Lohmeyer v. St. Louis Cordage Co.

• Citation: 214 Mo. 685,113 S.W. 1108
• Parties: LOHMEYER v. ST. LOUIS CORDAGE CO.
• Decision Date: 25 November 1908
• Court: United States State Supreme Court of Missouri

113 S.W. 1108

214 Mo. 685

LOHMEYER v. ST. LOUIS CORDAGE CO.

Supreme Court of Missouri, Division No. 1.

November 25, 1908.

1. EVIDENCE (§ 29)—JUDICIAL NOTICE—PUBLIC STATUTES.

The Factory Act, Rev. St. 1899, § 6433 (Ann. St. 1906, p. 3217), imposing a liability upon certain employers for injuries to employés through failure to protect the gearing, etc., of machinery, being a public act, the courts will take judicial notice thereof though it is not pleaded.

2. MASTER AND SERVANT (§ 121)—INJURIES TO SERVANT—FAILURE TO PROTECT MACHINERY.

At common law, a master owed no duty to his servants to guard machinery and appliances so as to prevent injury.

3. COURTS (§ 37) — JURISDICTION — TIME OF OBJECTING.

Questions of the jurisdiction of the subject-matter may be raised at any stage of the case, in any court, either by court or counsel.

4. CONSTITUTIONAL LAW (§ 46)—MANNER OF RAISING QUESTION — OBJECTION — SUFFICIENCY.

In order to raise a constitutional question, the particular provision of the Constitution violated must be pointed out, and a general reference to the Constitution is insufficient; and a mere demurrer to the evidence, or request for a peremptory instruction, would not raise the unconstitutionality of a statute.

5. APPEAL AND ERROR (§ 1068)—HARMLESS ERROR— PREJUDICIAL EFFECT.

An instruction that nine of twelve jurors could render a verdict, even if erroneous, was harmless where the verdict rendered was unanimous.

6. CONSTITUTIONAL LAW (§ 46)—DETERMINATION OF QUESTION—NECESSITY.

The constitutionality of a statute authorizing a verdict by nine jurors is not raised, and need not be decided, in a case where the verdict was unanimous.

7. COURTS (§ 231)—MISSOURI SUPREME COURT —CONSTITUTIONAL QUESTIONS — QUESTIONS ALREADY DECIDED.

The constitutionality of the statute authorizing a verdict by nine jurors in civil cases has been settled, and the question cannot be raised to give the Supreme Court jurisdiction.

8. CONSTITUTIONAL LAW (§ 43) — PERSONS WHO MAY RAISE CONSTITUTIONAL QUESTION— WAIVER.

While in some cases a constitutional question might be raised regardless of the pleadings, by a ruling on the admission of evidence, where proper objection was made and exception saved, or even on motion for new trial where appellant had no opportunity to raise the question sooner, such questions should be raised at the earliest possible moment consistent with good pleading

and orderly procedure, as, otherwise, they will be deemed waived.

9. CONSTITUTIONAL LAW (§ 43) — CONSTITUTIONAL QUESTIONS — TIME OF RAISING QUESTION.

Where an employé's action for injuries was based on the statutory liability of the employer for failing to guard machinery, defendant should have alleged its unconstitutionality in its answer, if it desired to raise the question, and, by not raising it until on motion for new trial, waived the question, so that the Supreme Court cannot take jurisdiction on that ground.

10. COURTS (§ 231) — MISSOURI SUPREME COURT — CONSTITUTIONAL QUESTIONS — SHAM QUESTIONS.

To give the Supreme Court jurisdiction of an appeal on the ground of a constitutional question, the question must be real and not merely colorable, and that court will look beyond the form of the pleading and record to determine whether a real question is involved.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by Mary Lohmeyer against the St. Louis Cordage Company. From a judgment for plaintiff, defendant appealed. Cause transferred to St. Louis Court of Appeals.

W. H. & Davis Biggs, for appellant. Kinealy & Kinealy, for respondent.

LAMM, J.

Domiciled in St. Louis, defendant corporation makes and sells rope and twine. In its factory there is in use a machine for twisting hemp and forming rope, known as a "forming machine." Plaintiff, a young woman of 20 years, labored at the machine as an operator. It was an intricate contrivance set in an iron frame, and consisting of gearing, cogwheels, pulleys, belting, etc., and was manipulated by a lever regulating the power. On the 13th day of February, 1902, her left hand was caught in the gearing and cogwheels, and two of her fingers were so crushed as to result in amputation. In a suit, grounded on the charge that defendant negligently left the gearing and cogwheels of that machine uncovered and unguarded, she had judgment for $1,500. That amount was held excessive, nisi, and she was forced to remit $500. From the new judgment of $1,000, defendant appeals. The petition does not specifically plead section 6433, Rev. St. 1899 (Ann. St. 1906, p. 3217), of the factory act, but as that is a public act of which courts take judicial notice, it was not necessary. Her case, however, is confessedly based on that statute, for at common law an employer owed no duty to his employé to fence his machinery. Defendant stood for its defense on (1) a general denial, coupled with an admission or two not material to any question made, (2) an assumption of risk, and (3) contributory negligence.

To sustain the issues on her part, plaintiff put in proof tending to show the negligence complained of, and tending to avoid the defenses of assumption of risk and contributory negligence. To sustain the issues on its part, defendant put in proof tending to show no negligence in the particulars charged, and tending to show an assumption of risk and contributory negligence. The case was put to the jury on instructions restricted to the foregoing issues, with the result indicated.

Questions of jurisdiction (at least of the subject-matter) may be raised at any stage of case in any court, by either court or counsel. Cable v. Duke, 208 Mo., loc. cit. 558, 106 S. W. 643. If we have jurisdiction, it is because a constitutional question was raised and is involved in the case. That question obtrudes itself and seeks an answer at the door of the case. To it, then, we address ourselves.

(a) Up to the stage of verdict and judgment, no constitutional question was raised. True, defendant by counsel had objected to the introduction of any testimony on the ground the petition did not state facts sufficient to constitute a cause of action. True, counsel had asked and were denied an instruction in the nature of a demurrer to the evidence at the close of plaintiff's case, and again were refused a peremptory instruction at the close of the whole case, yet these general challenges did not raise or involve a constitutional point according to recognized canons of procedure. Whatever the use of an ambush in war, or games of chance, its use does not commend itself to jurisprudence. An appellant may not mask his position in that way, and preserve under such cover his constitutional point. Nor would a general reference to the constitution, state or federal, do. He must come into the open and put his finger on the specific provision of the Constitution touched by the adverse ruling. Excelsior Springs v. Ettenson, 188 Mo. 129, 86 S. W. 255, and cases cited; Davis v. Thompson, 209 Mo., loc. cit. 196, 107 S. W. 1067 et seq.; Independence et al. v. Knoepker, 205 Mo., loc. cit. 342, 103 S. W. 940 et seq., and cases cited.

(b) By a ground in...