author: RAGLAND, C. PER CURIAM:

text:
    VIOLA L. WILLIAMS v. KANSAS CITY TERMINAL RAILWAY COMPANY and CHICAGO, BURLINGTON and QUINCY RAILROAD COMPANY, Appellants.
    In Banc,
    May 24, 1921.
    1. TRANSFER FROM COURT OF APPEALS: Jurisdiction of Supremo Court. When a ease is transferred to the Supreme Court by a Court of Appeals on the ground, within the time and in the manner specified by the Constitution, the Supreme Court acquires jurisdiction to hear and determine the cause, just as if it had come direct to it by appeal from the trial "court.
    2. -: —-: Defective Abstract of Record in Court of Appeals: New Abstract in Supreme Court. Where the Court of Appeals (one judge dissenting) held appellant’s abstract of record failed to show that the bill of exceptions was properly authenticated and therefore affirmed the judgment and certified the cause to the 'Supreme Court on the. ground of conflict of opinion, the appellants had the right to file in the Supreme Court, in due time, an abstract of record which eliminated the question considered by the Court of Appeals.
    8. NEGLIGENCE: Passenger Carrier: Degree of Care as to Station Premises: Instruction. In a suit by a passenger against two railroad companies for damages for personal injuries received by the passenger by falling on wet and slippery steps leading from the waiting room in the Union Station at Kansas City to the platform on the train level where passengers boarded the train, an instruction is erroneous which tells the jury that the defendants owed plaintiff “the highest practicable degree of care of a very prudent person engaged in like business to prevent injury to her while upon their premises,” inasmuch as defendants owed plaintiff no higher duty than that of exercising ordinary care to maintain the steps in a reasonably safe condition.
    4. -; -: -: Steps with Standard Treads: Demurrer to Evidence. Where defendant railroad companies had equipped the steps leading from the station waiting room to the platforms on the train level, where passengers boarded the train, with standard safety treads; consisting of corrugated steel and lead plates covering the entire surface of the steps, the ridges of the plates extending lengthwise paralleling the steps and consisting of steel channels filled with lead, the lead coming up to or a little above the sides of the channels, they had done all that the exercise of ordinary care required to malte the steps reasonably safe from the danger of slipping upon them, there being no evidence that the slipperiness complained of in the petition arose from the material of which the steps were constructed, or from the manner of their construction or from their having become worn or out of repair, but tending rather to show that it was due to water from the wet feet, clothing and umbrellas of passengers who preceded plaintiff down the steps to the train. And under such circumstances plaintiff was not entitled to recover and the trial court erred in not sustaining a demurrer to the evidence. [James T. Blair, J., dissenting.]
    Transferred from Kansas City Court of Appeals.
    Reversed.

      Warner, Dean, Langworthy, Thomson & Williams, S. W. Sawyer and John E. Lathrop for appellants.
    (1) "Whether or not the abstract of the bill of exceptions filed in the Court of Appeals was sufficient, is no longer a question in the case because a new abstract has been filed in this court eliminating all possible deficiencies. (a) The majority opinion of the Court of Appeals deemed the abstract of the bill of exceptions insufficient because the judge’s signature was not printed at the end of the bill of exceptions. As the case was certified here, it comes as if on appeal direct from the Circuit Court. Hayes v. Sheffield Ice Co., 221 S. W. 705 ; Art. 6, sec. 6, Const.; Keller v. Summers, 262 Mo. 331; Epstein v. Railroad, 250 Mo. 7. (2) The plaintiff failed to make out a case and the judgment should be reversed, (a) The defendants owed the plaintiff only the duty of ordinary care in respect to the condition of the station premises. Gunderman v. Ry. Co., 58 Mo. App. 370; Fullerton v. Fordyce, 121 Mo. 1; Robertson v. "Wabash Railroad, 152 Mo. 382; Chase v. Railroad, 134 Mo. App. 655; Joyce v. Railway, 219 Mo. 344; Davis v. Railroad Co., 127 N. E. 66. (b) It was incumbent upon plaintiff to show not only that a condition existed which might reasonably be expected to canse an injury but that such condition was actually known to the defendants and they had had an opportunity to correct it, or had existed for such a length of time that the defendants could have known of it by the exercise of ordinary care and corrected it or had existed for such a length of time that the defendants were presumed to know it and that they had failed to correct it within a reasonable time. Abbott v. Mining Co., 112 Mo. App. 550; Clonts v. Gas light Co., 144 Mo. App. 582; Kelley v. Ry. Co., 105 Mo. App. 365; Schnatterer v. Bamberger, 79 Atl. 324; Toland v. Furniture Go., 56 N. E. 608; Reeves v. Fourteenth Street Store, 96 N. Y. 488; Norton v. Hudner, 100 N. E. 546; Dudley v. Abraham, 107 N. Y. S. 97; Goddard v. Ry. Co., 60 N. E. 486; DeVelin v. Swanson, 72 Atl. 388; Davis v. Railroad Co., 127 N. E. 66. (3) There was plain error in the instructions given by the court on behalf of the plaintiff and refusing instructions asked by the defendants so that the case must be at léast reversed and remanded. See all authorities cited under point 1. Cluett v. Power Co., 220 S. W. 865; Peek v. Amusement Co., 195 S. W. 1033.

      John T. Mathis and McVey & Freet for respondent.
    (1) The plaintiff made a case entitling her to the verdict of the jury, as the defendants were negligent in maintaining the steps leading to the train in a muddy, wet condition, which caused plaintiff to fall, when they knew or by the exercise of care could have known of the condition in time to have remedied it prior to plaintiff’s injury, and regardless of the knowledge of defendants, plaintiff is entitled to recover because she was a passenger, and the defendants owed her the duty to have the steps in a safe condition. Albin v. Ry. Co., 103 Mo. App. 316-; Bledsoe v. West, 186 Mo. App. 465; Rodick v. Ry. Co., 109 Me, 530, 85 Atl. 42. (2) The plaintiff was a passenger under the care and control of defendants, and as such was entitled to the highest practicable degree of care from, defendants, and the c'ourt was right in so instructing the jury. Stauffer v. Railroad, 243 Mo. 327; Austin v. Railroad, 149 Mo. App. 397; Albin v. Railroad, 103 Mo. App. 308; Young v. Ry. Co., 93 Mo. App. 273; McClanahan v. Railroad, 147 Mo. App. 404; Dieckman v. Ry. Co., 145 Iowa, 250, 121 N. W. 676; Ry. Co. v. Harrison, 56 Tex. Civ. App. 17, 120 S. W. 254.
   RAGLAND, C.

Plaintiff sues to recover for' injuries received from a fall on a stairway leading from the waiting room, in the Union Station at Kansas City, down to a platform from which passengers enter trains.

Plaintiff was at the time a passenger and was on her way to a train. Her action is based on the alleged lieS’li§’ence °£ defendants in permitting the stairway at the time to be in an unsafe and dangerous condition. The petition charges the negligence in the following language:

“By reason of the negligence and carelessness of said defendants, their agents ánd servants, in maintaining said steps and stairway ... in a slippery, dangerous and defective condition, plaintiff slipped on said steps and stairway and fell against the banister and steps of said stairway, thereby injuring said plaintiff as more particularly set out herein; that said defendants by the exercise of ordinary care knew or could have known of the dangerous and slippery condition of said steps.”

One of the defendants answered with a general denial and a plea of contributory negligence; the other, with a general denial only.

From express and implied admissions, the following facts appeared on the trial: The Union Station at Kansas City is so constructed that there are no entrances from the street on the track level. The only way for passengers to get to the trains is to come into the station from the street, pass through a large lobby, thence into the main waiting room and from thence down one of a number of stairways leading to the platforms on the train level. From the street entrance into the station to the place whére plaintiff fell is from 300 to 400 feet. The stairways are not in continuous use; each serves as a means of ingress and egress only for passengers going to and coming from certain trains; hence, as to any one of them, there may be long intervals of non-use. They are so enclosed as not 'to be exposed to the weather; and thé train platforms are also under roof. The stairway on which plaintiff fell was constructed of concrete and iron. There were two landings; the flight from the second one to the bottom was fourteen steps. The width of the stairway was not shown, nor were the dimensions of the steps. It appears, however, that there was a banister on each side and the steps were equipped with a safety tread. The tread was a corrugated steel and lead plate which covered the entire surface of the step. The ridges, which extended lengthwise the plate paralleling the steps, consisted of steel channels filled with lead, the lead coming np to or a little above the sides of the channels. The lead, it was said, had an adhesive quality which is not affected by the lead becoming wet.

According to plaintiff’s testimony: She went to the Union Station in the afternoon of December 31, 1916, to take a Burlington train for Palmyra, Missouri, due to leave at 6:20 p. m. She procured a ticket, went to the waiting room, sat down and waited for the gate to be opened. There was a crowd at the gate through which she would have to pass to go to her train. After about five minutes the gate was opened and the crowd began to go through. When she got to the gate an usher took her suit case and told her to follow him. She was carrying a baby, an umbrella and a handbag. As she was starting down the last flight of steps her right foot slipped. Just as she put her weight on her right foot, in talcing a step, it slipped sideways to the left along and parallel with the step. In trying to regain her equilibrium, she caught her left foot pulling the heel off of the shoe and fell, on her back and side, about four steps. The fall caused her painful injuries. The step on which her foot slipped was wet, practically all of the steps were wet. In her language: ‘ ‘ They were wet, and you could see the tracks of people, mud tracks I think, you could see the tracks, plain, and they were wet. ’ ’ It was a drizzly, rainy day- — had been raining all day.

Her own testimony was all the evidence offered by plaintiff with reference to the condition of the steps. For defendants the station master and his assistant both testified that the steps were neither wet nor- muddy. '

At the close of the plaintiff’s case in .chief and again when all the evidence was in, each of the defendants asked a peremptory instruction directing a -verdict in its behalf. These were refused. At the instance of the plaintiff the jury were instructed that if they found that the steps on which plaintiff slipped was wet aiid slippery and thereby rendered unsafe for persons walking thereon; that such condition caused plaintiff to fall and sustain injury; and that defendants knew of said condition, or by the exercise of a high degree of care could have known of the same, in time to have removed it and made the step safe before plaintiff fell, they should return a verdict for her. They were further instructed, in fact, that plaintiff was a passenger and that the defendants owed passengers the highest practicable degree of care of a very prudent person engaged in like business to prevent injury to such passengers while upon the premises and under the care of defendants.

The jury found for plaintiff, assessing her damages at $400, and judgment was rendered accordingly. Defendants appealed to the Kansas City Court of Appeals. The decision of that court on the appeal was deemed by one of the judges to be in conflict with decisions of this court and the cause was transferred herein conformity with the constitutional mandate.

That the trial court should have directed a verdict in their favor is the principal contention of appellants.

I. The judges of the Court of Appeals disagreed as to whether what purported to be the -bill of exceptions in appellants’ abstract of the record, filed in that court, was properly authenticated. The majority opinion held that it was not, and 011 recor<l proper affirmed the judgment of the trial court. After the cause was transferred, appellants in due time filed in this court an abstract of the record which wholly eliminates the question that vexed the members of the Court of Appeals. Our ruling on the questions presented by the record now before us can have no bearing up.on the conflict of decision, thought to have arisen, which was the basis of the order transferring the case. Our jurisdiction, however, is not dependent upon the existence of a conflict of decision. The certification by the Court of Appeals, on the ground, within the time and in the manner specified by the Constitution, confers upon us the jurisdiction to hear and determine the cause, just as if it had come to us by appeal from the nisi prius court. And appellants were within their rights in filing an abstract of the record here, just as though the case hacf reached our docket “by ordinary appellate process.” [Epstein v. Railroad, 250 Mo. 1, 16; Bussiere’s Admr. v. Sayman, 257 Mo. 303, 307; Hayes v. Sheffield Ice Co., 282 Mo. 446.]

II. Neither appellant suggests that, if it be held that there was negligence as charged in the petition, it is any less culpable than its codefendant. They make a common defense. We shall accordingly consider’the question of their liability as though each owed the plaintiff the same duty with respect to the maintenance of the stairway on which she fell.

To determine whether defendants were negligent as charged, it is necessary to consider: first, what the duty was that they owed the plaintiff with reference to the stairway in question; and second,, whether they failed to perform that duty.

(1) At the time she received the injury of which she complains, plaintiff was a passenger and as such under the care and protection of the defendants. The trial court held, and so instructed the jury, that the defendants owed her the highest practicable degree of care of a very prudent person engaged in like business Prevent injury to her while upon their premises. We think the court was in error. The degree of care bound to be exercised by carriers, as well as by all other persons, is one commensurate with the' dangers incident to the enterprise in which they ar'e engaged. Accordingly, a high standard of care is required of the carrier as to passengers during the course of their ’ transportation and when they are entering or leaving the vehicle of carriage. This is so because the safety and lives of the passengers rest entirely in the carrier’s hands, the passengers having-no control whatever over the dangerous instrumentalities employed in their transportation. But there is no reason why the carrier, generally speaking, should be held to a higher degree of care in maintaining its station buildings than that to which the owner of buildings used for ordinary business purposes is held. Station buildings in themselves neither require the employment of dangerous agencies nor possess unusual elements of danger. Persons using the stairway in question could not by any chance have come into contact with the dangerous instrumentalities made use of by defendants in their business as carriers; such persons were not subject to any greater danger than is commonly encountered in going-down the steps of the ordinary public building. There can be no valid reason, therefore, for holding that the defendants owed plaintiff any higher duty than that of exercising ordinary care ' to maintain the steps in a reasonably safe condition. [Joyce v. Railroad, 219 Mo. 344, 372; 4 Elliott on Railroads (2 Ed.) sec. 1590.]

(2) The petition alleges that the step on which plaintiff fell was unsafe because it was “slippery.” She offered no evidence tending to, show that the slipperiness arose from the material of which the step was constructed, or from the manner in which it was constructed, or from its having , „ . . ,, ,, become worn or out of repair. Ail the evidence she introduced as to the condition of the step was her testimony that the step was wet, that she could see the tracks of people — mud tracks she thought but she could see them plainly, and they were wet. The question submitted to the jury, at her instance, with reference to the step, was whether it was “wet and slippery.” It is not her contention that she stepped on a piece of mud and slipped, but that she slipped because the step was wet.

There was no direct evidence as to what caused the step to be wet or as to. whether defendants, had any knowledge of such condition prior to plaintiff’s fall. And no evidence at all as to how long the step had been wet. The stairway was enclosed and under roof, hence not exposed to the weather. However, it had been raining all day, and the inference is that the water on the step came from the wet foot wear and dripping rain-coats and umbrellas of persons who had gone down the stairway before the plaintiff. If the steps became wet in this manner, they must have done so many times before under like circumstances, and their condition at the time of plaintiff’s fall, must, therefore, reasonably have been anticipated by defendants’ agents. But even so, what is it that it was incumbent upon them to do ? Respondent’s counsel suggest that they should have used a mop or sand. Had plaintiff been the first to go down the steps after the gate was opened, she would no doubt have found them dry, but at least a part of the crowd im.mediately preceded her. The only way defendants could have made the steps dry by the use of mops, for all of their passengers, would have been to have admitted but one at a time through the gate and then followed him all the way down, mopping the’ steps after him. The use of sand would have made the stairway unsightly and it is not at all certain that it would have been any more efficacious in preventing plaintiff from slipping than the safety tread. But whether it would or not is not decisive of the question , under consideration. Defendants were not insurers against all hazard arising from the use o£ the steps; they were not bound to make them absolutely safe. By equipping them with a safety tread of standard construction, defendant did all, under the circumstances shown by the evidence, that the exercise of ordinary care required, in order to make the steps reasonably safe from the danger of slipping upon them. We hold as a matter of law that plaintiff failed to make a case entitling her to go to the jury.

The judgment of the trial court is reversed.

Small, G., concurs; Brown, C., not sitting.

PER CURIAM:

The foregoing opinion of Ragland, C., is adopted by Court in Banc.

All concur except James T. Blair, J., who dissents because he thinks the cause should be remanded.


source: Caselaw Access Project

author: HIGBEE, J. JAMES T. BLAIR, J. GRAVES, J.

license: Public Domain

text:
    THE STATE ex rel. LOUIS T. TUNE et al., Constituting the Board of Complaint of the City of St. Louis, and EDWARD G. MARSH, Secretary of said Board, v. VICTOR H. FALKENHAINER and KARL KIMMEL, Judges of the Circuit Court of the City of St. Louis.
    In Banc,
    May 24, 1921.
    1. LIEBL: Communication to Public Officers: Qualified Privilege: Actual Malice. The Complaint Board established by the St. Louis Charter to receive “complaints against any department, board, division, officer or employee of the city or against any public utility corporation and examine the same” and “recommend to the proper city or state authorities any action deemed advisable,” is a body of public officers to which any citizen, acting in good faith and without actual malice, has the right to make complaints of the kind mentioned, and such complaints, when so made, are privileged.
    2. -: -: --•: -: Mandamus: Ees Adjudicata. Two citizens of St. Louis wrote a letter to the Complaint Board of that city making charges against an employee of the city. This employee brought a libel suit aganst them based on such letter, but not alleging in his petition that it had been written with actual malice. In aid of his suit he brought a mandamus suit in the St. Louis Court of Appeals against the Complaint Board and its Secretary, relators herein, to obtain a copy of such letter for use in said libel suit. The Court of Appeals refused a peremptory writ and the Supreme Court, pn certiorari to review its decision, held that it .did not conflict with any controlling decision and quashed the writ of certiorari. The defendants in the libel suit were not parties to the mandamus suit. After the decision of the Supreme Court in the certiorari proceeding the plaintiff in the libel suit filed, an amended petition alleging that the letter was * written falsely and maliciously by defendants, to which petition they answered by general denial. Held, that the judgment of the Court of Appeals was not res adjudicata on the right of plaintiff in the libel suit to a subpoena duces tecum directed to the secretary of the Complaint Board to produce said letter in the circuit court on the trial of said libel suit. [Graves, J., Walker, C. J., and Woodson, J., dissenting.]
    3. -: -: -: Subpoena duces tecum. Where a libel suit is brought in the circuit court based upon a letter alleged to have been falsely and maliciously written by defendants to a public officer in regard to the plaintiff such court has the inherent power to issue a subpoena duces tecum to such officer to produce such letter in such court upon the trial of such suit, and the question of privilege or no privilege with respect to such letter is, in the first instance, one solely for the trial court, to be determined by such court when such letter is offered in evidence.
    4. --: -: -: -: Prohibition. The Supreme Court will not issue a writ of prohibition to the circuit court to pre- ■ vent the court from enforcing a subpoena duces tectim issued by it to compel relator to produce on the trial of a libel suit a letter quálifiedly privileged, where the petition in the suit based on such letter and the application for such subpoena charge that such letter was false and was written maliciously.
    5. -; -; ---: -: -: Appeal. The admissibility in evidence of such letter is to be determined by the trial court and its action thereon may be reviewed on appeal.

      Prohibition..
    Preliminary rule discharged.

      Everett Paul Griffin for petitioners; Charles PL. Danes of counsel.
    (1) The judges of-the circuit court exceeded their jurisdiction in issuing a subpoena duces tecum requiring the production in evidence of the letter written to the Complaint Board in a trial of a libel suit pending in the circuit court and in threatening to enforce that part of the subpoena duces tecum requiring the production in evidence of said letter after the St. Louis Court of Appeals had held that said letter was a privileged communication under the law of evidence. State ex rel. Douglas v. Tune, 199 Mo. App. 404. (2) It was the duty of the judges of the circuit court to follow the law as laid down by the St.. Louis Court of Appeals. The opinion of the St. Louis Court of Appeals held that this identical letter now sought to be produced in evidence by subpoena duces tecum was a highly confidential communication and was a record to which public policy would forbid the confidence to be violated and was a privileged communication under the law of evidence. Mangold v. Bacon, 237 Mo. 512; State ex rel. Douglas v. Tune, 199 Mo. App. 400. (a) This decision of the Court of Appeals was held to be not in conflict with any prior decision of the Supreme Court and, therefore, is today the law of the case and should be followed by the circuit court. State ex rel. Douglas v. Reynolds, 209 S. W. 100. (3) We cite here for convenient reference the various decisions of the appellate courts with reference to the production of this letter. State ex rel. Douglas v. Tune, 191 S. W. 1078; State ex rel. Douglas v. Tune, 200 S. W. 1062; State ex rel. Douglas v. Tune, 199 Mo. App. 404State ex rel. Douglas v. Reynolds, 209 S. W. 100.

      Douglas W. Robert and Charles Glaflin Allen for respondents.
    (1) The rights of the relators and the duty of the respondents, as judges below, are now for the first time presented in a libel suit, with an issue on malice. Compare the pleadings in this case with those in State ex rel. Douglas v. Tune, 199 Mo. App. 404, and State ex rel. Douglas v. Reynolds, 276 Mo. 688. (2) This is a libel suit praying damages for $50,000, based on the letter called for in the subpoena duces tecum.. Malice is alleged in the petition. Neither the law of libel nor the question of malice was ever before the St. Louis Court of Appeals. The presence here of the averment of malice in a libel suit brings the case directly in line with the rule of law laid down in State ex rel. Douglas v. Reynolds, 276 Mo. 688; 17. R. C. L. p. 341. (a) The law of libel is now involved. (3) In the case at bar there is no privilege, qualified or otherwise. Therefore, no writ of prohibition lies at the instance of the Complaint Board. Finley v. Steele, 159 Mo. 304, 305; Peak v. Taubman, 251 Mo. 418, 435; Holmes v. Royal Union, 222 Mo. 556 f Minter v. Bradstreet, 174 Mo. 487; Wagner v. Scott, 164 Mo. 301; Smith v. Fidelity Co., 190 Mo. App. 457; Overton v. White, 117 Mo. App. 604; Yager v. Bruce, 116 Mo.'App. 483. (4) The Complaint Board of the City of 'St. Louis is not within the class of public bodies protected by absolute privilege. Finley v. Steele, 159 Mo. 304. (5) The Complaint Board is no*, entitled to any sort of privilege, even qualified privi lege, as against the rights of citizens injured by the exercise of such a privilege, and especially when-the privilege is unnecessarily invoked to bar recovery for a malicious libel. It is not granted in the charter any powers or privileges of secrecy or sanctity; it is not a public body known to the common law, acting according to the course of the common law, and having any presumptions of jurisdiction, authority or power in its favor; it is merely a body provided in the St. Louis charter for convenience and expediency in the administration of the official affairs of the municipality; it is, under the charter section creating it, a body of the most limited and indefinite authority.
   HIGBEE, J.

This is an original proceeding for a writ of prohibition to prohibit the respondents, judges of the Circuit Court of the City of - St. Louis, from enforcing a subpoena duces tecum requiring Marsh to pro‘duce a letter addressed to the Complaint Board on the ground of privilege.

The Charter of the City of St. Louis provides that the Compaint Board shall receive “ complaints against any department, board, division, officer, or employee of the city, or against any public utility corporation, and examine the same. It shall recommend to the ., , , ., ... .. proper city or State authorities any action deemed advisable.” The relators are the members and secretary of this board. The petition alleges that Samuel J. Douglas is an employee of the City of St. Louis in the department of streets and sewers; that Douglas brought an action in the circuit court a,gainst Lawrence McDaniel and George S. Thomas for libel, based on a letter written by them November 29, 1916, making certain false charges against him in this, that he uses vile and obscene language to women and children who pass him; that he curses and swears at children, etc., his damage in the the sum of $50,000: that Douglas brought an action of mandamus against relators in the St. Louis Court of Appeals to -obtain a copy of said letter for his use in the preparation and as evidence in the trial of said action, which is still pending in the said circuit court; that the Court of Appeals held that said letter was privileged and that the court could not compel its production as evidence upon the trial of said cause; that thereafter said Douglas sued out a writ of certiorari in the Supreme Court, alleging that the decision of the Court of Appeals was in conflict with decisions of the Supreme Court and that the Supr.eme Court held that said decision was not in conflict with any of its prior decisions and quashed the writ of certiorari.

That on March 29, 1920, the Hon. Victor H. Falkenhainer, judge of said circuit court, presiding in Division One of said court, on the application of said Douglas issued a subpoena duces tecum directed to relator Marsh, secretary of said Complaint Board, to produce said letter at the trial of said cause; that on May 20, 1920, relators filed a motion to quash said subpoena, citing said decision of the Court of Appeals holding said letter to be a privileged communication, but said Judge overruled said motion; that said Marsh is ready and willing to appear in said court in response to said subpoena but is unwilling to produce said letter because the Court of Appeals held it to be a privileged communication: that the Hon. Karl Kimmel is now presiding judge in Division One of said circuit court; that Judge Falkenhainer is now presiding judge in Division Thirteen of said court, and that Judge Kimmel threatens to enforce said subpoena and compel the production of said letter on the trial of said cause, all of which is contrary to the decision of said Court of Appeals.

The respondents’ return to the preliminary rule sets out the amended petition filed in the Douglas libel action and the subpoena duces tecum, and avers that in the proceedings in the Court of Appeals (State ex rel. Douglas v. Tune, 199 Mo. App. 404, 203 S. W. 465), and in this court (State ex rel. Douglas v. Reynolds, 276 Mo. 688, 209 S. W. 100), no showing was made that the libel was predicated upon a letter that was maliciously written, as was averred in the amended petition in the libel suit, and that said court properly overruled the motion to quash said subpoena: that'thereafter Judge Falkenhainer was transferred to Division Thirteen of said court and Judge Kimmel was assigned to Division One thereof; that the acts done by respondents and each of them respectively were done and intended to be done in discharge of their official duties and that said subpoena was issued for the reason that the suit was an action for libel on a petition which averred that the letter mentioned in said subpoena was written falsely and maliciously by defendants, and an issue has been joined on a general denial filed by said defendants; that said action has been continued from time to time on account of the pendency of this proceeding. Wherefore they pray, etc.

Relators challenge the sufficiency of the return and move for the issuance of a peremptory writ of prohibition.

The foregoing statement, it is believed, is sufficient for the consideration of the questions arising in this cause. The facts are fully recited in the opinion of Judge Graves in State ex rel. Douglas v. Reynolds, 276 Mo. 688. .

I. Relators charge that the circuit court exceeded its jurisdiction in issuing the subpoena to respondent Marsh to produce in court the letter on which the action whs predicated, because it was held to be privileged by the Court of Appeals. ’ The opinion of Judge Graves notes the absence of an averment in the petition for the writ 0f mandamus of an allegation that the letter was maliciously' w-ritten. In other words, as far as the petition before us for review is concerned, we must presume, under the law, that the letter was sent in good faith and without malice (p. 694). On page 695,- Judge Graves, speaking for Court in Banc, said:

“The petition for-mandamus showrs the board to which it was addressed was at least a .governmental agency provided for the good of the city government. Complaints made to such a body, at the very least, must be held to be qualifiedly privileged, and the qualified privilege cannot be destroyed without a charge of malice. To destroy the patent qualified privilege of this letter, absence of good faith, and presence of malice, should have been charged. No such charge is made and upon this theory alone the Court of Appeals reached a right result in refusing the writ.” There can be no doubt that the letter in question is qualifiedly privileged.

Finley v. Steele, 159 Mo. 299, was an action for libel based on a letter written by the members' of a school board to the county superintendent, making accusations 'against Miss Finley, the teacher of the school, and asking him to revoke her certificate. Judge Burgess reviewed many eases. At the foot of page 805, the learned judge said:

“It is announced in Marks v. Baker, 28 Minn. 162, that ‘the rule is that a communication made In good faith, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, public or private, either legal, moral or social, if made to a person having a corresponding interest or duty, is privileged; that in such case the inference of malice. ... is cast upon the person claiming to be defamed.’

“ ‘Malice in such case is not shown by the mere fact of the falsity of the publication.’ [Henry v. Moberly, 6 Ind. App. 490; Stewart v. Hall, 83 Ky. 375.] ”

Again, on page 307, it was said:

“They not only had an interest in regard to the way in which the' school was being conducted, but in preferring the charges against the plaintiff were simply discharging their duties as members of the school board, and it makes no difference that the exact words of the statute were not used, or that some word not embraced therein was used, the purpose and intent was the same. There was no actual malice proven, and the use of such word or words did not take away the privileged character of the communication. Intent makes the libel in such circumstances.

“The communication was made on a proper occasion, from a proper motive, and was based upon a reasonable cause. It was made in apparent good faith, and under these circumstances the law does not imply malice— and as there was no proof of express malice the plaintiff was not entitled to recover. The judgment is affirmed. ’ ’

The ruling in Finley v. Steele has been frequently approved. [See Peak v. Taubman, 251 Mo. 390, 418, 434 et seq.]

The rule permitting’ criticism of public officers is the same as that which governs .the criticism of all matters of public interest, such as public institutions, places of entertainment, books, pictures and other matters, and under it it is permissible to criticize fairly and without malice or view to injure or prejudice in the eyé's of the public. [McClung v. Star Chronicle Pub. Co., 274 Mo. 194, 202 S. W. 571.] But the qualified privilege to criticize public acts of public officials does not exist where defendant was actuated by malice. [McClung v. Pulitzer Pub. Co., 214 S. W. 193. See, also, Diener v. Publishing Co., 230 Mo. 613; S. C. 232 Mo. 416; Ex parte Harrison, 212 Mo. 88, 1. c. 92; Cornelius v. Cornelius, 233 Mo. 1, l. c. 30; Tilles v. Publishing Co., 241 Mo. 609 (syl. 6); Link v. Hamlin, 270 Mo. 319, l. c. 336; Yancey v. Kentucky, 122 S. W. 123, 25 L. R. A. (N. S.) 455, and annotations.]

McKee v. Hughes, 181 S. W. 930, L. R. A. 1916D, 391, was an action for libel on a petition to revoke the license of a merchant. In that case it was argued that the petition was not privileged because the council had no authority to revoke the license. The court, at page 393, said,:

“Can it be that ordinary laymen in the exercise of such a right may be thus caught on such a fine point of law, to their undoing as is insisted in this case? The juster view is that these men but advance the above mode of action as a suggestion for the consideration of the members of the council deemed by them competent to judge and act as public officials, and that they are not liable if they acted in good faith or without malice. The right of petition guaranteed to the citizen in the Bill of Rights should not he allowed to become a trap for the petitioner, to be sprung by any such hairtrigger of technical law.” [See 25 Cyc. 385, C.]

However, in some jurisdictions, communications of the character of this letter are held to he within the protection of the Bill of Rights. Thus an application to the Governor for a pardon, charging that the district judge “changed the venue of the case for the purpose of making the costs excessive,” alleged “to be untrue and written and published with actual malice without any foundation whatever,” was held to be absolutely privileged. [Connellee v. Blanton, 163 S. W. 404.]

II. The Complaint Board is a governmental agency created for the express purpose of investigating complaints against any department, board, officer or employee of the city. It therefore had an interest and a duty to perform in connection with complaints of this character. The complainants were interested, as citizens of St. Louis, in having the matters complained of investigated, and are therefore privileged in making complaints, if made in good faith and without malice. [State ex rel. v. Reynolds, 276 Mo. l. c. 695; 25 Cyc. 389.]

III. It is urged, however, that the decision of the Court of Appeals is res adjudicate/, because this court held it was not in conflict with any of its prior decisions. On this point Judge Graves, on page 701 of State ex rel. Douglas v. Reynolds, supra, said:

“jn †]16 instant case the Court of Appeals did not have before it a libel suit, nor the lawr of libel. Privilege or qualified privilege in libel law was not before it, nor discussed by it. . . . It held that public policy demanded that complaints to this general-welfare board should not be made public. . . . Certain it is that there is no conflict between their opinion and Finley v. Steele, supra, or any of the cases following that case. The subject-matters discussed are wholly different.”

The relator, Douglas, prayed for an order to permit him to inspect or make a copy of the letter, basing his claim on the ground that it was a public document, which the court denied (p. 698). It was not claimed that McDaniel and Thomas had any connection with that case. It was res inter alios acta. [Henry v. Woods, 77 Mo. 277, l. c. 281; Strottman v. Railroad, 228 Mo. 154, l. c. 182; 23 Cyc. 1237.]

IY. But a fundamental reason why the rule should be discharged is that the circuit court had inherent power to issue the subpoena (40 Cyc. 2167), and the question of privilege or no privilege is, in the first instance, one solely for the trial court. Issue is joined between the litigants on the question of defendants’ malice in writing the letter. It must be obvious that it is a question of fact of which this court cannot take cognizance in a proceeding of this character.

. While the federal grand jury was investigating the charge of treason against Aaron Burr, he applied to the court for a subpoena duces tecum tó the President to produce a certain letter addressed to him by General Wilkinson, together with documents' accompanying the said letter, also the military or naval orders given by the President at or near the New Orleans station concerning the said Burr. Chief Justice Marshall heard arguments touching the authority of the court to subpoena the President, or to require him to produce state papers. There was no precedent. It was admitted that such a writ would not run against the King of England, and it was argued by the District Attorney that the court had no power to subpoena the chief magistrate or to order the production of state papers to be read in evidence; that the documents called for might contain matter which should not he disclosed.

The Chief Justice could perceive no foundation for the opinion that the issuance of the subpoena would be discourteous to the President. He held that the law does not discriminate between the President and a private citizen and that the propriety of introducing any paper into a case depends on the character of the paper, not on the character of the person holding it. A subpoena duces tecum, then, may issue to any person to whom an ordinary subpoena may issue, directing him to bring any paper of which the party praying it has a right to avail himself as testimony. The Chief Justice, continuing, said:

“When this subject was suddenly introduced, the court felt some doubt concerning the propriety of directing a subpoena to the chief magistrate, and some doubt, also, concerning the propriety of directing any paper in his possession, not public in its nature, to be exhibited in court. The impression, that the. questions which might arise in consequence of such process, were more proper for discussion on the return of the process than on its issuing, was then strong on the minds of the judges.

“The court can perceive no legal objection to issuing a subpoena duces tecum to any person whatever, provided the case be such as to justify the -process. The court would not lend its aid to motions obviously designed to manifest disrespect to the government, but the court has no right to refuse its aid to motions for papers to which the accused may be entitled and which may be material in his defense.

These observations are made to show the nature of the discretion which may be exercised. If it be apparent that the papers are irrelative to the case, or that, for stated reasons they cannot be introduced into the defense, the subpoena ditces tecum would be useless. But, if this be not apparent, if they may be important in the defense, if they may be safely read at the trial, would it not be a blot on the page which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied ■ the use of them?

. . The second objection is that the letter contains matter which ought not to be disclosed. At present it need only be said that the question does not occur at this time. . . . If it does contain any matter which it may be imprudent to disclose, which it is not the wish of the Executive to disclose, such matter, if it be not immediately and essentially applicable to the case, will, of course, be suppressed. . . . Everything of this kind, however, will have its due consideration on the return of the subpoena.” [1 Burr’s Trial, 182-187],

It is sufficient to add that the subpoena was served and the documents called for were forwarded by Mr. "M'ferson to the District Attorney. Justice Marshall reserved the right to pass upon their admissibility at the trial. The precedent, thus established, has ever since been followed.

The rule is stated in 40 Cyc. 2169:

“It is the duty of a witness served with a subpoena duces tecum to appear and produce the book *or paper mentioned in the writ, if it is in his possession. The fact that a subpoena requires a witness to produce books and papers which he cannot lawfully be required to produce does not affect the legality of the issuance of the subpoena or the obligation of the witness to appear in obedience to it, and if he has doubts as to whether or not he should produce the document called for, he may submit it to the inspection of the court, which may decide on the question of its production. But it has also been held that a witness is not bound to produce a paper, in compliance with a subpoena duces tecum until he has been sworn as a witness to enable him to state on oath his reasons why he should not be compelled to produce it.”

In Hull v. Lyon, 27 Mo. 570, it was held, Scott, J., delivering the opinion of the court, that “whether a communication is a privileged one is a question for the court. ’ ’

In Peak v. Taubman, 251 Mo. 391, in an opinion by by Woodson, P. J., l. c. 434, the court said: “It is for the court and not for the jury to say when words are of a privileged character. ’ ’

In TTa.mil & Co. v. England, 50 Mo. App. 338, it was held that an attorney who advised about and drew up a fraudulent bill of sale could be compelled to testify as to. what was said to him by his client and that the trial court erred in holding that such communication was privileged. If the advice had been in a letter, written by the attorney to his client, would this court have prohibited the enforcement of a subpoena duces tecum for its production in evidence?

In 1 Thompson on Trials, section 73Ó, the learned author says a subpoena duces tecum is defined to be, “a process by which a court, at the instance of a suitor, commands a person, who has in hfe possession or control some document or paper that' is pertinent to the issues of the pending controversy, to produce it for use at the trial.” In Section 175 it is said: “the papers are required to be stated or specified only with that degree of certainty which is practicable, considering all the circumstances of the case, so that the witness may know what is wanted of him, and may have the papers at the trial so that they can be used, if the court shall'then determine them to be competent and relevant evidence.” Section 300 reads as follows: “Whenever, in the practical application of these rules, the question of privilege arose, it was not . . . the right of the witness to judge except where the matter might incriminate him, whether the matter inquired of was privileged or not. That was' the province of the court. If the production of a document was called for, and the witness declined to produce it, upon the ground that the reading of it in evidence would be prejudicial to his interests, or to the interests of the party for whom the witness acted as attorney, the witness was required to submit the document to the inspection of the court, and if the judge, after perusing it, differed from the witness, he would direct it to be read; or if a witness swore that a question put to him could not be answered without a disclosure of secrets communicated to him by his client, it was for the court to determine, from the nature of the inquiry, whether the principle of protection extended to it or not; and if the court decided that it did not, the witness, should he refuse to answer, would be guilty of a contempt, nor would the court even hear counsel upon the plea of the witness’ objection.”

In State ex inf. v. Standard Oil Co., 218 Mo. 1, it was said: “Nor does the Constitution interfere with the power of the court to compel the production of documentary evidence under a subpoena duces tecum.” [Syl. 11].

“The rule seems to be well settled that, although the determination of a question of fact is thereby involved it is for the court to determine the admissibility, materiality, relevancy or competency of evidence, or the competency of witnesses; and it is error for the judge to submit to the jury the competency of evidence, or to instruct them that they may exclude such testimony as they see is improper.” [38 Cyc. 1513].

Y. It is solemnly asserted by the relators that the trial court exceeded its jurisdiction in issuing the subpoena duces tecum to require Marsh to produce the letter in question held to be privileged by the Court of Appeals, which, as we have seen, was in an action involving other issues and between other parties. It was held by this court, in the opinion by Judge G-raves, that the letter is qualifiedly privileged, but if it be shown to have been written maliciously its qualified privilege is lost. It was held by Chief Justice Marshall that the writ will issue for the production of State papers and that the question of privilege is to be determined when they are offered in evidence. It is charged in the amended petition in the circuit court and in the application for the subpoena duces tecxim that the letter was false and malicious. It is apparent that its production is essential in the trial of the action. Its admissibility in evidence is a question for the trial court. It would be a manifest usurpation and invasion of the jurisdiction of the trial court were we to assume to rule on the issue presented by the pleadings in this case.

The preliminary rule was improvidently granted and is quashed. The writ is denied.

Elder and D. E. Blair, JJ., concur; J. T. Blair, J.,-concurs in separate opinion; Graves, J., dissents in separate opinion in which Walker, G. J., and Woodson, J., concur.

JAMES T. BLAIR, J.

(concurring).- — -I concur in the principle announced in Paragraph IV of the opinion and concur in the result. The objections (1) that the letter is absolutely privileged, and (2) that the question of .privilege is res adjudícala may be presented to the trial court for what they are worth. The witness should not be permitted to decide a question of availability of evidence. Prohibition will not lie merely to prevent a trial court from making ruling on evidence, erroneous, or otherwise. Neither, it seems to me, is there present any circumstance of the character usually held sufficient to render the remedy by appeal inadequate.- Further, the inadequacy of appeal as a remedy is of no great consequence in view .of the presence of jurisdiction in the trial court to rule on the question of evidence when it is presented to it.

GRAVES, J.

(dissenting). — Samuel J. Douglas, has now, and for a long time has had, pending in the Circuit Court of the City of St. Louis-, a libel suit against Lawrence McDaniel and George E. Thompson. This suit has for its basis a letter written by these two gentlemen to the Complaint Board of the City of St. Louis. From the filing of the libel petition, Douglas has made a persistent fight to secure this letter for use in the trial of his libel suit. See his divers efforts in the following cases in the court of Appeals, and in this court: State ex rel. Douglas v. Tune et al., 191 S. W. 1078; State ex rel. Douglas v. Tune et al., 200 S. W. 1062; State ex rel. Douglas v. Tune et al., 199 Mo. App. 404; State ex rel. Douglas v. Reynolds et al., Judges, 209 S. W. 100, 276 Mo. 688.

The situation as to all these cases, except the last named above is fairly stated in State ex rel. v. Tune et al., 199 Mo. App. l. c. 410. In the instant case we are only concerned with the case in 199 Mo. App., supra, and our own case in 276 Mo., supra.

The present case is in prohibition, wherein the Complaint Board of St. Louis, is seeking to prohibit the circuit court from enforcing a writ of subpoena duces tecum, issued by the circuit court (now having for disposition the aforesaid libel suit) requiring this Complaint Board and its secretary to produce this letter for use in the trial of the cause.

Douglas had made a previous attempt to got this letter or a copy thereof for use in the libel suit. This time was by mandamus against the Complaint Board and its secretary. [See 199 Mo. App. 404, supra.] In that case the St. Louis Court of Appeals in closing its opinion (199 Mo. App. l. c. 415) said:

“Our conclusion is that the respondents here were justified in their refusal to permit relator to have an inspection of the letter,- assuming such letter was in their control, and in refusing to allow the relator to make a copy of it. That is as far as we go in this case, except to say that neither our court nor the circuit court in which the action for libel is pending, can compel the production of the letter for the purposes sought by relator. "Whether the circuit court, in which the action for libel is pending, can proceed with the case, in tlie absence of the original letter and allow parole testimony to be given as to its contents, is a question which is not now before us and which we do not decide. ’ ’

This opinion was brought before us by certiorari in State ex rel. Douglas v. Reynolds et al., 276 Mo. 688, and we declined to quash it. It stands as the law upon the questions therein ajudicated.

The petitioners- (relators) for our writ of prohibition plead the final adjudication of Douglas’s right to the use of this letter in his libel suit in their petition herein, and say that notwithstanding such final adjudication of the question, the circuit court is calling for the letter for such use by its subpoena duces tecum, issued upon the application of Douglas, which subpoena the court has refused to quash, notwithstanding the adjudication in the St. Louis Court of Appeals.

The respondents (Circuit Judges) appear here through the counsel for Douglas, and in their return urge that the present action is between different parties, is different in the form, of action, and is different in subject-matter. However, by exhibits and allegations in the petition (not denied in the return) the matter as to whether or not there has been an adjudication of the same question in the former action is in the record before us. This outlines the situation.

I. It is urged by learned counsel for the respondents, that the petition for the subpoena duces tecum was granted because of what we said in 276 Mo. 688, supra. They urge that we ruled that the letter was only qualifiedlv privileged and not absolutely privileged.

In the case of State ex rel. Douglas v. Reynolds, 276 Mo. 688, we did not rule that the letter was qualifiedly privileged and not absolutely privileged. The Court of Appeals had ruled that it was against public policy to permit communications of this character to be made public,’ and we did not quash their judgment, because we had never ruled upon a similiar state. of facts, and there was no conflict of opinion. What we did say was that the letter, under the facts, was “at least qualifiedly privileged” and in the absence of a charge of malice, the Court of Appeals could have justified its judgment upon that ground. It had not done so however.

We did not rule that the letter was only qualifiedly privileged. We were not trying to determine the question of qualified privilege or absolute privilege, but we did rule that even if the letter was qualifiedly privileged, the defect in the pleadings were not such as would permit its use — absent in the pleadings the charge of malice. We went further and said that the whole discussion was beside the real issue. So that if this opinion was the occasion for the issuance of the subpoena duces tecum, there was no justification for the issuance of it.

II. If there had been a prior ajudication of the rights of Douglas to use this letter in the trial of his libel suit, and that adjudication against him, then will prohibition lie? We have ruled that prohibition will lie where an appeal would not be an adequate remedy. To refuse prohibition, it must appear that the party has another remedy, by appeal or otherwise which is adequate, prompt, and efficient. [State ex rel. Knisely v. Jones, 202 S. W. l. c. 1122.]

In this case the parties would have to go through the trial of a libel suit, and be subject to all the expenses and inconveniences thereof, when, if the trial court adheres to its expressed views, they would have to appeal to this court, to have the question of res adjudicata determined. In such case the appeal would not be an adequate, efficient and prompt remedy. Eelators have been in court four times at the instance of Douglas upon the right of Douglas to use this letter in the trial of his libel suit. Now he insists that they come for a fifth time by the cumbersome route of appeal. It is time that the question be settled, but an appeal is wholly inadequate as the remedy, in view of the indisputed facts before us. So we hold, that if in fact the plea of former adjudication is good, the writ should go.

III. The question ruled by the St. Louis Court of Appeals was that Douglas could not compel the production of this letter for the use he desired, i. e. for use in the trial of his libel suit. [199 Mo. App. l. c. 415.] This was the mandamus ease in the St. Louis Court of Appeals. Douglas was the relator in that case, and the Complaint Board and its secretary were the respondents. Hon. Douglas W. Eobert represented Douglas in that case, as he does the respondents, for Douglas, in this case. In this case the relators are the Complaint Board and its secretary, and the nominal respondents, two Circuit Judges of St. Louis, but the real respondent, and the one interested in upholding the Circuit Judge, is none other than Douglas, through his counsel. Douglas does not have to be an actnal party to the suit, if in fact, as here he is defending the action by his own counsel.

It would be to throw aside all of our experiences to say that Douglas is not the real respondent in the present action. We know by whom all such cases are defended even if the counsel for Douglas were not actually (as here) defending the action. The whole brief for respondents here shows that counsel are here for Douglas. So that we rule that there is identity of parties in the two cases. In other words, whatever our judgment here, it would bind Douglas. [Titus v. North K. C. Development Co., 264 Mo. 229; 15 R. C. L. l. c. 1010.] In the latter it is said:

“The courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered, as for example those who employ counsel in the case, assume the active management of the proceeding or defense, or who pay the costs and do such other things as are generally done by parties. In other words, by participating in the proceedings one is estopped by the judgment as to any questions actually litigated and decided therein, One who instigates another to do a wrongful act, and, when the wrongdoer is sued, takes upon himself and conducts the defense of the case, is estopped from again litigating with the plaintiff in that action the issues there decided. Similarly, where a suit is prosecuted or defended by one person at the instance of another, and for the latter’s benefit, the judgment will be binding and conclusive upon the latter. In all such cases the strict rule that a judgment operates as res judicata only in regard to parties and privies expands to include such persons as parties, or at least as privies.”

So too there is the same subject-matter, i. e., the use of this letter by Douglas in the trial of his libel suit. And this in the face of’the fact, that the question of such use has been fully and finally determined against him ' (in the mandamus suit) by the St. Louis Court of Appeals.

There can be res adjudicata as to certain questions in a case, without involving the whole case. Such is the situation here. The right of Douglas to use this letter is a matter finally determined, and as this matter appears upon the face of the record before us, our writ should go. Under the facts an appeal would be wholly inadequate. For these reasons I dissent.

Walker, C. J., and Woodson, J., concur in these views.


author: RAILEY, C. PER CURIAM:

text:
    THE STATE v. WALKER LEE, Appellant.
    Division Two,
    May 26, 1921.
    1. RAPE: Capital Case: Defendant No Counsel in Supreme Court: Duty of Court. In a prosecution for rape, where defendant was found guilty and sentenced to death and on his appeal to the Supreme Court was not represented by counsel, the court will make a thorough examination of the law and facts to ascertain whether defendant has had a fair and impartial trial and to determine whether he has been convicted upon substantial evidence.
    2. -: Indictment. In this case, while no assault has been made upon the indictment, the Supreme Court examined the same and finds it to be in proper form.
    3. -: Instructions Given. The instructions given to the jury by the trial court were not objected to by defendant as to either form or substance; and as they clearly, properly and fairly declared the law by which the jurors were to be governed in arriving at their verdict there was no error in giving instructions to the jury.
    4. -: Failure to Instruct: No Exception. In a prosecution for rape, where it does not appear from the record that defendant offered any instructions aside from those given nor does it appear that any request was made of the trial court to instruct upon any other branch of the case, outside of the questions properly covered by the instructions given, defendant’s complaint in his motion for a new trial, that the court failed to instruct the jury upon all phases of the offense, is without merit; and especially so, as no exception-was saved to the alleged non-direction of the court, in ■respect to said matter.
    5. -: Trial: Statements of Prosecuting Attorney. Where defendant was prosecuted for rape, an objection by defendant, while the jury was being empaneled, to a statement by the prosecuting attorney that defendant was charged “with raping a white woman” was without merit, the woman being present in court and testifying in the case and the court having sustained the objection on the theory that the indictment did not say she was a white woman but having told the prosecutor he could say to the jury that the evidence would show she was a white woman.

      6. -: -: Names of Witnesses Not on Copy of Indictment. In a prosecution for rape, where no motion to quash the indictment was filed by defendant and no continuance was asked, it was not error to overrule defendant’s objection to the testimony of several witnesses on the ground that their names were not endorsed on the copy of the indictment furnished defendant, the record in the Supreme Court showing that the indictment on file in the case had the names of such witnesses endorsed thereon and the alleged copy not being produced in evidence.
    7. -: -: Names of Witnesses Not on Original Indictment: Competent When. In a prosecution for rape it is not error for the trial court over defendant’s objection to permit witnesses to testify whose names were not endorsed on the original indictment where the prosecuting officer explained to the court that he had just learned of their importance.
    8. -: -: Evidence: Written Statement of Defendant: Admissions. Where the defendant, after he had been arrested for rape, without any threats or promises from anybody, admitted his guilt and said he wanted to plead guilty, and afterwards in a written statement as to what occurred prepared at his request and signed by him he. denied that he had committed the rape, such admissions and such written statement were properly admitted in evidence.
    9. -: -: No Error. The Supreme Court, after having read and considered the record in this case finds that there was no error of which defendant can legally complain, but on the contrary the case was carefully and well tried by the court and by counsel upon each side and there is nothing in the record to indicate that defendant had other than a fair and impartial trial before an unprejudiced jury; and the judgment is accordingly affirmed.
    Appeal from Jackson Criminal Court. — Hon. Ralph S. Latshaw, Judge.
    Ajbttrmed.

      J esse W. Barrett, Attorney-General, Robert J. Smith and Robert W. Otto, Assistant Attorneys-General, for respondent.
    (1) The court did not err in failing to instruct on all the law in the case, (a) This question is not he-fore this court for review, for the reason that the record fails to show that defendant offered or requested such instructions, and fails to show that defendant excepted to the action of the court in failing to instruct on all the law in the case. State v. Snyder, 263 Mo. 668; State v. Pfeifer, 267 Mo. 29; State v. Goldsby, 215 Mo. 57; State v. George, 214 Mo. 262; State v. Epenschied, 212 Mo. 222; State v. Barnett, 203 Mo. 65. (2) (a) The court did not commit error in admitting the confession or statements of defendant. State v. Barring-ton, 198 Mo. 109-110; State v. Brooks, 220 Mo. 83; State v. Spaug’h, 200 Mo. 596; State v. Armstrong, 167 Mo. 269; State v. Armstrong, 203 Mo. 557. (b) The court did not err in permitting State’s witnesses to testify as to voluntary statements made by defendant. State v. Barrington, 198 Mo. 109-110; State v. Brooks, 220 Mo. 83. (3) (a) The court did not err in permitting witnesses to testify whose names had not been endorsed on the back of the indictment. State v. Barrington, 198 Mo. 66.; State v. Jeffries, 210 Mo. 322; State v. Rasco, 239 Mo. 553. (b) This question is not before this court for review. The bill of exceptions or record does not disclose that there was any motion to quash the information, nor an application for a continuance filed upon the ground that the witnesses were not endorsed upon the indictment at the time of the trial. State v. Wilson, 223 Mo. 186; State v. Johnson, 118 Mo. 500; State v. Barrington, 198 Mo. 66. (4) The remarks of counsel complained of herein do not warrant reversal. Even if there had been the point was not saved by timely exceptions. State v. Rasco, 239 Mo. 579; State v. Mc-Mullin, 170 Mo. 632; State v. .Baker, 209 Mo. 450.
   RAILEY, C.

Appellant was charged by indictment, with the crime of rape. It is alleged, that on June 28,1920, at the County of Jackson and State of Missouri, said defendant did feloniously and violently make an assault upon one Elizabeth Dahmm, and did forcibly and against her will, feloniously r&vish and carnally know her, the said Elizabeth Dahmm.

There was substantial evidence as to defendant’s guilt offered on the part of the State, which tends to . show the following facts; Mrs. Elizabeth Dahmm lived, with her husband, about two miles east of Independence in Jackson County, Missouri, about one-half block from the track of the Chicago & Alton Railroad. They owned about two acres of ground, which was used as a garden and orchard. Her husband was absent from home on the date hereafter mentioned, and Mrs. Dahmm, on said date, was at her home alone. The railway track is elevated above the ground on which Mrs. Dahmm lived. On the 28th day of June, 1920; an extra gang of laborers were at work on the Chicago & Alton Railroad, between Independence, Missouri, and the residence of Mrs. Dahmm. The defendant had been a“ member of this railroad gang and, on the morning of the 28th of June, 1920, quit work, but loafed around with the rest of said gang until about 1:30 o’clock in the afternoon of said day. Several of the railroad employees testified that after 1:30 o’clock above mentioned, they saw the defendant running down the railroad track beyond the home of Mrs. Dáhmm and near her place; that he then had on a pair of blue overalls, and when they saw him about four o’clock, he had changed his pants and had on yellow overalls.

Mrs. Dahmm testified in substance, that she was standing at the front door of her house, when defendant nroached and wanted some matches; that she went to get.him some matches and on her return, while she was looking in some other direction, he struck her a violent blow on the side of the head, which rendered her unconscious ; that when she came to, she was lying on the bed in another room, with the defendant on top of her, having sexual connection with her, and that he then struck her with a club, which he had in his hand, and rendered her unconscious; that after finally coming to, she managed to go a short distance to the home of Mrs. Tutter, who afterwards called for a doctor, and had the Chief of Police at Independence notified as to the assault.

Dr. M. P. Woods, a physician at Independence, Missouri, of twenty years ’ standing, testified, that he was called to treat Elizabeth Dahmm on or about the 28th of June, 1920, in Mrs. Tutter’s yard at about 5:30 p. m.; that he found her suffering from a shock, and she was in a contused condition; that he could not arouse her; that he found a number of wounds about her face and neck; a large contusion over the left eye, a cut across the right eye and to the skull; that there was a wound on the back and upper part of her head, on the right side, two and one-half to two and three-quarter inches in length; that she had, on the right side of her face, bruises, as if you could see the imprint of the object with which she must have been struck; that it was not a tear, But seemed to be a strike or knock; that her eyes were swollen, and one was shut; that her face was discolored, and she was bleeding from these various wounds and from her nose; that she had some marks on her neck, around her throat, and around the side of her neck; that there were marks of violence on her neck, finger prints and some scratches through the skin; that her condition was caused by violence.

A. TanneMU, a member of the police force, with Chief of Police Harris, went out to the scene of the trouble and Tannehill found, at the home of Mrs. Dahmm, in the bed-room, a puddle of blood on the bed, and some other blood on the floor, which had dried; that he found a stick thirty feet from the house lying in the weeds.

This stick was preserved, and introduced at the trial. The evidence on behalf of the State disclosed that the stick was shown to defendant after his arrest, and he admitted to the Chief of Police and others, that it was the stick with which he assaulted Elizabeth Dahmm.

After the assault, the defendant was at the station about four o’clock p. m., preparing to leave for Glasgow* Missouri. None of the railroad men at that time, knew of the assault, and no one in the town knew df it, except Chief of Police Harris. Just before defendant took the train for Glasgow, he had a talk with Chief Harris, and volunteered the statement that ££ The man who committed that crime ought to be tarred and feathered out in the middle of the street, and I think I can give you some evidence.” He then said to Chief Harris that two' fellows had caught the train going east and if he would wire to Glasgow he might catch them. At this time, Mrs. Dahmm was in the sanitarium at Independence, having been taken there by Chief Harris.

The defendant took the train for Glasgow, and after a more minute description of the assailant had been obtained from Mrs. Dahmm, a telegram was sent, calling for the arrest of defendant. He ran nearly six miles, fleeing from the officer, before he was arrested. After being brought back to Jackson County, when approaching Independence, he asked Chief Harris to take him on to Kansas City, as he did not want to stop at Independence. The Chief complied with his request, and placed him in the jail at Kansas City, until the following morning. When the Chief came for defendant to take him to Independence, he protested against going, and said he wanted to plead guilty. Without any threats or promises from anybody, he then told the Chief of Police and the Assistant Prosecuting Attorney, that he was guilty of the crime charged against him, and wanted to plead guilty. At his request, a written statement as to what occurred, was prepared and signed by him, it regard to. the assault, but he changed front and denied therein • that he had committed the rape. Said statement was offered in evidence and is in words and figures following, to-wit:

£< July 2,1920.

££ Statement of Walker Lee, made July 2, 1920, to Chief Harris and Will S. Guinotte, Ass’t Pros. Atty.-at

the office of the Prosecuting Attorney at Kansas City.

“My name is Walker Lee. I am 36 years old and a single.man. I have lived at Roanoke, Missouri, all my life — my mother, Mary Jane Lee, is living there now. I came to Independence, Missouri, on June 19, 1920, and was employed by the Chicago & Alton Railway as a section hand. I worked on track near Alton Ave., which was about two blocks from Mrs. Dahmm’s house. At night I slept in the boarding car with the other hands.

“I quit the job on the railroad the morning of the 28th of June, 1920. Lloyd Snoddy and Pat Casey, two colored boys who lived at Glasgow quit at the same time. We were going to Glasgow that night to get our pay. I shot ‘craps’ that morning and ate dinner about 12 o’clock at the boarding car. I loafed around after dinner about 2:00 o’clock I walked east on the tracks about two blocks where I passed a house that sits about 50 feet from the tracks. I walked on up the track a little ways and then came back and went down to this house to get a drink. A woman came to the door and I asked her for some matches and she said ‘to come on in’ and she gave them to me. There was a piece of stov.ewood by the door and I picked it up and held at my side. The woman asked me where I lived and what I was doing and I told her that I had been working on the railroad and was going home to Glasgow.. Her head was turned away from me and I hit her over the head with the-club. I do not remember how many times I hit her. I then ran out of the house and went back to the boarding car. I was passed down to Glasgow on the 5:27 train, and then to Mexico where I caught the Wabash to Moberly where I went to see my sister, Minnie Lee, who works at the Woodland Hospital. I came back to Slater Tuesday night and Tuesday morning, Wednesday morning the officers at Slater tried to arrest me. I got away and went to Galitan where I was arrested by two officers from Glasgow and taken back and confined in the jail at Glasgow, Mo. I was returned to Independence by Chief Harris Thursday. This statement is made of my own free will and accord no threats or promises having been made by any one, but because it is the truth.

“ (signed) Walker Lee.

“Witnesses.

“Will S. Guinotte.”

The evidence shows that after defendant was arrested and brought to Jackson County, Mrs. Dahmm identified him as the man who assaulted and raped her.

The only testimony offered in behalf of appellant, was that given by himself, in which he testified that he was thirty-seven years of age; that on the 28th of June, 1920, after quitting his job he came back to the bunk car and went to the railroad pond to take a swim; that he found other boys in .the pond and did not go in, but watched the others for about one hour; that he then came back, talked to the foreman, and, with the other railroad employees, received a pass to go to Slater; that the police officer who brought him to Kansas City, tried to get him to make a statement, by saying there was a mob waiting for him; that Chief Harris told him of the crime the day it was committed; that he did not admit to the officers, that he had ever seen the club before; that he did not go to the 'house of Elizabeth Dahmm on the 28tth of June, 1920; that he did not ask her for matches; that he did not have the conversation with her on said date; that there was no-blood on his hat and overalls and that he did not commit this crime.

Other testimony in the case tends to corrobate the statement to the effect that defendant was the man who made the assault on Mrs. Dahmm, as heretofore stated.

The court gave five instructions covering the case, which were not objected to by defendant, and the jury thereafter returned into court the following verdict:

“We, the jury, find the defendant, Walker Lee, guilty of rape as charged in the indictment and assess his punishment at death.”

• Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, lie was thereafter sentenced and judgment entered, in accordance with the statute; and an appeal was duly granted him to this court.

I. Defendant is not represented here by. counsel, although he has been convicted of one of the most atrocious crimes known to our law, that of rape. We, therefore, feel the responsibility devolving upon us, of making a thorough examination of the law and facts, to ascertain whether defendant has had a fair and impartial trial, and to determine'whether he has been convicted upon substantial evidence.

While no assault has been made upon the indictment, we have examined the same and find it to be in proper form. [Sec. 3247, R. S. 1919; State Warren, 232 Mo. 185, 199; State v. Burries, 126 Mo. 565-6-7.]

II. The court gave five instructions to the jury, which were not objected to by appellant, as to either form or substance. They clearly, properly and fairly declared the law by which the jurors were to be governed in arriving at their verdict. As no complaint was made, or objection urged, against the instructions given, we have not deemed it necessary to set them out.

III. It does not appear from the record, that defendant offered any instructions, aside from those given, nor does it appear that any request was made of the court, to instruct upon any other branch of the case, outside of the questions properly covered by the instructions given. The complaint, therefore, in defendant’s motion fora new trial, that the court failed to instruct the jury upon all phases of the offense, is without merit; and especially so, as no exception was saved as to the alleged non-direction of the court, in respect to said matter. [State v. Cook, 207 S. W. l. c. 833; State v. Wansong, 271 Mo. l. c. 59, 195 S. W. 1. c. 1002; State v. Pfeifer, 267 Mo. 23, 183 S. W. 337; State v. Smith, 190 S. W. 288; State v. Gifford, 186 S. W. l. c. 1060; State v. Taylor, 267 Mo. 41, 183 S. W. 299; State v. Snyder, 263 Mo. l. c. 668; State v. Sykes, 248 Mo. 708; State v. Chissell, 245 Mo. l. c. 554-5; State v. Dockery, 243 Mo. 592.]

IY. Defendant, when the jury was being impaneled, objected to the statement of Mr. Curtin, assistant prosecutor, to the effect, that he was charged “with raping a white woman by the name of Elizabeth Dahmm” etc. The court sustained the objection on the theory, that the indictment did not say Mrs. Dahmm was a wj%ne WOman, but told the prosecutor he ' could say to the jury, that the evidence would show Mrs. Dahmm was a %ohite woman. To our mind the objection made was without merit, as Mrs. Dahmm was present and testified in the case. The jury could see from .her appearance she was a white woman. The court, however, sustained defendant’s objection to said statement of the prosecutor, and no exception was saved as to the ruling of the court in respect to this matter.

Y. Appellant’s counsel objected to the testimony of several witnesses offered by the State, on the ground, that the names of said witnesses were not endorsed on the copy of the indictment furnished defendant. The indictment on file in the case, as shown by the record here, had the names of said witnesses endorsed thereon. The alleged copy of the indictment, which defendant had, was not pro' duced in evidence. No motion to quash the indictment was filed by defendant, nor was a continuance of the case asked. Even if the original indictment, did not have the names of witnesses endorsed thereon, defendant was in no condition to complain of the testimony of said witnesses, unless lie moved to quash the indictment, or asked for a continuance to meet the testimony thus offered. [State v. Kehoe, 220 S. W. l. c. 963; State v. Ferguson, 212 S. W. l. c. 343; State v. Stegner. 276 Mo. 428, 207 S. W. 826; State v. Webb, 205 S. W. 187; State v. Ivy, 192 S. W. 733; State v. Jackson, 186 S. W. 990; State v. Robinson, 263 Mo. l. c. 324; State v. Walton, 255 Mo. 233; State v. Rasco, 239 Mo. l. c. 553-4; State v. Jeffries, 21.0 Mo. 302; State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225.]

(a) Defendant’s complaint, that a few of the witnesses, whose names were not on the original indictment, were not competent to testify, by reason of that fact, is not tenable, as the prosecutor explained to the court, he had just learned of their importance, etc. Under the foregoing authorities, the court committed no error in permitting said witnesses to testify.

YI. Appellant, in his motion for. a new trial, contends that the court committed error, to his prejudice, in permitting the State to read to the jury, the ivritten statement of defendant, heretofore set out. The evidence is clear and convincing, that no promises or threats were made to defendant as an inducement for him to sign said statement. On the contrary, we are satisfied from the record before us, beyond a reasonable doubt, that defendant voluntarily, and of his own free will and accord, made the statement aforesaid, as well as the oral admissions relating to his guilt, etc. The court, therefore, committed no error in permtting said statement to be read in evidence; and likewise committed no error, in permitting Chief Harris and Judge Pendleton to testify, as to the admissions made in their presence by defendant, as to his guilt and connection with the crime charged against him. [State v. Thomas, 250 Mo. l. c. 211; State v. Brooks, 220 Mo. l. c. 83-4; State v. Armstrong, 203 Mo. l. c. 558-9; State v. Spaugh, 200 Mo. l. c. 596-7; State v, Barrington, 198 Mo. l. c. 109-10; State v. Jones, 171 Mo. l. c. 406; State v. Meyers, 99 Mo. l. c. 119; State v. Patterson, 73 Mo. 695.]

VII. After reading- and considering the record herein with pains-taking care, we have not been able to find any error of which defendant can legally complain. The case was carefully and well tried by the court, and counsel upon each side. There is nothing in the record to indicate that defendant had any other than a £mr mid impartial trial, before an unprejudiced jury. It is to the credit of the State, that a case of this character has been tried within its limits, and punishment administered to a person found guilty of the detestable crime of rape, under the orderly administration of legal procedure, rather than by a resort to mob law.

The judgment of the trial court is affirmed, and the cause remanded to the criminal court aforesaid, to be proceeded with in accordance with its judgment.

White and Mosley, CC., concur.

PER CURIAM:

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

All of the judges concur.