the cause, since it would have no warrant, under the constitution, to assume jurisdiction thereof, the contingency not having arisen for its transfer from this court.
Becurring to the reason assigned by plaintiff why we should certify this case, we can only say, that, if the fact that reasons are uged before us in this case which were not suggested to or considered by the supreme court in the Sanford case, is sufficient reason for not *117following that case, then we are at liberty to nullify the •constitution and refuse to follow any case from that court. For, it must be apparent to all, that a case •could scarcely be found where zealous and ingenious counsel could not urge something here which did not •appear to have been urged there.
The vital point in the case at bar was decided ■adversely to plaintiff by the supreme court in the case referred to, and we can not discover how it would serve any useful purpose for us to discuss the different points ■so fully and clearly presented by counsel.
In directing the final order as to the judgment in this cause, we, at the time, overlooked that defendant conceded to the plaintiff a right, under the terms of the policy, to a judgment for premiums paid amounting to $30.40. While we shall overrule the motion for rehearing, we will so modify the judgment heretofore rendered, that the cause may be remanded, to the end, that the circuit court may enter the proper judgment for said sum.
The other judges concur.