text:
    THE STATE v. WALTER F. PATTERSON, Appellant.
    Division Two,
    May 29, 1917.
    1. ROBBERY: Information: Extorting Money by Threat of Exposure, Particular Description of Offense Involved in Threat. It is not necessary that the information describe with particularity the offense involved in the defendant’s threat by means of • which the crime of robbery or blackmail was consummated, nor is it necessary, in order to make the crime of robbery complete, to prove that the threat was couched in language that completely described the crime threatened to be exposed. An information charging robbery consummated by threats of exposure, in so far as a description of the threatened accusation is material, sufficiently apprises the defendant of what he has to meet when it names the crime which he may identify with his alleged .threat. Sodomy ' is made a felony by statute (Laws 1911, p. 198), and an information charging that defendant “did verbally accuse and threaten one Peter Ibsen . of having committed the crime and offense of sodomy upon and with the said Edward C. Butler, with the felonious intent then and there and thereby to extort from the said Peter Ibsen certain sums of money and notes,” etc., sufficiently describes the offense of sodomy. [Distinguishing State v. Sekrit, 130 Mo. 401.]
    2. -; Blackmail: Threat to Accuse of a Crime. The words “accuse or threaten to accuse” used in the statute, in a prosecution for robbery and blackmail effected by accusing and threatening to accuse the victim of a crime, do not mean solely to threaten to lodge a formal complaint in court or to accuse by such means. Even if they meant that, the evidence in this case was sufficient to make out a case against defendant. ' But the threat is within the meaning of the statute if it includes exposure and publicity and imputes a crime as a means of inducing the threatened person to pay money to the accuser.
    3. -; Variance: Purchase of Paper Used as Means of Blackmail. Testimony by the victim that he .gave notes to the defendant for the purpose of getting back from him a damaging paper he had signed at the time the threats of exposure were made, does not constitute a variance from the charge that the victim gave the notes on account of the threat to accuse him of a crime, where the paper was held by defendant as a part of his scheme to extort by threats money and notes from his victim.
    4. -: Evidence of Similar Crimes: Intent. Evidence showing crimes, or attempts to commit crimes, of a character like .the one charged, is admissible, as tending to show the intent with which the crime charged was committed or attempted, In a prosecution for robbery and blackmail effected by threats to accuse the victim of a crime and to expose him. Where the charge was that defendant, by accusing and threatening to accuse Ibsen of a crime, obtained money and notes from him, it was not error for the State to introduce a witness named Boehlinger to testify that somewhere near the same time defendant attempted to extort money from him by the same means.
    Appeal from St. Louis City Circuit Court. — Hon. William T. Jones, Judge.
    Affirmed.

      James M. Rollins, E. A. Halter and Joseph Reilly for appellant.
    (1) The demurrer to the information, the demurrer at the close of the State’s case and the demurrer at the close of the whole case should have heen sustained for the reason that the information failed to set out the language of the accusation and threat in haec verba, alleged to have been made by the defendant. State v. Hayward, 83 Mo. 307; 1 Bishop, Crim. Prac., sec. 81. The information is based on Sec. 4532, R. S. 1909. It pleads only a conclusion, and does not plead the necessary constitutive facts of a valid information. State v. Murphy, 141 Mo. 270; State v. Miller, 132 Mo. 267; State v. Chandler, 132-Mo. 165. The prosecuting witness positively and repeatedly swore that he gave the notes and gave the money to Patterson for no other reason than to have Patterson get back and destroy his signed statement from Deuser. The evidence was in total variance with the allegations of the information. State v. Parris, 259 Mo. 435; State v. Brewer, 259 Mo. 448; State v. Middleton, 259 Mo. 449; State v. Loyd, 259 Mo. 449.- (3) The entire record of-this case is void of any “threat to accuse” or of “any accusing”' of the prosecuting witness, Ibsen. The State, therefore, utterly failed to make a case against the defendant, Patterson. .To accuse is to bring a charge against one before some court or officer and the person .thus charged is ■the accused. A threat to accuse of a crime does not refer t.o accusing by way of railing, or slander, or bearing false witness under a false accusation made by others, but the .institution or participation in the institution of a criminal charge before some one held out as competent to entertain such a charge as a lawful course. According to Black’s Dictionary of Law to “accuse is to bring a formal charge of crime before a competent court or officer.” The defendant did not make any charge against Ibsen, and did not threaten to go to any prosecuting officer and “accuse” Ibsen. The testimony of O. E. Boehlinger as to a so-called “similar crime” was incompetent. The Boehlinger matter was no crime. State v. Hyde, 234 Mo. 250; State v. Palmberg, 199 Mo. 233; State v. Parker, 96 Mo. 382; State v. Lockett, 168 Mo. 480; State v. Martin 34 Mo. 85; State v. Teeter, 239 Mo. 475. Where another distinctive offense is relied on to show intent, the other act must be of a precisely similar nature as the act for which the defendant is on trial. Underhill on Criminal Evidence, sec. 89; State v. Hyde, 234 Mo. 224. Proof of another offense is not admissible in robbery cases for the purpose of showing intent. State v. Spray, 174 Mo. 569; State v. Wellman, 253 Mo. 362.

      Frank W. McAllister, Attorney-General, and John T. Gose, Assistant Attorney-General, for the State.
    (1) The information is sufficient because it fully informs defendant of the offense with which he is charged, and the motion in arrest was properly overruled. Sec. 5115, R. S. 19.09; Regina v. Norton, 8 Car. v. Payne, 671; Hanselman v. People, 168 111. 172; Kelley v. People, 192 111. 119; Davis y. State, 3 Harris & Johns (Ind.), 478; Bradford v. State, 53 Am. St. 34: Defendant not being informed against for .sodomy, and the information not having attempted to set out any of the elements of sodomy, appellant’s authorities are not in point. Sec. 4726, R. S. 1909, made sodomy a felony, but section 1, Laws 1911, p. 198, which repealed said section, did not wipe sodomy off the list of crimes. The. fact that it is not called by name therein does not exclude sodomy. The language of the statute is broad enough and does include the specific offense of sodomy, buggery, beliation and bestiality. Honselman v. People, 168 111. 175; State v. Katz, 266 Mo. 493; State y, Pfeifer, 267 Mo. 23; State v. Wellman, 253 Mo. 302. (2) The attempt of counsel to limit the meaning of “accuse” to “a formal charge of crime before a competent court or officer” is rather “far fetched,” but if that construction of the term were possible, the jury might infer this from evidence of Patterson’s claim to be an officer, the badge, call for the patrol wagon, and numerous other circumstances in this case. (3) The admission of the testimony of O. E. Boehlinger was not error. Rex v. Egerton, Russell & Ryan, 375; State v. Nathan, 5 Rich. L. 219; Ballomly v. United States 1 Story, 135; Rex v. Hogg, 19 Eng. C. L. 420; State v. Balch, 136 Mo. 109. The defendant testified that he took the notes as compensation for services and from no criminal intent, motive or design. Other instances of like character were peculiarly admissible. State v. Myers, 82 Mo. 562. In this last case, which was for robbery, the authorities were exhaustively reviewed and it is held that where intent is of the gist of the offense, other similar instances are admissible whether they happen at the same time or before or subsequent. When defendant claimed the notes were taken for services, then surely the similar attempt upon Bohlinger was admissible to show whether the taking of the notes was with the intent charged in the information. The mere fact of evidence going to prove another felony is not sufficient to exclude it, if, in itself, it be good evidence. It is not as evidence of a felony, but as evidence of prisoner’s intentions that it may be received. Queen v. Dossett, 2 Cox C. C. 243; 3 Rice, Criminal Evidence, 457-464.
   WHITE, C.

Information was filed in the circuit court of the city of Saint Louis, at the April Term, 1915, charging the defendant, jointly with Frederick W. Deuser and Edward C. Butler, with robbery in the third degree under section 4532, Revised Statutes 1909, by threatening to accuse one Peter Ibsen of a felony and thereby extorting from him certain promissory notes, signed by him and payable to the appellant. The defendant Patterson was granted a severance and on his separate trial was convicted, and his punishment assessed at a term of five years in the penitentiary; from this judgment he appealed.

Ibsen was fifty-three years of age, a native of Denmark, but a naturalized citizen of the United States, and vice-consul for Denmark. According to the evidence produced by the State, Patterson, Deuser and Butler conceived a scheme to extort money from Ibsen, and in pursuance of the scheme Butler, who was a boy about nineteen years of age, sought the acquaintance of Ibsen at the latter’s candy store, 912 Olive Street. After Ibsen and Butler had become acquainted they took several car rides together in different parts of the suburbs and on one occasion, about the 13th of August, 1914, while they were at Creve Coeur Lake and in an obscure part of the park, Deuser and Patterson suddenly came upon them and made the threats which are the basis of the charge set out in the information. Presently Deuser took Butler to one side and pretty soon returned with him. Butler was crying, ánd Deuser said he had “confessed.” Before they separated they got Ibsen in a state of fear which remained with him for some days. He was induced to sign a statement which he testified contained only his name, address and occupation, and the name and address of Butler. In the subsequent negotiations Patterson produced this paper in which Ibsen asserted additional words had been written and among them the words “for immoral purposes.” The defense claimed that the paper was in the same shape when produced afterwards as when it was signed.

Patterson continued to work on Ibsen’s 'fears with threats o'f exposure and the next day extorted $97 in cash from him, and a few days later induced him to sign two notes, one for two hundred dollars and one for six hundred and fifty dollars, both payable to Patterson. These notes, which are the ones mentioned in the information, were subsequently paid by Ibsen to some trust company to whom Patterson negotiated them. On the delivery of these notes Patterson burned in Ibsen’s presence the statement which the latter had signed at Creve Coenr Lake.

Patterson, finding Ibsen easy and productive, continued to work him with effect. Some months after he got the two notes he went to Ibsen and told him that he had lost $150 in discounting the notes and induced Ibsen to pay him another $150. Some time in March, 1915, about a month after Patterson got the $150, he again got in communication with Ibsen and told him, “Denser has played a trick on us,” by retaining a photographic copy of the statement Patterson had burned in Ibsen’s presence. He produced a note for $800 and induced Ibsen to sign it for the purpose of quieting Deuser. During the previous negotiations Patterson, in his talks with Ibsen, had always mentioned Deuser as the person who was to be feared, intimating that there was danger of both Ibsen and himself getting into trouble through the instrumentality of the police if Deuser were not hushed up.

Ibsen made no complaint to any officer about’ the matter, but kept it to himself. The $800 note mentioned was found on Patterson while under arrest on another criminal charge; the police department with this clue hunted up Ibsen and discovered the story of his robbery.

Patterson nowhere in his defense denied having received the notes mentioned in the information or having cashed them, but says they were give by Ibsen voluntarily so that he could cash them and raise money “to get Butler out of town.” His defense throughout'was that Ibsen was guilty and in constant terror lest Butler would charge him with an unmentionable crime. Patterson did not remember receiving the $97 cash, but admitted Ibsen gave him a check for $50 at one time.

I. Defendant demurred to the information, his demurrer was' overruled, and he now challenges its sufficiency on the ground that it did not inform the defendant of the nature of the offense with which he was charged.

The information after the introductory parts alleges:

“That Walter F'. Patterson, Frederick W. Deuser and Edward O. Butler, on the fourteenth day of August, in the year of our Lord one thousand nine hundred and fourteen, at the city of Saint Louis, aforesaid, did verbally accuse and threaten one Peter Ibsen in a certain verbal conversation, which they, the said defendants, Walter F. Patterson, Frederick W. Deuser and Edward C. Butler, had with the said Peter Ibsen concerning him, the said Peter Ibsen, to accuse the said Peter Ibsen of having committed the crime and offense of sodomy upon and with, the said Edward C. Butler, with the felonious intent then and there and thereby to extort from the said. Peter Ibsen certain sums of money and certain promissory notes.”

It then proceeds to set out with sufficient particularity the threats, intimidation and extortion of two notes, one for $200 and one for $650, signed by said Peter Ibsen and payable to the order of Walter F. Patterson.

The claim is that the information should have set. forth with precision the crime involved in the defendant’s threat; that such crime is neither named in the statute nor is any crime described in the information in the language defining a statutory or common law offense.

Section 4726, Revised Statutes 1909, made sodomy a felony, mentioning it by name and.describing the offense. The section was repealed by a session act in 1911, and in lieu of it a new section enacted (Laws 1911, p. 198), which is in the exact language of the former section 4726, with addition of other particulars descriptive of the crime, but names the offense in the title of the section, ‘ ‘ The Abominable and Detestable Crime Against Nature,” instead of £ £ Sodomy. ’ ’ It has been held by this court that the amendment of 1911 did not restrict but extended the scope of Section 4726, so that it includes crimes against nature which the common law terms did not embrace. £ £ Sodomy ’ ’ is within the condemnation of the section as it now stands; so the information did name a statutory felony and charged the defendant with having threatened to accuse the prosecuting witness of committing it. [State v. Katz, 266 Mo. l. c. 501; State v. Pfeifer, 267 Mo. l. c. 27-28.]

Was it necessary to describe the crime with the same particularity and precision as would be necessary in the prosecution of a person for having committed it? Defendant is charged with the crime of robbery. The other crime is only incidental. It is not charged that anyone committed or attempted to commit it. The defendant threatened to accuse the prosecuting witness of it. The threat was the instrument by which the property was extorted and the crime of robbery consummated. In order to make the crime of robbery complete it was not necessary to prove that the threat should be couched in language which completely described the crime, to escape the association with which the victim was induced to part with his property. If it were, no one could be convicted. • The threat in such cases always achieves its purpose without such definiteness. An information charging blackmail or robbery of this kind, in describing the threatened accusation, sufficiently apprises the defendant'of what he has to meet when it names the crime which he may identify with his alleged threat. [Glover v. People, 204 Ill. 170; Commonwealth v. Bacon, 135 Mass. 521; Rosen v. United States, 161 U. S. 29, 10 A. C. R. l. c. 255; Regina v. Norton, 8 Car. & Payne, 671.]

Some excuse for the appellant’s contention is found in the case of State v. Sekrit, 130 Mo. 401, cited by appellant, where the defendant was charged with blackmail under what is now Section 4534. The indictment set out that the defendant by letter threatened to accuse the prosecuting witness of a crime, naming a statutory crime, and purporting to describe the acts constituting it. This court held the indictment bad because the threat as alleged did not describe any crime known to the statutes. But an examination of the case will show that the indictment, in stating the threatened accusation, set out in detail certain acts which did not constitue any offense prohibited by the statute, and by those positive averments showed the statute upon which the indictment was framed was not violated. It is not intimated that to name the crime without more would not be sufficient. Other cases under the blackmail section, which is similar in purpose and effect to the section defining rohhery in the third degree, so far as the opinions show what the indictments contain, indicate that a description of the crime to which the threat refers by naming it, is sufficient. [State v. Linthicum, 68 Mo. 66; State v. Stewart, 90 Mo. 507.] Another reason why more definiteness is unnecessary is mentioned in the books, and that is the abominable crime against nature is such that the record need not be defiled with details of the different acts which go to constitute it. “Peccatum, illud Jiorribile inter christianos non nominatum.” [Rosen v. United States, 10 A. C. R. l. c. 257; Honselman v. People, 168 Ill. l. c. 174-5.]

"We hold, therefore, that the information was sufficient and the demurrer properly overruled.

II. Appellant claims the cause should be reversed because a case was not made out. The argument is that the word “accuse” means to lodge a formal comPla^t in some court; that to impute a crime to one or expose him to public condemnation as having committed a felony would not be “ to accuse ’ ’ within the meaning of the statute.

Appellant didn’t ask any instruction by which the jury might find whether the threat involved the filing of a formal complaint or the mere exposure, and there was sufficient evidence from which the jury might have found that the threat involved the making of a complaint on which the victim might be arrested. Patterson’s first accusation was, “You know this is a pretty nasty case,” and on Ibsen’s asking what he meant, he said, “Well, you will find out;” he showed his badge as a detective and said to Deuser, “You go ring up the wagon.” Ibsen said he would go without the wagon and defendant wrote down Ibsen’s name and address. He said, “You know you are up against it.”

Anyone working a game such as is charged here would be likely to do it by indirection; at least he would not formulate his threat in such shape as would make it a technical description of a crime, nor definitely state that he would file a formal charge in court. It was not what Patterson said in exact terms to Ibsen which wrought upon his fears, but what he intimated and what he led him by insinuations to believe. He indicated to him that he had committed a crime, that he was in- a bad fix, that Deuser was likely to push the matter to the utmost. Deuser was the terrible fellow, the bogy man in the background threatening to do all kinds of mischief which Ibsen’s morbid imagination might conjure up; he had ta be bought to prevent his filing a complaint. ■

Plowever, even if that were not so, if the jury should have found that the fears excited in Ibsen only related-' to exposure and publicity, still the threat would be within the terms of the statute, included in the words “accuse or' threaten to accuse.” Indeed, it would make little difference to the victim whether the blackmailer' meant to. prefer a formal charge or make the matter public so that officers whose duty it is to enforce the law might do it.One who is so constituted that he may be victimized in that manner sees visions of himself in the toils of the law in-any vague intimation that someone will “tell it to the' police.” . • ¡

Statutes in other states similar to our Section 4532 have been construed to include threats of exposure.- It has been held that “to accuse,” in an indictment charging one with the violation of such a statute, does not mean to make a complaint before a magistrate, but to impute a crime as a means of inducing one to pay money, and includes any public accusation. [Commonwealth v. Andrews, 132 Mass. l. c. 264; Robbins v. Smith, 47 Conn. 182; State v. South, 5 Rich. (S. C.) 489; People v. Braman, 30 Mich. 460.] In the case of State v. Stewart, 90 Mo. l. c. 512, in a prosecution under the blackmail section, the threat was no more definite than here and seemed to involve, mainly “making the matter public.”

III. Appellant’s counsel claim further that his demurrer to the evidence should have been sustained because there was a variance between the allegations -and the proof. Upon this proposition counsel quotes severaj[ passages from the testimony of Ibsen in which he is made to say that when he gave the two. notes described in tbe information, bis only purpose in •giving them to Patterson was to get back tbe statement wbicb be bad signed at Creve Cóeur Lake. This, counsel argued, is a variance from tbe charge, which is .that he gave the notes on account of the threat to accuse him of crime.- There is no variance. The paper which Ibsen signed was held by the defendant as a part of his scheme to extort by threats the notes and money from Risen. It was the instrument which he employed in making-his threat effective.

IY. In the course of the trial-the State introduced a witness, one O. E. Boehlinger, to testify that somowhere near the time of the alleged crime the defendant attempted to extort money from him by the same meaiQS as ^a^ which the information charges was employed to extort it from Ibsen.' Patterson met Boehlinger at the Normandie Hotel and used Butler in the same manner as a decoy, displayed his badge as a detective, and made charges and threats similar to those testified to by Ibsen. This evidence was strenuously objected to by defendant’s counsel on the ground that in the trial of one on a criminal charge, evidence is not admissible to show the commission by defendant of another crime or other crimes for which he might be separately proceeded against. It is true that is the general rule, but there are some well established exceptions to the rule. The classes of cases to which the exceptions are applicable are discussed at length in the exhaustive opinion of this court, speaking through Philips, C., in the case of State v. Myers, 82 Mo. 558. That opinion is aremarkable exposition of-the authorities and the conditions under which such evidence may be admitted. It is cited and quoted as a leading case upon the subject, not only in the later opinions of this court, but in those of many other states. It is unnecessary to burden this opinion with any attempted elucidation of a subject so thoroughly discussed there. In general it may be said that evidence showing crimes, or attempts to commit crimes, of a character like the one charged, is admissible in cases where the charge is obtaining property by false pretenses, embezzlement, forgery, uttering forged notes, receiving stolen property, and in some cases of assault, robbery, larceny, violation of the liquor law, criminal slander, burglary and arson. 'The ground on which the evidence is admitted is that it tends to show the intent with which the' crime charged was committed or attempted. Where the act constituting the crime speaks for itself as showing the intent, or where the criminal intent is presumed from the act itself, such evidence is not admissible; but where different inferences may be drawn regarding, the intent with which the alleged criminal act was done and the-circumstances of the act may be susceptible of an interpretation indicating innocence, then such evidence is admissible. [State v. Flynn, 124 Mo. 480, l. c. 482; State v. Balch, 136 Mo. 103, l. c. 109; State v. Beaucleigh, 92 Mo. 490, l. c. 495; State v. Spray, 174 Mo. 569, l. c. 577-583; State v. Foley, 247 Mo. 607, l. c. 635; State v. Donaldson, 243 Mo. 460, l. c. 475; State v. Wilson, 223 Mo. 156, l. c. 169; State v. Roberts, 201 Mo. 702, l. c. 727; State v. Cox, 264 Mo. 408; State v. Sherman, 264 Mo. 374; State v. Young, 266 Mo. 723.]

The Myers case, 82 Mo. 558, is one where the defendant was indicted for using a trick in making change whereby he attempted to defraud a merchant with whom he was dealing. Evidence that the defendant had made similar attempts with other persons was held admissible. Such evidence shows quo animo the acts were done. Similar acts at other times and places and with other persons would throw light upon the character of the transaction which the defendant attempts to explain as innocent. Where one has engaged in the business of obtaining money by false pretenses or by tricks of one kind or another, and his purpose is shown by repeated acts of the same kind, the principiéis the same so far as the continuing state of mind, the intent of the actor, is concerned, as where he attempts to extort money by blackmail or threats of any kind. There are reported cases identical in fact and principle with this case. In People v. Haver, 4 N. Y. Crim. Rep. 171, on the trial of a defendant in-dieted for blackmail, evidence was held admissible to show that the defendant sent another letter similar to the one which was the basis of the charge in the indictment, although that letter was sent to another person than the complainant. The case of Regina v. Cooper, 3 Cox’s Crim. Cases, 547, is where the defendant was indicted for accusing a person of the same crime as charged in the case at bar with the intent to extort money from the person accused, and it was held that attempts to extort money fjom other persons by such accusations were admissible in evidence.

The court in this case correctly admitted the evidence.

Other errors are assigned and urged upon our attention hut we do not deem them of sufficient importance to require extended discussion.

We discover no.error in the record and the judgment is affirmed.

Roy, G., concurs.

PER CURIAM.

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

All of the judges concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM:

license: Public Domain

text:
    HENRIETTA E. McCARDLE, Appellant, v. GEORGE B. PECK DRY GOODS COMPANY.
    Division Two,
    May 29, 1917.
    1. NEGLIGENCE: Passenger Elevator: Failure to Stop: Evidence of Defective Construction: Instruction. The failure of the elevator to stop at the proper place and the consequent injury of the passenger are evidence of negligence, and it is so strong that it raises a presumption of such negligence on the part of the elevator owner; and hence an instruction for defendant in an action by the injured passenger which tells the jury that there is no evidence that the elevator or its machinery “was defectively or improperly constructed,” is error.

      ■ 2. -:-:-:-: Presumption and Burden. When the , evidence establishes the fact that plaintiff was a passenger on a passenger elevator, that it failed to stop at the proper place and that because of such failure plaintiff was injured, the law then presumes the negligence to consist of some defect in the construction of the elevator or its machinery or in the manner of its operation, and that presumption places on defendant the burden of proving that there was no negligence either in its construction or the operation, and an instruction which relieves defendant of that burden is error.
    3. -: Damages: Mental Suffering Unconnected With Physical Injury. An instruction telling the jury that a passenger “cannot Recover for any fright, terror, alarm, anxiety or distress of mind ■caused by or resulting from the descent of defendant’s passenger elevator if these were unaccompanied by some physical injury” is correct, unless the mental suffering was engendered by circumstances of malice, insult or inhumanity.
    4. -: Passenger Elevator: Standard- of Care. The standard of ; care required of a common carrier of passengers is the utmost care and skill- which prudent men would use and exercise in a like business and under similar circumstances. Consequently an instruction for plaintiff which required only'' “that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances” was erroneous, as was one for defendant which said that “defendant in operating and maintaining said elevator was only required to use that degree of care which a prudent common carrier would exercise under llKe circumstances.”
    Appeal from Jackson Circuit Court. — Now. William O. Thomas, Judge.
    Reversed and remanded.

      Charles M. Howell and Joseph 8. BrooTcs for appellant.
    (1) Defendant in operating the elevator was a common carrier. Cooper v. Realty Coi, 224 Mo. 709; Orcutt v. Century Bldg. Co., 214 Mo. .35; Lee v. Knapp, 155 Mo. 610; Lincoln R. E. & B. Co. v. Becker, 174 Mo. 246. And instruction number 1 given for defendant was erroneous. (2) Defendant as a common carrier was required to exercise the highest practicable .degree of care, caution and diligence which prudent persons would exercise under like circumstances, and instructions numbered 1 and 7 given for defendants were erroneous, in that they required of defendant a lesser degree of care. Stauffer v. Met. St. Ry. Co., 243 Mo. 305-17; Price v. Met. St. Ry. Co., 220 Mo. 435; Briscoe v. Met. St. Ry. Co., 222 Mo. 104. (3) This is a res ipsa loquitur case. • Its nature relieved plaintiff of the necessity of pleading or proving what caused the elevator to drop. The burden was on defendant to explain why it fell. An instruction which put on plaintiff the burden of proving the-cause of the elevator’s falling, or which told the jury there was no evidence of negligence in reference to machinery or elevator, invaded the province of the jury, took from the jury an issue made by the character of the case, and destroyed -the res ipsa loquitur character of the case given plaintiff by the law, put on her the burden of showing negligence, and denied to her the right to have that issue passed upon by'jury. And instruction number 2 given for defendant was error.-Agnew v. Railroad, 178 Mo. App. 119; Hurck v. Railroad, 252 Mo. 39-51; Brown v. Railroad, 256 Mo. 522; Maier v. Railroad, 176 Mo. App. 29; Pattison v. Railroad, 178 Mo. App. 250-263. (4) If physical injury he sustained, recovery can be had for effects of mental shock, fright, scare and terror, and instruction number 8, given for defendant, was erroneous under the evidence. McCardle v. Peck- D. Gr. Co., 191 Mo. App. 263; Shellabarger v. Morris, 115 Mo. 566; Dye v. Railroad, 135 Mo. App. 255; Lowe v. Railroad, 145 Mo. App. 248; Heiberger v. M. & K. Tel. Co., 133 Mo. App. 452. (5) If impact, contact, battery or force from without he applied to the person,-recovery can he had for results of mental shock, fright, terror or scare, with or without physical injury, and instructions 5, 8 and 9 given for defendant were erroneous: Herke v. Railroad, 141 Mo. App. 613; Heiberger v. M. & K. Tel. Co., 133 Mo. App. 451; McCardle v. Peck D. Gr. Co., 191 Mo. App. 263; Shellaharger v. Morris, 115 Mo. App. 566; Hayter v. Railroad, 93 Tex. 239; Railroad v. Roller, 100 Fed. 738; Stewart v. Railroad, 112 La. 765; Hack v. Dady, 142 App. Div. 510, 127 N. Y. S. 122; Jones v. Railroad, 48 N. Y. S. 914; Pankopf v. Hinkley, 141 Wis. 146; Railroad v. Murdock, 116 S. W. 139; Buchanan v. Railroad, 52 N. J. L. 264; Bain v. Kentucky T. & T. Co., 161 Ky. 44; Railroad v. Owen, 156 Ky. 827; Steverman v. Railroad, 205 Mass. 508; Ho-mans v. Railroad, 180 Mass. 456; Megathlin v. Elev. Ry., 220 Mass. 538; Bell v. Railroad, 217 Mass. 408; McCarthy v. Elev. Ry., 223 Mass. 568; Driscoll v. Gaffey, 207 Mass. 102; Conley v. United Drug Co., 218 Mass, 238; Traction Co. v. Lambertson, 36 Atl. 100; Shay v. Railroad, 66 N. J. L. 334; Kennell v. Gershonovitz, 84 N. J. L. 577; Porter v. Railroad, 73 N. j. L. 405; Folk v. Railroad, 99 S. C. 284; Cohn v. Realty Co., 148 N. Y. S. 39; Samarra v. Railroad, 238 Pa. St. 469; O ’Meara v. Russell, 90 Wash. 557; Purcell v. Railroad, 48 Minn. 134. (6) It is not necessary that the physical injury be indicated upon the surface of the body by a bruise or otherwise. Such injury is none the less a physical injury from the fact that it is wholly internal, or that it cannot be designated except by a post-mortem examination, and instructions 5, 8 and 9 given for defendant were erroneous. Shellabarger v. Morris, 115 Mo. App. 566; Dye v. Railroad, 135 Mo. App. 255; Homans v. Railroad, 180 Mass. 456; Steverman v. Railroad, 205 Mass. 508; Cameron v. Tel. & Tel. Co., 182 Mass. 310; Driscoll v. Gaffey, 207 Mass. 102; Bain v. Ky. T. & T. Co., 161 Ky. 44. (7) Where physical injury results from fright, scare, or mental shock caused by the wrongful act or omission of another, the injured party is entitled to recover damages, provided the wrongful act or omission is the proximate cause of the injury, and instruction numbered 8, given for defendant, was erroneous as tested by the evidence in the case. Hayter v. R. R., 93 Tex. 239; Bell v. Railway, 26 C. L. 428; Purcell v. St. Ry. Co., 48 Minn. 135; O’Meara v. Russell, 90 Wash. 557; Sedgwick on Damages,. 640. (8) It is immaterial whether the results of fright, scare and mental shock accompany the accident or flow from it, or .whether nervous shock came through battery or along with it, and instructions 5, 8 and 9, given for defendant, were erroneous. Heiberger v. Telephone Co., 133 Mo. App. 452; Hack v. Dady, 142. App. Div. N. Y. 510, 127 N. Y. S. 122; Steverman v. Railroad, 205 Mass. 508; Homas y. Railroad, 180 Mass. 456; Samarra v. Railroad, 238 Pa. St. 469; O’Meara v.‘ Russell, 156 Pae. 550.

      McCune, Caldwell & Downing and Harold M. Noble for respondent.
    (1) Plaintiff cannot adopt one theory of duty required of defendant, and then complain if the defendant adopts the same theory. Where the plaintiff, out of a superabundance of caution, elects to hold the defendant for want of ordinary care only, instead of the highest practicable degree of care, she cannot then complain if the defendant adopts a theory requiring at least as great a degree of care, but not, possibly, amounting to the highest practicable degree of care. Schofield v. Land Co., 187 S. W. 61; Stevens v. Crane, 116 Mo. 408; Phelps v. Salisbury, 161 Mo. 1; Honea v. Railroad, 245 Mo. 621; Allen v. Forsehler, 189 S. W. 636; Horgan v. Brady, 155 Mo. 659. (2) Instruction number 7 is a correct statement of the law, as the defendant is not liable if the jury finds that there is no negligence on its part, and that the injury was occasioned by unavoidable accident, or by some cause which human precaution and foresight could not have averted. Clark v. Railroad, 127 Mo. 197; Briscoe v. Railroad, 222 Mo. 104; Zeis v. Brewing Assn., 205 Mo. 638; United States v. Railway, 189 Fed. 471; Steamship Co. v. Steamship Co., 24 How. 307. (3) Under the res ipsa loquitur doctrine, the' sole inference or presumption is that there was some negligence at the very time of the alleged accident, and that alone. Accordingly, the court committed no error in instructing the jury that there was no evidence that this elevator, constructed twenty-throe years before, and shown to have been changed a number of times since then, was defectively or improperly constructed, as this clearly refers to the initial construction. Moorhead v. Railroad, 17 Ohio, 340; In re Howet't, 10 Pa. 379; Fugate v. Miller, 109 Mo. 281. (4) The plaintiff cannot recover for any fright, terror, alarm, anxiety or distress of mind caused by or resulting from the descent of defendant’s elevator if these were unaccompanied by some physical injury, nor for physical injuries that may be caused solely by such mental disturbance. Further, the burden is upon the plaintiff to show that she received a physical injury of some hind at the time of the alleged accident. Accordingly, defendant’s instructions 5, 8 and 9 were correct and proper. Crutcher v. Railroad, 132 Mo. App. 311; Smith v. Pullman Co., 138 Mo. App. 245; Trigg v. Railway, 74 Mo. 147; Dalzell v. Hotel Co., 191 Mo. App. 379; Stout v. Kansas City Terminal, 172 Mo. App. 113; Connell v. Tel. Co., 116. Mo. 34; Railway Commrs. v. Coaitas, 13 App. Cas. 222; Spade v. Railroad, 168 Mass. 285; Traction Co. v. Bain, 161 Ky. 44; Haile v. Railway, 60 Fed. 557; Railway v. Liebig, 79 111. App-. 567;; Railway v. Ray, 167 Ind. 236; Mahoney v. Danhwart, 108 Iowa, 321; Morris v. Railroad, '228 Pa. 198; Miller v. Railroad, 78 Ohio St. 309; Mitchell v. Railway Co., 151 N. Y. 101, 34 L. R. A. 781; Tiller v. Railway, 189 Fed. 994; Kyle v. Railroad, 182 Fed. 613; Railway v. Bragg, 69 Ark. 402; Braun v. Craven, 175 111. 401, 42 L. R. A. 199; Wyman v. Leavitt, 71 Me. 227; Nelson v. Crawford, 122 Mich. 466; Ward v. Railroad, 64 N; J. L. 383; .Johnson v. Wells Fargo Co., 6 Nev. 224; Chuttick v. Transit Co., 224 Pa. 13; Norris v. Railway, 84 S. C. 15; Railway v. Trott, 86 Tex. 412.
   ROY, C.

Plaintiff sued for $20,000 as damages for alleged personal injuries caused by the fall of a -pássenger elevator in defendant’s department store in Kansas City in which the plaintiff was at the time a passenger. There was a verdict and judgment for the defendant, and the plaintiff has appealed. ' ’ ■

A previous suit' by the plaintiff’s husband against the same defendant for damages for loss of services' of the wife by reason of said alleged injuries is reported in' 191 Mo. App. 263.

It is sufficient for the purposes of this case to say that the evidence tends to show that on December 26,1911, said elevator, filled with passengers, including the plaintiff, on its way from the second to the first floor, could not be stopped, for some unknown reason, at the first floor; but passed on down to the bottom of the shaft in the basement, striking the bottom with a thud; that one or more of the passengers screamed; that no note was then taken of any physical injury to any of them; that plaintiff left the building without complaining of any physical injury, and that evening called up Mr.. Conkey, defendant’s superintendent, and said to him: “I don’t know that I am hurt, hut your elevator fell, and I thought you should know it.”

The evidence also tends to show that immediately after such falling of the elevator the plaintiff was suffering from a severe nervous shock, and that about two days thereafter there was blood in her urine, and. that she continued in a very nervous condition, losing at times, for considerable periods, all self-control, suffering greatly from pains in her' body.

Plaintiff’s third instruction was as follows:

“The term negligence as. used in these instructions means a failure to exercise ordinary care. Ordinary care is that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances. ’ ’

Among defendant’s instructions were the following:

“1. The court instructs the jury that the defendant did not undertake to insure or absolutely guarantee the safety of the plaintiff; that the defendant was not hound to have its passenger elevator and machinery absolutely safe, nor did the law require the defendant to adopt every. precaution to prevent plaintiff from being injured, and the defendant in operating and maintaining said elevator, was only required to use that degree of care which a prudent common carrier would exercise under like circumstances. .
“2. The court instructs the jury that there is no evidence in this case tending to show that any part of the elevator in which plaintiff was riding or any part of the elevator machinery connected therewith was defectively or improperly constructed.”
“8.' You are-instructed that the plaintiff cannot recover for any fright, terror,- alarm, anxiety or distress of mind caused by or resulting from the descent of defendant’s elevator if these were unaccompanied by some physical injury.
“ You. are further instructed that if you believe from the evidence that plaintiff’s present condition is the result of a fright or scare only, then plaintiff cannot recover in this case.”

I. The second instruction for the defendant was error. It told the jury that there was no evidence that the elevator or its machinery “was defectively improperly constructed. ’ ’

Orcutt v. Century Building Co., 201 Mo. 424, was a suit for damages for an injury suffered by one who was being carried in a passenger elevator. It was there held that a corporation running such an elevator is a carrier of passengers the same as the operator of a stage coach or a railroad. It was also there said:

“Defendants by this instruction placed upon the plaintiff the burden of showing the cause of the accident, whereas in such cases it is sufficient to show the accident and the attendant circumstances and conditions, when negligence will be presumed, and thereupon the burden is shifted to defendant to show that there was no negligence in the operation and construction of the elevator.”

A long list of cases is there cited. It follows .that when it is shown that a passenger is injured by such failure of the elevator car to stop at the proper place, such fact is evidence of negligence, and it is so strong that it raises a presumption of such negligence on the part of the owner of the car. The law does not undertake to say at what point such negligence occurred, but it does say that it is presumed to be in permitting the existence of some defect in the construction of the car or its machinery, or some fault in the manner of its operation. That presumption throws on the defendant the burden of proving “that there was no negligence in the operation and construction of the elevator.” The glaring error of that instruction will appear when attention is called to the fact that defendant was just as much entitled to an.instruction saying that there was no evidence of negligence in the operation of the car. If defendant was entitled to one, it was entitled to both, and that would clearly mean that it was entitled to have a demurrer to the evidence . sustained; and the firmly established doctrine of res ipsa loquitur would he repudiated in this case. The presumption that there was negligence in permitting the existence of some defect in the construction of the car can not he met and overcome by an instruction, but it must he overcome by evidence.

The respondent’s brief contains this language:

“Under the res ipsa loquitur doctrine, the sole infer-’ ence or presumption is that there was some negligence at the very time of the alleged accident, and that alone. Accordingly, the court committed no error in instructing the jury that there was no evidence that this elevator, constructed twenty-three years before, and shown to have been changed a number-of times since then, was defectively or improperly constructed, as this clearly refers to the initial construction.”

In answer to that we say that instructions, are supposed to be written in plain, non-technical language for the comprehension of laymen, the jury. We have no doubt that the instruction was understood by the jury to refer to the condition of the car as it was at the time of the occurrence in question. Even if the instruction has the meaning which respondent now seeks to give it, it was error.

Prom the fact that the elevator could not he controlled, or was not controlled, the law presumes negligence. It is presumed that such negligence consisted in the fact that some defect in the original construction was allowed to continue, or that some later defect appeared and was not corrected, or that there was fault in the operation of the car. The burden of covering that whole ground with evidence to refute the presumption rested upon the defendant, and it was not entitled to substitute such an instruction in the place of evidence. We do not mean that it was necessary for the defendant to furnish evidence as to the construction of the car many years before the time in question, hut it was necessary for it to show that there was no defect at the latter time, and that showing would refute the idea that there-were any defects in the car still remaining from the first construction or that there were any which had subsequently appeared.

II. The first paragraph of the eighth instruction for the defendant which told the jury, in effect, that the defendant. is not responsible for mental suffering plaintiff unless it was accompanied by physical injury is correct. The rule in this State was laid down in Trigg v. Railroad, 74 Mo. 147, ■thus: “The general rule is that ‘pain of mind, when con-' nected with bodily injury, is- the subject of damages; but it must be so connected in order to be included in the es-túnate', unless the injury is accompanied by circumstances of malice, insult or inhumanity. ’ ”

That case is followed in Connell v. Western Union Tel. Co., 116 Mo. 34; Spohn v. Railway, 116 Mo. 617; Schmitz v. Railway, 119 Mo. 256; Crutcher v. Railroad, 132 Mo. App. 311; Smith v. Pullman Co., 138 Mo. App. 238.

III. The second paragraph of that instruction which told the jury that if the then present condition of the' plaintiff was the “result of fright or scare only” the plaintiff could not recover, is a'necessary result of the rule above laid down. If the defendant is not responsible- for the mental shock and suffering of plaintiff in the absence' of accompanying physical injury, it is not responsible for physical injury caused by such mental shock and suffering.

Spade v. Railroad, 168 Mass. 285, was like this in all material respects- It was there said:

“Not'only the transportation of passengers and the running of trains, but the general conduct of business and' of the ordinary affairs of life, must be done on the assumption that persons who are liable to be affected thereby are not peculiarly sensitive, and are of ordinary physical and mental strength. If, for example, a traveler is sick or infirm, delicate in health, specially nervous or emotional, liable to be upset by slight causes, and therefore requiring precautions which are not usual or practicable for travelers in general, notice should he given, so that, if reasonably practicable, arrangements may he made accordingly, and extra care he' observed. But, as a general rule, a carrier of passengers is not hound to anticipate or to guard against an injurious result which would only happen to a person of peculiar sensitiveness. This limitation of liability for injury of another description is intimated in Allsop v. Allsop, 5 H. & N. 534, 538, 539. One may he held hound to anticipate and guard against the probable consequences to ordinary people, hut to carry the rule of damages further imposes an undue measure of responsibility upon those who are guilty only of unintentional negligence. The general rule limiting damages in such a case to the natural and probable consequences of the acts done is of wide application, and has often been expressed and applied.”

It was also there said:

“The law of negligence in its special application, to cases of accident has received great development in recent-years. The number of actions brought is very great.. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can he no recovery for .fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and if this rule is to stand, we think it should also be held that there can he no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no Injury to the person from without. The logical vindication of this rule Is, that it is unreasonable to hold persons who are merely negligent hound to anticipate and guard against fright and the consequences of fright; and that this would open a wide door for unjust claims, which could not successfully he met. These views are supported by the following decisions: Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222; Mitchell v. Rochester Railway, 151 N. Y. 107; Ewing v. Pittsburg, Cincinnati, Chicago & St. Louis Railway, 147 Pa. St. 40; Haile v. Texas & Pacific Railway, 60 Fed. 557.
“In the following cases a different view was taken: Bell v. Great Northern Railway, 26 L. R. (Ir.) 428; Purcell v. St. Paul City Railway, 48 Minn. 134; Fitzpatrick v. Great Western Railway, 12 U. C. Q. B. 645. See also Beven, Negligence, 77 et seq.”

The rule and the reason therefor as laid down by the Massachusetts courts is supported by sound reason and by far the greater weight of authority, and we follow it.

IY. Appellant calls attention to defendant’s first instruction, which told the jury that the defendant “was only required to use that degree of care which a Pradent common carrier would exercise under like circumstances,” and insists that such instruction requires too low a degree of care on the part of defendant.

The respondent calls attention to plaintiff’s third instruction which only required “that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances,” and insists that the appellant is bound by the theory of her own instruction, and cannot object to that same theory when it appears in the instruction for the opposite party.

We will not say whether the theories in those two instructions are exactly the same, but we do say that they are both wrong. The standard of care required of a common carrier of passengers is well stated in Jackson v. Railway, 118 Mo. 199, 1. c. 224, thus: “The utmost care and skill which prudent men would use and exercise in a like business and under similar circumstances.” Almost that identical language is used in Magrane v. Railway, 183 Mo. 119, and in Redmon v. Railroad, 185 Mo. 1.

The judgment is reversed and the cause is remanded.

White, C., concurs.

PER CURIAM:

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

Faris, J., concurs; Williams and Walker, JJ., concur in paragraphs 1, 2, 4 and result.


author: BLAIR, J. GRAVES, C. J. WOODSON, J.

text:
    THE STATE ex rel. JACK EDWARDS v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    June 1, 1917.
    .1. LOCAL OPTION ELECTION: Valid on Face: Subsequent Election Within Four Years. The record of the county court showing on its face a valid local option election held in 1912, at which the Local Option Law was not adopted, is a complete bar to á prosecution for a violation of the Local Option Law adopted in 1913; for, if the record on its face shows a valid election held in 1912, the county court had no authority to call another election within four years, and will not be presumed, in face of such a record, to have acted within its jurisdiction in doing so.
    2. -: -. -: Jurisdiction. No election can be held unless provided for by law, and a local option election held within four years of another valid election is absolutely void and has no greater force than no election at all; and where the record of the county court discloses a judgment which on its face establishes a valid local option election held in 1912, it discloses a. lack of jurisdiction in the county court to call another election held in 1913.

      Held, by WOODSON, J., dissenting, that as the Constitution declares that “in each county there shall be a county court, which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law” and the Legislature has conferred upon said court original, general and exclusive jurisdiction over local option elections in the county, its ■ judgments in such election proceedings are entitled to the same weight and verity as are those of a circuit court, and cannot be attacked and impeached in a collateral proceeding; and the election held in 1913 cannot be held invalid on the sole ground that the county court record shows on its face that a valid election was held in 1912, for where jurisdiction depends upon the existence or non-existence of a fact, the law presumes, from tbe mere fact that the court assumed jurisdiction to order an election in 1913, that the court found the non-existence of the fact necessary to confer jurisdiction in 1912, and further presumes from that fact that the election in 1912 haa been set aside or nullified.
    3. -: Invalidity Established by Contest. If there was' a valid local option election held in 1912, the county court had no jurisdiction to call another election in 1913, and its order calling it, and the election itself held in pursuance thereto, were void, and it is not necessary to resort to a contest proceeding to have it declared void, hut the point of its invalidity may he raised in a prosecution for a violation of the Local Option Law alleged to have been adopted in 1913.
    Certiorari.

      Boy W. Bucher for relator.

      Boy W. Bucher for relator.
    (1) The local option election of 1913 wás void because ordered at a time not authorized by the statute. Ex parte Lucas, 160 Mo. 280; State ex rel. v. Patterson, 207 Mo. 146 ;.Miller v. Staggs, 181 S. W. 116; State ex rel. v. Jenkins, 43 Mo. 261. (2) When a court of inferior jurisdiction is acting under special statutory directions, such directions must be strictly observed, and. all juris-, dictional facts must affirmatively appear on the face of the record before such court acquires jurisdiction of the subject-matter. State v. Metzger,'26 Mo. 65; Sturgeon v. Hampton, 88 Mo. 203; Gibson v. Vaughan, 61 Mo. 420; Rohland v. Railroad, 89 Mo. 182; State ex rel. v. Harris, 96 Mo. 37; Butler v. Sullivan County, 108 Mo. 637; Young v. Downey, 145 Mo. 260; Sutton v. Cole, 155 Mo. 213; Langston v. Canterbury, 173 Mo. 131; Doddridge v. Patterson, 222 Mo. 155.

      Boy B. McKittrich and John D. Taylor for respondent.
    (1) This court will pass upon the one question, i. e., does the opinion of the Court of Appeals conflict with the last controlling decisions of this court. State ex rel. v. Ellison, 181 S. W. 998. (2) The opinion of the Court of Appeals is in all particulars in harmony with the •controlling opinions of this court, (a) The statutory remedy of contest is exclusive. State ex rel. v. Ross, 245 Mo. 45; State ex rel. v. Carter, 257 Mo. 56. (b) On the question of collateral attack of the judgment of the county court in calling the election of 1913. Lingo v. Burford, 112 Mo. 155; Lumber Co. v. Carroll, 255 Mo.. 367; State ex rel. v. Evans, 240 Mo. 105; Tie & Lumber Co. v. Pulliam, 237 Mo. 19; State ex rel. v. Taylor, 244 Mo. 261; State ex rel. v. Wilson, 216 Mo. 274; Shivley v. Lankford, 174 Mo 5'47. (3) The following authorities sustain the opinion of the Kansas City Court of Appeals rendered in State v. Edwards, and. are in harmony with the controlling decisions of this court, (a) The county court acquired jurisdiction to call the election held on June 7,1913, upon the filing of a legal petition praying for the holding of a local option election. State v. Gamma, 149 Mo. App. 704; State v. McCord, 207 Mo. 526; State ex rel. v. Weeks, 38 Mo. App. 573; State ex' rel. v. Bird, 108 Mo App. 163; State v. McCord, 124 Mo. App.-63. (b) The acts of the county court in passing upon the sufficiency of the local option petition and in making orders subsequent thereto in calling a local option election are judicial in their nature, and the court having acquired jurisdiction by the filing of petition, the orders of the court have the effect of a judgment. State v. Gamma, 149 Mo. App. 704. And the orders or judgment so made are' ■not subject to collateral attack. State ex rel. v. Wilson, 216 Mo. 215; Deslodge v. Tucker, 196 Mo. 601; School District v. Chappel, 155 Mo. App. 498; Smith v. Young, 136 Mo. App. 65. (c) Sec. 7238,-R. S. 1909, confers'yurisdiction on county courts to call.local option elections upon the filing of a lawful petition, and section 7244 does not deprive the court of that jurisdiction, but is merely a limitation of the jurisdiction of the county court, and an order submitting a local option election in conflict with that section, is not void but merely voidable. Smith v. Black, 231 Mo. 681; 17 Am. & Eng. Ency. Law (2 Ed.), 1042-1048. And the fact that no appeal will lie, does not change this rule. State v. Schelkel, 129 Mo. App. 240. (d) By the amendment of 1909, Section 7242 of the Local Option Law provides an adequate remedy of contest, and this remedy is exclusive, and every question, touching the legality and validity of the election from the filing of the petition, and its sufficiency, to the publication of results can be reached thereby. Sec. 7242, R. S. 1909; State ex rel. v. Ross, 161 Mo. App. 682; State ex rel. v. Ross, 245 Mo. 45; State ex rel. v. Carter, 257 Mo. 56;. Young v. Commonwealth, 77 Ky. 161; Longmeyer v. State, 171 S. W.1165; Rhodes v. State, 172 S. W. 252; Moffitt v. People, 149 Pac. 104. (e) One on trial for violating the Local Option Law cannot attack the validity of the proceedings for the local option election or the result thereof by a special plea or otherwise. Black on Intoxicating Liquors, sec. 103; State vMcCord, 207 Mo. 527; Woodward v. State, 103 G-a. 496; Young v. Commonwealth, 77 Ky. 161; Fi'ke v. State, 25 Ohio C. C. 554; Longmeyer v. State, 171 S. W. 1165; Rhodes v. State, 172 S. W. 252; Moffitt v. People, 149 Pac. 104.
   BLAIR, J.

Relator was prosecuted and convicted in the. Chariton Cireuit Court for violation of the Local Option Law. He appealed to the Kansas City Court of Appeals, which affirmed the judgment (State v. Edwards, 192 Mo. App. 413), whereupon relator sued out-this writ of certiorari, which brings here the record of that court. The question presented is whether the decision and opinion of the Court of Appeals conflict with decisions of this court.

It appears from the opinion that the record on appeal disclosed that on the trial of relator in the Chariton Circuit Court the State offered record evidence showing an election had been held in Chariton County .on June 7,1913, and this record on its face ‘ and considered by itself . shows that a valid election was held in said county on June 7, 1913, at which the county declared for prohibition, and that the same was duly put in force by proper notice.” The opinion also states defendant “offered in evidence a record of the county court pertaining to an alleged local option election held on March 18,1912, resulting in the defeat of prohibition by a majority of 99.” The court then states that appellant (relator here) contended the election of June 7, 1913, was a nullity because “held within four years after the first election, in violation of Section 7244, Revised Statutes 1909;” that with respect “to the first election defendant offered nothing except the county court record; and made no attempt to show that the validity of said first election, as established by said first record, had remained unimpeached down to the time of the ordering of the second.” This sufficiently epitomizes the facts forming the basis, of the decision of the Court of Appeals.

Upon these facts that court held, seriatim: (1) that the acts of the county court in entertaining a petition for a local option election, in determining the sufficiency of the petition and the qualifications of the petitioners, and in calling a local option election, are judicial in their nature, and the record of the county court made therein partakes of the nature of a judgment; (2) that the orders or judgment so made are not open to collateral attack; (3) that jurisdiction of the county court over the subject-matter of local option elections is conferred by Section 7238, Revised Statutes 1909, and “the presentation of a petition properly signed calls the court’s jurisdiction in the particular case into action or exercise”; (4) that if a valid local option election had been held within four years prior to the filing of the petition for the election on June 7,1913, it was the county court’s duty, under Section 7244, Revised Statutes 1909, to decline to call the election, but the court’s jurisdiction over the subject-matter was not destroyed; that “its power to call the election was merely dependent upon the fact whether a valid election had been held within four years;” that “Section 7244 means a valid election ; for a void election is no election and cannot prevent a subsequent one; hence the act of the county court in calling the election of June, 1913, was not void for want of jurisdiction but only voidable, in case the former election was valid.” The court then held that the distinction between jurisdiction of the subject-matter and the exercise of jurisdiction in a particular proceeding is “the difference. between a wrongful execution of power to hear and determine . . . and a lack of power to hear the matter at all.” It then held that “the act of the county court in calling the' election of June, 1913, was an exercise of the jurisdiction it had over the subject-matter of local option elections,” and was not subject to collateral attack. It concluded that “the existence of the first judgment of the county court, which on its face establishes an election held in March, 1912, does not change the situation. The presumption is that the county court heard and acted upon the petition in entire accordance with the law and made the second order in obedience thereto and in accordance with its duty, and that since the first election something must have happened which allowed the court to grant the second petition without violating Section 7244. For while the rule is that there is no presumption in favor of the jurisdiction of courts of special and limited jurisdiction, thát rule applies only to their jurisdiction over the subject-matter.” The court further concluded (1) that the election of June, 1913, was only voidable and not open to the attack made; and (2) that the remedy by contest was exclusive. If either of these conclusions is correct, the judgment of affirmance was correct.

I. Section 7238, Revised Statutes 1909, requires the county court of any county upon the reception of a petition signed by ten per cent of the qualified voters living outside of cities of 2,500 inhabitants to order an election to determine whether intoxicants may be sold thereafter in the territory affected. Restrictions as to the time when such an election may be held are prescribed.

Section 7244, which almost exactly in its present form constituted a part of the original Local Option Act (Laws 1887, p. 182, sec. 7), reads as follows:

“Whenever the election in this article provided for has been held, and decided either for or against the sale of intoxicating liquors, then the question shall not be again submitted within four years next thereafter in the same county or city, as the case may be, and then only on a new petition and in every respect conforming to the provisions of this article.”

Relator contends that in holding that though the record of the county court showed an election, valid' on the face of that record, had been held in 1912, yet that court could call another election within four years and that it would be presumed to have acted within its jurisdiction in doing so, the Court of Appeals brought its decision into conflict with decisions of this court. It is the law of this State that “no election can be held unless provided for by law” (State ex rel. v. Jenkins, 43 Mo. l. c. 265), and it is also the law, announced by the St. Louis Court of Appeals (In re Wooldridge, 30 Mo. App. 1. c. 618), and subsequently approved by this court (Ex parte Lucas, 160 Mo. l. c. 280), that a local option election held in a city of oyer twenty-five hundred inhabitants within forty days of a municipal election is absolutely void and “has no greater force than no election at all.” In such case this court has declared that an election not held within the proper time was void “because the courts were acting outside and beyond their respective jurisdictions, and consequently their orders were null and void. ’ ’ The Wooldridge case is one of those referred to. This court added (State ex rel. v. Patterson, 207 Mo. l. c. 147): “This is true for the reason that a court of limited jurisdiction, and inferior courts not proceeding according to the course of the common law, are confined strictly to the authority given; and the records of such courts must show the existence of all facts necessary to give jurisdiction.”

In this case the record of the county court, according to the Court of Appeals, discloses a “judgment . which on its face establishes an election held in March, 1912.” In our opinion, this appearing, the record discloses lack of jursidiction to call the election in 1913. Let it be conceded, as the opinion of the Court of Appeals states, that “the rule that there is no presumption in favor of the jurisdiction, .... applies only to their jurisdiction over the subject-matter.” Nevertheless, when the court said that that “jurisdiction over the subject-matter,” in every instance, is conferred upon the county court to call an election under the Local Option Law by the filing of a petition sufficient under Section 7238, Revised Statutes 1909, it brought its opinion into conflict with the decisions of this court already cited.

County courts have no inherent authority to call local option elections. Their jurisdiction is derived solely from the statute. Section 7238 authorizes, generally, the calling of an election, and Section 7244 specifically prohibits its being called during a named period. The court has no more jurisdiction to call such an election during a period covered by Section 7244 than it would have to call one if there were no Section 7238. Section 7244 is as much a limitation upon Section 7238 as if it had been incorporated therein. It is as much a limitation as the provision that no local option election shall he held within forty days of a municipal or other election. It is a direct negation of the power and jurisdiction of the county court to act in the circumstances named and, in this case, those circumstances appear from the record of the county court and from the opinion of the Court of Appeals. The Court of Appeals proceeds mpon the theory that the case made showed a valid election in 1912. That being true, it showed the condition which brings into operation Section 7244, and that section, when brought into operation, simply negatives the power, and jurisdiction of the county court to call another election until the lapse of the specified period. Counsel say that the filing of the petition in 1913 gave the county court jurisdiction, and then argue that its subsequent acts are not subject to collateral attack.. The trouble with this contention is that it begins by begging the only question involved on this branch of the case. The question is, on the facts stated by the Court of Appeals, simply whether the county court within four years after one local option election has jurisdiction to call another. The eases holding that all acts of the county court after it acquires jurisdiction, are usually presumed to he properly performed and are voidable only in a direct proceeding, are beside the question here. The cases cited (see briefs) which hold that the county court gets jurisdiction of local option election proceedings upon the filing of a petition under Section 7238 are all cases in which no question of a previous election was involved, and, of course, in such circumstances, Section 7238 was the only applicable section.

Our conclusion on this question is that the Court of Appeals decision that though the ease made showed a valid local option election in 1912, yet the county court had jurisdiction, despite Section 7244, to call another election, conflicts with the decisions already mentioned.

We are of the opinion that the failure of the record of the county court to show an election within four" years prior to the filing of a petition for an election under the Local Option Act automatically becomes a part of the record of the proceeding and that the fact no such election has been held in four years sufficiently appears, when it exists, from the record itself without any additional special showing made or finding entered at the time. On the other hand, when the record shows such valid prior election within four years it deprives the court of all jurisdiction to act in calling another election, and presumptions cannot he invoked to aid the proceeding. The decisions to the effect that the filing of the petition confers jurisdiction of the subject-matter are well enough when the court has power to act and, in such circumstances, the orders and judgment made are not open to collateral attack, but these decisions are not applicable to the facts of this case any more than they were to those involved in In re Wooldridge, supra. The principle announced in that case is adopted and re-announced in decisions of this court.

]I. Another ground of affirmance set forth in the opinion of the Court of Appeals is that the Legislature has provided a method of contesting local option elections, and that this procedure is exclusive, and, consequently, relator’s attack upon the election of June 7,1913, cannot be heard. State ex rel. v. Ross, 161 Mo. App. 671; State ex rel. v. Ross, 245 Mo. 36; State ex rel. v. Carter, 257 Mo. 52, are cited. This view must proceed on the hypothesis that the election of 1912 was valid. The cases cited do not go the length of holding that a contest must be instituted to determine the validity of an election when, in the eyes of the law, no election has been held. Within four years after one local option election has been held, the county court has no more right or power to call another than has the probate court or a justice of the peace. It has no more power to call such an election than it would have to call a special election for Governor. .Can it be that when there has been no jurisdiction to call an election and, therefore, no election has been held, so far as its legal effect is concerned, one must nevertheless bring a contest proceeding or be barred from showing there was no election? "We do not regard the cases cited as supporting such a conclusion, and we think that conclusion out of harmony with decisions announcing principles, as we have concluded, requiring the conclusion that a local option election held within four years of another valid election is no election at all. It may be the first election was, itself, invalid. That question is not involved in this proceeding. If it was so, it could not suspend the power of the county court to act. The record of the Court of Appeals is quashed.

Graves, G. J., Faris and Williams, JJ., concur. Graves, G. J., in separate opinion: Walicer, J., dissents; Woodson, J., dissents in opinion filed; Bond, J., not sitting.

GRAVES, C. J.

(concurring)'. — My views go somewhat further than those expressed by our learned Brother Biaib. I concur with him in much that he says so far as he goes, but he has written cautiously.

It' is sound doctrine in this State that the jurisdictional facts in the county court must appear somewhere upon the face of the record. In other words, the record must bespeak jurisdiction. We do not mean by this that any particular portion of the record must show the jurisdictional facts; but we do mean that such jurisdictional facts must appear somewhere in the record. A citation of authority upon this well-settled rule would be useless.

Now, as is well said by the principal opinion, Section 7244, Revised Statutes 1909, must be read with the section of the statute conferring jurisdiction upon county courts in these matters. When so read it creates an exception to the general grant of jurisdiction in Section 7238, Revised Statutes 1909. With this exception as to jurisdiction written in the very law, the record of the county court in this particular election should show that no valid election had been held upon the question within four years, and without such showing (from the record) there is a failure to show a necessary jurisdictional fact. The petition-might have negatived the fact, and thus have conferred jurisdiction, or the order of the court might have found the fact, and thus have saved the jurisdiction, but the record here (as to the 1913 election) is silent on this jurisdictional fact. Its silence precludes jurisdiction, when the law says the record must bespeak jurisdiction. A petition which does not aver that no previous election has been held within four years is fatally defective, and unless this deficiency is cured by other portions of the record (and it is not in this case), the record fails to show the pre-requisite jurisdictional facts. On the face of the very record in the 1913 proceeding the order was void for want of jurisdiction.

Where there has been no valid order for an election, or where the order and records fail to disclose jurisdiction in the court to order an election, it can be attacked collaterally, and no one is bound to contest such void election, to have its nullity declared.

WOODSON, J.

(dissenting). — County courts are created by Section 36 of Article 6 of the Constitution and are declared to be courts of record.

That section reads: “In each county there shall be a County Court which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law.” ’

From this section it is seen that the County Court of Chariton County is a court of record, and has jurisdiction to transact not only the county business, but also such other business as may be prescribed by law; and it is conceded that the Legislature has conferred upon that court original, general and exclusive jurisdiction over local option elections.

Prom this, it must follow, it seems to me, as a self-evident truth, as' held by all ,of the authorities, since the, adoption of the Constitution of 1875, that the judgments of a county court, when acting within the scope of its general authority, are entitled to the same weight and verity as are those of a circuit court, and cannot be attacked and impeached in a collateral proceeding. [McKenzie v. Donnell, 151 Mo. 431; State ex rel. v. Wilson, 216 Mo. 215.] The same is true of probate courts. [Johnson v. Beazley, 65 Mo. 250; State ex rel. v. King, 76 Mo. 510; Henry v. McKerlie, 78 Mo. 416, l. c. 429, 430; State v. Daniels, 66 Mo. l. c. 205; McKenzie v. Donnell, 151 Mo. l. c. 450; In re Estate of Jarboe v. Jarboe, 227 Mo. 59, l. c. 99; Desloge v. Tucker, 196 Mo. 589, l. c. 601; Ancell v. Bridge Co., 223 Mo. 209, l. c. 227; Cox v. Boyce, 152 Mo. 577, l. c. 584; Rogers v. Johnson, 125 Mo. 202, l. c. 213.]

The foregoing legal propositions being uncontrovertible, if applied to the facts of this case it seems to me that there is no escape from the conclusion that the majority opinion holding that the election held on June 7, 1913, is void, is clearly erroneous.

Concede, which we niust, for the records show that a previous local option election had been held in that county on March 18, 1912, which was within four years previous to the one mentioned and held on June 7, 1913, the same being within the period prohibited by statute, that is, the statute expressly prohibits a local option election from being held within a period of four years after a previous one has been held in the same county, then how stands the case? According to the plain letter of the statute mentioned, the election held on June 7, 1913, was invalid, and is of no force or effect, if the election held on March 18, 1912, was valid; that cannot be questioned. But upon that showing the real question is, which one of the two elections mentioned is valid? Here are two judgments of the county court, one adjudging that a local option election had been held in Chariton County on March 18, 1912, and the other that a similar election had been held therein on June 7,1913. As previously stated, under the statute mentioned, both of those things cannot bo legally true, so we must look at the whole record and see which is legally correct.

The majority opinion, after viewing the record, holds that the second election is void because the first judgment discloses a similar election had been held within the prohibited period and that it must therefore be void, because the county court had no jurisdiction to order the second election to be held.

In my opinion, that argument is more plausible than sound, for the reason that the apparent conflict between the two judgments may be fully and rationally explained upon legal grounds, provided the last election should be held valid, but not the first. I say this for the reason that if it was legally possible for the first election to have been null and void for any reason and was in fact void-then unquestionably the second election would not have been prohibited by said statute for the obvious reason that the statute refers to a valid and not a void election. Let me illustrate the idea I have in mind. Suppose the county court had ordered the first election held without a petition having been signed or filed asking for the same, as required by statute, and that it had been ordered and held and the court had declared the election carried, and suppose further that shortly thereafter the validity of the record and judgment of the county court declaring the election carried and that local option was in force in that county, had been properly brought to this court by writ of certiorari, and that this court had found the election void for lack of the petition, and had held that said court had no jurisdiction on that account to order the election, and for that reason had quashed the record of the same; could it then be seriously contended that the county court would not have had jurisdiction to order the second election? Certainly not, for the reason that said pretended election of March 18, 1912, would have been absolutely null and void; in fact, no election at all, an empty form, and would therefore have constituted no bar to holding a second election within the said four years.

Not only the foregoing might be true, but the first election might have been void for numerous other reasons not here necessary to state, which likewise would not have constituted a bar to the second election.

This proceeds upon the theory that' where the law requires a court, even one of limited and inferior jurisdiction, not proceeding according to the common law, but according to a constitutional provision or statutory enactment, to find the existence or non-existence of jurisdictional facts, as the case may be, the law will presume from the mere fact that the court assumed jurisdiction of the cause, that it found the existence or non-existence of the facts conferring jurisdiction over the cause. [State ex rel. v. Wilson, supra.]

That presumption is abiding and conclusive until the jurisdictional facts are fully and completely disproven.

If that was not true,'' then the solemn judgment of a circuit court rendered upon a promissory note, after a previous judgment thereon had for good cause been set aside, could be impeached and nullified by simply introducing in evidence the previous judgment, which as a matter of fact had been set aside.

The law in that ease, as in the one at bar, presumes that the former judgment had been set aside or nullified and for naught held, before the second judgment was rendered.

In other words, in the absence of any showing to the contrary,, the law presumes the county court, which had original and exclusive jurisdiction of local option elections, investigated the, jurisdictional facts and found the first election void, and correctly ordered the second election to be held because the former was no bar to the latter. But it may be argued that the county court has no authority to pass upon the validity of a local option election. In a strict legal sense that may be true, but where from the face of the record it clearly appears that the county court acquired no jurisdiction of the particular cause and for that reason, and perhaps for any other so appearing, the judgment was absolutely void, then upon the most fundamental principles of law that judgment may be completely ignored or attacked in a collateral proceeding.

For the reasons stated I dissent from the majority opinion.