Berry v. Majestic Milling Co.

• Decision Date: 17 July 1920
• Docket Number: No. 21264.,21264.
• Parties: BERRY v. MAJESTIC MILLING CO.
• Court: Missouri Supreme Court

223 S.W. 738

284 Mo. 182

BERRY v. MAJESTIC MILLING CO.

No. 21264.

Supreme Court of Missouri, Division No. 2.

July 17, 1920.

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

Action by Benjamin R. Berry, a minor, by next friend, against the Majestic Milling Company. From judgment for plaintiff, defendant appealed to the court of appeals, which transferred the case to the Supreme Court (202 S. W. 622). Judgment reversed. See, also, 210 S. W. 434.

John T. Moore, of Ozark, Carr McNatt, of Aurora, and John L. McNatt, of Joplin, for appellant.

I. V. McPherson and James A. Potter, both of Aurora, and Rufe Scott and W. E. Renfro, both of Galena, for respondent.

WHITE, C.

The plaintiff recovered a judgment in the circuit court of Lawrence county, in the sum of $5,000, for injuries received while employed by the defendant. The case was appealed by the defendant to the Springfield Court of Appeals, and by that court transferred to this court because a constitutional question was involved.

The petition alleges that the plaintiff, who sued by next friend, was a minor under the age of 16 years, to wit, 15 years of age; that he was employed by the defendant, unlawfully, to work at operating, and to assist in operating, the defendant's "roller mill machinery," contrary to the law which prohibits the employment of any child under 16 years of age in operating, or assisting in operating, such machinery used in grinding mills; and that, while plaintiff was so employed, his hand was caught and drawn between the rolls of "said grinding corn mill," and was so crushed that the fingers of his right hand had to be amputated. There was a second count in the petition based on common-law negligence, but that was dismissed. After a general denial the answer of the defendant specifically denies `that —

The defendant at any time violated any law, "but avers and alleges the facts to be that the law, attempting to prohibit the employment of minors as set forth in the act of the Legislature, approved April 7, 1911, and entitled `Schools, Compulsory Attendance of Children,' as found in Session Acts of 1911, p. 132, and under which the plaintiff seeks recovery herein, is null and void and of no effect for the reason that the same was attempted to be passed and enacted by the Legislature of Missouri, in violation of article IV, section 28, of the Constitution of Missouri, in that said act contains more than one subject and the purposes thereof are not clearly expressed in its title."

The answer then alleges contributory negligence. The reply was a general denial. Evidence was introduced by the plaintiff to sustain the allegations of the petition in regard to the nature of the employment and the injury. The defendant also introduced evidence upon its theory of the case. For the purpose of determining the case this evidence need not be set out. It was admitted that the plaintiff was 15 years of age, and that the injury occurred while he was employed by the defendant in assisting to operate a corn, mill.

I. The jurisdiction of this court is questioned by the respondent. Many authorities are cited in illustrating the conditions under which a constitutional question presented in the record will give this court jurisdiction. A specific section and article of the Constitution must be pointed out, the question must be timely raised, it must be kept alive, the constitutional question must be passed upon by the trial court and ruled adversely to the appellant.

It is asserted by the respondent that while the particular section of the Constitution is pointed out, the particular section of the statute is not designated in that part of the answer raising the constitutional question copied above. The answer calls attention to the act of 1911, and complains that the law "under which the plaintiff seeks to recover herein" is unconstitutional. This sufficiently designates the section of the statute at which the objection is Aimed. The plaintiff did not need to be told what section he was proceeding under, nor would the court need any additional specification.

It is further claimed that the question was not kept alive. Before any evidence was introduced the defendant objected to the introduction of any evidence because "the petition fails to state the cause of action in the first count," which raised the constitutional question. The defendant at the close of the evidence asked an instruction to the effect that under the "pleadings and the evidence" the verdict should be for the defendant, which was refused. Both the motion for new trial and the motion in arrest of judgment allege that that court erred in refusing to sustain the objections made by defendant to the introduction of any testimony under the first count of the petition, for the reason that the statute under which the first count was drawn was contrary to section 28, article 4, of the Constitution of Missouri. It does not appear from the record what oral arguments were made in support of defendant's objection to the evidence or in support of the instruction asked at the close of the evidence. It may be presumed that in those arguments the attention of the court was specifically called to the constitutional question. At any rate, we think the record sufficiently shows that the question was kept alive, and was ruled on by the trial court in overruling the objection to the introduction of the testimony in refusing the instructions mentioned, and in overruling the motions for new trial in arrest of judgment.

II. The appellant claims the section of the act under which this suit is brought is unconstitutional, in that the title to the act does not clearly express the subject considered by that section. The title to the act is as follows:

"Schools: Compulsory Attendance of Children. "An act to repeal sections 1715, 1716, 1717. 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1725 and 1726 of article 5 of chapter 20 of the Revised Statutes of Missouri of 1909, pertaining to `employment of children,' and to enact in lieu therefor sections to be known as sections 1715, 1716, 1717, 1718, 1719, 1720, 1721, 1722, 1723, 1724, 1725, 1726, 1726a, 1726b, 1726c and 1726d, prohibiting, with exceptions, employment of children under fourteen years of age, and regulating the employment of children between fourteen and sixteen years of age, providing for the issuance of employment certificates for children between fourteen and sixteen years of age and prescribing penalties for violations thereof, and to amend sections 10897 and 10907 of the Revised Statutes of Missouri of 1909, by striking out parts thereof, and to repeal sections 4744, 4745, 10903 and 10904, 10910, 10913, 10914, 10915 and 10916 of the Revised Statutes of Missouri of 1909."

The sections repealed by the act were contained in the act of 1907, p. 86, the title to which is as follows:

"Children: Employment of.

"An act entitled an act to regulate the employment of children in gainful occupations, when such children are under the ages of 14 and 16 years. Declaring the violation of certain sections a misdemeanor, and providing penalties for the violation thereof."

This suit is brought under section 1726b, page 136, Acts of 1911, as follows:

"Section 1726b. Children under the Age of 16 Not to be Employed in. Certain Occupations. — No child under the age of sixteen years shall be employed, permitted or suffered to work at any of the following occupations or in any of the following positions: Sewing machine belts in any workshop or factory, or assisting therein in any capacity whatever; adjusting any belt to any machinery; oiling, wiping or cleaning machinery or assisting therein; operating, or assisting in operating circular saws; wood jointers; wood shapers; planers; sandpaper or wood-polishing machinery; picker machines; machines used in picking wool; machines used in picking cotton; machines used in picking hair; machines used in picking upholstering material; paper-lacing machines; leather-burnishing machines; burnishing machines in any tannery or leather manufactory; job or cylinder printing presses, operated by power other than foot power; emery or polishing wheels used for polishing metal; wood-turning or boring machinery; stamping machines used in sheet-metal and tinware manufacturing; stamping machines used in washer and nut factories; corrugating rolls, such as are used in roofing and washboard factories; steam boilers; steam machinery; or other steam generating apparatus; dough brakes; or cracker machinery of any description; wire or strengthening machinery; rolling mill machinery, punches or shears; washing, grinding or mixing mills; calender rolls in rubber manufacturing; laundering machinery."

Many cases have arisen in this court in which the body of the act has been held unconstitutional because varying from the purpose expressed in the title. State v. Fulks, 207 Mo. 26, loc. cit. 33-39, 105 S. W. 733, 15...