McCarty v. O'Bryan

• Decision Date: 09 February 1897
• Parties: McCarty v. O'Bryan, Appellant. [*]
• Court: Missouri Supreme Court

38 S.W. 456

137 Mo. 584

McCarty v. O'Bryan, Appellant. ^[*]

Supreme Court of Missouri

February 9, 1897

Certified from Kansas City Court of Appeals.

Affirmed.

J. B Johnson for appellant.

(1) The court erred in refusing to instruct the jury that plaintiff could not recover because the law under which plaintiff sues was unconstitutional and void. State v. Loomis, 115 Mo. 307; also, San Antonio & A. P. R'y Co. v. Wilson Central Law Journal, Vol. 35, issue No. 13, 242. (2) The court should have awarded defendant a new trial, because it had refused said instruction. (3) The court erred in overruling defendant's motion in arrest because of its refusal of said instruction.

Gantt, J. Barclay, Sherwood, Macfarlane, and Robinson, JJ., concur. Brace, C. J., and Burgess, J., concur, except as to disposition of the case. Barclay, J., concurs in affirming the judgment.

OPINION

Court in Banc.

Gantt J.

This suit was begun before E. P. Vanaman, Esq., a justice of the peace within and for Metz township, Vernon county, Missouri. The complaint is in these words (omitting caption): "Plaintiff complains and alleges: That at the times hereinafter mentioned the defendants were partners doing business under the style and firm of Wm. O'Bryan & Company and as such partners are, and were at the times hereinafter mentioned, mine operators, mining and operating in coal at or near the town of Carbon Center, in the township of Osage, Vernon county, Missouri. That plaintiff, at the special instance and request of the defendants, entered into their employ as a miner to mine coal. That said defendants issued duebills to plaintiff for the amounts of money due plaintiff for labor performed in the mining of coal, to wit: One duebill bearing date September 14, 1891, for $ 10.85, which duebill is herewith filed, and marked 'Exhibit A;' one duebill bearing date September 15, 1891, for $ 5, which duebill is herewith filed, and marked 'Exhibit B;' one duebill bearing date September 17, 1891, for $ 5, which duebill is herewith filed, and marked 'Exhibit C;' one duebill bearing date September 18, 1891, for $ 4, which duebill is herewith filed, and marked 'Exhibit E.' That plaintiff presented to defendants each of said duebills for redemption or payment on the day of September, 1891, the same being a regular pay day, and that defendant refused, and still refuses, to redeem or pay either or all of said duebills. Wherefore plaintiff demands judgment for $ 49.70, being double the amount called for in said duebills, as provided by section 7059 of the Revised Statutes, as amended by the Session Acts of 1891, and for costs of suit."

Said duebills are in the following form, with proper variation for amounts and dates:

"No. 121. Carbon Center, 9-14, 1891.

"This certifies that Mr. C. F. McCarty is entitled to ten and 85-100 dollars, for labor, 9,-7, 8, 9, 10, 11, 12, 1891. Not good if transferred. $ 10.85.

"Wm. O'Bryan & Co.,

"Gen'l Manager and Bookkeeper, per S."

Judgment was rendered by the justice in favor of plaintiff for $ 49.70, and defendants took the case by appeal to the circuit court, in which trial was had on the day of November, 1892, during the regular November term, 1892, of said court; plaintiff introducing evidence to support the issues on his side, and defendants also putting in evidence on their behalf. Among other instructions, the defendants asked the following: "No. 9. The court instructs the jury that they can not find for the plaintiff, because the law under which the plaintiff sues is unconstitutional and void." Which instruction the court refused to give, to which action of the court the defendants then and there, at the time, excepted; and the cause being submitted to the jury on the evidence, and instructions given by the court, they returned a verdict for the plaintiff in the sum of $ 36.50; and afterward, during said term of court, and within four days after rendition of judgment, defendants filed their motions for a new trial, and in arrest of judgment, both of of which were overruled by the court, to which action of the court defendants then and there, at the time, excepted; and defendants afterward, during the said November term of said circuit court, filed their affidavit and bond for an appeal, which was allowed to the Kansas City court of appeals, and afterward the Kansas City court of appeals certified the case to this court because a constitutional question was involved. The defendants assign for error in this court: (1) The refusal of instruction number 9, as above set forth. (2) The refusal to grant a new trial for refusing said instruction. (3) Overruling the motion in arrest on the third and fourth grounds, which are in these words: "(3) The section of the statute upon which plaintiff bases his right of recovery is unconstitutional and void. (4) The act of the legislature upon which plaintiff bases his right of action is unconstitutional and void."

There was obviously no error in refusing to give the instruction number 9 as prayed by defendants. That instruction, if given, would have denied plaintiff a right to recover any amount whatever, whereas it must be evident that whether section 7059, Revised Statutes 1889, as amended by the act of the general assembly approved April 20, 1891, be constitutional or unconstitutional, he was clearly entitled, upon the pleadings and evidence, to recover the amount of his duebills, with interest from the date of demand, towit, the regular pay day at said mines. The instruction asks the court to instruct the jury that they can not find for the plaintiff, because the law under which he sues is unconstitutional; but it is apparent from the statement filed that plaintiff's cause of action was the debt evidenced by four several duebills issued to him by defendants for work done and performed for them at their special instance and request, and which he had demanded at a regular pay day, and defendants had refused to pay. His right of recovery upon said duebills did not depend upon any statute. He had a valid, subsisting cause of action at common law, which was not denied by any statute of this state.

Again it is clear, we think, that the only possible defense defendants had to the claim of plaintiff, under the facts in this record, was to the penalty allowed by section 7059, as amended in 1891 by the act approved April 20 of that year for which plaintiff prayed. But an objection merely to the amount of interest or to the penalty would not justify a sweeping instruction that plaintiff could not recover at all, because defendants might have a right to reduce the recovery, but not to defeat the action in toto. Nothing, we take it, is better established than that, in civil cases, the court is not required to instruct the jury on all questions of law arising in the case, and that, if a party desires an instruction on any particular question, he should request the court to give it. Tetherow v. Railroad Co., 98 Mo. 74, 11 S.W. 310, 11 S.W. 310; Chicago, M. & St. P. R'y Co. v. Randolph Town-Site Co., 103 Mo. 451, 15 S.W. 437; Drey v. Doyle, 99 Mo. 459, 12 S.W. 287; Hall v. Hall, 107 Mo. 101, 17 S.W. 811. Learned counsel, then, having prayed an instruction "involving the construction of the constitution," which the court could not lawfully give without committing palpable error against plaintiff, can not now complain that the circuit court did not, of its own motion, give him an...