Hartzler v. Metropolitan St. Ry. Co.

• Decision Date: 31 March 1909
• Parties: HARTZLER v. METROPOLITAN ST. RY. CO.
• Court: Missouri Supreme Court

117 S.W. 1124

218 Mo. 562

HARTZLER v. METROPOLITAN ST. RY. CO.

Supreme Court of Missouri, Division No. 1.

March 31, 1909.

1. APPEAL AND ERROR (§ 170)—JURISDICTION —CONSTITUTIONAL QUESTIONS.

A constitutional question was raised too late by motion for new trial, so as to give the Supreme Court jurisdiction.

2. APPEAL AND ERROR (§ 758)—CONSTITUTIONAL QUESTIONS—BRIEFS—SPECIFICATION OF ERRORS.

The burden is on an appellant, relying on the unconstitutionality of a statute, to specifically point out wherein it is unconstitutional, and a mere recitation in the brief of the clauses of the Constitution alleged to be violated is insufficient to call for a review.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Action by John C. Hartzler against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Cause transferred to Kansas City Court of Appeals.

Scarritt, Scarritt & Jones and Chas. M. Miller, for appellant. John H. Lucas and C. L. Botsford, for respondent.

LAMM, P. J.

Plaintiff sues for $10,000 for the wrongful death of his wife; his action obviously grounded on the amendment to section 2864 of the old damage act (Rev. St. 1899, § 2864, as amended by Laws 1905, p. 135 et seq. [Ann. St. 1906, p. 1637]), and recovers $4,000. The answer is a plain general denial and an allegation of contributory negligence. Up to the moment of verdict and judgment, no constitutional guaranty was invoked by defendant. In a motion for a new trial defendant for the first time raised a constitutional question below. Point 8 of that motion runs: "The court denied to this defendant, in the giving of the instructions numbered 1 and 5, the guaranties afforded to it by the Constitution of the state of Missouri, viz., those afforded by sections 4, 20, and 30 of article 2 of said Constitution (Ann. St. 1906, pp. 128, 146, 166), in this: That the said instruction denied to the defendant the natural right to the enjoyment of the gains of its own industry and take from the defendant its property for private use without any compensation therefor, and deprive the defendant of its property without due process of law; and deny to the defendant the protection afforded by section 53, art. 4, of the Constitution of the state of Missouri (Ann. St. 1906, p. 197), in this: That they authorize the rendition of a judgment against this defendant based upon a special law purporting to have been passed by the said Legislature without any notice therefor, and without any authority for the passage of the same, and delegating to the jury in the assessment of damages the affixing of a penalty, the power of which to affix is vested solely and alone in the Legislature, and by charging and declaring to the jury that the act of the Legislature of the state of Missouri entitled `An act to amend section 2864 of chapter 17 of the Revised Statutes of the state of Missouri of 1899, entitled "Damages and Contributions in Actions of Tort," approved April 13, 1905' (Laws 1905, p. 135), was and is a valid exercise of the legislative power of the state of Missouri, when the said act aforenamed is in truth and in fact, and was averred and charged to be by this defendant, violative of every provision of the Constitution hereinbefore referred to." The motion being overruled, defendant appeals here.

The amount involved is below our jurisdiction. If this court has any, it is by virtue of the fact that defendant waited until the judgment rendered was too small to give it, and then sought to give it by the foregoing clause in that motion. It becomes apparent, from an examination made of the record, that the constitutional question, in due course of orderly procedure below, could have been put on the case by the answer, or in the instructions, or in other timely ways, so as to save it. The motion for a new trial was not the first door open for the question to enter, and in our later decisions we have ruled that a question of such gravity must be raised as soon as orderly procedure will allow; and this in order that the trial...