Huckshold v. United Rys. Co. of St. Louis

• Decision Date: 15 December 1920
• Docket Number: No. 21424.,21424.
• Citation: 285 Mo. 497,226 S.W. 852
• Parties: HUCKSHOLD v. UNITED RYS. CO. OF ST. LOUIS.
• Court: Missouri Supreme Court

226 S.W. 852

285 Mo. 497

HUCKSHOLD v. UNITED RYS. CO. OF ST. LOUIS.

No. 21424.

Supreme Court of Missouri, Division No. 2.

December 15, 1920.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Albert Huckshold against the United Railways" Company of St. Louis. From a judgment for plaintiff, defendant appeals. Case transferred to the Court of Appeals.

This action was commenced by plaintiff, in the circuit court of the city of St. Louis, Mo., on January 17, 1918, to recover of defendant, as damages, the sum of $10,000 on account of personal injuries inflicted upon him during the early morning of December 24, 1917, by reason of the alleged negligence of defendant in the operation of one of its cars on Vandeventer avenue in said city, which struck the wagon on which plaintiff was riding. The case was tried before a jury, and the latter returned a verdict in favor of plaintiff for $2,500. Defendant in due time filed its motion for a new trial, which was overruled, and the cause appealed by it to this court.

Such other matters as may be deemed important will be considered later.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for appellant.

A. Walz and Safford & Marsalek, all of St. Louis, for respondent.

BAILEY, C. (after stating the facts as above).

It becomes necessary, at the outset, to determine whether this court has jurisdiction of the cause. It is intimated in the record before us that a constitutional question was mentioned during the progress of the trial below, and, that by reason thereof, this court has jurisdiction to pass upon the merits of the controversy. The alleged constitutional question was attempted to be injected into the case by counsel for appellant in the examination of the jurors as to their qualifications, etc. The following occurred at the trial, as shown by the record:

"Thereupon a panel of 18 jurors was called into the jury box to be examined as to their qualifications to act as jurors in said cause, and in the course of said examination, the following proceedings were had, to wit:

"Spencer W. Morten, being juror No. 16 in said panel, having been duly sworn to make true answers to such questions as may be propounded to him touching his qualifications as to act as juror in said cause, answered as follows:

"Mr. Safford: Q. Will you sign any verdict that you do not think is right and in accordance with the evidence and instructions?

"Judge Nortoni: I object to that because it denies to the defendant the right of the benefit of the judgment of all the jurors as provided by the Constitution.

"Mr. Safford: Every juror must use his own judgment. It is their duty to stand out for what they think is right as long as they think it is right.

"The court overruled the objection.

"To which ruling of the court defendant, by its counsel, then and there duly excepted and still continues to except.

"The juror: I think I can do the right thing in the case.

"Mr. Safford: Q. Will you answer that question in the affirmative? A. Yes, sir; I will take care of it in the right way. I will

"Mr. Safford: Q. You will always do what you yourself think is right? A. I will in this case.

"Mr. Safford: Q. That is what I mean? A. Yes, sir.

"Ernest I. Moser, being juror No. 17 in said panel, having been duly sworn to make true answers to such questions as may be propounded to him touching his qualifications to act as juror in said cause, answered as follows:

"Mr. Safford: Q. If you find in favor of the plaintiff, will you award him the full amount necessary to constitute what you find from the evidence in this case to be a fair and reasonable compensation to him for his injuries? A. Yes, sir.

"Judge Nortoni: I object to that for the reason that it commits the juror to stand for a verdict upon his own individual judgment without regard to the rights of the defendant to have the benefit of the opinion of the other jurors in accordance with the Constitution.

"The Court: The answer may stand. Objection overruled.

"To which ruling of the court defendant, by its counsel, then and there duly excepted and still continues to except.

"Mr. Safford: Q. What is your answer? A. Yes, sir.

"And such juror No. 17, Ernest J. Moser, sat upon the jury as one of the 12 which tried the case.

"Edward F. Rohrkasse, being juror No. 18 in said panel, having been duly sworn to make true answers to such questions as may be propounded to him touching his qualifications to act as juror in said cause, answered as follows:

"Mr. Safford: Q. After hearing the evidence and the instructions and the argument of the other jurors, after you go into the jury room, will you, if you find in favor of plaintiff, when it comes to signing a verdict, or passing on it, award him such sum as you find from the evidence in this case and the instructions to be a fair and reasonable compensation to him for his injuries?

"Judge Nortoni: Object to that question because, while it contains the proposition that after talking the matter over and considering it with the other jurors, it nevertheless commits the juror to stand out, notwithstanding the concurrent judgment provided for by the Constitution, to stand out for a judgment which is his own individual judgment. We say it is violative of the defendant's constitutional right to have a trial by jury as provided by the Constitution.

"Mr. Safford: We contend that no juror ought to sign a verdict unless it meets with his own individual approval. Otherwise whenever seven would concur the other five would be bound to sign the verdict, irrespective of whether they thought it was right or not....