author: BROWN, C.

text:
    MARGARET PEARL HAMILTON, by her Next Friend, Appellant, v. MISSOURI PACIFIC RAILWAY COMPANY.
    Division One,
    February 28, 1913.
    RIGHT OF ACTION: Sec. 5425, R. S. 1909: Suit by Widow not Prerequisite: Release. Sec. 5425, R. S. 1909, providing that a public carrier shall forfeit a sum between $2000 and $10,000 for each death caused by the negligence, etc., of its officers and employees, gives a widow a right of action immediately upon the death of her husband from such cause, and a release by her is a bar to a suit by minor children. The clause in the section, that, if the widow fails to sue within six months, then the minor child shall sue, is not equivalent to a statement that the widow has no cause of action unless and until she brings suit.

      Appeal from St. Louis City Circuit Court. — Eon. Matt G. Reynolds, Judge.
    Affirmed.

      James R. Van Slyhe for appellant.
    (1) The Damage Act is to be strictly construed, and the mode prescribed for the acquisition of rights under said statute are mandatory. Clark v. Railroad, 219 Mo. 539; Gray v. Railroad, 157 Mo. App. 92; Jackson v. Railroad, 87 Mo. 422; Bates v. Sylvester, 205 Mo. 493; Barker v. Railroad, 91 Mo. 86; Lewis’s Southerland’s Stat. Const., secs. 571, 632 and 545; Hamilton v. Jones, 129 Ind. 176; Daley v. Stoddard, 66 Ga. 145. (2) The Legislature has the power and did impose conditions and restrictions which must be performed before the cause of action vests in the widow, the performance of said conditions and requirements are construed and' made conditions precedent to the appropriation of the cause of action. The restrictive language of the act being construed against the vesting of the right. Lewis’s Southerland’s Stat Const., secs. 572, 632, 560 and 566; Wood on Limitations, sec. 9, p. 30; Railroad v. Hine, 25 Ohio St. 629; 4 Ency. PL and Prac., p. 655. (3) The widow must elect to appropriate the cause of action by bringing suit in order that the cause of action becomes a vested right in her. McNamara v. Slevins, 76 Mo. 329; Shepard v. Railroad, -3 Mo. App. 550; Packard v. Railroad, 181 Mo. 421; Coover v. Moore, 31 Mo. 574; Barker v. Railroad, 91 Mo. 94; Railroad v. Hine, 25 Ohio St. 629.

      Robert T. Railey and James F. Green for respondent.
    (1) For the period of sis months after Hamilton’s death the cause of action for his death was in the widow. Sec. 5425, R. S. 1909; McNamara v. Slayens, 76 Mo. 331; Barker y. Railroad, 91 Mo. 92. (2) The widow haying, within six months after his death, appropriated the cause of action which was absolute in her, her settlement is a bar to any suit by the minor children. 1 White on Personal Injuries, see. 59; Mullins v. Mill Co., 67 Miss. 672; Stephens v. Railroad, 10 Lea (Tenn.), 448; G-reenlee v. Railroad, 5 Lea (Tenn.), 418; McNamara v. Slavens, 76 Mo. 331; Packard y. Railroad, 181 Mo. 428; Strode v. Transit Co., 197 Mo. 624; Mella v. Steamship Co., 127 Fed. 416; Christie v. Railroad, 74 N. W. 697; Foot v. Railroad, 52 L. R. A. 354; Sykora v. Machine Co., 60 N. W. (Minn.) 1008; Schmidt v. De'egan, 69 Wis. 300; Holder v. Railroad, 92 Tenn. 141; Prater y. Marble Co., 58 S. W. (Tenn.) 1068. (3) Plaintiff haying declined and refused to reply to the answer pleading new matter, the court properly rendered judgment for defendant. Sec. 1810, R. S. 1909; Roden v. Helm, 192 Mo. 83; Cordner v. Roberts, 58 Mo. App. 440; Ennis v. Hogan, 47 Mo. 513.
   BROWN, C.

This is a suit by the plaintiff, a minor child of Charles M. Hamilton, to recover the penalty prescribed by section 2864 of the Revised Statutes of Missouri 1899, as amended in 1905 and incorporated with the amendment in section 5425, Revised- Statutes 1909, for the death of her father, occasioned by the negligence of the employees of defendant while running and managing its railway cars. The answer -pleads with all necessary detail that within less than one month after Mr. Hamilton’s death the defendant paid to Mrs. Jennie Hamilton, his lawful wife, twenty-five hundred dollars in lawful money of the United States in full payment, satisfaction and discharge of all claims and rights of action growing out of his death, and that she executed and delivered to defendant, in consideration thereof, a full release, acquittance and discharge of all causes of action, claims or demands of any character whatsoever resulting from his said death, and that the same constituted a bar to this action.

After the overruling of a motion to strike out the plea, to which exceptions were properly saved, the plaintiff declined to plead further, upon which the court g’ave judgment for defendant from which this appeal is taken. The only question raised is upon the sufficiency of defendant’s plea. If it is good in bar of the action the judgment should be affirmed, if not it will have to be reversed and remanded for trial upon the merits.

The statute provides that in such cases the owner of the railroad (the defendant in this case) “shall forfeit and pay as a penalty, for every such person . . . so dying, the sum of not less than two thousand dollars and not exceeding ten thousand dollars, in the discretion of the jury, which may be sued for and recovered: First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; ... or fourth, if there be no husband, wife, minor child or minor children, . . . then in such case suit may be instituted and recovery had by the administrator or executor of the deceased.” It is contended by the appellant that by the terms of this statute the widow has no cause of action until she appropriates it by bringing suit — that the bringing of the suit, in other words, is a condition “which must be performed before the cause of action vests” in her. In still other words, that the bringing of the suit is made a condition precedent to the appropriation of the cause of action. This seems to reverse the usual order of procedure in the enforcement of legal rights, in which suit is brought upon an existing cause of action instead of the cause of action being created by the suit. The appellant evolves this theory from the proposition ■which has been frequently repeated by this court, that this being a penal suit in the &ense that the recovery authorized is named a penalty, it is to be strictly construed ; so the right of action can only vest in the manner prescribed by its very words. It is not often that this maxim is invoked as an aid to the recovery of. a penalty.

The plaintiff develops this theory apparently from a remark of this court in McNamara v. Slavens, 76 Mo. 331, where it said: “The statute gives the surviving husband or wife six months within which. to elect to appropriate the cause of action, the election to be made by the institution of a suit. If the surviving husband or wife sue within-six months, that is an exercise of the option given by the statute. He or-she then has as absolute control of the cause of action as of any common law right of action he or she may have, and may compromise, release or otherwise settle the matter in controversy with the defendant.” We do not think this statement will bear the construction that the widow has no cause of action until she shall elect to have one by bringing suit. The election there referred to is simply the election that one makes who has a cause of action and determines to avail himself of it by the suit. Nor do we think the use of the word “then” in the succeeding sentence indicates that, in the opinion of the court, she may not compromise, release or otherwise settle the matter in controversy before bringing suit. The court was simply speaking in terms of the case before it.

We think the statute is plain. The authority to bring suit necessarily implies an existing cause of action upon which it may be brought. Even were this not so the cause of action is expressly created by the words “shall forfeit and pay.” The time limited in which, the widow may bring suit is simply a limitation upon the time during .which she may sue upon and otherwise control the cause of action so created.

It follows, that the judgment of the circuit court must be and it is affirmed.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    E. W. GRAVES v. STEPHEN M. CHAPMAN et al.; NATIONAL IRON MINING COMPANY, Appellant.
    Division One,
    February 28, 1913.
    1. APPEAL: Failure to File Abstract and Brief: Affirmance. Where only one of several defendants in a civil suit files an abstract of the record and briefs in the Supreme Court, the judgment for the plaintiff, upon his request, will be affirmed as to the other appellants.
    2. QUIETING TITLE: Dismissal by Plaintiff: Proceeding on Cross-bill: Amendment of 1909: Retrospective Operation. Under Sec. 2535, R. S. 1909 (being Sec. 650, R. S. 1899, as amended in 1909, Laws 1909, p. 343), a dismissal by plaintiff of his petition to quiet title does not dismiss defendant’s cross-bill which is in all essentials the same as the petition, and which by the dismissal is transformed into a petition. [Disapproving Gray v. Ward, 234 Mo. 291, and following State ex rel. Bernero v. McQuillin, 246 Mo. 517.] But that amendment does not control in a case instituted prior to its enactment, for then the suit is still governed by old section 650.
    3. -: -: -: At Defendant's Request. But notwithstanding the fact that plaintiff dismissed his suit to quiet title as to certain defendants, instituted prior to the amendment «f 1909 to old section 650, if they invited the court to proceed to trial upon their cross-bill, which was in all essentials the same as the petition, and plaintiff’s reply thereto, and the court permitted them to do so and rendered judgment for plaintiff, defendants on appeal will not be heard to complain of the action of the trial court in proceeding to judgment. A litigant cannot complain of an error committed at his request.

      4. -: -: -: -: Jurisdiction. The circuit court has jurisdiction of the subject-matter of a suit to quiet the title to land situate in its county still pending against certain defendants against whom judgment hy default has been taken, and when it is dismissed as to certain other defendants and they request the court to retain jurisdiction of the cause notwithstanding such dismissal and proceed with the trial on . their cross-bill, they thereby submit themselves to the jurisdiction of the court, and the court, having jurisdiction of both the subject-matter and the parties, has authority to render judgment.
    5. -: Reversal of Judgment: Against Appellant Without Interest. Before the Supreme Court will reverse a judgment in favor of plaintiff in' a suit to quiet title it must appear from the record that the appellant has some right, title or interest which is adversely affected by the judgment.
    6. -: Land in Possession of Defendant: No Title in Plaintiff. Even though the suit to quiet title fails to show title in plaintiff, yet a judgment for him will not be disturbed on appeal, if defendant claims through an admitted squatter and no question of limitations arises in the case, and defendant claims through a deed from such squatter conveying “all the iron ore and all other minerals and mineral substances under the surface of the land,” and there is no evidence of the existence of any such minerals, and no evidence that defendant was in any wise in possession.
    Appeal from Butler Circuit Court. — How. J. C. Sheppard, Judge.
    Affirmed.

      Ernest A. Green for appellant.
    (1) The court erred in finding and adjudging plaintiff to be the owner of the land in controversy. No competent testimony of any kind whatever was offered by plaintiff to show that the grantor named in the deed dated August 4, 1903, Addison F. Burns, under which plaintiff claims, was the same person as either Adam F. Bums, the grantee named in the deed dated May 9, 1873, or Adam T. Burns, the grantee named in the deed dated January 1, 1873. Borders v. Barber, 81 Mo. 636: Leslie v. Coal Co., 110 Mo. 31: Bank v. Thayer, 184 Mo. 61; Bates v. Bates, 94 Mo. App. 70; Dry Goods Co. v. Mansur, 87 Mo. App. 117; Hendricks v. Calloway, 211 Mo. 558. (2) This being an equity case, the Supreme Court will examine into the evidence offered, and consider its competency and. admissibility, regardless of objections or exceptions. Since no competent testimony was offered to prove the identity of plaintiff’s grantor, Addison F. Burns, with grantees Adam T. Burns and Adam F. Burns, this court will reverse the judgment notwithstanding the record shows no objection was offered to the incompetent testimony. Gibbs v. Haughowout, 207 Mo. 391; Hanson v. Neal, 215 Mo. 271; Lacks v. Bank, 204 Mo. 479; McKee v. Downing, 224 Mo. 136; Russell v. Sharp, 192 Mo. '291; Lindhorst v. Orphan Asylum, 231 Mo. 389; Harlan v. Moore, 132 Mo. 483; Bush v. Arnold, 50 Mo. App. 8; Davis v. Kline, 96 Mo. 408; Blount v. Spratt, 113 Mo. 48; Warren v. Ritchie, 128 Mo. 311. (3) The court erred in not finding and adjudging that the plaintiff had no right, estate or title in or to any of the premises in controversy herein. The testimony in the case abundantly shows that the deeds constituting plaintiff’s chain of title, from the patentee, Samuel Petersberger, were forgeries. Einstein v. Land & Lumber Co., 132 Mo. App. 88; Skinker v. Haagsma, 99 Mo. 208; Lucas v. Land & Cattle Co., 186 Mo. 448; Hunt v. Searcy, 167 Mo. 158; Geer v. Lumber & Mining Co., 134 Mo. 95; Bunch v. Wheeler,-210 Mo. 627; Lacks v. Bank, 204 Mo. 479; Bank v. Nichols, 202 Mo. 3201. (4) The court erred in finding against the appellant upon its cross-bill; appellant being in possession of the lands in controversy, its right of possession would entitle it to a decree against plaintiff who has neither title nor possession. Duncan v. Able, 991 Mo. 188; Wheeler v. Land Co., 193 Mo. 291; Longacre v. Long-acre, 132 Mo. App. 197; Keith v. Bingham, 100 Mo. 300. (5) The court erred in finding for the plaintiff against the defaulting defendants upon the plaintiff’s testimony, because the testimony of plaintiff discloses that plaintiff has neither title to nor possession of the premises in controversy. 5 Oye. 991, 994; Wheeler v. Land Co., 193 Mo. 291; Gardner v. Robertson, 208 Mo. 605; Richards v. Mining Co., 221 Mo. 149. (6) The dismissal of plaintiff’s petition as to this appellant and its co-defendant Isaac Luke, operated as a dismissal of their cross-bill also, and thereupon the court was powerless to render any judgment whatever in favor of the plaintiff, even if the parties did proceed'to trial upon the cross-bill. Gray v. Ward, 234 Mo. 296; Hamlin v. Walker, 228 Mo. 611; Lanyon v. Chesney, 209 Mo. 9; Jones v. Moore, 42 Mo. 413; Maginn v. Schmick, 127 Mo. App. 411.

      David W. Hill for respondent.
    (1) Before the close of plaintiff’s case the plaintiff dismissed his petition as to the appellant, thereby exercising a right to which he was clearly entitled and it was error in favor of the appellant for the court to try the case on the alleged cross-bill of the appellant. Sec. 650, R. S. 1899; Gray v. Ward, 234 Mo. 291; Hamlin v. Walker, 228 Mo. 611. (2) The court in trying the case on the cross-bill of the appellant, after the plaintiff had voluntarily dismissed the petition as* to the appellant, committed error in favor of the appellant, but for such error the appellant cannot complain. In procuring a trial on the cross-bill the appellant obtained more rights than it was entitled to, R. S. 1909, sec. 2082.
   WOODSON, P. J.

The plaintiff instituted this suit in the circuit court of Butler county against S. M. Chapman, Isaac Luke, the National Iron Mining Company, a corporation, J. P. Thomas, Adams T. Burns, Adam F. Burns and Addison F. Burns, alias Adam T. Burns, alias Adam F. Bums, under section 650, Revised Statutes 1899, now section 2535, Revised Statutes 1909, to ascertain and determine the right, title and interest of the parties to the north half of the northwest quarter of section eleven, and the northwest quarter of the northwest quarter of section twelve, all in township twenty-six, range five, Butler county, Missouri.

■Service was had upon all the defendants, and all except S. M. Chapman, Isaac Luke, J. P. Thomas and the National Iron Mining Company made default, and in due time judgment by default was rendered against them. The National Iron Mining Company and Isaac Luke filed their separate answer admitting that the former was a corporation and that they claimed to own the land in controversy, “in fee simple absolute.” They also filed a cross-bill founded upon the same statutes and prayed the court to ascertain and determine the rights, title and interest of the parties .to the same lands, describing them again.

The reply was a general denial.

The trial began January 24, 1908, and before the plaintiff closed his case, by leave of court, he dismissed the cause as to Isaac Luke and the National Iron Mining Company. The trial proceeded on the answer and cross-bill of Isaac Luke and the National Iron Mining Company, the answer of S. M. Chapman, and the replication of the plaintiff.

After seeing and hearing all the evidence introduced the court took the case under advisement until May 11, 1908, when the court found the issues for the plaintiff and against the defendants Isaac Luke, the National Iron Mining Company and S. M. Chapman, and rendered judgment accordingly in favor of the plaintiff and against all of the defendants.

After moving unsuccessfully for a new trial, the answering defendants and J. P. Thomas appealed the cause to this court.

The evidence introduced by the plaintiff was substantially as follows:

1st. The default judgment before mentioned.

2d. A certified copy of the original entry from the General Land Office of the United States, showing that Samuel Petersberger, on the 7th day of September, 1857, entered all the land in controversy, viz: The north-half of the northwest quarter of section eleven; and the northwest quarter of the northwest quarter of section twelve, in township twenty-six north, range five east, in Butler county, Missouri.

3d. Patent from the United States of America to Samuel Petersberger, dated February, 10,1896, and filed August 18, 1903, and recorded in Booh 68, page 324, of the deed records of Butler county, Missouri, conveying all the land in suit.

4th. Warranty deed from Samuel Petersberger to John Milroy, dated November 10, 1862, recorded January 7, 1873, in Booh I, page 558, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve, in suit.

5th. Warranty deed from' Samuel Petersberger and wife to Adams T. Burns, dated January 1, 1873, recorded August 30, 1873, in Booh J, page 21, of the deed records of Butler county, Missouri, conveying’ the north half of the northwest quarter of section eleven, in suit.

6th. Warranty deed from John Milroy and wife to Samuel P’etersberger, dated October 29, 1872, recorded May 18, 1874, in Booh J, page 257, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve, in suit.

7th. Warranty deed from Samuel Petersberger and wife to John J. Winton, dated February 6, 1873, recorded March 10, 1873, in Booh I, page 425, of the deed records of Butler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve.

8th. Warranty deed from John J. Winton to Abner E. Leonard, dated October 12, 1872, recorded March 26,1873, in Book.I, page 462, of the deed records of Bntler county, Missouri, conveying the northwest quarter of the northwest quarter of section twelve, in suit.

9th. Warranty deed from Abner E. Leonard to Adam F. Bums dated May 9, 1873, recorded May 20, 1873, in Book I, page 524, of the deed records of Butler county, Missouri., conveying the land in suit.

10th. Quitclaim deed from Addison F. Burns and wife to E. W. Graves, dated August 4, 1903, recorded August 11, 1903, in Book 63, page 220, of the deed records of Butler county, Missouri, conveying all the land in suit.

11th. Over the objection and exceptions of counsel for defendants, the plaintiff then read in evidence the deposition, direct examination, of Addison F. Burns, defendant, showing that Adams T. Burns and Adam F. Burns, mentioned in the foregoing deeds, are one and the same person, otherwise known as Addison F. Burns.

Counsel for plaintiff in his statement of the casein this court, quotes the following from the evidence introduced by the defendants, viz: .

“Oral evidence introduced by said defendants Luke and National Iron Mining Company, developed the fact that Isaac Luke went on the lands in suit as a squatter; and that the other defendants, Chapman, Thomas and National Iron Mining Company, hold under the said Luke; and said testimony also developed the further fact that none of the defendants have any •tifie by adverse possession, or by virtue of any statute of limitations.”.

(In order to properly understand this evidence it is necessary to state that the original bill of exceptions in this case was lost or destroyed, and that the one now on file is a substituted bill, which does not purport to set out the evidence as introduced, but states the agreement of the parties as to what the evidence introduced at the trial showed.

The plaintiff then rested.

Thereupon counsel for the defendants Isaac Luke and the National Iron Mining Company introduced the following evidence, in support of their cross-bill, viz.:

(a) Quitclaim deed from Samuel Petersberger of the county of...............State of Missouri, party of the first part, to the defendant, Isaac Luke, dated November 2, 1900, recorded March 20, 1903, in Book 68, page 87, of the deed records oí Butler county, Missouri ; conveying all of the land in suit.

This deed was duly acknowleged before I. N. Pearce, a notary public of Butler county, Missouri, who certifies that the grantor therein was personally known to him to be the person described in and who executed the foregoing instrument.

(b) Defendants further offered a general warranty deed from Isaac Luke and wife to the appellant, National Iron Mining Company, dated October 26, 1906, acknowledged on the 7th day of November, 1906, conveying all of the iron ore and all other minerals and mineral substances under the surface of all the land in controversy.

Said defendants, Luke and the National Iron Mining Company, also introduced in evidence a certified copy of the record of the conviction of Addison F. Burns for forgery. The record showed that Addison F. Burns had been convicted in Clarion county, Pennsylvania, and sentenced to imprisonment in the penitentiary for a term of seven years and six months, for forgery of a deed to certain land in Dent county, Mis- ■ souri, and also for uttering and passing the same forged deed.

Defendants also offered in evidence the second deposition of Addison F. Burns, taken in the former suit of E. W. Graves, plaintiff, against Isaac Luke, defendant. This deposition had been taken on the 3d day of February, 1905-, more than two years before this suit was instituted. In this deposition, Addison F. Burns was examined by Mr. S. M. Chapman, as attorney for Isaac Luke. In said deposition, Addison F. Bums testified that he resided in the city of McDonald, Washington county, Pennsylvania; that his father was William Bums, and that he and his father had resided in McDonald, Pennsylvania, for about seven years; that during the years 1865 and 1866, his father lived close to the Clarion river; that in 1868 his father moved to Eipley county, Missouri; that in or about the year 1867, his father became bankrupt; witness stated that he was acquainted with the plaintiff, E. W. Graves, and had met him for the first time on the day before he gave his first deposition; that he could not state the section, township or county in which the land in controversy was located, without referring to the deed, which he thought designated the land properly, but was not positive as to the consideration; witness could not state the amount of land conveyed by the deed from Samuel Petersberger and wife to Adam F. Bums, nor the consideration paid therefor, without referring to the deed; witness believed that the consideration expressed in the deed was right, but he was not positive; his father had done all the business in reference to that transaction; witness was not present at the time the conveyance was made by Samuel Petersberger and his wife, but knew something of the transaction, being a partner with his father; witness knew nothing about the conveyance from Petersberger and wife to himself, other than what the deed discloses and what his father may have said to him about the transaction; witness never met Mr. Petersberger or his wife, either before or since the making of the deed; witness had no knowledge of what became of the deed, unless it was burned at the time his house burned, or his father might have mislaid it; witness could not tell without looking at the deed, what land was included in the conveyance to Mr. Graves that he obtained from. Abner E. Leonard; he could not state what consideration was paid to Mr. Leonard by him; he supposed the land was described correctly, but as to the consideration he was unable to state; witness had no recollection of meeting Abner E. Leonard, but may have met him; the only information witness had with reference to Abner E. Leonard was what his father told him, and the deed which was regularly executed; if such a man as Abner E. Leonard ever existed, witness did not know whether he is living or dead, and if dead witness had no knowledge of where or when he died; witness had no other information with reference to the title of the land in suit, other than what he obtained from the deeds and abstracts; witness stated that Mr. Graves, the plaintiff, had told him that the land was not worth over a dollar an acre; that he was putting it in with other lands for the purpose of making other sales; witness had no knowledge of the land being in the possession of Isaac Luke; witness further stated that all he knew of the record to which he had referred, or the alleged mistakes therein, was derived from the abstract which had been forwarded to him by attorney Hill.

Witness stated on cross-examination, that as far as he knew the deed from Samuel Petersberger and wife to Adam F. Burns, was expressly made for him; as far as he understood it, the land was conveyed to him; his best understanding was that the deed from Abner E. Leonard was intended for him; that the record would show until what time he had paid taxes; witness further stated that he always signed his name Addison F. Burns; that his pension comes under the name of Addison Burns, but since he was a boy he always signed his name Addison F. Burns in business transactions.

On re-direct examination, witness stated that he never knew that those mistakes were in the deeds, until he received the abstract from attorney Hill; that he had no other source of information other than the abstract; witness further stated as follows: “I think Mr. Petersberger existed, hut I do not know anything about it;” with reference to Abner E. Leonard, he could not state from his- own personal knowledge, whether there was such a man in existence or not. He said he thought there was, he was not positive and couldn’t say. He could not say who paid the taxes hut he supposed the records would show. Further, on examination, the following question was asked him:

“Q. For aught you know personally then the persons named as grantees in your deed, Samuel Petersberger and Sarah E. Petersberger, his wife, also Abner E. Leonard, may have been mere straw persons without any potential existence — mere myths and fables ?
“A. Those names were intended to represent somebody, I am certain of that, might he a mistake.”

This was all of the testimony offered by the defendants, Isaac Luke and the appellant, National Iron Mining Company, on their cross-hill.

Thereupon, in opposition to said cross-hill, plaintiff again read in evidence all the evidence introduced in this case in chief. That was. all of the evidence that was ever introduced by plaintiff against this appellant.

And this was all the evidence.

I. The National Iron Mining Company is the only ■defendant which has filed an abstract of the record and briefs, in this court, as is required by the rules hereof, and for that reason counsel for respondent asks that the judgment he affirmed as to the other appellants, which of course will he done; and hereafter, we will refer to the National Iron Mining Company as the appellant.

The first proposition presented to us for determination is one of practice.

Before the close of the plaintiff’s, case, counsel for plaintiff dismissed, the cause as to the defendants Isaac Luke and the National Iron Mining Company, and thereupon counsel for said defendants chose to proceed with the trial of the cause, upon their cross-bill, which was in all essentials the same as the petition filed by the plaintiff, and upon the reply, which was a general denial. In other words, in so far as these defendants were concerned, their cross-bill, in effect, was, as to them, under their election to proceed with the trial on the cross-bill, transformed into a petition, they becoming plaintiff and the plaintiff becoming defendant.

After these defendants had introduced all their evidence and rested the case, counsel for plaintiff reintroduced in evidence, under the reply or general denial of the cross-bill, all the evidence it had theretofore introduced under the petition in chief, against the defaulting defendants, which was the same evidence that is set forth in the foregoing statement of the case.

After all the evidence was introduced on both sides, the court took the case under advisement, and thereafter on May 11, 1908', the court found the issues for the plaintiff, and rendered judgment accordingly for him, and against all of the defendants.

Upon this state of the record, counsel for appellant assigns as error the action of the court in proceeding with the trial on the cross-bill after the petition as to the defendants who filed it had been dismissed. The contention is, that the dismissal of the petition as to those defendants carried with it the cross-bill, and cite in support thereof, the case of Gray v. Ward, 234 Mo. 291. That case seems to sustain that contention, but the attention of the learned judge who wrote the opinion, was not called to the amendment of section 650, Revised Statutes 1899. That section was amended by the Legislature in 1909 (Laws 1909, p. 343, sec. 1.). As amended it is now section 2535, Revised Statutes 1909, and what the court said in regard to the latter section was inaccurate.

After that amendment, it is perfectly clear that a dismissal of the petition would not dismiss the cross-bill. [State ex rel. Bernero v. McQuillin et al., 246 Mo. 517.] But in the case at bar, the plaintiff is not assisted by that amendment, for the reason that this suit was instituted long prior to the date of the amendment, and consequently is still governed by old section 650.

Counsel for respondent does not seem to controvert that proposition, but insists that appellant is in ■no position to take advantage of that error f°r reas0:Q that counsel for defendants invited, and in response to that invitation, the court permitted them to proceed with the trial upon their cross-bill and'the plaintiff’s reply. It is academic that this court will not hear a party litigant complain of an error committed by the trial court at the request of such party. The reasons supporting that rule have been so often and clearly stated in the numerous decisions of this court, that no good would flow from a restatement of them here.

Independent of that, the trial court had jurisdiction of the subject-matter of the action by virtue of the original action still pending against the other defendants, and when these defendants requested the court to retain jurisdiction of the cause as to them, notwithstanding the dismissal, and to proceed with the trial on their cross-bill, they thereby submitted themselves to the jurisdiction of the court, and the court thus having jurisdiction of both the subject-matter and all the parties to the cause, had unquestionably the jurisdiction and authority to try the same, and to render judgment therein. [State ex rel. Ponath v. Muench, 230 Mo. 236.] The action of these defendants in entering their appearance, cured the error, that otherwise would have existed, had the court proceeded with the trial without such appearance.

We, therefore, rule- this, question of procedure against the defendants.

II. Counsel for the appellant, National Iron Mining Company, assign many other errors, among which is that the trial “court erred in finding and adjudging plaintiff to be the owner of the land in controversy. No competent testimony of any kind whatever was offered by plaintiff to show that the grantor named in the deed dated August 4, 1903, Addison F. Burns, under which plaintiff claims, was the same person as either Adam F. Burns, the grantee named in the deed dated May 9, 1873, or Adam F. Burns, the grantee named in the deed dated January 1, 1873.”

Concede for the argument’s sake, without deciding it, that said assignment is well grounded, nevertheless, appellant is in no position to ask this court to reverse the judgment P°n that ground for the reason that said appellant’s own evidence shows that it had no right, title or interest whatever in or to said real estate.

In support of that statement, we quote the following from said defendant’s evidence, as it appears on page fifty-one of their abstract of the record, viz.: “Oral evidence introduced by said defendants Luke and National Iron Mining Company developed the fact that Isaac Luke went on the land in suit as a squatter; and that the other defendants, Chapman, Thomas and National Iron Mining Company, hold under the said Luke; and said testimony also developed the further fact that none of the defendants have any title by adverse possession, or by virtue of any statute of limitations.”

By reading this evidence it will be seen that the appellant, the National Iron Mining Company, has no title whatever to the land in controversy, without it acquired the same by deed.

The only deeds appellant introduces in evidence are the two previously mentioned, one from Samuel Petersberger to Isaac Luke, dated November 2, 1900, and the other from Isaac Luke and wife to the National Iron Mining Company, dated October 26', 1906'.

Conceding these two deeds to be genuine, of which there is grave doubt, it will nevertheless be seen that Samuel Petersberger and wife, by the deed previously mentioned, dated February 6, 1873, conveyed all their right, title and interest in and to said land to John J. Winton (through whom respondent claims) long prior to the date of the deed from said Petersberger to said Luke.

That being true, it is perfectly apparent that the National Iron Mining Company has no paper title to this land, and as previously shown, it has none by adverse possession.

Evidently, anticipating that this court would reach the conclusion just stated, counsel for appellant insists that the judgment should be reversed for the reason that it was in the possession of the land, and that said possession was of itself a good defense against the respondent, who has neither the title nor possession.

Upon the concession previously made as to the plaintiff’s title and right to the judgment, there would be great force in this insistence of appellant, had the record disclosed the fact that it was in the possession of the land at the date of the institution of the suit, but after a careful examination of the record we have failed to find any evidence which shows appellant was ever in possession of any of the land in controversy. In fact, it only claims the minerals thereon, if any, of the existence of which there is no evidence whatever.

Before this court will reverse a judgment, it must appear from the record that the party “who asks for the reversal has some right, title or interest therein, which is adversely affected thereby, and as appellant has made no such showing here, the judgment should he affirmed.

It is so ordered.

All concur.


author: LAMM, J.

text:
    H. W. BENTON et ux. v. CITY OF ST. LOUIS, Appellant.
    Division One,
    February 28, 1913.
    1. SECOND APPEAL: Law of Case. On a second appeal, where the facts are the same and the pleadings relating to those facts are the same as on the first appeal, the first decision becomes the law of the case on points ruled (except in exceptional and well-marked circumstances), and questions so settled will not be further noticed.
    2. NEGLIGENCE: Sink-Hole by Defective Sidewalk: Drowned Pedestrian: Notice of Rainfall. Hard by a wobbly sidewalk, with loose boards, the converging water, caused to converge by the lay of the land, had dug a sink-hole five feet deep. A heavy rain, but not shown by .the evidence to be so extraordinary as not to be expected in the natural order of things, had fallen on the day the seven-year-old boy fell into the hole, and had filled it brim full, and froth and straw had gathered close to the sidewalk and made it difficult to tell where the sidewalk left off and water began. The child was seen on the sidewalk going towards the hole, then a child’s cry was heard, and his dead body was taken from the hole. Held, that permitting the ■ sink-hole só close to an unguarded sidewalk, the insecurity of the sidewalk, and the absence of a rail or guard on the sidewalk at the place, all being of sufficient long standing to impart notice to the city, were all acts of negligence, and the court having submitted them as constituting defendant’s liability, did not err in refusing to go further and require the jury to find, as a necessary condition to the city’s liability, that it had notice of the water in the hole at that precise time, or the existence of such facts as amounted to notice of the water’s presence. Although it be true that water in the sink-hole was the immediate cause of the child’s death and the water had fallen on the very day he was drowned, yet the city was not entitled to notice that it had fallen, for the other acts of negligence being present a reasonable man would have foreseen that the natural and necessary result of a heavy rain would be the filling of the sinh-hole with water.
    3. -: Touchstone: Foreseeing Injury. An actionable wrong arises upon the failure to act with due foresight. A reasonable man can be guided only by a reasonable estimate of probabilities; but the omission to do something a reasonable man would do, or the doing of something a reasonable man would not do, guided by those considerations which ordinarily regulate the conduct of human affairs, is the touchstone of liability.
    4. -: --: Foreseeing: The Very Injury Complained of. In cases of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very injury complained of ought to have been foreseen. The party charged may be liable for anything which, after tie injury is complete, appears to have been a natural and probable consequence of his act or omission.
    5. -: Extraordinary Rain: Commingled with Defendant’s Negligence. Where defendant’s negligence contributes as one proximate cause to the injury, which would not have resulted from the act of God except for defendant’s negligence thereto contributing, defendant is liable. Where the city's negligent, acts commingled with the heavy rainfall, and the condition resulting from this commingling of negligence and storm caused the death of plaintiffs’ seven-year-old boy, the court properly refused an instruction telling the jury to find for defendant city if they found from the evidence that his death was directly caused by an unusual or extraordinary rain, and would not have happened but for such rain.
    6. INSTRUCTION: Repetition. It is not error to refuse to tell the jury the same thing twice.
    Appeal from St. Louis City Circuit Court. — Roto. Hugo Muench, Judge.
    Affirmed.

      Lambert E. Walther and William E. Baird for appellant.
    (1) Although at the time of an accident a sidewalk may he in a defective condition, yet, if the defect or dangerous condition arises from concurrent causes,. the city is not liable, unless it had notice of both of the causes in time to have remedied the defect. For this reason the court erred in giving the first instruction in behalf of the plaintiffs, to the effect that if the city knew, or by the exercise of reasonable care might have known, that the sidewalk was unprotected and the sinkhole was filled with water on the day in question, they should find for the plaintiffs; and this for the reason that there was no evidence that the city knew that the sink-hole was filled with water on that day, or had been so filled with water prior to that day, as to render the sidewalk dangerous. Fehthauer v. St. Louis, 178 Mo. 635. (2) A municipality is required only to use reasonable care to make its sidewalks reasonably safe for pedestrians, and its liability does not extend to an anticipation of unusual' or extraordinary circumstances. For this reason the court erred in refusing, under the evidence, to instruct the jury in accordance with the instruction 2, offered in behalf of the defendant. Elliot on Roads and Streets (2 Ed.), sec. 867; Fuchs v. St. Louis, 167 Mo. 620; Billings v. Worcester, 102 Mass. 329; Barton v. Syracuse, 36 N. Y. 54; Springfield v. Le Claire, 49 111. 476. (3) The court erred in refusing to give instruction 5 to the effect that the city could not be held liable unless the jury should believe that a person of ordinary care standing in the city’s place would have considered the sidewalk dangerous and unsafe prior to the 4th day of May, 1905. Carvin v. St. Louis, 151 Mo. 334; Hesselbach v. St. Louis, 179 Mo. 505; Warren v. Independence, 153 Mo. 593.

      Collins, Barker & Britton for respondents.
    (1) Loose boards in a sidewalk, or a loose section of a sidewalk over and abutting upon an excavation, or a sidewalk passing over or immediately adjacent to a pit-fall not protected by guard rails, constitute a condition on which the jury must pass as to whether or not they, or anyone of such defects, are dangerous. Gallagher v. Tipton, 152 Mo. App. 412; Meyers v. Kansas City, 108 Mo. 480; Bnessling v. Gas Light Co., 73 Mo. 219; Wiggins v. St. Lonis, 135 Mo. 558; Baldwin v. Springfield, 141 Mo. 205 ; Benton v. St. Louis, 217 Mo. 687; Rockford v. Russell, 9 111. App. 229; Day v. City, 91 Iowa, 45'; White v. Boston, 122 Mass. 491; Pettingill v. Yonkers., 39 Hun, 449. (2) A very hard rain is not such an occurrence as to come within that class of events which are considered unprecedented or highly improbable. A special defense must be pleaded. Fuchs v. St. Louis, 167 Mo. 620; Brash v. St. Louis, 161 Mo. 433; Haney v. St. Louis, 94 Mo. 334; Woods v. Kansas City, 58 Mo. App. 272; Flint Walling Mfg. Co. v. Ball, 42 Mo. App. 504. (3) This court has held in this same case, under the same facts, on a prior hearing, that the facts pleaded and developed by the evidence constitute negligence and the doctrine of res adjudicaba applies. Benton v. St. Louis, 217 Mo. 687; Mangold v. Bacon, 237 Mo. 496; Gracy v. St. Louis, 221 Mo. 1. (4) It is an unvarying rule in this State that when a proper instruction is given, it is not error to refuse another instruction upon the same subject, even though the instruction asked and refused, be a correct statement of the law. Richardson v. Railroad, 223 Mo. 342; Diel v. Ferguson, 158 Mo. App. 295; McMillen v. Eilder, 160 Mo. App. 407; State v. Rasco, 239 Mo. 538; State v. Gow, 235 Mo. 328.
   LAMM, J.

This is a second appeal. See Benton v. St. Louis, 217 Mo. 687, for the first, where a full statement may be found.

Recovery is sought on the theory that on a street of defendant there was a wooden sidewalk; that close thereto in the street and extending under the sidewalk was a large, deep excavation,' a sink-hole; that there was no rail on the sidewalk protecting travelers; that the sidewalk boards were loose and insecure, etc.; all of which facts were known to defendant or might have been known by due diligence, etc. That the excavation was filled with water even with the sidewalk; that in the particulars aforesaid the street and sidewalk were in an unsafe condition and had been negligently allowed to remain in that'condition; and that the infant son of plaintiffs, George, aged seven years, on a certain day in May, 1905, stepped or fell from the sidewalk into the excavation and was drowned.

When the ease was here before, we held that the evidence made a case for the jury, provided the place was a public street. That contributory negligence could not be imputed to the infant as a matter of law. Moreover, that there was evidence from which the jury could have determined the controverted question of street or no street against defendant.

A nonsuit having been forced at the first trial because of the announced determination of the court to give an instruction in the nature of a demurrer to the evidence, we ruled that such demurrer would not lie.

When the case went down, defendant filed an amended answer. (Note: Up to that time it had stood on a general denial). Its amended answer was (1) a general denial, (2) a plea of contributory negligence on the part of the infant, and (3) the contributory negligence of the custodian of the infant, to-wit, the mother, Eva A., one of plaintiffs.

Verdict and judgment for plaintiffs for. $2250. Defendant appeals.

Any material facts not appearing in the first opinion that may be necessary to an understanding of propositions advanced by appellant on the second appeal, will appear in connection with the determination of those propositions in their order.

The general rule being that on second appeal, where the facts are the same and the pleadings relating to those facts are the same, the first decision bécomes the law of the case on points ruled (except in exceptional and well-marked circumstances), we will not again notice questions so settled — the applicable maxims being: Concerning similars the judgment is the same; from similars to similars we are to proceed by the same rule; nothing in law is more intolerable than to rule a similar case by diverse law.

Indeed, as. we gather, appellant does not endeavor to disturb or unsettle the rulings in the ease. It limits its assignment of error to the following propositions:

First-. In giving plaintiffs’ first instruction, because: Although the sidewalk or highway may have been in defective condition, yet if the defect or condition arose from concurrent causes the city is not liable unless it had notice of both causes in time to supply a remedy.

Second: In refusing defendant’s second instruction, because: The city was only required to use reasonable care in making its sidewalks safe for pedestrians' and its liability is not extended to an anticipation of unusual or extraordinary circumstances.

Third: In refusing defendant’s fifth instruction, because: Though a defect exist in a street the defective condition must appear to be dangerous before an action lies — this in the light of all the circumstances.

The facts- being substantially the same on the second appeal as on the first and plaintiffs being entitled to the verdict of a jury, with the question of the contributory negligence of the infant set at rest in the first case, and, having got such verdict, we may state in passing that the question of the contributory negligence in the infant’s mother and the question of street or no street were well submitted and found adversely to defendant. So much is impliedly confessed. ■

I. Plaintiffs ’ first instruction, being long, will not be reproduced. The part pertinent to our inquiry runs:

. . . and if you further believe from the evidence that the said street and sidewalk were in a dangerous and defective condition, which was liable to occasion injury to persons in the usual and ordinary use of said street, and that this condition was known to defendant, or that said street had remained in such condition for a sufficient length of time before the death of the said George Benton to enable the officers and agents of the defendant, by the exercise of ordinary care, to discover said dangerous and defective condition and to remedy the same before said death, and if you further believe that the death of said George Benton was caused by the said dangerous and defective condition of said street and sidewalk; and if you further .believe that the said George Benton was then and there in the exercise of the same care as is customarily exercised by persons' of ordinary prudence of similar age and under like circumstances; then, if you so find the facts to be, your verdict must be for the plaintiffs.”

In aid of the consideration of the criticism leveled by appellant at this instruction we reproduce the pertinent part of a photographic picture of the locus, put in evidence by defendant, thus:

The sink-hole was a natural drain. At some uncertain time a manhole or sewer’s mouth was constructed, seen at the left side of the picture hardby the sidewalk. The lay of the land in the region was such that storm water converged at this manhole. As we gather the erosion or eddy of this storm water caused or helped to cause this sink-hole. At some time the hole had been filled or partly filled by the city and then the rush or whirl of the water of some subsequent heavy rainfalls would wash another sink-hole. At the time in question the hole was, say, five feet deep close to the sidewalk. On the day the lad drowned there had been a heavy rain. It was an extraordinary rain, but there was no evidence that such rains as this did not occur at intervals in St. Louis and were not to be expected in the natural order of things. The capacity of the manhole was not sufficient to carry such water away, and on the date in hand, as before in such rains, the hole was not only brimming full, but froth, straw, etc., gathered close to the sidewalk and made it difficult to tell where the edge was, that is, where water began and sidewalk left off. Not only so, but there was testimony some of the boards were loose, a whole section of the walk at the point was floating and, to use the phrase of the witnesses, “wobbly” — all of which was a chronic condition in heavy rains. But a short time before his death the little boy was seen on the sidewalk going towards this hole. Presently a child’s cry was heard, and then his cap was found floating in the water and his dead body was taken from the hole.

Appellant’s contention, as we get it, is that the boy’s death came about from concurrent causes, viz., the loose and insecure boards, sink-an<^ water. It is contended that the criticised instruction ignores the fact that before the city could be liable it should have notice not only of the insecure sidewalk, lack of railing and existence of sink-hole, but of the ivater in the hole at that precise time, or by the exercise of reasonable care could have known thereof in time to have remedied the defect, and that the proof was insufficient in that regard to support the instruction, since the water had fallen but a short time before the accident. Fehlhauer v. St. Louis, 178 Mo. 635, is relied on to support the point. But we do not agree to the contention.

In the Fehlhauer case plaintiff at a given time in the night fell into an open door in a sidewalk leading to a basement. A minute or so before she, so she said, had crossed the same door and found it closed; recrossing it she fell through the door, opened by some one between her trips. It appeared that the cellar door was not usually open or used at that hour. But the use of it as an opening to the cellar was usually confined to a different time of the day to take in and carry out beer kegs. Having announced the proposition that the mere presence of a cellar door ifi a sidewalk was not a nuisance per se (a factor absent from our case) the non-liability of defendant was deduced from the proposition that it had no notice of the fact the door was open and no notice of a customary use of the door at that hour. It is clear, however, that if the woman, without her own fault, had fallen into the open cellar-way in a sidewalk at the time of day when the long-standing custom was to open the door to deliver beer into the basement and take out kegs, a different case on principle would have been before the court. This becomes at once apparent from an analysis of that case. Thus, speaking to the point (p. 650), the court said:

“Nevertheless it is contended that the city, by the exercise of reasonable care, could and ought to have known that the cellar door was open on this occasion from the manner in which it had been habitually used for a long time prior to the accident. Hnfortunately for this contention, there is not a particle of evidence tending to prove that this cellar door was ever open at the time of night when this accident happened, or that it was ever opened before by the persons in the manner or for the purpose for which it was opened on this occasion.” Again, further on (p. 651): “If the plaintiff in the exercise of ordinary care had fallen into the opening while the sidewalk was being subjected to this habitual use, then there might have been some support for the contention that the use itself afforded some reason to the city authorities for expecting such a casualty, and the authorities cited in support of this contention might have some point.”

It is obvious there is no similarity in principle between the Fehlhauer case and the case at bar. In this case to permit the sink-hole so close to an unguarded sidewalk was an act of negligence'. The city had knowledge of the fact. Moreover, the insecurity of the sidewalk was of such standing as to impute notice.. Another act of negligence. So, the absence of a rail or guard on the sidewalk at this excavation was of long standing. Another act of negligence, as abundantly shown by the cases cited by respondent and appearing in the reporter’s headnotes to this opinion — e. g., Wiggin v. City of St. Louis, 135 Mo. 558. Indeed, that the absence of a guard or rail is reprehensible, in certain contingencies, was a fixed idea in very ancient times in the east where people in the cool of the night habitually slept on their housetops. “When thou buildest a new house, then thou shalt make a battlement for thy roof, that thou bring not blood upon thine house, if any man fall from thence.” [Deut. XXII: 8.] The modern idea of the necessity of guard rails on sidewalks along deep excavations may take root in that venerable law of Moses, for all I know.

As said, the claim of appellant is that the city did not actually know that the particular storm had actually filled that particular hole with that particular water. The thought being that because the testimony was that the rain had fallen shortly before the child was drowned, therefore the city was without notice and had no chance to remedy the specific defect that caused death, viz., water in the sink-hole. But is not that contention more specious than sound? Did not the city know that heavy rains might be expected to •fall in the latitude of St. Louis? Did not it know that surface water, following the immutable law of nature, ran down hill? Know that the manhole was insuffident to carry such water off in heavy rains and that a pool was hound to gather at such times'? Assuredly so; for where water has been in natural flow, it will go again if not prevented. Such pools had formed before in that sink:hole and were the natural and probable (nay, necessary) result of any heavy rain. Now, in the law of negligence if a reasonable man can foresee the probability of a given consequence, that fact is enough to spring liability; for what a man knows and what he should know are equivalent in law. The actionable wrong arises in “the failure to act with due foresight” — the omission to do something a prudent, reasonable, man would do, or the doing of something which such a man would not do, “guided by those considerations which ordinarily regulate the conduct of human affairs,” is the touchstone of liability.

The philosophy of the matter has been nowhere more happily stated than by Sir Frederick: Pollock [Webb’s P’ollock on Torts (En. Am. Ed.), p. 45 et se<p], thus:

“Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that.are barely possible. He will order his precaution by tbe measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability. Arid the statement proposed, though not positively laid down, in Greenland v. Chaplin (5 Ex. 248), namely, ‘that a person is expected to anticipate and guard against' all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur,’ appears to contain the only rule tenable on principle where the liability is. founded solely on negligence. ‘Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated,’ may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account.”

That pronouncement is the doctrine of this court. [Dean v. Railroad, 199 Mo. l. c. 409; American Brewing Ass’n v. Talbot, 141 Mo. l. c. 684, et seq.]

Another rule in point, is that, in cases of negligence, liability does not hinge on whether, by the exercise of reasonable prudence, the very in- ^ complained of ought to have-been foreseen. The party charged may be held liable for anything which, after the injury is' complete, appears to have been a natural and probable consequence of his act or omission. [Dean v. Railroad, 199 Mo. l. c. 411; Zeis v. Brewing Ass’n, 205 Mo. l. c. 651; Brady v. Railroad, 206 Mo. l. c. 537; Buckner v. Horse & Mule Co., 221 Mo. l. c. 710; Woodson v. Railroad, 224 Mo. l. c. 707.]

In the light of those ipiles and. authorities, when applied to the facts of this case, the instruction challenged must be held well enough and the criticism of it unsound. The point is ruled against appellant.

II. Appellant complains of the refusal of the following instruction:

“You are further instructed that the city is under no duty to provide against injuries of any character arising from and directly dne to unusual or extraordinary rains; and if the jury find and believe from the evidence that the death of plaintiff’s, son was directly caused by an unusual or extraordinary rain, and would not have happened but for such rain, then your verdict must be for the defendant. ’ ’

We think there is no substance in the- assignment of error. There is no bone to be picked in a forum of reason with the abstract proposition that liability cannot be predicated of an injury resulting alone from the act of God, say, a bolt of lighting, a cyclone, a cloudburst, an earthquake. Nor can actionable damages be predicated of an injury entirely disconnected in cause and effect from the concurrent negligence of defendant and solely referable to any other form of vis major or vis divina. But the vice in the instruction is that it is not applicable to the facts of this record. Here there were acts of negligence on the part of the city commingling with the heavy rainfall and the condition resulting from this, commingling of negligence and storm caused the death of George Benton. On principle it must be apparent where there is negligence which contributes as one proximate cause to the injury, which injury would not have resulted from the act of God, or from some chance case (vel causus fortuitus), except for defendant’s negligence thereto contributing, defendant is liable. * [Brash v. St. Louis, 161 Mo. l. c. 437, et seq., and cases cited; Woods v. Kansas City, 58 Mo. App. 272; Bassett v. St. Joseph, 53 Mo. 290; Lore v. Am. Mfg. Co., 160 Mo. l. c. 626; Vogelgesang v. St. Louis, 139 Mo. l. c. 136.]

The assignment of error is not well taken.

III. The last proposition advanced by appellant is that it was error to refuse the following instruction:

“The court instructs the jury that the.city cannot be held liable under any circumstances in this ease, unless it is shown by the evidence that a person of ordinary care, standing in the city’s place, would have considered the sidewalk dangerous and unsafe prior to the 4th day of May, 1905.”

We take it this assignment of error is made inad vertently by learned counsel in overlooking a par^ 0f the record. Appellant has already asked and received the following instruction:

“The court instructs the jury that the city cannot be held liable for failing to erect a railing along the sidewalk, unless they find and believe from the evidence that a person of ordinary care and prudence, in the city’s place, would have erected such railing prior to the fourth day of May, 1905.”

Those two instructions, if not idem sonans, are certainly idem sigwificans. (The scholar who pursues with eagerness the subtleties of legal reasoning may profitably consult the brief pro se of Michael Sunday in Sunday v. State, 14 Mo. *417-18, for an edifying discussion, only faintly in point.) There could be no error in refusing to tell the jury the same thing twice. In writing instructions the finger of the judge is like that of fate in the figure of Omar Khayyam, anent progression, viz.:

“The Moving Finger writes; and having writ Moves on.”

On the whole record the judgment was for the right party and stands for affirmance.

Let it be affirmed. It is so ordered.

All concur.


author: GrRAYBS, J. LAMM. J.

text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. GUS BENDER.
    Division One,
    February 28, 1913.
    1. PROSECUTION: To Recover Penalty: Right of State to Writ of Error. When the city loses in a prosecution to recover a. penalty for the violation of an ordinance, the case is considered civil or quasi-civil, and the courts have uniformly entertained an appeal by the city, and if the proceedings can be reviewed on appeal there seems to be no good reason why they cannot be-reviewed upon a writ of error sworn out by the city.
    2. APPRENTICE: What' Is: Plumbers: Police Regulation. An apprentice is not only a boy articled by his father or guardian to a tradesman for a fixed term, but a man of mature years who-by a contract of his own places himself under the instruction and supervision of a tradesman with the view to learn the art or trade in which his master is engaged, and who in good faith tries to carry out that contract. Where the ordinance prohibits any person, except apprentices working for licensed' plumbers, from engaging in the business of plumbing, without having been duly licensed, a man who, thirty-two years of age, was working, under a letter of apprenticeship, for a licensed plumber, who designated the particular work he was doing and-instructed him how to do it, was an apprentice, and not liable-to the penalties of said ordinance.

      Held, by LAMM, J., concurring, that such an ordinance could not be sustained as an exercise of the police power on the theory of an attempt to monopolize into the hands of a few a gainful trade so that there could be no learners except the restricted few who were bound under indentures in their youth; but by giving the word “apprentice” its -¡usual and reasonable construction of a learner, regardless of his age and regardless of the technical features of his being bound out to a master by indenture, who serves an apprenticeship under a master with the view of finally becoming a master in the craft himself; the prdinance is valid.
    Appeal from St. Louis Court of Criminal Correction.— Won. Wilson A. Taylor, Judge.
    Affirmed.

      Lambert E. Walther and G. B. Arnold for plaintiff in error.
    (1) Defendant was not an apprentice, within the meaning of that term as used in the ordinance, because he was not a minor, bound by indentures for a fixed time, to learn from his master the trade of plumbing. Sbc. 1679, R. S. 1909; 2 Kent, 211; 1 Bouvier, 159; 1 Blaekstone, 526. (2) The construction of an ordinance is for the court. Barton v. Odessa, 109 Mo. App. 82. (3) The general rules for the construction of statutes apply with equal force to the construction of ordinances. Holman v. City of Macon, 155' Mo. App. 398. (4) This is so because an ordinance or bylaw (within the charter powersi of the city) is in actual effect a local law of the State itself. Ex parte Smith, 231 Mo. 123; State ex rel. v. Railroad, 151 Mo. 188. (5) “Where a statute uses a word which is well known and has a definite sense at common law or in the written law, without defining it, it will be presumed to be used in that sense and will be so construed, unless it clearly appears that it was not so intended. ‘Words having a precise and well-settled meaning in the jurisprudence of a country are to be understood in the same sense when used in statutes, unless a different meaning is unmistakably intended.’ ” 2 Lewis’ Sutherland Statutory Construction, p. 757. (6) The word apprentice is a technical word, “having a peculiar and appropriate meaning in law,” and “shall be understood according to its technical import,” “unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute.” Clarkson v. Hatton, 143 Mo. 47; Sec. 8057, R. S. 1909; 2 Lewis’ Sutherland Statutory Construction, p. 755.

      T, J. Rowe, Thomas J. Rowe, Jr., and Henry Rowe for defendant in error.
    (1) After the rendition of the judgment of not guilty, and the discharge of the defendant in error, he was no longer in said court. It has been adjudicated by this court that a writ of error is a new action. Macklin v. Allenberg, 100 Mo. 343. (2) Any act of a city official which is not authorized or warranted by the charter and ordinances of the city, is null and void. 17 Ency. PL and Pr. 145. For the reason that the suing out of the writ of error herein was not warranted or authorized by either the. charter or ordinances of the city of St. Louis, the writ of error should be dismissed.
   GrRAYBS, J.

This cause had its origin in the police court in and for the city of St. Louis, by information as follows:

To the Police Justice of the Second District Police Court of the City of St. Louis, Missouri, March 20, 1908.
State of Missouri, \ gg City of St. Louis. I
City of St. Louis, March 19, A. D. 1908.
Cus Bender.
To The City of St. Louis, Dr,
To one hundred dollars for the violation of an ordinance of said city, being Ordinance No. 23007, Chapter —, Article —, Section 10.
Approved April 1, 1907.
In This, To-wit: In the city of St. Louis, and State of Missouri, on the 19th day of March, 1908, the said Cus Bender did then and there engage in and work at the business of plumbing as journeyman plumber without having secured a certificate of qualification or license as required to do, and not being an apprentice, to-wit, at and in the building, No. 3207 Cass avenue, contrary to the ordinance in such cases made and provided. E. P. CS.EECY,
Chief of Police of the City of St. Louis.

In the police court the defendant was convicted and fined $100. From that judgment he appealed to St. Louis Court of Criminal Correction. In the Court of Criminal Correction the record discloses that defendant interposed a demurrer to the complaint, thus stated:

“Now at this day comes defendant and demurs to the information herein for reasons following:
“First. The information fails to allege facts sufficient to constitute an offense.
“Second. The information fails to allege facts sufficient to show a violation of ordinance number 23007, section 10, approved April 1,1907, of the city of St. Louis.
“Third. Ordinance number 23007, section 10, of the city of St. Louis, upon which the information herein is bottomed, is unconstitutional and void.
Fourth. Because said ordinance is in violation of section 30, article 2, of the Constitution of Missouri.
“Fifth. Because said ordinance is in violation of section 1 of the Fourteenth Amendment to the Constitution of the United States.'
“Sixth. Because under the charter of the city of St. Louis the Municipal Assembly has no power or authority to pass said ordinance.”

This the court overruled, and thereafter on the same day a trial by jury was waived and the cause tried out upon the facts by the court, who at the end of the trial, after some days’ considération of the law and facts, entered a judgment discharging the defendant.

From this judgment the city of St. Louis sued out its writ of error here, and the proceedings of that court under the writ of error is the case now here. Further facts and the points made will be noted in the course of the opinion.

I. Question is raised as. to the. right of the city to sue out this writ of error. In view of the facts involved in this record we have concluded not to go into the field of authorities, a discussion of which would be necessary, and many of which are not cited in respondent’s brief. Such a discussion would involve a review of our cases on the character of a suit to recover a penalty for the violation of our city and town ordinances. We have differently defined the suit as civil or quasi-civil. We have applied in a way the criminal procedure to such actions, but we have always entertained an appeal by the city where the defendant was discharged of liability. When a defendant is acquitted in a criminal ■case upon a trial either before court or jury (as in a misdemeanor he could be so tried by court, if he waived a jury), we have looked upon such acquittal as the end of the case. The State in such case is debarred of an appeal. But as stated above when the municipality loses in one of these city actions to recover a penalty, the courts of Missouri have always entertained such an appeal. If the case is such as could be reviewed upon appeal we can see no good reason for saying that it could not be reviewed upon a writ of error. In view of our conclusions upon the remainder of this record, we shall not delve into further case law, but proceed upon the theory of the case being properly here. ,

II. The real crux of this case is whether or not the court properly acquitted and discharged the defendant under the evidence. The charges we have fully set out. The city relies ,. , upon section 10 of ordinance number 23007, which section reads:

“Any person, firm or corporation or the agent or officer for any such person, firm or corporation, who shall engage in or work at the business of plumbing in the city of St. Louis, except apprentices working for duly licensed plumbers, without first having been duly licensed as required by the provisions of this ordinance, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars for each offense. ’ ’

It will be noticed that this ordinance excepts “apprentices,” and the meaning of this term as it appears here, and as of course it must be determined from the whole body of the act, is one of the questions in the case. This defendant was tried upon the facts and found not guilty. The city contends that the word “apprentices” as used in the act has an exceedingly technical meaning and only applies to boys, duly “articled” to some mechanic and could not apply to this defendant, who, as we take it, is a man of mature years (32 years) trying to learn the business of plumbing. According to the evidence he had tried to pass the examination for the position of “journeyman plumber,” but failed. After such failure he applied to Mr. Hobein, who we take it was a licensed plumber, because such fact is not denied in the briefs or record, and there is some evidence tending to show that he had given to defendant “a letter of apprenticeship.” One side of the case is thus described by the defendant, Gus Bender:

“Direct Examination, by Mr. Rowe:
“Q. What is your name? A. Gus Bender.
“Q. How old are you? A. Thirty-two.
“Q. Were you working at this on the 19th day of March at the building 3207 Cass avenue? Á. Yes, sir.
“Q. Now state what you were doing there. A. I was getting the soil pipe ready; that is, Mr. Hobein just had taken me there to give me the instructions what I should do—
“Mr. Arnold: Well, I object to that.
“A.-and just as he left these fellows came in—
££ Mr. Arnold: Hold on there. Just a minute now.
“By the Court (Q.): What instructions did he give you? A. To run pipe. How I should run the iron pipe up — soil pipe. When I hired myself out to Mr. Hobein he asked me if I was a. plumber. I told him no, I failed to pass the examination, but he seen I had to have some ex-perienee and from instructions I could go on with the work. I showed him who I worked for before he said all right, and every day he came to look at my work. I served under his instructions and was working at the soil pipe about fifteen minutes when these fellows came in. They asked me if I was a plumber. I said yes, I am doing plumbing work here and serving an apprentice under instructions,' and one, this fellow here, he got the policeman, and when the policeman came to me I showed him a letter Mr. Hobein had written to me to show I was working as an apprentice. The letter didn’t do any good. He took me to the police station, anyhow.
“Q. How long had you worked at the plumbing trade? A. I worked at the plumbing trade about a year on the outside.
“Q. Now, what actual plumbing work did you do on this building, 3207 Cass avenue ? What was it that you actually did in the way of plumbing work? A. I just had cut one length of pipe, that’s all I had done when these fellows came in.
“Q. Had you made any connections of any kind? A. No, not there.
“Q. And you had done no plumbing work at all there, had you? A. Not right then, I just had got started.
“Mr. Arnold: That calls for a conclusion, of course.
. “Mr. Rowe: Well, I am asking him what plumbing work -he had done there, that’s what the court wants to know. What plumbing work there, if any, had you done in that building? A. Just had cut one length of pipe and started the furnace. That’s all I had done.
“ Q. Now are you learning the trade of plumbing? A. Yes, sir, I am learning it.
“Q. And. who are yon working under? A. I am working under Mr. Flagg, under instructions right now.
“Q.- And that was all the work that you did on this occasion, was it? A. Yes, sir.”

His cross-examination does not shake this portion.

By the record the city undertook to have experts to testify that an apprentice meant an “articled boy” under the age of twenty-one, or rather from fifteen to sixteen years of age, and that as such he could not do the work which defendant was then doing. It should be said that the proof is not very pointed for the city upon this point, and it relies now more upon what is called a technical definition of “apprentice” than upon this testimony. That the city did not seriously question that Hobein was a licensed plumber is apparent from the manner in which the case was tried. It was tried upon the theory that such fact was not really material, and the argument in this court for the city was to a similar effect. The position of the city is further emphasized in their brief in this language:

“The judgment of the lower court should be reversed and the ease remanded because, after plaintiff had shown and the defendant had admitted that he was doing plumbing work, at the time and place of his arrest, defendant wholly failed, in fact made no attempt, to prove that his alleged employer, for whom he said he was working as an apprentice, was a licensed plumber. However, as this will be considered a test case and of great importance to the people of St. Louis generally, and especially those engaged in the plumbing business and the city authorities having in charge the enforcement of municipal regulations, we respectfully urge the court to give its construction of the word apprentice and the phrase in which that word is used, so that all may know what that word and phrase mean. In other words, we wish the court to define who is an apprentice within the meaning of the ordinance and the character of plumbing work he is authorized to perform. ’ ’

Whilst the city in the paragraph just quoted in a way seems to suggest that the defendant had not made proof of of his employer’s license, yet it is apparent that such was not the theory below, and we have no doubt that, in addition to the evidence in the record tending to show that Hobein was a licensed plumber a reversal of the case for that purpose alone would only result in such a showing; we are, therefore, inclined to proceed with this case upon the idea that such a license was. shown by the license itself. So much .is indicated by the brief of plaintiff in error. Plaintiff in error knowing the record does not seek to stand upon the question under the proof, but seeks to have us go to the legal question. This we will do. Now to state this legal question it might be well to shorten up a little. Verbosity is to be avoided even in court opinions. In the process of shortening the proposition, we can well state it thus: The ordinance in question excepts apprentices. Defendant, although thirty-two years of age, was working under a licensed plumber, with a letter of apprenticeship to that effect. Defendant so testified as to his authority to work and the trial court had the right to believe his testimony and discharge him from the charge. If error was committed at all it was the meaning which-the trial court gave to the word ‘£ apprentices ’ ’ in this ordinance. If he properly construed the ordinance in holding that the defendant fell within that term, then there was ample evidence authorizing his discharge. Defendant testified that he was working under Hobein and that Hobein had designated the particular work he was doing upon the occasion of his arrest. In other words, there is ample evidence in the record for the trial court to find that defendant was an apprentice of Hobein, if a man of his age and circumstanced as was the defendant, eonld be an apprentice under the law. This occurs to me to be the sole question.

At the early common law the word apprentice had a specific meaning. It no doubt referred to minors who could be “bound” or “articled” to some mechanic, versed in his trade, there to receive instructions and to work under the supervision of such mechanic until he could do all work in that trade, from the lowest to the highest. The law did not preclude the apprentice from actually doing all grades, of work, but it did ■contemplate that he would do it under the supervision of his “tutor,” the man to whom he had been bound for the usual term. Nor can it be seriously questioned that at these early days the apprentice was presumed to be a boy of such age that the term of his apprenticeship would terminate about the time of his. majority. Case law of this kind is at hand and the brief of the city is not without such authority.

But the question here is not what the term “apprentice” formerly meant, but what it means now, and meant at the time the ordinance in question was adopted. We concede to the city the old time definition of “apprentice,” but is that the present meaning of the term? In other words, in modern law was it ever contemplated that men over the age of twenty-one could not learn a trade by becoming an apprentice to one who knew the trade? We should be slow in holding that only boys can become apprentices. We should not bar the open field of the “trades” from all men; if they proceed, to enter them within the spirit of the law. What has been law may not be law how. Under the old law boys were bound out to tradesmen for a term of years on conditions and terms, fixed largely by the customs of the community. When these boys had served the term and received in person, or through the parent who “articled” them, the pittance due, they were presumed to know the intricacies of the trade. But in learning these intricacies even the boys had to do the actual work under the supervision of the master. In that age of the law there would have been no objection to the boy doing the actual physical work for the purpose of the education, provided that work was directed and supervised by the master. But the age of boys as the only “apprentices” has passed. The word has a general accepted meaning in these days. Such meaning goes further than that of a boy “articled” by his father or guardian to a tradesman for a fixed term. As now used it not only includes this class, but likewise that class of more aged persons who by contract of their own, place themselves within the relationship. Going to the brief of plaintiff in error, we find quoted the definition of “apprentice” from Webster’s Standard Dictionary, thus: “One who is bound by indentures or by legal agreement to serve a mechanic, or other person, for a certain time, with a view to learn the art or trade in which his master is bound to instruct him. ’ ’ Note the phrase “ or by legal agreement to serve a mechanic.” The evidence in this case tends to show that there was such legal agreement between defendant and Hobein, and this does not seem to be seriously controverted by the city. To be explicit the more modern idea is that the word “apprentice” includes not only those minors, who by and through their parents or other legal authorities, have been bound out for a fixed period to learn a trade, but in addition thereto also includes those persons who have attained their majority, and who for themselves have, by contract assumed a like relation. The evidence before the court below tended to show that Bender, although an adult of thirty-two years, had attempted to create the relation of apprentice by contract The city, rather than to specifically deny that fact, prefers to ask our adjudication upon the naked question as to the meaning of the term. This adjudication we are willing to give. We will not hold that the term “apprentice” must be limited in this age of progress to a mere boy bound by legal authority to a tradesman. We do hold that the term includes such class (if in fact such is now done), but that it likewise includes all persons, irrespective of age, who by contract place themselves in position to learn a trade and are in a bona-fide manner carrying out that contract.

We therefore conclude that in the case at bar the St. Louis Court of Criminal Correction had ample evidence in the record upon which to base the judgment of acquittal which was entered. In this state of the record, the judgment should be affirmed, and this too without reference to the intricate questions (if they be intricate) raised by the demurrer. Let the judgment be affirmed.

All concur. Lmnm, J., in separate opinion in which Woodson, P. J., concurs.

CONCURRING OPINION.

LAMM. J.

The word “apprentice” comes from apprendre, meaning to learn. Accordingly in one allowable, ordinary meaning, “apprentice” js ugefi to convey the idea of a learner of a trade, or, it may be, a learner m any department; one only slightly versed in a subject; a novice. [Cent. Diet., Tit. “Apprentice.”]

Its technical definition is: One who is bound by indenture to a master for a specified time to learn the art or mystery of some trade, craft, profession or business in which his master is bound to instruct him. Even husbandry or housewifery might be such business.

The-question is: Should we give the word “apprentice” in the ordinance the elastic breadth of its usual and ordinary meaning in common conversation or give it the rigidity of its strict technical meaning?

Youth being the usual season of learning, the idea of an apprenticeship often carries with it a tang or suggestion of youth, but not necessarily so even in the strict and technical meaning of the word. For example, Bouvier (Bonv. L. Diet., Tit. “Apprentice”) says nothing about youth in his definition. He speaks of an apprentice as “aperson” bound in the form of law to a master, to learn from him his art, trade or business and to serve him during the time of his apprenticeship. Black (L. Diet., Tit. “Apprentice”) deThe statute, fines him as a “person, usually a minor.” bound in due form of law, etc. Our statutes on apprentices furnish little help in giving a meaning to the word in general use. They relate to pauper and orphan children, who are bound out as apprentices under strict forms of law by the highly technical instruments known as indentures. Clearly the ordinance in question does not use the word in the narrow statutory sense above, viz., orphan and pauper children bound out to a master for a term.

In an interesting case in Florida the court had in judgment (State ex rel. v. Jones, 16 Fla. 306) the meaning of the term “a regular apprenticeship.” In that case, on a consideration of English cases and on the reason of the thing, it was held that an apprenticeship did not necessarily import a contract by way of indenture. The same distinction was drawn .in North Brunswick Township v. Franklin Township, 16 N. J. L. 535.

The ordinance in question can only be sustained as an exercise of the police power for the welfare of the public. It could not be sustained on the theory there was an attempt to monopolize into the hands °f a few the gainful trade or craft of plumbing, so that there can be no learners in the craft except the restricted few who might be bound under indentures in their youth. For these reasons we must give to the word “apprentice” the reasonable and usual construction of á learner, regardless of his age and regardless of the technical features of his being bound out to a master by an indenture. This permissible view of it permits any man to finally become a master plumber at any age, so long as he serves an apprenticeship- as a learner in acquiring the art or mystery of the craft of plumbing, and sustains an ordinance that would otherwise be void as an unconstitutional exercise of the police power.

The mere fact that defendant’s employer was not present in propria persona at the time of defendant’s arrest when about to cut a pipe into lengths, and that he had given directions which defendant was carrying out when left to himself for a spell, is of no significance. May not a master lay out an apprentice’s work on the trestle board? Even under the strictest view of it an apprentice need not perform every stroke of his labor as a learner under the constant eye of the master, so long as the superior skill of the master appears in the work through his directions and instructions given to the apprentice. Otherwise (all theory and no practice) no apprentice would ever develop into a journeyman or master of the craft.

For the reasons stated by my brother and these additional ones I vote to concur.

Woodson, P. J., concurs in these views.