author:
WALKER, C. J.
     WOODSON, J.

text:
    THE STATE ex rel. FORD et al. v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    April 30, 1921.
    1. CERTIORARI TO COURT OF APPEALS: Conflict of Opinions: Scope of Review. On certiorari to review an opinion of a Court of Appeals as being in conflict with a controlling decision of the Supreme Court, the question of conflict is to be determined from the opinion of the Court of Appeals; and correlative facts on which the Court of Appeals based its ruling are referred to only as aids in more clearly understanding the court’s conclusions. (Woodson, J., dissenting.)
    2. —:—: -: Public Improvements: Contract and Bond: Conformity to Ordinance. A contract for constructing certain sewers required that the work should be begun within ten days after the contract became binding and should be prosecuted regularly and uninterruptedly with such force ’ as to secure its full completion within ninety - working days from the date of its confirmation, the time of beginning, rate of progress and time of completion being essential conditions of the contract. Compliance with this contract was secured by a bond whereby the surety agreed with the city that the contractor would well and faithfully perform the contract, the surety not being liable beyond a sum stated equal to the estimated cost of materials used and labor done on the work, and that if the work be not begun within ten days after the contract became binding and prosecuted as provided in the contract to full completion within ninety working days from its confirmation then the surety would pay the city four dollars per day as liquidated damages for such breach of the contract. Held, that the contract and bond complied with the ordinance providing for the work, which required the successful bidder to give a good and sufficient bond in a sum equal to the contract price for the construction of the sewer and laterals, “to be forfeited,” if he should fail to complete the work under his contract within ninety days from the execution thereof. The Court of Appeals decision to the contrary and holding the tax bills issued for the cost of the work void for failure to give the bond required by the ordinance is quashed, as being in conflict with controlling decisions of the Supreme Court. .
    .1. -: -: -: -: —■-: Forfeiture. A city ordinance providing for the construction of sewers required the successful bidder to give a bond to secure performance of his contract, “to be forfeited” if he should fail to complete the work within ninety days from the execution of the contract. The bond as given provided that the surety should pay to the city a certain sum per day “as liquidated damages” for failure to so complete the work, not to exceed in the aggregate the estimated cost of the materials used and labor done on the work. Held, that the bond complied with the ordinance, inasmuch as the forfeiture required by the ordinance was not a penalty as in the criminal law, but merely a right in the city to a civil proceeding to recover from the contractor or his surety its damages at the stipulated amount per day for each day’s default beyond the time, limited in the bond.

      4. -:-• — : -: -: -: -: Damages. The law is settled in this State, by numerous decisions of the Supreme Court, that, in suit upon penal bonds with collateral conditions, the obligee, upon breach of condition, is not entitled to judgment for the full penalty of the bond, when a less sum is actually due; and hence the obligor can discharge himself by paying what is really due with interest and costs and thereupon the cause is discontinued.

      Certiorari.

    Record quashed.

      Graven & Bates for relator.
    (1) The decision of the Kansas City Court of Appeals both in its literal language and by construction' of its meaning is a holding that the bond contemplated by the city ordinance is a bond, the whole penalty of which would be forfeited if the work of constructing the sewer was not completed within ninety days, and in this respeet is contrary to the following decisions of this court. Burnside v. Wand, 170 Mo. 531; Burns v. Webster, 16 Mo. 258; St. Louis v. Parker-Washington Co., 271 Mo. 229; Foundry Co. v. Const. Co., 200 Mo. App. 33; Nichols-Shepard Co. v. Beyer, 168 Mo. App. 693; Light, Heat & Power Co. v. Independence, 188 Mo. App. 157; Buchanan v. Exposition Co., 245 Mo. 350; Cochran v. Ry. Co., 113 Mo. 364; Fidelity & Deposit Co. v. Schuckan, 189 Mo. 468; Wand v. Ryan, 166 Mo. 646; State to use v. Ruggles, 20 Mo. 100. (2) The decision is a holding that the city council cannot vary the form of bond required by ordinance to protect the city where a contract is let for constructing a public improvement paid for by tax-bills and that the city cannot insert therein provision for liquidated damages and is contrary to the decision of the Supreme Court of this State. St. Louis v. Von Phul, 133 Mo. 567; Hernán v. Gillian, 171 Mo. 258; Sheehan v. Owens, 82 Mo. 450. (3) The decision of the Court of Appeals holds that where an ordinance provides that the construction of the sewer must be completed within ninety days from the date of the contract for building the sewer and that a bond shall be given that will be forfeited if the sewer is not completed within time, and where the city then enters into a contract and bond contained in the same document both with provisos that the contractor shall be liable for liquidated damages if the work is not completed within the time specified — -that in such case the tax-bills are not rendered void by the clause in the contract providing for liquidated damages but are so rendered by other clauses in the same document defining the liability of the bondsmen. In this holding a decision of the Court of Appeals is contrary to the decisions of this court in the case of: Gist v. Const. Co., 244 Mo. 389; Excelsior Springs v. Ettenson, 120 Mo. App. 215.
    Culver, Phillip & Voorhees for respondents.
   WALKER, C. J.

Certiorari to quash the record of the Kansas City Court of Appeals. A judgment on certain sewer tax-bills had been rendered in the circuit court in favor of relators and against the Excelsior Springs Light & Water Company. Upon an appeal this judgment was reversed by the (Jourt ot Appeals. Its rulings are alleged to contravene certain decisions of the Supreme Court. The core of the controversy is in the difference between the terms of the ordinance authorizing the work and those of the contract and bond for the faithful performance of same. This is, of course, to. be determined from the opinion; correlative facts on which the Court of Appeals bases its ruling are referred to only as aids in more clearly understanding the Co~rt's conclusions.

The ordinance, so far as concers the matter at issue, provides that the “successful bidder shall give a good and sufficient bond in a sum equal to the contract price for the construction of the sewer and laterals, to be forfeited if he shall fail to complete the work of constructing the said district sewer and laterals under his contract within ninety days from the execution thereof.”

The contract provides that: “6. The work embraced in this contract shall be begun within ten days after the contract binds and takes effect and shall be prosecuted regularly and uninterruptedly thereafter with such force as to secure the full completion within ninety working days from the date of its confirmation, and the time of beginning, rate of progress and time of completion being essential conditions do this contract. And if the contractor shall fail to complete the work within the time above specified, an amount equal to the sum of four and no/100 dollars per day for each and every day thereafter, until such completion, shall be deducted as liquidated damages for such breach of this contract from the amount of the final estimate of said work.”

The bond, which is embodied in the contract, wherein the contractors were the parties of the first part, a liability company, as surety, was the party of the second part, and the City of Excelsior Springs was party of the third part, is, so far as relevant here, as follows:

“Said party of the second part hereby guarantees that the said party of the first part -will well and truly perform the covenants hereinbefore contained; to pay for the work and all labor of all laborers and teamsters, teams and wagons, employed on the work, and for all materials used therein or any part thereof which shall not be paid for by said first party within ten days after the money for such work, labor and materials becomes due and payable, and this provision shall entitle any or all laborers and teamsters and owners of teams and wagons who may do work, and parties who may furnish materials on or for the improvements to be done under this contract, to sue and recover from the said second 'party, by said first party; but said second party shall not be liable on this guarantee on account of materials used and labor done upon said work beyond the sum of thirty-four hundred forty and 25/100 ($3,440.25) dollars, the estimated costs of materials used and labor done upon said work. And the said party of the second part hereby agrees with the city of Excelsior Springs that the said party of the first part will well and faithfully perform each and all of the terms and stipulations in the foregoing contract to be done, kept and performed on the part of the said first party, but said party of the second part shall not be liable hereon beyond the sum of thirty-four hundred forty and 25/100 ($3,440.25) dollars.
“And the said party of the second part hereby further agrees with the city of Excelsior Springs, that if the work embraced in the contract be not begun within ten days after this contract binds §md takes effect, and prosecuted regularly and uninterruptedly, thereafter in accordance with the terms and provisions thereof with such force as to secure its full completion within ninety working days from the date of its confirmation, they will pay to the city of Excelsior Springs the sum of four and no/100 dollars per day, as liquidated damages for such breach of this contract. ’ ’

More briefly' stated, under the ordinance it is provided in general terms that a forfeiture of the bond is to follow a failure to perform the work within the time stipulated; while, under the contract, of which the bond is a part, the provisions as to the forfeiture are specifically stated in that the liability company as surety for the contractors binds itself to hold the city of Excelsior Springs harmless from all the defaults of the contractors therein specified, in a sum not exceeding the total contract price, except as to the time within which the work is to be performed; as to this, if the limitation is exceeded, for each day the contractors are in default the surety agrees to pay the city of Excelsior Springs four dollars as liquidated damages.-

The work contemplated was completed within the time stipulated and in other respects it met the full measure of the contractors’ obligation. There is no ground for complaint, therefore, arising between the contracting parties. The malcontent in the original action whose rights the Court of Appeals attempted to determine was a local corporation which refused to pay its proportionate part of the expense incurred in this undertaking, which expense was levied in the form of sewer tax-bills. The improvement effected was one of public necessity, uniformly -recognized in all centers of population as promotive of health. While this fact should not and will not control in the interpretation of the Court of Appeals opinion, other than as authorized by its unmistakable terms, the nature of. the transaction cannot but cause the reviewer to- look upon it with no unkindly eye and to scrutinize with discriminating care any construction the result of which will be to destroy the benevolent purpose intended. This does not mean that the rights of individuals are to be disregarded, but that a wise discretion such as is always present when the law is properly administered, shall be exercised in determining the limit of their protection, which should not be extended except in the presence of an unfair burden illegally imposed.

The portions of the opinion immediately pertinent to the matter at issue are as follows:

“The contractor gave a bond in the snm of the contract price, bnt it did not provide that it should be forfeited if the work was not completed within ninety working days, but it provided that if it was not completed within that time $4 per day should be paid to the city as liquidated damages for each day over the ninety days that the work was not completed. . . . But we think there is merit in the contention that there was no bond given that the work should be completed within ninety days, and that if the work was not completed within that time the bond should be forfeited. The provisions of the bond were that it should not be forfeited, but that only $4 per day should be paid for each working day that the work was not completed after ninety days. The council passing the ordinances authorizing the work regarded it as material that the work should be completed within ninety days, and in order to be assured that the work would be completed in that time provided that a bond should be given to that effect, and if the work was not so completed the bond should be forfeited.”

I. Under the issue presented we are concerned only with the part of the bond to which the foregoing excerpt refers. The other parts are in compliance with the general law regulating contracts for public work. [Sec. 1247, R. S. 1909, sec. 1040, R. S. 1919.] A right of action for a breach of either of these is mot affected by the presence of the others m the instrument; the validity of either is to be determined by its own terms. If those terms are in substantial compliance with the law in that they contravene no statute, are not in violation of public policy and import a valid consideration, their variance in verbiage from the statute or ordinance upon which they are based will not render the obligation nugatory and hence militate against its enforcement. [State ex rel. Fisher v. Rodecker, 145 Mo. 450; State ex rel. Lafayette Co. v. O’Gorman, 75 Mo. l. c. 378; State ex rel. West v. Thompson, 49 Mo. l. c. 189; Gathwright v. Callaway County, 10 Mo. 664; Grant v. Brotherton’s Admr., 7 Mo. 458; Barrett v. Stoddard County, 183 S. W. l. c. 647.] It is the subject-matter as indicative o.f the purpose and not the mere form that the court looks to in construing the terms of .an obligation as at bar. [Henry County v. Salmon, 201 Mo. l. c. 152; Wimpey v. Evans, 84 Mo. 144; State ex rel. McKown v. Williams, 77 Mo. l. c. 470; Newton v. Cox, 76 Mo. l. c. 354; Flint ex rel. v. Young, 70 Mo. l. c. 225; State to use Cameron v. Berry, 12 Mo. 377.] Here the validity of the bond is assailed not on account of its different conditions but its variance from the ordinance which it is contended is such as to make the entire obligation void. This conclusion does not follow, even if it be conceded that the condition as to the time limit of performance is invalid. The binding obligations of the other conditions would not thereby be affected authorized as they are by the statute and drawn in conformity therewith. In ruling therefore as to the invalidity of the entire bond by reason of the alleged variance of one of the conditions from the tenor of the ordinance, the Court of Appeals either inadvertently or otherwise ignores the other conditions, and in SO' doing, contravenes the cases above cited. However, giving immediate consideration to the condition in controversy, there is no such variance between it and the ordinance as to affect the obligations of the bond. For immediate reference we repeat that the ordinance authorizes a forfeiture of the bond upon a failure to perform the work within ninety days, while the bond prescribes that the work shall be begun within ten days after the execution of the contract and prosecuted with such force as to secure its completion within ninety days; and if not so completed, the contractors and surety will pay to the city of Excelsior Springs four dollars per day for each day’s default. From this it will be seen, without quibbling with words in attempting to make more clear that which is already clear, that the mandatory obligation of the bond as to the time of the completion of the work is the same in effect as that of the ordinance.

II. Tlie only remaining ground for controversy is what is meant by a forfeiture of the bond. The meaning of similar terms in statutes and ordinances as defined in the rulings of courts of last resort in other jurisdictions, while not determinative of the question of the contravention of opinions here involved, , , , -it, ■, are not inappropriately cited to show that the current of authority is uniform on this subject, and, as we will show, is in accord with our own rulings. In United States v. Distillery at Spring Valley, 25 Fed. Cases, 854, the court said the words “shall forfeit ás used in the Act of Congress, March 31, 1868 (15 Stat. 59),.declaring that a distiller operating without a license shall forfeit his distillery and distilling apparatus, means that they shall be subject to forfeiture.”

The Supreme Court of Vermont in Woodcock v. Bolster, 35 Vt. 632, held that where the word forfeit is used it is usually construed to mean a cause of forfeiture requiring some judicial proceeding to effect it.

The Court of Appeals of Indiana in Barber-Asphalt Co. v. City of Wabash, 43 Ind. App. 167, held that when a contract for the improvement of a city street provided for its completion at a certain date and for a failure the contractor was to pay a forfeit of $25 per day as liquidated damages until the completion of the work, that while the word forfeit usually means a penalty the damages will be considered liquidated regardless of whether the city suffered actual damages.

The Supreme Court of Texas in Galveston Ry. v. State, 81 Tex. 572, in construing a statute.of that State (Sec. 4280, R. S. Tex.) which provides that if a railroad company fails to file its annual report it shall forfeit its charter, was intended to prescribe the ground of forfeiture which the state could enforce by a judicial proceeding.

Under our own rulings and those of the Courts of Appeals the word forfeit as used in criminal law is equivalent to a fine; but when used in a civil proceeding in connection with the enforcement of a civil right it contemplates an ordinary civil judgment, having nothing peculiar in its nature. [State ex rel. Stinger v. Kruger, 280 Mo. 293; Edwards v. Brown, 67 Mo. 377; Ex parte Alexander, 39 Mo. App. l. c. 109; Greene County to use v. Wilhite, 29 Mo. App. l. c. 466.] The language of the ordinance, therfore; in requiring a forfeiture of the bond upon a failure of the contractor to comply with the prescribed time limit in the completion of the work was not employed in the strict sense of a penalty as in criminal law, but in a definitive manner to afford the city the right to a civil proceeding to recover from the contractor or his surety the stipulated amount per day for each day’s default beyond the timé limited in the bond.

While it would have been a loose and irregular manner for a municipality to have contracted for public wark in simply requiring a bond in the general language of an ordinance, the right of action oil such an obligation would have differed in no material particular from that authorized under the present bond except as to the manner of determining damages. In the one case the right of recovery would have been limited to proof of the damages actually sustained, while in the other that right would have been measured by the number of days the contractor was in default, the sum stipulated as a penalty to be taken as a unit in estimating the total. Under either there would have been such a forfeiture of the bond as is meant by the ordinance and is authorized by law but not such as is held to have been required by the Court of Appeals opinion. Ordinances authorizing work of the character here under review are usually couched in general terms, leaving the conditions of the contract and bond to be specified by the parties. The necessities of the case demand this latitude in the effective discharge of the duties devolving upon municipal authorities in the letting of public work whose rights and powers in regard thereto are not limited to those expressly granted but include such implied powers as are necessary to carry into full force and effect those expressly granted. As was well said in City St. Loui's v. Yon Phul,. 133 Mo. 567: “The power to make improvements and to let contracts therefor and to exact of the contractor a bond for the faithful performance of his contract, necessarily implies the power to do everything necessary for the faithful performance of the work, for the protection of the city and its citizens, and for the securing of the best and lowest possible bids. Indeed, we are unable to conceive of any matter of detail incident to the contract and the work that the city might not require that a private person could require.”

In ruling, therefore, that the bond given illegally extended the powers granted the municipal authorities under the ordinance and thus prevented competitive bidding for the work, the Court of Appeals ran counter to the Yon Phul and other cases of like character.

III. It is difficult to determine from the opinion of the Court of Appeals -what is held therein to be the limit of the obligee’s right of recovery upon a breach of the condition of a bond drawn in the language of the ordinance alone. We have shown that if it be meant by this ruling that such right is to be limited to a recovery of the actual damages, sustained, an adequate remedy is afforded by the bond given; and, hence, the contention as to the invalidity of same must go for naught.

If, however, it is meant that the obligee is to be entitled to a different right of recovery, the ruling is in direct conflict with numerous decisions of this court. [State ex rel. Cochran v. Cooper, 79 Mo. l. c. 467; State to use Gates v. Fitzpatrick, 64 Mo. 185; State to use Reyburn v. Ruggles, 20 Mo. 99.] The rule has never been recognized in this State that the obligee upon the breach of a condition was entitled to a judgment for the full penalty of a bond when a less sum was actually due. As was said in Burnside v. Wand, 170 Mo. l. c. 560: “Our law is opposed to forfeitures. It has ever been considered unconscionable to demand the full penalty when a lesser sum is actually due. Hence, it has ever been the law in our State that in suits upon penal bonds the obfigor can discharge himself by paying what is really dne with interest and cost, and thereupon the cause is discontinued.”

IV. Summarizing what has heretofore been said: the rule announced in Barber-Asphalt Co. v. Munn, 185 Mo. 552, and other cases declaratory of the same doctrine, as to the supervening control of an ordinance in determin^le ^me within which the work is to be performed can have no application here. The time limit in the contract and .bond was identical with that prescribed in the ordinance. Furthermore, the language of the ordinance being general, the provision in the contract and bond defining the manner in which the damages were to be determined did not exceed the implied power of the municipal authorities in contracting for the performance of the work but constituted a wise and necessary exercise of same. The rule limiting the powers of municipalities in contracting for public work to the terms of ordinances applies only when the latter contain specific provisions in regard to the work contracted for and necessary to secure its performance as exemplified in State v. Butler, 178 Mo. 272; Heman Const. Co. v. Lyon, 277 Mo. 628.

From all of which the conclusion is authorized that the opinion of the Court of Appeals contravenes decisions of this court in the particulars stated and that its record should be quashed. It is so ordered. All concur except Woodson, J., who dissents in separate opinion.

WOODSON, J.

(dissenting). — The majority opinion states that: “A judgment in certain sewer tax-bills had been rendered in the circuit court in favor of relators against the Excelsior Springs Light & Water Co. Upon appeal this judgment was reversed by the Court of Appeals. Its rulings are alleged to contravene certain decisions of the Supreme Court. The core of the controversy is in the difference between the terms of the ordinance authorizing the work and 'those of the contract and bond for tbe faithful performance of same. This is, of course, to be determined from the opinion (Italics are mine).

I dissent from the italicized words, for this reason: That the facts of the case, as presented to this court, are only preserved in the record made by the circuit court and filed in the Court of Appeals. That is where the Court of Appeals must look for the facts of the case, and this court must likewise look there for them.

In certiorari proceedings the writ of this court commands the lower court to send up to this court the entire record of the lower court. That was done in this case, and is now before us, together with the opinion of the Court of Appeals written therein.

Under the laws and Constitution, the decisions of this court are the supreme laws of the State, and in order that there- may be no conflict between the decisions of this court and those of the various courts of appeals, the Constitution provides that this court may order any of the various courts of appeals to send up the record in any case where there is a contention properly made, that there is a conflict between the rulings of that court and those of this court. The object of the constitutional provision being perfectly clear, namely: that there may be no conflict between the decisions of this court and those of those courts, or in other words, that the law as decided by those courts must be kept in harmony with those of this court, which declares the-supreme law of the State, otherwise we should have two or more courts announcing conflicting rules as contituting the supreme law of the State, and thereby decide one case, upon a given state of facts, in favor of one person, and in another case, upon the same state- of facts, in favor of another, in a different way.

Now the facts of the case are preserved in the record sent up to the Court of Appeals by the circuit court, and upon those facts the Court of Appeals predicates its opinion, and its opinion constitutes no part of the record sent up to it by appeal or upon writ of error to the circuit court and the Court of Appeals must base its opinion upon the facts so sent up to it by the circuit court, and if it does so, and follows the decisions of this court, in declaring the law applicable to those facts, then its opinion is just as much a part of the supreme law of the State as are the decisions of this court, but if the Court of Appeals misstates the facts of the record as sent up to it by the circuit court, or omits to state any of the material facts thereof, and on that account, decides the. case in harmony with the decisions of this court, but which would have contravened the ruling of this court had the facts been correctly or fully stated, then clearly that decision of the Court of Appeals would contravene the rulings of this court, that is, if in fact this court had passed upon a case which was the same as that presented to the Court of Appeals, by the record sent up to it by the circuit court. In other words, the Court of Appeals has no legal authority to garble the record of the circuit court, and thereby misstate the facts or omit certain material facts appearing in that record, and thereby make it appear that its opinion is either in harmony with the decisions of this court, or was not in conflict with any of our decisions. Such an opinion, however innocently rendered by the Court of Appeals, is both a palpable fraud upon the jurisdiction of this court, and upon the legal rights of the litigants to that suit, and amounts to judicial robbery, however innocent the Court of Appeals may be in its delivery. Such an opinion is nothing but polished brass, it may glitter and sound all right, but it is not pure gold, as the true basis of all judicial opinions should and ought to be, otherwise the basis of the opinion is a whited sepulcher, filled with dead men’s bones, an outrage upon the law, equity and justice, and betrays the weakness and inefficiency of the courts in dealing with the affairs of men.


source: Caselaw Access Project

author: ELDER, J.

license: Public Domain

text:
    THE STATE ex rel. AMERICAN PACKING COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    April 30, 1921.
    1. CERTIORARI TO COURT OF APPEALS: Conflict of Opinions: Negligence: Pleading Generally: Res Ipsa Loquitur. Evidence of Specific Negligence. The petition in a suit by a servant against his master, relator herein, for damages caused by the servant’s hand being caught in a sausage-making and meat-chopping machine, after describing the machine and the manner of operating it and of starting and stopping it, alleged that “said machine by reason of the negligence of the defendants was suddenly and without warning or notice to the plaintiff started and caused to revolve, and the wheels and cylinder and crusher and knives thereof to revolve and turn, whereby the plaintiff’s right hand and thumb and fingers thereof were caught in said machine.” Relator’s motion to make more definite and certain and its demurrer, having been successively overruled and no exceptions saved, it filed answer and went to trial. On the trial, it objected to any evidence because the petition did not state a cause of action, which objection was overruled. In the Court of Appeals this objection, was renewed on the ground that the petition was intended to be based upon the doctrine of res ipsa loquitur and lacked averments essential thereto. The Court of Appeals decided that, inasmuch as on the trial, the case, by proof and instructions was submitted to the jury upon specific negligence within the allegations of the petition, the rule tres ipsa loquitur was entirely removed from the case. Held, that this decision does not conflict with the prior rulings of the Supreme Court.
    2. -. — : -: -: -: Failure to State Cause of Action: Objection at Trial. Where a motion of make the petition more definite and certain is overruled and nó exception saved and a demurrer to the petition is overruled and thereafter an answer is filed and the case goes to trial, a general objection by defendant to any evidence on the ground that the petition does not state a cause of action, must be treated as if such motion and demurrer had never been filed; and in such case the petition will be regarded as sufficient after judgment, if, after allowing all reasonable implications and intendments in its favor, there is a sufficient statement to apprise defendant with reasonable certainty of the character of the action and the issues to he met. The Court of Appeals having so decided, its decision is not in conflict with previous rulings of the Supreme Court.
    3. -: -: Error of Court of Appeals in Applying Law to Facts. On certiorari to review a decision of a Court of Appeals alleged to he in conflict with a previous ruling of the Supreme Court it is not for the latter court to determine whether the former erred in its application of the rules of law to- the facts in the record, hut only whether in announcing the law of the case upon the facts as stated in its opinion the Court of Appeals failed to follow the last previous ruling of the Supreme Court.
    4. -: -: Two or More Courts of Appeals. On certiorari to review a decision by a court of appeals, the Supreme Court is not concerned with any conflict which may exist between opinions of any of the courts of appeals; hut is only to determine whether the opinion in the case under review conflicts with a controlling decision of the Supreme Court.

      Certiorari.

    Writ quashed.

      Anderson, Gilbert & Hayden and M. N. Hayden for relator.
    (1) The St. Louis Court of Appeals affirmed the judgment of the trial court. Considering the errors assigned by relator in that court, the necessary effect of its decision is that it held the converse of all of the propositions outlined in the six points which follow, while it expressly decided against relator in respect to the first four points. (2) The petition in this case wholly failed to state facts- sufficient to constitute a cause of action. The case involves the relationship of master and servant. In order for a recovery to be sustained upon the theory of res ipsa loquitur, it is essential that plaintiff’s petition aver the following facts; (1) that the machine in question was under the sole control of relator; (2:) that its plan of construction and method of operation, and especially the cause of its sudden starting, were facts peculiarly within the knowledge and control of relator; (3) that plaintiff possessed neither the knowledge, nor the means of knowledge, of the canse of the sudden starting of the machine on the occasion of his injury; and (4) that there were no witnesses known to him by whom, he could prove the cause of the sudden starting of the machine and no other means of proof of that fact within his knowledge. The petition must aver the foregoing facts or must contain other averments from which these facts may be reasonably inferred. Klebe v. Distilling Co., 207 Mo. 480; Eemovich v. Const. Co., 264 Mo. 43; Ash v. Printing Co., 199 S. W. 994; Byres v. Inv.. Co., 219 S. W. 570. (3) If a petition in a case seeking recovery of damages for personal injuries sustained by a servant, wholly fails to state facts sufficient to constitute a cause of action, it is defective upon a general demurrer, to the overruling of which exceptions need not be saved, nor is the point waived by the filing of an answer thereafter. The question of the sufficiency of the petition as against a general demurrer may be raised at any time and in the court of appellate jurisdiction for the first time. E. S. 1909, secs. .1800 and 1804; Paddock v.. Somes, 102 Mo. 235; Hoffman v. McCracken, 168 Mo. 343; Hudson v. Cahoon, 193-Mo. 557; White v. Eailroad, 202 Mo. 561; Hanson v. Neal, 315 Mo. 277; Hubbard v. Slavens, 218 Mo. 621; Diener v. Publishing Co., 230 Mo. 619; Chandler v. Eailroad, 251 Mo. 599; Hynds v. Hynds, 253 Mo. 20; Warren v. Lead & Zinc Co., 255 Mo. 145; Carpenter v. St. Joseph, 263 Mo. 711. (4) If the petition in this case wholly fails to state facts sufficient to constitute a cause of action it is permissible and proper to object to the introduction of any testimony, and in this case we submit that relator’s objection to the introduction of any testimony, for the reason assigned, should have been sustained. Haseltine v. Smith, 151 Mo. 404; Ice Co. v. Kuhhnann, 238 Mo. 685; Thompson v. Lyons, 220 S. W. 942. (5) If, as the St. Louis Court of Appeals holds, the plaintiff may bring his suit upon the theory res ipsa loquitur and upon the trial, over the objection of the defendant, offer evidence tending to establish the specific cause of the sudden starting of the machine, and may recover under such circumstances, then a plaintiff may bring his suit upon one theory and recover upon another and different theory. That is not the law as declared in numerous cases by this court. Chitty v. Ry. Co., 148 Mo. 64; Real Estate Co. v. Realty Co., 159 Mo. 567; Yon Trebra v. Gaslight Co., 209 Mo. 661. (6) The admission over the objection of relatorJ of testimony tending to prove specific negligence, was reversible error. Gibler v. Ry. Co., 148 Mo. App. 475; McAnany v. Shipley, 189 Mo. App. 396; Roscoe v. Ry. Co., 202'Mo. 576; Price v. Ry. Co., 220 Mo. 345. (7) Instruction No. 1 given by the court to the jury at the instance of the injured plaintiff was erroneous in that it purported to cover the plaintiff’s case and to submit his theory of liability, and in doing so submitted the specific negligence which the evidence, admitted over the objection of the defendant, tended to establish. It submitted issues, nowhere pleaded nor referred to •in the petition, and it was therefore reversible error to give it. Degonia v. Railroad Co., 224 Mo. 564; Scrivener v. Railroad Co., 260 Mo. 421; Young v. Dunlap, 195 Mo. App. 119; McGinnes v. Railroad Co., 195 Mo. App. 390; Gunn v. Ry. Co., 270 Mo. 517; Traw v. Heydt, 216 S. W. 1009; Latham v. Harvey, 218 S. W. 401; State ex rel. Coal Co. v. Ellison, 270 Mo. 645; State ex rel. Long v. Ellison, 272 Mo. 571.

      Fred G. Sieltemeier, Christian F. Schneider and Charles E. Morrow for respondents.
    (1) The petition in this case contains an assignment of general negligence and is not subject to general demurrer. The defendant has not preserved its motion to make the same more definite and certain by bill of exceptions and saved no exceptions to the overruling of it and regardless of all other questions, the petition is good, for a general assignment of negligence is sufficient under the rule in Missouri. Conrad v. De Montcourt, 138 Mo. 311: Frankel v. Hudson, 271 Mo. 504; Gurley v. Railroad, 93 Mo. 445; Mack v. Railroad, 77 Mo. 232; Lemay v. Railroad, 105 Mo. 370; Sullivan v. Railroad, 97 Mo. 113. Following these Missouri decisions, the Courts of Appeal have often so decided. Dieter v. Zbaren, 81 Mo. App. 014; Jacquin v. Railroad, 57 Mo. App. 320; 1-Iill v. Railroad, 49 Mo. App. 520; AYills v. Railroad, 44 Mo. App. 51; Quinley v. Traction Co., 1§0 Mo. App. 299; AVyler v. Ratican, 150 Mo. App. 478. (2) Under a plea of general negligence the proof of any negligence which causes the injury is permissible and the particular acts relied upon may be shown. Frank el v. Hudson, 271 Mo. 504; Price v. Street Ry. Co.. 220 Mo. 435; Dickson v. Railroad, 104 Mo. 491; Fleming v.Railroad, 263 Mo. 188. Following these decisions of this court, the Courts of Appeal have often so held. Wolven v. Traction Co., 1.43 Mo. App. 645; Lauff: v. Carpet Co., 186 Mo. App. 135; Feldewerth v. Railroad, 181 Mo. App. 640; Lafever v. Pryor, 218 S. W. 970; Fisher v. Golladay, 38 Mo. App. 538; James v. Mott, 215 S. W. 913. (3) The doctrine if res ipsa loquitur applies to the facts of this case and for that reason a plea of general negligence is proper. Blanton v. Dold, 109 Mo. 64; Ash v. Printing Co., 199 S. W. 994; Price v. Street Ry. Co., 220 Mo. 435; Myers v. Independence, 189 S. AY. 816. (4) By answering, defendant waived its motion to make the petition more definite and certain and waived all objections except that the court has no jurisdiction of the subject-matter of the action and that the petition does not state facts sufficient to constitute a cause of action. R. S. 1909, sec. 1804; Ashton v. Pennfield, 233 Mo. 417; Ware v. Johnson, 55 Mo. 500; Spillane v. Railroad, 111 Mo. 555; Titus v. Development Co., 264 Mo. 240. (5) On certiorari the only questions which may he presented to this court are whether or not the opinion of the Court of Appeals is contrary to the last rulings of this court upon a question of law. State ex rel. Const. Co. v. Reynolds, 214 S. W. 369; State ex rel. Peters v. Reynolds, 214 S. W. 121.
   ELDER, J.

Certiorari to quash judgment of the St. Louis Court of Appeals.

Relator seeks by writ of certiorari to quash a judgment entered by the St. Louis Court of Appeals affirming a judgment of the Circuit Court of the City of St. Louis, in a case *n wkich one Jacob Heckfuss was respondent, and the American Packing Company (relator herein, was appellant, reported in 224 S. W. 99, for the alleged reason that said Court of Appeals failed to follow the last previous ruling of this court, as required by the Constitution of this state.

The opinion of the Court of Appeals outlines the petition in the case, and the negligence charged therein, as follows :

“The petition alleges that plaintiff was a laborer in the employ of defendant at its plant and factory in the City of St. Louis; that defendant in operating its business at said plant used a machine consisting of a hopper, cylinder, crusher and knives in making sausage and chopping meat; that this machine was operated by power, transmitted to it by belts and pulleys; that he was ordered and directed by defendant to clean said machine or grinder, and at the time said machine was stopped and not in motion. The negligence of defendant is charged in the following language: ‘ . . . The said machine by reason of the negligence of the defendants was suddenly and without warning or notice to the plaintiff started and caused to revolve, and the wheels and cylinder and crusher and knives thereof to revolve and turn, whereby the plaintiff’s right hand and thumb and fingers thereof were caught in said machine, . . .’ ”

The1 evidentiary facts of the case are thus set out in the opinion:

“Plaintiff was injured while cleaning one of these machines at defendant’s establishment. It appears from the testimony that he had worked in a similar plant a number of years under the same foreman and hoses he was working under at the time he was injured. He had gone to work at the plant where he was injured only a few days before the accident took place. The parties for which he had worked before this had taken over the property of the West End Packing and Provision Company, and the new company was known as the American Packing Company. Plaintiff had been working at this machine where he was injured only an hour or two before the accident happened. The machine consists of a funnel-shaped hopper, projecting up through the bottom of which are the knives, which cut the meat as they are revolved when attached to a shaft on which are fastened two pulleys. One is a loose pulley, the other a tight pulley. When it is desired to stop the machine the belt, by a very simple appliance, is shifted from the tight pulley to the loose pulley. The machine is then stopped, but as soon as the belt is shifted back to the tight pulley it starts the machine. After plaintiff had cleaned the machine and had started to replace the knives, the machinery started with a sudden jerk and stopped just as suddenly, but not until after plaintiff had received his injuries, which it is unnecessary to describe here, as there is no point made that the verdict is excessive. . . .
“The proof adduced shows that the loose pulley on the shaft, located directly by the side of the tight pulley, was too loose, causing the belt to shift over to and catch on to the tight pulley, suddenly starting the machine. This was shown by the testimony of several witnesses, including defendant’s foreman, who investigated this particular machine, belt and pulleys, and observed the operation of the same immediately after the accident.”

Prior to answering the relator filed a motion to make the petition more definite and certain, which was overruled. It then filed a demurrer, the ground of which was that the petition did not state facts sufficient to constitute a cause of action. This demurrer was likewise overruled. Relator, without having sáved exceptions to either of such rulings, then filed an answer, the same being a general denial, with a plea of contributory negligence. At the beginning of the trial, relator objected to the introduction of any evidence for the reason that the petition did not state facts sufficient to constitute a cause of action.

Relator, in its petition for onr writ, and in its brief, suggests various matters wherein the opinion of the Court of Appeals conflicts with controlling decisions of this court. These, with the particulars pertinent thereto, we- shall treat of in the course of the opinion.

I. Relator contends that the petition did not state-facts sufficient to constitute a cause of action in that the allegation of negligence contained in the petition “was intended as one bringing the case-within the doctrine res ipsa loquitur” upon which theory it was essential that the petition should have averred the following facts, or averments from which those facts might be reasonably inferred, to-wit:-

“ (1) That the machine in question was under the sole control of relator; (2) that its plan of construction and method of operation, and especially the cause of its sudden starting, were facts peculiarly within the knowledge and control of relator; (3) that plaintiff possessed neither the knowledge, nor the means of knowledge, of the cause of the sudden starting of the machine on the occasion of his injury; and (4) that there were no witnesses known to him by whom he could prove the cause of the sudden starting of the machine and no other means of proof of that fact within his knowledge;” arid, no such averments appearing in the petition, that the ruling of the Court of Appeals is in conflict with the following controlling decisions of this court, viz: Klebe v. Distilling Co., 207 Mo. 480; Removich v. Construction Co., 264 Mo. 43; Ash v. Printing Co., 199 S. W. 994; Von Trebra v. Gaslight Co., 209 Mo. 648; Chouquette v. Railroad, 152 Mo. 257; Fisher & Co. v. Realty Co., 159 Mo. 562, and Byers v. Investment Co., 219 S. W. 570.

The opinion of the Court of Appeals bearing upon the foregoing contention is as follows:

“One of the principal points relied upon by appellant-for reversal is that the petition attempted to aver facts bringing the case within the rule res ipsa loquitur, but plaintiff proved facts to which that rule cannot be applied to sustain a recovery, and that the petition did not state such facts as to bring the case within the rule. In our view of this case it is unnecessary to decide whether or not, under the allegations in this petition, the rule res ipsa loquitur would apply. Whatever may have been the situation at the time of filing this petition, when this case was submitted to the jury the rule res ipsa loquitur was entirely removed from the case by the proof and by the instructions.”

The case of Klebe v. Distilling Co., supra, was a suit wherein the plaintiff was injured, while removing whiskey barrels from an elevator, as the result of the breaking of a wire rope which sustained the elevator, thereby causing the same to fall. This division held, that under the evidence adduced, the rule of res ipsa loquitur did not apply. However, no question of pleading was there involved, and the case does not touch the matter in hand.

Removich v. Construction Co., supra, was a case in which plaintiff, who was engaged in digging a trench, was injured when a steel cable attached to a bucket used to hoist the earth broke, allowing the bucket to fall upon him. The circuit court sustained a motion to require plaintiff to make his petition more definite and certain. The plaintiff refused to do so, whereupon defendant filed a demurrer to the petition, which was sustained. From this order an appeal was taken. Division Two of this court held that as the petition stated nothing more than the fact that the steel cable broke and the bucket fell and plaintiff was hit and hurt, under the doctrine of res ipsa loquitur it did not state a cause of action of negligence on the part of the master. The allegations of fact in the charge of negligence in that case are in no way similar to the facts alleged in the case under review. Furthermore, in that case, after a motion to make the petition more definite and certain and a demurrer thereto had been sustained, the plaintiff refused to plead further and appealed. Here, after a motion to make more definite and certain and a demurrer had been overruled, without saving its exceptions relator answered and went to trial. Accordingly, the Removich case cannot be said to constitute authority upon which to hold that a petition fails to state a cause of action, after a trial has been had and verdict rendered thereon.

In the ease of Ash v. Printing Co., supra, the facts which relator contends should properly be pleaded were substantially set out in the petition and this division held that the same stated a good cause of action under the doctrine of res ipsa loquitur. However, that case did not hold that it was essential to plead the facts cited by relator. In passing upon the sufficiency of the petition the court was guided by the case of Blanton v. Dold, 109 Mo. 64, wherein it was held that the' sudden starting of a machine, contrary to its usual manner of operation, afforded prima-facie evidence of some want of care in its original construction or then condition. This was but declaratory of the doctrine of res ipsa loquitur, a question which was not decided by the Court of Appeals in the case at bar.

It is apparent that neither of the foregoing cases contains any rulings opposed to the views of the Court of Appeals, as set forth in the opinion herein. And neither does Chouquette v. Railroad Co., Von Trebra v. Gaslight Co., Fisher & Co. v. Realty Co., or Byers v. Investment Co., supra, in the remotest way support the theory that the opinion of the Court of Appeals conflicts with any ruling in those cases. The point made is somewhat devious and we rule it against relator.

II. Relator next contends that “if the petition in this case dose not state facts sufficient to constitute a cause of action, that point was not waived by relator, either by failing to save exceptions to the ruling of the trial court overruling the demurrer, or by thereafter filing an answer,” and that the opinion of the Court of Appeals in that respect is in conflict with the following controlling decisions of this court, viz: Paddock v. Somes, 102 Mo. 226, l. c. 235; Hudson v. Cahoon, 193 Mo. 547, l. c. 557; White v. Railroad, 202 Mo. 539, l. c. 561; Hanson v. Neal, 215 Mo. 256, l. c. 277; Hubbard v. Slavens, 218 Mo. 598; Diener v. Publishing Go., 230 Mo. 613, 1. e. 619; Chandler v. Railroad, 251 Mo. 592, l. c. 599; Hynds v. Hynds, 253 Mo. 20, 161 S. W. 812; Warren v. Lead & Zinc Co., 255 Mo. 138, l. c. 145, 164 S. W. 206; Carpenter v. St. Joseph, 263 Mo. 705, l. c. 711; 174 S. W. 53; Cole v. Parker-Washington Co., 276 Mo. 220, l. c. 266.

That portion of the opinion of the Court of Appeals, which is pertinent to this insistence is as follows:

“Defendant saved no exceptions to the action of the trial court in overruling its motion to make more definite and certain, nor to its demurrer to the petition. Therefore we must treat the petition, when its sufficiency is challenged, as if no demurrer had been filed, and it will be regarded sufficient after judgment, if, after allowing all reasonable implications and intendments in its favor, there appears to be a sufficient statement to apprise the defendant with reasonable certainty of the character of the action and the issues it must meet.
“It has been repeatedly held in this State that a petition which sets out the acts about which a plaintiff is complaining with reasonable certainty and clearness, followed by a general averment that the acts complained of were negligently done, is sufficient. [Dieter v. Zbaren, 81 Mo. App. 612; Wyler v. Ratican, 150 Mo. App. 474, 131 S. W. 155; Quinley v. Traction Co., 180 Mo. App. 287, 165 S. W. 346.]
“The charge of negligence in the petition is the sudden stalling of the machinery without warning or notice. This negligence is charged generally, and this we think is sufficient after verdict. [White v. Railroad, 202 Mo. 539, 101 S. W. 14; Lafever v. Pryor, 218 S. W. 970.]”

Upon an examination of the above-mentioned decisions of this court we are unable to find wherein the ruling of the Court of Appeals comes in conflict therewith. While some thereof are entirely beside the question, the remainder only go to hold that if a defendant pleads to the merits, he waives everything in the petition but two points: First — That the petition does not state facts sufficient to constitute a cause of action; Second— That the court has no jurisdiction over the subject-matter of the action. This is axiomatic. Relator, however, proceeds upon the theory that the petition here wholly fails o state facts sufficient to constitute a cause of action, which the Court of Appeals in its opinion found to the contrary. We are not to determine whether-the view of the Court of Appeals is correct or incorrect, but only whether it conflicts with a controlling decision of this court. [State ex rel. Pelligreen Const. Co. v. Reynolds, 214 S. W. 369; State ex rel. Wahl v. Reynolds, 272 Mo. l. c. 596.] We rule the point against relator.

III. Relator insists that its objection to the introduction of any testimony should have been sustained, and that the opinion of the Court of Appeals bearing on that question is in conflict with Haseltine v. Smith, 151 Mo. 404; Ice Co. v. Kuhlmann, 238 Mo. 685, and Thompson v. Lyons, 281 Mo. 430, 220 S. W. 942.

The opinion pertinent to this contention is as follows:

“Appellant objected to the introduction of any testimony for the reason that the petition did not state facts sufficient to constitute a cause of action, but we think the petition was good against an objection of this kind. [Thompson et al. v. Lyons, 281 Mo. 430, 220 S. W. 942.]”

Hazeltine v. Smith is not reported in 151 Missouri Report.

Ice Co. v. Kuhlmann, supra, if anything, is in harmony with the ruling of the Court of Appeals. It holds that: “An objection to the petition made after the trial has begun is tolerated, but not encouraged, because it smacks of ambush and of lying in wait, and therefore every reasonable intendment and fair implication will then be resolved in favor of the petition, and if it states a cause of action, though defectively, the objection will be overruled.”

Thompson v. Lyons, supra, supports the ruling of the Court of Appeals. There, in an action for deceit in misrepresenting the purchase price of land purchased by plaintiffs and defendants jointly, the petition was. held sufficient as against objection to the introduction of any evidence. The point made is wholly without merit.

IV. Eelator urges that when the Court of Appeals held “that the testimony admitted removed the case from the theory res ipsa loquitur,” its decisions contravened the controlling decision of Fisher & Co. v. Realty Co., 159 Mo. 562, l. c. 567; Von Trebra v. Gaslight Co., 209 Mo. 648, l. c. 661, and Chitty v. Railway Co., 148 Mo. 64.

The opinion of the Court of Appeals upon this question is as follows:

“Plaintiff undertook to prove, and there was sufficient testimony to submit the question to the jury, as to whether or not the sudden starting of this machine was caused by the failure of the defendant to exercise ordinary care to remedy the same and discover the defects so as to have avoided the injury. When plaintiff assumed this burden to prove the exact and specific acts of negligence causing the injury, and the Court submitted the case to the jury upon the specific acts of negligence and instructed the jury that the burden was on plaintiff to prove all these facts by a preponderance of the evidence, then this case was taken entirely outside the rule res ipsa loquitur and such rule was no longer applicable in this case. Therefore, it is unnecessary to decide and also immaterial, as to whether or not the rule could have been invoked on the pleadings and upon plaintiff’s merely proving the occurrence of the accident at the time and place, and under the circumstances alleged in the petition, without any proof as to specific acts of negligence. ’ ’

The eases cited by relator merely hold that a plaintiff cannot plead one cause of action and recover upon another not pleaded. They also hold, however, as do a long line of decisions, that the variance is waived if not objected -to in the manner required by statute. This requirement was not met by relator. Furthermore, as argued by counsel for respondents, it is not for this court to determine whether the St. Louis Court of Appeals erred in its application of the rules of law to the •facts in the record, “but only whether in announcing the law of the case upon the facts as stated in its opinion it failed to follow the last previous ruling of this court.” [State ex rel. Peters v. Reynolds, 214 S. W. l. c. 122.] We rule the point against relator.

V. Relator further urges that the admission, over the objection of relator, of testimony tending to prove specific negligence, was reversible error. Price v. Railway Co., 220 Mo. 435, and Roscoe v. Railway Co., 202 Mo. 576, cited by relator, are authority to sustain respondents. We are further cited to a decision of the St. Louis Court of Appeals and of the Kansas City Court of Appeals. On certiorari we are concerned with any conflict which may exist between opinions of any of the Courts of Appeal. We are only to determine whether the opinion in the case under review conflicts with a controlling decision of this court. The point made cannot be sustained.

VI. Relator finally contends that Instruction No. I, given by the court to the jury at the instance of plaintiff ITeckfuss, was erroneous “in that it purported to cover the plaintiff’s case and to submit his theory of liability, and in doing so submitted the specific negligence which the evidence, admitted over the objection 0f defendant, tended to establish; and that it submitted issues nowhere pleaded nor referred to in the petition.” As being in contravention to the opinion of the Court of Appeals, relator cites several decisions of Courts of Appeal (with which we are not concerned) and the cases of Degonia v. Railroad Co., 224 Mo. 564; Scrivner v. Railroad Co., 260 Mo. 421; Gunn v. United Railways, 270 Mo. 517; State ex rel. Coal Co. v. Ellison, 270 Mo. 645, and State ex rel. Long v. Ellison, et al., 272 Mo. 571.

Instruction No. 1 is as follows:

“The court instructs thé jury if you believe from the evidence that the defendant, American Packing Company, was engaged in preparing and packing meats and provisions, and manufacturing sausage and other like products, at its plant and factory in the City of St. Louis, Missouri, and that plaintiff was in the employ of said defendant as a laborer, at its said plant and factory.
“And if the jury further believe from the evidence that said defendant used and operated in its said business at its said plant, a certain machine or grinder consisting of a hopper and a cylinder and crusher and knives, and that said machine or grinder was operated and pro - pelled by power transmitted to it by means of belt, wheels and pulleys, and that said machine was started and put in motion by shifting the belt thereof which transmitted the power to said machine from a loose wheel or pulley onto a tight wheel or pulley, fastened to the shaft of said machine.
“And if the jury further believe from the evidence that said loose wheel or pulley to which the belt of said machine was shifted, and on which the belt thereof run when said machine was stopped, and not in motion, was so placed upon the shaft of said loose wheel or pulley that the said wheel or pulley wobbled while said belt was running thereon, and by reason thereof was liable to cause said belt to shift over to and upon said tight wheel or pulley, so attached and fastened to the shaft of said machine, and thereby cause the said machine and the knives and crusher thereof to revolve and be put in motion and that by reason thereof said machine was defective unsafe and dangerous, and that said defendant knew, or by the. exercise of ordinary care could have known of said defective, unsafe and dangerous condition of said loose wheel or pulley, as aforesaid, in time by the exercise of ordinary care to have remedied the same before the plaintiff was injured, if you believe he was injured.
“And if the jury further believe from the evidence that on or about the 20th day of May, 1916, that said machine had been stopped by the defendant and was not in motion, and the plaintiff was ordered and directed by said defendant to clean said machine or grinder, and that in order to so clean said machine it was necessary for plaintiff to take the crusher and knives out of the same and to clean the cylinder thereof, and to replace the said crusher and knives in said machine; and that in obedience to said order and direction of said defendant, if you so find that plaintiff, while in the service of the defendant, and while working in the line of his duty, and within the scope of his employment as a servant of said defendant, took the crusher and knives out of said machine while said machine was stopped and not in motion and cleaned said machine and crusher and the knives thereof and replaced said knives and crusher in said machine; and that by reason of said defective and unsafe and dangerous condition of said loose wheel or pulley aforesaid, and by reason of the-defendant’s failure to so exercise ordinary care, as aforesaid, if you so find, the belt of said machine shifted from said loose wheel or pulley onto said tight wheel or pulley, so fastened to the shaft of said machine, and said machine was caused to start, revolve and be put in motion, and by reason thereof plaintiff ’s right hand and the fingers and thumb thereof, while in said machine, and while he was in the act of replacing the said-knives and crusher therein, were caught and crushed, and that plaintiff was thereby injured, and that plaintiff was guilty of no negligence which directly contributed to cause his said injury, as defined in other instructions, your verdict must be for the plaintiff.”

On motion for rehearing the Court of Appeals had the following to say with reference to this insistence:

“The negligence set out in the petition is alleged in a general way, but the allegations of negligence are broad enough to permit the introduction of testimony showing such negligence specifically.
“As was said by the Kansas City Court of Appeals, in Lafever v. Pryor, 218 S. W. 970:
‘The petition charged general negligence, and the court submitted to the jury the particular negligence which the evidence tended to prove. This was not submitting issues not included within the allegations of the petition, since, under a general charge in the pleading, the particular acts relied upon may be shown and instructions may be based thereon (authorities cited).’
“The specific acts of negligence submitted to the jury in plaintiff’s instruction were such acts as may be shown under the general allegations in this petition, and when such specific acts of negligence are shown, then the instructions must require the jury to find the particular acts of negligence said to be revealed by the testimony. [Lauff v. Carpet Company, 186 Mo. App. 123. l. c. 135, 171 S. W. 986.] ”

Degonia v. Railroad Co., supra, and State ex rel. Coal Co. v. Ellison, supra, both go to the point that an instruction cannot be broader than the pleadings, although the evidence might have taken a broader range. Here, again, however, relator would have us determine whether the conclusion of the Court of Appeals is correct or incorrect, which we have said is not our province.

Scrivner v. Railroad Co., supra, and Gunn v. United Railways, supra, are beside the question.

State ex rel. Long v. Ellison, supra, holds that an instruction purporting to cover the whole case, from which is omitted an element of negligence necessary to plaintiff’s right to recover, cannot be cured by one given for defendant.

None of these cases are in conflict with the opinion of the Court of Appeals and the point is ruled against relator.

This concludes the several questions raised, by relat- or. From all of the foregoing it follows that our writ was improvidently granted and should be quashed. It is so ordered.

All concur, except Woodson, J., absent.


author: WOODSON, J.

text:
    WILLIAM R. HARRINGTON v. JAMES C. HOPKINS et al., Appellants.
    In Banc,
    May 24, 1921.
    1. CONSTITUTION: Limitation of Taxation: City or .Town School District: School Purposes. Section 11 of Article 10 of the Constitution limits the collection of all taxes in a city or town school district to one dollar on the hundred dollars’ valuation for all school purposes; that is, the rate of taxation cannot be increased in such district for all school purposes in excess of one dollar on the hundred dollars except for the purpose of erecting public buildings.
    2. -: -: -: -: Erection of Buildings: Repairing and Furnishing Buildings. A tax voted by a city or town school district for “repairing and furnishing” school buildings is not a tax for “erecting public buildings” as those words are used in Section 11 of Article 10 of the Constitution.
    3. -: -: --- — : -:--: -. A city or town school district, in addition to a tax of one dollar on' the hundred dollars’ valuation for school purposes, viz: teachers’ fund eighty-seven cents and incidental fund thirteen cents, levied an additional tax of ninety cents for a repairing and furnishing fund for buildings, such levy being authorized by a two-thirds vote of the qualified voters of the district voting at the annual election held in the district, the legal preliminaries being complied with. Held, that such additional levy was not. authorized by Section 11 of Article 10 of the Constitution and its enforcement should be permanently enjoined.
    Appeal from Clinton Circuit Court. — Eon. Alonso D. Burnes, Judge.
    Affirmed.

      Daniel E. Frost and W. 8. Eernclon for appellants.
    (1) Sections 11 and 12 of Article 10, of the Constitution of Missouri, govern in the matter of school taxes as well as other taxes by counties, cities and towns, etc. The limitations in those sections are self enforcing and require no legislation to enforce them, but the provision for an increase of the limitations does require legislation to enforce such increase. Arnold v. Hawkins, 95 Mo. 569; Board of Public Schools v. Patton, 62 Mo. 449; State ex rel. v. Railroad, 74 Mo. 163; State ex rel. v. Yan Every, 75 Mo. 530. (2) Recognizing this to be the law, the Legislature by Section 10797, R. S. 1909, provides for an increase of the annual rate of taxation by school districts for the purpose of paying for school building-sites, whether the same have been purchased or condemned, for buying- or erecting school buildings in such districts, or repairing or furnishing such buildings, and prescribes the duties of the directors in determining the rate of taxation necessary to be levied within the maximum rates of the constitution, the giving of notice, etc., and the holding of an election. This section provides or requires the assent of two-thirds of the qualified voters of the district to the levy. State ex rel. v. Gordon, 223 Mo. 12. (3) Section 11, Article 10, Missouri Constitution, limits the levy, in city school districts to forty cents for school purposes. It then goes on to provide: (a) That the aforesaid annual rates for school purposes may be'increased in districts formed of cities and towns to an amount not exceeding one dollar. Now, the district did this and this increase is not disputed, (b) For purpose of erecting public buildings in counties, cities étnd school districts, the rate of taxation may be further increased, when the rate of such increase, and the purpose for which it was intended shall have been submitted to a vote of the people and two-thirds of the qualified voters of said district vote therefor. If then, the law under which this levy was made is a valid law, and within the terms of the last above referred to provision of the Constitution, then the levy was and is valid. Our Legislature pursuant to the authority of the two above provisions of the Constitution passed Section 10796, R. S. 1909, to carry out the first above proviso. And they passed Section 10797, R. S. 1909, to carry out the second proviso, which statute stood with slight • amendment since the adoption of the Constitution, (c) If this legislative enactment providing for a tax for repairing and furnishing school buildings is not authorized under said provision of the Constitution, then public authorities have no power to furnish or repair public buildings. All school moneys are required to be placed in three funds. First. The teachers’ fund, dervived from all funds received from State, county and township funds, all monies derived from taxation for teachers ’ wages, and all tuition fees. Second. Incidental fund. Money derived from taxation for incidental expenses. Third. Building fund. Money derived from taxation for building purposes, sale of sites, school buildings, furniture, etc. Sec. 10857, R. S. 1909; Livesay v. Whitney, 107 Mo. App. 479. Repairs come out of the building fund always. By Section 10857 it is provided that board shall have power to transfer out of incidental to building fund such amount as may be necessary for repairs, showing plainly that repairs are to be paid out of building fund. (4) The next proposition we will notice is their charge that the increased levy was not proposed for a building fund, or a repair and furnishing fund, but for common school purposes. In their brief they urge no law or reasons in support of the charge, for the reason probably that they had neither law or sufficient facts to justify their charge. State ex rel. v. Gordon, 580; Thomas v. Scott, 221 Mo. 279. (5) The statutes applicable to towns, counties and school districts in order to the orderly administration of their financial affairs first require money to be used for purpose it was levied only, then make these provisions for transfer and other like unto them providing for transfer when purposes of fund are accomplished or abandoned. This school board learned for the first time that repairs, furnishings, etc., were not incidentals. Livesay v. Whitney, 107 Mo. App. 475; State ex rel. v. Thompson, 64 Mo. 26. (6) They also learned probably for the first time that repairs and furnishings and fund for same could be provided for by submitting a proposition to the voters and in this were replenishing their building fund.

      John A. Cross, B. H. Musser and Pross T. Cross for respondent.
    (1) When the directors of a school district, undertake to impose an illegal tax on the citizen he has the right to enjoin the proceedings in its inception and at evdry subsequent step, until it reaches him by an actual levy on his property. Overall v. Ruenzi, 67 Mo. 203; Wagnor v. Meety, 69 Mo. 150; Arnold v. Hawkins, 95 Mo. 569. (2) The giving of the proper notice is mandatory and jurisdictional, and if not given as required by statute any action taken will be void. State ex rel. v. Eden, 54 Mo. App. 31; Mason v Kennedy, 89 Mo. 23; School Dist. v. School Hist., 94 Mo. 612; Richardson v. McReynolds, 114 Mo. 650; State v. Railway, 75 Mo. 526. (3) For school purposes in districts the annual rate on property shall not exceed forty cents on the $100 valuation; provided the aforesaid annual rate for school purposes may be increased, in districts formed of cities and towns, to an amount not to exceed $1 on the $100 valuation, on the condition that a majority of the voters who are taxpayers, voting at an election held to decide the question, vote- for said increase. Said restrictions as to rates shall apply to taxes of every kind and description, whether general or special, except taxes to pay valid indebtedness now existing, or bonds which may be issued in renewal of such indebtedness. Const, sec. 11, art. IQ. (a) The limitation in the above section is self enforcing and does not require legislation to make it effective. State ex rel. v. Van Every, 75 Mo. 537; St. Joseph v. Patten, 62 Mo. 444; Arnold v. Hawkins, 95 Mo. 569. (b) The limitation upon the powers of school directors in Section 11, Article 10 of the Constitution are absolute and cover all taxes of every kind and description, and said ninety cents being in excess of the constitutional rate is void. Overall v. Euenzi, 67 Mo. 203; Arnold v. Hawkins, 95 Mo. 569; Black v. McGronigle, 103 Mo. 192; Brookfield v. Tooey, 141 Mo. 619; Brooks v. Schultz, 178 Mo. 222; Trust Co. v. Pagenstecher, 221 Mo. 121; Board of Comm. v. Peter, 253 Mo. 520; Strother v. Kansas City, 283 Mo. 283. (c) Section 11, Article 10 of the Constitution means that the Legislature may authorize the levy of taxes within the limit specified, but not beyond. Brooks v. Schultz, 178 Mo. 222. (d) An order or resolution of the Board of Directors does not an illegal tax valid. Black v. McGonigle, supra. State ex rel.' v. Eailway, 169 Mo. 563. (e) “ School purposes” do not include erection of buildings, nor payment of indebtedness. State ex rel. v. Eailway, 83 Mo. 395; Eailway v. Lamkin, 97 Mo. 503; Eailroad v. People, 163 111. 616; Laws 1919, p. 755.
   WOODSON, J.

This suit was instituted in the Circuit Court of Clinton County by the plaintiff against the' defendants to restrain the collection of a tax of ninety cents on the $100 valuation of all taxable property situated in the Lathrop School District of that county.

The trial was before the court, which resulted in a decree enjoining the collection of the tax, and in due time the defendants appaled to this court. The facts are as follows:

The respondent, William R. Harrington is a resident of the School District of Lathrop, in Clinton County, Missouri, a qualified voter thereof and owns a large amount of real estate and personal property, within said School District. Said School District is a city or town district, having a Board of Education, consisting of six directors. The defendant, James C. Hopkins, is the county clerk and the defenant, John L. Thompson, collector of said county. The defendants, Frank L. Porter, Albert C. Fag’in, John B. Scott, E. D. Rogers, Bedford Trice and Tlios. Gr. Klepper, constitute the board of education of said school district.

This suit is brought to restrain the levy and collection of a tax of 90 cents, on each $100 of the assessed valuation, on all property taxable for school purposes in the district. At a meeting of the said board of education held on the 16th day of March, 1920, it was ordered that a proposition to levy a tax of 90 cents on each $100 of the assessed valuation of property in the district, for a repairing and furnishing fund, be submitted to the voters at the annual election in said district to be held April 6, 1920, and that notice thereof be given. The secretary of the board gave notice by publishing the same in The Lathrop Optimist for more than 15 days prior to the election. The proposition was printed on the ballots, with other propositions submitted, and was carried by a vote of more than twothrrds of the qualified voters of said district voting at said election. The original notice given to the newspaper, was for repairing and furnishing fund, but the printer, failing to prove it, published it as a repairing and “Finishing” fund. The ballots, however, had it correctly spelled. The claim of the respondent that there was no legal notice given is based solely upon this misspelled word in the notice.

The levy is attacked by the respondent on the ground that it is in violation of Sections 11 and 12 of Article X of the Missouri Constitution, and that it was not levied for the purpose mentioned in the notice and printed on the ballots but for the purpose of paying teachers. A temporary writ of injunction was issued. The case was tried by agreement, on the 17th of June, 1920, taken under advisement by Judge Burnes and on the 4th of August, the court found for the plaintiff and made the temporary restraining order final, from which judgment the defendants constituting the Board, of Education of said district appealed.

In pursuance to the foregoing election, the board of directors of said school district, made and certified to the Clerk of the County Court of that County an estimate of the amount of money necessary to sustain the said school for the year 1920, which was as follows:

“To the County Clerk of Clinton County, Missouri:

“Dear Sir: We, the Board of Directors of District No. Lathrop, County of Clinton, Missouri, herein submit an estimate of the amount of funds necessary to sustain the public school for the period of---months, amount of cash on hand, and the approximate rate to be levied on the taxable property in said Distinct for the year beginning July 1, 1920.

“This estimate is based on a district valuation of seven hundred and seventy-nine thousand dollars ($779,000), an enumeration of 865 pupils, a total number of days ’ attendance of 45fi77 days, and the services of 13 teachers.

“For School Purposes, Secs. 10246, 10791, 10796, 10798, 10825:

For Teachers’ Fund ........... ....... $12000

Amount on hand..................... $ 3500

^Estimate from Public Funds..........$ 200

Amount under State Aid Law..........$ 3700

Amount to be raised by levy............$ 8300

“Rate necessary for raizing this amount ................................87 cents

For Incidental Fund, Secs. 10846, 10791, 10796,10798,10825 .........‘.......$ 4000

Amount on hand..................... $ 000

Amount to be raised by levy .......... $4000

Rate necessary for raising this amount .. ...............................13 cents.

“For Building Purposes, Sec. 10791, 10797, 10798, 10825:

For Fund Repairing & Furnishing......$7000

Amount on hand...................... $ 000

Amount to be raised by levy............$7000

Rate necessary for raising this amount ..........••.....................90 cents

For Sinking Fund, amount of Bonds falling due, Sec. 10782 ............ $....

Amount on hand ...................... $.,...

Amount to be raised by levy..........•$ 3000

Rate necessary for raising this amount .............................. 40 cents

For Annual Interest, Sec. 10783 ..........$...

Amount on hand .................... $...

Amount to be raised by levy..............$779

Rate necessary for raising this amount 40 cents. Total amount to be levied on the taxable

property of- the District................$. . . .

Total rate necessary.................... 240 cents

“We estimate that a levy of 240 cents on the $100 valuation will be sufficient to raise above amount.

“Done by order of the board this 6th day of Mav, 1920.

“Jno. B. Scott, President.

Frank L. Porter, District Clerk.”

As previously' stated Harrington being a property owner of said district, brought this suit to enjoin the levy and collection of said taxes and to remove the cloud upon the title to his real estate.

The basis of this suit as stated by counsel for respondent is as follows:

“a. Because the notice of the election was not given as required by law, the same being for a repairing and finishing fund and the ballots-cast at said election being for a repairing and furnishing fund, a separate and distinct fund from the fund named in the notice.

“b. Because said ninety cents tax is fraudulent and void because the levy of said tax was ordered and made for a private and not a public purpose, the real purpose of the levy of said tax being to reimburse the Board of Directors of said District, ‘and others/ for money wrongfully taken by said Directors from the sinking fund belonging to said District and that the real purpose and object of the levy of said tax is to raise sufficient-money to pay a note of seven thousand dollars executed by the members of the Board of Directors of said District to procure money to make restitution to and pay, back, and replace in said sinking fund of said District .the money so wrongfully taken therefrom as aforesaid.

“c. Because said ninety cents tax is illegal and unconstitutional because in excess of the highest rate of taxation authorized by Section 11, Article 10, of the. Constitution of 1875.-

“The case was submitted upon the pleadings and evidence, and judgment was rendered for the respondent as prayed in his petition. After the usual steps, appellants appealed to this court.

“The question for decision is: Is this ninety cents tax valid? If it is, the judgment must be reversed, if not, the judgment must be affirmed; we contend that the tax is not valid, and hence, that the judgment must be affirmed.”

While there are several propositions presented and discussed by counsel for the respective parties, yet according to the view we take of the case, it will not be necessary to consider but one of them, and that is stated by counsel for respondent in the following language:

“The limitations upon the powers of school directors in Section 11, Article 10, of the Constitution are absolute and cover all taxes of every kind and discription, and said ninety cents being in excess of the constitu tional rate is void.”

That section of the Constitution in so far as this case is concerned reads as follows:

“. . . For county purposes the annual rate on property, in counties having six million dollars or less, shall not, in the aggregate, exceed fifty cents on the hundred dollars valuation. . . . For school purposes in districts composed of cities which have one hundred thousand inhabitants or more, the annual rate on property shall not exceed sixty cents on the hundred dollars valuation and in other districts forty cents on the hundred dollars valuation: Provided, The aforesaid annual rates for school purposes may be increased, in districts formed of cities and towns, to an amount not to exceed one dollar on the hundred dollars valuation, and in other districts to an amount not to exceed sixty-five cents on the hundred dollars valuation, on the condition that a majority of the voters who are taxpayers, voting at an election held to decide the question, vote for said increase. For the purpose of erecting public buildings in counties, cities, or school districts, the rate of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the people, and two.thirds of the qualified voters of such county, city or school district, voting at such election, shall vote therefor. The rate herein allowed to each county shall be ascertained by the amount of taxable property therein, according to the last assessment for State and county purposes.”

The language of the section just quoted is too plain to need construction: it limits the collection of all taxes in a school district such as this, to one dollar on the $100 valuation for all school purposes; that is, the rate cannot be increased in such a district for all school purposes in a'sum in excess “of one dollar on the hundred dollars except for the purpose of erecting public buildings,”! etc., and there is no pretense that this ninety cents was voted for the purpose of erecting a school house, or other public buildings, but solely to repair and furnish a building already existing. In no sense can the words “furnishing” and “repairing” be construed to mean the “erection of public buildings” as those words are used in the Constitution.

We find no error in the record, and therefore affirm the judgment of the circuit court.

All concur.