Lohmeyer v. St. Louis Cordage Company
| Decision Date | 25 November 1908 |
| Citation | 113 S.W. 1108,214 Mo. 685 |
| Parties | MARY LOHMEYER v. ST. LOUIS CORDAGE COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel D. Fisher Judge.
Transferred to St. Louis Court of Appeals.
Wm. H. & Davis Biggs for appellant.
Kinealy & Kinealy for respondent.
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 twenty 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, Revised Statutes 1899 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 employee 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. 557, 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 to use v. Ettenson, 188 Mo. 129, 86 S.W. 255, and cases cited; Davis v. Thompson, 209 Mo. 192, 107 S.W. 1067, et seq.; Independence to use v. Knoepker, 205 Mo. 338, 103 S.W. 940, et seq., and cases cited.]
(b) By a ground in the motion for a new trial, numbered 13 (said in chimney-corner philosophy to be unlucky), counsel under specifications a, b, c, d, e and f, raised a constitutional point in that nine jurors out of twelve could not constitutionally render a verdict. It seems the court had told the jury that might be done. But the verdict in this case was a unanimous one, and since the jury did not use the (alleged) unconstitutional privilege obligingly extended to them, no harm was done and that constitutional question is afield. Not only so, but there is nothing in the point to give us jurisdiction. That question is no longer open. [Gabbert v. Railroad, 171 Mo. 84, 70 S.W. 891; Chrismer v. Bell Tel. Co., 194 Mo. 189, 92 S.W. 378; Nugent v. Armour Packing Co., 208 Mo. 480, 106 S.W. 648.]
(c) By the 14th ground in the motion for a new trial, it was alleged that section 6433, Revised Statutes 1899, supra, 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 14th Amendment of the Federal Constitution; and because said statute and verdict deprived it of its property without due process of law guaranteed by said 14th Amendment.
If we have jurisdiction, then, it is because a constitutional question was raised and is involved in the 14th clause in the motion. Is there soundness in the point?
(1) 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, 90 S.W. 127.] 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...
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