Shaw v. Goldman

• Decision Date: 01 July 1904
• Citation: 81 S.W. 1223,183 Mo. 461
• Parties: SHAW v. GOLDMAN et al.
• Court: Missouri Supreme Court

81 S.W. 1223

183 Mo. 461

SHAW v. GOLDMAN et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1904.

APPEAL — JURISDICTION — CONSTITUTIONAL QUESTION—VERDICT IN CIVIL CASES.

1. A general claim in the trial court that a law is unconstitutional, without a designation of the provision of the Constitution contravened, is not sufficient to raise a constitutional question, so as to give the Supreme Court jurisdiction of the appeal.

2. Neither the Constitution nor the laws of the state require a unanimous verdict in a civil case.

3. No question is presented for consideration on appeal by a ground of motion for new trial, no attempt having been made to offer anything in support of it.

Appeal from St. Louis Circuit Court, H. D. Wood, Judge.

Action by Samuel Shaw against Morris Goldman and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Seneca N. & S. C. Taylor, for appellants. John J. O'Connor, for respondent.

MARSHALL, J.

This is an action for $10,000 damages for personal injuries alleged to have been sustained by the plaintiff from falling into an elevator well on the defendants' premises, No. 1102 Olive street, St. Louis, on the 16th of December, 1901. The petition alleges that the elevator is in a small room in the rear of No. 1102, and is separated from the front of the store by a partition in which there is a swinging door, and that, while transacting business with one of defendants' salesmen, he was directed by the salesman to go through said door and into said room, and, in compliance with such direction, he did so; that the said rear room was dark, and was not lighted, in consequence of which he fell into the elevator shaft and was injured. The answer is a general denial, with a plea of contributory negligence. There was a verdict and judgment for the plaintiff for $1,300. The court instructed the jury that nine of their number could render a verdict, and only nine of the jurors concurred in the verdict. The defendants excepted to the instruction of the court, and in their motion for a new trial assigned the following grounds, to wit: "(10) Because the court erred in instructing the jury that nine of their number might return a verdict, whereas, under the Constitution and laws of the state, a verdict is not valid unless concurred in by twelve jurors. (11) Because the so-called Constitution and amendment purporting to permit a verdict by three-fourths of the jurors in a civil case was never legally adopted by the people of the state of Missouri, and, as the law stands to-day, a verdict can only be rendered by the entire panel of twelve jurors concurring in such verdict; otherwise it is but a mistrial." The motion in arrest is based upon the ground that the verdict was concurred in...