Berry v. Majestic Milling Co., No. 21264.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWhite
Citation284 Mo. 182,223 S.W. 738
Decision Date17 July 1920
Docket NumberNo. 21264.
PartiesBERRY v. MAJESTIC MILLING CO.
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

223 S.W. 739

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...

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6 practice notes
  • State ex rel. Penal Institutions v. Becker, No. 31674.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1932
    ...the subjects to be prohibited and the body of the act purported to regulate such acts, the act is unconstitutional. Berry v. Milling Co., 284 Mo. 182; State v. Crites, 277 Mo. 194; State v. Burgdoefer, 107 Mo. 1. (7) The proviso in Sec. 7760, is unconstitutional and void for the reason that......
  • State v. Hedrick, No. 23106.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...241 S.W. 428 277 Mo. 194, 209 S. W. 863; Woodward Hardware Co. v. Fischer, 269 Mo. 271, 190 S. W. 576; Berry v. Majestic Milling Co., 284 Mo. 182, 223 S. W. 738; State v. Rawlings, 232 Mo. 544, 134 S. W. 530; State ex rel. City of Chillicothe v. Wilder, 200 Mo. 97, 98 S. W. 465; Vice v. Cit......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...ex rel. Greene County v. Gideon, 277 Mo. 356; City of Kansas v. Payne, 71 Mo. 159; Vice v. Kirksville, 280 Mo. 348; Berry v. Majestic Co., 284 Mo. 182; State ex rel. v. Revelle, 257 Mo. 529. (5) The act denies to citizens and owners of property within the district and adjoining the district......
  • State, on Inf. of Dalton v. Land Clearance for Redevelopment Authority of Kansas City, Mo., No. 44390
    • United States
    • United States State Supreme Court of Missouri
    • July 12, 1954
    ...Ry. Co., 131 Mo. 612, 33 S.W. 181; Vice v. [364 Mo. 992] City of Kirksville, 280 Mo. 348, 217 S.W. 77; Berry v. Majestic Milling Co., 284 Mo. 182, 223 S.W. The contention made by Relator in Point IV is denied. Point V Relator contends that the provisions of the Act authorizing the city coun......
  • Request a trial to view additional results
6 cases
  • State ex rel. Penal Institutions v. Becker, No. 31674.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 1932
    ...the subjects to be prohibited and the body of the act purported to regulate such acts, the act is unconstitutional. Berry v. Milling Co., 284 Mo. 182; State v. Crites, 277 Mo. 194; State v. Burgdoefer, 107 Mo. 1. (7) The proviso in Sec. 7760, is unconstitutional and void for the reason that......
  • State v. Hedrick, No. 23106.
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 1922
    ...241 S.W. 428 277 Mo. 194, 209 S. W. 863; Woodward Hardware Co. v. Fischer, 269 Mo. 271, 190 S. W. 576; Berry v. Majestic Milling Co., 284 Mo. 182, 223 S. W. 738; State v. Rawlings, 232 Mo. 544, 134 S. W. 530; State ex rel. City of Chillicothe v. Wilder, 200 Mo. 97, 98 S. W. 465; Vice v. Cit......
  • State ex Inf. Attorney-General v. Curtis, No. 28264.
    • United States
    • United States State Supreme Court of Missouri
    • March 17, 1928
    ...ex rel. Greene County v. Gideon, 277 Mo. 356; City of Kansas v. Payne, 71 Mo. 159; Vice v. Kirksville, 280 Mo. 348; Berry v. Majestic Co., 284 Mo. 182; State ex rel. v. Revelle, 257 Mo. 529. (5) The act denies to citizens and owners of property within the district and adjoining the district......
  • State, on Inf. of Dalton v. Land Clearance for Redevelopment Authority of Kansas City, Mo., No. 44390
    • United States
    • United States State Supreme Court of Missouri
    • July 12, 1954
    ...Ry. Co., 131 Mo. 612, 33 S.W. 181; Vice v. [364 Mo. 992] City of Kirksville, 280 Mo. 348, 217 S.W. 77; Berry v. Majestic Milling Co., 284 Mo. 182, 223 S.W. The contention made by Relator in Point IV is denied. Point V Relator contends that the provisions of the Act authorizing the city coun......
  • Request a trial to view additional results

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