Carpenter v. Hamilton

Decision Date24 December 1904
Citation84 S.W. 863,185 Mo. 603
PartiesCARPENTER v. HAMILTON.
CourtMissouri Supreme Court

Appeal from Circuit Court, Andrew County; A. D. Burnes, Judge.

Action by John Carpenter against Edward W. Hamilton. From a judgment for plaintiff, Mary L. Hamilton, administratrix of said Edward W. Hamilton, who died after judgment, appeals. Affirmed.

Jas. F. Pitt, for appellant. Grant S. Watkins and C. F. Booher, for respondent.

GANTT, P. J.

1. This is an appeal from the judgment of the circuit court of Andrew county. The judgment was against Edward W. Hamilton, but since this appeal was filed in this court his death has been suggested, and the cause revived in the name of Mrs. Hamilton, his administratrix. A motion to dismiss the appeal was filed on the ground of the insufficiency of the abstract. We have carefully considered the motion, and, while the abstract is not by any means to be commended as a precedent, we are constrained to hold it sufficient. The cause comes to this court by the short method. The cases relied on to show the insufficiency of the abstract were all cases upon full transcripts, and do not apply. The motion to dismiss the appeal is denied.

2. It will be observed that the judgment in this case was for $800, but the jurisdiction of this appeal vests in this court because of the constitutional question raised in the trial court, which was that the verdict was concurred in by 11 jurors only; and the point was made and urged that the amendment to the Constitution of this state, adopted at the general election in 1900, authorizing two-thirds of a jury to render a verdict in courts of record, had never been duly submitted to the people of this state and adopted by them as required by the Constitution of 1875. This point was decided by this court in banc adversely to this contention in Gabbert v. Chicago, Rock Island & Pacific Railway Company, 171 Mo. 84, 70 S. W. 891, December 24, 1902, and that decision has since been uniformly followed; but, where it has appeared that the point was made in good faith prior to the decision of this court in the Gabbert Case, we have retained jurisdiction. Inasmuch as this appeal was taken at the February term, 1902, of the Andrew circuit court, and filed in this court on July 16, 1902, this case falls within the class of which we have retained jurisdiction on the ground that a constitutional question is involved. But in cases appealed since the promulgation of our decision in Gabbert v. Railway Company, which would otherwise go to one of the Courts of Appeals, we have refused to entertain the appeals on the ground that the claim of unconstitutionality is not made in good faith, and because it is an attempt to compel this court to consider cases which justly fall within the jurisdiction of the Courts of Appeal. While, as a general proposition, it is the settled doctrine in this court that the decision of a constitutional question in one case does not foreclose the same question between the parties to another suit, we think it is intolerable that where the proposition is that an amendment to the Constitution has not been duly submitted and adopted, and the point has been fully considered, and a ruling made that it was adopted, the very existence of a part of the Constitution should be questioned merely for the purpose of vesting jurisdiction in this court. Case after case has been certified to this court on this same ground, when it was apparent that the point was not made in good faith, and we have accordingly refused to retain jurisdiction. But as already said, as this case falls within the class of appeals taken before the question of the validity of the amendment was settled, we will retain jurisdiction; otherwise we would not. Lee v. Jones (Mo. Sup.) 79 S. W. 927.

3. The action is for slander. The petition contains two counts, but, as plaintiff dismissed the first count, and the instructions restricted the jury to the slander alleged in the second count, it is unnecessary to notice the first count for the purposes of this appeal. The second count is based upon the following alleged slanderous words uttered by defendant to plaintiff in the presence of a large number of persons on a public street in St. Joseph: "Come here, John. You bring back that material you took of mine." When asked by plaintiff, "What material?" defendant answered: "You know what material, and, if you don't return it, I will make you smoke for it." And when plaintiff denied getting any of defendant's material, defendant repeated: "Yes, you have. You have used it on somebody else's work—that material you stole from me. If you don't return it, I will make it hot for you." Stripped of immaterial and unnecessary verbiage, this count alleged that defendant charged plaintiff, in the presence of divers persons on a public thoroughfare in the city of St. Joseph, with stealing certain material, the property of defendant. The time of the utterance of the alleged slander was laid on July 28, 1900. The action was commenced on the 1st day of September, 1900, in Buchanan county. The answer was a general denial. The venue was changed to Andrew county. A verdict for $300 actual damages and $500 punitive damages was rendered. The evidence on the part of plaintiff tended to prove the allegation of the petition, to wit, that on said 28th day of July, 1900, on the northeast corner of Fourth and Edmond streets, in the city of St. Joseph, near noon, the defendant accosted plaintiff, who was and is a painter by trade, in the presence of Elmer Fetters, Henry Swaggers, and Frank Mallet, and divers other persons who were at the time passing along said streets, and said, "Come here, John," and when plaintiff went up to defendant the latter said to plaintiff, "You bring back that material of mine." Plaintiff asked, "What material?" and defendant said, "You know what material, and, if you don't return it, I will make you smoke for it." Plaintiff replied, "I did not get any material of yours." Thereupon defendant said: "Yes, you have. You have used it on somebody else's work— that material you stole from me. If you don't return it, I will make it hot for you." On the part of defendant, his own testimony of what occurred on the occasion referred to by plaintiff and his witnesses was as follows:

"Mr. Miller (who had a desk at my office) and myself left the office to go home. It was 12 o'clock. We walked up Edmond street together, and I saw Mr. Carpenter [the plaintiff] on the corner there. He had promised to do some work for me for three or four weeks, and I asked him— I called him to me: `Come here, John' He came up, and I said, `I want you to return that paint that you took from Pimbley's.' He denied having any paint. Then I— That is all of the conversation. I told him to come with me, and we would go to Pimbley's. We left, and went on up to Pimbley's, and I went in, and Mr. Pimbley told me to go and see the bookkeeper. I went up to the bookkeeper to find the order. The order was not there. He [plaintiff] had not delivered it. I came on out—was about all. I passed out and went to dinner." He denied that Mallet was there. Denied that he said plaintiff stole the material. He had always had perfect confidence in John Carpenter's honesty. The evidence further tended to prove that Mr. Hamilton, the defendant, was a prominent citizen of St. Joseph—a man of wealth; worth $75,000. Mr. Miller, who accompanied defendant, detailed the conversation in this manner: "Mr. Carpenter and several other gentlemen were standing around some little stand or some kind on Goodlive's corner there, and, as we passed, Mr. Hamilton saw Mr. Carpenter, and said to him: `See here, John, I want you to bring that paint back.' Carpenter said, `What...

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