author: FERRISS, J.

text:
    ST. CHARLES SAVINGS BANK v. GEO. L. EDWARDS, HARRY F. KNIGHT, J. HERNDON SMITH and THEODORE D. PECK, Doing Business Under Name and Style of A. G. EDWARDS & SONS, Appellants.
    Division Two,
    June 1, 1912.
    1. APPEAL: Improper Abtract: General Rule. An appellant will not be denied a hearing on appeal on the sole ground that he has not presented his abstract in proper form, unless the form used is clearly violative of the statute and rules of coiurt. Where the point made against the abstract is at least doubtful, it will be ruled against the respondent.
    2. PLEADING: Amended Petition: Partners: Change in Cause of Action. Where plaintiff filed suit against four persons as partners, and failing to prove that one of them was a member of the firm at the time of the transactions involved dismissed as to him, an amendment of the petition so as to adjust it to su'ch dismissal, leaving the allegations as to partnership in full force as to the remaining three defendants, did not change the cause of action — -no joint contract being involved.
    3. NEGOTIABLE INSTRUMENT: Notice of Infirmity: Sec. 10026, R. S. 1909: Indorsee. The holder referred to in Hamilton v. Marks, 63 Mo. 167, and in Sec. 10026, R. S. 1909, of the Negotiable Instrument Law, reading, “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith,” is an indorsee — one to whom the paper has been negotiated by an indorsement by the payee or a prior indorser — and not a payee. Neither that statute, nor the decision in that ease has any application to the sufficiency of the constructive notice of an infirmity in the title of the drawer of a check imparted to the payee by the check itself and the correspondence and attendant circumstances. The payee is not entitled to any immunity based on the negotiable character of the paper.
    4. -: -: Agent: Scope of Powers: Cashier of Bank: Checks for Own Use. An agent cannot act both for his principal and himself in a transaction wherein their interests are antagonistic. The cashier of a bank has no authority to draw checks in the name of the bank for his private use and benefit, and none is to be implied, and that is known by those who deal with him. Such unauthorized acts can be validated only by express authority from his principal, and the burden is upon the agent and upon those who profit by his checks, with knowledge of the antagonistic relation, to show such express authority.
    5.-; -: -: -: -: Acceptance. A firm who accepted checks of a bank drawn by its cashier upon another bank to the firm as payee, who had actual knowledge that they were drawn for his own use in payment of his individual debt to the firm, accepted them at their peril, and with the risk of his authority to draw and use the checks of the bank.
    6.-: -. Cashier of Bank: Presumption of Authority to Draw Check. The payee knows that the cashier of a bank is acting beyond the limit of his general authority when he draws a check in the name of the bank to pay his own individual liability to the payee, and that without special authorization such check is invalid; and he has no right to presume that the cashier paid for the check and was acting honestly. When the bank sues the payee to recover the money obtained on such checks, the liability of the payee is not to be settled by presumptions, but, the payee knowing that the checks were drawn.to pay the cashier’s debt to him, the primary question which arises upon the face of the transaction is, did the cashier have authority to execute in the name of the bank checks in payment of his individual debts? And the. burden of showing he had such authority is on the payee, for a check so. drawn is prima facie invalid.
    7.-: -:-: -: One of Two Innocent Purchasers. ‘The rule that where one of two innocent persons must suffer by the acts of a third he who enabled such third person to occasion the loss must sustain it, has no application in a suit brought by a bank against the payee of checks to recover the amount it lost upon checks drawn by its cashier in its name upon another bank in favor of the payee who knew that the checks were given to him in payment of his individual debt to the payee — for two reasons: first, because the payee was bound to know that the cashier had no authority, unless specially so authorized, to draw checks in the name of the bank to pay his individual debt to the payee; and, second, because the payee, although innocent of knowledge of the cashier’s actual fraud, cannot be said to be an innocent party in a legal sense— especially where he might have safely assumed that the bank did not know that the cashier was speculating in grain and stock and drawing the cheeks to the payee (a commission broker) in payment of his debts on that account.

      Appeal from St. Louis City Circuit Court. — Row. Hugo Muench, Judge.
    Affirmed.

      George L. Edwards for appellants.
    (1) The court permitted the plaintiff during the trial to amend its petition, so as to substitute new causes of action in lieu of the one at first declared upon, and to recover upon causes of action not declared upon in its petition. A change by amending the petition from a suit against a partnership to a suit against individuals is a substitution of a new cause of action, and to permit a recovery against individuals in a suit against a partnership is to allow a recovery on a cause of action not pleaded. Sears v. Mortgage Co., 56 Mo. App. 122; Myers v. Railroad, 120 Mo. App. 288; Watson v. Boland, 136 Mo. App. 622; Steele v. Braizer, 139 Mo. App. 337; Purdy v. Pfaff, 104 Mo. App. 339; Dunlap v. Nelly, 105 Mo. App. 7; Scoville v. Glassner, 79 Mo. 449; Liese v. Myer, 143 Mo. 547; Slaughter v. Davenport, 151 Mo. 26; Timber Co. v. Railroad, 180 Mo. 420; Yall v. Gillham, 187 Mo. 393; McHugh v. Transit Co., 190 Mo. 85. (2) The retirement of a member or addition of a member of a partnership, ipso facto operates as a dissolution of the firm. Spaunhorst v. Link, 46 Mo. 199; Seuffert v. Gille, 230 Mo. 479. (3) The causes of action declared upon by plaintiff were barred by the Statute of Limitations, Sec. 4273, R. S.' 1899', at the time when plaintiff amended its petition. Buell v. Transfer Co., 45 Mo. 563; Sims v. Field, 24 Mo. App. 566; Wasson v. Boland, 136 Mo. App. 622. (4) Since the drafts in question were negotiable and the defendants acquired them for value, prior to maturity, and without any actual knowledge of any defect or infirmity therein, the plaintiff cannot recover. Notice of a defect or infirmity in a negotiable instrument cannot be imputed to an innocent holder for value prior to maturity, by constructive notice. Nothing short of actual bad faith will impeach his title. Sec. 10026, R. S. 1909; Hamilton v. Marks, 63 Mo. 167; Banking Co. v. Comm. Co., 195 Mo. 262; Coleman v. Stocke, 139 S. W. 216. (5) The doctrine is well established that in the absence of evidence to the contrary, the presumption always prevails that public officers have discharged their duties properly. This doctrine of presumption has been applied to persons generally, and it has been held that every man is presumed to have performed all of his official and social duties. Mathias v. O’Neil, 94 Mo. 520-; Blodgett v. Schaffer, 94 Mo. 552; Agan v. Shannon, 103 Mo. 661; Bluedorn v. Railroad, 108 Mo. 439; State v. Bank, 120 Mo. 161; Chouteau v. Railroad, 122 Mo. 375;-State v. Crumb, 157 Mo. 556. (6) Where one of two innocent parties must suffer for the wrongful act of another,'the one who puts the party in position to do it must be the sufferer. Lee v. Turner, 89 Mo. 489; Neuhoff v. O’Reilly, 93 Mo. 170; Banking Co. v. Comm. Co., 195 Mo. 262.

      Edward D’Arcy and Percy Werner also for appellants.
    (1) Under the “.Negotiable Instruments” statute (Sec. 10026, R. S. 1909) “to constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. ’ ’ In this case the trial court directly found that defendants had taken the drafts in question “for full value in good faith, and without actual knowledge of any fraud or irregularity on the part of A. P. Mispagel in issuing the same.” (2) Under the Negotiable Instrument statute (Sec. 10026), where the negotiable paper is taken without actual knowledge of infirmity or defect and in good faith for full value, the right of the holder is absolute and cannot be defeated by any mere presumption. Reeves v. Letts, 143 Mo. App. 199; Bank v. Leeper, 112 Mo. App. 694; Bank v. Russell, 139 S. W. (Tenn.) 735. (3) The court, sitting as a jury, gave the following instruction: “The court finds from the evidence that the defendants received the drafts in question from A. E. Mispagel for full value in good faith, and without any knowledge of any fraud or irregularity on the part of A. F. Mispagel in issuing the same.5 ’ Under this instruction it was clearly error to find for the plaintiff. (4) See. 10026 of the Negotiable Instrument statute affects, limits and relates to the remedy and not to the validity of the instrument sued on, and applies to all suits brought after the passage of the act, and should have governed the trial court in this case. 8 Cyc. 935; Hand v. Ballon, 12 N. Y. 541; Lord v. Chadbourne, 42 Me. 429; Commonwealth v. Hampden Co., 23 Mass. 501; Wins-low v. People, 17 111. App. 222.

      T. G. Bruere, Lon 0. Hooker and G. W. Wilson for respondent.
    (1) The judgment of the circuit court should be affirmed because the case is brought to this court by simply filing here a certified copy of the judgment and order granting the appeal, whereas the printed abstract of the record furnished by the defendants is fatally deficient in these particulars: (a) It fails to set out the judgment or to advise the court against what parties the judgment was rendered, (b) It sets out no record entry of the order granting the appeal. (e) It fails to set out any record entry showing that the bill of exceptions in the case was ordered filed and as a matter of fact filed and made a part of the case. Supreme Court Rule 16; St. Charles v. Budd, 174 Mo. 122; Storage Co. v. Grlasner, 150 Mo. 426; State v. Walker, 194 Mo. 375; Bondurant v. Ins. Co., 73 Mo. App. 477; Bower v. Daniel, 198 Mo. 317. (2) The cashier of a bank has no right to issue drafts on its correspondents in payment of his individual debts, and a creditor of a cashier who receives such drafts, takes them with notice that the cashier is appropriating the assets of the bank for the payment of his individual debts. The form of the draft itself puts the creditor on inquiry and is notice to him of the fact that the cashier is using the bank’s funds in his private business. Kitchen v. Comm. Co., 105 Mo. App. 463; Banking Co. v. Comm. Co., 195 Mo. 262; Lee v. Smith, 84 Mo. 304; Lamson v. Beard, 94 Fed. 301; Gale v. Bank, 104 Fed. 214; Bank v. Investment Co., 140 S. W. 921. (3) There is nothing in the contention made by appellants that they took the drafts from Mispagel for full value and in good faith, and without actual knowledge of any actual fraud and cannot be held responsible under the Negotiable Instruments statute. The statute has no application in the case. The drafts were issued directly to defendants by MispageL The instruments themselves were in such form as to impart notice to defendants that Mispagel was using bank assets in payment of his private debts. Sec. 10026, R. S. 1909; Kitchen v. Comm. Co,, 105 Mo. App. 463; Banking Co. v. Comm. Co., 195 Mo. 262; Bank v. Investment Co., 140 S. W. Rep. 921. (4) Nor is there anything in the claim that error was com-' mitted in allowing- plaintiff to dismiss as to T. D. Peck. Plaintiff had a right to recover against those persons who constituted the firm of A. G. Edwards & Sons at the time the drafts were issued to and collected by the firm. If Peck was not a member of the firm then, the plaintiff had a perfect right to dismiss as to him and recover against those who were. This was all that was done in this matter. Secs. 2772, 1981, 1734, 2769, R. S. 1909'; Simpson v. Schulte, 21 Mo. App. 639; Gates v. Watts, 54 Mo. 590; Priddy v. Mackenzie, 205 Mo. 194; Mfg. Co. v. Horn, 112 Mo. App. 722; Crews v. Lackland, 67 Mo. 619; McLean v. McAllister, 30 Mo. App. 109; Bryant v. Haw-. kins, 47 Mo. 410; Bank v. Cotey, 70 Mo. 150; Willis v. Barron, 143 Mo. 456.
   FERRISS, J.

This controversy arises upon the following facts, which are not substantially controverted :

The plaintiff is a banking institution, located at St. Charles, Missouri. Prom 1890 to 1904 its cashier was one A. P. Mispagel. The appellants, during the year 1903, were engaged in St. Louis in- the grain and stock brokerage business as partners under the firm name of A. G. Edwards & Sons. Prom February 12-, 1903, to November 25, 1903, Mispagel was dealing in stocks and grain on open account with appellants’ firm. Prom time to time, upon request from appellants, Mispagel sent them remittances to apply to his credit on this account. Such remittances, during the pferiocl mentioned, amounted in the aggregate to about $9,500. They were made in the form of checks drawn by the St. Charles Savings Bank, by Mispagel, cashier, on its depository bank in St. Louis, payable to the order of A. G. Edwards & Sons. There were thus remitted sixteen checks at different dates and for different amounts. Of these the following, which differs from the others only as to date and amount, may be taken as an example:

ST. CHARLES SAVINGS BANK: No. 7555

Pay to the order of A. G. Edwards & Sons $650.00 (six hundred and fifty dollars.) -

To THE MECHANICS’ NATIONAL BANK,

St. Louis, Mo.

A. P. Mispagel, Cashier.

Each and all of said checks were indorsed by A. G. Edwards & Sons, collected by'them, and the proceeds credited to the individual account of Mispagel current in said stock and grain operations. Each remittance was made in response to a written request addressed to Mispagel personally, and referring to his individual account. The following may serve as an example of the form and general tenor of such letters:

St. Louis, Aug. 19, 1903.

Mr. A. F. Mispagel,

St. Charles, Mo.

Dear Sir:

Your grain account with us needs $600 at close tonight. Kindly send us your check for this amount, and oblige

Yours truly,

A. 0. Edwards & Sons.

In their written acknowledgments, Edwards & Sons sometimes say “your check” or “check,” received. In several instances the language of the receipt refers to the remittance as the check of plaintiff bank. Thus, on October 14th: “We are in receipt of check No. 7556 of the St. Charles Savings Bank for $700, drawn on the Mechanics’ National Bank here, and have given credit to your stock account for that amount. ’ ’

Mispagel, in various ways, concealed from the bank officials the fact that these cheeks were issued. He was bookkeeper as well as cashier. The bank received no equivalent for them. They were in fact misappropriations by Mispagel of the funds of the bank. No authority, either general or special, is shown in him to draw cheeks in the name of the bank for his individual benefit. Edwards & Sons had no actual knowledge of the fact that Mispagel was misappropriating the bank’s funds. The record further concedes that appellants gave value to Mispagel for the amount of these checks by credit on his account. The plaintiff had no interest in this grain and stock account, and was ignorant regarding the entire transaction.

Plaintiff sues to recover the amount received by defendants on each draft, the petition containing sixteen counts. The answer denies generally, pleads good faith, and further, that the checks were received in ordinary course. As no question arises on the pleadings, so far as the merits are concerned, they need not be further considered.

The ease was tried by the court. Plaintiff asked no instructions. Defendants asked instructions in the nature of a demurrer to each count, which were refused, also instruction number 3, in the following form: '

“The court finds from the evidence that the defendants received the drafts in question from A. F. Mispagel in regular course of business, for full value in good faith, and without any actual knowledge of any fraud or irregularity on the part of A. P. Mispagel in issuing the same.”

This was given in the following modified form:

“3. The court finds from the evidence that the defendants received the drafts in question from A. P. Mispagel in regular course of its business with him, for full value in good faith, and without any actual knowledge of any fraud or irregularity on the part of A. P. Mispagel in issuing the same.”

The following offered by defendants was refused:

“4. The court declares the law to be that unless the defendants had actual notice of the fraudulent acts or irregularities of A. P. Mispagel in issuing the drafts in question, then the plaintiff is not entitled to recover upon any draft the basis of any count in its petition, unless the defendants had actual notice of the fraudulent acts or irregularities of A. P. Mispagel in issuing the same.”

Judgment was rendered in favor of plaintiff for the amount claimed in each count.

I. On the threshold of the case respondent objects that there is no proper record before us. We are not disposed to turn an appellant out of court for the sole reason that he has not presented his abstract in proper form, unless the form used is clearly violative of the statute or rules of court. .Here the point made is at least doubtful, and will be ruled against respondent.

II. Appellants also,'before reaching the merits, object to the order below allowing respondent to dismiss as to one of the defendants named in the petition, and to amend the petition to adjust it to such dismissal, and this on the ground that such dismissal and amendment changed the cause of action. Appellants also, rather inconsistently, claim that the change to this new cause of action let in the Statute of Limitations, which ran before the amendment was made. We can find no substance in the point. The suit was filed against the appellants and one Peck as partners. Respondent failing to prove that Peck was a member of the firm at the time of the transaction involved, dropped him from the case, leaving the allegation as to partnership in full force as to the remaining three defendants. The cases cited, involving joint contracts, do not apply.. There was no change in the cause of action.

III. Appellants contend that they are not liable, because of the fact that they had no actual knowledge of wrongdoing on the part of Mispagel. It is not claimed by respondent that appellants had any notice of infirmity in the title of Mispagel to the cheeks, other than the constructive notice imparted by the checks themselves and the correspondence connected therewith, together with the fact that Mispagel was using the cheeks to pay his individual debts.' Appellants earnestly contend that even if, under the earlier decisions, the face of the checks and attendant circumstances were sufficient to give such constructive notice as would invalidate their title, still, since the decision of this court in Hamilton v. Marks, 63 Mo. 167, constructive notice is not enough to impair the title of a bona fide holder for value. They also rely on section 10026 (R. S. 1909) of the Negotiable Instrument law, which reads as follows:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

We think appellants misconceive the situation in this regard. The “holder” referred to in Hamilton v. Marks and in section 10026 is an indorsee — one to whom the paper has been negotiated by indorsement .by the payee or a prior indorser. True, the checks were negotiable, but when they were delivered to Edwards & Sons they had not been negotiated. Edwards & Sons were original parties to the paper. They were payees therein. All of the cases cited on this point by appellants in the two briefs filed, involve the rights of an indorsee — a holder for value after the paper leaves the hands of the payee. While the paper is still in the hands of the original payee, the “courier” has not started on its career without luggage.

In Lamson v. Beard, 94 Fed. l. c. 43, the court, speaking of a similar situation, says: “The drafts were drawn in favor of plaintiffs in error, and until accepted by them they were not contracts, and by accepting them they did not become assignees or purchasers of existing obligations, but simply parties to the original execution thereof, into whose rights the way to full inquiry is open, unless closed by some estoppel outside of the paper itself, whatever its form. A primary party to the execution of instruments originated as these were cannot be a ‘bona fide purchaser’ in the sense of the law merchant.”

Denying then, as we must, any immunity to appellants based on the negotiable character of the paper, we will examine their position in the light of general principles and authority.

It is hardly necessary to say that an agent cannot act both for his principal and himself in a transaction wherein their interest are antagonistic. Such action by the agent is not within the scope of his general authority, and this is known to those who deal with him. Such action by the agent could be validated only by an express authority from his principal, and the burden is upon the agent and upon those who profit by his act, with knowledge of the antagonistic relation, to show such express authority. Mispagel, the cashier, had authority to draw checks in the name of the bank in the course of the bank’s business, but no authority is shown, nor is any to be implied, to draw checks in the name of the bank for his private use and benefit. True, in this case the checks were not payable to him, and did not show on their face that they were drawn for his use, and doubtless an innocent indorsee for value could collect from the bank, but the checks were drawn for his use, and of this fact the appellants had actual knowledge. “With this knowledge, they accepted the checks in payment of his individual debt. They did this at their peril, taking the risk of his authority to so draw and use the checks of his principal.

This case is fairly within the doctrine of Lee v. Smith, 84 Mo. 304, where a bank cashier issued certificates of deposit to himself, and delivered them to his individual creditor in payment of his debt, having no funds on deposit against them. This creditor sought to hold the bank, claiming that as he was innocent of knowledge of actual fraud, and believed that tbe cashier had funds on deposit, and inasmuch as the certificates were issued by the proper officer, the bank was liable. In denying his right of recovery, this court, said :

“It is unnecessary to consider whether the cashier of a bank has authority, as such, to certify the existence of funds in the absence of actual deposits, for no such general authority, if possessed by him, would justify him in certifying his own check, or in issuing, as he did in this case, a certificate of deposit to himself. He could not do this without representing both sides to the transaction, thus perfecting a contract through only one consenting mind, a thing positively forbidden to agents and trustees in every department of agency and trust. The law will not permit an agent’s private interest to come between himself and his principal. Its-actual presence always disables the agent from binding his principal in the transaction. [Claflin v. Farmers’ & Citizens’ Bank, 25 N. Y. 293; Mercantile Mutual Ins. Co. v. Hope Ins. Co., 8 Mo. App. 408; West St. Louis Sav. Bank v. Shawnee Co. Bank, 95 U. S. 557.] Accordingly, when Mr. Alther, as cashier of the bank, certified that Mr. Alther had deposited the money called for in these certificates, and that the bank would pay to his order the amounts so deposited, upon return of the certificates, he undertook to bind his principal in a method forbidden by law. Therefore, these certificates 'were presumptively void upon their face, a fact which must have been apparent to Mr. Lee, or any one else, inspecting them. The plaintiff, on accepting them, could not maintain that he was a bona fide holder without notice of the cashier’s want of authority to bind the bank in issuing them. No implied authority in the cashier could arise from the general course of business in the bank. Nothing short of a subsequent confirmation of them by officers properly representing the bank could give to them any force or validity whatever.”

The controlling fact in each case is the acceptance of the paper by the creditor in payment of the individual debt of the cashier. The fact that the checks were payable directly to the creditor does not distinguish the eases; nor does the difference in the form of the contract — one a certificate of deposit, the other a check, — have that effect. The cases cited in the foregoing opinion fully sustain the text, and are in point here. To the same effect is the case of Kitchens v. Teasdale Com. Co., 105 Mo. App. 463, where, under facts entirely similar to those in the case at bar, the bank recovered from the individual creditor of the cashier.

Appellants ’ counsel contend that the fact appeared in the Kitchens case that the creditor accepted the checks with actual knowledge of the fraud. We think counsel misapprehend the case on this point. Nothing appears in the statement of facts in the Kitchens case to show any knowledge on the part of the creditor, other than that derived from the checks and the transaction itself. The court in its opinion says: “By the medium adopted for the transfer of the money, defendant was apprised that Ritter, by the abuse of his power as cashier, was employing the funds of his principal in speculation on his individual account, and in affairs which from their-nature excluded the possibility of being concerns of the bank. That he was transcending the well known extent of his agency and using the money of his principal in his private transactions was manifest. ’ ’

So what the court says of the knowledge of the creditor means knowledge derived from the checks and the fact that, they were used to pay private debts.

Checks cf the same character issued by Mispagel under the same circumstances are involved in the case of this same plaintiff against Orthwein Inv. Co., 160 Mo. App. 369. In that case Mispagel was speculating through the Orthwein Company. The Court of Appeals sustained a judgment for plaintiff, and says:

“As the drafts were drawn by Mispagel as cashier in favor of the defendant against the account of the plaintiff bank, they disclosed on their face, to one having the knowledge defendant possessed, that Mispagel was exercising his authority as cashier or agent in favor of himself as principal. They were then presumptively void, and the obtention by the defendant of the money on them presumptively illegal, and the burden was on the defendant to overthrow such presumption.”

To the same effect in principle is the decision of the Kansas City Court of Appeals in St. Louis Charcoal Co. v. Lewis, 154 Mo. App. 548.

In Campbell v. Manufacturers’ National Bank, 67 N. J. L. 301, the receiver of a bank recovered from a creditor of its cashier the proceeds of a draft drawn in the name of the bank by the cashier to the order of the attorney of the creditor, to pay the debt of the cashier in which the bank had no interest. It does not appear that the creditor had any knowledge beyond the facts stated. The court says: “A person cannot deal with the cashier of a bank as an individual in securing’ a draft, and claim, after the draft is delivered, it has become the transaction of the bank. To make the acts of the cashier valid, the 'transaction in which the draft is delivered must be a bank transaction, made by the cashier, within his express or implied authority, in the conduct of the business of the bank. So long as -a person deals with the cashier in a matter wherein, as between himself and the cashier, he is dealing with, or has a right to believe he is dealing with, the bank, the transaction is obligatory upon the bank.”

Appellants contend that they could presume that Mispagel had paid for the checks, and that he acted rightly. They did know that the agent was acting beyond the limit of his general authority, and that, without special authorization, the checks were invalid. This threw the burden of proof on them. In Claflin v. Bank, 25 N. Y. 293, the president of the bank certified his own check drawn on the bank, and afterwards negotiated it to the plaintiffs in the case. Selden, C. J., says: “The Supreme Court seems to have supposed that to prevent the plaintiffs from being considered bona fide holders they must have known that the drawer had no funds in the bank to meet the check. This was clearly an error. The acceptance was void in the hands of the drawer, irrespective of the question whether he had or had not such funds. The double relation in which Mr. Houghton stood alone rendered it void, and of this the plaintiffs were apprised by the check.” And Smith, J., said: “Houghton had no power to accept his own drafts or checks in behalf of the bank. The act was a palpable excess of authority, and any person taking the paper was bound to inquire as to the power of the agent so to contract.”

The case of Lamson v. Beard, 94 Fed. 31 (U. S. Cir. Ct. App.), presents facts identical with those under consideration. There the president of the bank, privately speculating, paid his debts to the commission company with checks of his bank drawn by him to order of his creditor. The bank recovered from the commission company, which had received the checks in payment of the aforesaid private debt of the president. Speaking of the claim made there, as it is here, that such checks or drafts are in constant use without inquiry, and are often' made payable directly to the creditor of the purchaser thereof, the court says: “But in such cases the creditor may accept the draft vwithout inquiry, not, as counsel have said, because of a presumption that the debtor had paid for the draft, but because tlie draft had been drawn by the authorized 'officer of the bank in the usual course of business, acting without apparent or known personal interest in the transaction.” And further: “The one thing necessary to be known was whether Cassatt [the president] had authority to make the proposed use of the bank’s paper.” And again; “The drafts bore proof on their face that they were drawn upon the funds of the bank, that they were not drawn in the course of the bank’s business, but in discharge of individual liabilities of the president of the bank to themselves, they, of course, understood. They therefore knew that unless there had been conferred upon Cassatt an unusual and special' authority, like that given the cashier in Goshen Nat. Bank v. State, supra, to sign and issue drafts of the bank in his private transactions, the paper sent them was unauthorized, and that for the proceeds thereof they would be liable to the bank or its representatives.” The court held that it was the duty of the individual creditors of the president, under such circumstances, to make inquiry as to his authority to issue the checks of the bank in payment of his individual debt. To the same effect is Anderson v. Kissam, 35 Fed. 699.

The appellants urge that they had a right to presume that Mispagel paid the bank for the checks, and that he acted honestly. The case is not to be settled by presumptions. The primary question which arose upon the face of the transaction was, did the cashier have authority to execute in the name of the bank drafts or checks in payment of his individual debts'? True, if he had paid value to the bank for the checks, plaintiff would not have been injured, and hence could not have recovered; but this contract 'made L" the trustee in the name, and on behalf, of his principal, for his own benefit, was, in the hands of the appellants who accepted it with knowledge of such fact, prima facie invalid as against the principal. The burden was therefore upon them to show that these special contracts were authorized, or that the bank had received full value.

Appellants also urge the rule that where one of two innocent parties must suffer by the acts of a third, he who enabled such third party to occasion the loss must sustain it. That rule has no application here. It will hardly be urged that every employer is within this rule, merely because of the fact of employment. It is not shown that the bank did anything which would relieve appellants from the obligations which we have ruled were imposed upon them by this transaction. Again, under the views herein expressed, the appellants, although innocent of knowledge of actual fraud, cannot be said to be innocent parties in a legal sense and within the meaning of the rule herein invoked. The able counsel for appellants will not claim that one is an innocent party in the sense under discussion, merely because he innocently acted in ignorance of his legal duty. One thing the appellants knew which we think they might safely have assumed the bank did not know, namely, that the cashier was speculating in grain and stocks.

This case is a hardship on appellants, who, aside from their commissions, doubtless profited nothing in the transaction, but we cannot for this reason relax the rigorous and wholesome rule of law which renders suspicious, and worthy of inquiry, every contract which an agent assumes to make for his own exclusive benefit in the name of his principal.

The record is in some respects somewhat meager, but it justifies the judgment below, which is affirmed.

Brown, P. J., and Kennish, J., concur.


source: Caselaw Access Project

author: BROWN, J.

license: Public Domain

text:
    ARTHUR B. MOLER, Appellant, v. C. T. WHISMAN et al.
    Division Two,
    June 1, 1912.
    1. BARBERS: Judicial Notice: Time to Learn Trade. Courts cannot take judicial notice of the length of time necessary to teach the average student to satisfactorily perform all the work required of a public barber in such a manner as to prevent the spread of disease.
    2. -: -: Spread of Disease: Presumption. Courts take judicial notice that contagious diseases may be' acquired by barbers in plying their trade, and by their customers from them or their tools and soaps; and the presumption arises therefrom, in considering the constitutionality of a police regulation pertaining to barbers and looking to the public health, that barbers should be able to determine whether or not their customers are afflicted with contagious or infectious diseases, particularly diseases of the skin.
    3. -: Two Years’ Course of Study. The Barbers’ Act is not unconstitutional because it fixes the course of study in barber colleges at two years at the least. If two years is a needless restriction, the Legislature alone can give relief.
    4. -: -: Gains of Own Industry. . A law requiring a student to work two years before he can become a public barber does not violate the constitutional provision declaring that “all persons have a natural right to life, liberty and the gains of their own industry.” Nor does it deprive him of his property without due process of law.
    5. -; Title of Act: Barbers’ Colleges. The title of the Barber’s Act, which is, “An Act to establish a board of examiners for barbers and to regulate the occupation of a barber, in this State, and to prevent the spreading of contagious diseases,” is broad enough to authorize a provision in the body of the act relating to barber colleges and apprenticeships.
    6. -: Prohibiting Compensation to Apprentices: Invalid. That part of the Barbers’ Act (Sec. 1187, R. S. 1909) which prohibits students or apprentices in barber colleges from making any charge for their services while learning the barber’s trade, is in conflict with section 4 of article 2 of the Constitution, in that for two years it deprives them of the gains of their own industry, it being established that what a skilful barber should know is learned through physical labor in actual practice at shaving and hair cutting and dressing, under the directions of ,a competent instructor. That part of the law does not even tend to promote the public health.
    7. -: Special Law: Displaying Specific Sigh: Monopoly. That part of the Barber’s Act (Sec. 1187, R. S. 1899) which prohibits barber colleges from displaying any other sign than “Barber School” or “Barber College” is a special law, and in conflict with that part of section 53 of article 4 of the Consti-1 tution which prohibits the enactment of a special law where a general law can be made applicable. It is also in conflict with that part of the same section which prohibits the Legislature from “granting to any association or individual any special or exclusive right, privilege or immunity,” since this restriction tends to discourage persons from learning the barber’s trade and to create a'monopoly for those who have already become skilled barbers.
    8. -: License: Revoked. A barber’s license may be revoked •for graduating barber students after a course of study of less than two years, in violation of the statute, Sec. 1187, R. S. 1909.
    Appeal from Jackson Circuit Court. — No». Thomas J. Seehorn, Judge.
    Abrirme».

      Gage, Ladd & Small for appellant.
    (1) The barber law in question is void so far as it prohibits the students of a barber college or their teachers from charging for their services. 1st, because that law prevents them from the “enjoyment of the gains of their own industry,” contrary to sec. 4, art. 2, of the Constitution, and is a special law regulating labor, contrary to sec. 5® of art. 4 of that document. State v. G-ranneman, 132 Mo. 326; Woolley v. Mears, 226 Mo. 41. 2nd, because the law does not also prohibit students or apprentices in barber shops or their teachers, the barbers, from charging for their services. The law is, therefore, obnoxious as £ ‘ class legislation. ’ ’ There is absolutely no difference in the services performed by barber shop students and those performed by barber college students. None can be even imagined. One does his work in a place with the sign ‘ ‘ Barber College” over the door and the other does the same work in a place with a red striped pole in front and the sign “Barber Shop” over the door. In order to learn the trade the students must themselves do the actual work of shaving and cutting hair, whether in a barber shop or a so-called barber college. Generally the barber college is bigger than the barber shop, but no doubt there are some barber shops that have more students and apprentices than some barber colleges. The law in question makes the legality of the thing done depend upon the place where it is done. Such legislation is void. State -v. "Walsh, 136 ¡Mo. 403; State v. Thomas, 138 Mo. 100; Woolley v. Mears, 226 Mo. 41. (2) The regulations we complain of do not affect the health or any other public interest. These students in colleges are expressly authorized to work, but are simply prohibited from charging therefor. And furthermore, the act does not apply to cities of under 5,000 inhabitants. The students in a barber college in a city of less than 5,000' inhabitants, can. charge, but those in larger cities cannot. This makes the law perfectly arbitrary. Woolley v. Mears, 226 Mo. 41. (3) It must be borne in mind that the proceeding which this" action is brought to enjoin, was a proceeding by the Board of Barber Examiners to revoke the certificate which said Board had theretofore given to plaintiff’s manager, Hackney, to practice his profession as a barber. It is not to cancel his permit or certificate to teach the trade of barbering in a barber college, because no special permit for that purpose is required by law. Persons or corporations operating or conducting a barber college are required tó have a permit, and all teachers are required to be qualified barbers. Sec. 5042, R. S. 18991. Barbers as well as barber schools are required by this section to do and to refrain from doing certain things, but the board of barber examiners is not authorized to revoke any barber’s license or certificate or to impose any other penalty upon him for violating the provisions of this section, but is authorized to revoke the barber’s certificate of a teacher in a barber school for violating any of the provisions of the law, which would not only prevent him from teaching in a barber school, but would also prevent him from practicing his trade as journeyman or owner of a barber shop. Plainly this violates both the State and Federal constitutions. Barber v. Connelly, 113 U. S. 27; State v. Miksicek, 225 Mo. 561. (4) The purpose of this law in requiring students in barber schools to work two years without pay, before-they could be qualified barbers, and to let students in barber shops charge for their services, was clearly intended to give barber shops a monopoly of teaching the barber business, for no one would go to a barber school for two years and pay tuition, and get nothing for his services, when he could learn the business in a barber shop in the same time and pay no tuition and get pay for his work besides. State v. Walker, 92 Pac. 776. (5) The law would still be unconstitutional if it were to be enforced equally against the barber and the barber school, because we deny the right of the legislature to select out barbers and barber’s schools by themselves, and limit their right to employ and teach apprentices and students and fix the number of teachers to students or apprentices. This is special legislation of the worst sort. Loomis case, 115 Mo. 307; State v. Julow, 169 Mo. 163; State v. Ashbrook, 154 Mo. 390-6; In Re Dickey, 77 Pac. (Cal.) 924. (6) The right to employ apprentices and teach students is a fundamental right which could not, either by special or general legislation, be taken away as long as an American citizen is entitled to the protection of the due process of law, or the law of the land. State v. Tie Co., 181 Mo. 536. (7) The arbitrary provision of this law, that no other signs except “Barber College” or “Barber School” should be displayed in or about a barber college is void. No law could prevent the plaintiff from putting up the signs that he did, namely, free shaving and free hair cutting. This had no tendency to mislead the public as to his business. St. Louis v. Gunning, 137 S. W. 929.

      Bheinhardt S Schisby for respondents.
    (1) Only those whose rights are directly affected by a statute can attack the constitutionality of such act. State ex rel. v. McIntosh, 205 Mo. 589; Cunningham v. River Co., 165 Mo. 276; 8 Cyc. 788, 791, 993; State ex rel. v. Currens, 111 Wis: 431. (2) A statute does not violate sec. 28,. art. 4 of the Constitution where all its provisions are germane to and naturally connected with the subject as stated in the title of the act. State ex rel. v. Vandiver, 222 Mo. 221; Ferguson v. Gentry, 206 Mo. 198; State v. Doer-ring, 194 Mo. 398; O’Connor v. Transit Co., 198 Mo. 639; Coffey v. Carthage, 200 Mo. 622. (3) The Legislature may, without violating sec. 1 of art. 4 of the Constitution, vest boards of examiners with power to investigate and decide upon the qualifications of applicants for licenses for occupations and professions directly affecting the public welfare. St. Louis v. Mfg. Co., 139 Mo. 56; State v. Doerring, 194 Mo. 398; State ex rel. v. Lutz, 136 Mo. 633; Ex parte Mc-Monnis, 90 P'ac. 702; Exchange v. Knott, 212 Mo. 635: (4) The State may regulate the occupation of a barber. Ex parte Lucas, 160 Mo. 218; State v. Zeno, 79 Minn. 80; State v. Sharpless, 31 Wash. 191. (5) Where natural classes exist by the very nature of their inherent conditions the Legislature may treat them as different classes and follow different policies with regard to them. No legislation is obnoxious as class legislation where all persons subject to it are treated alike under similar circumstances and conditions. White v. Railroad, 230 Mo. 287; Ins. Co. v. Daggs, 172 U. S. 557; State v. Darrah, 152 Mo. 522; State v. Whittaker, 160 Mo. 59; State v. Swagerty, 203 Mo. 517; 8 Cyc. 1063; Railroad v. May, 194 IT. S. 267; State v. Webber, 214 Mo. 272. (6) And a classification made by the Legislature is not arbitrary when it would support an argument even though but a poor one. Bush v. Ins. Co., 116 N. T. Supp. 1056; State v. Vandersluis, 42 Minn. 129; State v. Tower, 185 Mo. 79; People ex rel. v. Metz, 193 N. T. 148. (7) All doubts must be solved in favor of the validity of the statute. State v. Weber, 214 Mo. 272; State v. Layton, 160 Mo. 489; Harmon v. Coal Co., 156 Mo. 242; State ex rel. v. Warner, 197 Mo. 656.
   BROWN, J.

Bill in equity in the circuit court of Jackson county to restrain the revocation of a barber’s license. From a judgment for defendants, plaintiff appeals.

The plaintiff is proprietor of a barber college in Kansas City, Missouri, and has in his employ as manager and instructor, one P. R. Hackney, a registered barber.

The defendants compose the State Board of Barber Examiners, and are threatening to revoke the license of plaintiff’s said instructor, Hackney, for the alleged reason that he has displayed on plaintiff’s said barber college, the sign, “Free Shaving and Hair-Cutting;” that he has collected and permitted the students under his control to collect money for their services in the practice of the trade therein taught; and that he grauduates students after a course of study of less than two years; all contrary to the provisions of section 1187, Revised Statutes 1909.

The evidence shows that plaintiff’s barber college is equipped with forty-six chairs and other paraphernalia necessary for conducting a barber shop and teaching the barber’s trade; that his instructor Hackney has caused to be displayed on said college the said sign, “Free Shaving and Hair-cutting;” that when students begin work in said college, they charge nothing for their services, but after a few weeks instruction they are permitted to charge for their services; and that the amount they receive is paid one-half to the plaintiff and one-half to the student performing the service. It is also proven that the plaintiff graduates his students after a course of study of less than two years.

The evidence also shows that the barber’s trade can only be taught by having the students shave and cut the hair of other persons under the supervision of an instructor; that plaintiff through his students furnishes free shaves to • about 1500 persons per week.

No evidence was introduced by either side to prove the length of time required to properly teach the barber’s trade; nor was any proof offered to show the danger of spreading infectious or contagious disease by the operation of public barber shops.

Plaintiff does not deny the acts charged against him by defendants, but contends that the judgment ought to be reversed and a decree entered for him because chapter 13, Revised Statutes 1909, entitled “Barbers,” is in conflict with the following provisions of the Constitution of Missouri:

Section 4 of article 2 of the Constitution of the State of Missouri, as follows: “That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty and the enjoyment of the gains of their own industry; that to give security to these things is the principal office of government, and that when government does not confer this security, it ■fails of its chief design.”

Section 30 of article 2, as follows: “That no person shall be deprived of life, liberty or property without due process of law.”

Section 1 of article 4, as follows: “The legislative power, subject to the limitations herein contained, shall be vested in a Senate and House of Representatives, to be styled, ‘The General Assembly of the State Missouri.’ ”

Section 53 of article 4, as follows: “The General Assembly shall not pass any local or special laws . . . . granting* to any corporation, association or individual any special or exclusive rights, privilege or immunity. ’ ’

Section 28 of article 4, as follows: “No bill . . . shall contain more than one subject which shall be clearly expressed in its title.”

That it is also in conflict with section 1, of the Fourteenth Amendment of the Constitution of the United States, as follows: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

OPINION.

I. No intention to suppress the operation of public barber shops having been expressed in the title to the bill under which chapter 13¡, Revised Statutes 1909, was enacted, it will not be assumed that the General Assembly deemed the continued operation of such shops so dangerous to the public health that it desired to terminate that avocation with the present generation and make it necessary for our male posterity to shave themselves or allow their hair and whiskers to grow without let or hindrance from tonsorial artists; yet so complete is the power of the Legislature to prescribe regulations affecting the public health that we would hesitate to say it could not entirely suppress any occupation which is in fact wholly inimical to the public health.

Courts take judicial notice of those things which are common knowledge to the majority of mankind. [Hobbs v. Railroad, 113 Mo. App. 133; Greenleaf on Evidence (14 Ed.), sec. 6; Grimes v. Eddy, 126 Mo. 168.] But we do not judicially know how much time would be required to teach the average student to satisfactorily perform all the work required of a public barber in such a manner as to prevent the spread of disease. The courts take judicial notice that some diseases are spread by diseased persons coming in contact with those who are shealthy; and that barbers on account of their very close contact with their customers, may contract diseases or allow their tools or soaps to become contaminated by the virus or germs of diseases, and thereby communicate such diseases to their patrons; therefore, a prima facie presumption arises that barbers should be able to determine whether or not those who apply to them for shaves are afflicted with contagious or infectious diseases, particularly diseases of the skin. We have already determined that public barber shops are a proper subject of legislative control. [Ex parte Lucas, 160 Mo. 218.] Therefore, as the Legislature was proceeding within its proper sphere in enacting chapter 13, supra, we hold that its action in fixing the course in barber colleges at two years is not unconstitutional.

The State cannot convert to its own use the property or labor of a citizen without compensation, under the pretext of preventing the spread of disease; but because a law designed to protect public health requires a student to work two years before becoming a public barber, it does not for that reason violate section 4 of article 2 of the Constitution of Missouri guaranteeing to all persons the enjoyment of the gains of their own industry; nor does it conflict with section 30, article 2, of said Constitution; nor with section 1 of the Fourteenth Amendment of the Federal Constitution prohibiting the taking of property without due process of law. [St. Louis v. Liessing, 190 Mo. 464.]

“The general right to engage person or property in any trade, profession or business is subject to the power inherent in the State to make all rules and regulations respecting the use and enjoyment of property rights necessary for the preservation of the public health, morals, comfort, order and safety; and such regulations do not deprive owners of property without due process of law.” [8 Cyc. 1110.]

It may be that the law under consideration requiring a two years’ course for barbers, places a needless restriction upon those who desire to learn the barber’s trade (Legislatures, like courts, sometimes-make mistakes); if so, relief should be sought through the Legislature. We have no general veto power, and cannot annul public laws simply because they are in some respects unwise or inexpedient. [State ex rel. Scotland County v. Bacon, 107 Mo. 633; O’Connor v. Transit Co., 198 Mo. 642.]

II. Plaintiff assails the constitutionality of chapter 13, supra, because the title of the bill creating the law is not broad enough to embrace barber colleges, and the law therefore is obnoxious to section 28, article 4, of the Constitution of Missouri, requiring the subject of each bill to be clearly expressed in its title. The title is as follows:

“An act-to establish a board of examiners for barbers and to regulate the occupation of a barber, in this State, and to prevent the spreading of contagious disease.”

The above title is amply sufficient to support that part of the law authorizing the Regulation of barber colleges and apprentices in barber shops. No- better way could be thought of to regulate a vocation or trade than to require those who desire to pursue the same to become learned in the trade by serving an apprenticeship or attending a school where the trade is taught. [State v. Doerring, 194 Mo. 398.]

III. Plaintiff further contends that said section 1187, supra, is class legislation, in that it divides a natural class of persons into artificial classes, contrary to section 53, article 4, of our Constitution, by prohibiting students in barber colleges from charging for their services, while allowing apprentices in barber shops to charge for their work. This contention may be well founded but as we find that such parts of said section as prohibit apprentices from receiving pay for their services is invalid on another ground it is not necessary to consider this assignment.

IV. It is earnestly insisted by plaintiff that section 1187, Revised Statutes 1909, which prohibits students or apprentices in barber colleges from making any charge for their services while learning the barber’s trade, deprives such students of the gains of their oyrn industry, as prohibited by the aforesaid section 4, article 2, of the Constitution of Missouri.

After twice hearing this cause and giving it most diligent, consideration, we have arrived at the conclusion that this contention is correct. .

It is proven and not denied that practically everything a skilful barber should know is learned through physical labor in shaving, cutting and dressing the hair and beard, with such observations as he may make while performing the physical labor under the suggestions and directions of a competent instructor.

Now if students of the barbers’ trade be compelled to labor two years without pay and without their instructors receiving any remuneration for their services (as required by section 1187, supra), it is difficult to see why they would not thereby be deprived of the gains of their own industry, as prohibited by our organic law.

If a barber college or the proprietor of a barber shop were allowed to receive pay for the labor performed by a student or apprentice, then such barber college or proprietor of a barber shop could afford to teach the barber’s trade, or aid the student or apprentice in learning the trade for a reasonable compensa-tion, and the student would thereby indirectly receive some remuneration for his toil; but such is not the case under the law now in judgment.

The practice of boys or young men apprenticing themselves to skilful mechanics, artisans or professional men in order to qualify themselves for useful trades and professions is almost as old as civilization itself; but the barbers’ law is the first regulation which has ever come to our knowledge that prohibits both the apprentice and his master from receiving any remuneration whatever for services of the apprentice, thereby compelling the apprentice to waste two years of his time while qualifying for a public barber.

It is true, as announced in Ex parte Lucas, 160 Mo. 218, that the barber trade, because of its jntimate relation to the public health is a proper subject of legislative control, under the general police power of the State; but it does not follow that the Legislature may impose arbitrary or capricious exactions upon the students of that occupation, which have no relation to the public health. The Legislature having recognized the legitimacy of this profession, cannot destroy it under the guise of “regulation.”

The learned attorney for defendants has not assigned any reason or called our attention to any fact even remotely indicating that the public health will be promoted, protected or safeguarded by requiring students of the barber’s trade to work for two years without compensation. On the contrary, the simplest application of the laws of reason and common sense, demonstrates that an apprentice who receives compen'sation for his toil will take a deeper interest in his work and learn more thoroughly those things which he needs to know about preventing the spread of disease than if he be required to work without pay ; hence, that part of the law under consideration cannot be even said to tend to promote the public health, which is the pretended purpose for which it was enacted.

Y. Plaintiff also attacks the constitutionality of said section 1187, Revised Statutes 1909, because it prohibits barber colleges from displaying any other sign than “Barber School” or “Barber College,” and is therefore a local or special law, and in conflict with section 53, article 4, of the Constitution of Missouri prohibiting the enactment of any special law where a general law can be made applicable. One of the defendants ’ grounds for attempting to revoke the license of plaintiff’s instructor is because he displayed on plaintiff’s college signs not authorized by law. Therefore, this point is squarely at issue in this case.

The sign of the college, like the sign used by any other institution, is but a means of advertising the character of its business. We can see no connection between safeguarding the public health and denying the right of any person conducting a moral and legitimate business to advertise the same in any manner, he sees fit, so long as his advertisements speak the. truth and do not deceive the public.

Chapter 13, supra, expressly recognizes the right of barber colleges to teach the barber’s occupation; consequently, so far as the sanction of the law is concerned, they are on an exact level with every college where other useful trades and professions are taught; and we can conceive of no reason why its right to advertise its business could not have been governed by a general law prohibiting all schools and colleges from displaying any sign or advertisement except the name of the occupation therein taught. In the case of State v. Granneman, 132 Mo. 326, we held a law unconstitutional which prohibits barbers from working on Sunday, because the act was special legislation and could have been covered by a general law.

Section 1187, supra, in so far as it prohibits barber schools and barber colleges from advertising their business the same as other schools, and in so far as it prevents barber colleges and students therein from charging or receiving pay for their services, seems to have been intended to discourage additional persons from learning the barber’s trade, thereby creating a monopoly for those who have already become skilled in that vocation; and such a purpose would also render the law invalid under section 53, article 4, of the Missouri Constitution, which prohibits the General Assembly from “granting to any . . . association or individual' any special or exclusive right, privilege or immunity.”

VI. The plaintiff’s resourceful attorneys have in their brief assailed the constitutionality of the barbers’ law on other grounds not-within the issues presented in this case, but we.will not consider these points until they are presented on facts which render it necessary and appropriate to investigate them.

Defendants also contend that if students of the barber’s trade are permitted to charge for their services, they will become active competitors of licensed barbers. Such competition as comes from the labor of apprentices is a necessary and unavoidable incident of all trades and professions. Defendants’ argument is unsound for another reason. If we concede that it is lawful to teach the barber’s trade at all, then the work of apprentices will be less injurious to licensed barbers, if such apprentices charge for their services than if they work without pay, for the same reason that the convict labor is more injurious to workmen than paid labor.

Possibly some barbers like some lawyers and other persons who have attained successful and remunerative positions in professional and commercial life, become anxious to shut out competition by “burning the bridges behind them,” ‘so to speak, but such a scheme is entirely un-American, because it is the policy of a free commonwealth to encourage thrift and industry among its citizens and to keep the door of opportunity ajar so that every qualified and deserving person who so desires may enter thereat.

While we find that those provisions of section 1187, supra, which prohibit barber colleges and barber schools from advertising their business, and prohibiting such schools and students therein from charging for their services are void, because obnoxious to the Constitution; yet as we have seen that the provisions requiring a two-year course in such schools to entitle students to a barber’s license is constitutional, and the plaintiff having violated the latter provision of said section by graduating or pretending to graduate students in less than two years, as charged by defendants, the judgment of the circuit court is affirmed.

Ferriss, P. J., and Kennish, J., concur.


author: ROY, 0.

text:
    NELLIE COLLETT v. HENRY E. KUHLMAN et al., Appellants.
    Division Two,
    June 1, 1912.
    1. APPEAL: From Order Granting New Trial: Points Considered. On an appeal from an order of the circuit court granting a new trial, questions not involved in the action of the court in granting the new trial will not he considered hy the Supreme Court.
    2. NEGLIGENCE: Contributory: Not Pleaded: Instructions. In all actions for damages for personal injuries in which the plaintiff, in making out his case, clearly establishes that the injury was as much the result of his own negligence as of that of the person of whom he complains, the trial court must, as a matter of law, and even though there is no plea, declare that the plaintiff cannot recover, hut the mere fact that plaintiff’s evidence tends to prove contributory negligence, does not, in the absence of a plea thereof, authorize the submission of that issue to the jury.
    3. -: -: -: Plaintiff’s Evidence as Basis for Instruction. When the deceased was killed by an injury sustained while "throwing” a belt, and there were no eye witnesses, it was error for the trial court to instruct upon the law of contributory negligence, when the defendants had made no plea thereof, and the plaintiff’s evidence merely tended to establish such negligence.
    4. -: Guarding Dangerous Machinery. Where plaintiff was killed while attempting to "throw” a rapidly moving belt from a pulley revolving on a shaft near a doorway in the basement of defendants’ mill, the Supreme Court refuses to say, as a matter of law, that there was no evidence tending to show that plaintiff was entitled to recover on account of the defendants’ negligence in not guarding the machinery.
    Appeal from Moniteau Circuit Court. — Hon. W. H. Martin, Judge.
    Affirmed.

      B. M. Embry and W. G. Pendleton for appellants.
    (1) By an examination of the evidence it will he observed that plaintiff fell far short of making- a case under the statute requiring the guarding of machinery or posting notices of danger. Furthermore the question as to whether the machinery on account of its location, and on account of its not being guarded was dangerous or could he guarded was submitted to the jury and that fact was passed on by them and is binding, and again new trial was not granted on this ground. Bear v. Heibel, 103 Mo. App. 622; Lohmeyer v. Cordage Co., 137 Mo. App. 624; Strode v. Box Co., 124 Mo. App. 511; Henderson v. City, 177 Mo. 477. (2) The giving of instruction 9 was no ground for granting a new trial. The plaintiff’s pleading and plaintiff’s evidence, and the instructions asked and given hy the court on behalf of plaintiff, warranted the court in giving instruction 9 for defendants and the giving of this instruction was no ground for granting a new trial even though contributory negligence was not pleaded by defendants. Hebeler v. Railroad, 132 Mo. App. 551; Whaley v. Coleman, 113 Mo. App. 594; Moore v. Railroad, 146 Mo. 572. (3) The undisputed evidence is that deceased was instructed to remove the belt with the broomstick, and was instructed how to remove the belt with same. Plaintiff in her pleading and in the evidence offered by her that deceased on the day he was injured and previously had removed the belt with his hand. If he did so and such conduct was contrary to the instructions he had received as to how the belt should be removed, then plaintiff can not recover. The evidence as to the instructions given to deceased is undisputed. The giving of this instruction was no ground for a new trial. Moran v. Brown, 27 Mo. App. 487.

      Hasell & Lay and Moore & Williams for respondent.
    (1) A demurrer to the evidence on the ground that the plaintiff’s contributory negligence appears in her case, will only lie where such negligence affirmatively appears and is shown beyond a reasonable doubt; if it falls short of this and remains a question of fact which might be decided either way, it must be pleaded to be available as a defense. McCormick v. City, 64 Mo. App. 197; St. Vrain v. Columbia Bottom Levee Co., 56 Mo. 290. (2) It must follow in this case that instruction 9 was wrongfully given by the court, and it is very plausible that it persuaded the jury to return a verdict for the defendants to the great prejudice of the plaintiff. Bender v. Railroad, 137 Mo. 240. (3) The instruction on contributory negligence injected into this case an issue not made by the pleadings. Wright v. Fonda, 44 Mo. App. 642.
   ROY, 0.

Plaintiff sued under the statute for the death of her husband, which occurred while he was working in defendant’s mill in California, Moniteau county, on May 7, 1906.

The defendants had a verdict and have appealed from the order granting a new trial.

The mill was run by steam. Adjoining the engine room was the basement. A shaft conveyed the power from the engine and extended about thirty-five feet into the basement. A belt six inches wide ran from a pulley thirty-eight inches in diameter* and ten inches wide on this shaft, at an angle of about forty-five degrees through the floor to the “corn burr” above. This pulley was close to the wall of the engine room, and the top of the pulley was about six feet from the floor. The belt ran over the top of the pulley and around under it up to the corn burr. Its ordinary speed was a hundred and sixty-eight revolutions to the minute. There was a door near the southeast corner of the engine room into a passway about four feet wide in the basment. Adjacent to the north side of this passway was the pulley, and on the south side of the passway was the stairway. There were other pulleys on the shaft.

Isaac T. Collett was, on the 26th of April, 1906, employed by the defendants to run their steam engine in the mill, and to throw belts from pulleys. He had previously run a threshing machine engine and sawmill.

The defendants’ evidence tended to prove that Collett told defendants, when he was employed, that he had run an engine and flour- mill at Olean, Missouri, and that he came to them several times for work before they employed him, and that, when employed, he was instructed to throw the belt with a stick, and was ■shown how to do it, and told never to throw it with his hands.

On May 7, 1906, Collett, Mr. Wood and defendant Meyer, were in the engine room. Meyer told Collett to throw the belt. Collett passed through the door into the basment, and very soon Wood noticed a man’s hat fly across the door in the basment, and immediately thereafter Collett was found badly injured, with a fractured skull, lying in the passway near the pulley. He died two days thereafter.

There was no guard about the belts and shafting and no notice of danger was posted in the mill. A broomstick which had been previously used to throw the belt was found, according to evidence for defendants, lying near the pulley in the same position in which it was on the day before.

Defendants’ evidence tended strongly to prove that the proper way to throw the belt was with a smooth, round stick; that it was dangerous to throw it with the hands, and that Collett several times threw it with his hands.

The second count of the petition alleged that defendants furnished deceased with .an improper tool, a broom-handle, with which to remove the belt, and that the broom-handle, on account of being round, was more likely to be caught between the belt and wheel, and thus cause injury,’ which defect was known to defendants, but not to the deceased on account of his inexperience; and that count of the petition further stated that defendant Meyer suggested to Collett that he could remove the belt with his hands, the dangers from which were well known to the defendants, and then states that Collett was injured while attemptiug to remove the belt with the broomstick. ■

There was no evidence that Meyer suggested to Collett that he could remove the belt with his hands.

The third count of the petition alleged that the machinery was dangerous and that it was not guarded as required by the statute and that no notice of danger was posted in the mill.

There was no plea of contributory negligence. The evidence for plaintiff tended to show that Collett was very inexperienced in such work and that defendants knew that fact.

The grounds stated by the court for granting a new trial were that error was committed in giving the following instructions in behalf of defendants:

“7. The court instructs the jury that it is not only incumbent on plaintiff to show that her husband was injured by the negligence of defendants, but plaintiff must further show by what he was injured and what act of negligence caused the injury to plaintiff’s husband. Mere negligence on the part of defendants accompanied by an injury to plaintiff’s husband will not warrant you in finding for plaintiff, and if the jury believe that plaintiff’s husband may have been injured in other ways than that complained of in the petition then your verdict must be for the defendants.

“9. The court further instructs the jury that it was the duty of plaintiff’s husband to exercise reasonable care to avoid danger while performing his work for defendants and if from the evidence the jury believe that he failed to exercise reasonable care and that the lack of care upon his part directly contributed to his own injury and was the proximate cause thereof, then the jury will find in favor of defendants.

“14. If the jury shall believe from the evidence that the plaintiff’s husband received the injury which caused his death in consequence of attempting to remove the belt of defendants’ mill by the use of his hand alone, then the plaintiff cannot recover and your verdict must be for the defendants.”

I. The respondents raise several questions not involved in the action of the court in granting a new trial. Such questions are not the subject of consideration here. [Haven v. Railroad, 155 Mo. 216.]

II. When the plaintiff, in making out his case, clear ly establishes that the injury he complains of was as much the result of his own negligence as that of the party of whose negligence he complains, it is the duty of the trial court, as a matter of law, to- declare that plaintiff cannot recover.

And that is the case whether there is a plea of contributory negligence or not. But in all other cases, there must he such plea.

The fact that plaintiff’s evidence tends to prove contributory negligence, does not, in the absence of such plea, authorize the submission of such issue to the jury. [Hudson v. Railroad, 101 Mo. 13; Milburn v. Railroad, 86 Mo. 104; Schlereth v. Railroad, 96 Mo. 509; McCormick v. City of Monroe, 64 Mo. App. 197; Fechley v. Traction Co., 119 Mo. App. l. c. 368.]

It follows that the 9th instruction on the subject of contributory negligence should not have been given. The 14th instruction is, in effect, an instruction on contributory negligence, and, for the same reason, should not have been given. We see no error in the 7th instruction.

III. We are not prepared to say, as a matter of law, that there was no evidence tending to show that plaintiff was entitled to recover on account of negligence in not guarding the machinery.

The order granting a new trial is affirmed.

Blair, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


text:
    THE STATE v. JAMES DOCKERY, Appellant.
    Division Two,
    June 1, 1912.
    1. ROBBERY: Common Intent: Evidence. Testimony that defendant led the other three men from the saloon to the alley, where one of them was robbed; that Robare had hold of the prosecuting witness’s arm; that either defendant or Roussin choked him and took his money; that the two men who had hold of him ran off together; testimony by an officer that Robare and defendant ran off together; that defendant subsequently denied his presence in the alley, and unequivocally stated he did not hear the officer’s shot who fired when the two men ran off; and defendant’s own testimony that he was only ten feet away from the struggle, is ample evidence to authorize an, instruction upon a common intent among the three.
    2. -: -: Instruction. There being evidence of a common intent among the three to rob the prosecuting witness, which was actually done by one choking and taking the money from his pockets, while another held his arm, an instruction which told the jury to convict defendant if they found under the evidence one of three alternatives, namely: whether defendant himself assaulted the prosecuting witness, whether he was present aiding and assisting the other two or either of them, or whether he was present for the purpose of so assisting if necessary, did not relieve the jury of the duty of finding all the essential facts, and was not erroneous.
    3. ALIBI: No Instruction: No Request: No Pointed Specification in Motion. Where no instruction on alibi was requested, and the attention of the trial court was not specially called in the motion for a new trial to its failure to give an instruction on that point, it is not reversible error that the court failed to give any instruction on alibi. A. specification in the motion for a new trial that “the court failed to instruct the jury on the entire law applicable to said cause” is not sufficient to call the court’s attention to the particular point omitted in the instructions. Besides, in this ease, there were no facts testified to by defendant to authorize an instruction on alibi.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Grimm, Judge.
    Affirmed.

      Bass & Bass for appellant.
    (1) The fault of instruction one lies in the fact that it assumes that there was evidence of a common intent and agreement or a conspiracy between Roussin, Robare and- the appellant. There is no evidence whatsoever to indicate this theory or justify this as-, sumption.. The mere fact that the prosecuting witness was robbed by two companions of the appellant and that appellant stood off at some distance while the robbery was going on, would not. of itself make him an aider, abettor or an accomplice without other evidence. State v. Valle, 164 Mo. 551; State v. Meyers, 174 Mo'. 352. (2) The fault of instruction two lies in the fact that the 2d and 3d paragraphs clearly and unmistakably assume that Roussin and Robare assaulted Dose and took his property from him. (3) The court erred in not giving an instruction of its own motion on the theory of an alibi. The State by introducing the evidence of officer Archie and through him giving to the jury the statement of the -appellant, introduced a claim of the appellant that he was not present at the time and place where the offense was committed and the appellant himself in his evidence testified that he had nothing to do with the commission of the crime, but was some distance from the others when the offense was in process of commission. There being no evidence whatsoever of an agreement or conspiracy to commit this offense, it cannot be said that the physical presence of the appellant was not necessary. Distance from or nearness to cannot affect the question of an alibi. State v. Conway, 241 Mo. 271; State v. Dashman, 153 Mo. 454; State v. Taylor, 118 Mo. 153; State v. Woolard, 111 Mo. 248; State v. Koplan, 157 Mo. 298; State v. Lewis, 69 Mo. 92; State v. Bobbitt, 228 Mo. 268.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) There was not only substantial evidence of appellant’s guilt, but the evidence against him was overwhelming. In such a case, this court will not attempt to weigh the evidence, but will defer to the finding of the jury, as approved by the trial court. State v. Smith, 190 Mo. 706; State v. Payne, 194 Mo. 442; State v. Groves, 194 Mo. 452; State v. Swisher, 186 Mo. 8; State v. Williams, 149 Mo. 496. (2) Appellant did not point out in his motion for new trial wherein the court did not instruct upon all the law of the case. State v. Conway, 241 Mo. 271.
   FERRISS, J.

Conviction upon an information charging defendant, together with Otto Roussin and Louis Robare, with robbery in the first degree, committed upon one Erwin Dose. Defendant was tried separately, and his punishment fixed at five years in the penitentiary.

The evidence for the State tended to prove that on Sunday, at half past twelve, a. m., on May 8, 1910, said Dose met defendants Dockery and Roussin op North Grand avenue and Market street, in St. Louis. They were waiting for a Grand avenue car. Dose was under the influence of liquor. The three went to the Social Economic Club, where they met the other codefendant, Robare. This club was located in the downtown section of the city. At the club some beer was ordered, the three defendants and Dose drinking same. They remained some time at the club, drinking beer and entertaining and amusing themselves in different ways. At the suggestion of some one of the party they went out upon the street. Upon reaching an alley, defendant Dockery suggested that they go into the alley and urinate. They entered the alley to a distance of fifty feet, defendant leading the way, when Dose stopped for the purpose mentioned. Robare threw his arms around Dose, while one of the others (Dose could not tell which) proceeded to choke him with one hand and go through his pockets with the other, and robbed him of ten dollars. This party asked him if he had any more money, and Dose said, “No.” They then turned Dose loose, who ran and hallooed: “Help, help, police; they have robbed me.” The two men who held Dose ran in a direction opposite to that taken by him. The money taken was mostly silver. There was one two-dollar bill. Roussin ran down the alley in the same direction taken by Dose. Police officer Archie, at 2:15 that Sunday morning, at Ninth and Chestnut streets, saw defendant and Robare running at full speed, side by side, up the street, and at the same time saw Roussin scuffling with Dose down the street. The officer fired a shot at defendant and' Robare, but did not stop them. Archie arrested Roussin after firing a shot at him. Later, the same morning, Robare and defendant were arrested, the latter at his home. Defendant denied having been down town that night. Archie said, “Didn’t you run when I shot at you1?” To this Dockery replied: “No, you are crazy; I didn’t hear any shot.” At the police station the three men, in the presence of Dose and several police officers, began accusing one another of the robbery. Dockery said that Robare and Roussin took the money, while Roussin maintained that the other two took it. All were searched. Two dollars and fifty cents was found on Dockery’s person, and about the same amount on Roussin. Robare’s pockets contained a dollar and a half and three keys, which keys were identified by Dose as his property.

The defendant’s testimony corroborated that for the State as to the happenings preceding the assault and robbery. He testified that Dose proposed going into the alley, and that Dose and the others preceded him (defendant) into the alley, he lagging behind because of a sore heel; that he stopped at the entrance, the others going into the alley about ten feet; that he saw Robare and Ronssin assault Dose, but thought it was simply a quarrel; that one of them said, “Go to hell,” .and then the three ran away, leaving him behind; that thinking it was their intention to get rid of him, he walked over to Seventh street and Franklin avenue, boarded a street car and went home. He acknowledged that he told the police officers, when they came to arrest him, that he knew nothing about the affair, but denied that he made any statements at the police station inculpating the others or indicating his own complicity in the affair. He admitted that he, had drunk twelve bottles of beer and four Manhattan cocktails that night, and that he was “pretty well loaded.”

James Dockery, defendant’s father, testified that he was a member of the metropolitan police force, and was then a sergeant; that his son, the defendant, had always been industrious and had never been convicted of any offense; that he kept regular hours, and never gave him any trouble; that on the night in question defendant gave him twenty-five dollars, stating that he was going out to Forest Park Highlands and was afraid that he might lose the money.

Defendant introduced evidence tending to prove that his general reputation for industry and honesty was good.

The defendant contends in his brief that the following instructions given by the court- misdirected the jury:

“1. All persons who act together with a common intent in the commission of a crime are equally guilty. If you find and believe from the evidence, beyond a reasonable doubt, that at the city of St. Louis and State of Missouri, on or about the 8th day of May, 1910, Otto Roussin, Louis Robare and James Dockery did assault the prosecuting witness, Erwin Dose, by grasping and holding his arms and choking him, and by violence to Ms person, or by putting Mm in fear of some immediate injury to Ms person, did take from Ms person, against Ms own will, ten dollars, lawful money of the United States, or any part thereof, with the intent at the time to take wrongfully and carry away and convert the same fraudulently to their own use, and permanently deprive the owner thereof without his consent, and if you find that said property so taken belonged to said Erwin Dose, and was of any value whatever, then you .should find the defendant, James Dockery, guilty of robbery in the first degree, and assess his punishment- at imprisonment in the penitentiary for such time as you deem proper, not less than five years. And if you do not so find the facts you will acquit the defendant.

“2. It is not necessary for the State to show that the defendant, James Dockery, himself actually assaulted the prosecuting witness, Erwin Dose, or that defendant actually took from him any part of the money mentioned in the information, but you will be authorized in finding the defendant guilty of the offense charged if you find, beyond a reasonable doubt, either:

‘£ 1st, that he assaulted the prosecuting witness, Erwin Dose, and by violence to' his person or by putting him in fear of some immediate injury to his person, took the money mentioned in the information, or some, part thereof, from his person; or,

££2d, if the defendant was present and aided and assisted Otto Roussin -and Louis Robare, or either of them, in assaulting said Erwin Dose and taking his property from his person, against his will; or,

££3d, if he was present for the purpose of aiding, abetting or assisting said Otto Roussin and Louis Robare, if necessary, in such assault and in taking such property from the person of said Erwin Dose against his will.”

A further contention is that the court erred in failing to instruct of its own motion on alibi.

I. It is urged that the first instruction is faulty in that it assumes that there was evidence of a common intent among the three parties charged with the crime. The record contains ample evidence to support this instruction. There was evidence that defendant led the way into the alley, and that he suggested going there. There was slight evidence that he actually participated in the holdup. Dose testifies that Robare had hold of his arms, and that either defendant or Boussin (he could not swear which) took his money; but he did testify that the two men who had hold of him ran off together. Robare and defendant ran off together, according to the testimony of officer Archie. There is also the testimony of defendant’s subsequent denial of his presence in the alley, and his equivocal reply to the officer when asked about the shot fired by the latter. According to his own evidence he was only ten feet away from the struggle. The cases cited on this point- — State v. Valle, 164 Mo. 551, and State v. Meyers, 174 Mo. 352 — do not help defendant.

II. As to the second instruction, it is urged that paragraphs 2 and 3 assume that Boussin and Bobare assaulted Dose and took his money. The brief merely states this proposition, without argument or citation. We find no merit in the point. The instruction as a whole tells the jury to convict if they find under the facts one of the three alternatives, viz: Whether defendant himself assaulted Dose; whether he was present, aiding and assisting Boussin and Bobare, or either of them; whether he was present for the purpose of so assisting if necessary. It canot be said that this instruction relieved the jury from the duty of finding all the essential facts.

III. As to the third proposition that the court failed to instruct on alibi. No instruction was asked on this proposition. Neither was the attention of the court called specifically in the motion for a new trial to its failure to so instruct. The motion for new trial says: ‘ ‘ 7th. Because the court failed to instruct the jury on the entire law applicable to said cause.” We have recently ruled this specification in the motion insufficient, in that it fails to call the attention of the court to the particular point omitted in the instructions. [State v. Conway, 241 Mo. 271.] What is said there by Kennish, J., need not be repeated here. Furthermore, we see no basis in the facts testified to by defendant for such instruction.

Other than as set out above the defendant does not complain. We have examined the entire record, and find no reversible error therein. The judgment is affirmed.

Brown, P. J., and Kennish, J., concur.