author: FOX, J.

text:
    THE STATE ex rel. SUTER et al. v. WILDER, State Auditor.
    Division Two,
    May 22, 1906.
    1. COST BILLS: By Whom Audited. The judge and prosecuting attorney are required to examine and certify to the State Auditor the amount of fees chargeable against the state in a criminal case, but he is not concluded by their examination and certificate from auditing and settling such fees, nor do they determine the right of witnesses or veniremen to the fees mentioned in the cost bill, nor preclude the State Auditor from saying what fees are to be paid. Upon him is imposed the duty of. auditing cost bills so certified to him by the judge and prosecuting attorney, and of determining what fees shall be allowed and paid.
    2. -: State Auditor: Subject to Supervision of Supreme Court. The State Auditor is subject to the supervision of the Supreme Court, and if he refuses to audit, adjust and settle costs which have been properly taxed and certified by the judge and prosecuting attorney, it will compel him by its process to perform his duty in that regard.
    3. -: Witnesses Outside of State: Mileage. Witnesses who are non-residents of this State and who are served with a subpoena at the place of their residence in .a foreign State, commanding them to appear at the trial of a criminal cause in this State, and to attend in obedience to such subpoena, are not entitled to mileage from their place of residence in the foreign State to the place of trial in this State. A subpoena served without this State is not process, and attendance in obedience thereto is voluntary. Mileage can be taxed only when a subpoena has been legally.served upon the witness.

      4. -: Veniremen: Fees. Jurors who are not on the regular panel hut who are retained on the panel of forty qualified jurors from which the jury to try a murder case are selected, are entitled to their per diem and mileage, notwithstanding they may he challenged and not required to sit in the trial of the cause. But veniremen who are not qualified jurors, that is, who are not placed on the panel of forty, are not entitled to either mileage or per diem.

    Mandamus.
    Peremptory writ denied.

      Roy & Hays, Allison & Allison and Ben E. Hulse for relators.
    (1) Criminal costs are “such claims as are expressly required by law to be audited and settled by other officers or persons. ’ ’ Secs. 2845, 2847, 2856,10389, E. S. 1899. The judge and prosecuting attorney are expressly required to adjudicate all the law and all the facts relative to the validity of costs in criminal cases. State ex rel. v. Oliver, 50 Mo. App. 217. (2) A nonresident witness served with a subpoena at his place of residence in another state and attending court and testifying in this State in obedience to such subpoena is entitled to his fees and mileage to and from his place of residence. State ex rel. v. Seibert, 130 Mo. 225. (3) As to the ground of the demurrer that it does not appear that the witnesses were sworn by the clerk as to the number of days attended and the number of miles traveled by them, we answer that the law presumes that the clerk did his duty in that regard, and this is strengthened by the additional presumption that the trial judge and prosecuting attorney found such to be the fact. (4) We claim that the jurors summoned in this cause and attending, but who were not on the panel of forty, are entitled to their fees and mileage under section 3874, Revised Statutes 1899.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    (1) The auditor is the proper person to decide whether or not fees are due a certain witness, and he is not bound by the certificate of the circuit judge and prosecuting attorney. Morgan v. Buffington, 21 Mo. 549. (2) When a non-resident witness attends the trial of a criminal case in this state, he does so with the knowledge that he is. doing a voluntary act. There is no power in the state to compel his attendance; neither is there any law which makes it the duty of the state officers to pay him for such attendance. While it may be true that the state is not acting in good faith towards those who aid in the punishment of criminals, and also that, without such payment, the criminal prosecutions might be greatly hampered, yet, such arguments should be presented to the law-making power and proper relief there asked. (3) There is nothing in the petition or alternative writ which shows that the various witnesses made oath to the correctness of their claims. Before they are entitled to any fees, such an oath must be made. R. S. 1899, sec. 3260; Veidt v. Railroad, 109 Mo. App. 102: There is no reason to presume that the clerk did his duty in this, rather than in any other matter connected with the criminal cost bill. The statute (R. S. 1899, sec. 2845) makes it the duty of the prosecuting attorney and circuit judge to examine the items in each cost bill, and to certify the same to the auditor. It is not made the duty of these two officers to examine and ascertain if the witnesses were sworn to the correctness of their claims. (4) The action of relator in refusing to allow fees to the veniremen, who were not chosen on the panel of'forty, was correct. Our statute does not provide for paying said persons, and therefore the justice of their claim and the moral duty of the state to pay them does not take the place of a legislative enactment.
   FOX, J.

This a proceeding by mandamus, instituted by relators, for the purpose of compelling the respondent, as State Auditor, to audit a certain criminal cost bill, which was signed and certified to by the judge of the circuit court of Ralls county, and also signed by the prosecuting attorney of said county, and presented to said auditor. Tt is unnecessary to burden this opinion by reproducing the petition upon which this proceeding is predicated. It will be sufficient for the purpose of determining the controverted propositions involved to indicate the substance of the allegations of the petition. It substantially appears from the petition and the cost bill therein contained that one Taylor Jones Watson was charged, by information charged filed by the prosecuting attorney of Ralls county, with murder in the first degree; that he was tried at the first term of the circuit court of Ralls county thereafter, and was acquitted. Prior to ■said trial the state and the defendant had subpoenas regularly issued for a number of persons, commanding them to appear at said trial and testify in said case; said subpoenas being regularly served on them at the residences of. the various witnesses, which were in the states of Illinois, Colorado, Indiana, California, Michigan, Iowa and Virginia. In response to said subpoenas, said witnesses appeared in Ralls county and testified at said trial. The petition and alternative writ further state that all of said witnesses have, for value received, sold and assigned the fees due them for said attendance to the relators herein. That the respondent failed and refused to audit said criminal cost bill because, in his judgment, said non-resident witnesses were not entitled to claim mileage from places outside of this State. The petition and alternative writ further recite that, in said cost bill, there are the names of a number of citizens of Ralls county, who were summoned to serve on said jury, but were not selected on the panel of forty; and the cost bill also states the amount due each, verireman for his attendance and mileage. That the auditor failed and refused to audit and allow said fees because, in his judgment, said persons were not entitled to claim for said attendance and mileage, not having been selected on the panel of forty. It is also alleged that the fees due said veniremen have been sold and assigned, for value received, to the relators herein.

To the petition filed in this cause the respondent interposed a demurrer and assigned the following reasons therefor:

“1. That the petition and alternative writ do not state facts sufficient to constitute a cause of action.
‘ ‘ 2. That the petition and alternative writ do not state facts sufficient to entitle relators to any relief from this court,
“3. That the petition and alternative writ show that some of the witnesses, whose fees relators desire to have taxed against and paid by the state resided at the time they were served with a subpoena without the State of Missouri, and that they have claimed their attendance from their said residences to and from the county seat of Ralls county, Missouri.
“4. That the petition and alternative writ do not show that the witnesses, whose fees are by this proceeding sought to be taxed against and paid by the state, ever made oath to the correctness of said fees before the circuit clerk of Ralls county, Missouri, as required by statute. ’ ’

This proceeding was submitted to this court upon the petition and demurrer and that constitutes the record before us for consideration.

OPINION.

This record presents three distinct propositions for our consideration:

1. Are the costs in criminal eases finally audited by the judge and prosecuting attorney, who certify the bills under the provisions of the statute, and is their certificate to the fee bill final and conclusive upon the auditor?

2. Are witnesses, who are non-residents of this State, and are served with a subpoena at the place of their residence in a foreign State, commanding them to appear at the trial of a criminal cause in this State, entitled to mileage, as such witnesses, from their place of residence in the foreign State to the place of trial in this State?

3. Are veniremen, who are not chosen on the panel of forty jurors provided for in capital cases, entitled to their per diem, and mileage under the provisions of law respecting the fees of jurors?

I. The contention of relators upon the first proposition is predicated upon sections 2845, 2847 and 2856, Revised Statutes 1899.

Section 2845 substantially requires the prosecuting attorney to strictly examine each bill of costs delivered to him for allowance against the state or county, to ascertain as far as possible whether the services have been rendered for which charges are made and whether the fees charged are expressly given by law for such services. Then it provides that he and the judge of the court, if the bill appears to be formal and correct, shall certify to the State Auditor or clerk of the county court, accordingly as the state or county is liable, the amount of such fee bill.

Section 2847 simply provides as to what the certificate of the judge and the prosecuting attorney shall contain, that is, that they have strictly examined the bill of costs; that the defendant was convicted or acquitted, and if convicted the sentence and extent of punishment assessed, or the case" continued generally as the case may be; that the offense charged is a capital one or punishable solely by imprisonment in the penitentiary, as the case may be; that the services were rendered for which charges are made and that the fees charged are expressly authorized by law, and that they are properly taxed against the proper party, and that the fees of no more than three witnesses to prove any one fact are allowed; and as an additional statement where the defendant is convicted, the certificate shall show that the defendant is insolvent.

Section 2856 is simply a requirement that the clerks of the courts shall make copies of all original fee bills certified to the State Auditor for payment and file them with the treasurers of their respective counties, and that the State Auditor is required to draw his warrant in payment of such bill on the State Treasurer and transmit the same to the treasurer of the county from whence the bill originated.

Our attention is also directed to section 10389, Revised Statutes 1899, which provides that the auditor shall ‘ ‘ audit, adjust and settle all claims against the state payable out of the treasury, except only such claims as may be expressly required by law to be audited and settled by other officers or persons,” etc. It is earnestly insisted by relators that cost bills certified in the manner as indicated by the section herein cited is in effect the auditing and settling of the amount of such bills by the judge and prosecuting attorney, hence fall within the exceptions of section 10389, which provides that the auditor shall audit all claims except such claims as may be expressly required by law to be audited and settled by other officers and persons. In other words, it is claimed that under the section as herein indicated the judge and prosecuting attorney are expressly required to audit and settle all cost bills, and therefore under the provisions of the exceptions of section 10389 the auditor has nothing to do with the auditing and settling of bills of costs in criminal cases. We are unable to give our assent to this contention so ably presented by learned counsel for relators. An analysis of tbe sections of tbe statute in reference to bills of costs as herein pointed out, makes it manifest that the Legislature never intended that this section should be regarded as authority on the part of the judge and prosecuting attorney to finally audit, adjust and settle all costs bills in criminal cases. The very terms of the statute negatives any such intention on the part of the law-making power. There are no such terms used in any of those sections which indicate that they are to audit, adjust and settle bills of costs, but it is apparent that this section means to impose the burden upon the judge and prosecuting attorney, who are presumed to be familiar with the legimate costs that have accrued in the case, to strictly examine the fee bills and certify them to the State Auditor, who finally adjusts and settles the same by the drawing of an auditor’s warrant. Under this section the judge and prosecuting attorny by no means audit and settle finally the bill of costs, but they are simply required to make an examination and certify it to the State Auditor.

Under the law of 1837 the clerk of the circuit court was required to make out, under the directions of the circuit judge and circuit attorney, a full statement of all the costs accruing in cases where the state is liable to pay costs, and this statement was required to be signed by the judge and the circuit attorney, and the auditor was required to audit and adjust the same for the amount by him allowed on the treasurer. In State v. Hinkson, 7 Mo. l. c. 355, in discussing a cost bill certified by the judge and circuit attorney, under the law in force at that time, this court thus gave expression to its views upon the subject before it for consideration: “But it could not be for a moment supposed that the auditor ought to have allowed the charge for a guard to the jail, even though the accounts were certified by the judge and circuit attorney. Their certificate was intended to ascertain the truth of the facts only, as whether such costs and charges were incurred. But if by negligence or mistake they charge to the state what the state is not bound to pay, it is the duty of the auditor to reject so much of such account as is improperly charged to the state. The act declares indeed that all accounts so certified shall be a sufficient voucher for the auditor’s warrant, but did not intend that he ought to draw his warrant whether the costs allowed were legal or illegal.”

It is, however, insisted by counsel for relators that the rule as announced in that case is in fact changed by reason of the enactment of section 23, page 453, Revised Statutes 1855, and which is continued to the present time and is found in the Revised Statutes of 1899, section 2847, heretofore referred to. We are of the opinion that this section by no means changed the rule as announced in the case above cited. Doubtless the occasion of the enactment of that statute was that as the state increased in population costs in criminal cases also began to increase, and section 2847 was enacted for the purpose of impressing upon the judge and prosecuting officer the necessity of a strict examination of bills of costs in criminal cases, and to insure a careful and strict examination of such cost bills this section was enacted, which constantly kept before them the nature and character of their examination and also required them to give expression to such examination by having their certificates show in detail the proper taxation of costs. But as was ruled in cáse of State v. Hinkson, supra, it certainly will not be seriously contended that, if there is an improper cost taxed against the state in a cost bill, even though such bill is certified by the judge and prosecuting attorney, the auditor is concluded by such certificate and is powerless to correct such improper taxation of criminal costs. As was said in that case, their certificate was intended simply to ascertain the truth of the facts only as to whether such costs and charges were incurred, but if by negligence or mistake they charge to the state what the state is not bound to pay, it is the duty of the auditor to reject so much of said account as is improperly charged to the state.

Morgan v. Buffington, 21 Mo. 549, while not a case in which the judge and prosecuting attorney or circuit attorney had certified a cost bill, was one in which the Speaker of the House of Representatives had, under the law, certified to an account of one of the members of the General Assembly, and it was contended there, as it is here, that the certificate was in effect an auditing and adjusting of the account and was conclusive upon the State Auditor, hence the principle involved in that proceeding is similar to the one presented here for consideration. Judge Soott, who delivered the opinion of the court, held that the auditor was not concluded by such certificate, and during the course of the opinion he very appropriately said: “Ours is a government of checks and stays.....The auditor of public accounts is an important officer, entrusted with the management of the revenues of the State. Whilst the treasurer holds the iron or brazen key of the treasury, the auditor holds the legal key, and it is through his instrumentality alone that money can lawfully be drawn from it. The State looks to him as the protector of her treasure. The powers confided to him are necessarily large, and as by his mismanagement the State may at any time be rendered unable to fulfill her pecuniary engagements, so there should be a power in him to prevent such a state of things. ’ ’

In State ex rel. McMurtry v. Auditor, 37 Mo. 176, in which the same proposition was involved, the court in disposing of the question said: “But as the relator’s counsel, in his brief, has raised the point whether the auditor has any right to go behind the speaker’s warrant, and whether the same should not be held conclusive, we will state preliminarily that he has such right without there is a law making such warrant or certificate conclusive”—citing in support of the conclusion reached State v. Hinkson, 7 Mo. 353; Morgan v. Buffington, 21 Mo. 549.

State ex rel. Daily v. Auditor, 41 Mo. 1, was one involving the same question as the case at bar. In that case the cases of Morgan v. Buffington, and State ex rel. McMurtry v. Auditor, supra, were cited and approved. It was ruled in the Daily case that whenever it is intended that a claim resting on the state shall be audited by a different person or officer so as to take away the general power and responsibility from the auditor, it must be made to appear by an express provision of a legal enactment. It was further said during the course of the opinion in that case that £ £ the certificate of the judge or circuit attorney is required to set out specifically certain facts in reference to such claims, among which is the fact that the services set out in the bill of costs were rendered, and that compensation for the same is given by law......The substantial part of such a certificate, at last, is the statement that the services charged for have actually been rendered. It is evidently^ the intention of the statute to furnish this sort of proof as the most convenient and reliable that the case admits of, and at the same time to provide a check upon the clerks in charging for services which in point of fact may not have been rendered at all, and which might nevertheless be allowed and paid for but for the required examination. It is not, in our judgment, one of the claims ‘expressly required by law to be audited and settled by other officers and persons’ within the meaning of sec. 13, ch. 10, of the Gen. Stat., and the auditor is not concluded by the certificates.”

We are of the opinion that the rules of law announced in the cases heretofore cited are applicable to the provisions of the statute in relation to cost bills in criminal cases as they now exist, and we are of the opinion that the certificate of the judge and prosecuting attorney as to the taxation of costs in criminal cases is not conclusive upon the State Auditor, nor do we mean to say that the conclusion or disallowance by the State Auditor of a fee bill is conclusive upon the parties claiming the fees. The auditor is subject to the supervision of the Supreme Court, and if he refuses to audit, adjust and settle costs which have been property taxed and certified by the judge and prosecuting attorney, the court will not hesitate by its process to compel him to perform his duty in that regard.

II. This leads us to the consideration of the second proposition involved in this proceeding, that is, are witnesses, who are non-residents of this State, and are served with a subpoena at the place of their residence in a foreign State, commanding them to appear at the trial of a criminal cause in this State, entitled to mileage as such witnesses from their place of residence in the foreign State to the place of trial in this State?

The petition alleges that the witnesses named in the cost bill were residents' of a foreign State, and were served with a subpoena at the place of their residence, commanding them to appear and testify in a criminal cause at the place at which court was being held in this State. It follows that the demurrer to the petition admits the truth of these allegations and the question simply confronts us as to whether or not these witnesses under the law as it now exists are entitled to mileage from their respective places of residence in the foreign State to the place of trial in this State.

Sections 3259 and 3260, Revised Statutes 1899, by the terms employed in them, clearly indicate that witnesses in order to be entitled to claim mileage for attendance upon court in the trial of any particular case must have actually and necessarily attended such court in obedience to the process of the court. In the former section it is expressly provided that “each witness shall be examined on oath by the court, or by the clerk when the court shall so order, or by the justice, as the case may be, as to the number of days of his actual necessary attendance, under subpoena or recognizance, and the number of miles necessarily traveled; and in every case where a witness shall not, as such, have actually and necessarily attended such court, or before such justice, and withdrawn himself from his business during the full time for which pay is claimed, he shall not be allowed for more than one day’s attendance.” In the latter section it is provided that “the clerk of each court of record shall, on the application of any witness to have his fees allowed, enter on his book, under the title of the cause in which the witness was summoned or recognized, or if before the grand jury, the name of the-witness, the number of days he has attended and the number of miles he has necessarily to travel in consequence of the summons or recognizance, and shall swear the witness to the truth of the facts contained in said entry.”

It will not be seriously contended that the subpoenas in this cause which are alleged to have been served upon the witnesses at their places of residence in a foreign State were of any force or vitality. A subpoena issued from the courts of this State cannot have any extraterritorial operation, hence the service of the subpoenas of the witnesses whose claims for mileage are involved in this proceeding in another State were mere nullities and of no obligatory force upon the witnesses to obey the command contained in the subpoena. The rules of law applicable to this subject were fully discussed and announced in State ex rel. v. Seibert, 130 Mo. 202, by the Court in Banc. There were two opinions in that case, but upon the proposition that process served beyond the limits of this State were of no force and effect, there was no division of opinion. Sherwood, J., in that case, in treating of process, thus announced the law: “When the Legislature treats of process and its service and recognizances, it will be intended that such process can only be served within this State and that snch recognizances only possess obligatory force within its borders. Neither process nor recognizances can have any extraterritorial operation. [State v. Pagels, 92 Mo. loc. cit. 308; State v. Butler, 67 Mo. loc. cit. 62; Board, etc., v. Chase, 24 Kan. 774.] And it would be beyond the power of the Legislature to authorize process to be effectual outside of this State. [Wilson v. Railroad, 108 Mo. 588.] ”

One of the questions involved'in that proceeding was the claim of a witness for mileage who resided in a foreign State, but who had been duly recognized by one of the courts of this State to appear at a subsequent term to testify in the trial of a cause. Judge Sherwood maintained that, notwithstanding the recognizance had been taken by the court in this State, the witness was not entitled to mileage traveled in obedience to such recognizance from the residence of the witness in the foreign State to the place of trial in this State designated in such recognizance. There were other reasons assigned in that case for the denial of the writ of mandamus compelling the State Auditor to audit and allow the mileage of the witness, and the conclusion reached was that the writ should be denied, in which all the members of the court concurred, but not on the ground, under the facts as developed in that case, that the witness was a non-resident of this State and had attended the trial of the cause in obedience to a recognizance entered into by one of the courts of this State. Gantt, J., expressed his views in a separate opinion in which a majority of the court concur, and it will be observed that his dissent to the opinion of Judge Sherwood, in the result of which the entire court concurred, was limited to so much of the opinion as announced that a non-resident witness duly subpoenaed in this State or having entered into recognizance under, the order of a court having criminal jurisdiction and complied therewith, is not entitled to his mileage.

, So it is apparent from that ease that the distinction is clearly drawn as to the service and execution of process in this State and its service or execution in a foreign State. In other words, the proposition in which a majority of the court concurred, announced in the opinion by Judge Gantt, was that a non-resident witness who had been duly subpoenaed in this State or having entered into a recognizance under the order of a court having criminal jurisdiction, and complied therewith, was entitled to his mileage from his place of residence.

There is a marked distinction between a witness who has been duly subpoenaed or recognized in this State and one upon whom the process was served at his place of residence in a foreign State. In the first place, the service of the subpoena in the foreign State is of no force and effect, and is just the same as if no process at all had been served, and the witness under that sort of service might return to this State and would not by reason of it be subject to the compulsory process of attachment. But on the other hand, a non-resident witness who is duly and legally served with a subpoena in this State, while no compulsory process could be issued for him to his place of residence in a foreign State, yet if he should return to this State he would be subject to such compulsory process the same as any other witness residing in the State, hence it may very well be argued that the non-resident witness who- has been duly served in this State with process, attends the trial of a cause in obedience to the commands of such subpoena, for the very reason that the moment he visits this State, it matters not how far distant from the place of trial, he could be compelled to obey the process so served upon him. By service of the process in this State, while the court was powerless to compel obedience to it, as long as the witness remained in a foreign State, yet the court did acquire such jurisdiction over the person of the witness as to enable it to compel obedience to the commands of such process in any county of this State where the witness may be found, hence the witness who has been served with process in this State, though a resident of a foreign State, who attends the trial, may very appropriately say to the court that he did not care to be deprived of his liberty in visiting the State when occasion required in order to avoid the issuance and service of compulsory process, therefore, I am here and have traveled from my residence in a foreign State in obedience to the process which was properly and legally served upon me in this State. It follows under such circumstances as was ruled in State ex rel. v. Seibert, supra, the State could not be heard to complain that a witness, though living in another State, had obeyed the commands of its process and submitted to the jurisdiction of the court by reason of the proper and legal service of it in this State. However, that is not this case. The claim for mileage by the witnesses in this proceeding is based upon the service of process at their places of residence in another State. As before stated, this process and the service of it was without any force or effect, hence it must logically follow, there being no process served, their mileage traveled and attendance upon court was voluntary, and not in obedience to the commands of any process issued by the court.

This court has uniformly held that no costs can be taxed except such as the law in terms allows, and it being essential that the witnesses actually and necessarily travel the mileage in .consequence of a subpoena legally served upon them, and there being no legal service of process upon the witnesses claiming fees in this case, it must be ruled that the auditor was warranted in refusing to allow the fees for such witnesses as certified by the judge and prosecuting attorney.

III. This brings us to the last proposition involved in this proceeding, which is embraced in the contention of the relators that the persons claiming fees for jury service in this proceeding are entitled to their fees as jurors, notwithstanding they were not on the regular panel, nor were they on the panel of forty qualified jurors to try the case in which the fee bill is certified. This claim is predicated upon section 3784, Revised Statutes 1899, which provides: “Each juror not on the regular panel and summoned to sit as a juror in any criminal cause wherein' the offense charged is punishable with death, or by imprisonment in the penitentiary for life, or for not less than a specified number of years and no limit to the time, shall be allowed the sum of one dollar per day for each day that he may be in attendance on said court, and five cents per mile for each mile traveled in going to and returning from said court, whether he sits in the trial of the cause or is challenged off. ’

After a careful consideration of the provisions of that section we have reached the conclusion that it only embraces such jurors as were qualified upon the panel of forty from which the panel of twelve to try said cause were to be selected. It is apparent from the terms employed in the section above quoted that the term “juror,” as used in that section, means a qualified juror. This is made manifest by the closing terms of the section which says that the juror shall be entitled to his per diem and mileage “whether he sits in the trial of the cause or is challenged off.” It is clear that this term would be absolutely meaningless if every person who was summoned in pursuance of the venire issued by the court to serve as jurors, were embraced in the provisions of that section and entitled to claim for jury service, notwithstanding they were not on the qualified panel of forty. That section simply means that the jurors who are not on the regular panel but are retained on the qualified panel of forty jurors from which the jury to try the cause must be selected, are entitled to their per diem and mileage, notwithstanding they may be challenged and not required to sit in the trial of the cause. So it must be ruled upon this proposition that the auditor was warranted in refusing to allow jurors who were not on the qualified panel of forty fees as claimed in the fee bill in this proceeding.

We have thus indicated our views upon the questions presented by the record before us, and while it may be said that the conclusion reached upon the interpretation of the statutes in respect to fees of jurors and witnesses may operate a hardship and in many instances obstruct or at least retard the successful prosecution of criminal causes in this State, it must be remembered that the only duty imposed upon the courts of the country is to interpret and declare the law as it exists, and not make it. If the statutes of this State in their present form deal with jurors and witnesses in criminal cases unjustly, remedies for such imperfections must be sought in the legislative department of our state government.

Entertaining the views as herein expressed it results in the conclusion that the peremptory writ of mandamus should be denied, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, P. J.

license: Public Domain

text:
    ALLEN, Appellant, v. CAPE BREWERY & ICE COMPANY.
    Division Two,
    May 22, 1906.
    1. RECOGNIZANCE: Forfeiture: Appearance: Renewal Where a defendant enters into a recognizance before a justice of the peace for his appearance on a day certain, and on that day appears, and the cause is by agreement postponed, and the bond . is not renewed, the recognizance is discharged, and thereafter the justice has no jurisdiction to declare a forfeiture.
    2. FALSE IMPRISONMENT: Recognizance: Forfeiture: Arrest of Principal. An information being lodged with a justice of the peace charging plaintiff with a violation of the dramshop laws, he was arrested in December, and he as principal and the defendant as surety entered into a written recognizance for the appearance of plaintiff on a day certain in January. On that day he did appear, and by agreement the case was postponed to another day, with no further steps taken to secure his appearance, and the case was postponed from time to time till October, when the case was called for trial, but plaintiff made default, and recognizance was forfeited, and a copy of the docket entries in relation to the cause and forfeiture certified to the circuit court, where the forfeiture was set aside and the plaintiff discharged. Before his discharge, however, the defendant surety caused plaintiff to be apprehended and delivered to the sheriff, and he now brings this suit against the surety for false imprisonment. Held, that as plaintiff appeared at the date certain in January on which the recognizance called for his appearance, and the case was by consent of parties postponed without any steps being taken to secure his appearance, the recognizance was discharged, and could not be forfeited in October, the time to which the case was finally postponed, but the forfeiture by the justice was without jurisdiction and void, and there was no authority for plaintiff’s arrest and delivery to the sheriff. Nor was any more authority conferred on the circuit court with respect to the recognizance than the justice had, and the scire facias issued out of the circuit court was without jurisdiction and void. Held, also, that, under the evidence, plaintiff was entitled to have his case for false imprisonment go to the jury.
    Appeal from Cape Girardeau Circuit Court—Hon. Henry G. Riley, Judge.
    Reversed and remanded.

      Edw. D. Hays for appellant.
    (1) False imprisonment is an unlawful physical restraint- by one of another’s liberty. Bishop, Non-Contract Law, sec. 206. (2) If an officer or private person, assuming to act by command or permission of the law, detains one without its authorization in fact, whether believing himself to have the authority or not, he must answer to the arrested, person for false imprisonment. Bishop, Non-Contract Law, sec. 209. (3) Liability is not confined to the party actually restraining and confining plaintiff, but extends to all persons instigating the unlawful seizure. Monson v. Rouse, 86 Mo. App. 97. (4) The arrest of Allen was without authority. Allen appeared for trial according to the term's and condition of his recognizance. The recognizance could not be made to require more than one appearance ‘ ‘ at the time and place appointed, ’ ’ and any other condition or requirement imposed by the justice is void. R. S. 1899, secs. 2759, 2762; State v. Bobb, 39 Mo. App. 543; State v. Lewis, 61 Mo. App. 633; State v. Mackey, 55 Mo. 51. Therefore, after the day to which the case was continued when Allen gave bond, namely, January 22, 1900 (Allen having appeared, as the record shows), defendant was no longer bound as surety, and the arrest was wholly without authority. State v. Bobb, 39 Mo. App. 543; State v. Lewis, 61 Mo. App. 633. Allen did not neglect to appear so as to violate the provisions of the recognizance. R. S. 1899, sec. 2793. The proceedings on the forfeiture were void. R. S. 1899, secs. 2793-2798. (5) “Evidence tending to show that plaintiff was restrained of his liberty at defendant’s instance, by reason of process which a magistrate had no right to issue in the premises, is sufficient to sustain an action for false imprisonment.” Borger v. Langenberg, 97 Mo. 390. In a case for false imprisonment it is only necessary to show intentional detention of the person by another not authorized by law. McCaskey v. Garrett, 91 Mo. App. 354. (6) The court erred in sustaining a demurrer to the evidence. Plaintiff is entitled to have the facts reviewed as favorably to him as the testimony permits, and to enjoy the benefits of every reasonable inference therefrom. Buck v. Rail.road, 108 Mo. 179; Pauck v. St. L. Dressed B. Co., 159 Mo. 467; Shermerhorn v. Herald, 81 Mo. App. 461; Dorsey v. Railroad, 83 Mo. App. 528; Steube v. Christopher S. A. I. F. Co., 85 Mo. App. 640.

      Robert L. Wilson for respondent.
    If the process on its face is regular, and from a court or magistrate having the jurisdiction, an arrest will be justified, though prior steps were erroneous. There will be no liability to one authorized to make the arrest, even though the one arrested is privileged from arrest. The writ of scire facias issued from the office of the clerk of the Madison county circuit court was regular. 3 Bishop on Non-Contract Law, secs. 211, 217; Page v. Citizens Banking Company, 36 S. E. 418; Cot-tam v. Oregon City, 98 Fed. 570. By virtue of the writ of scire facias the respondent had a legal right and it was his bounden duty to deliver appellant to the sheriff of Madison county. By its act in executing the recognizance it had taken him from the law, it was its duty to return him to the law when he did not return of his own volition. R. S. 1899, secs. 2550, 2551; Wyatt v. Hill, 71 Yt. 468. The writ of sci. fa. issued by the circuit clerk being valid in form, the act of defendant taken by authority of the statute in delivering the appellant into custody of the law does not subject it to an action for false imprisonment. The writ of sci. fa. can not be attacked collaterally, and it would be a perfect shield to respondent even if it had caused the clerk to issue it, which it did not. Hallock v. Dominy, 69 N. Y. 238; Whitten v. Doolittle, 68 Fed. 405;Kingsburry Case 106 Mass. 225. By virtue of sections 2550 and 2551, Revised Statutes 1899, the sureties on a forfeited recognizance are created quasi-ministerial officers and have a legal right to take the principal in charge and deliver him to the sheriff, and in doing so are not subject to action for false imprisonment. Want of lawful authority to make an arrest is an essential element to the offense in an action for false imprisonment. Limbeck v. Gervy, 39 N. Y. Supp. 95; Atwood v. Atwater (Neb.), 61 N. W. 574; Mesemore v. Ihlenfeídt (Wis.), 62 N. W. 552; Bierwirth v. Peironnet, 65 Mo. App. 431; Taaffe v. Slevin, 11 Mo. 507; Lark v. Bonde, 4 Mo. App. 186.
   BURGESS, P. J.

is an action by plaintiff against the defendant for five thousand dollars actual and five thousand dollars punitive damages for false imprisonment. After all of plaintiff’s evidence was in the defendant asked an instruction in the nature óf a demurrer thereto, and directing the jury to return a verdict for defendant, which instruction the court gave, and the jury returned a verdict as directed. After ineffectual motion to set the verdict aside and for a new trial, plaintiff appeals.

On the 15th day of December, 18991, the prosecuting attorney of Madison county filed with a justice of the peace of said county an information charging the plaintiff herein with unlawfully selling intoxicating liquors to a minor, under the age of twenty-one years, without the written permission of the parents, master or guardian of said minor first had and obtained. On the same day the information was lodged with the justice of the peace, he issued a warrant for the arrest of Allen, by the authority of which said Allen was duly arrested on the 18th day of December, 1899, and taken before said justice, and on the 21st day of December, 1899, he entered into a recognizance to the State of Missouri in the sum of one hundred dollars, as principal, with the Cape Brewery & Ice Company and H. R. Wilier as his sureties, for his appearance personally before said justice of the peace on the 22d day of January, 1900, in the county of Madison aforesaid, to answer the charge alleged against him in said information and not depart without leave of said justice, which recognizance was then and there approved and filed with said justice. The cause, by consent of the parties, was continued from time to time, the last continuance being to the 4th day of October, 1900. On that day the defendant therein was called for trial, but made default. The sureties upon his recognizance were also called, but made no response; whereupon the justice entered a forfeiture of said recognizance and ordered that the recognizance and a copy of the entries upon his docket in relation to said cause and forfeiture be certified to the circuit court of said county of Madison, which was done by him in conformity to said order. Thereafter, before fina] judgment was rendered upon said recognizance, the Cape Brewery & Ice Co. and H. R. Wilier, sureties upon said recognizance and bond, procured from the clerk of said circuit court a certified copy thereof, and defendant company, by its agent, caused Allen to be apprehended and delivered to George Heltibrand, sheriff of Madison county.

On September 26,1901, the forfeiture of the recognizance was set aside by the circuit court of Madison county, and Allen was released from custody. Plaintiff then instituted this suit.

It is claimed by plaintiff that his arrest and surrender to the sheriff by the defendant company was without authority, because he appeared for trial before said justice on the 22d day of January, 1900, according to . the terms and conditions of said recognizance, and that it and all proceedings thereon were without authority and void.

The effect of the recognizance was to bind the defendant to appear before Justice Alumbaugh on the 22d day of January, 1900, at which time he appeared before said justice in compliance with the terms and conditions of the recognizance, but the cause was post-, poned to another day, and finally until the 4th day of October, 1900, but no default or judgment of forfeiture was entered by the justice until the failure of Allen to appear upon the day last named. It was then too late to render judgment of forfeiture, as the recognizance had expired. Section 2759, Revised Statutes 1899, provides that for good cause shown, the justice may postpone the trial of the cause to a day certain, in which case he shall require the defendant to enter into a recognizance, with sufficient security, conditioned that he will appear before the justice at the time and place appointed, then and there to answer the charge alleged against him in the information. Section 2760, Revised Statutes 1899, provides that, if the defendant shall fail or refuse to enter into recognizance, the justice shall commit him to the common jail of the county, or other prison, there to remain until the day fixed for the trial.

As Allen appeared before the justice on the 22d day of January, as required by the recognizance, to answer the charge preferred against him in the information, and remained until the case had been postponed, by agreement, to another day, and no further steps were taken to secure his appearance before the justice, the recognizance was discharged and could not be forfeited at the time to which the case was finally postponed, to-wit, October 4, 1900, [State v. Mackey, 55 Mo. 51.] It follows that the default and forfeiture entered by the justice were without jurisdiction, and void, and there was, therefore, no authority for Allen’s arrest and delivery to the sheriff.. Nor was there any more authority conferred upon the circuit court with respect to the recognizance, by reason of the filing of a certified copy of the docket entries of the justice and of the recognizance in the office of the clerk of the circuit court of Madison county than the justice himself had, and the scire facias issued was also without the jurisdiction of the circuit court, and void. Under the evidence the plaintiff was entitled to have his case go to the jury.

The judgment is reversed and the cause remanded.

All concur.


text:
    CORNELIA ANDERSON v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    May 22, 1906.
    1. NEGLIGENCE: Alleging Specific Acts: Passenger: Collision. tinder the statute it is not necessary to allege the specific acts of negligence which resulted in the death of a passenger on defendant’s train; but a general allegation that a collision between that and another of defendant’s trains was caused by the negligence and unskillfulness of defendant’s servants and that such collision resulted in his death, is sufficient.
    2. -: Passengers: Those Remaining on Train. Persons rightfully on the train as passengers when it stops at a station who desire to extend their journey further than was originally contemplated and remain on the train for that purpose, whether they have paid their fare or notified the conductor of their intention to proceed further or he had knowledge of such intention or not, are passengers. Every one riding in a railroad car is presumed prima facie to be there lawfully as a passenger, having paid, or being liable when called on to pay, his fare, and the burden is on the carrier to prove affirmatively that he was a trespasser.
    3. -:.-: Inference Drawn From Facts. Nor is it necessary, in order to submit the cause to the jury, to show by positive or direct evidence that the passenger, who'had paid his fare to the point where the train stopped and where the collision occurred, purposed to continue his journey to the station where was his home and remained on the train for that purpose, but such purpose may be inferred from the facts and circumstances, and if they, in the estimation of the jury, authorize such an inference, then he was a passenger. Plaintiff’s husband had paid his fare from a certain station to the one where the colliison occurred; the train remained there twenty-five or thirty minutes, and he remained in the passenger coach; his home was at the next station beyond; at the time of the collision the train had started to move. Held,, that these were facts from which the jury might properly infer that he remained in the coach, not as a trespasser, but for the purpose of proceeding as a passenger.
    4. -: Of Brakeman: Damages: Definite Sum of $5,000. A brakeman is a servant engaged in the operation and management of a train, and is such a servant as is contemplated by section 2864, Revised Statutes 1899, and if the death of plaintiff’s husband was occasioned by his negligence she is entitled to recover the definite sum of $5,000, and the court did not err in refusing an instruction authorizing a verdict for a less sum.

      Appeal from Cooper Circuit Court.— Hon. ■ Jas. E. Hasell, Judge.
    Affirmed.
    ilí. L. Glardy, Wm. S. Shirk and John Gashman for appellant.
    (1) The court erred in refusing to sustain defendant’s objection to the introduction of any evidence. The petition is fatally defective. It states no act of negligence against defendant. General averments of negligence will not meet the requirements of the law. Gurley v. Railroad, 93 Mo. 450; Waldhier v. Railroad, 71 Mo. 514; Harrison v. Railroad, 74 Mo. 364; Edens v. Railroad, 72 Mo. 212; Troth v. Norcross, 11 Mo. 630; Jacquin v. Railroad, 57 Mo. App. 340; Leslie v. Railroad, 88 Mo. 50; Marshall v. Railroad, 78 Mo. 610; Pier v. Heinrichoffen, 52 Mo. 333; Moss v. Railroad, 49 Mo. 167; Whitehead v. Railroad, 22 Mo. App. 60. This rule applies in cases of passengers. Leslie v. Railroad, 88 Mo. 50; Marshall v. Railroad, 58 Mo. 50; Jacquin v. Railroad, 57 Mo. App. 340. A carrier of passengers is not an insurer, and acts complained of must state they were negligently committed. Waldhier v. Railroad, 71 Mo. 514. The facts in this case show that plaintiff had paid his fare from Marshall to Nelson and gave no notice of his intention to go further. He ceased to he a passenger upon arrival at Nelson and sufficient time to depart from the train. After this defendant owed him no duty except to not knowingly and willfully injure him. Under this state of the proof the petition was wholly insufficient to authorize a recovery. Authorities in point 1, supra; Smith v. Railroad, 113 Mo. 70; Earning v. Railroad, 157 Mo. 507. (2) After a reasonable time had elapsed for plaintiff to leave the train defendant owed him no further duty. The conductor was not bound to make special inquiry to ascertain if those at their destination had taken their leave. Straus v. Railroad, 75 Mo. 185; Culberson v. Railroad, 50 Mo. App. 561; Hendricks v. Railroad, 136 Mo. 548; Railroad v. Cohn, 53 S. W. 698. Before deceased was entitled to the protection due to passengers, he must show that he made a second offer to become' a passenger and was accepted as such by defendant. Schaefer v. Railroad, 128 Mo. 64; Schepers v. Railroad, 126 Mo. 665. (3) Under the circumstances of this case the term “passenger” had a peculiar technical legal meaning and should have been explained. Harmon v. Donohoe, 153 Mo. 263; State v. Strong, 153 Mo. 548; State v. Sprague, 149 Mo. 409; Morgan v. Durfee, 69 Mo. 469; Wiser v. Chesley, 53 Mo. 547; Atteberry v. Powell, 29 Mo. 429; Bowles L. S. Co. v. Hunter, 91 Mo. App. 333; Rowen v. Railroad, 82 Mo. App. 24; Day v. Railroad, 81 Mo. App. 471; Jordan v. Webber M. Co., 72 Mo. App. 325; Hester v. Ins. Co., 69 Mo. App. 186 ; Horine v. Bone, 69 Mo. App. 481; Dry Goods Co. v. Schooley, 66 Mo. App. 406; Mason v. Stocks Yards Co., 60 Mo. App. 93; Railroad v. Dawley, 50 Mo. App. 480.

      W. G. & G. T. Pendleton and W. M. Williams for respondent.
    (1) The petition contained proper averments of negligence. The act complained of was set forth with reasonable particularity, and then charged to have been negligently done. These averments are identical with those heretofore approved by this court. • An allegation that defendant “did by the servants and agents in charge of said car, and its servants in charge of another of the cars, so carelessly manage and conduct said cars as to cause and suffer the same to collide,” has been held sufficiently specific. Malloy v. Railroad, 173 Mo. 79; Magrane v. Railroad, 183 Mo. 129; Rinard v. Railroad, 164 Mo. 270; Sullivan v. Railroad, 97 Mo. 113. Besides, defendant omitted to move to make the petilion more definite and certain, but confined its objection ■on this point to the introduction of any evidence by the plaintiff. (2) Defendant’s demurrer to the evidence was properly overruled, (a) It was admitted that plaintiff’s husband was killed by the collision between defendant’s trains. The collision itself was prima facie evidence of negligence, and the testimony was far from demonstrating that it could not have been avoided by proper care and attention. 2 Thompson on Negligence, sec. 2754; Hutchison on Carriers (2 Ed.), see. 800; Magrane v. Railroad, 183 Mo. 128; Wilbur v. Railroad, 110 Mo. App. 694. (b) The court could not say as a matter of law that there was no evidence tending to show that plaintiff’s husband was a passenger on defendant’s train at the time he was killed, even though the jury should accept the conductor’s story as true, which they were not bound to do. The fact that deceased was in the car provided by defendant for the accommodation of its passengers authorized the presumption that he was rightfully there. “Every one riding in a railroad car is presumed prima facie to be there lawfully as a passenger, having paid or being liable to pay his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser.” Railroad v. Book, 98 Am. Dec. 234; Railroad v. Thompson, 9 N. E. 234; Gillingham v. Railroad, 11 L. R. A. 798. {3) The judgment was for the right party. There was practically no dispute about the facts upon which the right of plaintiff’s husband to be treated as a passenger depends, and under such conditions it is immaterial, even though instructions should assume the existence of facts clearly proven. Carrol v. Railroad, ‘88 Mo. 239; Albert v. Railroad, 106 Mo. App. 643. (
   FOX, J.

There was a verdict and judgment for the plaintiff in the Cooper Circuit Court, and this cause :is here upon appeal by defendant. The judgment in this cause is predicated upon the following acts of negligence complained of in the petition filed by plaintiff:

“Plaintiff states that she is the widow of Robert Anderson, deceased. That the defendant is and was at the time hereinafter mentioned a corporation duly organized and existing under and by virtue of the laws of the State of Missouri, and as such running and operating a railroad in said State through and from the city of Nelson, in Saline county, to the city of Blaekwater, in Cooper county; that defendant in the operation of said. railroad is and was at said time a common carrier of passengers for hire between said points.
“That on the 5th day of June, 1902, the said Robert Anderson entered into a passenger car of defendant on its said railroad at said city of Nelson, a station on said railroad, as a passenger for transportation over said railroad to said city of Blaekwater, and as such passenger was lawfully in said car which was part of and situated at or near the rear of a train of cars attacked to a locomotive headed east on said railroad. That while said Robert Anderson was a passenger on defendant’s said train as aforesaid, and while said train and locomotive was standing on defendant’s railroad track at said station of Nelson, another train of cars drawn by a locomotive also headed east and on the same railroad track as aforesaid approached at high speed and ran into the rear end of and collided with the first above-mentioned train, upon which plaintiff’s said husband was a passenger, with great force and violence, completely wrecking and demolishing the car in which the said Robert Anderson was situated, and wounding and bruising the said Robert Anderson, from the effect of which he then and there died.
“That the aforesaid ear, train of cars and locomotives at the time aforesaid belonged to and were being run, conducted and managed by officers, agents, servants and employees of the defendant, and the injury resulting in the death of the said Eobert Anderson as aforesaid was occasioned by the negligence and unskillfulness of said officers, agents; servants and employees whilst so running, conducting and managing said car, trains of cars and locomotives.
“Wherefore plaintiff has been damaged in the sum of five thousand dollars, for which, together with costs of suit, she prays judgment against defendant.”

The answer to this petition consists of a general denial, followed by a special denial of any negligence on the part of the agents and servants of defendants, and a statement that whatever injuries plaintiff’s husband may have received, were the result of and occasioned by puré accident, without negligence on the part of the agents and servants of defendant.

The trial of this cause was had on the 29th day of January, 1903. There is practically 'no dispute as to what the testimony tended to prove in this cause. There is no controversy over the fact that Eobert Anderson was plaintiff’s husband, and there is no contention that the suit was not instituted within the statutory period, that is, six months after his death. The testimony upon the trial tended to establish substantially the following state of facts: That Eobert Anderson resided at Blackwater, a town and station on defendant’s railway; that he left Blackwater on the afternoon of June 5, 1902, on defendant’s west-bound passenger train for the city and station of Marshall on said railway; that he reached Marshall, and later on the same afternoon took passage on another of defendant’s trains returning east toward Blackwater, his home; that the latter train reached the station of Nelson between Marshall and Blackwater late on said afternoon; that the train (a mixed stock and passenger train) stopped at Nelson twenty-five or thirty minutes, loading and unloading freight, and taking on stock cars; that immediately after this train at Nelson started on its journey toward Blackwater it was run into in the rear by another train going in the same direction, resulting in a collision and a wreck of the passenger coach of the forward train; that after the wreck rescuers found Robert Anderson in the wrecked coach, badly mangled, and that he died a few minutes after his removal from the wreck. The conductor of the train deceased was on testified that the latter paid his fare from Marshall to Nelson. It was admitted by defendant at the trial that the railway and trains mentioned were the property of the defendant, that said trains at the time of the collision were being operated by defendant’s servants, and that Robert Anderson died as the result of injuries caused by said wreck.

The evidence further showed that the train Anderson was on was a regular train, running several hours behind its-schedule time at Nelson; that according to the defendant’s regulations, it was the duty of its servants operating said train, when it stopped at Nelson, to send a signal man to the rear, and by the use of a signal flag, and by placing torpedoes on the track, warn approaching trains of the presence of this train at Nelson. The conductor of the forward train testified that he sent a brakeman back with a flag for the purpose of signalling the following train, but there was no evidence that he did signal said train. The brakeman was not present to testify at the trial. The engineer of the rear train testified that he saw no flag and heard no torpedoes as he approached Nelson, and his testimony and that of witnesses for the plaintiff showed that a few yards west of the Nelson depot the railway makes a sharp curve through a deep cut, so that an engineer going east could not see a train at the depot until he approached very close.

At the close of the evidence the defendant requested the court to give hn instruction in the nature of a demurrer to the evidence which substantially told the jury that under the pleadings and all the evidence in the case the plaintiff was not entitled to recover and the jury will find for the defendant. This request was denied and the court refused to give the instruction.

At the request of the plaintiff the court gave the following instructions:

“1. The jury are instructed that if they believe-from the evidence that on or about June 5,1902, Robert Anderson was a passenger on one of defendant’s trains, and that in consequence of the negligence of the defendant’s servants, agents and employees whilst running, conducting or managing said train of cars, another train of cars going in the same direction upon defendant’s said railroad ran into and collided at the station of Nelson with the car in which said Anderson was, and he was thereby killed, and that said collision occurred and his death resulted from the carelessness and negligence of defendant’s servants in running, conducting or managing said train on which he had taken passage, or the train colliding therewith, and that plaintiff is his widow, and this suit was begun within six months after his death, they will find the issue for the plaintiff and assess her damages at the sum of five thousand dollars.
“Even if the jury should find from the evidence that Robert Anderson got on defendant’s train at Marshall and only paid his fare to Nelson, still if the jury believe from all the facts and circumstances in evidence that he determined to continue his journey to Blackwater and remained on said train for that purpose, the fact that he only paid his fare from Marshall to Nelson is no defense to this suit.
“2. If the jury believes from all the evidence in the case that the death of Robert- Anderson was the result of mere accident or misadventure, and that the same was not caused by any negligence on the part of defendant or its servants, then they must return a verdict for the defendant.”

The defendant requested the court to instruct the jury as follows:

“1. If the jury find from the evidence that the-accident by which plaintiff’s deceased husband was killed was not occasioned by, or did not result from the negligence, unskillfulness or criminal intent of any of the agents, servants or employees of defendant, whilst running, conducting or managing the locomotive and train of cars, which collided with the car on which her said husband was seated, or whilst running, conducting or managing the locomotive and train of cars, on which her said husband was a passenger, but that such accident was caused and brought about by the rear brakeman of the train on which plaintiff’s deceased husband was a passenger, in failing to properly guard such train from being run into, by a train following it, then if the jury find for the plaintiff, they are not- bound to assess her damages at just the sum of five thousand dollars, no more nor less, but may assess the same at any sum not exceeding the sum of five thousand dollars.
“If the jury find for the plaintiff, then in assessing her damage, they can only assess such damages at such sum as will compensate her for the pecuniary injury necessarily resulting to her from the death of her husband; the jury cannot allow her anything on account of any pain, sorrow or mental anguish which she may have suffered on account of her said husband’s death.
“And in arriving at the pecuniary value of her husband’s life to her, they should take into consideration his age at the time of his death; and also the probable length of time that he may have lived after the date of his death; and also his power, ability and capacity to earn money, and acquire property'at the time of his death; also his moral, social and domestic habits.
“And if after considering all these matters, under the evidence you should find that the pecuniary value of his life was worth nothing to the plaintiff, then your verdict will he for the defendant.
“But if after considerMg all these matters, you should find that the pecuniary value of his life was worth something to plaintiff, then you will find for the plaintiff and assess her damages at such sum only as will, under all the evidence in the case, compensate her for the pecuniary loss which may have- necessarily resulted from her husband’s death.
“2. The court further instructs the jury, that it is alleged m plaintiff’s petition as the ground work of her action that the plaintiff’s husband, Robert Anderson, was a passeger upon defendant’s train, at the time he received the injury which resulted in his death, and the burden of proving that he was such passenger is upon the plaintiff. And unless you believe and find from the preponderance of the evidence that he was, at the time he was killed, on board of the train, as such passenger, as hereinafter defined, then the plaintiff cannot recover herein, and the jury will find for the defendant. And if the jury find from the evidence that plaintiff’s said husband had taken passage on its train at Marshall, and had paid his fare to said station of Nelson, and after the arrival of said train at Nelson, he remained on board the train, talking to a friend,( without notifying the conductor of said train that he wished to go further on said train, and that the conductor of said train did not know that he remained aboard said.train after it arrived at Nelson, then the plaintiff’s husband, Robert Anderson, was not a passenger on said train.”

Which instructions so requested by the defendant were by the court refused, to which action of the court timely objections and exceptions were preserved, Whereupon the cause was submitted to the jury and they returned a verdict finding the issues for the plaintiff and assessing her damages at the sum of five thousand dollars. Defendant within the proper time filed its motion for a new trial, which, was by the court overruled. Judgment was entered in accordance with the verdict and from this judgment defendant in due time and proper form prosecuted this appeal to this court and the record is now before us for consideration.

OPINION.

The record in this cause discloses numerous assignments of error on the part of appellant. We will treat of such complaints in the order suggested by the brief and give them such consideration as their importance merit and demand.

I. It is insisted that the petition in this cause is fatally defective and that the court erred in refusing to sustain defendant’s objection to the introduction of any evidence. This insistence is predicated upon the contention of the defendant that the averments in the petition of the negligence complained of are too general and do not meet the requirements of the law.

We have carefully considered the petition upon which this proceeding is predicated and we are unable to agree with learned counsel for appellant that this petition is fatally defective or fails to state a good cause of action. The recovery in this cause is sought under the provisions of section 2864, Revised Statutes 1899, which substantially provides that where any passenger shall die from any injury resulting from or occasioned by the negligence and unslrillfulness or criminal intent of any officer, agent, servant or employee whilst running, conducting or managing any locomotive, cars or train of cars, the owner of such railroad shall forfeit and pay for every passenger so dying the sum of five thousand dollars. Then follow the provisions of said section designating the persons who may sue for and recover such forfeiture.

The petition in this case alleges with sufficient particularity every essential element necessary to support a recovery under the provisions of the section above cited. It expressly avers that at a certain time Robert Anderson, husband of the plaintiff, was a passenger for transportation over defendant’s railroad and that while said Robert Anderson was a passenger on defendant’s train of cars and whilst said train was standing on defendant’s railroad track at the station of Nelson another train of cars drawn by a locomotive also headed east and on the same railroad track of defendant, approached at high speed and ran into the rear end of and collided with the first above-mentioned train upon which plaintiff’s said husband was a passenger, with great force and violence, completely wrecking and demolishing the car in which the said Robert Anderson was situated, and wounding and bruising the said Robert Anderson, from the effects of which he then and there died. Then follows a specific allegation that the aforesaid cars, trains of cars and locomotives at the time aforesaid belonged to and were being run, conducted and managed by officers, agents, servants and employees of the defendant, and the injury resulting in the death of said Robert Anderson aforesaid was occasioned by the negligence and unskillfulness of said officers, agents, servants and employees whilst so running, conducting and managing such cars, train of cars and locomotives.

We are unable to conceive under the uniform rulings of this court in what particulars the acts of negligence complained of should have been more specific. If plaintiff’s husband was a passenger upon the train of cars of the defendant, then he was entitled to be safely transported to the point he purposed going, and if he was killed by reason of the train on which he was traveling being run into and wrecked by another of defendant’s trains, and such collision was occasioned by the negligence or unskillfulness of the officers, servants or employees in running, conducting and managing said train, it was not essential to allege the particular acts of any particular servant or employee which occasioned the collision, but it is only necessary to allege gen-ally the collision and that such collision was occasioned by reason of the negligence and unskillfulness of those operating and managing the train, and that the injuries and death of plaintiff’s husband were the result of such negligence and unskillfulness.

In view of the recent expressions of this court applicable to this subject, and the questions of pleading involved in the case at bar, we deem it unnecessary to burden this opinion with a review of all the authorities touching this proposition presented for consideration. In Rinard v. Railroad, 164 Mo. 270, a recovery was sought for the killing of plaintiff’s husband, caused by a collision of two trains upon defendant’s road near Galt in Grundy county, Missouri. The collision of the two trains in that case was alleged in a very similar manner to the allegations of the collision of the case in hand, which was followed by a charge in the petition that the collision was the result of and occasioned by the negligence of the officers, agents, servants and employees of defendant whilst running, conducting and managing said locomotives, cars and trains aforesaid. The sufficiency of the petition in that case was challenged and such challenge was fully considered, and in treating of it this court thus stated the proposition and announced its conclusion upon the question presented: “It is next insisted that the motion to require the plaintiff to make each count of the petition more definite and certain, ‘ by specifying the officer, agent, servant or employee of defendant whose alleged negligence occasioned the death of plaintiff’s husband, and also by specifying in what respect and upon what particular train such officer, agent, servant or employee was negligent, ’ should have been sustained. In Gurley v. Railroad, 93 Mo. 445, Black, J., delivering the opinion of this court, held that ‘the acts done or omitted, which constitute the negligence complained of, should be stated with a reasonable degree of particularity.’ And in Sullivan v. Railroad, 97 Mo. l. c. 117, it was insisted that the petition was bad under the rule laid down in the Gurley case, but the same learned judge said: ‘The rule of that ease is, that it is good and sufficient pleading to set out and describe the acts done with a reasonable degree of particularity, and then allege that they were negligently done. In this case the petition sets out the circumstances as a matter of inducement, to the unnecsary extent of stating the names of the conductor and engineer in charge of the train; it states that Sullivan was run upon and killed by the designated train, and that his death was occasioned by the negligence of the defendant’s servants while running, conducting and managing the locomotive and train of cars. The petition is clearly within the rule of the case before cited. ’ In Pope v. Railroad, 99 Mo. 400, the negligence charged was general. The sufficiency of the petition was challenged. Brace, J., said: ‘The objection urged against it, however, that it does not specify the particular act of negligence'which it is claimed caused the injury, is answered by the case of Sullivan v. Railroad, 97 Mo. 113; Johnson v. Railroad, 96 Mo. 340.’ These cases have been cited approvingly and followed in Dickson v. Railroad, 104 Mo. l. c. 502; Shaw v. Railroad, 104 Mo. l. c. 656; LeMay v. Railroad, 105 Mo. l. c. 370. In all these cases the negligence was charged in general terms, and followed substantially the language of the statute. [R. S. 1889, sec. 4425.] The negligence charged in the case at bar is as specific as that charged in the Sullivan case, supra, or in any of the cases that have followed it, and is a substantial compliance with the requirements laid down in the Gurley case.”-

To the same effect is Malloy v. Railroad, 173 Mo. 75. That was also a case in which the injuries complained of resulted from a collision between the car upon which the plaintiff was riding as a passenger and another car upon the track of the defendant. -In that case the collision alleged and the negligence charged in the petition was that the defendant ‘ ‘ did, hy the servants in charge of said car and its servants in charge of another of the cars, so carelessly manage and control said cars as to cause and suffer the same to collide.” The complaint was urged in that case that the petition was not sufficiently broad, and this court very clearly and tersely responded to such complaint in the following language: “Certain it is that the collision was caused hy the negligence of some one or more of the defendant’s servants who were in charge of the cars, in one capacity or another, and directly connected with their movements. It follows that the petition is as broad as is necessary to support a recovery in this case, and that as it was not incumbent upon the plaintiff to charge the specific negligence of any particular servant, so it was not necessary for the plaintiff to show which servant so in charge of the cars was negligent, for the defendant was liable for the negligence of all such servants. ’ ’

II. It is earnestly urged that the court erred in refusing to give defendant’s instruction in the nature of a demurrer to plaintiff’s evidence and in refusing to instruct the jury to find the issues for the defendant at the close of all the evidence. The basis of that contention is predicated upon the theory that there was a failure of proof upon the case stated in the petition. In other words, that the testimony elicited upon the trial of this cause failed to show that plaintiff’s deceased husband was at the time of his death a passenger upon defendant’s train of cars. It is earnestly contended and ably argued that, hy reason of the testimony of the conductor that plaintiff’s husband had only paid his fare from Marshall to Nelson, when the train reached Nelson and stopped a reasonable length of time for the passengers on the train to alight, the relation of passenger and carrier as between plaintiff’s bnsband and defendant ceased.

We are unable to agree with counsel for appellant upon this insistence. Conceding for the purpose of the discussion upon this proposition, that the court and jury were bound to accept the conductor’s statement that plaintiff’s husband had only paid his fare to the station of Nelson, yet were not the facts and circumstances detailed in evidence sufficient to warrant the court in-submitting the question as to whether or not, after reaching Nelson or before reaching there, he concluded or determined to remain on the train and continue his journey to Blackwater, and that his remaining on the train was for that purpose? The testimony clearly shows that the home of the deceased was at Blackwater; his family was there and he had only left that place for Marshall a few hours previously and was at the time of the collision returning from the last-mentioned place on a train going towards his home. The coach in which the deceased was traveling stopped at Nelson 25 or 30 minutes before the collision; the testimony fails to show that he made any effort to alight from it and if he did alight from the car he must have returned, for he was found fatally injured in the coach in which he was traveling immediately after the collision.

It is conceded by appellant’s counsel that if plaintiff’s husband had stepped off the car and then stepped on again at Nelson, he would then have been entitled to protection as a passenger, whether the conductor knew he was on the train or not. However, it is contended that if he remained on the train for the purpose of continuing his journey to Blackwater, it devolved upon him to notify the conductor or for the conductor to have knowledge of his purpose to continue such journey before he was entitled to protection as a passenger. We are unable to give our assent to the views of counsel for appellant upon this proposition as to the law which should govern the relation of carrier and passenger. It was ruled in Barth v. Railroad, 142 Mo. 535, that when the train of a common carrier stopped at a station and passengers were permitted to alight, and the iron gate to the platform was opened, it was an invitation to the passengers to take passage thereon. If it be true that, when a common carrier stops its train of cars at the platform at one of its stations, such act upon its part is an invitation to passengers to take passage on the train, is it not equally true that an invitation is extended to those persons who are on the train and desire to ■extend their journey further than was originally contemplated, to remain on the train, and if in fact they •do remain on the train for such purpose, are they not in the eyes of the law entitled to the same protection as passengers as those who enter the train for the first time at such station?

There is no rule of law which requires a passenger, if he has only paid his fare to a certain point of destination, to leave the train at that point, but if he desires to ■continue his journey it is manifestly his right to remain in the car and when demanded of him, pay his fare to the place of destination. It is but common knowledge that persons traveling upon railroad trains very frequently do not alight and stop at the point of destination originally contemplated when they enter the car, hut proceed to some other point where business may call them, and under such circumstances they simply remain on the train and proceed with their journey, and in our opinion they are no less passengers in contemplation of law than if they had alighted from the train at the station originally contemplated, transacted business and re-entered the coach for the purpose of continuing their journey. The question in this case is not whether plaintiff’s husband had been afforded reasonable time to leave the train at the station to which he had paid his fare, but whether or not, if he purposed to go further, he was in duty bound, in order to preserve his protection as a passenger, to alight from the train and then Immediately re-enter it. We are of the opinion that this would he a useless and meaningless performance which the law does not impose upon any citizen in order to preserve his protection as a passenger upon the train of a common carrier.

The defendant in this case was a common carrier, and plaintiff’s deceased husband at the time of the collision was in the coach used by defendant for the purpose of transporting passengers; he resided at Black-water, and his family was there, and at the time of this collision the train had started to carry such passengers as were on it to other points of destination along its line. Under this state of facts the presumption must be indulged that plaintiff’s husband was lawfully in such coach. This principle was expressly ruled in Railroad v. Books, 98 Am. Dec. l. c. 234. It was there said that “every one riding in a railroad car is presumed prima facie to be there lawfully as a passenger, having paid, or being liable, when called on to pay, his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser. ’ ’ To the same effect is Railroad v. Thompson, decided by the Supreme Court of Indiana. [9 N. E. 357.] It was there said that the authorities abundantly prove “that one who is.on a train used for carrying passengers is, in the absence of countervailing evidence, presumed to be rightfully there as a passenger.” A similar ruling was made in Gillingham v. Railroad, 14 L. R. A. 798.

While it may be said that the jury in the trial of this cause were not bound to accept the testimony of the conductor that plaintiff’s husband had only paid his fare to Nelson, yet as before stated, conceding that they should accept such testimony as true, still, if deceased remained in the defendant’s coach for the transportation of passengers, for the purpose of proceeding to some other point on the line of defendant’s road, and with the intention of paying in money his usual fare .for such transportation to such other point, he was as much a passenger in contemplation of the law as though he had entered the train for the first time at the station of Nelson.

Upon the facts as developed in this case the court would not have been warranted in declaring as a matter of law that there was no evidence tending to show that plaintiff’s husband was not a passenger on defendant’s train at the time he was killed. It was not essential, in order to authorize the submission of this cause to the jury, to show by positive or direct evidence that plaintiff’s husband was a passenger at the time of the collision, or that it was his purpose to continue his journey further on from Nelson station; but if the facts and circumstances detailed in evidence were such as indicated the purpose and intention of deceased to proceed further on his journey from Nelson station, then the court would not have been authorized in disregarding the legitimate inference the jury were warranted in drawing from the circumstances detailed in evidence. Take the facts in this case, about which there is no dispute, and we are unable to see how to escape the conclusion that they authorized the submission of the cause to the jury. In the first place, the train stopped at Nelson station 25 or 30 minutes; there is an absence from the record of any testimony showing that the deceased alighted from the train, nor was there anything in his conduct or actions indicating that he desired or intended to get off the train. He remained in the passenger coach designed for the purpose of transporting passengers, and the conductor testified that at the time of the collision the train upon which deceased was traveling had started to move; still no effort on the part of the deceased to alight from this train; his home and family was at Blackwater, the place that he had left a few hours previously, to go to Marshall; the collision occurred while the train that he was upon was moving in the direction of his home; after the collision he was found in the coach where passengers should be. The actions and conduct of the deceased in this coach clearly manifested an intention and purpose on his part to remain in said coach as a passenger and pay his fare when demanded of him, and he did remain in it until it started to leave the station to which the-conductor says that he had paidhisfare. The coach on defendant’s train was for the purpose of carrying passengers, and if the deceased desired to proceed to his home at Blackwater he had the right to remain in said coach for that purpose, and he was not in any sense a trespasser in contemplation of law. The instruction in the nature of a demurrer to the evidence was properly denied by the court.

III. Complaint is urged that the court erred in refusing defendant’s instruction numbered 2. Counsel in their brief refer to this instruction as number 3, but the record discloses that the legal propositions are all embraced in instruction numbered 2. We have given such instructions so refused our careful consideration and have reached the conclusion that there was no error in the court denying appellant’s request. This instruction is reproduced in full in the statement of this cause, and the second subdivision of such instruction substantially announces as a legal proposition that if the deceased had taken passage on the train at Marshall, Missouri, and had paid his fare to the station of Nelson, it was essential after the arrival of said train at Nelson for the deceased to notify the conductor that he wished to go further on said train; then follows the further statement that if he remained on board the train talking to a friend, without notifying the conductor of said train that he wished to go further on said train, and that the conductor on said train did not know that he remained aboard said train after the arrival at Nelson, then and in that case he was not a passenger. In the first place, there was no testimony that the deceased was talking to a friend on the train, and in the second place, as heretofore indicated, if the deceased was in the passenger coach and purposed to proceed further upon his journey he had the right to remain in such coach, and it was not essential that he should expressly notify the conductor that he wished to go .further on said train.

.It will not be seriously denied that if persons at the station' of Nelson had entered said coach, they were passengers from the time of their entrance into the same, whether the conductor had any knowledge of their entrance or not, or whether they had a ticket or had paid their fare to the conductor. It was only necessary that they enter the coach either with a ticket authorizing* their transportation, or with the intention of paying the usual fare for the same, and we are unable to see any well-grounded legal distinction between the person who enters the coach from a station for the purpose of going* to some other point on the line of road, and the person who happens to be in the coach and remains there with the purpose of proceeding further, and with the intention of paying his fare to the point he desired to go.

IV. It is further insisted that the court erred in its refusal of the first subdivision of instruction numbered 2. That portion of the instruction required the jury to find that the deceased was a passenger in said train, as was defined by the terms embraced in the second, subdivision of instruction numbered 2,

We have indicated that the second subdivision of instruction numbered 2 was erroneous and did not properly declare the law, hence it follows that the first subdivision of instruction numbered 2, which had for its basis the erroneous instruction, was also properly denied by the court. Again, it is insisted that the refusal of instruction numbered 2 left this ease submitted to the jury without any requirement that they should find the deceased was a passenger, and without any guide as to what facts constituted him a passenger.

The appellant has manifestly overlooked what in fact the jury were required to find in order to entitle-plaintiff to recover. It will he observed that the defendant in its instruction requested upon the measure of damages, practically conceded and assumed by the terms of that instruction that deceased was a passenger on its train of cars; but aside from this the instructions-given by the court required the jury to find every essential fact necessary to entitle plaintiff to recover. Instruction numbered 1 as given to the jury by the court required the jury to find that the plaintiff’s deceased husband was a passenger on one of defendant’s trains. That the deceased was a passenger up to the time the train reached the station of Nelson is conceded by appellant and is testified to by the conductor; hence the crucial question- of fact to be found by the jury was whether or not he remained a passenger and was a passenger at the time the train was starting from Nelson station in the direction of Blackwater, and the jury in the closing part of instruction numbered 1 given on the part of the plaintiff, were required to find every essential fact necessary to constitute him a passenger. They were told that “if the jury believe from all the facts and circumstances in evidence that he determined to continue his journey to Blackwater and remained on said train for that purpose, the fact that he only paid his fare at Marshall to Nelson is no defense to this suit. ’ ’ While it may be said that the instruction is unhappily worded, and should have stated that the finding of the facts embraced in it would constitute deceased a passenger, yet the instruction required the finding of every essential fact necessary to make him a passenger, and the true meaning and import of it was that if they found that state of facts they would find that he was a passenger, and the fact that he only paid his fare to Nelson would constitute no defense to this suit. In other words, no other meaning can be given that instruction, it being conceded that he was a passenger up to the time the train reached Nelson, than that if the jury should believe from all the facts and circumstances in evidence that he determined to continue his journey to Blackwater, and remained on the train for that purpose, he was a passenger. This was clearly the effect of that instruction, hence it must be ruled that under that instruction the jury-were required to find that the deceased was a passenger, as well as all the essential facts necessary to constitute him such passenger, and this question having been fairly submitted to the jury there was no error in the refusal of the instruction requested by the appellant.

Y. This brings us to the consideration of the only remaining proposition involved-in this cause, that is, the contention of the appellant that the court erroneously refused defendant’s instruction numbered 1 as to the measure of damages.

This suit was brought under section 2864, supra, and under the evidence introduced upon the trial the court very properly confined the recovery to that section. Instruction numbered 1 upon the measure of damages requested by the appellant, the refusal of which is now complained of, was entirely foreign to the section of the statute upon which this suit is predicated. Defendant’s contention is that the death of plaintiff’s husband was occasioned by the negligence of the brakeman, and that he was not a servant, such as is contemplated by the statute, engaged in the operation and managing of trains, therefore plaintiff was not entitled to recover in this action the definite fixed sum of five thousand dollars as a forfeiture under section 2864. In support of this contention our attention is directed to the case of Culbertson v. Railroad, 140 Mo. 35. A careful analysis of that case will demonstrate that it has no application to the case at bar. The petition in this case proceeds upon only one theory, and that is, it is alleged that plaintiff’s deceased husband was a passenger upon defendant’s train and that his death was occasioned by tbe negligence and unskillfulness of the agents, servants and employees of the defendant whilst so running, conducting and managing said train of cars and locomotives. In the Culbertson case, relied upon by appellant, there were different acts of negligence alleged and relied upon for recovery. Some of the acts complained of in that case would fall within the provisions of the section fixing a definite penalty and others brought the case under a provision of the statute in 'which no definite penalty clause was fixed, and upon that question, Gantt, J., speaking for this court, simply announced the rule. He said: “It has been uniformly ruled in this State that where different acts of negligence are alleged and relied upon and some of them bring the case within the penalty clause of section 4425 and others bring the case within section 4426, it is error to instruct solely for the penalty. [Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; Rapp v. Railroad, 106 Mo. 423.] ”

That is not this case. That the brakeman is a servant who has duties to perform in operating and managing a train, such as the use of brakes, giving signals, etc., and whose negligent performance of such duties may easily produce fatal results, is too plain for discussion. Hence it must be held that he was a servant engaged with others in operating and managing the train upon defendant’s railroad. [Malloy v. Railroad, 173 Mo. l. c. 81; Rinard v. Railroad, 164 Mo, 270.]

We have thus indicated our views upon the propositions disclosed by the record in this cause. There is no dispute that the collision which resulted in the death of plaintiff’s husband was occassioned by the negligence of defendant’s employees; the testimony plainly shows that fact and it is practically conceded, and wesee no escape from the conclusion that the court properly submitted this cause to the jury and that the evidence is sufficient to support the finding of the jury; that the plaintiff’s husband determined to become a passenger from Nelson to Blackwater, and was on the train for that purpose when killed. His home was at Blackwater ; his family was there, and he had left his home that afternoon for Marshall; the local freight train which provided a coach for passenger service, stopped at Nelson station 25 or 30 minutes; the conductor had given the signal to start, and the train had in fact started towards Blackwater before the collision occurred, and the plaintiff’s husband was on the moving train in the regular passenger coach, and we are of the opinion that it was manifestly a correct and legitimate inference to be drawn by the jury that plaintiff’s husband was on the train for the purpose of going to Blackwater, which was his home and natural destination.

Entertaining the views as herein indicated, it results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.