author: SMALL, C.

text:
    RUELL W. JACKSON v. SOUTHERN BELL TELEPHONE COMPANY, Appellant.
    Division One,
    March 2, 1920.
    1. AUTOMOBILE: Driver’s Degree of Care: Contributory Negligence. A driver of an automobile on a public highway is required to use. “the highest degree of care that a very careful person would use under like or similar circumstances,” and the statute establishes a general rule for all drivers, not only to' protect the lives and property of others, but also to protect themselves and others traveling with them from injury by collision with obstructions in the road, whether legally or unlawfully placed there. Any less degree of care by the driver is contributory negligence, and bars a recovery by him for personal injury from the telephone company which had placed the obstruction in the road.
    2. -: Care Defined. Ordinary care is such care as would ordinarily be exercised by an ordinarily careful person under the same or similar circumstances. But the statute requires the driver of an automobile on a public highway to exercise “the highest degree” of care that a “very careful person” wo’uld use under like or similar circumstances; and those words mean the highest care and caution of an experienced and competent chauffeur, since an automobile is an exceedingly dangerous’ machine unless kept under control. They do not mean the highest conceivable degree of prudence and skill possible to man, but the highest degree that has been demonstrated to be practicable.
    3. -: Contributory Negligence: Question for Jury. Under the Automobile Statute of 1911, if reasonable men may honestly differ as to whether the driver of the automobile, the circumstances considered, exercised the highest degree of care of a very careful person, the question of his contributory negligence is for the jury to settle; but if his failure to exercise such care is apparent to all reasonable men from the-undisputed facts in evidence, then it becomes the duty of the court to declare, as a matter of law, that his contributory negligence bars a recovery; and in this case it is held that plaintiff’s own undisputed testimony unquestionably shows that he was not exercising the highest degree of care of a very careful person, and therefore a demurrer should have been sustained.
    4. -: To Bight of Center of Boad. The statute (Par. 9, see. 8, Laws 1911, p. 327) requires the driver of an automobile to turn to the right of the center in approaching a turn in the public highway only when he meets another person riding or driving a horse or another motor vehicle; if there is no other person or vehicle on the road, he has the right to use the center, and even the left side.
    5. --: Skidding: Knowledge of Driver. Where the driver of the automobile left the smooth and beaten center of the public road, when there was no necessity for doing so, and encountered clods which caused his car to skid and strike a guy telephone pole, his contributory negligence cannot be excused by a failure of the evidence to show that he did not know that automobiles would skid in turning on to rough ground and clods. A very careful person, exercising the highest degree of care, venturing to drive an automobile at a turn in the public highway, at a speed of twelve or fifteen miles an hour and with the power off, thirty or forty feet over dry clods and rough ground, in daylight, his view unobstructed, would, before doing so, at least inform himself as to the common conditions and places in the roads which cause such vehicles to skid.
    Appeal from Buchanan Circuit Court. — Eon. Thomas B. Allen, Judge.
    Reversed.

      W. B. Norris, D. E. Palmer and Battle McCardle for appellant; D. A. Franh and J. W. Gleed, of counsel.
    (1) The location of the pole in question did not constitute negligence on the part of the defendant, and the accident complained of was caused by plaintiff’s own fault and negligence, and was- not due to any fault or neglect on the part of the defendant; and it was error for the court to refuse defendant’s demurrer to plaintiff’s evidence and defendant’s request for peremptory instruction at the close of all the evidence. Sec. 3326, R. S. 1909.; Julia Building Assn. v. Bell Tele- ■ phone Company, 88 Mo. 258; McCann v. Telephone Company, 69 Kan. 210; Elliott on Roads & Streets (2 Ed.), par. 621; Nelson v. City of Spokane, 45 Wash. 31; Atchison v. City of St. Joseph, 133 Mo. App. 563-566; Seibert v. Railroad Company, 180 Mo. 657; Eherhardt v. Telephone Company, 91 Kan. 763; Par. 9, sec. 12, Laws 1911, p. 330; Massie v. Barker, 113 N. E. 199; Baldwin v. Maggard, 162 Ky. 424; O'’Dowd v. Needham, 13 Ga. App. 220; Wheat v. St. Louis, 179 Mo. 572. (2) Instruction No. 1, given on behalf of plaintiff stated incorrectly the degree of care required of plaintiff while driving an automobile upon the highway. Par. 9, sec. 12, Laws 1911, p. 3S0; Mitchell v. Brown, 190 S. W. 354; Meenach v. Crawford, 187 S. W. 8791; Floweree v. Thornberry, 183 S. W. 359; Ex parte Kneedler, 243 Mo. 632; Baldwin v. Maggard, 162 Ky. 424; O’Dowd v. Needham, 13 Ga. App: 220'; Massie v. Barker, 113 N. E. 199: (3) Said" instruction ignored the issue made by the petition that the pole obstructed, narrowed, and made unsafe the highway, and directed a verdict for plaintiff if it found only that plaintiff was incommoded by the manner in which the pole was set. It ignored the issue of negligence. Gay v. Mutual Union Tel Co., 12 Mo. App. 485:; Julia Building Assn. Co. v. Tel. Co., 88 Mo. 258; Seibert v. Railroad, 188 Mo. 657; Atchison v. City of St. Joseph, 13,3 Mo. App. 563; Hook v.- Bowden, 144 Mo. App: 330'; Reedy v. Brew. Assn., 161 Mo. 523; Reno v. St. Joseph, 169 Mo.. 543; Perrigo V.- St. Louis, 185 Mo. 274.

      L. C. Oabbert for respondent.
    (1) The pole or guy stub in question was admitted to be nine feet in the public highway. The overwhelming evidence is to the effect that this pole narrowed the highway and was frequently run into and against by automobiles other than the plaintiff’s. Placing the pole in the highway nine feet from its north boundary incommoded the public. At least the jury so found upon the overwhelming testimony to that effect. This, therefore, made the defendant a trespasser, a violator of the law and in no position to complain that the act did not constitute negligence. “An obstruction that appears to interfere with the public’s rights, or to endanger the safety of travelers, or annoy those coming in contract with it at a place on the right-of-way of a public road is an obstruction thereof, and indictable as a nuisance at common - law if not under the statute.” State y. Campbell, 80 Mo. App. 110; R. S. 1909, secs. 332'6, 10533; Wright y. City of Doniphan, 169 Mo. 601. The proof was ample, full, complete and uncontradicted that the pole was not only nine feet within the highway, but was set in a position at the turn of the road so that persons approaching from the south could not ascertain that the pole was out in the highway until one was making or had made the turn. Numerous persons traveling upon this highway had found this to be tilue to their sorrow. Furthermore, plaintiff’s car was at all times in the traveled roadway, which was “right up to the pole.” Tetherow v. St. Jos. & Des Moines Ry., 98 Mo. 74. There is no question in this case that the act of defendant in placing the pole in the traveled roadway was the actionable proximate cause of the injury. Hull v. City of Kansas, 54 Mo. 598; Ballentine v. Kansas City, 126 Mo. App. 130; Bassett v. City of St. Joseph, 53 Mo. 290; Vogelgesang v. City of St. Louis, 139 Mo. 127; Harrison v. K. O. Electric Light Co., 195 Mb. 6231; Benjamin v. Met. Street Railway Co., 133 Mo. 274; Buckner v. Horse & Mule Co., 221 Mo. 710. (2) Instruction No. 1 on behalf of pláintiff correctly stated the degree of care required of plaintiff. The rule requiring a person operating an automobile on public roads to use “the highest degree of care that a very careful person would use, under like or similar circumstances,”' cannot avail the defendant in this case. The defendant is not suing for injury to its property. Defendant had imposed an unlawful obstruction in the highway. It therefore cannot seek to absolve itself from damages for its wrongful or unlawful act because the statute enjoined upon plaintiff the highest degree of care toward persons properly using such highway. No other person, than plaintiff and his family, were “on or traveling over the highway.” Neither plaintiff, nor any other person, could observe, on account of the de-. ceptive perspective, that there was a pole in the road. What reason for plaintiff to be nerved to the high tension required in a crowded highway? The statute required no such degree of care., Plaintiff is only obligated under the statute to the use of such high degree of care in order “to prevent injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used’ for travel.” Laws 1911, p. 330. The degree of care required of plaintiff in order for plaintiff not to be guilty of contributory negligence has always been the degree of care that an ordinarily prudent person would use under like or similar circumstances. Floweree v. Thornberry, 183 S. W. 359; Smith v. Union Ry. Co., 61 Mo. 588; Myers v. O., R. I. & P. Ry. Co., 1Ó3 Mo. App. 268.
   SMALL, C.

Appeal from the Circuit Court of Buchanan County. Plaintiff1 sued defendant for personal injuries sustained by Mm while driving a Ford automobile which, in making a turn in the road to the west, skidded against a telephone pole of defendant near the north edge of the road. It was in the country near Saxton, Buchanan County. The verdict and judgment were for plaintiff in the sum of ten thousand dollars. Defendant duly appealed to this court.

Plaintiff testified on direct-examination: That he lived near Easton,, east of Saxton, Missouri. That on tire morning of the 25th of February, 1917, he started in his Ford automobile to go to St. Joseph. He had had the car twenty-three days. It was his first car.' He had driven every day except one. Had driven a Ford car, but not very much, before he bought this car. On this morning, he was driving, and his wife and three children were with him in the car. He had to ma¡ke a turn to the Avest in the road, about tAvo miles east of Sax-ton. As he approached this turn he was going north. The road going north, from fence to fence, was about forty-five or fifty feet AAÚde, and about the same running west. There was a concrete culvert running diagonally from the southwest to the northeast corners of the turn in the road. There was a line of telephone poles running along the south side of the east-and-west road, and the west side of the north-and-south road. There was also a guy telephone pole on the north side of the east-and-west road about eight or nine feet south of the fence. The concrete culvert was thirty-eight feet long. There were ditches leading into it from the west on the north and south sides of the road. This guy telephone- pole was twenty feet north of the edge of the ditch on the south side of the road. The ditch at this point was something like five or six feet deep. On the north side opposite, the "ditch was not over a foot or two deep right by the pole. The ditch was four or five feet wide. The ditches got deeper as they went east towards the ends of the culvert. The road was higher in the center than at the sides, so that the water would run off. On the day in question, the road was dry, and outside of a few clods, it was smooth. The clods were little and round— not very big — on the side of the road. There was a little grass right down by the pole, between it and the center of the road. The road was pretty good right in the center. As plaintiff came north up to the turn he turned to his left to start west. Previous to making the turn, he had not noticed this telephone guy pole setting out in the roadway, until just before he hit it. He never paid any attention before that to the telephone poles along the road. Coming up from the south you could not tell that this pole was out there “to.save your neck” until you turned the corner. It looked like it was right in line with the others coming- south. He got the car turned and it kept skidding along on some clods, and he could not get the wheels to take (hold) when they ought to, and the first thing he knew, the right front wheel struck the (guy) telephone pole and tipped the car over and threw them out. It bursted an inner tube and the car turned over to the north. When it hit, the car just scooted sideways and tipped over against the pole. He was running about twelve or fifteen miles an hour when he hit the pole, but it Was “kind of skidding along.” He was thrown out to the north of the pole. His wife and children were also thrown out and injured at the same time. His leg was broken. He never recovered the nse of his foot, which flaps down on the floor when he steps and canses him to catch his toes and stumble if he is not very careful.

On cross-examination, plaintiff testified: That he had driven his car on each of the twenty-three days he had owned 'it-, except one. The weather had been good, except the day after he got the car. Before purchasing this car he had driven, the cars of Guy Watts and Mr. O’Brien — four to six times. O’Brien and Jim (Watts) taught him how to run his car. They just showed him how to use the brakes and feed the machine, and then he proceeded -to drive it himself. During the_ twenty-three days, when he was driving his car, he was learning, at the same time. The driving during those twenty-three days was part of the learning. Dnring that time, he had sometimes come to St. Joseph in his oar along- the same road, crossed the same culvert in the day time, and made the same turn in the road, and had passed by the same pole each time, but never paid any attention to the pole. Did not know how tall the pole was. The grass and weeds there were dry and shriveled up: Never saw anyone drive between the pole and the north fence. Lived near Saxton all his life. Had been along that road a great many times in wagons and buggies. There was no place for a team to get ’round between the pole and the fence. The pole was eight or nine feet south of the fence. The road there sloped to each side. As he approached the culvert from the south, there were no teams nor foot passengers around. He had the road all to himself. Before that, on other days, he had crossed the culvert and rounded the curve and gotten by without any trouble. He made the corner all right without striking the pole or his car skidding. On this trip, he had turned out more to the right side than he had ever done before. Before he turned to the right, coming from the south, he was traveling in the -middle of the main traveled road. Did not know how much he did swing over to the right His best judgment was two or three feet. But this was more than on other days. No one was trying to pass him, but he swung oyer more to the right, because, he says, . “Well, I always had — I thought I was learning more about the car that way— to keep on the right-hand side of the road, and I was trying to follow instructions.” The swinging over to the right on this day was part of his trying to learn to run the car. A part of the instructions he had received about running a new car. He was about eight or ten feet south of the culvert when he began to swing out. The road over the culvert, right in the center, was smooth, hard and good. There were some clods over to the right, small round things. It was not as smooth and level over there as it was in the center. The culvert was about thirty-eight feet long and had cement retaining walls on each end. He went twelve, fifteen .or twenty feet after he began to skid. “They just had it kind of jumping along there in making'skids.” The little clods would not let the wheels take upon the road. They obstructed the natural movement of the wheels. The car began to skid just as he had crossed the culvert. When he turned his wheel to guide the car back into the road the clods would not let it back; the wheels, would slide. “That is what I call skidding — my car never skidded any other way.” It skidded, towards the northwest. The skidding continued from the time his hind wheels were leaving the culvert until the accident. It was getting “better,” and “if I had a few feet further to have gone I would have missed it. ’ ’ The skidding got “better,” but did not get “better early enough.” He did not think he was going at the same rate of speed (as before) when he began to skid. He had his gasoline all shut off. He shut the gasoline off before he turned the corner. He thought he crossed the culvert at twelve or fifteen miles an hour. He never put on his' brakes, but he thinks he slowed up a little before he began to skid, as the car was getting no gasoline-. In his judgment, he was going twelve or fifteen miles an hour when he began to skid. But he never put on, his brakes. All the wheels began skidding; could not tell which one started first. He did not have time to do anything to overcome the skidding. The pole with which he collided was about thirty-five or forty feet west of the west end of the culvert. Just as soon as he noticed it skidding, he tried to get it back in the road. He turned his front wheels south. He did not keep on turning south. There was no use in turning it too short. “I turned it as short as I thought it would bear.” Just turned it short and kept the front wheels turned that way, but the hind wheels and front ones, too, kept going north. He could change its course but little, if any. Just as soon as he was. across the culvert, he tried to get his car to take to the south — wanted to get back in the road. He saw this pole as soon as he began to skid. He saw the ditch at the same time. He then made his efforts to avoid hitting the pole. After he got turned there was nothing to prevent him seeing the pole. There was nothing to prevent him front seeing the pole when he was in the middle of the culvert, if he had known it was there. He paid no attention. He did not think anybody would stick a pole out in the road. By paying no attention, he meant, to the side of the road. Did not have his eyes or mind on the pole. He could have seen both the fence along there and the pole, had he looked. He was not paying any attention to the fence or to just where the pole was situated. If he had looked, when he was in the' center of the culvert, he could have seen the pole. The accident happened about ten o’clock in the morning. The sun was shining. The first time he saw the pole was just after he had crossed the culvert. The way the pole stood with reference to the fence line did not deceive his sight after he crossed-the culvert. If lie said the first time he saw the pole he was within four or five feet of it, he was just guessing at it. He was not that close to it. He noticed the pole about the. time his hind wheels left the culvert, and the car went fifteen or twenty feet before it struck the pole. The' pole with which he collided was something like ten or twelve feet north of the center of the main traveled part of the road. There was at that time a w'ell traveled beaten-down pari; of the highway. He was not on that part at the time of the accident. The pole, as it stood there at that time, did not interfere with anybody traveling along the well traveled hard-beaten part of the road. If he had stayed where he was, or in that part of the road where he was before he began to swing to the right, he would not have struck the pole. If he had stayed on the usual hard-beaten, traveled part of’ it, he would not have struck the pole. At that time, as he was traveling, he did not have to swing over to the right. He did that as part of the instructions that had been given him in using a new: car. The black line, which the witness made upon the defendant’s “Exhibit 2” in the case, to the best of his knowledge and belief,-indicates just where the north side or north wheels of his car traveled. Plaintiff’s “Exhibit A” is a fair representation of the situation approaching the culvert from the south and looking to the north. The soil composing the roadway was gumbo and becomes “kind of rough” when it dries after being muddy. Where the pole sets in the ground, the ground was about a foot lower than the center of the road. The ditch at the culvert on the north side of the road was four to six feet deep, and right' at the pole was about a foot and a half deep, and the ground at the base of the pole was a foot and a half above the bottom of the ditch.

There were no other witnesses to the accident. The other testimony in the case did not differ materially from that of the plaintiff as to the condition of the road and location of the pole. In the view we take of the case, it is not necessary to set out the further proceedings at the trial except to say that the court refused to give a demurrer to the evidence asked by the defendant at the close of the plaintiff’s case and also at the close of all of the evidence.

I. The first question to be decided in this case is-whether the plaintiff in driving his car was bound to use “the highest degree of care that a very careful person would use under like or similar circumstances,” as required by Section 12, par. 9, Laws 1911, Page 330. When this case was tried below this court had not construed, said statute with reference to the driver’s contributory negligence, bnt since then, in the case of Threadgill v. United Rys. Co., 279 Mo. 66, 214 S. W. 161, this court has held, Graves, J., delivering the opinion, that if the person driving the automobile is injured in a collision, with a street car,, the statute applies to the plaintiff, although he is the injured party, and that he must, under the statute, exercise the. highest degree of care of a very careful person, in driving his automobile, and if he fails to do so, he violates the statute and is guilty of contributory negligence. In his opinion, concurred in by all of the court of this Division, Judge Graves, 214 S. W. l. c. 164-165, says:

“As stated, the court modified the instructions for plaintiff by adding thereto a clause which placed upon her driver the duty of exercising the highest degree of care in the running of the machine. This the appellant assigns as error. Respondent urges that such degree of care is required by State statute, and that the court committed no error in so wording the instructions. Paragraph 9 of Section 12, Laws 1911, page 330, reads:

“ ‘Any persons owning, operating or controlling an automobile running on, upon, along or across public roads, streets, avenues, alleys, highways or places much used for travel, shall use the highest degree of care that a_ very careful person would use, under like or similar circumstances, to prevent injury, or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways or places much used for travel. Any owner, operator or person in control of an automobile, failing to use such degree of care, shall be liable to damage?, to a person or property injured by failure of the owner, operator or persons in control of an automobile, to use such degree of care, and in case of the death of the injured*party, then damage's for such injury or death may be recovered, as now provided or may hereafter be provided by law, unless the injury or death is caused by the negligence of the injured or deceased" person, contributing thereto.’ It would seem that this statute fixes upon the' driver of an automobile the duty to exercise ‘the highest degree of care that a very careful person would use, under like or similar circumstances.’ The Springfield Court of Appeals, in England v. Railroad Co., 180 S. W. l. c. 34, has so ruled. On the other hand, the Kansas City Court of Appeals, in an opinion by Brand, J., in case of Advance Transfer Co. v. Railroad, 195 S. W. l. c. 568, has taken the opposite view ... To like effect is Hopkins v. Sweeney Automobile School Co., 196 S. W. l. c. 774, where the Transfer Co. case, supra, is cited and approved, . . . Both cases were handed down at the same time, and hence the cross-references.

“What these two cases really hold is that, as to the driver of an automobile who is injured, or whose machine is injured, or damaged, only thé rule of ordinary care is applicable. They say that the statute requiring the highest degree of care is one applicable to persons traveling on or over the streets or highways; that as to such persons traveling on or over such highways he owes the highest degree of care, but as to himself, his property, or those with him, only ordinary care is required. We cannot take this view of this statute. We think that it contemplates a rule of conduct for automobile drivers upon ‘public roads, streets, avenues, alleys, highways, or places much used for travel. ’ That rule of conduct is to use‘thehighest degree of care.’ . . . The person driving a motor vehicle hasi a rule of conduct prescribed for him by this statute. That rule of conduct is the use of the ‘highest degree pf care.’ A failure to reach the standard prescribed by the law is negligence, and, if the negligence contributed to his injury, he cannot recover. As said before, this statute prescribes a rule of conduct. If a violation of the statute occasions injury to others, the person violating it is liable in damages. If, on the other hand, the violation of the statute occasions injury to the person violating it, such person cannot recover for injury to himself, which injury1 was contributed to by his own wrongful violation of law. His failure to use the highest degree of care is contributory negligence. The amendments to the instructions were proper. They but presented the idea of contributory negligence. They fixed the standard of duty as fixed by the law. The rule of the Kansas City Court of Appeals in the cases cited is wrong.”

It is thus seen that the statute establishes a general rule for all persons operating automobiles upon the public roads and highways not only to protect the lives and property of others on or traveling over such roads and highways, but also to protect such drivers themselves and the persons traveling with them.

Respondent’s learned counsel suggests that the statute does not apply in this case, because the telephone pole was an illegal structure in the road or highway, in that it incommoded travel and was nine feet south of the north line of the road, and the statute (Sec. 3326, R. S. 1909) only authorizes telephone companies to set their poles in the roads and streets/‘in such manner as not to incommode the public in the use of such roads.” Without deciding whether, under the' evidence, the defendant’s pole was illegally in the road or did “incommode the public in the'use of such road” within the proper meaning of the statute, we think this distinction is not tenable, because the automobile statute was intended to protect the drivers of such automobiles from injuring themselves or others without regard to whether they were injured by running into an obstruction or property of others which was in the road lawfully or otherwise.

We must, therefore, rule that the Automobile Statutes of 1911 applied to the plaintiff in this ease, and that if he failed to exercise the high degree of care required by that statute in driving his machine he was guilty of contributory negligence.

II. The next question is whether the plaintiff was, as a matter of law, guilty of such contributory negligence. Ordinary care is -such care as would ordinarily be exercised by an ordinarily careful person under the same or similar circumstances. If the employment is' a. dangerous and hazardous one, ordinary care would require an ordinarily careful person to exercise a correspondingly greater degree of care to avoid injury to himself or others. But the Legislature in and by said statute has gone beyond the requirement of ordinary care on the part of drivers of automobiles on our streets and highways by providing that they shall exercise the highest degree of care, which would be used —not by an ordinarily careful person — but by a very careful person under like or similar circumstances. The automobile is not of itself a necessarily dangerous agency, like an animal ferae naturae, so that1 it cannot lawfully be driven on a highway, nor is it a Juggernaut purposely constructed to crush out the lives of men, but by reason of its great weight and power with which it may be propelled, it becomes exceedingly dangerous to the lives and limbs of others on the highways and to the driver and occupants of the car, unless the highest care and caution is used by the driver. An automobile will not keep in the road, nor guide nor drive itself, as will, to a degree, a well-broken team of horses. The driver of an automobile must depend wholly upon himself and his own care, skill and caution to guide his car safely. All persons are not qualified to run an automobile. It would be the greatest carelessness for a wholly inexperienced person without previous instructions from competent persons to undertake to do so. It requires not only theoretical knowledge of how to manipulate the various parts of the machinery, but practical experience in so doing, to render a person competent to drive an automobile. There is no doubt these considerations were in the mind of the Legislature when the statute of 1911 was enacted. Under this statute, if all the circumstances considered, reasonable men might honestly differ as to whether the driver exercised the highest degree of care of a very careful person, then the question of his contributory negligence is for the jury.- But, if his failure to exercise the highest degree of care of a very careful person is apparent to all reasonable men from the undisputed facts shown by the plaintiff’s own testimony, then it is the du,ty of the court to so declare as a matter of law. [Monroe v. Chicago & Alton Railroad Co., 280 Mo. 483.] In the case before us, it was not only broad daylight, but there were no other vehicles or pedestrians in the road. The road was well graded, practically level, except where it sloped toward the ditches on each side. It' was in the open country, with no buildings or other objects to obscure or distract the plaintiff’s view'. The ' plaintiff was perfectly familiar with the road, having traveled it for many years before the accident. Although he- had had his machine for but twenty-three days and was . evidently somewhat inexperienced and not an expert in handling it, he had during that period at different times crossed the same culvert and made the’ same turn in the road without any difficulty. The main or generally traveled portion of the road was smooth and dry and of abundant width to drive and tu'm on safely, and without inconvenience. On this occasion plaintiff says he was traveling from twelve to fifteen miles an hour and drove in the center or most traveled portion of the road until just as he was approaching* the turn, when - he guided his car to the right a greater distance than usual, and then in turning to the left got on to rough ground or hard gumbo clods which caused his car to jump and skid and become unmanageable, and for that reason he could not guide it away from the (guy) telephone pole on the north side of the road near the gutter, so as’ to avoid striking it.

The pole was thirty or forty feet west of the west end of the culvert. The culvert ran diagonally from southwest to northeast. Plaintiff’s car commenced to skid when its rear wheels left the culvert, which must have been fully thirty or forty feet from the pole ás he crossed the culvert east of the center. At one place plaintiff says he was going twelve to fifteen miles per hour when he hit the pole. At any rate, he hit the pole with considerable force and his car was still skidding, but not quite' so badly as it had been, although he had turned the power off before crossing the culvert.

The statute (Paragraph 3 of Section 8 of the Automobile Act, Laws 1911, p. 327) did not require the plaintiff to pass' to the right of the center in approaching the turn in the highway, as he did; that section only makes such requirement when a person operating a motor vehicle shall meet in a public highway another person riding or driving a horse or another vehicle. [Lovejoy v. Dolan, 64 Mass. 496.] In this case, there were no other persons or vehicles upon the road, and the plaintiff had the right to use the center or left side of the road, and had no reason to drive his machine out of the beaten path to the right over the rougher ground and clods. Pie frankly says there was no occasion nor necessity for his doing so, but he did so in order to practice keeping to the right-hand side of the road, as he had been instructed to do. He was learning to drive his car in so doing. He also says that if he had kept in the middle or smooth part of the road, he would not have struck the pole. If turning a corner in the road over rough ground or hard clods will cause a car to skid, then it is self-evident that a veryi careful person with no more experience than was had by the plaintiff, using the highest degree of care, would not unnecessarily — when there was no occasion at all for doing it — leave the smooth and beaten track and drive over such rough ground or clods in making such turn. It will not avail the plaintiff to say that the evidence does not show that he knew that cars would skid in turning on rough ground or clods, such as he encountered. A very careful person exercising the highest degree of care, venturing to drive a car upon the public highway at such speed as to skid with the powrer off 30 or 40 feet over dry clods or rough ground as did the plaintiff, would before so doing, at least, inform himself as to the common conditions and places in the road which may cause cars to skid. In this case, the evidence shows, and it is well known, that cars will skid in making a turn on rough ground or hard clods — a very common condition to he found on our country roads.

In the Monroe Case, supra, it is ruled that the statute “does not mean the highest degree of prudence or skill which could be conceived as possible to man. They are only held to the highest degree which has been demonstrated to be practicable.” It obviously was practicable for the plaintiff to keep in the middle of the road, where it. was smooth and generally traveled by the public, and not voluntarily leave it for experimental purposes only' and drive over rough ground or clods and thereby cause his car to skid and become unmanageable and collide with the pole. Even old Dobbin, when he was the mighty master of the highway, would have followed the beaten path and kept out of trouble, for, as stated by plaintiff’s learned counsel, plaintiff “had traveled over that road for years; but previous to getting his Ford car, we can assume his horses followed the beaten path, so that the guy or stub pole had never been brought to his attention. ’ ’

The plaintiff’s violation of the statute is clear and constituted • contributory negligence. That such negligence contributed to his injury is beyond question. We hold, therefore, the lower court erred in refusing defendant’s demurrer to the evidence. The judgment of the lower court is reversed.

Brown and Ragland, CC., concur.

PER CURIAM: — The foregoing opinion by Small, G., is adopted as the opionion of the court.

All of the judges concur; Blair, P. J., in result.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    ARTHUR H. BYERS, Appellant, v. ESSEX INVESTMENT COMPANY.
    Division One,
    March 2, 1920.
    1. AGREED STATEMENT: Omissions and Ambiguities. An agreed statement of facts upon which the case is submitted to the jury stands in lieu of a special verdict, and if it contain any ambiguity, or any fact necessary to a recovery is omitted, a judgment for defendant will on appeal be affirmed.
    2. LEASE: Liability of Landlord: Negligent Construction. A landlord, under no obligation, legal or contractual, to make repairs, who nevertheless undertakes to make repairs and negligently creates a defect or danger, whereby the tenant, himself in the exercise of due care, is injured, is liable in damages; but if the agreed statement shows no negligence in workmanship or in the selection of materials, or whether the section of the porch railing which gave way when plaintiff’s wife leaned against it was at the time in the same condition it stood immediately after being repaired, there can be no recovery. The mere fact that the railing was not replaced by new timber does not prove negligence.
    3. -: -: -■ — : Res Ipsa Loquitur: Agreed Statement. If the petition pleads specific- negligence, reliance upon the doctrine of res ipsa loquitur is thereby excluded; and a statement of facts agreed upon for the purpose of obviating the introduction of evidence does not alter the rule, for such an agreed statement is not an agreed case under the statute or at common law.
    4. -: — -: -: Application to Situation. The basis .of the presumption inherent in the rule of res ipsa loquitur is the doctrine of probabilities. There is no such probability that the break, ing of a wooden porch railing, which gave way when plantiff’s wife leaned against it, was due to negligence in repairing it ten months previously, as to justify an application of the rule, there being no showing that the part which gave way was repaired.
    5. -: 0-: -: --: Peculiar Knowledge: Voluntary Act. The rule of res ipsa loquitur as establishing negligence on the part of the landlord does not apply where the cause of the fall of plaintiff’s wife from the porch was not peculiarly within the knowledge of the landlord and peculiarly beyond that of plaintiff. Nor does it apply if the voluntary act of plaintiff’s wife was immediately connected with her fall,

      Appeal from St. Louis City Circuit Court. — Hon. Thos. G. Hennings, Judge.
    Affirmed.

      M. D. Mugan and F. X. O’Brien for appellant.
    (1) A landlord may be under no obligation to make repairs on the demised premises, but if be undertakes nevertheless to make repairs, and the same are negligently made, he is responsible in damages for the injuries resulting therefrom. 1 Tiffany on Landlord & Tenant, pp. 660, 649; Finer v. Nichols, 158 Mo. App. 539; Little v. Mc-Adaras, 38 Mb. App. 187; 21 McAdam on Landlord & Tenant, p. 1613; 2 Kent (14 Ed.), p. 570; Mitchell v. Plautt, 31 111. App. 149; Mann v. Fuller, 63 Kan. 664; Gregor v. Cady, 82 Me. 131; Gill v. Middleton, 105 Mass. 477. (2) Whether the landlord is bound to repair his leased or demised premises or not, if he undertakes to make repairs, and the work of repair is done unskillfully or neg-. ligently, he is liable in damages to his tenant, to a subtenant and to all other persons rightfully on the premises by invitation, or otherwise, for injuries arising therefrom. Grant v. Tomlinson, 138 Mb. App. 222; Hardt v. Koenig, 137 Mo. App. 589; 1 Tiffany on Landlord & Tenant, p. 649, sec. 96. (3) The circumstances attendant upon an accident are sometimes of such a character as to justify the jury in inferring negligence as the cause of the accident, in conformity with the maxim and under the doctrine of res ipsa loquitur. 34 Cyc. 1665; Blanton v. Dold, 109 Mo. 64; Ash v. Woodward, 199 S. W. 994, 997; Bryne v. Boston Woven Hose Co., 191 Mass. 40; Mooney v. Lumber Co., 154 Mass. 407; 29 Cyc. '500, 623; Ryan v. Fall River Iron Works Co., 200 Mass. 188; Mullen v. St.. John, 57 N.-Y. 567; Volkmer v. M. R. Co., 134 N. Y. 418; Judson v. Giant Powder C'o., 107 Cal. 549; Chaperon v. Portland Electric Co., 4.1 Ore. 39: (4) The doctrine of res ipsa loquitur is not limited to any particular class qf cases. Thompson on Negligence, sec. 3885. (5>) Under the doctrine of- res ipsa loquitur, negligence will be presumed where the accident and injury are caused by an act which, in the ordinary course of things, would not have resulted in injury, if due care had been used in its performance. Schuler v. Omaha R. Co., 87 Mo. App. 618; Moore v. Parker, 91 N. C. 275. (6i) "Where the defendant owes the duty to plaintiff to use due care, and the thing causing the accident is shown to be under the management of the defendant or his servants, and the accident is such that, in the ordinary course of things, does not occur if those who have the management or control use proper care, the happening of the accident, in the absence of evidence to the contrary, is evidence that it arose from the lack of requisite care. Kahn v. Trist-Rosenberg Cap. Co., 139 Cal. 340; Bevis v. Baltimore R. Co., 26 Mo. App. 19; Cyclopedia of Law and Procedure, 29 Cyc. 591; Davis v. Baltimore R. Co., 26 Mo. App. 19; Armour v. Golwoska, 95 111. App. 492; Kalin v. Burett, 42 Mise. (Ni. Y.) 541, 543; Griffin v. Manice, 166 NL Y. 188. (7) The maxim res ipsa loquitur was originally, limited to cases of absolute duty or an obligation practically amounting to that of insurer under a contractual relation, but has been extended to actions sounding in tort, where no contractual relation existed, so that when the physical facts of an accident themselves create a reasonable probability that it results from negligence-, the physical facts are themselves evidential and furnish what the law terms ‘ ‘ evidence of negligence” in conformity with the maxim res ipsa loquitur. 29 Cyc. 591, 592 ; Chenall-Palme-r Brick Co., v. Ratteree, 57 Ark. 429; Houston v. Brush, 66 Yt. 331.

      Percy Werner for respondent.
    (1) The agreed statement of facts stands in lieu or a special verdict. If there is any omission of facts necessary t'o a recovery, no- judgment can be based thereon. City of Stanberry v. Jordan, 145 Mo. 372; F'olk v. St. Louis, 250 Mo. 138; Isenberg v. Anchor Line, 13 Mo. A,pp. 415. (2) This is not a res ipsa loquitur case. The situation is susceptible of proof. Patton- v. Public Service Ry. Co., 227 Fed. 810. (3) No obligation to repair rests on tlie landlord, in the absence of an agreement. Yai v. Weld, 17 Mo. 232; Peterson v. Smart, 70 Mo. 234; Ward v. Fagan, 101 Mb. 669. (4) The landlord is not liable for injuries to sub-tenants of his lessee arising from the defective condition of premises — certainly not for anything less than a nuisance, which is not pleaded here. Quay v. Lucas, 25 Mo. App. 4; Peterson v. Smart, 70 Mo. 34; Saretsky v. Steinberg, 133 N. Y. S. 925; Thomas v. Lane, 221 Mass. 447; Malone v. Laskey, 2 K. B. 141. (5) Where an injury is occasioned by want of due cafe and skill in doing what one has promised to do, an action can only be maintained in favor of the party relying on such promise and injured by breach of it. Consequently there can be no recovery in this case for a double reason: first, because tlie promise was not made to plaintiff; second, because the repairs were made before plaintiff entered upon his tenancy. (Glenn v. Hill, 210 Mo. 298. (6) Plaintiff, not being entitled to recover for breach of contract to repair, because not privy to contract, must sue in tort. Here he cannot recover as for mere negligence in. the making of repairs, (a) Because the repairs were made before plaintiff entered on his tenancy. Quay v. Lucas, 25 Mo. App. 407; Stuerger v. Van Sicklen, 132 N. Y. 499; Ahern v. Steele, 115 N. Y. 203; Brady v. Klein, 133. Mo. 422. (b) Because there is no evidence that the defendant knew of the defective condition. Whiteley v. McLaughlin, 183 Mo. 160'. (c) There can be no recovery as for maintenance of a nuisance, first, because it is not pleaded; second, because it was not in fact a nuisance, (d) There is no evidence of negligence on the part of respondent.
   BLAIR, P. J.

Appellant and his wife occupied rooms on the second floor of a building owned by respondent. The wife fell from the balcony and died as a result of her injuries. This is an action by the husband for damages for her death. The fall resulted from a breaking of a railing against which deceased leaned.

The petition charges, among other things, that: “Said defendant corporation, at some time during the summer and before the 15th day of November, 1915i, by and through its agents and employees, made repairs on the said barrier, balustrade or railing that surmounts and partially surrounds the said .balcony, but did the work of repair in such a negligent and careless manner that the said balcony and the said) barrier, balustrade or railing was left in, and remained in, a weak, defective and insecure condition, dangerous to people who had occasion to use and occupy said balcony. Plaintiff states further that the said Mrs. Ruby Byers, the wife of plaintiff, while lawfully on said balcony, on the 21st day of June, 1916, and within less than six months before the filing of this suit, and while in the exercise of reasonable care for her own safety, was caused to fall and be thrown from said balcony on to and against the brick pavement on the ground below, by the breaking away of the weak, defective, {insecure and 'dangerous barrier, balustrade or railing aforesaid, and to suffer” injuries which caused her death.

The case was submitted on an agreed statement of facts, which is a s follows:

“1. Plaintiff was the husband of Mrs. Ruby Byers; that the said Ruby Byers came to her death on or about the 28th day of June, 1916', by reason of falling from a second story porch of a residence at No. 1609' Olive Street, in the City of St. Louis, on or about the 21st day of June, 1916, and about 3:15 p. m.; that at the time of the said occurrence the said Mrs. Ruby Byers had gone from her apartment out onto the said porch with. an ordinary-sized Pet milk-can, and went to the railing near the northeast corner of said porch on the eastern side thereof with the intention of throwing said can out onto a garbage pile in the yard below, and that, leaning against the top rail of said porch, the section of said rail at said north end of the porch gave way and broke, allowing her to be precipitated to the ground below, a distance of about fifteen feet, from which she sustained injuries which resulted in her death.

“2. Plaintiff was a m'onth-to-mionth tenant of one John Trundle, the lessee of said building under written lease from the owner thereof, the defendant in this action. Copy of said lease -is hereto attached and made part hereof and marked ‘Exhibit 1.’ The said lease was' in full force and. effect at the time of said accident, except as to a modification thereof with respect to the use of the third story thereof and the amount of the rental, which modification was in writing and is .likewise attached hereto, and marked ‘Exhibit 2.’ Attached hereto, marked ‘Exhibit 3,’ is a plat of the second floor of said residence, room No. G, as shown thereon, being the room rented by Trundle to plaintiff, and the diagram also showing the balcony in question. The railing on the eastern edge of said balcony was in five sections of about seven feet each. The defendant had made certain repairs to the said railing during* the month of August, 1915, but the top- rail pf the particular section that broke and allowed plaintiff’s wife to fall to the ground was not replaced at said time by new timber. Defendant had knowledge of the fact that it was to be used as a rooming-house when- it leased the premises to Trundle.

“3. Plaintiff entered upon his sub-tenancy under Trundle and moved into said Apartment No. 61 on the 13th day of November, 1915, and continued a month-to-month tenant of the said Trundle down to the time of the accident in June, 1916. No further or other repairs were made to said porch subsequent to August, 1915.

“4. Plaintiff’s wife was at the timje of her death thirty-seven years of age and in reasonably good state of health, and kept house for the plaintiff. There were no children by the marriage of plaintiff to the deceased.

“5. None of the admissions herein contained are in any wise to affect either party, or to be regarded as made, except for the purpose of the submission of this controversy.”

The lease referred to in the agreed statement of facts is dated March 1, 1915. By it respondent leased to John Trundle the property in question. By its terms the lease expired February 28, 1917. It provides that the property is to be used as a “dwelling” and the lease, “shall not be assigned, nor shall said premises, or any part thereof, be let or underlet, or used or permitted to be used, for any purpose other than above provided, without the written consent of the lessor first endorsed herein;” and further provides that “the lessee agrees to surrender said premises at the end of said term in as good condition as received, ordinary wear and tear excepted ; all repairs to the demised premises shall be done by the lessee.”

I. The agreed statement “stands in lieu of a special verdict” and “if there be any ambiguity” or “any omission of facts necessary to a recov-' ery,” the judgment for respondent was right and should be affirmed. [City of Stanberry v. Jordan 145 Mo. l. c. 382, and cases cited.]

II. It 'is conceded respondent was under no obligation, legal or contractual, to repair (Kohnle v. Paxton, 268 Mo. l. c. 471, et seq.), but it is contended that he undertook to repair in August, 1915, and is liable because the repairs were then negligently made. The rule invoked is that when the landlord, whether obligated so to do or not, undertakes to repair and thereby negligently creates a defect or danger whereby the tenant, himself in the exercise of due care, is injured, the landlord is liable. [Tiffany on Landlord and Tenant, vol. 1, sec. 97; Grant v. Tomlinson, 138 Mo. App. l. c. 228; Finer v. Nichols, 158 Mo. App. l. c. 545, 175 Mo. App. l. c. 537, et seq.; Gill v. Middleton, 105 Mass. 478.] The facts in the agreed statement pertinent to this question .áre: ‘ ‘ The railing on the eastern edge of said balcony was in five sections of about seven feet each. The defendant had made certain repairs to the said railing during the month of August, 1915', but the top rail of the particular section that broke and allowed plaintiff’s wife to fall to the ground was not replaced; at said time by new timber.” Plaintiff, as tenant under respondent’s lessee, moved in November 13-, 1915.' The injury occurred in June, 1916. “No further or other repairs were made to said porch subsequent to August, 1915.” Deceased leaned against the top rail “of said porch,” it gave way and she fell.

The agreed statement does not state facts which show any negligence in workmanship, or in the selection of material. It does not show whether the section which fell was in the same condition in which it stood immediately after being repaired. Nor 'is it stated that the rail which broke was in any way defective. The mere fact that this rail was not replaced by new timber does not prove negligence. Under the applicable test (par. 1, supra) the judgment must be affirmed on these grounds unless appellant’s next point is well taken.

III. It is contended the doctrine res ipsa loquitior applies.

•(a) The agreed statement of facts in this case is a method chosen by counsel to obviate the necessity of adducing evidence pro and eon. While It binds the parties, it'is not an agreed case under the statute (Sec. 2117, R. S. 1909) “or at common law” (State ex rel. v. Merriam, 159 Mo. 655) and the pleadings are .left to perform their usual functions. The petition pleads specific negligence and thus excludes reliance upon the doctrine of res ipsa loquitur. [Roscoe v. Met. Street Ry. Co., 202 Mo. l. c. 587, et seq.]

(bj Further, the doctrine invoked has no application to the facts. The basis of this presumption is the doctrine of probabilities. There is no such probability that the breaking of a wooden railing ten months after its repair is due to negligence in the act of repairing as to justify the application of the rule. The agreed statement does not show a repairing of the rail section which gave way. The facts are not such as to bespeak the only negligence for which respondent could be held liable. The cause of-deceased’s fall is not peculiarly with respondent’s knowledge and peculiarly beyond that of appellant. Further, the voluntary act of the deceased was immediately connected with the injury. [Carter v. Railroad, 177 Mass. 228; Penn. Co. v. Marion, 104 Ind. 239.] For these and other reasons the doctrine invoked does not apply.

IY. Other arguments are advanced by respondent to support the judgment. Among* other things it questions the rights of the sub-lessee to complain in view of the prohibition in the lease. [Cole v. McKey, 66 Wis. 500.] The reasons already given dispose of the case.

The judgment is affirmed.

All concur.


author: RAGLAND, C.

text:
    CLARENCE L. HARELSON, Appellant, v. BENJAMIN F. TYLER et al.
    Division One,
    March 2, 1920.
    1. DEMURRER: Admissions. A general demurrér to a petition admits all facts well pleaded, but it does not admit allegations which are mere conclusions of the pleader.
    2. - — : Refusal to Plead Further: Judgment: Appellate Practice. Where defendants interposed a general demurrer to. the petition, which the court sustained, and, upon plaintiff’s declining to plead further, entered judgment on the demurrer, the only question for consideration upon an appeal by plaintiff is the sufficiency of the petition, and if it states a cause of action, either under the statute or at common law, the judgment will be .reversed, but otherwise it will be affirmed.
    3. COMBINATION: Uniform Charges for Personal Services: Statute. An agreement by a voluntary association of men engaged in the same business whereby they bind themselves to charge uniform rates for personal services in buying and selling hay on commission is not within the prohibitions of the statutes against trusts and combinations in restraint of trade, for the reason that labor, whether physical or intellectual, is not by any lair rule of construction a “product or commodity” that is the subject of “importation, transportation, manufacture, purchase or sale” with- ■ in the meaning of those words as used in the statute.

      4. -- — : -•: -: Competition: Restraint of Trade. Notwithstanding the voluntary association was organized for the purpose of fixing, controlling and stabilizing the commission charges and brokerage fees of its members for buying and selling hay on a ■ certain market, and minimizing competition in respect thereto, yet if nothing in the agreement directly or hecessarily tends to a restraint of the trade, or is calculated to limit the quantity or to fix, regulate or control the price of the commodity or to lessen competition in the business of buying or selling it, the association is not a combination condemned by the statute.
    5. -: —--: Inhibiting Dealings With Expelled Members. A provision in the articles of association of a voluntary association, formed for the purpose of stabilizing the fees and commissions which its 'members may charge for buying and selling hay on a certain market, which debars them from trading ■ with persons who have been suspended or expelled from membership for violating its rules, cannot, except incidentally and indirectly, affect the price which the producer receives for his commodity, and does not bring the association under the condemnation of the statute.
    6. -- — : At Common Law: Civil Conspiracy: Definition. A civil conspiracy is a combination of two or more persons to accomplish, by concerted action, an unlawful or oppressive object, or a lawful object by unlawful or oppressive means. To sustain an action, damage must have resulted from the combination; to warrant an injunction, damage must be threatened.
    7. -: -: -: Uniform Commissions: Oppression. Agreements and conduct by a voluntary association of commission merchants which evidence merely a purpose to enforce and maintain fixed and uniform commissions and charges for buying and selling hay on a certain market do not amount to a civil conspiracy; but where the articles of association and by-laws provided that all contracts of a firm having a member of the association were subject to its rules, and plaintiff’s partner was a member, ^and a month after the dissolution of the firm the partner was expelled- for failure to pay a fine previously assessed, and the firm itself had not violated the rules or been penalized, the association could not, upon the pretext that plaintiff was expelled from membership privileges, bar him from all business intercourse with the members of the association, and thereby oppressively -destroy his business of buying and selling hay in the market and in effect drive him from the market; such conduct, under the common law, amounts to a civil conspiracy.
    Appeal from Jackson Circuit • Court. — Hon. Clarence A. Burney, Judge.

      Reversed' and remanded.

      L. C. Boyle, A. E. Watson, and' Thomson, Dew S Brasher for appellant.
    The court below erred in sustaining the demurrer of defendants to the petition of the plaintiff. Co-operative Livestock Commission Co. v. Browning, 2601 Mio. 324; Walsh v. Association of Master Plumbers, 97 Mo. App. 280; Lowe’s Patent Door Co. v. Fuelle, 2T5 Mo. 421.

      John T. Barker, for respondents.
    (1) The court properly sustained defendant’s demurrer. The Kansas City Hay Dealers Association is legally organized and does not violate the Anti-Trust Laws of Missouri. Commission Co. v. Browning, 260 Mo. 324; Grládish v. Stock Exchange, 113 Mb. App. 726-; Anderson v. United States, 171 H. S. 604; State v. Duluth Bd. of Trade, 23 L. R. A.. (N- S.) 1260; Bottlers Assn. v. Fennentry, 81 Mo. App. 533; Hunt v. Club, 140 Mich. 538; Fowle v. Park, 131 U. S. 88; Hopkins v. United States, 171 U. S. 578; Mathews v. Associated Press, 136 N. Y. 333; Comm. Co. v. Live St. Ex., 143 111. 210!; Warren v. Tobacco Exch., 55 S. W. 912; Haepler v. N. Y. Ex., 149 N. Y.' 414; Belton v. Hatch, 109 N. Y. 593; Comm. Co. v. Spencer, 215 Mo. 105; Whitwell v. Tobacco Co., 125 Fed. 454, 64 L. R. A. 689; Cincinnati Packet Co. v. Bay, 200 U. S. 179; Noyes on Intercorporate Relations (2 Ed), sec. 395; Stk. Yds. Co. v. Mallory, 157 111. 554; State v. Chamber of Commerce, 47 Wis. 670; Grain Ex. v. Bd. of Trade, 15 Fed. 847; Railroad v. Stk. Yds. Co., 45 N. J. Eq. 50. (2) Plaintiff’s petition follows the petition in the case of Commission Co. v. Browning, 260 Mo. 324, and under the authority of that case must fail. Gladish v. Stk. Ex., 113 Mo. App. 726; Anderson v. United States, 171 U. S. 604. (3) Plaintiff’s petition alleges a violation of the Anti-Trust Laws of Missouri. He is now trying to recover under the common law. This he cannot do. Having based his action on the statutes, he cannot recover under the common law. Mathieson v. Railroad, 219 Mo. 542; Madden v. Railroad, 167 Mo. App. 143; Ham v. Railroad, 149 Mo. App. 2001; Comm. Co. v. Browning, 260 Mo. 324.
   RAGLAND, C.

This action was commenced in the Circuit Court for Jackson County, at Kansas City. The petition, omitting formal parts, is as follows:

“For his cause of action plaintiff states that the Kansas City Hay Dealers’ Association of Kansas .City, Missouri, is a voluntary associátion composed of certain persons engaged in the hay business in Kansas City, Missouri, and that the defendants, with others, are members and officers thereof; that said association is a powerful organization, and that the members thereof control the far greater amount of all the hay business transacted on the Kansas City market, which market is the largest hay market in the world; that said Kansas City Hay Dealers’ Association is contrived and intended and designed to create, for and in behalf of the members thereof in that particular line of industry, a monopoly to restrain and stifle competition in the importation, transportation', manufacture, purchase and sale of hay on the Kansas City market and to regulate, control and fix the price of hay; to fix and maintain by agreement among its members,and rules passed by said association and by the rise of arbitrary methods, the price to be paid as commission for handling hay on the Kansas City market; to hinder and prevent persons and corporations engaged in the hay business on the Kansas City market and to hinder and prevent this plaintiff in carrying on the business of buying, selling, receiving and shipping hay on this market.

“Plaintiff further says that said association has a constitution, by-laws and regulations, which constitution, by-laws, and regulations are agreed upon by the members, reduced to writing and printed in a book or pamphlet entitled ‘ Constitution, By-Laws and Regulations of the Kansas City Hay Dealers’ Association of Kansas City, Missouri,’ which constitution, by-laws and regulations constitute a contract among the members of said association, which said, contract is. unlawful, illegal and violative of the statutes of Missouri relating to pools, trusts, conspiracies, • discriminations, and boycotts, as hereinafter set forth; that said association employs men for the purpose of plugging, weighing and watching cars of hay arriving in Kansas City for sale on the Kansas City market; that each of the members of said association are assessed certain fees monthly for the payment of the men employed as pluggers, watchmen and weighers; that it is the rule and custom of such association to render bills for such dues and fees to its members each month; that Section 16 of Article 6 of the above mentioned constitution, by-laws and regulations provides as follows, to-wit: . .

‘ Sec. 16. Whenever assessments, are made on bills rendered for indebtedness to this association, they shall be considered due and shall be delinquent after thirty days from date, and the said act of delinquency automatically suspends the member for neglecting or refusing to pay the same from all the privileges of this association until paid. Failure to pay any assessment or indebtedness to this association for a term of one year from the date of said assessment or bill, shall of itself operate as a forfeiture and cancellation of the membership of such member and of all property and other rights and privileges thereunder. Suspended members are not relieved of the payment of any assessment or bill and the payment of any assessment or bill by members while under suspension shall not be construed' as in any way affecting such suspension.’

“Plaintiff further says that Sections 4,5, 6, (a), (b), (c), (d), Section 7, and Section 8, which said sections constitute an unlawful agreement to regulate, control and fix the price and tend to regulate, control and fix the price of hay, are as follows, to-wit:

“ ‘Sec. 4. The commission for selling incoming hay of any description shall be seventy-five cents per ton, with no minimum charge. The commission for selling incoming wheat or oats straw shall he fifty cents per ton, with a minimum charg-e of five dollars on any oar containing twenty thousand pounds or less.

“ ‘Sec. 5. The commission for buying and shipping outgoing hay of any description shall be seventy-five cents per ton, with no minimum charge. The commission for buying and shipping outgoing wheat or oats straw shall be fifty cents per ton, with a minimum charge of five dollars for any car containing twenty thousand pounds or less.

“‘Sec. G. (2) A. broker is defined as a member who sells inbound hay or straw on the Kansas City market for another member actively engaged in the hay business in Kansas City, or a member who buys hay or straw on the Kansas City market for any individual, firm or corporation, where the names of the principals are announced on making the contract, and the broker at no stage of the transaction becomes the actual owner of the property, or a member looking after hay or straw shipped to the Kansas City market for sale or inspection and afterwards it is recons'igned to other destination.

“ ‘(b) A brokerage of one dollar per car may be charged where members sell another member’s incoming hay- or straw on the Kansas City market, giving up the namies of the principals at the time of trade, provided that members are prohibited from acting as brokers for selling inbound hay or straw for non-resident members or non-members.

“‘(c) A brokerage of one dollar pe.r car shall be charged for buying hay or straw on the Kansas City market where the member gives up the names of the principals at the time of the trade, and the principals furnish substantial proof that all bills will be paid according to contract.

“ ‘(d) A brokerage of one dollar per car shall be charged for receiving hay for the purpose of having the same inspected at Kansas City and reconsigning it to other .markets. The shipper paying the inspection, watchman, plugging and reconsigning charges.

“ ‘Sec. 7. Every member of this association, and every person, firm or corporation admitted to trade or to do- business therein who shall charge less than the regular rates of commission or brokerage established by the rules of this association, or shall assume or rebate any portion of the same, or shall, with intent to evade in any way, directly or indirectly, the regular rates of commission or brokerage established by the rules of this association, purchase, or offer them, or it, for sale; or shall, with .intent to cut or evade in any way, directly or indirectly, the regular rates of commission and brokerage established by the rules of this association; or shall make or report any false or fictitious sales or purchases; or shall resort to any method of accounting, directly or indirectly, in violation of or contrary in purpose and effect to a strict adherence to the regular established rates of commission and brokerage of this association; directly or indirectly buy or give, or offer so to do, any money or other consideration of whatsoever nature to any person to procure or influence shipments or consignments of hay or straw in any form, or shall, with intent to cut or evade in any way, directly or indirectly, the regular rates of commission and brokerage established by the rules of this association, malee use of any shift or device whatsoever, shall be deemed guilty of violating the rules of this association establishing rates of commission and brokerage, and on conviction thereof shall be fined by the association in the sum of one hundred dollars, fifty dollars of which shall be paid to the person furnishing the evidence upon which the conviction is had. This rule shall not prevent the regular employment by members of this association of traveling men, but shall prohibit a division of commission with such traveling men who are not members of this association.

“ ‘Sec. 8. All contracts of a member of this association, or a firm having a member of this association as a general partner, or a corporation having a membership representation with any other member of this association as a general partner, or any other corporation having membership representation for the purchase and sale of hay or straw, or transactions incident to the hay and straw business proper, are contracts subject to the rules of this association.’

“Plaintiff further says that on and prior to the 21st day of October, 1916, he was a copartner with _one EL S. Nicoll, engaged in the hay business in Kansas City, Missouri, under the name of the Southwestern Hay & G-rain Company; that the said H. S. Nicoll was a member of the said association; that on the 21st day of October, 1916; this plaintiff and the said H. S. Nicoll dis-. solved said partnership; that1 thereafter, namely, on the 1st day of November, 1916, the said H. S. Nicoll was automatically suspended from said association under Section 16 of Article 6¡ of said constitution, by-laws, and regulations for the nonpayment of the sum of $40.85 due said association for weighing, watchmen and Plugging fees for the month of September, ’ 1916.

“Plaintiff further says that said association did on the 14th day of September, 1915; pass, an amendment to the constitution, by-laws, rules and regulations, of said association, which' thereby became a contract between the members thereof and which is as follows:

“ 'Sec. 36. Every member of this association and every individual, firm or corporation admitted to trade or do business therein, who shall have any business dealings, or relations pertaining to the purchasing or selling of hay or straw at Kansas City with any individual, firm or corporation who is under suspension from membership, or who has been expelled therefrom because of a violation of any of the provisions of the constitution, by-laws, rules and regulations of the association, after notice of such suspension, or expulsion, shall have been issued by the secretary, shall be fined ten, dollars for each and every car, or part thereof, so purchased or sold.’

“That said by-law constitutes an unlawful, illegal and wrongful contract between the defendants and the members of said association; that the officers and members of such association did, on, and after the 1st day of November, 1916, wrongfully, illegally and unlawfully, with intent to hinder and prevent plaintiff from transacting business on the hay market at Kansas City,- Missouri, maintain that said plaintiff was suspended from membership' in said association by reason of his former association with said Nicoll, and that under and by virtue of the above-quoted amendment, Section* 36, no other member of the association could deal or trade with him, the said plaintiff; that the said plaintiff wlas desirous of continuing in the business of buying, selling, receiving and shipping hay in Kansas' City, Missouri, which was his calling, occupation and business, and the only one in which he was experienced, and many ofi the members of said association were anxious to deal with him in such business, but such members were afraid to do so for fear of the fine provided in the last above-named section; that one member of the association did deal with plaintiff and after November 1, 1916, was fined therefor in the sum of $640 by the said association; that another member of said association was fined ten dollars by said association for a similar alleged offense, and that the officers of said association made threats to fine, other members of said association who had or were about to deal or transact business with the plaintiff in his salid business, calling or avocation; that said members, by reason of said constitution, by-laws and regulations and agreements, and by reason of said threats, were intimidated and prevented from having any business dealings with the said C. L. Harelson.

“Plaintiff further says that he was, during- the months of November and December, 1916, engaged in reorganizing his said business with a view of continuing-in and carrying on the hay business in Kansas City, Missouri; that his list of customers and his acquaintance among- the hay and grain trade in the territory adjacent, tributary to and including Kansas City, Missouri, was of great value and as a basis for the prosecution of the hay business in said territory, together with his long experience in said business, was worth at least twenty-five thousand dollars; that in said business he had in tlie past transacted large amounts of business, sometimes being as great as five hundred cars of hay or straw in a month and making an aggregate yearly amount of two hundred and fifty to three hundred thousand dollars; that on three different occasions the defendants unlawfully confederating and conspiring together to injure and destroy the said business of the plaintiff and to prevent plaintiff1 from carrying out his plan of reorganization and the prosecution of his said business and enjoying the profits thereof, informed persons with whom plaintiff was negotiating for a reorganization of this business that the members of the association at Kansas City, Missouri, would not be allowed to trade with the said plaintiff or with any firm or corpor ration with which the plaintiff might be associated; that each of the three persons above referred to were ready, willing and able to furnish sufficient money to enable the plaintiff to reorganize and to continue to carry on bis said business and to use his experience therein and Ms knowledge and acquaintance with customers and dealers therein; that by reason thereof said persons were intimidated and were afraid to invest their funds in the business which plaintiff was attempting to reorganize, and by reason thereof plaintiff' was prevented from securing capital to continue and carry on said business and to use Ms experience, knowledge and acquaintance with customers and dealers aforesaid, by reason of said malicious threats and statements, and his business aforesaid was thereby largely injured and destroyed; that after the failure of the plaintiff ’s efforts to interest capital in his business, by reason of the malicious threats and statements aforesaid made by the said association members as aforesaid, plaintiff was employed by the Shofstall Hay & Grain Company, a corporation, at a salary of two hundred dollars per month and commissions; that shortly thereafter said association and its members, with a view to prevent the said plaintiff from working for said Shofstall Hay & Grain Company, on January 2, 1917, substituted for the above-mentioned Section '36 of Article 12 of the Constitution, By-Laws, Rules and Regulations, the following, to be known as Section 36:'

“ ‘Every member of this association and every individual, firm or corporation admitted to.trade or do business therein, who shall, directly or indirectly, have any business dealings or relations pertaining to the handling of hay or straw, or1 shall make use of any shift, device or subterfuge, whatsoever, to nullify the intent of this rule, with any individual, firm or corporation who is under suspension from membership or who has been expelled therefrom because of a violation of any of the provisions of the constitution, by-laws, rules and regulations of the association, after notice of such suspension, or expulsion, shall have been issued by the secretary, shall, upon, conviction thereof be fined by the association not less than the sum of five hundred dollars, nor more than one thousand dollars, or suspended, expelled or both, and fifty dollars shall be paid by the association to the person, furnishing the evidence upon which the conviction is based.’

“That prior to the passage of said substitute Section 36, the officers of the said defendant association notified the said Shofstall Llay & Grain Company that it must cease to employ the said plaintiff, and fined C. E. Shofstall, who holds a membership in said defendant corporation and is an officer of the said Shofstall Hay & Grain Company, the sum of $650' for having the said plaintiff in the employ of the said Shofstall Hay & Grain Company, and in consequence thereof said plaintiff was discharged from the employ of the said Shofstall Hay & Grain Company; that under and by virtue of the rules, regulations and agreements between the members,- of said defendant Hay Dealers’ Association as aforesaid, said plaintiff is unlawfully and illegally prevented from earning a living in. his business, avocation and calling of the hay business at Kansas City, Missouri, and its adjacent business territory; that he has been in the hay business for a lifetime and is unacquainted with any other calling or avocation from which he can derive a livelihood: that he cannot go into the hay business at any other point in the United States and ship hay to the. Kansas City market or territory; that by the illegal and unlaydul acts aforesaid of the defendants, he is prevented .from earning a living and his calling and occupation has been greatly injured, to the plaintiff-’s damage in the sum, of twenty-five thousand dollars; that the defendants threaten and do continue to interfere with the business, occupation and calling of plaintiff in the manner aforesaid, and if the defendants are permitted to continue their illegal acts as aforesaid against the plaintiff’s business, occupation and calling aforesaid, the same will be wholly and irretrievably destroyed and the plaintiff will thereby suffer irreparable injury and damage, and for the prevention thereof he has no adequate remedy at law and the defendants should be en-. joined from further interfering with the plaintiff, his business, occupation and calling or. in anywise boycotting the same.

“Wherefore plaintiff prays judgment against the defendants and each of them for treble damages, to-wit, the sum of seventy-!fi!ve thousand dollars, and costs, and that a temporary injunction may be granted the plaintiff restraining and enjoining the said defendants and each of them and their1 successors in office, individually and as members of said Kansas City Hay Healers ’ Association of Kansas City, Missouri, and as business agents of said association, their confederates, associates,' agents and representatives from boycotting or making effectual, promulgating, or in anywise proclaiming any boycott upon or against the plaintiff or his- business, occupation or calling, or from sending, conveying or delivering in any way to any- person, firm, corporation or association any boycott notice, verbal or otherwise, upon or against the plaintiff, and from any way menacing, hindering or obstructing the plaintiff or interfering with his patronage, business or customers, and from in any way impeding the plaintiff from the fullest enjoyment of all the patronage, business and custom which he may possess, enjoy or acquire, and from interfering with the plaintiff or his business by threats to any person who might be or become a customer or business associate of plaintiff; that said defendants or any of them will cause or prevent any person or persons whomsoever to cease business relations with any customer or business associate of plaintiff, and that at the final hearing hereof said injunction be made perpetual, and for such other and further relief as to the court may seem just, proper and equitable.”

To this petition defendants interposed a general demurrer,’which the court sustained. Plaintiff declining to plead further, judgment was rendered on the demurrer. Prom that judgment plaintiff prosecutes this appeal.

The demurrer admits all well pleaded facts. They may be summarized as follows: The defendants are officers and members of the Kansas City Hay Dealers’ Association, a voluntary association, which ' * • controls the greater amount of the hay business on the Kansas City market, the largest hay market in the world. The Association was organized, in part, for the purpose of fixing and maintaining by agreement among its members the amounts to be paid as commissions and brokerage for buying, selling and handling hay on the Kansas City market. In furtherance of that object it adopted a, constitution and by-laws and, among others, those hereinafter named. By Sections 4, 5, and 6 (a), (b), (c) and (dj thereof, it fixed the commissions and brokerage to be charged by its members for certain services therein enumerated and defined. By Sections 7 and 8- thereof, it provided that, if any of its members, or any person, firm or corporation, entitled to membership privileges by reason of having associated with it or them a member, charged less than the rates fixed by its rules, such member or associated member would be subject to a fine. By Section 16 thereof, if certain assessments were not paid by members within prescribed times, suspension and expulsion would automatically ensue. Section 36' thereof forbade any member, or person, firm or corporation having membership privileges, from having any business dealing, pertaining to the buying or selling of hay or straw at Kansas City, with any individual, firm or corporation under suspension, or who had been expelled from the Association. On October 21,1916, and prior thereto, plaintiff was, and had been, a partner with one Nicoll, engaged in the hay business at Kansas City, under the firm name of Southwestern Hay & Grain Company. On the date last named plaintiff and Nicoll dissolved their partnership. During the continuance of the partnership Nicoll was a member of the Association, but on the first of November following its dissolution he was suspended for failure to pay assessments that became due October first preceding. After Nicoll’s suspension, defendants maintained that plaintiff, on account of his former association with Nicoll, was also suspended and that no member of the Association could deal or trade with him. Thereafter, on account of fines inflicted and threatened to be inflicted by defendants on members of the Association, plaintiff was prevented from having any dealings with them in any matter pertaining to the hay: business. “On three different occasions the defendants unlawfully confederating and conspiring together to injure and destroy the said business of plaintiff and to prevent plaintiff from carrying out his plan of reorganization and the prosecution of his said business and enjoying the profits thereof, informed persons with whom plaintiff was negotiating- for a reoganization of this business that the members of the Association would not be allowed to trade with plaintiff or with any firm or corporation with which he might be associated.” On each of these occasions, when plaintiff was about to successfully mature a plan by which he would have secured the influence and financial support of men of large capital in forming a business organization to deal in hay on the Kansas City market, he was thwarted by defendants in the manner stated. Finally, after these failures brought about by defendants, plaintiff secured employment with a hay-and-grain corporation to work on a salary and commission. An officer of the corporation was a member of the Association; defendants caused him to be fined on account of plaintiff’s employment, and plaintiff was thereupon discharged. By reason of the aforesaid acts of the defendants, plaintiff’s business, which was of' the value of $25,000, was destroyed and plaintiff was deprived of his avocation. Defendants threaten to continue such interference with plaintiff’s business and calling.

The allegations to the effect, that the Association was designed and intended to create a monopoly to restrain and stifle competition in the importation, transportation, manufacture, purchase and sale of hay,-and to regulate, control and fix the price thereof; that it was further designed to prevent plaintiff and others from engaging in the hay business on the Kansas City market; and that the constitution and by-laws of the Association constitute a contract among- its members that is violative of the statutes of this State relating to pools, trusts, Conspiracies, discrimination and boycotts, being merely conclusions of the pleader, are not admitted by the demurrer. Their soundness depends on the specific facts pleaded.

I. There was no theory of the case developed by a trial below. The only question passed on was the sufficiency of the petition, tested by general demurrer. In reviewing that ruling, it is incumbent upon us to apply ^e same principles that were controlling in the court nisi. If the petition states a cause of action, either under the statute or at common law, the demurrer was, improvidently ruled; otherwise the judgment should be affirmed. [Railroad v. Freeman, 61 Mo. 80; Comings v. Railroad, 48 Mo. 512; Filler v. Brewing Co., 223 Fed. 313.]

II. Defendants are members of a voluntary association, and as such the petition predicates statutory liability against them because the- constitution,, by-laws and regulations of that association constitute, as it is alleged, an understanding or agreement its mem^ers ttnt- amounts to a consp-iracy in restraint of trade as defined by some or all of Sections 10298 to 10301, inclusive, Revised Statutes 1909. Looking to the* laws of the Association as pleaded, we find that the principal subject with which they deal, and to which all else is incidental, is that of fixing* and maintaining* rates of commission and brokerage to be charged by its members. So far as they disclose, the only purpose of the organization was to fix and stabilize among its members remunerative rates of compensation for their services in buying;, selling and receiving and reconsigning shipments of hay and straw. Is the agreement so evidenced by the by-laws, and the combination effected thereby, within the prohibitions of the statute? We think not, for at' least the following* reasons: (1) The contract in question is one whereby men engaged in the same business have bound themselves to charge uniform rates for personal services, merely that and nothing* more. The combination thus formed is not under the ban of the statute, for the reason, that labor, whether physical, or intellectual, or a combination of the two, is not by any fair' rule of construction a “product or commodity” that is the subject of “importation, transportation, manufacture, purchase or sale ’ ’ within the meaning of the words as used in the statute. [State ex rel. v. Associated Press, 159 Mo. 410; Door Co. v. Fuelle, 215 Mo. 421.] (2) While the association of which defendants are members was unquestionably organized for the purpose of fixing and controlling the rates of commissions and brokerage for the buying and selling of hay on the Kansas City market and minimizing competition in respect thereto, nothing in its by-laws or regulations directly and necessarily tends to a restraint of the trade. Nothing therein is calculated to limit the quantity or to fix, regulate or control the price, nor to lessen competition in .the business of buying and selling hay and straw. There seem to be no restraints imposed with respect to the dealings of members with non-members, at least none are specifically alleged. The only inhibition of the kind that distinctly appears is the one that debars members from trading with persons who have been suspended or expelled from membership in the association for a violation of its rules. It may be said, however, that, as the commission and brokerage specified ini the rules' of the association are fixed charges which must he paid, the price which the producer receives for his hay may be indirectly, affected thereby. But the- question is whether the production or price is directly, or to any appreciable extent, controlled or regulated by a rule which makes the charges uniform instead of variable, definite and known instead of uncertain and unknown. It is probable that certainty and uniformity of the charges of the selling agent, like those of the carrier and warehouseman, would tend to encourage production and foster trade rather than the reverse, but whether it would be the one way or the other, the effect would be remote or incidental, and consequently the association, which was formed for the direct purpose of protecting1; and promoting the interests of its members, would not thereby be - brought within the condemnation of the statute. [Door Co. v. Fuelle, supra, l. c. 474; Hopkins v. United States, 171 U. S. 593; States v. Duluth Bd. of Trade, 107 Minn. 506.]

III. Whether the petition states a cause of action at common law is next to be considered. It is apparent that the business of buying and selling hay and straw on the Kansas City market is done to so great an extent by the members of the Hay Dealers’ As- ... , , , , sociation, that one who is not a member would be under a great disadvantage in engaging in, or continuing in, such business, if not entirely prevented therefrom, if the members of the association declined to have any dealings with him. The question, therefore, is whether the action and.conduct of defendants in excluding plaintiff from all business relations with members of the association and virtually thereby making a trade outlaw of him amounted to a conspiracy. A “civil conspiracy” is said to be a combination of two or more persons to accomplish, -by concerted action, an unlawful-or oppressive object; or a lawful object by unlawful or oppressive means. To sustain an action, damage must have resulted from the combiuatiou; to warrant an injunction, damage must be threatened. [National Fireproofing Co. v. Builders’ Assn., 169 Fed. 259; State ex rel. v. Associated Press, supra; Walsh v. Association, 97 Mo. App. 280.] The principle which determines whether the object sought to be effected by two or more persons acting in concert is legal or illegal can not be stated more clearly than was done by the court in National Fireproofing Co. v. Builders’ Assn., supra, at page 265: “The direct object or purpose of a combination furnishes the primary test of its legality. It is not every injury inflicted upon third persons in its operation that renders a combination unlawful. It is not enough to establish illegality in an agreement between certain persons, to show that it works harm to others. An agreement entered into for the primary purpose of promoting the interest of the parties is pot rendered illegal by the fact that it may incidentally injure third persons. Conversely, an agreement entered into for the primary purpose of injuring another is not rendered legal by the fact that it may incidentally benefit the parties. As a general rule it may be stated that, when the chief object of a combination is to injure or oppress third persons, it is a conspiracy ; but that, when, such injury or oppression is merely incidental to the carrying out of a lawful purpose, it is not a conspiracy. Stated in another way: A combination entered into for the real malicious purpose of injuring a third person, in Ms business or property may amount to a conspiracy and furnish a ground of action for the damages sustained, or call for an injunction, even though formed for the ostensible purpose of benefiting its members and actually operating to some extent to their advantage; but a combination without such ulterior oppressive object, entered into merely for the purpose of promoting by lawful means the common interests of its members, is not a conspiracy.” Applied to the Kansas City Hay Dealers’ Association, this test quite conclusively shows that the object it seeks to effect, as disclosed by its by-laws, is lawful. These rules make it obligatory upon the members, and the business organizations with which they associate themselves for the purpose of buying and selling hay, to. charge fixed rates of commission; they provide for the infliction of fines upon the members and their respective business organizations for a violation of such rates; they require the payment by members, under penalty of suspension or expulsion, of certain assessments for the support of the Association; and they forbid members from dealing with those who have been suspended or expelled from membership. All of which merely evidences a purpose to enforce and maintain fixed and uniform rates of commission to be charged by its members.

It is not easy, however, to bring within the scope of this purpose, and the means "provided by the by-laws for its accomplishment, the actions of the defendants in their pursuit of the plaintiff. It does not appear that he was, or ever had been, a member of the Association. He had been a partner with one Nicoll, a member, in the Southwestern Hayi & Grain Company. But that did not make plaintiff a member, per se, and subject to discipline by the Association. Section 8 of the by-laws provides that “all contracts ... of a firm having a member of this association as a general partner . . . for the purchase and sale of hay . . . are contracts subject to the rules of this association.” Section 7 provides that if such a firm violates the rule as to rates it shall be fined. So that, while plaintiff was a partner of Nicoll, the contracts of the firm were subject to the rules of the Association with reference to rates of commission, and the firm itself subject to a fine if it charged less than the rates fixed by them. To this extent, and to this extent only, did plaintiff ever assume any obligation to the Association by reason of his partnership with Nicoll. Now it does not appear that the Southwestern Hay & Grain Company ever violated the rules respecting rates, but after the dissolution of that 'firm Nicoll was suspended from membership in the association for the non-payment of assessments. These assessments had become due -before the dissolution of the partnership, but they had been assessed against- the member and not .the firm, and it does not appear that plaintiff, either individually or as a former partner of Nico'll, was under any obligation to pay them. The by-law itself does not purport to penalize any one but the defaulting member. How then could plaintiff come within its condemnation? Yet, it is on the' pretext that plaintiff was suspended from membership privileges, that defendants have debarred him from all business intercourse with members of the association. From the facts alleged, the inference is plain that the defendants went entirely beyond the scope of the true objects and purposes of the association, and the means that it employs for their accomplishment ; and, under the pretext and color of its rules, for their own unlawful purpose of oppressing plaintiff, deprived him of all business relations with members of the association. It may be that there are other facts not disclosed by the petition that would throw an altogether different light on the conduct of defendants, but those stated, nothing further appearing, call for justification. By their concerted action, defendants destroyed plaintiff’s business, and it devolves! upon them to show, if they can, that the injury thus indicted by them was merely the result of a lawful effort on their part to promote their own welfare. We are of the opinion, therefore, that the petition states a cause of action at common law.

What has been said with reference to plaintiff being a non-member of the Association should not be construed as implying that a member, after suspension or1 expulsion, can for all time be treated as an Ishmaelite by the other members, regardless of all other circumstances, and their conduct in so doing not amount to a conspiracy. All that we hold in this respect is that the by-laws as pleaded, if enforced in good faith' solely to accomplish the primary purpose of the Association to fix and maintain for its membership uniform rates of commission and brokerage, are a lawful means for the accomplishment of such object.

The Judgment is reversed and the canse remanded to be proceeded with in conformity with the views herein expressed.

Brown and Small, CC., concur.

PER CURIAM: — The foregoing opinion of Rag-land, C., is adopted as the opinion of the court.

Blair, P. J., and Graves and Goode, JJ., concur; Woodson, J., not sitting.