Berry v. Majestic Milling Co.

• Citation: 202 S.W. 622
• Decision Date: 20 April 1918
• Docket Number: No. 2207.,2207.
• Parties: BERRY v. MAJESTIC MILLING CO.
• Court: Court of Appeal of Missouri (US)

202 S.W. 622

BERRY v. MAJESTIC MILLING CO.

No. 2207.

Springfield Court of Appeals. Missouri.

April 20, 1918.

Appeal from Circuit Court, Stone County; Fred Steward, Judge.

Action by Benjamin R. Berry, by next friend, against the Majestic Milling Company. From a judgment for plaintiff, defendant appeals. Files and papers in cause ordered to be transferred to the Supreme Court on the ground that the constitutionality of a statute is involved.

Carr McNatt, of Aurora, and John L. McNatt, of Joplin, for appellant. I. V. McPherson and J. A. Potter, both of Aurora, and Rufe Scott and W. E. Renfro, both of Galena, for respondent.

BRADLEY, J.

Plaintiff, a minor 15 years of age, by next friend, recovered damages of defendant for personal injuries. The petition is based upon section 1726b, Laws of 1911, p. 136, or that part of said section prohibiting the employment of children under the age of 16 years in roller mills. Defendant in its answer challenged the constitutionality of this section, alleging that the act was passed by the Legislature in violation of section 28 of article 4 of the Constitution of Missouri, in that said act contains more than one subject, and that the purposes thereof are not clearly expressed in its title. The reply was a general denial. Defendant interposed an objection to the introduction of evidence on the ground that the petition failed to state facts sufficient to constitute a cause of action. Defendant requested at the close of plaintiff's case an instruction in the nature of a demurrer to the effect that under the pleadings and the evidence plaintiff could not recover. At the close of the whole case, defendant requested a peremptory instruction to the same effect. All these were denied, and exceptions saved. In the motion for a new trial and in arrest the validity of the act upon which the petition was bottomed was specifically challenged. These motions were overruled and exception saved; and defendant filed its affidavit for an appeal, praying that the appeal be granted to the Supreme Court. The trial court, on October 5, 1917, over defendant's protest, granted the appeal to this court. Certified copies of judgment and order granting appeal were filed in this court on October 17, 1917. February 21, 1918, defendant filed in this court its motion to transfer. Bill of exceptions has not been filed, but certificate of the trial judge is on file here to the effect that the bill of exceptions could not be filed in time for our March term.

In the motion to transfer and suggestions in opposition thereto appears copy of the pleadings, and other files and proceedings seeking to challenge the validity of section 1726b.

Respondent resists the transferring of this cause, insisting that the appellant did not properly raise a constitutional question, and, if it did, that it did not keep the question alive; and on the further ground that the constitutional question attempted to be raised has already been determined, and is now stale. W...