Carradine v. Ford

• Decision Date: 11 July 1916
• Citation: 187 S.W. 285,195 Mo.App. 684
• Parties: JOSEPHINE CARRADINE, Respondent, v. JOHN W. FORD, Jr., et al., Appellants
• Court: Missouri Court of Appeals

187 S.W. 285

195 Mo.App. 684

JOSEPHINE CARRADINE, Respondent, v. JOHN W. FORD, Jr., et al., Appellants

Court of Appeals of Missouri, St. Louis

July 11, 1916

195 Mo.App. 684 at 704.

Original Opinion of June 6, 1916, Reported at: 195 Mo.App. 684.

Motion for rehearing overruled.

OPINION

ON MOTION FOR REHEARING AND TO TRANSFER TO SUPREME COURT.

REYNOLDS P. J.

Learned counsel for appellants, with other associate counsel, have filed two motions, one for rehearing, the other asking us to transfer the cause to the Supreme Court. While in the motion for rehearing it is claimed that our judgment is in conflict with controlling decisions of the Supreme Court and of our own court and of the other appellate courts of the State on the merits of the case, we do not think, on consideration of the authorities cited by learned counsel in support of this that they sustain that contention.

As a further ground it is claimed that the right of recovery is based on an ordinance of the city of St. Louis regulating motor vehicles, and that if the cause of action is based on an ordinance, or if an instruction is given based on an ordinance, or if evidence is admitted by the trial court on the theory of a valid ordinance, the question of the validity of the ordinance is in the case from start to finish and may be raised in any court at any time, because, if there is no valid ordinance on which to base the judgment, the judgment must fall, it being claimed that the appellants had not waived the question of the validity of the city ordinance regulating motor vehicles.

The motion to transfer to the Supreme Court is practically grounded on this claim, it being contended that this case involves a construction of section 23, article 9, section 25 article 9, of the Constitution of Missouri, section 26 article 3, of the Charter of the city of St. Louis, and section 9582, of the Revised Statutes of Missouri, and it is claimed that these questions have been duly presented and arise on consideration of the validity of the ordinance upon which the plaintiff based her claim, and that upon such a state of facts this is a case involving the construction of the Constitution of this State, within the meaning of our Constitution and statutes.

In the assignments of error originally filed in this case no attack whatever is made upon the petition as being insufficient, this point being made for the first time in the motion for rehearing. We might conclude to disregard this point, following well settled rules of practice, as evidenced by numerous decisions in the State, but will say that we do not think the petition is objectionable on that ground. It is true that it charges violation of the city ordinance but it also pleads the State law regulating automobiles, in effect, and charges that in violation of the duty imposed "by law as well as by ordinance," defendant had "negligently, and without using the care required by law to prevent injury to plaintiff, ran said automobile at a high and dangerous rate of speed, and at a rate in excess of ten miles an hour, and without sounding any warning, and without slowing down as she approached the said crossing, into and upon plaintiff, thereby with great force and violence striking plaintiff, knocking her down and seriously and permanently injuring her." This invokes both the ordinances and the statute. As far as the petition is concerned, therefore, it does state a cause of action, either under the city ordinance or under the State law. While this is so, it is true that by the main instruction given for plaintiff the case went to the jury on the ground of a violation of the city ordinance.

As noted in the main opinion, the city ordinances regulating the speed and movement of automobiles through the streets of the city of St. Louis, when offered in evidence, were objected to in the most general way, no reason whatever being assigned for the objection. We there noted the objection to the ordinance, when first offered, made by counsel for appellants, was: "I object to the introduction of the ordinance under this petition." When other ordinances or sections of the ordinance were offered in evidence, all the objection counsel for defendants made was: "I make the same objection to that." We held that these objections did not challenge the validity of the ordinances.

It is now urged that the validity and constitutionality of the city ordinances regulating automobiles and their speed through the city, is open by reason of the instruction having been based on those ordinances and the giving of that instruction objected to, and that that instruction was again challenged in the motion for new trial. As to this, it may be said that the objection to the instruction was a general one, without specifying in any manner whatever that it was objectionable because based on an unconstitutional or void city ordinance. When we examine the motion for the new trial we find it contains fourteen assignments of error: First, that the verdict is against the evidence. Second, against the weight of the evidence. Third, against the law as declared in the instruction given by the court. Fourth, against the law and the evidence. Fifth, because the court erred in refusing to give instructions asked by defendants. Sixth, because the court erred in giving instructions asked by plaintiff. Seventh, because the court erred in its statement of the measure of damages if a verdict was found for plaintiff. Eighth, because the court gave instructions for the plaintiff in conflict with instructions the court gave for defendants. Ninth, because the court refused to sustain the defendants' demurrer at the close of plaintiff's case. Tenth, because the court refused to sustain the demurrer of the defendant John W. Ford at the close of plaintiff's case. Eleventh, because the court refused to sustain the demurrer of the defendants at the close of all the evidence. Twelfth, because the court refused to sustain the demurrer of defendant John W. Ford at the close of all the evidence. Thirteenth, because the court erred in sustaining objections of plaintiff to competent and relevant evidence offered by defendants. Fourteenth, because the court erred in overruling objections by the defendants to irrelevant, incompetent and immaterial evidence offered by the plaintiff. Not one of these grounds for a new trial presents or raises in any manner whatever the point here attempted to be raised as to the invalidity or unconstitutionality of the ordinance, which question is now attempted to be injected into the case for the first time by the motion for rehearing and to transfer to the Supreme Court.

The answer in this case, beyond a general denial, was a plea of contributory negligence.

Our Supreme Court in Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108, commencing at page 689, and considering whether it had jurisdiction of a case, appealed to that court, said that the Supreme Court, if it had jurisdiction, had it because "a constitutional question was raised and is involved in the fourteenth clause in the motion." The fourteenth clause referred to charges that section 6433, Revised Statutes 1899, was unconstitutional because it was special legislation as denounced in sections 53-4, article 4, of our Constitution; because it deprived defendant of its rights as a citizen of the United States under section 1 of the Fourteenth Amendment of the Federal Constitution; and because said statute and verdict deprived it of its property without due process of law guaranteed by said Fourteenth Amendment.

Quoting this fourteenth assignment, or ground in the motion for new trial, our Supreme Court said:

"A constitutional question might possibly obtrude itself at the trial regardless of the pleadings through some unanticipated ruling on the introduction of testimony, when such question was squarely and with due precision made on objection and exception saved. If raised in that way in an appropriate case, and if the trial court had a chance to correct its error under an appropriate ground in the motion for a new trial, the point would be saved on appeal. So a constitutional question might be preserved on appeal in rare cases by a clause in the motion for a new trial when it did not appear elsewhere in the record. An example of that kind of a case would be where the court had given some instruction directly or by necessary implication for the first time involving the Constitution--for instance, permitting nine jurors out of twelve to render a verdict. [Logan v. Field, 191 Mo. 54.] In such case, or cases of a kindred nature, the first door open for a constitutional question to enter would be in the motion for a new trial. Appellant could raise it no sooner and nowhere else. But it must be taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of the given case, otherwise it will be waived. [Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376, 68 S.W. 1043, et seq.] If plaintiff grounds his right of action on a statute which defendants contend is unconstitutional it should be put in the answer and kept alive. If the defendants grounds an affirmative defense on a statute that plaintiff contends has a like vice, it would seem he should plead its unconstitutionality in the reply (though that has been questioned.) [Kirkwood v. Meramec Highlands Co., 160 Mo. 111, 60 S.W. 1072.] If proper to put it in instructions, it should be lodged there and the ruling of the court invoked. Unless one or the other of those courses is pursued, life enough is kept in no such question to give this court jurisdiction on appeal except in one...