Portwright v. St. Louis Transit Co.

• Decision Date: 20 June 1904
• Citation: 183 Mo. 72,81 S.W. 1091
• Parties: PORTWRIGHT v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

81 S.W. 1091

183 Mo. 72

PORTWRIGHT v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

TRIAL—VERDICT—ASSENT OF JURORS—STATUTES —VALIDITY—APPEAL.

1. Where all the jury concurred in a verdict, the constitutionality of the law authorizing nine jurors to render a verdict was not involved, so as to permit an appeal to the Supreme Court, though the court instructed that nine jurors could find a verdict.

Appeal from St. Louis Circuit Court; Wm. Zachritz, Judge.

Action by Robert Portwright against the St. Louis Transit Company. From a judgment for plaintiff, the defendant appeals. Cause transferred to St. Louis Court of Appeals.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. Ernest E. Wood, for respondent.

VALLIANT, J.

This suit was begun in a justice court, taken by appeal to the circuit court, where there was a judgment for the plaintiff for $175, from which an appeal was taken by the defendant to this court. The appeal was taken to this court on the idea that a constitutional question was involved, to wit, the validity of the law which authorizes nine of a jury in a court of record to render a verdict in a civil suit.

The court of its own motion instructed the jury as follows: "The court instructs the jury that nine of your number have the power to find a verdict, and if less than the whole of your number—but as many as nine—agree upon a verdict, the same should be returned as the verdict of the jury, in which event all of the jurors who concur in such verdict shall sign the same. If, however, all of the jurors concur in a verdict, your foreman alone may sign it." The jury returned a verdict in which they all concurred, and it was signed by the foreman alone. At the date of this trial, April 30, 1902, this court had not passed on the question of the validity of the law authorizing nine of a jury in such case to render a verdict. Since then, however, on December 24, 1902, in Gabbert v. R. R., 171 Mo. 84, 70 S. W. 891, it was decided that that law was valid, and that decision has since been frequently referred to by this court as conclusively settling that question. Where, as in this case, an appeal has been taken involving that question, before the rendition of that decision we have held that the appeal was properly taken to this court. But the appeal in this case was not properly taken to this court, because, even if it were contrary to the Constitution for less than 12 of the jury to render a verdict, ...