Gabbert v. Chicago, R. I. & P. Ry. Co.

• Decision Date: 12 November 1902
• Citation: 70 S.W. 891,171 Mo. 84
• Parties: GABBERT v. CHICAGO, R. I. & P. RY. CO.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Supreme Court

70 S.W. 891

171 Mo. 84

GABBERT v. CHICAGO, R. I. & P. RY. CO.^*

Supreme Court of Missouri.

November 12, 1902.

CONSTITUTIONAL AMENDMENTS — SEPARATE SUBMISSION TO PEOPLE — STIPULATION AFTER GRANTING OF NEW TRIAL.

1. Under Const. art. 15, § 2, providing that the legislature may propose amendments to the constitution, and that the proposed amendments shall be submitted to a vote of the people, the amendments, and not the sections as amended, are to be voted on by the people; and this having been done in the amendments of Const. art. 2, § 28, the action of the legislature in indicating, in its resolution of submission, how the section would read after being amended, was surplusage, and did not affect the result.

2. The submission to the vote of the people of the proposed amendment, providing that, in courts not of record, two-thirds of the jury may render a verdict in civil cases; in courts of record, three-fourths of the jury, — does not contravene Const. art. 15, § 2, providing that each amendment shall be submitted separately to the vote of the people; the one subject being the abolition of unanimity of verdict in jury trials, and the remainder being incidental detail.

3. Though, after the granting of a new trial on several of the grounds included in the motion therefor, — among others, that the verdict was excessive and was against the evidence, — counsel agree, as shown by the bill of exceptions, that such two causes for granting the motion are withdrawn and waived, the order granting the new trial will not be reversed, though there are no other than these two grounds for sustaining it; the trial court not having been a party to the agreement, and the record not having been modified.

In banc. Appeal from circuit court, Buchanan county; A. M. Woodson, Judge.

Action by Lewis C. Gabbert, administrator of Thomas Crawford, deceased, against the Chicago, Rock Island & Pacific Railway Company. From an order granting defendant a new trial, plaintiff appeals. Affirmed.

This appeal has been before us on a question of revivor; the original plaintiff, Crawford, having died after his appeal had been taken to this court. Crawford v. Railway Co., 66 S. W. 350. The appeal, on its merits, is by the administrator from an order setting aside a verdict in favor of his intestate against the defendant. The action was for damages arising from personal injuries alleged to have been suffered by Crawford, while in the employment of the defendant, by reason of the negligence of defendant's servants in backing a train which Crawford was uncoupling, without giving him any signals of their intention so to do. He recovered a verdict for $2,000, and thereupon the defendant filed its motion for a new trial, in which it assigned 16 grounds, — among others, the following: "First. That the verdict of the jury is excessive." "Fourth. That the verdict of the jury is against the weight of the evidence." "Tenth. That the court erred in giving to the jury the instruction numbered 3 asked by plaintiff, for the reason that the same is contrary to, and in violation of, section 28 of article 2 of the constitution of Missouri." The 11th, 12th, 13th, 14th, 15th, and 16th grounds may be summarized: Because the court erred in holding that the amendments to section 28, art. 2, of the constitution, had been lawfully submitted and adopted by the people of this state, whereby three-fourths of a jury in a civil action may render a verdict. The record recites that the circuit court granted a new trial, and assigned the following reasons therefor on the record. "First. Because the court is of the opinion that the constitutional amendment providing that three-fourths of the jury concurring may render a verdict is unconstitutional. Second. Because the court is of the opinion that the verdict is against the weight of the evidence. Third. Because the court thinks the verdict is excessive, as shown by the evidence. Fourth. Upon the ground that there are two separate amendments submitted together in the ballot as voted by the people." Thereupon the parties to the suit agreed that the second and third causes shown of record for granting the motion for a new trial are withdrawn, to wit, because the verdict was against the weight of the evidence and the verdict was excessive.

J. W. Boyd, for appellant. Brown & Dolman, Boyle, Priest & Lehmann, and Walter H. Saunders, for respondent.

GANTT, J. (after stating the facts).

1. This record presents the question whether the amendments known as the sixth and seventh constitutional amendments, submitted to the qualified voters of this state by the joint and concurrent resolutions of the house of representatives and senate of the 40th general assembly at its regular session begun and held in January, 1899, were duly submitted and adopted. The said seventh amendment so proposed was as follows: "That section 28 of article 2 of the constitution of the state of Missouri be amended by adding after the word `law' in line three of said section the following: `and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases. And that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict.'" And said proposed sixth amendment was as follows: "Amend section 28 of article 2 of the constitution of the state of Missouri by the addition thereto after the word `bill' in the last line of said section the following: `Provided, however, that no grand jury shall be convened except upon an order of a judge of a court having the power to try and determine felonies, but when so assembled such grand jury shall have power to investigate and return indictments for all character and grades of crime.'" Article 15 of the constitution of Missouri provides that "this constitution may be amended and revised only in pursuance of the provisions of this article." By section 2 of the last-mentioned article it is ordained that "the general assembly may at any time propose such amendments to this constitution as a majority of the members elected to each house shall deem expedient, and the vote thereon shall be taken by yeas and nays, and entered in full on the journals." It is further provided that "the proposed amendments shall be submitted to a vote of the people, each amendment separately." The third section provides for calling a convention to revise and amend the constitution. It is obvious, we think, that, when the general assembly came to consider the submission of the two amendments (sixth and seventh) above set forth, the members recognized that they were independent propositions, and should be separately submitted, as required by section 2 of article 15 of the constitution. The modification or total abolition of the grand jury system might be accomplished without impinging in the most remote manner upon the right of trial by jury either in civil or criminal cases; and, on the other hand, the common-law right of "trial by jury," by which was meant a trial by 12 jurors, who must render a unanimous verdict, might be amended as proposed, so that 9 jurors concurring could render a verdict, and yet in no manner affect the grand jury system of the state. The legislature therefore properly submitted the two propositions separately, as they had no inherent or natural connection the one with the other.

There is nothing in the constitution or in reason to prevent two or more amendments to the same section, especially when a section contains, as section 28 does, two such radically different provisions in itself. The form of the ballot used at the election at which these amendments were voted on was in evidence, and, as required by our statutes (section 7122, Rev. St. 1899), the secretary of state had certified the form of the ballot to the various county clerks, "indicating the character and nature of the proposed amendments," as follows:

"Seventh Constitutional Amendment. Providing that, in courts not of record, two-thirds of the jury may render a verdict in civil cases; in courts of record, three-fourths of the jury.

"Sixth Constitutional Amendment. Providing that no grand jury shall be convened, except upon order of judge of court having power to try and determine felonies, but, when so assembled, may indict for any crime."

As thus submitted on the ballots, and as set out in the resolutions, these two constitutional amendments are perfectly consistent, and the ballots were in no sense misleading; but it is urged with great earnestness by defendant, in a brief by an amicus curiæ, that the sixth amendment defeats the seventh. The argument is based upon the fact that the resolutions themselves, after setting out specifically the words which it is proposed to add to said section 28 of article 2, and which in fact constitute the amendment in each case, proceed to say, "So that said section of the constitution when amended shall read as follows." Thus said section 28, after the adoption of the proposed seventh amendment, would read as follows: "Sec. 28. The right of trial by jury, as heretofore enjoyed shall remain inviolate, but a jury for the trial of civil and criminal cases in courts not of record may consist of less than twelve men as may be prescribed by law; and that a two-thirds majority of such number prescribed by law concurring may render a verdict in all civil cases; and that in the trial by jury of all civil cases in courts of record, three-fourths of the members of the jury concurring may render a verdict. Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill." And said section 28, after the adoption of the sixth amendment, would read: "Sec. 28. Trial by Jury Inviolate — Grand Jury, Twelve Men. The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record, may...