source: Caselaw Access Project

author: BRACE, P. J.

license: Public Domain

text:
    MARY McQUADE, Appellant, v. ST. LOUIS & SUBURBAN RAILWAY COMPANY and ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY.
    Division One,
    December 22, 1906.
    1. NEGLIGENCE: Failure to Watch: Failure to Stop: Repugnant Pleading. An allegation' that the motorman negligently failed to keep a vigilant watch for persons on or approaching the railway track, and another that he failed to stop the car in the shortest time possible after discovering their peril, are not inconsistent or repugnant. One does not charge affirmative and the other negative, but both charge positive negligence; and both may be charged in one count.
    2. -: -: -: -: Practice: Demurrer to Evidence. Repugnant charges of negligence contained in one count, cannot be reached by a demurrer to the evidence. That defect can be reached only by a demurrer to the petition or a motion to elect.
    3. DAMAGE STATUTE: Applicable to Street Railways. The Damage Statute (sec. 2864, R. S. 1899), giving to the widow $5,000 for the negligent killing of her husband, is applicable to street railways.
    4. -: -: Ordinance: Negligence. The said Damage Statute permits a recovery for a negligent failure to discharge a duty imposed by a municipal ordinance. The right of action given thereby is for negligence, whether it be negligence as defined by the common law or negligence that may arise from a failure to perform a duty imposed by statute or by municipal ordinance.
    5. -: Within Six Months: Dismissal: Renewal. Where a
    widow brought a suit for the negligent killing of her husband within six months after his death against one of the defendants, and within a year after his death dismissed that suit and brought it against both defendants, she thereby appropriated the action for statutory damages to herself, and the suit as to both defendants was timely.
    6. NEGLIGENCE: Stopping Car: Demurrer. Where there is evidence tending to prove that by the exercise of ordinary care the motorman could have seen deceased on the track in time to have saved his life by the exercise of ordinary care, no demurrer to the evidence should be sustained.
    7. DEFECTIVE PETITION: Charging Contributory Negligence. The petition, after charging specific acts of negligence, stated: “Which violations of said ordinance • directly contributed to cause the death and injury of the plaintiff’s husband.” Helé, that it cannot be contended that this petition charges defendants only with contributory negligence. It simply means that the violations of the ordinances contributed, with the other precedent acts of negligence charged in the petition, to cause the injury.
    Appeal from St. Louis City Circuit Court. — Hon. D. D. Fisher, Judge.
    Reversed and remanded (with directions).

      A. B. Taylor and Howard Taylor for appellant.
    (1) The evidence was ample to carry the case to the jury on the question of the negligence of the servants of the defendant operating the car which killed deceased. Murphy v. Railroad, 87 S. W. 947; Klockenbrink v. Railroad, 172 Mo. 689. (2) The court was clearly in error in holding* that when the widow of deceased brought a suit within six months and dismissed it and sued again within a year, she was barred if there was a minor child. Shepard v. Railroad, 3 Mo. App: 553; McNamara v. Stevens, 76 Mo. 331; Barker v. Railroad, 91 Mo. 94.

      Jefferson Chandler and T. M. Pierce for respondents.
    (T) The alleged grounds of negligence are repugnant. The first ground is that the motorman of respondent failed to keep proper and vigilant watch ahead for all persons on foot, and especially this plaintiff. Second, and the said motorman, seeing deceased, failed to stop said car within the shortest 'time and space possible after plaintiff was in a position of danger. These two aspects of alleged negligence are incompatible. Hawkins v. Railroad, 83 S. W. 52; Allen v. Railroad, 183 Mo. 432; Klockenbrink v. Railroad, 172 Mo. 689; Holwerson v. Railroad, 157 Mo. 216. (2) The Damage Act, under which this proceeding is had, does not include, in terms, street car companies. Fisher v. Tel. Co., 75 S. W. 50; Hudson v. Lynn (Mass.), 71 N. E. 66; Sams v. Railroad, 174 Mo'. 55. (3) "There is no evidence that after respondent’s motorman saw deceased he could have saved his life. Roenfeldt v. Railroad, 180 Mo. 565; Culbertson v. Railroad, 140 Mo. 63. (4) The petition is fundamentally bad. The theory is that respondent was guilty of contributory negligence in causing the death of plaintiff’s husband. A cause of action cannot be based on the alleged contributory negligence of defendant. Lee v. Jones, 181 Mo. 299.
   BRACE, P. J.

This is an action by the widow to recover $5,000 damages fo'r the death of her husband, Michael McQuade, under the provisions of section 2864, Revised Statutes 1899; in which, at the.close of the plaintiff’s evidence, a demurrer thereto was sustained, and the plaintiff took a nonsuit, and from the refusal of the court to set the same aside, she appeals.

The petition is as follows:

“The plaintiff states that she was the lawful wife of Michael McQuade at the time of his death as herein stated. That the defendants are, each, and at the times herein stated were each corporations by virtue of the law of Missouri, and used and operated the railway and car herein mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis as a public conveyance in charge of their motorman and conductor. That at said times Wash street and Twenty-third street at the places herein stated were open public streets within the city of St. Louis. That on the 9 th day of May, 1901, the plaintiff’s husband, Michael McQuade, was lawfully on the crossing of Wash and Twenty-third streets at ornear the east crossing thereof when defendant’s servants in charge of their west-bound car carelessly and negligently and without using any care to give warning of the approach of said car to said crossing or to said Michael McQuade, and without using any care to watch out for persons on said crossing, and without using any care to slow up or stop said car and avert injury to said McQuade, did cause and suffer said ear to strike and so injure said McQuade that he died from said injuries at St. Louis on the day aforesaid.
“And for another and further assignment of negligence the plaintiff avers that at the time of -the death of her husband there was in force within the city of St. Louis an ordinance of said city by which it was provided that motormen and conductors of each car should keep a vigilant watch for persons on foot, either on the track or moving towards it, and upon first appearance of danger to such person the car should be stopped within the shortest time and space possible, and the plaintiff avers that at and before- the time- that said car struck and injured her husband the motorman and conductor of said car were failing to keep such vigilant watch and failed to stop said car on the first appearance of danger to her husband as he moved towards said track and was upon said track, which violation of said ordinance directly contributed to cause the injury and death of plaintiff’s husband. That by the death of her husband caused as aforesaid an action has accrued to the plaintiff to sue for and recover the sum of five thousand dollars according to the statute of Missouri. And the plaintiff avers that within six months after the death of her husband she instituted an action against the St. Louis & Suburban Railway Company, one of the defendants herein, to recover said statutory damages for the death of her said husband and thus appropriated said cause of action to herself, which action was dismissed. ’ ’

The answer was a general denial and a plea of contributory negligence, on which issue was joined by reply.

The case made by the plaintiff’s evidence is substantially as follows:

Wash street runs east and west, Twenty-third street north and south. On Wash street there are two . trades on which defendants run their cars. Westbound cars run on the north track, and east-bopnd cars on the south track. On the 9th of May, 1901, the plaintiff’s husband, Michael McQuade, walked south on the east sidewalk of Twenty-third street to the east crossing of that street over Wash street. When, he reached the crossing two cars were approaching the crossing, one from the east and one from the west. He stopped at this crossing until the west-hound car on the north track passed, and then proceeded to cross the street, stopped on the north track, over which the westbound car had just passed, until the east-bound car passed on the south track, and as he was in the act of stepping off the north track he was struck by another west-hound car and killed. When the deceased stopped on the north track to let the east-bound ear go by, the second west-bound car by which he was struck was distant from him 1.50 feet. The car was going at a speed of about fifteen miles an hour, no bell was rung or gong sounded, and no effort was made to check the car or avoid the collision until the car was within fifteen or twenty feet of the deceased, when such effort was made but too late to avert the catastrophe, as the oar ran twenty-five or thirty feet after the collision. The car that killed the deceased was either a Suburban car or a Meramec River car, but there is a conflict in the evidence as to which company the car belonged.

This suit was instituted in the St. Louis City Circuit Court on the 8th day of May, 1902. Prior thereto, to-wit, on the 15th of July, 1901, a suit on the same cause of action was instituted in said court by the plaintiff against the defendant, the St. Louis & Suburban Railway Company, which suit was on the 8th day of May, 1902, dismissed.

■ I. It does not appear from the record upon what ground the trial court sustained the demurrer to the plaintiff’s evidence, but it is contended for the defendant that the demurrer was properly sustained for several reasons which will be noticed in their order.

It is first contended that the alleged grounds of negligence are repugnant in that the first ground is, that the motorman failed to keep a vigilant watch, etc., and second, that he failed to stop said car in the shortest time and space, etc.; that the former is an affirmative and the latter a negative wrong, and that they cannot be “yoked up in the same petition.” We are unable to appreciate the force of the argument by which it is attempted to support this proposition. The duty of the motorman to the deceased to be on the watch, and to stop, if at all, from the situation in which the deceased was as the car was approaching the crossing, were affirmative duties, and the one was as much a positive duty as the other — each was consistent with the other. If by failure to be on the watch, the motorman failed to discover the perilous position of the defendant when he could have done so by the exercise of ordinary care, he was guilty of negligence; or, if being on the watch he did discover his perilous position and failed to stop his car when by the exercise of ordinary care he could have done so, he was guilty of negligence; and there is no good reason why both acts of negligence should not have been charged in one count of the petition. Moreover, if even the petition was defective in this respect, such defect could not be reached by a demurrer to the evidence — it could only be reached by a demurrer to the petition, or a motion to elect.

II. It is next contended that section 2864, the statute under which this action was brought, is not applicable to street railroads. This contention was .made in the ease of Higgins v. Railroad, 197 Mo. 300, ably argued by the same counsel for defendant, and held to be untenable in an opinion handed down by Graves, J., in which, on this point, all the judges of this division concurred. After further consideration of the question, we are all entirely satisfied with the conclusion reached in that case, and hold in this, as we did in that case, and for the reasons therein stated, that said section is applicable to street railroads.

III. It is next contended that although section 2864 applies to street railroads, the ground of recovery by a person not a passenger is confined to common law negligence and does not extend to an injury from a failure to discharge a duty imposed by municipal ordinance. We find no such limitation in the statute. As applicable to this case, the statute reads: “Whenever any person shall die from any injury resulting from or occasioned by the negligence of ... . any officer, agent, servant or employee whilst running .... any .... car, .... the corporation . . . in whose employ any such officer, agent, servant, employee . . . shall be at the time such injury is committed, . . . shall forfeit and pay for every person . so dying the sum of five thousand dollars.” The right of action given by the statute is for negligence — not for negligence as defined by the common law, but as well for negligence that may arise from a failure to discharge a duty imposed by a statute or municipal ordinance. The statute makes no distinction, and we can make none. It contains no such limitation as is contended for, and we cannot put such a limitation upon its comprehensive terms.

IY. It appears from the evidence that Michael McQuade, besides his widow, left surviving him a minor child; and this suit, although brought within a year, was not brought within six months after his death; therefore, it is contended, the demurrer was properly sustained. But it also appears that within six months after her husband’s death the plaintiff did bring her suit therefor against one of the defendants; and within a year after his death dismissed the same and brought this suit against both of the defendants; and it was expressly held in Packard v. Railroad, 181 Mo. 421, that “where a widow has brought a suit for the death of her husband within six months after his death, she can, if she has suffered nonsuit, or dismissed the suit, within one year after his death, renew the suit against the same party or bring it against another wrongdoer, or both.” This ruling is in harmony with the previous rulings on the subject. [Barker v. Railroad, 91 Mo. 86; McNamara v. Slavens, 76 Mo. 329; Shepard v. Railroad, 3 Mo. App. 550.] And this contention must be ruled against the defendants.

V. It is next contended that the demurrer to the evidence was properly sustained because there was no evidence that after the motorman saw the deceased he could have saved his life. But there was evidence tending to prove that by the exercise of ordinary care the motorman could have seen the deceased on the track in time to have saved his life by the exercise of‘ordinary care thereafter, and in such case it is settled law in this State that the plaintiff may recover. [Scullin v. Railroad, 184 Mo. 707; Klockenbrink v. Railroad, 172 Mo. 678; Morgan v. Railroad, 159 Mo. 262; Kellny v. Railroad, 101 Mo. 67; Hilz v. Railroad, 101 Mo. 36, and many others, in these cases cited.]

VI. It is next and finally contended that the demurrer to the evidence was properly sustained because the petition only charges the defendant with contributory negligence. The only basis for this contention is the allegation in the petition, 4 4 which violations of said ordinance directly contributed to cause the death and injury of the plaintiff’s husband,” which counsel would have us interpret to mean,4 4 which violations, ” etc., 4 4 contributed” with the negligence of the deceased 4 4 to cause the injury, ’ ’ etc. It will not fairly bear such an interpretation. The evident meaning of the pleader was that the violation of the ordinance contributed, with the other precedent acts of negligence charged in the petition, 4 4to cause.the injury and death of plaintiff’s husband.”

Counsel, after a labored effort, have failed to point out, and we have failed to discover, any good reason in the record why the case should have been taken from the jury. The judgment of the circuit court will therefore be reversed, and the cause remanded with directions to set aside the nonsuit and' grant the plaintiff a new trial.

Lamm, J., concurs; Valliant, Jconcurs in all except the fourth paragraph; Graves, Jconcurs in the result.


author: GRAVES, J.

text:
    KANSAS CITY LOAN GUARANTEE COMPANY, Appellant, v. KANSAS CITY.
    Division One,
    December 22, 1906.
    1. CITY EMPLOYEES: Earned Claims: Assignment. The ordinances of Kansas City do not prohibit the assignment and transfer of claims against the city already earned. The assignee of such earned claims may sue the city and recover the amount thereof.
    2. -: —-: -: Right to Sue. Where by the terms of employment wages are due, the right to sue and recover inures to the claimant, and this right is the property of the claimant, and is such a right as can be assigned unless there is some valid law prohibiting the .exercise of the right.
    3. -: -: -: Interpretation of Ordinance. An ordinance that undertakes to prohibit the assignment of earned claims, being in derogation of common right, will be strictly construed, and unless it in express terms contains such prohibition it will not be held to do so. And the ordinance of Kansas City not in express words prohibiting the assignment of earned claims against the city for services rendered by an employee, it is held that such claims may be assigned, and that the assignee may recover for the amount thereof by suit.
    4. -: -: -: -: Warrants. The fact that the ordinance prohibits the issuance or payment of the warrant to any person other than the person doing the work for the city, does not prohibit such person from assigning and selling his claim for wages fully earned, and thus giving to his assignee the same right to sue upon it without receiving a warrant as the claimant himself had or would have without asking for or receiving a warrant. Such prohibition is not in express words a prohibition against assignment.

      5. -: -: -: Penal Ordinance. A penal ordinance that could not be held to justify a conviction in a quasi-criminal proceeding, because of a lack of express words making the conduct complained of criminal, cannot be sustained in a civil action in which the same ordinance and conduct are brought forward to defeat a civil right.
    Appeal from Jackson Circuit Court. — How. Shannon G. Douglass, Judge.
    Reversed and remanded.

      Henry Lee Lost for appellant.
    (1) The work was fully performed at tire time of the assignments. The right of the plaintiff’s assignors to sell their several claims against defendant for the wages due them on account of labor performed is a common and fundamental right. Section 4, art. 2, Constitution ; sec 895; R. S. 1899; Greenhood on Public Policy, pp. 351, 353; Berbeck v. Stafford, 23 How. Pr. (N. Y.) 236; Thompson v. Cullers, 35 S. W. 412; Beal v. Mc-Vicker, 8 Mo. App. 203; Ciples v. Blair, Rice Ch. (So. Car.) 66; McGregor v. McGregor, 130 Mich. 505; Oberdorfer v. School Bd. of Louisville, 85 S. W. 696. (2) This action being based upon the original demand, and not upon warrants, the ordinance pleaded by defendant is entirely foreign to the issues in the case, and should not have been admitted in evidence, (a) The ordinance being in derogation of common right must be strictly construed. Butz v. Cavanaugh, 137 Mo. 512; St. Louis v. Babcock, 156 Mo. 154; Town of Pacific v. Seifert, 79 Mo. 210; Carpenter v. Reliance Realty Co., 103 Mo. App. 480. (b) The ordinance merely deals with the issuance and delivery of warrants. The plaintiff is not bound to apply for and receive a warrant in order to collect its claim; it may sue on the original demand, as it has done in this case, and it is entitled to judgment. 1 Dillon on Mun. Corp. (4 Ed.), sec. 501; Bank v. Franklin County, 65 Mo. 113. (c) Moreover, by expressly condemning assignments of “unearned salaries, unearned wages or earnings,” the ordinance, by necessary implication, approves assignments of earned salaries, earned wages or earnings. Johnson v. Fluetsch, 176 Mo. 452. (3) If the effect of the ordinance is to restrain the free assignment of claims for earned compensation against the defendant, then it is unconstitutional and void, because: (-a) It is an arbitrary and unwarranted interference with the personal liberties of the plaintiff and its assignors, and an unreasonable restraint upon their “right to enjoy the gains of their own industry;” and deprives them of their property without due process of law. Secs. 4 and 30, art. 2, Constitution; art. 14, Constitution of U. S.; Cooley, Const. Lim. (6 Ed.), p. 247; State v. Fisher, 52 Mo. 174; State v. Julow, 129 Mo. 172; State v. Loomis, 115 Mo. 307; State v. Tie & Lumber Co., 181 Mo. 536; State ex rel. v. Ashbrook, 154 Mo. 375; In re Flukes, 157 Mo. 125; Rendering Co. v. Behr, 77 Mo. 98; Ex parte Hutchinson, 137 Fed. 950. (b) The ordinance is squarely in conflict with an express statute, and is therefore void. Sec. 895, R. S. 1899; sec. 23, art. 9, Const, of Mo.; Town of Paris v. Graham, 33 Mo. 94; State ex rel. v. McKee, 69 Mo. 504; Bodgely v. St. Louis, 149 Mo. 122. (4) The ordinance, being void, does not have any legal force or effect, either as a positive law, or by estoppel. Wood v. Kansas City, 162 Mo. 311; State ex rel. v. Eby, 170 Mo. 525; Norton v. Shelby County, 118 H. S. 442.

      Edwin G. Meservey and John H. Thacher for respondent.
    (1) The ordinance in controversy constituted a valid exercise of the city’s authority in its private or proprietary capacity as distinguished from its governmental or public capacity. Bothe v. Fulton, 85 Mo. App. 16; Bank v. Arkansas City, 76 Fed. 282; Indianapolis v. Gas Light Co., 66 Ind. 396; Western Savings Fund v. Philadelphia, 31 Pa. St. 183; 1 Dillon on Mnn. Corp'. (3 Ed.), see. 66; State ex rel. v. Kent, 98 Mo. App. 281. (2) All ordinances of Kansas City existing at the time of the contract of employment and relating to the subject-matter, entered into it and became a part thereof as effectually as if written in the contract, (a) All residents of Kansas City are charged with notice of the ordinances of the municipality. Inhabitants of Palmyra v. Morton, 25 Mo. 593; Jackson v. Railroad, 118 Mo. 219; Railroad v. Calderwood, 89 Ala. 247; He-land v. Lowell, 3 Allen 407; Keating v. Kansas City, 84 Mo. 415-. (b) Such ordinances relating to the subject-matter or manner of execution of the contract entered into and became a part of it. Pryor v. Kansas City, 153 Mo. 135; St. Charles v. Hickman, 133 Mo. 684; Delaware Co. v. Diebold Safe Co., 133 U. S. 478; Arkansas Smelting Co. v. Starling, 127 U. S. 379; Bnrck v. Taylor, 152 U. S. 653. (c) Acting in its private or proprietary -capacity, Kansas City had under its charter the power to make any contract with its employees that any private corporation or individual could make. Art. 3, sec. 1; art. 4, sec. 15, Kansas City Charter ■ City of Indianapolis v. Indianapolis Gas Light Co., 66 Ind. 402; Galena v. Corwith, 48 111. 423; Water Co. v. City of Aurora, 129 Mo. 575. (3) The ordinance in question being a provision in the contract must be viewed in the light of surrounding circumstances. By its own terms, and according to the plainly manifested intention of the contracting parties, the claims themselves were unassignable, (a) The first section of the ordinance expressly uses the word “claims.” (b) The whole purport of the ordinance shows that the intention of .the parties was that the laborer should forego all rights of assignment, (c) Any other construction of the ordinance would lead to palpable absurdities. Charter of Kansas City, sec. 22, art. 4; State ex rel. v. Kent, 98 Mo. App. 281. (4) A contractual provision inserted in a contract with a municipality prohibiting an assignment of a claim for wages is valid and binding, (a)' Parties may stipulate that a contract shall not be assignable. Andrew v. Meyer dick, 87 Md. 511; Tabler v. Sheffield Land Co., 79 Ala. 377; Diifenbaugh v. Poster, 40 Ind. 382. (b) Such a stipulation by a municipal corporation made in its private or proprietary capacity is valid and binding. Omaha v. Standard Oil Co., 55 Neb. 337. (c) The ordinance was plainly within the city’s charter powers. Art. 3, sec. 1, sub. 31; art. 6, sec. 10; art. 4, sec. 15; art. 13, Charter. (5) The ordinance violates no constitutional right either of the laborer or the loan company, (a) While the right to assign a matured claim may be a fundamental right existing in the owner of the claim, he may voluntarily curtail such right by contract. Delaware Co. v. Diebold Safe Co., 133 U. S. 478. (b) A right which for a consideration is contracted away is not any longer a right to be asserted by the contractor. Arkansas Smelting Co. v. Starling, 127 TJ. S. 379; Burclc v. Taylor, 152 IT. S. 653. (o) The loan company had no rights infringed upon by the ordinance since all its rights were acquired long after the ordinance had become a law. (6) The ordinance is a reasonable protective measure and is in harmony with the policy and laws of this State, (a) The ordinance saved city officers time and annoyance. Omaha v. Standard Oil Co., 55 Neb. 337. (b) Protects employees and insures the most efficient public service. Sloss v. Hewlitt, 81 Ala. 266; State v. Williamson, 118 Mo. 146. (c) Regulations of like character have been upheld in our courts. See. 3435, R. S. 1899 (exempt cities from garnishment); sec. 3160-, 3161, R. S. 1899' (exempt cities from executions); s,ec. 384, R. S. 1899 (exempts cities from attachment)»; see. 3477, R. S. IT. S.; Hobbs v. McLain, 176 IT. S. 577; Becker v. Switzer, 15 Minn. 427; Fortune v. St. Louis, 23 Mo. 236; Hawthorne v. St. Louis, 11 Mo. 60; State v. Williamson, 118 Mo. 146; Beal v. McVicker, 8 Mo. App. 202. (d) The ordinance did not contravene the provisions of section 895, Revised Statutes 1899. (7) . An assignment of a claim made in direct violation of the positive provisions of the contract is void, and one claiming through such assignment is entitled to no relief. Sumrall v. Ins. Co., 40 Mo. 27; Gregg v. Landis, 19 N. J. Eq. 350; Tabler v. Sheffield Land Co., 79 Ala. 377; Thrasher v. Hickart, 49 Mo. App. 280.
   GRAVES, J.

Appellant purchased of J. W. Carson, P. H. Mclver, P. Anderson and Walter S. Bohan, their respective accounts against respondent for labor done in the street department of respondent city, and took from each of them a written assignment of their said respective claims.

Appellant then instituted an action before a justice of the peace, filing a statement in four counts, and recovered judgment there against respondent in the aggregate sum of $24.04, the amount of said four assigned claims.

Appeal was taken to- the circuit court of Jackson county, wherein respondent filed an answer, which after a general denial, pleaded that under Ordinance No. 11125, employees of the city were prohibited from assigning their claims, either earned or unearned, and the assignments were therefore void.

By way of reply appellant set up that said ordinance did not affect an assignment of .earned compensation, and further that if the said ordinance did affect the assignment of earned compensation, it was violative of the statutes of the State, and the Constitution of the State, setting out the provisions of the statutes and Constitution claimed to-have been violated thereby.

Trial was had before a jury, and under a peremptory instruction from the court a verdict for respondent was returned; motion for new trial proving unavailing, an appeal was taken.

The evidence shows the indebtedness of the city, respondent, in the amounts claimed by appellant, and in the total amount of $24.04 as claimed. The only dispute is as to the construction and effect of the ordinance pleaded by respondent.' This ordinance, in so far as is necessary to set out, is as follows:

“Section 1. No person shall combine Ms claim against Kansas City for salary or for any other de^ mand with that of another dr others, thereby procuring one warrant for both or all of said claims instead of two or more warrants, and no warrant shall be issued by the city auditor, or countersigned by the comptroller or paid by the city treasurer, to any person other than the one who has actuálly done the work, performed the services, supplied the material, furnished the supplies, or has complied with a contract out of which his claim arose.
“Section 2. The city auditor shall allow no person to receipt the auditor’s book for warrants issued, other than the person actually doing the work, performing the services, supplying the materials, or who has complied with the terms of a contract existing between himself and Kansas City; provided, however, that in the event of non-residents desiring to receipt for warrants on said auditor’s book, they may do so by resident agent or attorney, duly authorized in writing; provided, further, that where such non-resident has no resident agent, the city comptroller shall forward to him his warrant.
“Section 3. Any person failing, neglecting or refusing to comply with any of the provisions or requirements of this ordinance shall be fined by the police judge not less than five dollars nor more than five hundred dollars, and any officer or employee of the city who shall sell or assign his unearned salary, unearned wages or earnings shall thereby be deemed to have committed an act which is hereby declared to be sufficient cause for his removal under section 1176, chapter XIX, article III, of Revised Ordinances of 1898, and all officers and employees not holding their office or appointment under section 1176, chapter XIX, article III, Revised Ordinances of 1898, who shall sell or assign their unearned salaries, unearned wages or earnings, shall thereby be subject to immediate discharge and suspension, and the head of any department in which any such employee works shall discharge said employee upon receiving information of such sale of unearned salary or wages, and the head of any department shall be removed as provided in sections 8 and 9, article IV, of the city charter, and the selling or assigning his unearned salary shall be sufficient cause for removal under sections 8 and 9, of the city charter. ’ ’

The foregoing sufficiently gives the facts.

The accounts or claims involved in this case are for wages already earned. One of the contentions of the appellant is, that the ordinance does not cover such claims; that it does not prohibit the assignment and transfer of such claims; that the ordinance is leveled at unearned claims, salaries or wages Respondent practically admits that section 3, the penal section of the ordinance, in terms, does not cover a claim for earned wages, but argues that when the whole ordinance and the several sections thereof, are read and construed together, the clear meaning of the ordinance is a prohibition of the assignment of earned as well as unearned wages. In this we think respondent is wrong. Respondent claims that because there is a prohibition in the ordinance as to who shall receipt for a warrant, that this amounts to a prohibition of an assignment of a valid claim for wages already earned. Respondent overlooks the fact that the claimant does not have to ask for a city warrant before being entitled to sue and recover upon his claims. In 1 Dillon on Municipal Corporations (4 Ed.), section 501, the law is announced thus: “A creditor of a town is not bound to receive an order upon the treasurer, but may sue upon his original cause of action. ’ ’ In International Bank of St. Louis v. Franklin County, 65 Mo. l. c. 113, this court has said: “Nor is there any reason or justice in saying that the creditor must allege and prove funds to be in the Treasury because he took a warrant, or because he took such a warrant. Upon a refusal to pay he might return the warrant and sue upon the original consideration.”

When, by the terms of employment, wages are due, the right to sue and recover inures to the claimant and this right is the property of the claimant and is such a right as can be assigned, unless there is some valid law prohibiting the exercise of the right. The claim of these claimants against the city of Kansas City for wages earned, is property or choses in action, subject to alienation and assignment as a general rule.

But to get back to the question first suggested. Even if a valid ordinance could be passed by respondent restraining the right of a claimant to assign his earned wages, does this ordinance so do? Nothing is said in either section 1 or section 2, in express terms, about the assignment or non-assignment of such claims. In fact, neither earned nor unearned wages are mentioned in these two sections. Such an ordinance must be strictly construed, for if it does undertake to' prohibit the assignment of earned wages it is in derogation of common right and this alone will invoke the rule of strict construction and the courts will closely scan the language of the ordinance. [Carpenter v. Realty Co., 103 Mo. App. l. c. 494.]

But, further, there is a penal section to the ordinance which always demands the enforcement of the rule of strict construction. In such cases a statute or ordinance cannot he carried beyond its express terms. [Town of Pacific v. Seifert, 79 Mo. l. c. 215; Fowler v. City of St. Joseph, 37 Mo. 238; Ellis v. Whitlock, 10 Mo. 781; Rozelle v. Harmon, 103 Mo. l. c. 343; State v. Gritzner, 134 Mo. 512; State v. Reid, 125 Mo. l. c. 48.]

In the Rozelle case, supra, it is said: “In cases of statutes, penal in their character, or in derogation of common right, a strict construction is required, but, in regard to statutes merely remedial in their character, a fair, if not liberal, construction should be given. ’ ’

In the case of State v. Reid, supra, the rule is announced in this language: “A familiar rule- of construction of criminal statutes, is that they should be strictly construed and not extended or enlarged by judicial construction, so as to embrace offenses and persons not plainly within their terms. The reason of the rule is found in the tenderness of the law for individuals and on the plain principle that the power of punishment is vested in the Legislature and not in the judicial department.”

Now, with these rules of construction, let us analyze sections one arid two of this ordinance. Section 1 does not prohibit the assignment of a claim or a cause of action against the city. It prohibits the combination of claims, for salaries or other demands, thus prohibiting one warrant instead of two or more; second, it prohibits the issuance or payment of a warrant to any person other than the person doing the work. No.t a word is said about a person assigning or selling his claim for wages fully earned, and thus giving to his assignee the same right to sue upon it without receiving a warrant as claimant himself had and would have, without asking for or receiving a warrant. Section two is no broader. It prohibits any person from receipting for a warrant other than the person actually doing the work except in the case of persons residing outside of the corporate limits of the city. No prohibition here as to the right of a person to assign to another his claim or cause of action against the city for earned wages.

Section 3 especially condemns, eo nomine, the assignment of 'unearned wages, but nowhere even suggests the subject of assignment of claims for earned wages. So that it appears that not one of the three sections of this ordinance condemns, in express terms, the assignment of earned wages. Nor taken as a whole, do they condemn the alienation or assignment of such claims, by express terms. If such prohibition is to be held to be within the purview of these sections, it must be written and read into them by the court upon the merest implication, a thing not done in penal ordinances or statutes, when judicial construction is demanded.

This is a highly penal ordinance. In its own language, “Any persons failing, neglecting or refusing to comply with any of the provisions or requirements of this ordinance shall be fined by the police judge not less -than five dollars nor more than five hundred dollars.” Now, suppose the city had caused the arrest of one of these parties, who made the assignment. of their claims, and had charged the violation of this ordinance, “by then and there unlawfully selling and assigning to the Kansas City Loan Guarantee Company a claim for wages already earned, due to J7 W. Carson and due from the city of Kansas City,” could it be contended for a moment that there should be a conviction under this ordinance? Would the courts for a moment sustain a conviction? We think not. Yet if a ban is, in fact, placed upon the assignment of earned wages by this ordinance, the party making the assignment must be liable to a prosecution and fine. This is a penal ordinance and if the ban of the ordinance cannot be sustained in the quasi-criminal proceedings neither can it be sustained in a civil action. If the prohibition is there at all, it is there for all purposes and for all kinds of cases. But in our judgment, the prohibition, as to the assignment of earned wages, is not in this ordinance in such express terms as to authorize us to declare it to be there.

A very interesting question, as to whether or not the city could pass a valid ordinance is suggested by the briefs in this case, but having reached the conclusion hereinabove expressed, a full determination of the case is had without the consideration of that question. It will be time enough to pass upon that question when an ordinance is before us which squarely raises the issue.

"We therefore conclude that the ordinance introduced in evidence is no defense to this action, and this cause will be reversed and remanded for further proceedings in accordance with these views.

All concur.


author: LAMM, J.

text:
    HETHCOCK v. CRAWFORD COUNTY, Appellant.
    Division One,
    December 22, 1906.
    1. APPELLATE JURISDICTION: County a Party. In cases in which a county is a party the appeal is to the Supreme Court.
    2. COUNTY COLLECTOR: Back Taxes: Commissions: Paid to County by Mistake. A county collector who makes final settlements with the county court, in which he retains only four per cent as his commissions on hack taxes collected, cannot, after his term has expired and he has discovered by a decision of the Supreme Court that he was entitled to retain five per cent more, recover the five per cent in a suit against the county. His voluntary act in paying in the five per cent was a mistake of law as to what he was legally entitled to retain, and hence he cannot recover.
    3. -: -: - — : Allowable by Court. The county court does not allow the county collector his commissions for collecting taxes. He is allowed by law, in counties of designated size, to retain five per cent on tbe amount collected, and in addition four per cent on back taxes collected, by way of penalty, to be taxed as costs. Tbe court’s duty is to require him to make settlements and to see that he does not retain anything more than the commissions which the law allows 'him to retain. If he voluntarily pays those commissions into the treasury, without solicitation, misrepresentation, duress, fraud or undue influence, he cannot recover them by a suit against the county.
    4. -: -: -: -: Finding by Trial Court: No Evidence. A finding by the trial court that plaintiff by mis- . take of fact paid into the county treasury certain commissions he was by law entitled to retain, will be binding on the appellate court on appeal, if supported by evidence; but otherwise, it will not. And in this case there was no such evidence that the mistake was one of fact.
    Appeal from. Crawford Circuit Court. — Now. L. B. Woodside, Judge.
    Reversed and remanded (with directions).

      Frank N. Farris for appellant.

      A. N. Harrison for respondent.
   LAMM, J.

Plaintiff was collector of Crawford county, gathering taxes from March, 1899, until March, 1901, and during that time collected certain hack and delinquent taxes due the county revenue and road funds.

His term expiring, afterwards, to-wit, on December 19, 1902, he presented a written statement of account to the county court of Crawford county, claiming thereby that the county was indebted to him for five per cent commission on said back taxes, which commission he alleged he had paid over through a ‘ ‘mistake of fact,” and which he demanded paid back.

His claim being disallowed, he appealed to the circuit court. Thereat on trial, without a jury, he had judgment in the sum of $312.22. Thereat the county, in turn, appealed — the case coming here by virtue of the constitutional provision giving this court jurisdiction in eases in which a county is a party.

The facts lie in small compass, vis.: Plaintiff seems to have made his settlements with the county court from time to time under sections 9236, 9247, 9248 and 9255, Revised Statutes 1899, and finally received his “full quietus” under section 9288. In such settlements and statements he deducted his commission for collecting current taxes and paid over said taxes, less his commission. In collecting hack taxes, he required the taxpayer to pay the four per cent penalty provided by Revised Statutes 1899; section 9309, and he retained the same; but in said statements and settlements he reported the full amount of such back taxes; and, in paying them over, he did not deduct the five per cent commission allowed him under the ruling of Division Two of this court in State ex rel. v. Hawkins, 169- Mo. 615, construing Revised Statutes 1899, section 9260. In no statement or settlement so made by him as revenue collector does there appear aught referring to commission on back taxes.

After identifying his statements, settlements, etc., for the purpose of their being put in evidence, they were put in and show the amounts of back taxes collected; and also show he deducted nothing for commission thereon. Following that, plaintiff testified he had never been paid (repaid?) the five per cent commission allowed by law for back taxes collected by him during his official term. He further testified that during his term he had presented the matter in no other shape to the court, except as shown by his settlements; and that in his final settlement, when he received his own and his sureties’ discharge (the quietus spoken of in R. S. 1899, sec. 9288), he made no such claim. On being inquired of if he had knowledge that he was entitled to any more, he replied, “I thought I was entitled to them.” He further testified, as we understand it, that he did not carry these commissions into any of his books.

The foregoing is plaintiff’s, case on the facts — defendant putting in no proof.

The giving and refusing of the following instructions will show the theory of the trial court to be that his mistake was one of fact.

Instruction number 1 asked by defendant, and refused (defendant excepting), was as follows: “The court finds that the failure of the plaintiff to make a claim for his commission sued for, in his statement with the county while he was collector, was because he did not know or believe that, under the law, he was entitled to such commission, and that therefore such mistake was a mistake of law, and not of fact, and he is not entitled to recover.”

Instruction number 1 given on the court’s own motion for plaintiff (defendant objecting and excepting), was as follows: ‘ ‘ The court declares the law to be that if the collector of Crawford county made a report of the coliection of back taxes made by him to the county court, and made no claim for commission, and the matter of commission was not considered, by the court in any way, then the said facts will not constitute a bar of plaintiff’s claim for such commission.”

The defendant county seeks to reverse the judgment for the following reasons:

(a) In that the mistake of Hethcock was a mistake of law and not of fact.

(b) In that the county court of Crawford county had no jurisdiction of the case; and, ergo, the circuit court acquired none.

(c) In that, the final settlement of Hethcock as collector is such settlement as may only be reopened, surcharged and falsified in equity on a charge of fraud, mistake, etc.

in the view we take of this case, the first assignment of error is good, hence it matters not whether the two last are good or bad.

That the mistake of Hethcock was a typical mistake of law, unmixed with a mistake of fact, single to him or mutual to both, would seem to be the only allowable conclusion that should be predicated of this record. This, we think, is so, because:

Section 9260, Revised Statutes 1899, relates to the commissions a collector may retain. The case at bar proceeds on the assumption that Crawford county comes within clause “V” of that section, and that the collector of such county is entitled to “a commission of five per cent on thei amount collected.” The opening paragraph of that section reads thus: “The collector shall receive as full compensation for his services in collecting the revenue, except back taxes, the following commissions and no more.” Construing that section with section 9309, relating to fees and compensation in collecting back taxes, wherein the collector is allowed “four per cent on all sums collected . . .

to be taxed as costs and collected from the party redeeming, ” Division Two held in State ex rel. v. Hawkins, supra, that a collector is entitled to- retain, first, the four per cent paid by the taxpayer as a penalty; and, second, the five per cent referred to in the opening paragraph of section 9260; to be taken by him out of the amount of back taxes collected. That opinion was handed down October 22,1902. It will be seen that presently after that construction was placed on the collector’s right to commissions by this court, plaintiff for the first time took notice of, or asserted any claim to, tlie commission in controversy. Such belated action does not conclusively show that. plaintiff had theretofore been ignorant of the law and did not move because of being in the dark, but it tends in that direction, and, taken in connection with other matters now to pass under review, would seem to set the matter at rest. Thus, if we look to other provisions of the statutes it will appear that plaintiff’s duty was to report his tax collections and to retain his five per cent commissions — the language of the statute being (sec. 9255) that the collector ‘ shall, on or before the fifth day of each month, file with the county clerk a detailed statement, verified by affidavit, of all . . . county . . . road and municipal taxes ... by him collected during the preceding month, and shall, on or before the fifteenth day of the month, pay the same, less his commissions, into the state and county treasuries, respectively . . . ”

In addition to the precise provisions of the last-quoted section, there are cognate sections providing for settlements; and the manifest theory of the statutes is that the collector report his commissions in his settlements, and that it is his privilege and duty to keep back the commissions allowed by the law on tax collections and not the county court’s duty to see that he does. The county court does not prepare his settlements, nor does it furnish the data therefor. The county court does not allow his commissions; it has no lot or part in that; the law allows them on settlements and statements made by him — the court being merely the representative or fiscal agent of the county, charged with the duty to see to it that the public is protected. Here, then, we have a collector, who for two years steadily, and at every step, claimed and retained his commissions on current licenses and taxes, who retained the four per cent penalty paid by the taxpayer in redeeming his land from back taxes, whose mind was alert and directed to the fees and emoluments of his place, and, yet, during that whole time, he made no claim for five per cent commission on back taxes. Certainly, no sour presumption can be indulged against an officer. The law presumes an officer does his duty. His duty in this case, under the law, was to keep back his commission on back taxes. We may assume, furthermore, that officers as a rule are prone to pardonable diligence in seeking out and retaining the fees pertaining to their office.

In view of the foregoing we think there can be but one fair conclusion drawn, namely, that until this court in the Hawkins case lit a candle of interpretation for plaintiff, he did not see such commissions and did not know he was entitled to them by law. Otherwise, plaintiff’s acts are incomprehensible.

Plaintiff’s learned counsel argues the mistake was one of fact. He argues, moreover, that the trial court found it was a mistake of fact and that we are bound by that finding. If there was evidence sustaining that finding, plaintiff’s contentions are sound. But we find no such evidence. What facts did plaintiff mistake? Plaintiff’s learned counsel puts his finger on none. Bid he keep an account of these commissions and by inadvertence fail to transcribe them into his statements or settlements? No. Did he charge these commissions in some settlements and omit them, by slip, out of others. No. Did some clerk or deputy make these statements and settlements and neglect a duty assigned to him by plaintiff to put such commissions into his settlements? No. What mistake of fact, then, did plaintiff make? None that we can see. To the contrary, his mistake was of law, pure and simple; and ignorance of the law excuses no man.

The question, then, comes to this? Having without duress, misrepresentation, or any form of imposition or fraud on the part of defendant’s agent, the county court, voluntarily paid this money into the county treasury on the theory it was tax money and belonged to the county treasury — that he had but rendered unto Caesar the things that were Caesar’s — can he recover it back, or must he abide the event? Courts have been extremely lenient in seeing a mistake of fact, as distinguished from a mistake of law, but plaintiff has produced no case on all-fours with this one. To the contrary, there is a live line of controlling decisions holding that under such a record, the mistake is not of fact but of law, and that money so paid voluntarily cannot be recovered back. [Claflin v. McDonough, 33 Mo. 412, and cases cited; Mathews v. Kansas City, 80 Mo. 231, and cases cited; Needles v. Burk, 81 Mo. 569; Price v. Estill, 87 Mo. 378; Norton v. Highleyman, 88 Mo. 623- State ex rel. Scotland County v. Ewing, 116 Mo. 129, and cases cited; State ex rel. v. Shipman, 125 Mo. 436; Corbin v. Adair County, 171 Mo. 385; Campbell v. Clark, 44 Mo. App. 249; State ex rel. v. Stonestreet, 92 Mo. App. 214.]

If we look to the natural justice of the thing, the same conclusion should be reached. For instance, the money paid by plaintiff into the county treasury, pertaining to the road fund, presumably, has long since been spent for such purposes; the money he paid into the county treasury, belonging to the county revenue, presumably, has long since been used for the purposes prescribed by the law — that is, this tax money has been paid out and put into circulation and thus gone about doing good. There is no pretense the funds, or any part of them are intact in the county treasury, and no presumption of law to that effect. The Constitution and statutes of Missouri contemplate that counties should be run on a cash basis, that the tax levies should be made with an eye to the condition of the county treasury and current demands of the county’s business, and plaintiff may not disturb the county treasury of Crawford county unless he is warranted in so doing by the strict law.

The conclusion we have reached is based on the concession to plaintiff that this suit, in its nature, is for money had and received, and, hence, must be governed by both legal and equitable principles. But we find no case in assumpsit for money had and received that entitles plaintiff to recover under the conditions existing here. For example, in Norton; v. Bohart, 105 Mo. 615, an action for money had and received, the money was paid under the mutual mistake of both parties, and that, a mistake of fact. So, in "Wood v. Kansas City, 162 Mo. 303 — an action for money had and received. In that case it should he noted that the notary fees sued for by Wood were collected by Kansas City and retained by it from Wood under a void ordinance, and Wood never had the fees. The city kept them with a strong hand, illegally, and the doctrine was applied that “the obligation to do justice rests upon all persons, natural and artificial, and if a municipality obtains the money or property of others without authority, the law, independent of any statute, will compel restitution or compensation.” This general proposition is the golden rule lying at the root of the action for money had and received. [Clifford Banking Co. v. .Donovan Commission Co., 195 Mo. l. c. 288, et seq.] But that principle has nothing to do with the case at bar. Here plaintiff had the money. He (misjudging the law) voluntarily parted with it without solicitation, misrepresentation, duress, fraud or undue influence, and, as he made his bed, so' he must lie.

The judgment is reversed and the cause remanded with directions to the lower court to render judgment for the defendant.

All concur.


author: VALLIANT, J.

text:
    SALLIE NEPHLER v. WOODWARD et al., Appellants.
    Division One,
    December 22, 1906.
    1. NEGLIGENCE: Preponderance of Evidence: Appellate Practice. Although the appellate court may not be satisfied that the verdict was in accordance with the preponderance of the evidence, yet if it cannot be said that it resulted only from passion or prejudice, and there is substantial evidence to support it, it will be permitted to stand. .
    2. -: -: Physical Facts: Minor Points: Irreconcilable Details. Witnesses may be mistaken as to some-of the details of an accident, yet accurate as to the important facts. If it cannot be seen how the accident could have occurred exactly as witnesses said it did, yet if there is substantial evidence that plaintiff was injured in the way alleged, the appellate court will not set aside the verdict which has received the approval of the trial judge simply because it cannot reconcile the details of the accident with the main fact.
    3. -: Contributory: How Pleaded. A plea to the effect that whatever injuries the plaintiff received were the result of her own negligence is not strictly a plea of contributory negligence, for there are no acts of negligence on her part specified in the plea.
    4. —-: -: Ordinary Care: Definition. A definition of ordinary care as “the care which an ordinarily careful and prudent person would ' use under the same or similar circumstances” is correct as a general definition, but the general definition is not sufficient in all cases, for there are cases in which the conduct to be observed in order to fill the requirements of ordinary care should be specified in the instruction. In this case the general instruction was sufficient.
    5. -: -: -: Theater Goer. An attendant upon a theater, who is being shown to her seat by the usher, is not bound to be on the lookout for holes in the carpet. She has the right, in the absence of any warning to the contrary, to assume that it is safe to follow where the usher leads the way.
    6. -: Dangerous Condition: Assumed: Instruction: Theater. Defendants are not liable for any injury to plaintiff unless before the accident the’ condition was such that by the exercise of ordinary care they could have foreseen probable danger. The jury ought not to be left to judge of the dangerous condition by the result alone. An instruction which treats as obviously dangerous a hole three inches in diameter in the carpet on the floor of a theater, into which plaintiff’s foot slipped, causing her to trip and fall, at a time when the theater was dimly lighted, is faulty. It cannot be assumed that such a hole, even in a dark and dimly lighted room, is fraught with danger to life or limb. But this fault in the instruction may be cured by one given for defendant, declaring that “negligence is not the proximate cause of an accident unless under all the circumstances the accident might have been reasonably foreseen by a man exercising reasonable and ordinary care,” etc.
    7. --: Instruction: Abstract Proposition. An instruction which is a mere abstract proposition of law, if it cannot be seen how any possible injury could have resulted from giving it, is not error.
    8. -: Partners: Not Put in Issue. Unless defendants, sued as partners in an action for negligence, put the existence of the partnership in issue by affidavit filed with the pleadings in the cause, it is not necessary to prove that they were partners.
    9. INSTRUCTIONS: Setting Out Pleadings. An instruction which in substance is a copy of the petition and answer, designed to be a presentation of the issues in the case, should be refused.
    Appeal from Lafayette Circuit Court .- — Hon. Samuel Davis, Judge.
    Affirmed.

      E. M. Bartlett and Thomson, Stanley & Price for appellants.
    (1) Instruction 1 requested by respondent and given by the court purported to state the facts in a general way and directs the jury that respondent may recover if using ordinary care, without defining the same, and is therefore erroneous. Sanitary Dairy Co. v. Railroad, 98 Mo. App. 20. (2) The same instruction is also bad as it does not refer to, but on the contrary absolutely ignores, the affirmative defense of contributory negligence of the respondent pleaded by appellants. Evans v. Railroad, 16 Mo. App. 522; Fitzgerald v. Hayward, 50 Mo. 523; Goetz v. Railroad, 50' Mo. 472; Russell v. Railroad, 26 Mo. App. 368; McDonald v. Railroad, 32 Mo. App. 70; Bailey v. Bearsley, 32 Mo. App. 406; Walsh v. Edmison, 46 Mo. App. 382. (3) Instruction 3 requested by respondent and given by the court is erroneous in that it is misleading and does not state the consequences of a breach of the duty ascribed to appellants. Kimbal v. Railroad, 108 Mo. App. 78. (4) The court erred in overruling the demurrer of the appellants to the evidence of respondent, as the pleadings put in issue the partnership of defendants, and there was not a particle of evidence introduced by respondent to establish that fact. (5) The court erred in not defining the issues between the part-ties made by the pleadings as it should have done in order that the jury might thoroughly understand the same, and therefore the refusal by the court to give instruction 2 requested by appellants, which properly defined the issues, was prejudicial error. (6) The court in overruling appellants’ motion for a new trial erred, because the verdict was against the weight of the evidence, and in fact was against the vast preponderance of the evidence, and consequently the verdict should have been set aside and a new trial granted. Bauer Grocery Co. v. Sanders, 74 Mo. App. 657; Marshall v. Ins. Co., 43 Mo. 586; Rothschild v. Ins. Co'., 62 Mo. 356; Murdock v. Brown, 16 Mo. App. 548; McConey v. Wallace, 22 Mo. App. 377; Lawson v. Wilson, 37 Mo. App. 636.

      John Welborn and Robert E. Rooney for respondent.
    (1) The first objection made by appellants, that instruction 1 requested by respondent and given by the court is bad on account of there being no definition of “ordinary care” contained in said instruction, is wholly without merit, as the second instruction asked by respondent and given by the court consists of a proper definition of “ordinary care” as used in the instructions. Shaw v. Dairy Co., 56 Mo. App. 525'; Hughes v. Railroad, 127 Mo. 452; Bank v. Hatch, 98 Mo. 376; Perrette v. Kansas City, 100' Mo. App. 567; Squiers v. Kansas City, 100 Mo. App. 632; Grace v. Railroad, 156 Mo. 295; Liese v. Meyer, 143 Mo. 560; Deweese v. Meramee Iron Min. Co., 143 Mo. 560 ; Fullerton v. Railroad, 84 Mo. App. 499. (2) The second objection hy appellants, that the first instruction requested hy respondent and given by the court, is also had, as it does not refer to, but on the contrary ignores, the affirmative defense of contributory negligence of respondent, pleaded by appellants, is equally without merit, as there was no evidence in the case tending to show that respondent was guilty of contributory negligence. Hughes v. Railroad, 127 Mo. 453; Stone v. Hunt, 114 Mo. 74; White v. Chaney, 20- Mo. App. 397; McAtee v. Vanlandingham, 75 Mo. App. 53; Keithley v. Southworth, 75 Mo. App. 443; Kelley v. Stewart, 93 Mo. App. 47. (3) Instruction 3, requested by respondent and given by the court, is a correct statement of the law under the facts given in evidence and taken in connection with the other instructions could not have confused or misled the'jury. McGrew v. Railroad, 109 Mo. 590; Jackson v. Railroad, 29 Mo. App. 496; Bunk v. Railroad, 17 Mo. App. 196; Meredith v. Wilkinson, 31 Mo. 1; Hemphill v. Kansas City, 100 Mo. App. 567; Anderson v. Union Terminal Co., 161 Mo. 411; Owens v. Railroad, 95 Mo. 169; Crawford v. Doppler, 120 Mo. 362; Schorler v. Schorler, 18 Mo. App. 69. (4) As to the fourth point made by appellants, that the court erred in overruling the demurrer of appellants to the evidence of respondent for the reason that partnership was alleged and not proven, it is without foundation, for the reason that the partnership was admitted by stipulation introduced in evidence, and if it could he held that such stipulation was not sufficient, then the overruling of the demurrer was waived by appellants ’ proceeding to trial, and the defect, if any, was cured by the testimony of defendant Woodward. Erwin v. Railroad, 96 Mo. 294; Bowen v. Railroad, 95 Mo. 275; G-um ther v. Railroad, 95 Mo. 268; Price v. Barnard, 65 Mo. App. 649; Jennings v. Railroad, 112 Mo. 268; Brock v. Railroad, 107 Mo. App. 109; Elberg v. Railroad, 96 Mo. App. 367.
   VALLIANT, J.

Plaintiff alleges that defendants were proprietors of a theater in Kansas City; that plaintiff with a party of friends attended a theatrical performance at defendants’ theater on the afternoon, of April 15, 1899; that as she was passing down one of the aisles to the seat that she was to occupy, her foot was caught in a hole in the earpet, in consequence of which she fell, striking her left side ag’ainst one of the theater chairs, and received severe injuries to her person.

The petition alleges that the theater was dimly and not sufficiently lighted and that the hole in the carpet and the insufficient light made the condition dangerous to persons attending the performance as plaintiff was,; that the defendants knew or by the exercise of ordinary care would have known the condition a sufficient length of time before the accident to have remedied it, but neglected to do so.

The answer was a general denial and a plea “that any injury or damage the plaintiff may have suffered was the result of her own fault, want of care and negligence.” Reply, general denial.

The testimony on the part of the plaintiff tended to prove that she and three of her female friends, having purchased their tickets to the matinee performance, attended the theater and were being shown to their seats by the usher; that as the plaintiff was passing down the aisle which was an inclined floor, her left foot was caught in a hole in the carpet, which caused her to trip and she fell striking her left side violently on the iron arm of the chair; that she was rendered sick immediately, but remained in the theater during the performance, and when it was over was assisted to walk to the home of a friend where she remained until about 8 o’clock that evening, then walked home and went to bed suffering great pain and applying home remedies; that this was a Saturday and she called in a physician the next Monday; that from the day of the accident to the day of the trial she had been an invalid with great suffering, had been subjected to a very serious surgical operation and her injuries were permanent. A witness for plaintiff testified that he had caught his foot in the same hole and tripped a week or two before the plaintiff’s accident. Plaintiff’s testimony also tended to . show that the light had not been fully turned on when she fell and the light was dim. The accident occurred April 15,1899; the suit was brought November 8,1902.

On the part of defendant the testimony tended to show as follows:

About three months before the alleged accident the theater had been burned out, rebuilt and entire new furniture and new carpets had been put in. On the aisle in question there was a new ingrain carpet, the ordinary wear of which for such use was two or three years. The defendants had never heard that there was any hole in this carpet and there was no hole in it. The theater was brilliantly lighted with electric lights, which were fully turned on before the doors were op>ened or the people began to arrive. Defendants never heard of the alleged accident until this suit was brought, more than three years after it is alleged to have occurred. Defendants’ testimony also tended to prove that the plaintiff’s physical condition on which she predicated claim for damages was not the result of the alleged accident, but of disease of ‘winch she was suffering before.

The suit was begun in Jackson county and taken by change of venue to Lafayette county, where there was a trial resulting in a judgment for plaintiff for $5,000', from, which defendants appeal.

The assignments of error are based on the action of the court in giving certain instructions for the plaintiff and refusing certain others requested by the defendants, also in overruling the motion for a new trial..

I. At the close of the plaintiff’s case and again at the close of all the evidence the defendants asked instructions in the nature of a demurrer to the evidence.

Defendants hardly contend that there was no evidence tending to prove the cause of action stated in the petition, but do with great seriousness contend that the preponderance of the testimony was so greatly against the plaintiff that the verdict ought not to stand, and that is the argument on which is based also the complaint that the court erred in overruling the motion for a new trial. It is argued that the plaintiff’s own evidence showed that it would have been a physical impossibility for her to have fallen as she. said she did and as her friends who were with her said she did. As she came down the aisle, according to her testimony, she walked north in the direction of the stage, the seats she and her friends were to occupy were to her right, when she reached the seats she turned to the right with her face towards the east, her left foot was caught in the hole in the carpet and she was thrown down, she struck the arm of the chair with her left side and fell in a sitting position, her foot remaining in the hole in the carpet until it was removed with the assistance of one of her friends. The argument for appellant is that the disease, according to the physicians who attended her and operated on her, was on her left side, therefore the necessity for her to claim that she struck her left side in the fall, but that with her foot held fast in the hole, the arm of the chair which she struck being towards her right she could not have fallen against it with her left side and then have landed in a sitting position. It is also argued that the unquestionable character of the evidence showing that it was a new carpet which, after the theater season in which the plaintiff claims to have been injured was over, had been taken up and cleaned and replaced and no hole was found in it, that the theater was illumined with brilliant electric lights and no complaint heard from plaintiff until more than three years after the alleged accident, demonstrates that the plaintiff’s case is fictitious.

It is difficult to see how plaintiff could have fallen exactly as she and her friends said she did under the conditions mentioned, but if she fell at all she and her female friends might in the excitement of the occasion have been mistaken in some of the details yet accurate in the main important facts. That argument was doubtless pressed on the jury and afterwards on the trial judge and it being an argument on the facts we do not feel authorized to overrule the trial court on a point within its peculiar province. As to the respectable character of the defendants’ witnesses that too was a matter for the consideration of the jury and the trial judge. The plaintiff meets the fact that she refrained from making complaint to defendants for so long a time by saying that one of the ushers saw her fall and assisted her to rise and the inference is that he reported it to the defendants as he should have done.

We are not entirely satisfied that the verdict of the jury is in accordance with the preponderance of the evidence, but we do not feel justified in saying that the verdict could have resulted only from prejudice or passion. There was evidence of a substantial character to support it and the trial court having approved it we must let it remain.

II. The first instruction given for the plaintiff was to the effect that if the theater was dimly and insufficiently lighted, and the hole existed in the carpet and those facts rendered the aisle or passageway unsafe and dangerous to persons passing along or over it and that defendants knew or by the exercise of ordinary care would have known the unsafe and dangerous condition a sufficient length of time to have mended or removed the carpet and have provided proper light and that defendants neglected to do so, and that plaintiff purchased a ticket of admission and was being shown to a seat by a servant of defendants and was passing through the aisle exercising ordinary care, that her foot was caught in the hole in the carpet and in consequence she tripped and fell and received certain injuries, etc., then the verdict should be for the plaintiff.

Appellant complains of that instruction because it authorizes the plaintiff to recover, other facts being found, if she was herself at the time exercising ordinary care, without defining the term ordinary care as applicable to her then and there, and also that it ignores the affirmative defense of contributory negligence.

The instruction is followed by instruction numbered 2 which defines ordinary care to be “that care which an ordinarily careful and prudent person would use under the same or similar circumstances.” That, as a general definition, is correct and although such a general definition does not satisfy the requirements of all cases, for there are cases in which the conduct to be observed in order to .fill the requirements of ordinary care should be specified in the instruction (Dairy Co. v. Railroad, 98 Mo. App. 20; Hayden v. Railroad, 124 Mo. 566), yet it was sufficient in this case. Strictly speaking there is no affirmative plea of contributory negligence in the answer in this case; there is a plea to the effect that whatever injuries the plaintiff may have suffered were the result of her own negligence, but there are no acts of negligence on her part specified in the plea. But if there had' "been a plea of contributory negligence it would have made no difference, because there was no evidence that the accident was caused in any degree by any act of negligence on the part of the plaintiff. ' She was not bound to be on the lookout for holes in the carpet when the usher was showing her to the seat; she had a right, in the absence of any warning to the contrary, to presume that it was safe to follow where the usher led the way.

This is rather an unusual case. A hole in a carpet is not ordinarily such a menace to life or limb as would justify the court in assuming it to be dangerous to persons passing over it, and the question of whether it was in this instance of such a character that the proprietors of the theater ought to have recognized it as a danger to their patrons and have guarded against it was a question of fact for the jury. It is doubtful if the instruction now under discussion, was explicit enough in propounding that question to the jury: The language of the instruction on this point is: “If the jury believe . . . that defendants carelessly and negligently permitted to remain in the carpet covering the aisle or passageway on the west side of the balcony of said theater or building, a hole or opening about three inches in diameter in said, carpet and that said theater was dimly and improperly lighted along said aisle or passageway on the west side of said balcony of said theater and that said aisle or passageways were rendered unsafe and dangerous to persons attempting to pass along and over the same in order to reach the seats in the theater to see and witness the performance, and if you believe from the evidence that said aisles and passageways were dangerous and unsafe and that defendants knew,” etc. It cannot be said that the instruction failed entirely to submit to the jury the question of whether or not the hole and the insufficient light created a condition of danger, and the defendants ’ knowledge of it, but tlie fault with it is that it treats the hole in the carpet and the dim light as it would treat facts which constitute an obvious danger. If a person knows that he has left his cellar door open in a public sidewalk on a dark night he knows that he has set a mantrap, but we have no right to assume that a round hole in a carpet on the floor, three inches in diameter, even in a dark or dimly lighted room, is fraught with danger to life or limb; it may or may not be so according to circumstances, but in submitting the question to the jury they ought not to be left to judge by the result alone that it was dangerous, but should be instructed that although they might find that it resulted in the injury in this instance yet the defendants would be liable as for neglect of duty only in case the condition ■ was such that reasonably prudent men engaged in that business would by the exercise of ordinary care foresee or anticipate the danger. It is easier to judge that the condition was dangerous after the accident occurred than it was before, but defendants are not liable unless before the accident the condition was such that by the exercise of ordinary care they could have foreseen probable danger.

The instruction omits to submit this question in the concrete form that the facts in this ease call for, but the omission is supplied in an instruction given at the request of defendants. In instruction 12 for defendants the court said: “. . . The jury is instructed that negligence is not the proximate cause of an accident unless under all circumstances the accident might have been reasonably foreseen by a man exercising reasonable and ordinary care. It is not enough to prove that the accident is the nátural consequence of some negligence. It must also have been the probable consequence of the special act of negligence alleged as defined in the instructions, and before you can find a verdict for the plaintiff herein, you must find from the evidence that there was a hole in the carpet in the balcony of the Auditorium Theater, and that the defendants in the exercise of reasonable and ordinary care should have foreseen that such hole, if any existed, would in all probability cause an injury similar to that which is claimed to have happened on the 15th day of April, 1899.”

The plaintiff’s instruction is correct as far as it goes, and that of the defendants is in no respect in conflict with it, but it goes further and amends the defective statement of the hypothesis presented in plaintiff’s instruction. Taking the two together the question was fairly submitted to the jury.

III. In instruction number 3 for plaintiff it is said that it was the duty of defendants “to keep- every part of said theater used by the- patrons thereof in going and coming from the seats in a reasonably safe condition. ’ ’ Of this it is complained that it holds the defendants liable even though the hole in the carpet had occurred so shortly before the accident that defendants could not possibly have discovered it. Even if the instruction under other circumstances would have- been liable to that interpretation it could not have- been so understood in this case. The only evidence in the case bearing on the question of how long the hole had been there was that of one of plaintiff’s witnesses who stated that he had caught his foot in it and stumbled a week or two weeks before this accident. The evidence for the defendants was that there was no hole there at all. Under the other instructions the jury were bound to believe the plaintiff’s witness on that point before they could find for the plaintiff.

It is also- complained that this instruction 3 merely states what the defendants’ duty was in the particular mentioned, but does not say what the consequence of neglect of the duty would be, that is, that it was a mere abstract proposition of law. That is a just criticism, but we cannot see how any possible injury could have resulted from giving that instruction.

IV. Appellants contend that the court should have sustained their demurrer to the evidence because they were sued as partners and there was no evidence of partnership. There was no such issue as that to be tried. Section 746, Eevised Statutes 1899, provides that where plaintiffs or defendants sue or are sued as partners it shall not be necessary to prove the fact of partnership “unless the opposite party put such fact in issue by affidavit filed with the pleadings in the cause.” No such affidavit was filed. Besides, there was ample proof of the partnership.

V. The defendants asked an instruction numbered 2 which was in substance a copy of the petition and answer and was designed by defendants to be a presentation of the issues to the jury. The instruction was refused. ' There was no error in refusing that request. The issues that were to be tried were sufficiently defined in the instructions given and better within the comprehension of the jury than in the more elaborate technically wordy language of the pleadings.

The cause was well tried; if any mistake was made it was the mistake of the jury on the questions of fact, and that is beyond our province.

The judgment is affirmed.

All concur.


text:
    CUNNINGHAM et al., Appellants, v. EDSALL et al.
    Division One,
    December 22, 1906.
    1. REFORMING DEED: Evidence. An administrator’s deed to a deceased grantee cannot be reformed as containing. a wrongful description by a showing that the land was described in a set of abstract books by the same description it was conveyed by said grantee to plaintiff’s ancestor, and that by that description an eighty “east of the bayou” was described, and that intestate never owned any land “east of the bayou,” the administrator’s deed itself not being offered in evidence or its absence accounted for.
    2. -: -: Administrator’s Deed. To reform ai} administrator’s deed, on the ground of mistake in description, the petition, order of sale and notice of sale, all of which are required to correctly describe the land, should be offered in evidence; otherwise, it will be presumed that he sold the land he was ordered to sell.
    Appeal from Pemiscot Circuit Court. — Hon. Henry C. Riley, Judge.
    Affirmed.

      Varis & Oliver for appellants.
    (1) Courts of equity will treat that as done which the party agreed to do, so, where a party undertakes to convey land, but by a mistake in the description conveys land which he does not own, and which, as the record in this case shows, he never owned, equity will regard the deed as conveying the land actually owned by the grantors, and intended to be conveyed. Rhodes v. Outcalt, 48 Mo. 367; Key v. Jennings, 66 Mo. 370. (2) The error complained of in the conveyances sought to he corrected is a patent one, consisting, as it does, in the writing of the word.“six” as the number of the section in lieu of the word “five,” as it should have been written. In every other respect, the description was exactly correct. It was shown that the words of description, “east of the bayou,” applied to the land in section5, but not to that in section 6. Taking all of the facts in this case, the error is manifest and patent; equity will disregard the erroneous part of the description and give effect to the manifest intentions of the parties. Presnell v. Headley, 141 Mo. 187; Evans v. Greene, 21 Mo. 208; West v. Bretelle, 115 Mo. 653; Gibson v. Bogy, 28 Mo. 478; Jamison v. Fopiano, 48 Mo. 194; Cooley v. Warren, 53 Mo. 166; Shewalter v. Pirner, 55 Mo. 218; Brown v. Gibson, 82 Mo. 529; Deal v. Cooper, 94 Mo. 62; Burnett v. McCluey, 78 Mo. 676. (3) Plaintiffs were in possession of this land, and had held possession of it for three years before this action was brought. Prior to the taking of possession by plaintiffs, the land was wild, timbered land in the possession of no one. Neither the defendants nor any one under whom they claimed or might claim this land had ever been in the possession thereof. This possession on the part of plaintiffs raised a presumption of title. Dale v. Faivre, 43 Mo. 556.

      Oliver & Oliver for respondents.
    The deed sought to be reformed on the ground of mistake is a deed of an administrator. Before this deed could have been made, the administrator must have presented a petition to the probate court asking for the sale of this land. This petition should have clearly set out a description of the land 'sought to be sold. That petition is not offered in evidence. Before this deed could have been legally made, it required an order of sale by the probate court. The order of sale in the probate court should properly describe the land sold. No order of sale is offered to show a mistake. Before this deed could have been legally made, the administrator must have advertised the land for sale. That advertisement would show what land was intended to be sold. The advertisement of the administrator is not offered to show that the land sold was advertised as section 5. Before this deed could have been legally made, the law required the administrator to make a report of sale to the probate court. That report would show what land was sold, whether section 5 or 6. It was not offered. Before this deed could have been legally made by the administrator, the report of sale must have been approved by the probate court as a condition precedent. No order of approval is here shown to have been made. If any one of these several steps required in the probate court had been shown on the trial of this cause, and it was made to appear that the administrator was dealing with section 5 instead of section 6, there might have been some pretense for the appellants contending that there was a mistake in the deed from the administrator to Henry Edsall, but not a single offering of the above character can be found in this record, and for all that this court knows, every step taken in the probate court was taken with reference to section 6 which was sold. In fact, the law presumes, from the recital of the deed, that every step taken in the probate court was taken with reference to section 6 and not to section 5.
   BRACE, P. J.

This is a suit in equity to correct an alleged mistake in two deeds, in which, on the hearing, the plaintiffs’ bill was dismissed, judgment rendered against them for costs, and they appeal.

The plaintiffs are the sole heirs at law of Franklin Cunningham, deceased, and the defendants are the sole heirs at law of James R. Edsall, deceased.

James R. Edsall died in the year 1874 or 1875, seized and possessed, among other lands, of the following tract in the county of Pemiscot, to-wit: ‘ ‘ The south half of the southwest quarter of section No. five, east of the bayou, in township No. 17, north of range No. 12, east.” By warranty deed, dated May 4, 1886, Henry R. Edsall, since deceased, conveyed “the south half of the southwest quarter, east of the bayou, of section No. six in township No. 17, north of range No. 12, east” in said county, to Franklin Cunningham.

It is charged in the petition that the land which the said Franklin Cunningham purchased from the said Henry Edsall, and which was intended to be conveyed by said deed, was the land in section number five, aforesaid, but that by mutual mistake the land was described as in section number six. That the said Henry R. Edsall had purchased said land in section five “at the sale of the administrator of said James R. Edsall, deceased, ’ ’ and that by mutual mistake the deed of said administrator described the land as in section six instead of section five as intended, and that “the deed of conveyance from said Henry Edsall, deceased, to said Prank Cunningham, deceased, continued the same error. ’ ’ Wherefore, plaintiffs pray that the error in said deeds be corrected, and that the defendants be divested of title to the land aforesaid in section five and that the same be vested in the plaintiffs. Upon the allegations of the petition issue was joined by answer.

The only evidence introduced in proof of the allegations that Henry R. Edsall purchased said land in section five at the sale of the administrator of the said James R. Edsall and that by mutual mistake the deed of said administrator described the land as in section “six” instead of section “five” as intended, was the following entry in “'Carleton’s Abstracts of Pemiscot county: ’ ’

“No. 7. James R. Edsall’s administrator to Henry Edsall. Administrator’s deed, dated April 5, 1881. Consideration $217.50. Piled and recorded April 5, 1881, in book ‘F’ at page 158. Lands conveyed: The south half of the southwest quarter of section No. 6, east of the bayou, in township No. 17, north of range No. 12, east,-containing seventy acres, more or less.”

And evidence tending to-prove that the said James R. Edsall never owned the south half of the southwest quarter of section six; that, that land is not “east of the bayou,” and that the south half of the southwest quarter of section five which he did own at the time of his death is east of the bayou. ’ ’ That was the case made for the plaintiffs by the evidence.

The administrator’s deed which plaintiffs seek to reform was not offered in evidence, or its absence accounted for, and the only evidence that it ever existed or of its contents is the entry aforesaid in “Carleton’s Abstracts.” To the admission of thé entries in those abstracts, however, no objection, was made.

So that the chancellor was called on in this proceeding against the heirs at law of James R. Edsall, deceased, to correct an alleged mistake in a deed executed by his administrator, of the contents of which there was no evidence, except the entry in the abstract aforesaid, and as corollary thereto to divest the defendants of the title which upon the death of their ancestor descended to and vested in them, and vest their title in the grantee in such deed. The title of the heirs of James R. Edsall to the land of which he died seized could be taken from- them only by a proceeding in the probate court, in the manner pointed out by the statute. In, order thereto, it was necessary that there should have been a petition, an order of sale and a notice thereof, correctly describing the land — a sale of the land described, and approval of that sale by the court and a deed by the administrator made in pursuance thereof. The administrator could have intended to sell and convey no other or different land than that which he was ordered to sell, and there was no evidence in' the ease that the land which he conveyed by this deed was not the land which he was ordered to sell — if there was any snch order, of which, however, there is no evidence, nor is there any evidence of any proceeding in which such an order could have been made. If there was any such proceeding, the defendants were not privy thereto — it was hostile to them and their interests. Whatever power the administrator had over the land which descended to them was given to him by the statute and only by compliance with its requirements could they be divested of their title — nothing could be laid upon: their conscience by his acts. Administrators’ sales are judicial sales and to such sales the rule of caveat emptor applies. [Throckmorton v. Pence, 121 Mo. 50; Estes v. Alexander, 90 Mo. 453.] If the administrator’s deed was made in pursuance of a sale made by the administrator as in effect is charged in the petition, then the land conveyed must be presumed to be the land that he was ordered to sell, and if he was ordered to sell the south half of the southwest quarter of section, six east of the bayou, there was no mistake in the deed. The purchaser by the deed got just what he purchased. There is not a particle of evidence tending to prove that the administrator was ordered to sell the south half of the southwest quarter of section five east of the bayou, or of any proceeding under which he could have sold a tract of land by that description. Hence there was no evidence of any mistake in the administrator’s deed, and, as this was the vital question in the case; the trial court committed no error in dismissing the bill, and its judgment is affirmed.

All concur.