Lovings v. Norfolk & W. Ry. Co
| Decision Date | 31 March 1900 |
| Citation | 35 S.E. 962,47 W.Va. 582 |
| Court | West Virginia Supreme Court |
| Parties | LOVINGS v. NORFOLK & W. RY. CO. |
CONSTITUTIONAL LAW—NUMBER OF JURY-CARRIERS—EJECTION OF PASSENGER. 1. Section 169, c. 50, of the Code of West Virginia, in so far only as it authorizes a jury of six men to try in the circuit court appeals from judgments of justices, is unconstitutional and void.
2. On the trial of an appeal, in the circuit court, from the judgment of a justice, where the amount in controversy exceeds $20, if required by either party, a jury of 12 men shall be selected and impaneled to try the case in like manner as other juries are selected and impaneled in said court.
3. In an action before a justice "in a civil action for the recovery of money due for damages for a wrong" by a passenger on a railroad train whose ticket was wrongfully taken up by the conductor, and the passenger was afterwards called on by another conductor of the same train, then in charge, who demanded his ticket, and on his failure to produce a ticket and refusal to pay fare ejected him from the train, held, that the plaintiff could recover in said action whatever he showed himself entitled to recover in the action either ex contractu or ex delicto.
(Syllabus by the Court.)
Error to circuit court, McDowell county; Joseph M. Sanders, Judge.
Action by Thomas Lovings against the Norfolk & Western Railway Company. Judgment for plaintiff. Defendant brings error. Reversed.
Johnston & Hale, W. H. Stokes, and Jas. I. Doran, for plaintiff in error.
James A. Strother, Rucker & Keller, and W. L. Taylor, for defendant in error.
McWHORTER, P. Thomas Lovings purchased from the agent of the Norfolk & Western Railway Company, on the 8th of November, 1897, a ticket for passage from Welch station to Kenova on said road, and boarded passenger train No. 3 on the night of that day, west bound, and took a seat in a coach on that train, and between Welch and Gray station the conductor of the train took up the ticket. At Gray the conductors were changed, and between stations Thacker and Mate-wan the second conductor called upon Lovings for his ticket, when he presented a slip, which he claimed the first conductor had given him when he took up the ticket, which the conductor refused to accept for passage to Kenova, and demanded his fare, in default of payment of which the conductor ejected him from the train. Lovings brought his action before a justice "for the recovery of money due for a wrong, in which the plaintiff will demand judgment for $300." Plaintiff made his oral complaint in effect as stated above, which was entered on the justice's docket. The defendant entered a general denial, and, neither party requiring a jury, the justice, after hearing the evidence, entered judgment for plaintiff for $300, and defendant appealed the case to the circuit court. On the 16th of March, 1898, on the calling of the case, both parties announcing their readiness for trial, the defendant, by its counsel, demanded a jury of 12 men to try the case, which was objected to by plaintiff, and the objection sustained, and the motion and demand were overruled and refused, and 6 jurors impaneled and sworn to try the mattersin difference between the parties, and, having heard the evidence, returned their verdict in favor of the plaintiff for $300, and defendant moved to set aside the verdict of the jury, and to arrest the judgment, and grant it a new trial, for the reasons that the verdict was contrary to the law and the evidence in the case; because the court denied the defendant a trial by a legal and constitutional jury of 12; because the court misdirected the jury by its instructions given for the plaintiff; because it refused to give instructions Nos. 1 and 2 asked by defendant; because the damages for amount found by the jury were excessive, and that no damage beyond the price of a ticket from Gray to Kenova was shown; because, the plaintiff's action being in tort, on the facts proved the verdict should have been for the defendant, —of which motion the court took time to consider, and on the 13th day of June, 1898, the court overruled the motion, and rendered Judgment on the verdict, to which ruling defendant excepted, and filed its bill of exceptions, which was duly signed, sealed, and made a part of the record. Defendant obtained a writ of error to said judgment, assigning as error, among other things, the refusal of the court to impanel a Jury of 12 men to try the case, and sustaining plaintiff's objection thereto, and impaneling a jury of 6 to try the case, over the objection of defendant, and claiming that section 169, c. 50, of the Code is unconstitutional and void, and is repugnant to and in violation of section 13, art. 3, of the constitution of 1872, as amended. This raises the question directly whether the defendant had a right to trial of this case by 12 men, as evidently contemplated by said section 13, art. 3, when it was in the circuit court on appeal. The section referred to provides that "in suits at common law, when the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by Jury, if required by either party, shall be preserved." This provision certainly applies to all courts of record having jurisdiction to try the rights of parties. A further provision is added, "and in such suit before a justice a jury may consist of six persons." What constitutes the jury the right of trial by which is so sacredly preserved? It means and can only mean the common law jury of "twelve good and lawful men." In 2 Hale, P. C, 161, it is said: "In case of a trial by the petit jury it can be by no more nor less than twelve, and all assenting to the verdict" 1 Chit. Cr. Law, side page 105: "The petit Jury, when sworn, must consist precisely of twelve, and is never to be more or less on the general issue; and this fact it Is necessary to insert upon the record." In Bank v. Anderson, 1 Mo. 244, the provision in the constitution of Missouri that "the trial by jury shall remain inviolate" was construed to mean that, "with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men." A provision in the act organizing the St. Louis law commissioners' court, prescribing that "in all jury trials in said court the jury shall consist of six lawful jurors, or a less number if the parties shall consent thereto, " was, in the case of Vaughn v. Scade, 30 Mo. 600, held to be unconstitutional; the court holding that "Juries in that court, as in all courts of record, must consist of twelve men." In that case the plaintiff demanded a Jury, when the defendant demanded a jury of 12, which the trial court refused, and impaneled a jury of 6, under the statute. Henning v. Railroad Co., 35 Mo. 408: "In trials in the circuit court the parties are entitled to demand a Jury of twelve men." Byrd v. State, 1 How. (Miss.) 177; State v. Cox, 8 Ark. 436; Dowling v. State, 5 Smedes & M. 664. The constitution of 1872 (article 3, § 13) provided that "in suits at common law, when the value in controversy, exclusive of interest and costs, exceeds twenty dollars, the right of trial by Jury of twelve men, if required by either party, shall be preserved: except that in appeals from the judgments of justices, a jury of less number may be authorized by law; but in trials of civil cases before a justice, no Jury shall be allowed"; and section 123, c. 226, Acts 1872-73, carried this provision for trial of appeal cases into effect. The legislature of 1879 proposed an amendment to said section 13 of article 3 of the constitution so that it should read: This section, as amended and proposed by the legislature, was adopted by the people at the succeeding election, and it became a part of the constitution. Evidently the legislature in proposing, and the people in adopting, this change had an object and purpose in it, and it clearly accomplished two things: It took from the legislature the power to authorize by law the circuit courts in appeals from the Judgments of justices to impanel juries composed of a less number than 12 to try such appeals, and it gave either party the right to demand and have a jury of 6 in a case before a justice. It will be observed that the section so amended contained a provision for a Jury of less number than 12 in the circuit courts to try appeals from Justices. This provision is left out of the amended section. The section amended prohibited the use of a jury before a Justice, while the same as amended grants the right to either party to require a jury before a justice. In Barlow v. Daniels, 25 W. Va,, at page 517, Judge Snyder says: ...
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