author: MOZLEY, C. PER CURIAM:

text:
    THE STATE ex rel. ST. LOUIS BASKET & BOX COMPANY v. GEORGE D. REYNOLDS et al., Judges, of St. Louis Court of Appeals.
    Division Two,
    September 15, 1920.
    1. CERTIORARI: Court of Appeals: Conflict in Opinions. In certiorari directed to a Court of Appeals on the ground that it bas refused or failed to follow the last previous ruling of the Supreme Court on some question of law or equity, the Supreme Court does not determine whether said court erred in its application of rules of law to the facts in the record-before it, but only whether in announcing the law of the case upon the -facts stated in its opinion it failed to follow the last previous ruling of the Supreme Court.
    2. NONSUIT: Renewed Within Year: Defective Pleading. An allegation in the petition that ¡the death of plaintiff’s father was due to defendant’s negligence, that their mother had failed to bring a suit for damages within six months that they had within one year of their father’s death brought an action for damages “and that plaintiffs suffered nonsuit in said action,” is a defective statement of a cause of action, is subject to amendment, and a judgment thereon will not be reversed because the petition did not specifically allege that the suit was brought within one year after nonsuit suffered, where it was admitted by defendant at the trial that the suit was renewed within a year. A judgment will not be reversed because of the omission of a necessary allegation on account of which omission a demurrer could have been maintained, but was not offered, except in the form of an objection to the introduction of testimony.
    3. -: -: -; Admission. An admission by counsel for defendant at the trial that the petition was filed within one year after nonsuit suffered, is binding on defendant, whether or not there be an allegation in the petition to that effect, and makes unnecessary proof of the fact; and such admission likewise makes unnecessary an amendment to the petition adding an allegation to that effect. Where a petition defectively states a cause of action, and an amendment supplying a necessary allegation would not change the nature of the action, an admission of the fact by the opposite party makes such amendment unnecessary.
    4. MOTION BOR NEW TRIAL: General Assignments: Instructions. Assignments in the motion for a new trial that “the court at the instance and request of plaintiffs and over the objection of defendant erred in giving improper and erroneous instructions to the jury” and “the court erred in refusing proper and correct instructions offered and requested by defendant” are sufficient in a civil case to require a review of said instructions on appeal; and the Court of Appeals in ruling that the assignments were couched in language too general to authorize a review of the instructions, failed to follow the decision of the Supreme Court in Wampler v. Railroad, 269 Mo. 464, which disapproves prior ruling on the point, and holds such general assignments are sufficient in civil cases.
    5. -:--: -: Reviewed Nevertheless. But if the Court of Appeals, in spite of the fact that it ruled the assignments in the motion for a new trial pertaining to the instructions were too general to require a review of them, proceeded nevertheless to review them and determined that no error was committed either in the giving or refusal of instructions, and in so ruling contravened no previous ruling of the Supreme Court, appellant was not harmed, and the judgment of the Court of Appeals will not be quashed, but only so much of its opinion as ruled that the assignments were too general to invite review will be quashed.

      Certiorari.

    Record quashed (in part); aeeir.med (in part).

      Kelley & Starke and Charles E. Miorrow for relator.
    (1) The petition does not state facts sufficient to constitute a cause of action. It shows upon its face that this suit was brought one year and ten months after the date of the death of deceased. While the petition alleges that plaintiffs had suffered a prior non-suit it does not allege that this, action was brought within one year after said non-suit; as required by the statute. The decision of the Court of Appeals on this question is in direct conflict with the following decisions of this court: Chandler v. Railroad, 251 Mo. 592; Clark v. Railroad, 219 Mo. 524. The limitation provided by the Damage Act creating’ this cause of action (R. S. 1909, secs. 5427, 5429) is not merely a remedy, but is a part of the action itself, and the petition must show that it was brought within the time allowed by law. (2) The petition was attacked by an objection to the introduction of any evidence at the beginning of the trial; again by a demurrer at the close of plaintiffs’ evidence, and also at the close of all the evidence in the case. The point was kept alive by a motion in arrest of judgment. But the fact that a petition fails to state a cause of action is jurisdictional and cannot be waived. It can be raised in the appellate court for the first time. The decision of the Court of Appeals on this question is in direct conflict with the following decisions of this court: Alward v. Boatwright, 193 S. W. 568; State es rel. v. Brewing Co., 270 Mo. 100; MeQuitty v. Wilhite, 218 Mo. 591; Hansen v. Neal, 215 Mo. 278; Cantwell v. Lead Co., 199 Mo. 42; Hudson v. Cahoon, 193 Mo. 547; Weil v. Green County, 69 Mo. 281; Chandler v. Railroad, 251 Mo. 592; Nance v. Railroad, 79 Mo. 196; Childs v. Railroad, 117 Mo. 427. The doctrine of the theory of the case tried below does not apply to this question. (3) The admission made by counsel at the trial that this suit was brought within one year after the nonsuit had only the effect to dispense with proof of the fact. Jones on Evidence, (2 Ed.), sec. 257; Greenleaf on Evidence (16 Ed.), see. 186. (4) The assignment in the defendant’s motion for new trial that the court erred in giving improper and erroneous instructions at the request of the plaintiffs and in refusing proper and correct instructions asked by defendants was sufficient to require a review of the instructions by the Court of Appeals. The decision of the Court of Appeals on this question is in direct conflict with the decisions of this court in Wampler v. Railroad, 269 M,o. 464; Stid v. Railway Co., 236 Mo. 382; Collier v. Lead Co., 208 Mo. 246; State v. Barrington, 198 Mo. 23; State v.' Noland, 111 Mo. 473. (5) The instruction permitting the plaintiffs to recover if the negligent acts therein referred to directly contributed to the death of the deceased, without requiring the jury to further find that said negligent acts directly contributed with causes other than the negligence of the deceased himself, is erroneous. The decision of the Court of Appeals on this question is in direct conflict with the decisions of this court in ICrehmeyer v. Transit Co., 220 Mo. 639; Hof v. Transit Co., 233 Mo. 445. (6) There was no evidence that deceased, was ordered or directed by the defendant to stand upon the wall of the tank, and defendant’s instruction withdrawing this matter from the jury should have been given. The decision of the Court of Appeals on this question is in direct conflict with the decisions of this court in Russell v. Barcroft, 1 Mo. 663; Higgins v. Railway Co., 197 Mo. 314. (7) The instructions on the measure of damages approved by the Court of Appeals is erroneous, because it permitted the jury to take into consideration the condition in life of the deceased, as well as the condition of the plaintiffs as shown by the evidence, and is in direct conflict with the decisions of this court in McGowan v. Railroad, 109 Mo. 518; Barth v. Railroad, 142 Mo. 535; McPherson v. Railroad, 97 Mo. 253; Stoher v. Railroad, 91 Mo. 509.

      Leonard & Sibley and Otto F. Karbe for respondents.
    (1) The facts in the case will be ascertained by the Supreme Court solely from the opinion rendered in the case by the St. Louis Court of Appeals. State ex rel. .Douglass v. Reynolds, 209 S. W. 101; State ex rel. Bankers Life v. Reynolds, 208 S. W. 618; State ex rel. Met. Ry. v. Ellison, 208 S. W. 443; State ex rel. St. Regis v. Reynolds, 200 S. W. 1039; State ex reh Shawhan v. Ellison, 200 S. W. 1044; State ex rel. Wahl v. Reynolds, 199 S. W. 978. (2) The Supreme Court will consider one question and only one question, and that is whether or not the decision of the Court of Appeals is in conflict with the latest previous rulings of the Supreme Court on the same point. State ex rel. Byrne v. Ellison, 199 S. W. 408; State ex rel. Wahl v. Reynolds, 199 S. W. 978. (3) The Supreme Court will not consider any argument directed to the claim that the decision of the Court of Appeals was wrong on the merits and worked injustice. The Supreme Court is only concerned to see that no decision of the Courts of Appeal establishes a rule of law contrary to a rule of law previously established by the. Supreme Court. State ex rel. Mech. Bank v. Sturgis, 208 S. WV 458; State ex rel. Byrne v. Ellison, 199 S. W. 406; State ex rel. Wahl v. Reynolds, 199 S. W. 978; State ex rel. Arel v. Farrington, 272 Mo. 157; State ex rel. Majestic Co. v. Reynolds, 186 S. W. 1073. (4) Although the opinion of the Court of Appeals conflicts with prior rulings of the Supreme Court in certain particulars, it will not be quashed upon certiorari if upon good reasons in law, the judgment directed by it was right. State ex rel. Am. Mfg. Co. y. Reynolds, 270 Mo. 589. (5) The writ of certiorari was issued on_a petition. The petition is required to set forth the "divergence relied on. Any matters not set .forth in the petition will not be considered. Matters of divergence may not be presented for the first time in the brief filed for the hearing. State ex rel. Byrne v. Ellison, 199 S. W. 408. (6) Whether or not the evidence justified the giving or refusing of a certain instruction, the contrary not appearing from the facts set out in the opinion of the Court of Appeals, is a matter for the Court of Appeals to pass on and is not a matter for the consideration of the Supreme Court. State ex rel. Natl. News v. Ellison, 176 S. W. 11; State ex rel. Arel v. Farrington, 272 Mo. 163: (7) A petition from which a material averment is omitted, will be amended or considered as though amended, when the fact or facts, averment of which was omitted, are provided by evidence introduced without objection thereto. Appellant, not objecting to the evidence, will be bound to the theory on which he must be considered as having proceeded, viz., that the issue was in the case, and will be held to have waived the right to object to the insufficiency of the petition. State ex rel. v. Scott, 104 Mo. 32; Sawyer v. Railroad, 356 Mo. 468; Bragg v. Railway Co., 192 Mo. 331; Tebeau v. Ridge, 261 Mo. 547; Machinery Co. v. Bottling Co., 273 Mo. 342; L. R. A. 3916D, p. 841. (8) The specifications of error in a motion for new trial that the court “erred in giving improper and erroneous instructions,” and “erred in giving each of the instructions,” and “erred in refusing proper and correct instructions,” are not sufficient to obtain review in an appellate court. But where the court does review them, it is immaterial whether or not the court was correct in expressing the view that the said specifications of error were not sufficient. Maplegreen Co. v. Trust Co., 237 Mo. 350; Kansas City Mfg. Co. v. Bates County, 201 S. W. 92; Wynne v. Wagoner Undertaking Co., 204 S. W. 15; Lampe v. United Rys. Co., 202 S. W. 438; Seitz v. Pelligreen Const. & Inv. Co., 203 S. W. 503; Baker v. Bakewell, 208 S. W. 844; State v. Duestrow, 137 Mo. 44; Chitty v. Railroad Co., 166 Mo. 445; Hanson v. Neal, 215 Mo. 277.
   MOZLEY, C.

Writ of certiorari issued by this court to the St. Louis Court of Appeals on February 15, 1919, and in obedience thereto the record of said cause is here for review.

Said record consists of the opinion of the St. Louis Court of Appeals, which is reported in 207 S. W. 891. The petition as set out in said opinion (omitting caption) is as follows:

“Plaintiffs state that they are the only lawful children of one John Probst, who was, on or about the 25th day of January, 1913, in the employ of defendant in its said factory and engaged under the guidance and control of defendant, in removing certain logs from a tank or vat filled with boiling water and live steam, which said vat was, at the time, being operated by defendant in connection with its said business.
“Plaintiffs state that at said time said tank-or vat was constructed of concrete and was rectangular in shape, with dimensions of about 14 feet by 28 feet; that it was sunk in the ground to a depth of several feet, and projected above the ground to a height of approximately two feet and nine inches; that the top of the walls of said tank were capped by a wooden plank approximately 14 inches wide, which ran around the walls of said tank; that the top of said tank was partly covered with loose planks or boards, and that said tank was not under any roof or other protection, but was exposed to the action of rain and the elements and was continually moist from the escaping steam and water; that on said date John Probst was employed in removing the steamed or boiled logs from said tank as aforesaid; and, as was the custom of the employees of said department, as defendant well knew *or by the exercise of reasonable care would have known, and as was the instruction of the defendant’s servants and agents in charge of said department of said factory, was standing upon the tank for the purpose aforesaid.
“Plaintiffs state that at said time there was no railing or handhold or other safety appliance of any kind provided on or about said tank, although it would have been entirely practicable to have afforded some protection, and it was negligent in defendant not to do so.
“Plaintiffs state, that defendant was maintaining and operating in said factory, at the times herein referred to, a derrick, which was situated near the south wall of said tank, and was used for the purpose of hoisting logs out of said tank; that said derrick was exposed to the action of the steam and rain and the elements, as was also said tank or, vat; that in consequence the wooden planks around the- top of the wall of said tank, as well the wooden cover thereof and the said derrick, were wet and slippery and the rope in said derrick was new and stiff and swollen and could be moved through the blocks in said derrick only with great difficulty, and all of said apparatus was in unsafe and improper and dangerous condition, as defendant well knew, or by the exercise of reasonable care would have known, and this condition was due to defendant’s negligence and carelessness.
“Plaintiffs further state that the poles and hooks-provided by defendant at said time for the use of plaintiff and other employees in getting the logs out of said vat were too short, defective, and not properly constructed for the purpose intended, and were dangerous for the use of plaintiff and other employees.
“Plaintiffs state that under all of these dangerous conditions, which plaintiffs allege existed long prior to and 'on or about said 25th day of January, 1913, said John Probst was instructed by defendant just before the scalding hereinafter alleged, to take logs out of said tank, and was repeatedly instructed and required to hasten in his work so as to render it impossible for him to safeguard himself against the consequences of the dangerous and negligent conditions above described; that at said time the water in said tank had been carelessly and negligently permitted by defendant to reach so low a stage that it was three or four feet below the top of the walls of said tank, "so as to make it very difficult to get. logs out of same; and plaintiffs state that while the said John Probst was standing upon the south wall of said tank, and while bending over for that purpose, said derrick swung near him and lightly touched him, or attracted his attention, and his foot slipped upon the wet and slippery footing aforesaid, and he fell into said vat, all because of defendant’s negligence and carelessness aforesaid.
“Plaintiffs further state that said0 derrick was, at said time, caused to swing, as aforesaid, by the endeavor of defendant’s representatives in charge of said operation to straighten out the rope in said derrick, which operation was rendered unreasonably difficult by reason of the unsafe and negligent condition of the derrick and its equipment aforesaid, and in pulling at the rope for the purpose above set out, the derrick was unexpectedly caused to swing near and lightly touch or attract the attention of said John Probst.
“Plaintiffs- further state that as a result of the carelessness of said defendant as above set out and in consequence of the falling into the said vat as above described, the said John Probst was scalded and burned over his whole body.
“Plaintiffs further state that he was removed to the Alexian Brothers Hospital in said City of St. Louis, where he died á few hours later from his said injuries.
“Plaintiffs state that defendant provided and maintained all the said apparatus and equipment, and controlled all the methods of operation used in said factory, and that the defendant was negligent and careless therein, in that the same were totolly inadequate and unsafe and dangerous, as defendant knew, or would have known by the exercise of reasonable care, and had it not been for the defendant’s said nearliu’ence and carelessness the said injuries and death would not have occurred.
“Plaintiffs further state that thev are the only lawful children the said John Probst ever had. and that he has no other lawful child or children; that their mother, Elizabeth Probst, was at all times hereinabove memtioned the lawful wife of said John Probst; that an action accrued to her as such wife because of the death, in the manner above related, of the said John Probst, but that the said mother, Elizabeth Probst, never brought or prosecuted any action against this defendant for causing such death, within the period of six months after such death, as allowed by the statutes of this State to said mother, and by reason whereof a cause of action has accrued' to plaintiffs, the minor children of said deceased John Probst.
“Plaintiffs further state that they did heretofore and within one year of the time of said death, bring an action for damages against the defendant herein on the same cause of action set forth in this petition, and that plaintiffs suffered a nonsuit in said action.
“Plaintiffs state that because of the negligence of defendant in causing the death of their father as above set forth they have been damaged in the sum of ten thousand dollars, for which sum and the costs of this .action they pray judgment.” (Italics ours).

Appellant filed an answer on the merits consisting of a general denial and a plea of contributory negligence. The reply was a general denial.

The defendant, it will be noted, did not file a demurrer to the petition, but answered yto the merits as above stated. After the first witness was sworn and before any evidence was introduced appellant made an ore tenus objection to the introduction of evidence “because the petition does not state facts sufficient to constitute a cause of action.” The objection was overruled. Neither before nor during, or after the trial, did counsel for defendant point out to the trial court wherein he thought the petition did not state a cause of action, but. here on appeal learned counsel for appellant argues with great earnestness that plaintiffs’ petition does not state a cause of action because it fails to allege the time when the nonsuit was had, and that the present action was “brought within one year after the judgment of non-suit against plaintiffs.”

The trial resulted in a judgment for five thousand and five hundred dollars, in plaintiffs’ favor, which was affirmed by said Court of Appeals.

Appellant contends that the opinion of said Court of Appeals, in holding that the overruling of his demurrer by the trial court was well enough; in holding that the instant suit was brought by plaintiffs in time, under the provisions of Section 5425, Revised Statutes 1909, and in holding’ that appellant’s assignments in his motion for new trial respecting the giving and refusing of instruction were too general to warrant a review thereof by this court, are in conflict with the following-authorities: (1) relating to the demurrer, Chandler v. Railroad, 251 Mo. 592; Clark v. Railroad, 219 Mo. 524; Alward v. Boatwright, 193 S. W. 568; State ex rel. v. Brewing. Co., 270 Mo. 100; McQuitty v. Wilhite, 218 Mo. l. c. 591; Hanson v. Neal, 215 Mo. l. c. 278; Cantwell v. Lead Co., 199 Mo. l. c. 42; Hudson v. Cahoon, 193 Mo. 547; and (2) to the assignments in the motion for new trial being too general to warrant a review by the court, Wampler v. Railroad, 269 Mo. 464; Stid v. Railroad, 236 Mo. 382; Collier v. Lead Co., 208 Mo. 246; State v. Barrington, 198 Mo. 23; State v. Noland, 111 Mo. 473.

I. In the case of State ex rel. v. Goodrich, 257 Mo. l. c. 47, it was held by Walker, J., as follows:

“Under our procedure the office of the writ of certiorari is the same as at common law, and, consistent with the letter and spirit of existing statutes, our courts may Properly adopt the usages and principles applicable to the issuance of the writ as same inay have been developed under the common-law system. The office of the writ as developed under our procedure, following the precedents of the common law, is to bring the record of the proceedings of inferior courts before a superior court to determine the legality of the former’s acts. The writ, therefore, brings up for review the record proper.
“In writs of certiorari, such as in the instant case, we are limited to the question of conflict.” [214 S. W. 369.] “Under its latest rulings this court is not to determine whether the St. Louis Court of Appeals erred in its application of rules of law to the facts in the record before it, but only whether in announcing the law of the case upon the facts stated in its opinion it failed to follow the last previous ruling of this court.” [State ex rel. Peters v. Reynolds, 214 S. W. l. c. 122, and cases cited.]

The crux of appellant’s contention as to the demurrer is wrapped in the following averment in the petition: “Plaintiffs state that they did heretofore and within one year after the time of said death, bring an action for damages against the defendant herein on the same cause of action set forth in this petition, and that plaintiffs suffered a nonsuit in said action.” (Italics ours.)

An examination of the authorities cited supra, will conclusively show that they have no application to the' ease in hand, because the facts are different. In this case the very point appellant sought to reach by its verbal demurrer, that is, when the nonsuit was had and that the suit was not rebrought in time under the statute, it later, in open court and during the progress of the trial, admitted to be incorrect.. While plaintiffs were attempting to offer the nonsuited petition in evidence, the following occurred:

“The Court: Do you admit filed in time?
Mr. Kelley': It is, yes, sir, the children’s suit was. I will admit he filed suit within a year after the nonsuit; no use denying the record.”

We think, as ruled by the Court of Appeals, that said admission by counsel was binding on appellant. [Pratt v. Conway, 148 Mo. l. c. 299; 1 R. C. L. p. 469, par. 4; O‘scanyan v. Arms Co., 103 U. S. 261; Butler v. Natl. Home, 144 U. S. 65; Tebeau v. Ridge, 261 Mo. l. c. 558; 1 Greenleaf on Evidence (16 Ed.), sec. 205; 2 Jones on Evidence (2 Ed.), sec. 257.]

And being thus bound the necessity for offering proof as to the filing of the present suit within the time required was waived. Counsel for appellant, as above stated, admitted that it was filed in time, and counsel for plaintiff was endeavoring to prove that it was filed in time, which endeavor evoked the admission. We think the fact that it was filed in time ought to be taken as settled.

Moreover, had the admission not been made, we think the petition was amendable since an amendment would not have changed the nature of the action. It was said in the Tebeau case, supra, that “ ‘Our statute of amendments is very broad, and we are forbidden to reverse any judgment “for omitting any allegation or averment without proving which the triers of the issue ought not to have given such verdict.’ ” Or “for the want of any allegation or averment on account of which omission a demurrer could have been maintained.” [R. S. 1889, sec. 2113, which is now Sec. 2119, R. S. 1909; Seekinger v. Mfg. Co., 129 Mo. l. c. 598; Grove v. Kansas City, 75 Mo. 672.] The cause of action was merely defectively stated in the' petition and could have been, as above stated, amended had that not been rendered unnecessary by appellant’s admission supra, that the petb tion had been filed in time. We think the Court of Appeals ruled correctly in sustaining the overruling of appellant’s demurrer and that appellant’s admission, supra, was binding on him.

II. The opinion further sets forth the court’« ruling on the refusal to review the instruction complained of because they were couched in language too general, as follows: ‘ ‘ The court at the instance and request of plaintiffs and over the objection of defendant, erred in giving improper and erroneous instructions to the jury,” and, “the court erred in refusing7proper an<^ • correct instructions offered and requested by defendant.”

The court cited in support of said proposition the cases of Disinfecting & Mfg. Co. v. Bates County, 273 Mo. 300; Polaski v. St. Louis, 264 Mo. 458; Wampler v. Railroad, 269 Mo. 464; State v. Rowe and Sanders, 271 Mo. 88.

All of these cases except the Wampler case distinctly support said proposition. In citing these cases as supporting the proposition that said assignment in the motion for new trial are too general to justify this court in reviewing them, the learned Court of Appeals was in error. The Wampler case holds that assignments in the motion for new trial as general as those in the case at bar are sufficiently specific for this court to review the points raised. In the recent case of State ex rel. United Rys. Co. v. Reynolds, 278 Mo. 554, 213 S. W. 782, the Wampler case is held to be the last expression of this court to the effect that such general assignments in the motion for new trial are sufficient for review here, and that other cases holding such assignments to be too general to justify a review here should not longer be followed.

The citation of said authorities that the assignments in the motion for new trial were too general must be disregarded.

II. The learned judge who rendered the opinion in the court of Appeals further held as follows:

“However, we have examined each of these assignments of error relating to the instructions and have con-' eluded each of them to be without merit. Furthermore, the instructions in the case show that the learned trial judge very properly narrowed the issues in the ease by instructions withdrawing from the jury’s consideration of such issues as had not been supported by testimony adduced on plaintiff’s behalf, and the instruction as to the remaining issues covered the case fully and fairly.”

Thus the court expressly holds that it did' review the instructions complained of and determined that they presented no error. In view of this fact we are unable to understand how relator is harmed.

The court further set out the facts on the merits of the case, and sustained the trial court in overruling relator’s demurrer offered at the close of the testimony, and in submitting said facts to the jury, for their determination, which returned a verdict for plaintiff for $5,500.

The fact that the court cited authorities to the. effect that the assignments in the motion for new trial were too general for review in that court or in this court, does not in anywise affect the merits of the case and would not justify us in quashing the entire record. We simply quash that portion of the record holding that the motion for new trial was too general, so that this opinion may harmonize with the last expression of this court, as set forth in the authorities, supra. [State ex rel. v. Reynolds, 270 Mo. l. c. 602.]

In this case, Judge Graves, speaking for the court, said: “We do not agree to the opinion of the Court of Appeals in so far as it says that there was a voluntary payment of these taxes, but the judgment entered by that court is a proper one and should not be quashed. The Constitution makes the opinion of the court a part of its record, and we will quash such portion pf its record for the reason assigned in our paragraph one, but will permit its judgment to stand, because for the right party. ’ ’

The judgment of the court in the instant case is a proper one, and while we will quash that portion of its

record indicated, we will permit the judgment to stand, because for the right party. It is so ordered.

White, C., concurs; Bailey, G., not sitting.

PER CURIAM:

The foregoing opinion of Mozley, C., is hereby adopted as the‘opinion of the court.

All of the judges concur; Walicer G. J,, in the result.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    THOMAS H. WILHITE et al. v. MARGARET A. WILHITE, Appellant.
    Division Two,
    September 15, 1920.
    1. CONVEYANCE: To Husband and Wife: Share and Share Alike: Deed by Entireties. In a deed to a husband and wife the words “share and sha-re alike” if inserted in the operative parts of the deed (in the granting clause or the hebendum) will create a tenancy in common; but if the words appear in the premises as a recital merely, and may refer to the consideration paid and not the estate acquired, they are ineffectual to create a tenancy in common. So that where the deed read that “this indenture by and between Westly Wright, party of the first part, and William Wilhite and Margaret A. Wilhite, share and share alike, parties of the second part, witnesseth that the said party of the first part, in consideration of the sum of sixteen hundred dollars, to me paid by the said parties, does, by these presents, grant, bargain and sell, convey and confirm, unto said parties of the second part, their heirs and assigns,” etc., the habendum being “unto said parties of the second part and’ unto their heirs and assigns forever,” the words “share and share alike,” not being in the operative part of the deed which vests and confirms the title, did not make the grantees co-tenants, but created an estate by the entireties.
    2. -: -: -: -: Reformation. Conceding for the purpose of this case that where an instrument is drawn in language the legal effect of which the parties misunderstood and which expresses what the parties did not intend to express a court of equity will reform it so as to make it conform to their intention, it is nevertheless ruled that a deed cannot be reformed on the ground ■ of mistake unless the mistake was mutual and it was written in terms which violate the understanding of both parties. The mistake must occur in reducing to writing the contract upon which the parties had agreed, and if there was no agreement that the husband and wife were to own the land as cotenants, a deed which in its operative part conveyed it to them as tenants by the entireties cannot be reformed into a deed creating a cotenancy. And in this case, where the husband and wife each contributed $800 of the purchase price of land, and there was no agreement or understanding between them as to what interest each should own, the evidence is entirely insufficient to authorize a reformation of the deed.

      3. -: Deed, by Entireties: Resulting Trust in Favor of Heirs. No resulting trust arises in favor of the children of the husband from the fact that he paid one-half of the consideration for the deed vesting the title in him and his wife as tenants by the entireties. The presumption is that where the husband paid for the land and had it conveyed to his wife it was a gift to her; and while in some instances the wife may have a resulting trust declared in her favor .in proportion to the amount paid by her, such a remedy is not available to the husband.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    Reversed.

      Don G. Carter for appellant.
    (1) The testimony in this case was not sufficient to authorize a court of equity to reform the deed. Dougherty v. Dougherty, 204 Mo. 228; Robinson v. Korns, 250 Mo. 675; Parker v. Vanhoozer, 142 Mo. 621; Benn v. Prichett, 163 Mo. 571; Siling v. Hendrickson, 193 Mo. 365; Brooking v. Straat, 17 Mo. App. 296; Crouch v. Thompson, 254 Mo. 487; Whittaker v. Lewis, 264 Mo. 215; Stephens v. Stephens, 183 S; W. 572; Frederick v. Henderson, 94 Mo. 98; Fanning v. Doan, 139 Mo. 392; Wolz v. Venard, 253 Mo. 82; Pomeroy’s Equity Jurisprudence (3 Ed.), sees. 879, 1376; Bisham’s Prin. of Equity, sec. 469; 34 Cyc. 906-991; 23 R. C. L. secs. 20, 49, 65, 67. (2) The judgment and decree is for the wrong party; Under all the evidence in the case, and under the law, the judgment and decree should have been for defendant.

      L. T. Searcy and Ralph T. Finley for respondents.
    (1) The second point of assignment of error made by appellant to the effect that the decree was “for the wrong party” and “should have been for the defendant” presents nothing for review. Greensf elder v. Hardware Co., 189 Mo. App. 583; Koch v. Shepherd, 193 S. W. 603. Parties cannot submit a case on appeal without an assignment of error. A defense not assigned' as error cannot be considered. Snyder v. Hopkins, 30 Mo. 41.8; Planning v. Railway Co., 97 Mo. 195; Sanford v. Railway Co., 40 Mo. App. 15. (2) Since the court upon proper pleading and proof vested title in plaintiffs on the theory of resulting trust, against which action no error is assigned, the. judgment must be affirmed even though the deed was erroneously reformed. If there be error in that part of the judgment decreeing reformation it is harmless. Majors v. Cryts, 240 Mo. 391;. King v. King, 182 S. W. (Mo-. App.) 1048; Parkyne v. Churchill, 246 Mo. 115; Reynolds v. Reynolds, 234 Mo. 152. (3) The decree of the trial court properly vested the title in the parties, giving plaintiffs one-half, subject to the dower interest of the defendant, (a) When William Wilhite and Margaret A. Wilhite each paid for one-half of the land in question, there was a resulting trust in each to the extent of their respective payments. Jones v. Elkins, 143 Mo. 651; McLeod v. Venable, 163 Mo. 545; Johnston v. Johnston, 173 Mo. 117; Frost v. Frost, 200 Mo. 474. (b) There being no dispute about the facts authorizing a finding that there was a resulting trust, and since there is no evidence, nor charge against the husband, William Wilhite, that he wrongfully intended to create an estate by the entirety, his heirs are entitled to a decree on the theory of such resulting trust. Moss v. Ardrey, 260 Mo. 595; Donnovan v. Griffith, 215 Mo. 166. (4) The evidence was sufficient to authorize a. reformation of the deed, (a) The deed itself, containing the ambiguous clause, “share and share alike,” is evidence, not resting on parol, which should be taken into, consideration in determining the intention of the parties. Williamson v. Brown, 195 Mo. 329; Tennison v. Walker, 190 S. W. 12. (b) The fact that each grantee paid one-half of the purchase price should be considered in determining what character of deed they should or might desire to make. Under the law one paying for land is entitled to a conveyance, and there is no evidence, other than an ambiguous deed that an estate by the entirety was intended, (c) The evidence shows no intention on the part of either Mrs. Wilhite or her husband to create an estate by the entirety, and no such intention should be assumed or inferred. Johnston v. Johnston, 173 Mo. 119. (d) The scrivener, C. H. Early, was clearly the agent of both grantor and grantees in the deed in question, and his mistake was the mistake of both. Brown v. Tusehoff, 235 Mo. 459; Brooking v. Straat, 17 Mo. App. 305; 24 Cyc. 910, 911; Whittaker v. Lewis, 264 Mo. 215; Williamson v. Brown, 195 Mo. 329. (e) The husband of defendant was her agent in the purchase of this land, She cannot take the benefit of his acts, and also repudiate his agency. R. S. 1909, sec. 8304; Kirkpatrick v. Pease, 202 Mo. 490; Rice, Stix D. G-. Co. v. Sally, 176 Mo. 124; Shinn v. Mule Co., 109 Mo. App. 557; Porter v. Woods, 138 Mo. 539.
   WHITE, C.

This suit is brought to determine title to forty acres of land in Callaway County. The defendant, Margaret A. Wilhite, is the widow, and the plaintiffs are the heirs at law, of William Wilhite, deceased.

In December, 1903, William Wilhite and Margaret A. Wilhite purchased and had conveyed to them by Wesley Wright the forty acres of land in dispute.

William Wilhite and his wife had no children since their marriage, but each had children by a former marriage, none of whom lived with them. They moved on to the land at the time of the purchase, and lived there until the death of William Wilhite, which occurred in September, 1910. Margaret Wilhite continued in possession of the land until the filing of this suit in March, 1918. In the' purchase of the land William Wilhite and Margaret A. Wilhite each paid $800 to Wesley Wright, as consideration, and the deed recites the consideration of $1600 as paid by both. The introductory recitals and the granting clause in the deed are as follows:

“THIS INDENTURE, Made on the...3d.., day of December____A. D. One Thousand Nine Hundred---- & Three. .. .by and between............Wesley Wright .........unmarried... ■......County of:.....Calloway .... State of........Missouri............part----y... of the First Part, and............William Wilhite and Margarett A. Wilhite,...........'.......share & share alike..........of the County of......Boone......, in the State of... .Missouri...., part... .ies.... of the Second Part:
“Witnesseth, That the said part. .y.. of the First Part, in consideration of the sum of.............Sixteen hundred.....x.....x.....x.....x.....x.....Dollars, to.. .me.....paid by the said part.. .ies... of the Second Part, the receipt of which is hereby acknowledged, to. .. .by these presents, Grant, Bargain and Sell, Convey and Confirm, unto the said part.. .ies... of the Second Part.. .ies... their.. . .heirs and .assigns, the following described Lots, Tracts or Parcels of Land, lying, being and situate'in the County of Calloway and State of ¡Missouri, to wit:”
Then follows a description of the property. The habendum is “unto said parties of the second part and unto their heirs and assigns forever” and the usual covenants “unto the said parties of the second part and unto their heirs and assigns forever.”

The aprended petition upon which the cause was tried sets out in the usual form a cause of action to determine title under Section 2535; it then alleges the relationship of the parties, describes the deed by which the property was acquired, and alleges that it was the intention of the parties by the said deed to vest the title in William Wilhite and his wife as tenants in common, and not as joint tenants. The petition then prays the court to determine the title, asserting that said deed by the use of the words “share and share alike” in the recital creates a tenancy in common and asks the court to determine the title of the parties; but in alternative prays if the court should find the deed in form vests an estate other than a tenancy in common in Wiiliain Wilhite and Margaret A. Wilhite, that the same be reformed so as to conform to the intention of the parties.

The answer admits the allegations as to the relationship of the parties, alleges the payment by each of grantees of $800 of the consideration money, asserts title in the defendant as the survivor of her husband in that the deed vested the title in them by the entireties, and prays the court to ascertain and determine the title.

The court, after hearing the evidence, found the facts as to the relationship of the parties and the payment of the purchase money as above set out, and held that the deed on Its face purported to convey an estate hv the entireties, but that such was contrary to the intention of the parties, which was to create a tenancy in ■ common, ordered the deed reformed by inserting in the habendum the words “as tenants in common and not as tenants by the entirety,” and adjudged that the plaintiffs were entitled to an undivided half interest in fee simple .in the premises, subject to the dower and homestead interest of the defendant in the same. The defendant from that judgment appealed to this court.

I. There is no doubt but that the use of the words “share and share alike” if inserted in the operative parts of the deed, in the granting clause or in the habendum, would have created a tenancy in common. The words are inconsistent, when properly used,- with the existence of a joint tenancy or a tenancy by the entirety. [2 Jarman on Wills, p. 1791; Freeman on Co-Tenancy, sections 23 and 25; Kellogg v. Burnett, 74 N. J. Eq. 304, l. c. 308; Jenne v. Jenne, 271 Ill. 534; Adams v. Woolman, 50 N. J. Eq. l. c. 521; Shattuck v. Wall, 174 Mass. 167, l. c. 169.]

Bnt it will be noticed the words “share and share alike” appear in the premises of the -deed as a recital merely. They may have referred to'7 the consideration paid and not to the estate acquired. Recent cases have come before this court in which similar expressions in the premises or introductory part of a deed were held to be ineffectual to create a tenancy in common. [Ashbaugh v. Ashbaugh, 273 Mo. 353, l. c. 358, 359-60; Wilson v. Frost, 186 Mo. 310, l. c. 321.] The operative part of the deed which vests title and confirms it in the grantee are in a form which would.create a tenancy by the entireties.

It is a rule that operative words are necessary to vest an estate and that the intention must be ascertained from the language actually used and not what the grant- or may have meant to say. It is also held that the intention of the grantor as gathered from the four corners of the instrument must control unless it conflicts with-the settled rule of law. [Ashbaugh v. Ashbaugh, 273 Mo. l. c. 360.]

The trial court, therefore, was right in holding the deed on its face vested an estate by entireties in William Wilhite and Margaret A. Wilhite. The effect of such an estate is fully explained in a recent case by this court, Brewing Co. v. Saxy, 273 Mo. 159, where the authorities are reviewed at length.

II.- It is unnecessary to inquire to what extent a mutual mistake of law would warrant reformation of an instrument. It may be conceded for the purpose of this discussion that where an. instrument is drawn in language the legal effect of which the parties misunderstand and which expresses what the parties did not intend to express, a court of equity will reform the contract so as to conform to the intention of the parties. [Williamson v. Brown, 195 Mo. l. c. 331; Corrigan v. Tiernay, 100 Mo. l. c. 280-281; McKim v. Met. St. Ry. Co., 196 Mo. App. l. c. 547-8.]

However, before a court of equity will entertain a bill to reform a contract on the ground- of mistake the mistake must be mutual. That is, the contract must be written in terms which violate the understanding of both parties. [Meek v. Hurst, 223 Mo. 688, l. c. 696; Benn v. Pritchett, 163 Mo. l. c. 571-572; Wolz v. Venard, 253 Mo. l. c. 82.] The mistake must occur in reducing to writing the contract upon which the parties had agreed; the prior agreement upon the terms of the contract is presupposed. [Parker v. Vanhoozer, 142 Mo. l. c. 629; Robinson v. Korns, 250 Mo. l. c. 675; Dougherty v. Dougherty, 204 Mo. l. .c. 237.] Proof of the prior agreement, which was erroneously written by mistake, must be clear and convincing. [Wall v. Mays, 210 S. W. 871, l. c. 872; Crouch v. Thompson, 254 Mo. l. c. 487; Horine v. Royal Ins. Co., 201 S. W. l. c. 959.]

An examination of the evidence offered in this case shows it is entirely insufficient to meet the.requirements suggested. The only witnesses who testified in relation to the deed under consideration were Mrs. Wilhite, the defendant, Mr. Wesley Wright, the grantor,, and C. H. Early, the scrivener who wrote the deed and took the acknowledgment. . Mrs. Wilhite testified that she and her husband each contributed $800 to the purchase price of the land; that she was sick at the time the conveyance was made and was not present; that she had no understanding whatever with Mr. Wilhite as to the form in which the deed should be written or the manner in which the title should be vested. They simply agreed to buy the place and she gave her husband her share of the money and he went to Fulton and brought home the deed. She never talked with Mr. Wright about it nor with Mr. Early.

Early testified that he did not recall any specific directions other than what was shown in the deed. He did not recall why the words “share and share alike” were put in after the names of the grantees; he could” not say whether Mr. Wilhite said anything to Mm at all about the effect of the instrument or what effect he wanted it to have. The opinion of the witness was that use of the words “share and share alike’” as he wrote them in the deed would make the grantees “partners in the-purchase of this land.” He supposed he was representing Mr. Wright, the grantor, in writing the deed, because Mr. Wright asked him to write it. He didn’t remember whether Mr. Wilhite and Mr. Wright had any agreement between themselves as to the effect of the kind of an instrument it was desired to make. He didn’t recall whether Mr. Wilhite told him at- any time prior to the making of the deed that he had an agreement as to the kind of deed that should be made. He could not tell whether the words “share and share alike” were inserted as they were at the instance of Mr. Wilhite or at his own instance. He got his impression of what occurred and what directions were given him “from the reading of this deed.” He thought the use of the words would create a tenancy in common. He could not say that Mr. Wilhite used the words, but he judged that it was Wilhite’s intention to use such words “that caused me to put those words in there.” Mr. Wright gave him no directions at all as to what to put in the deed.

Wesley Wright testified that he supposed Wilhite told Early how he wanted the deed written, but he did not recall that Mr. Wilhite gave Early any instructions as to how the deed should be written. He never heard any conversation between Mr. and Mrs. Wilhite as to how the deed should be made.

This evidence fails in several particulars. It fails to show that there was any agreement between Wilhite and Wright or between Wilhite and his wife as to what kind of a deed they desired to have, or as to how they desired the title to be vested. There isn’t a shadow of evidence of any understanding between the parties in that respect. There is only a bare suggestion that Wilhite himself desired the deed to express something different from its legal effect as written, but just what that intention was is not proven by anything that he is shown to have said to the scrivener. The scrivener testified that the use of the words “share and share alike” as he used them in the deed, he thought, would create a tenancy in common, but be does not say that Mr. Wilhite thought so, or that Mr. Wilhite said anything to indicate he understood such would be the effect of the words. He is not certain that Wilhite used those words or any words similar in import. He only gathers.from the instrument itself, not from any independent recollection, that he wrote it as he was directed to write it.

The witness said at one point in his cross-examination,- “I knew only what this deed indicates to me.” So the alleged erroneously written contract was not proven. No mistake, mutual or otherwise, was proven with that clearness necessary to authorize a reformation. The evidence was entirely insufficient to warrant the finding and judgment of the trial court.

III. It is claimed by the respondent that a trust results in a half interest in favor of the heirs of Thomas Wilhite, because he paid one half the purchase money. The trust which results from the payment of purchase money does not arise where a husband purchases and has the land conveyed' to his wife. Prima-facie the presumption is that it was a gift to his wife. [Viers v. Viers, 175 Mo. l. c. 453; Curd v. Brown, 148 Mo. l. c. 92.] In such case,* in some instances, the wife may invoke the aid of a court of equity and have a resulting trust declared in her favor in proportion to the amount paid by her, but such a remedy would not be open to the husband. [Moss v. Ardrey, 260 Mo. 595, l. c. 611 and 612; Bender v. Benler, No. 21115, not yet reported.]

The judgment is reversed.

Railey and Mosley, GG., concur.

PER CURIAM:

The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


author: WALKER, J.

text:
    BERNICE HURLBURT, Administratrix of Estate of WILLIAM W. HURLBURT, v. B. F. BUSH, Receiver of MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    Division Two,
    September 15, 1920.
    1. GENERAL AND SPECIFIC ACTS: Interpretation: Exception. Where there is an apparent contradiction or conflict between a general and specific statute relating to kindred subjects, whether in the same or in' different legislative acts and regardless of priority of enactment, they should be so construed that both may subsist, the specific statute being regarded as qualifying or supplying exceptions to the general. And especially should this be the rule where the general statute contains words specifically excepting the special act from its operation.
    2. -: Kansas Compensation Act: Railroad Employers’ Liability Act: Injury to Engineer. The Kansas Railroad Employers’ Liability Act of March 7, 1911, relating to the operation of railway “engines, cars and trains,” is an exception to the Kansas Workmen’s Compensation Act of March 14, 1911, relating to the compensation of servants for personal injuries while engaged in any hazardous employment, except agricultural pursuits and interstate commerce, etc.; and an action for the recovery of damages for the death of an engineer who was killed in intrastate commerce when his engine left the track, should be based upon and is governed by said former special act.
    3. NEGLIGENCE: INSTRUCTION: Comment on Evidence. Where plaintiff’s husband was killed when the engine on which he was engineer left the track at a curve, clauses in the instruction that “if you find that the roadbed at the place in question was ballasted with dirt and by reason thereof was inadequately and insufficiently ballasted” and “if you further find that the rails on said road were fifty-six-pound rails and were old and worn and were too light and insufficient to sustain the weight of the trains and engines running over them,” are not improper comment on the evidence, but simply hypothesize the facts the jury must find before they are authorized to conclude that the track was insufficiently ballasted or the rails too light to sustain the' weight of the engine.

      3. --: -: Measure of Damages: Loss of Husband and Father. The measure of damages, in an action brought by the administratrix for herself as widow and for her children for the death of a husband and father in Kansas, is his income or present worth to his family at the time of his death; and the instruction on the subject, set out in full in this case, does not authorize a recovery “in such lump sum as the family had reasonable grounds to expect from the deceased,” as contended by defendant, but such sum as will reasonably compensate the widow and children for any necessary pecuniary loss sustained by them by reason of his death, taking into consideration his age, habits, earnings, personal expenses and expectancy in life and the age of the members of his family.
    4. -: -: -: -: Limited in Application. If defendant desires that an instruction on the measure of damages, correct in its general expressions, should be qualified or limited in its meaning, he should request an instruction to that effect.
    5. APPELLATE PRACTICE: Waiver. Subordinate contentions made at the trial, but omitted from the assignment of errors and in no wise referred to in appellant’s brief, are to be regarded on appeal as abandoned.
    Appeal from Jackson Circuit • Court. — TLon. W. O. Thomas, Judge.
    Affirmed.

      Edward J. White, Thomas Hackney and Leslie A. Welch for appellant.
    (1) Statutory causes of action for death, under Kansas laws are enforced in Missouri only on grounds of comity. Newlin v. Railroad, 222 Mo. 391; Tost v. Railroad, 245 Mo. 2:34; Woodard v. Bush, 282 Mo. 163. (2) Plaintiff’s only remedy for the death of Hurlburt under the Kansas law is the Kansas Compensation Act of 1911 as amended in 1913. Frere v. M. K. & T. Ry. Co., 94 Kan. 57; Unrine v.' Salina Railroad Co., 104 Kan. 236; Benson v. Bush, 104 Kan. 198; C. R. I. & P, Ry. Co. v. Fuller, 105 Kan. 608; Shade v. Cement Co., 92 Kan. 146; McRoberts v. Zinc Co., 93 Kan. 364. (3) Plaintiff’s instruction C-l would have been erroneons, because it illegally commented on the evidence, even if the Compensation Act had not been applicable to this action. (4) Plaintiff’s instruction number four authorized an illegal and improper measure of damages, even- if the Compensation Act had not controlled this action. Chesapeake & Ohio Railroad Co. v. Keely, 241 U. S. 485, 36 S. C. Rep. 633; Smith v. Pryor, 195 Mo. App. 259, 265.

      Atwoocl, Wiohersham, Hill & Popham for respondent.
    (1) Defendant admitted deceased Hurlburt was engaged in the scope of his employment in working for the defendant in carrying on intrastate commerce at the time he received his mortal injury. Defendant’s liability is to be measured by the Kansas Railroad Employer’s Liability Act of March 7,1911 (Laws 1911, pp. 437 to 438, G-eneral Statutes Kansas 1915, secs. 8480 to 8485.) The Workmen’s Compensation Law of 1911 passed by the same Legislature a week later does not apply, because Section 48 of this. Act (R. S. 1915, Sec. 5942) clearly, unconditionally and unequivocally excepted from its operation the Railroad Act under which this case was' tried. The Railroad Act has been repeatedly interpreted and applied .by the Supreme Court of Kansas since its enactment. Defenbaugh v. Union Pac. Railroad Co., 102 Kan. 572; Ballou v. Railroad, 95 Kan. 763; Rock-hold v. Railway Co., 97 Kan. 719; Rask y. Railroad, 103 Kan. 443. (2) Since the language of the saving clause or exception in the Workman’s Compensation Act of 1911 is clear and unambiguous, there is nothing left for this court to do but to follow the plain direction of the statute. The courts of last resort and textwriters are unanimous in their declaration of this principle of law, applicable to the facts shown by the record. 25 Ruling Case Law, sec.’217, p. 961; 1 Fed Statutes Anno. (2 Ed.), see. 142, p. 164; 36 Cyc. 1114, 1150, 1151;' 2 Sfewis’s Sutherland on Statutory Construction (2 Ed.), p. 698, sec. 366; Shank v. State, 108 N. E. 521; State ex rel. Green County v. Giddeon, 199 S. W. 948; C. C. & St. U. Ry. Co. v. Blind, 105 N. E. 492; State ex rel. v. Amick, 247 Mo. 292; Rushenberg v. So. Elec: R. R. Co., 161 Mo. 85; State ex rel. v. Levitt, 96 Kan. 452. (3) Appellant’s objection to plaintiff’s Instruction 4 is unmerited. This instruction was in accord with the Kansas law under which this case was tried and is also in line with the law of this State. Forbes v. Railroad, 101 Kan. 480; "Warders v. Railroad, 105 Kan. 4; Kansas v. Pacific Railroad Co., 19 Kan. 90; Gas Co. v. Carter', 65 Kan. 569; Barth v. K. C. El. Ry. Co., 142 Mo. 556; Powell v. Railroad, 255 Mo. 454. (4) Every allegation of negligence in plaintiff’s petition was proven by an overwhelming weight of the evidence. Counsel for appellant practically admits this, by failing, in his brief to discuss the evidence in the case.
   WALKER, J.

This is an action for damages for the death of William W. Hurlburt, a locomotive engineer in defendant’s employ, on the night of August 11, 1916. Immediately before his death Hurlburt was backing his train over the tracks of the Kansas City Northwestern Railroad near Basehor, Kansas. In going around a curve the engine and tender were derailed and rolled down an embankment, resulting in Hurlburt’s death.

The deceased resided in Wyandotte County, Kansas, and his wife was appointed administratrix of his estate in the probate court of that county. As administratrix she brought this action in the Circuit Court of Jackson County, Missouri, February 23, 1917. A trial before a jury resulted in a verdict for plaintiff, December 11, 1917, for $9500. From this judgment defendant appeals to this court.

Plaintiff’s petition was in two counts. The first was bottomed on the Railroad Employers’ Liability Act of Kansas (Laws 1911, pp. 437-438; Í915 Gen. St.' secs. 8480-8485). The second alleged liability under tne Federal Employers’ Liability Act. This count was dismissed at the trial and it was admitted that at the time of Hurlburt’s death the work in which he was engaged was in the nature of intrastate commerce. It was also admitted that the defendant was operating the railroad in question as a receiver at the time of Hurlburt’s death.

The amended answer consisted of a general denial, a plea that the death was caused solely-by the negligence of Hurlburt in operating his train backwards at a dangerous and excessive rate of speed, in violation of the rules and regulations limiting backward operations of ears to ten miles an hour, and also a plea of assumption of risk by the deceased. As a bar to plaintiff’s right to recover under the Railroad Employers’ Liability Act, the defendant pleaded the Workmen’s Compensation Act of Kansas, approved March 14, 1913 (Laws of Kansas 191.1, pp. 382-398; as amended, Laws 1913, pp. 385-389; 1915 G-en. St. secs. 5896-5942), and also.that the Compensation Act applied to the employment in which Hurlburt was engaged at the time of his death; that neither the defendant nor Hurlburt had filed with the Secretary of State of Kansas an election not to accept the provisions of said Compensation Act, and that therefore under its terms these parties had elected to come under same, and it therefore applied to the defendant and Hurlburt. The defendant further pleaded that the Compensation Act fixed the only remedy available for the recovery of compensation for injury or death in the State of Kansas when employer and employee were operating under said act, that it excluded any other .remedy than therein provided for the death of said Hurlburt; that said act provided a special and exclusive remedy for the collection of said compensation and established a prescribed method for its presentation, arbitration and enforcement before designated tribunals of claims for compensation, and required the giving of notice of all Claims within six months from the date of death, and that such method had not been followed and that no such notice had been given. The answer also averred that not only was the Compensation Act the only remedy allowed by the laws of Kansas for the collection of compensation for the death of said Hurlburt, but also that said act provided that no action or proceeding thereunder could be brought or maintained- outside of the State of Kansas.

Plaintiff in her reply contended that the Workmen’s Compensation Act did not apply, but that the Railroad Employers ’ Liability Act was the sole statute of Kansas governing defendant’s liability. Plaintiff’s evidence tended to show negligently maintained tracks, roadbed and improper construction at the place of the accident; that the ties were rotten and the spikes loose in the ties; that the rails were light and that there was no elevation on the outside of the curve at the place of the accident; that at this point the track was not ballasted, the ties being laid upon a dirt fill.

Defendant contended that the Railroad Liability Act passed by the same Legislature which enacted the Compensation Act merely afforded a remedy for the recovery of compensation for injuries or death to employees of railroads who had elected not to come under the Compensation Act. Testimony was offered to show that neither the deceased, Hurlburt, nor the defendant, Bush, nor the Missouri Pacific Railway Company had elected not to come under the provisions of the said Compensation Act.

It was also shown that a rule of the defendant (Q.14) limited the speed of engines running backwards at the point of this accident to ten miles per hour, and that at the time of his death Hurlburt, with his train crew of five men, was running his train, consisting of engine, tender, five empty cars and one caboose, backwards at a speed of from ten to fifteen miles per hour, when the tender jumped the track and caused the engine to roll down an embankment and kill him instantly.

At the conclusion of all the evidence the defendant requested an instruction to'the effect that since it appeared that neither the deceased nor the defendant ever filed an election not to be governed by the Kansas Workmen’s Compensation Act, said law governed the rights of plaintiff and all liabilities of defendant for damages on account of the death of said Hurlburt, and therefore plaintiff could not recover. This instruction was refused. The defendant also asked a peremptory instruction directing the jury to find the issues for the defendant, which was also refused, and the case was submitted to the jury on the theory that the action was governed by the Railroad Employers’ Liability Act instead of the Compensation Act, with the result stated.

I. Defendant contends that plaintiff’s action was improperly based upon the Kansas Railroad Employers’ Liability Act of March 7, 1911, otherwise designated a.s Sections 8480-8485, G. S. Kan. 1915, which it is alleged, was repealed by the Workmen’s Compensation Act of March 14, 1911, otherwise designated as Sections 5896-5942, G. S. Kan. 1915.

The former act, without doing violence to its terms and within the purview of the legislative enactment as therein indicated, may be designated as an act special in its application to liabilities in cases of injury to employees of corporations operating railroads.

The latter act was adopted in 1911, one week after the passage of the former. It is a general law providing compensation for servants while engaged in the task of their master in all hazardous employments in the State of Kansas where more than five persons are employed' in any business, except it does not apply to farmers and persons engaged in agricultural pursuits, or to business or employments which are according to law engaged in interstate commerce and thus not subject to the legislative power of the State. . It applies to the operation of mines, regardless of the number of men employed.

The definitive clause of this act (Sec. 5903) contains the following provisions in regard to railroads:

“Railways include street railways and interurbans. Employment on railways includes work on depots, power houses, round houses, machine shops, yards, and upon the right-of-way, and upon the operation of its engines, cars and trains, and to' employees of express companies while running on railways.”

So far as the terms of these two statutes are concerned, there is no conflict between them except where it is provided in Section 5903 that employment on railroads shall include “operation of its engines, cars and trains.” With'this seeming conflict, we are authorized to consider the character or subject-matter of each act to determine which should form the basis for the institution of the instant case.

The former act, while general in its nature, so far as it is necessary for it to conform to the constitutional provision against special legislation, has specific reference to corporations operating railroads in that State. The latter act, as we have likewise shown, is a general law limited in its operation, so far as its letter is concerned, only as therein prescribed. A solution- of the question as to which of these acts is applicable here may be found in the well recognized and often quoted rule that where there is an apparent contradiction or conflict between a general and a specific statute, whether in the same or in different legislative acts and regardless of priority of enactment, they should be so construed that both may subsist, the specific statute being regarded as qualifying or supplying exceptions to the general. Here we have two statutes,'the earlier being special and the latter general, and while the terms of the general statute may be sufficiently broad to include the matter provided for in the special, the express specific purpose of the latter justifies the presumption that it is to be considered as a continuing exception to the general statute, unless a repeal of the special statute is expressed or the provisions of the general statute are manifestly inconsistent with those of the special.

We have frequently recognized this rule under facts not dissimilar to those at bar. In State ex inf. Major v. Amick, 247 Mo. l. c. 292, we said:

“Where there are two acts and the provisions of one apply specially to a particular subject, which clearly includes the ‘matter in question, and the other general in its terms, and such that if standing alone it would include the same matter, and thus conflict with each other, then the former act must be taken as constituting an exception to the latter or general act, and not a repeal of the former, and especially is this true when such general and special acts are contemporaneous.” [Citing eases.]

This was but an affirmance of the rule announced in earlier cases. [Ruschenberg v. So. Elec. R. R. Co. 161 Mo. 70; Campbell v. St. L. & Sub. Ry. Co., 175 Mo. 177; St. Louis v. Kaime, 180 Mo. l. c. 319.]

The provisions of the general statute are not in conflict with those of the special one. As persuasive evidence that the enactment of the latter was not intended to amend or repeal the former, there is an absence from the general statute of the usual provision that “all acts and parts of acts in conflict herewith are hereby repealed.” On the contrary, we find at the close 'of the general statute this provision:

' “Nothing in this act shall be construed to amend or repeal Section 6999 of the General Statutes of Kansas of 1909, or House Bill No, 240 of the Session of 1911, the same being ‘An Act relating to. the liability of common carriers by railroads to their employees in certain cases, and repealing all acts and parts of acts so far as the same are in conflict herewith.’ ” [L. Kan. 1911, ch. 218, sec. 48, p. 397, now Sec. 5942, G. S. Kan. 1915.]
“House Bill No. 240” was but another manner of designating the Railroad Employers’ Liability Act.

If any doubt existed, therefore, as to the application in this case of the general rules of construction that courts look unkindly upon repeals by implication and that- a later statute should not be held to amend or repeal an earlier one if both can be given effect without repugnancy or an affront to reason (Nichols v. Hobbs, 197 S. W. l. c. 260), the section above quoted is sufficiently explicit to settle the question as to the continuing effect of the earlier special statute. Exempting by express terms, as Section 5942 does, the earlier or special act from the later or general one, leaves nothing more to be. said on the subject. The action was therefore properly brought under the former, and appellant’s contention in this behalf must go for naught. ' -

II. The correctness of instruction designated as C-l given at the request of the plaintiff is challenged. It is as follows:

“The court instructs the jury that if they find and believe from the evidence that the plaintiff is the administratrix of William W. Hurlburt, deceased, and that said Hurlburt was killed on August 11, 1916, while m the employment of defendant and operating an engine on the Kansas City & Northwestern Railway Company’s tracks, and that the defendant on said date was and for a long time before said date had been receiver of said company and in charge of its track and the operation of trains thereon, and if the jury shall further find from the evidence that deceased was killed at a curve in said road and at the time and place in question the roadbed, including the ties, was ballasted with dirt and by reason thereof was inadequately and insufficiently ballasted and thereby dangerous and unsafe, and if you further find that the rails on said road were fifty-six-pound rails and were old and worn and were too light and insufficient to sustain the weight of the engines and trains running over them, and by reason thereof were dangerous and unsafe; and if you further find that the outer rail of the' track on said curve was practically level with the inner rail and by reason thereof an engine and tender in rounding said curve were likely to jump the track, and the said condition, if any, was dangerous and unsafe, and the maintenance of said track in the manner above set forth, if you so find, constituted negligence on the part of the defendant and that the dangerous condition, if any, of said track, as above set forth, was known to the defendant or had existed for snch a period of time before the death of Hurlburt that defendant .in the exercise of ordinary care could have known it in time thereafter to remedy the same and the defendant negligently failed to do so, if you so find, and as the direct result of such negligence, if any, the engine upon which Hurlburt was riding was derailed and Hurlburt was thereby killed, then your verdict must be for the plaintiff, unless you find that deceased was guilty of contributory negligence, as defined in other instructions, and said contributory negligence, if any, was the sole cause of his death, or unless you believe from the evidence that the deceased came to his death by reason of the ordinary risks incident to his employment. ’ ’

The general objection urged to this instruction is. that it is a comment on the evidence. The grounds of this objection are stated to be that the jury was told that dirt ballast was inadequate; that the rails were too light; and that the inner and outer rails were not properly laid, etc. This instruction is formally hypothetical in its language, and the jury is told in regard to each fact hypothesized that as preliminary to their consideration of same they must find and believe the existence of such facts from the evidence. There is nothing in this instruction which could have misled the jury and we regard the objection thereto as trivial.

Instruction numbered four on the measure of damages, given at the request of the plaintiff, is assigned as error. It is as follows.

“If you find for plaintiff and find from the evidence that deceased was not guilty of contributory negligence, then you will award plaintiff as administratrix such sum in damages as the jury shall find and believe ^rom the evidence will reasonably compensate the widow of deceased, Bernice Hurlburt, for any necessary pecuniary loss, if any, sustained by her in her necessary support and maintenance, if any, resulting from the death of her husband; and such further sum as will reasonably compensate tbe children of deceased, Agnes and William, for any necessary pecuniary loss, if any, sustained by them during their minority in their necessary maintenance, education and support, if any, as the direct result of the death of the deceased, and in this connection the jury may take.into consideration the age of deceased and the members of his family above mentioned, and his habits, earnings and his expectancy in life.
“The jury will also take into consideration the personal expenses of deceased, and can only award such sum in the aggregate as the jury shall believe from the evidence the said members of his family had reasonable grounds to expect from deceased, if any, in the way of actual pecuniary assistance, as above, had he lived, if any, and your whole award cannot exceed ten thousand dollars.”

The particular language rather than the subject-matter of this instruction is assigned as error. Appellant does not fairly state the language objected to in connection with the remainder of the instruction. It does not, as contended, authorize a recovery “in such lump sum as the family had reasonable grounds to expect from the deceased, ’ ’ but authorizes the recovery of such sum not to exceed ten thousand dollars, as will reasonably compensate the widow for any necessary pecuniary loss sustained by reason of the death of her husband. The provision alleged by defendánt to fix the basis of recovery, instead of so doing, when the instruction is considered as a whole, limits the theretofore defined right of recovery in requiring that the personal expenses of the deceased be taken into consideration by the jury, or in other words that such expenses be deducted from the amount fixed by the jury as constituting “the pecuniary assistance the family had reasonable grounds to expect from him.” This could not have been understood as meaning other than his income or present worth to his family at the time of his death. That this is the proper basis from which to estimate plaintiff’s damages is too well established to admit of controversy. [Powell v. Railroad, 255 Mo. l. c. 454; Smith, Admr., v. Pryor, 195 Mo. App. l. c. 265; Chesapeake & O. Ry. Co. v. Kelly, 241 U. S. 485.] The basis here fixed does not violate this rule, nor is the language of the instruction such as to have misled the jury.

While Ave regard this instruction as correctly declaring- the laAA7 and subject to no formal objections, if defendant had desired that it be qualified or limited in its meaning an instruction to that effect should have been requested.

In a recent case (Forbes v. Ry. Co., 101 Kan. l. c. 480) the objections here urged were there made, and the court, AA7hile holding the instruction to be correct, said that “in the absence of a request for a more specific statement no reversible error AYas committed.” [Citing cases.]

A like attitude Avas assumed by a defendant in Powell v. Railroad, 255 Mo. 420, in a cause of action arising in Kansas and tried in our courts under the laws of that state. In disposing of such objections to the instruction as are made in the case at bar, Lamm, J., used the following language at page 454:

“Furthermore, and most of all, defendant below stood mute and asked no instruction on the measure of damages. It pitched its battle at other points. It exhausted its solicitude elsewhere and on other questions. It may not uoay, Avith its corporate heart bowed doAAm Avith the Avoe of defeat, and its corporate eyes washed and brightened by the tears of affliction, elicit appellate interest in a matter it cared nothing about below. [Browning v. Railroad, 124 Mo. 55.]”

III. We have examined the cases cited by defendant and Avithout reviewing- them in detail it w7ill be sufficient to say that the facts upon which the rulings therein are based are not parallel with those a^ ^ar aild hence cannot be properly cited as sustaining defendant’s contentions.

IV. Subordinate contentions made at the trial but omitted from the assignment of errors and in no wise referred to in defendant’s brief, may be regarded as having been abandoned. [Crecelius v. Railroad, 274 Mo. l. c. 688; State ex rel. McWilliams v. Drainage Dist., 269 Mo. l. c. 455; State ex rel. Crow v. Carothers, 214 S. W. 857.]

Finding no substantial merit in this appeal, the judgment of the trial court is affirmed.

All concur.


author: MO'ZLEY, C. PER CURIAM :

text:
    ROBERT WAGNER, Doing Business as WAGNER BROS. STORAGE & MOVING COMPANY, v. CITY OF ST LOUIS et al., Appellants.
    Division Two,
    September 15, 1920.
    1. CONSTITUTIONAL ORDINANCE: Registry of Removals. An ordinance which requires all persons operating a moving van or other vehicle to notify the city register of the name and address of any person whose household or other goods they have hauled from one location in the city to another, and the register to keep a record of such removals, which shall be open to public inspection, and requiring the owner of the goods so removed to give to the vehicle owner such information as will enable him to make the required notice, and imposing a fine of not less than ten nor more than one hundred dollars for its violation, does not deprive a citizen of his property'without due process of law, and is not unconstitutional.
    2. -: -: Reasonableness. An ordinance duly passed and within the city’s charter powers will not be declared void for unreasonableness unless no difference of opinion can exist on the question; and an ordinance which requires the owners of moving vans to file reports with the city register showing the names of the owners or persons for whom they have moved household and other goods and the places from which and to which the goods are taken, which reports are required to be registered upon hooks open to public inspection, is not unreasonable.
    3. ORDINANCE: Registry of Removals: Charter Powers. An ordinance requiring the owner of a moving van or other vehicle to give written notice to the city, in which he gives the name and street address of the owner of all goods hauled.by him from one location in the city to another, is within the charter powers of the city whose charter authorizes it to enact ordinance “to license and regulate all persons . . . engaged in any business, occupation, calling, profession or trade” in the city and “to execute all powers granted or not prohibited to it by law, or which would be competent for this charter to enumerate.”
    Appeal from St. Louis City Circuit Court.-wHow. Glendy B. Arnold, Judge.
    Eevebsed.

      Charles H. Danes and H. A. Hamilton for respondent.
    (1) The City of St. Louis, is authorized by its charter to regulate all persons and corporations engaged in any business, occupation, profession or trade, and do all things expedient for promoting the comfort, morals, peace, government, welfare and trade of the city or its inhabitants. Charter, art. I. sec. 1, els. 23, 25, 33 and 35. (2) The city, under its police power, may regulate the business of moving property from one location in the city to another by requiring the persons engaged in such business to make report thereof, for thereby frauds and crimes may be prevented and detected. St.. Louis v. Bowler, 94 Mo. 630; St. Joseph v. Levin, 128 Mo. 588; St. Louis v. Weitzel, 130 Mo. 600; Ex parte Smith, 231 Mo. Ill; St. Louis Cunning Co. v. St. Louis, 235 Mo.„99; St. Louis v. Baskowitz, 273 Mo. 543; Lawson v. Connolly, 175 Mich. 375; Sanning v. Cincinnati, 81 Oh. St. 142; Powell v. Pennsylvania, 127 U. S. 678; Eailway Co. v. Drainage Comrs., 200 U. S. 561. (3) The regulation of a business under the police power is not illegal because such regulation may entail expenses or result in pecuniary loss to the' persons engaged in such business. St. Louis v. Baskowitz, 273 Mo.' 543 ¿ Haller Sign Works v. Training School, 249 111. 436; L’Hote v. New Orleans, 177 U. S. 587. (4) The Municipal Assembly of St. Louis is vested with the power of determining the necessity of regulating business in said city, and courts will not ordinarily review the exercise of its discretion. An ordinance passed in the exercise of legal authority will not be declared void on the ground of unreasonableness unless no difference of opinion can exist'upon the question, and a clear.case must be made to authorize a court to interfere on that ground. St. Louis v. Weber, 44 Mo. 547; Gratiot v. Railroad Co., 116 Mo; 450; Chillicothe v. Brown, 38 Mo. App. 609; Kansas City v. Sutton, 52 Mo. App. 398; Monett v. Campbell, 204 S. W. 32.

      Spencer Donnell for 'respondent.
    (1) Police ordinances are always subject to the construction of the courts. Cape Girardeau v. Riley, 72 Mo. 223; Carthage v. Block, 139 Mo. Apr).,'391; Corrigan v. Gage & Ladd, 68 Mo. 541. (2) The ordinance involved is invalid because it is not within the scope of the legislative power of the City of St. Louis. Charter, art, I, sec. 1, els. 23, 25, 33 and 35; Lawton v. Steele, 152 U. S. 137; Cape Girardeau v. Riley, 72 Mo. 220; State ex rel. Chillicothe v. Wilder, 200 Mo. 97; Nevada v. Eddy, 123 Mo. 557; St. Louis v. Dreisoerner, 243 Mo. 217; Knox City v. Thompson, 19 Mo. App. 523; Joplin v. Jacobs, 119 Mo. App. 134; Clinton v. Phillips, 58 111. 102; State v. Vanderslaus, 42 Minn. 131. (3) The ordinance involved is invalid because -it is unreasonable. St. Louis v. Dreisoerner, 243 Mo. 224; Carthage v. .Block, 139 Mo. App. 391; St. Louis v. Nash, 266 Mo. 523; Tarkio v. Cook, 120 Mo. 1; Long v. Taxing District, 7 Lea (Tenn.) 134; Salisbury v. Equitable Purchasing, Co., .177 Ky. 348; Ex parte Goldberg, 200 S. W. (Texas) 386; Hayes v. City of Appleton, .24 Wis. 542; Lane v. Concord, 70 N. H. 485; People v. Armstrong, 2 L. R. A. 721; Atkinson v. Transportation Co., 60 Wis. 160; State v. Ray, 131 N. C. 814; Waters v. Leach, 3 Ark. 110; Buell v. State, 45 Ark. 336; Chicago v. Gunning System, 214 111. 628; Richmond v. Southern Bell Tel. & Tel. Co., 85 Fed. 19; Lawson v. Connelly, 175 Mich. 375; Scanning v. Cincinnati, 81 Ohio State, 142; St. Louis v. Baskowitz, 273 Mo. 543; St. Joseph v. Levin, 128 Mo. 588; Phillips v. State, 77 Ohio St. 217. (4) The ordinance involved is invalid because it violates the Fourteenth-Amendment of the Consitution of the United States, and Section 30 of Article ■ II of the Constitution of the State of Missouri. St. Louis v. Dreisoerner, 243 Mo. 217; State v. Scougal, 3 S. D. 55; Bonnett v. Yalliers, 136 Wis. 193. '•
   MO'ZLEY, C.

Injunction instituted in the Circuit Court of the City of St. Louis, Missouri, having for its purpose the perpetual prevention of the enforcement, by the city authorities, of Ordinance No. 28367, designed to regulate the moving of household goods, furniture, pianos, stock, fixtures, equipment, personal property and effects from one location to another within'the City of St. Louis, or to or from any location within said city, requiring the owner or person in charge or control of the vehicles used to transport such property, to notify the City Register of such removal, and requiring him to keep an appropriate public record of such information. Said ordinance reads as follows:

“Be it ordained by the City of St-Louis as folloivs:
“Section One. It shall be the duty of all persons, firms, or corporations, owning or operating, any moving van, furniture car, transfer wagon, delivery wagon, express wagon or any other vehicle, who shall haul or move, or cause to be hauled or moved, any article of household goods, furniture, pianos, stock, fixtures, equipment, personal property' and effects from one location to another within the City of St. Louis, or to or from any location within the City of St. Louis, where it shall be the intention of the owner, or person having the charge, custody, possession and control of such property, to change the residence or place of business of such person, firm or corporation, to notify the City Register of-the City of St. Louis, within ten days after such removal, of the name of such person, firm or corporation owning, or having the custody, possession and control of such property, the street address or location from and to which such property was removed, a brief, general description of the property removed, the date of such removal, and the name and address of the person, firm or corporation, owning or operating vehicles used in such transportation.
‘ ‘ Section Two: It shall be the duty of the City Begister to furnish the blanks necessary for making such ■reports, which shall be uniform and may be in the form prescribed by him, and he shall provide and maintain in his office a proper register, book, card index, or other appropriate record of such reports, which records shall be open to the public at all reasonable hours.
“Section Three: It shall be the duty of every person, firm or corporation, to provide and give true information to the person, firm or corporation owning or operating the vehicles used in the transportation of property as contemplated by this ordinance, such as will enable such owner or person in charge of such vehicles to effectually comply with the giving of the notices and filling of the reports required by this ordinance.
“Section Four: Any person, firm or corporation, violating any of the provisions of this ordinance, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than ten dollars nor more than one hundred dollars, for each and every offense.
“Section Five: All ordinances, or parts of ordinances in conflict with this ordinance, to the extent of such conflict, are hereby repealed.” Approved November. 26, 1915.

Said ordinance is assaulted in plaintiff’s petition as being invalid because it contravenes the Federal and* State constitutions, Article 4, section 1, and Article 2, section 30, respectively, which provide that no citizen shall be deprived of life, liberty or property without due process of law. It is further asserted that neither the laws of the State nor the city charter authorize the adoption of said ordinance by the municipal assembly and the mayor of said city, and that it is unreasonable and oppressive.

The petition then proceeds to allege that although said ordinance is invalid the city authorities are threatening to enforce' the same, and to prosecute plaintiff, his agents and servants; that the enforcement thereof and such prosecution would result in irreparable damages to plaintiff and his business and property; that he has no adequate legal remedy to which he may resort and is, therefore, remediless in the premises unless he may resort to the equity side of the court and by injunction permanently restrain and enjoin all concerned from in anywise interfering with plaintiff, his agents and servants in the conduct of his business, and from arresting and prosecuting plaintiff, his agents and servants in the event they be of - the notion to disregard the provisions of said ordinance, and for all additional relief the eourt may, in right and justice, thirds: he should have.

Defendants raised no question as to the sufficiency of the petition, but answered to the merits by a general denial of all averments of the petition, except it was admitted that said city was a municipal corporation duly organized under the Constitution and laws of -the State of Missouri; admitted the official capacity of defendants, admitted the due adoption of said ordinance and that its violation subjected the offender, upon conviction thereof, to prosecution and fine.

Defendants plead, affirmatively, that the City of St. Louis was authorized and had the power under the Constitution of Missouri, and under its charter powers and other laws, to enact, through its board of aldermen and mayor, the said Ordinance No. 28367, and that said ordinance was duly enacted as aforesaid pursuant to said powers, and pray to be hence dismissed without day and that the costs be adjudged against plaintiff.

The case was tried before Judge Glendy B. Arnold who sustained plaintiff’s petition; made said injunction perpetual, decreed said ordinance, and. every section thereof, null and void, and perpetually enjoined and. restrained defendants from interfering in anywise with plaintiff’s business as the owner and operator of said moving vans, and enjoined and restrained defendants from arresting and prosecuting plaintiff, his agents and servants, or any of them, for any alleged violation of said' ordinance, and that plaintiff recover his costs.

Motion for new trial was duly filed and continued to the December term, 1916, when it was overruled, exceptions saved, and the cause duly appealed to this court.

I. It is contended by plaintiff, in his petition, that said ordinance contravenes the Federal and State constitutions as above set out, and in support of this contention cites St. Louis v. Dreisoerner, 243 Mo. 217-224. In that case it was held, and very properly so-, that the city could not by ordinance confiscate private property for aesthetic purposes, The case in hand presents no facts of that sort, and hence said case has no application here. Said ordinance is a criminal one, requiring plaintiff to keep a record on blanks furnished him by the City Register for the purpose of making the reports as required by said ordinance to said City Register, who shall keep a proper record thereof in his office, and which shall be open to the .public at all reasonable hours.

In the case of St. Louis v. Baskowitz, 273 Mo. 543, “Junk Merchants” were licensed and regulated by ordinance,^ and a registry was required to be kept of all purchases and sales and an accurate description, so far as may be, of marks, brands, letters or words of identification thereon, if any such there.be, and such book of registry shall be kept open at the Register’s office of said city, for the inspection and examination of, the police or any citizen.

This is on all-fours with the requirement of the ordinance in hand. The same point as to its being unconstitutional was made as in the-instant case and it was held to be constitutional. We rule that the ordinance in question is constitutional.

II. It is contended that said ordinance was adopted without authority of the city charter. The charter provides, Article 1, Subdivision 23 of Section 1, page 13, as follows: “To license and regulate all persons, firms, corporations, companies and associations engaged in any business, occupation, calling, profession or trade;” and Subdivision 35 of said Article 1, Section 1, page 15, provides as follows: “To exercise all powers granted or not prohibited to it by law or which would be competent for this charter to enumerate.”

It cannot be presumed that the city was ignorant of its charter powers or that it deliberately intended to violate the organic law of the State or city, [State ex rel. v. Sheehan, 269 Mo. l. c. 427; State ex rel. Aull v. Field, 112 Mo. 554; Glasner v. Rothschild, 221 Mo. l. c. 211; Perry v. Strawbridge, 209 Mo. l. c. 645; 31 Cyc. 1106; Grimes v. Reynolds, 184 Mo. 679; Laclede Const. Co. v. Moss Tie Co., 185 Mo. l. c. 62; State ex. rel. v. Public Service Comm., 270 Mo. l. c. 442.]

We rule the adoption of said ordinance was well within the charter powers conferred upon said city.

III. Subdivision 25 of Article 1, Section 1, page 11, of said charter provides that the city has power “to define and prohibit, abate, suppress and prevent or license and regulate all acts, practices, conduct, business, uses of property and all other things whatsoever detrimental . . . to the inhabitants of the city.”

Where an ordinance is legally passed with due authority under the- organic law of the State and city, the courts will not declare it unreasonable unless no difference of opinion can exist upon the question. A clear case must be made to authorize the courts to interiere oil that ground. [St. Louis v. Weber, 44 Mo. 547; Gratiot v. Ry. Co., 116 Mo. 450.]

“So also a municipal corporation may require the owners of public moving vans to file with the police commissioners a report of the persons for whom they move household goods and the place from and to which the goods are taken,” (19 R. C. L. p. 861, par. 162); and in the cases of Lawson v. Judge of Recorders Court, 175 Mich. 375, and Lawson v. Connolly, 141 N. W. 623, it is held that ordinances of the same purport as the ordinance in question, are not unreasonable, and cannot he avoided on that ground.

IY. The foregoing disposes of the vital questions disclosed by the record, with the result that the decree of the court nisi will be reversed. It is so ordered.

White, G., concurs; Bailey, G., not sitting.

PER CURIAM :

The foregoing opinion of Mozley, C., is hereby adopted as the opinion of the court.

All of the judges concur.