Beck v. Kansas City Public Service Co.
| Decision Date | 31 March 1931 |
| Docket Number | 30281 |
| Citation | 37 S.W.2d 589 |
| Parties | BECK v. KANSAS CITY PUBLIC SERVICE CO |
| Court | Missouri Supreme Court |
Charles L. Carr, Mont T. Prewitt, E. E. Ball, and E. M Tipton, all of Kansas City, for appellant.
Cope & Hadsell and Walter A. Raymond. all of Kansas City, for respondent.
This is an appeal from an award made to respondent by the Workmen's Compensation Commission and affirmed on appeal by the circuit court of Jackson county. Respondent, as the widow of Clarence Beck, deceased, filed a claim against appellant, with the Workmen's Compensation Commission alleging that her husband, the said Clarence Beck, while employed by appellant, was killed in an accident arising out of and in the scope of such employment.
Appellant's answer admitted that said Clarence Beck, while in its employ, was killed by an accident arising out of and in the course of his employment, but denied that the respondent was dependent upon the deceased employee and that he was legally liable for her support. The total of award is approximately $ 6,000. The record discloses the sole issue in the hearing had before the Workmen's Compensation Commission and upon the appeal in the circuit court to have been whether the said Clarence Beck was 'legally liable for' the support of his wife, the respondent herein.
It is apparent that this court does not have jurisdiction of the appeal unless 'the construction of the Constitution of the United States or of this State' is involved. Section 12, art. 6, Const. of Mo. Respondent contends that no constitutional question has been either timely or properly raised. Appellant filed a motion for a new trial, which was overruled, and by one assignment of error made therein, attempted for the first time in the course of this proceeding to raise a constitutional question. Not only must the constitutional question relied upon be raised in the trial court at the earliest practicable time, but it must be kept alive throughtout the progress of the case. Miller v. Connor, 250 Mo. 677, 157 S.W. 81; Strother v. Railroad, 274 Mo. 272, 203 S.W. 207; Littlefield v. Littlefield, 272 Mo. 163, 197 S.W. 1057; Lavelle v. Metropolitan Life Ins. Co. (Mo. Sup.) 231 S.W. 616; Chapman v. Adams (Mo. Sup.) 230 S.W. 80, 81; City of Laclede v. Libby (Mo. Sup.) 278 S.W. 372; Gould v. Railroad, 315 Mo. 713, 290 S.W. 135; Village of Grandview v. McElroy, 318 Mo. 135, 298 S.W. 760. In rare cases a constitutional question can be raised for the first time in a motion for a new trial (Miller v. Connor, supra), but it must appear that the motion for a new trial was the first opportunity afforded in the course of orderly procedure to present same (Hartzler v. Railroad, 218 Mo. 562, 177 S.W. 1124; Dubowsky v. Binggeli, 258 Mo. 197, 167 S.W. 999; Littlefield v. Littlefield, supra).
Appellant asserts that in the nature of a proceeding of this kind the filing of a motion for a new trial is the earliest opportunity arising for the presentation of a constitutional question. Without entering upon a discussion of how, under the jurisdiction of the circuit court in this proceeding to review questions of law, a constitutional question could be appropriately raised or the office and necessity, if any, of a motion for a new trial in this kind of a proceeding, and assuming that the attempt to raise a constitutional question was timely made, we must determine whether such question was properly and sufficiently presented by the assignment made in the motion for a new trial as follows: 'That under all the evidence, the verdict, finding, award and judgment of the Missouri Workmen's Compensation Commission and this court are contrary to the law of the State of Missouri, and by the verdict, finding, award and judgment, the appellant will be deprived of property without due process of law, in violation of the Constitution of the United States, same being Amendment 5 thereof, and in violation of article 2, section 30, of the Constitution of Missouri, because under the established law of Missouri and of the United States, under the facts shown in the evidence a person sued as was this appellant is not and cannot be made legally liable in any manner.'
'Tested by the...
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