author: 'WOODSON, J.

text:
    ROEDER, Appellant, v. ROBERTSON et al.
    Division One,
    March 28, 1907.
    1. FOREIGN CORPORATION: Business in this State: Transfer to Agent. Where a contract for the sale of personal property is void, because the vendor being a foreign corporation had never complied with the law authorizing it to do business in this State, and for that reason the title to the property never passed to or vested in the purchasers, yet if plaintiff was the agent of suoh corporation in the sale and delivery of the property and was familiar with all the facts and circumstances surrounding the transaction, he was not, when by bill of sale executed by the foreign corporation in the foreign State the property was transferred to him, an innocent purchaser, but acquired just such title and interest in the property as his vendor (the foreign corporation) had, and no more.
    2. -: -: Reasonable Statute. The statute, approved April 21, 1901, which requires a foreign corporation which comes into this State for the purpose of doing business for a profit, to first file with the Secretary of State a copy of its charter or articles of incorporation and to open and maintain an office in this State, with one in charge thereof, haying authority to accept and receive process, and requiring it to pay into the revenues of the State a reasonable sum of money for the right or privilege of doing business here, is not harsh or oppressive. Its purpose is to raise revenue and have someone present in the State to represent it in case litigation should arise between it and the citizens of the State. It is a reasonable and constitutional statute.
    3. --: -: Recovery of Property Illegally Sold: Holding on to Money Received: Transfer to Agent: Status Quo: Estoppel.Neither a foreign corporation, nor a citizen of this State, nor an agent of the foreign corporation to whom was transferred the property sold and the notes received by the foreign corporation with full knowledge that the transaction was void, should be permitted to hold onto the money received in part payment of the property, and nevertheless recover the property illegally sold. Before the property which has been partially or fully paid for can be recovered, the status quo must be restored. Both the corporation and its assignee with notice are estopped to repudiate the contract or set up rights in opposition to it while retaining the money received under it.
    4. -: -: Constitutional Statute: Due Process of Law, etc. The statute which requires foreign corporations, wishing to do business in this State, to file their charters with.the Secretary of State and have an office in this State, etc., makes all transactions by the foreign corporation, in violation of the statute, null and void, and contracts made by it for the sale of goods, wares and merchandise to citizens of this State are mere nullities; the title to the property sold does not pass to the purchaser, but remains in the vendor, and hence the act does not violate the constitutional provision which prevents the taking of property without due process of law, be- - cause it does not take the property, nor give it to another; and if it has parted with it under a void contract, it can re>cover it in the courts, just as a resident citizen might, and hence the act does not deny to such corporations the same rights, immunities and privileges that are are accorded to citizens of this State, nor deny to such corporation equal protection of the laws.
    5. -: -: -: Private Property for Private Use. Nor does such act take private property for private use. The title to the property remains just where the foreign corporation placed it, subject to the equities created against it hy the conduct of the parties at the time of the void sale of the property to citizens of this State.

      6. -: -: Purchase by Citizen of This State: Illegal1 Contract: Not Enforcible As to Either Party. A citizen of this State has the right to go to a foreign State and purchase from a corporation of that State property previously illegally sold and delivered by the corporation to citizens of this State. The contract of sale was void, because the foreign corporation had not complied with the laws of this State authorizing it to do . business here, but the purchase in that State by a citizen of this State of the property delivered to residents of this State in pursuance to said void contract, is not void, and hence the courts will not be controlled by the principle, when such citizen brings suit to recover the value of the property sold, that, the contract being illegal and void, aid will not only be denied to those seeking to enforce it, but assistance will not be given to those attempting to escape from it, for that principle is not applicable; but, the citizen’s purchase of the property from the foreign corporation being valid, he will not be permitted to recover the property until he restores to defendants the money they paid for the property under the void contract with the corporation, of which he had full knowledge.
    Appeal from Cooper Circuit Court. — Hon. James E. Hazell, Judge.
    Affirmed.

      John Cosgrove for appellant.
    (1) The contract between A. W. Stevens & Son and respondents is conceded to be void, and therefore nothing passed by its terms from the vendor to the vendees. A void sale or contract of sale is of no more legal effect than if never made. Keaney v. Vaughn, 50 Mo. 284; .1 Page on Contracts, sec. 20’. (2) The trial court committed error in refusing to declare the law as prayed by appellant in instructions 3 and 7. Hutch, on Carriers (2 Ed.), sec. 735; Woolen Mills v. Edwards, 84 Mo. App. 448. (3) The contract attempted to be entered into between A. W. Stevens & Son and respondents being invalid in consequence of the failure of said A. W. Stevens & Son to comply with the statutes of this State, did not pass the title of the property in controversy to respondents, and the title still remained in A. W. Stevens & Son. Hutch, on Carriers, sec. 735; Bank v. Matthews, 98 H. S. 621; Thornton v. Bank, 71 Mo. 221; Bank v. Gilliam, 72 Mot 77. (4) The situs of the property, in contemplation of law, was in A. W. Stevens & Son in the State of New York, notwithstanding the property itself was located in this State, and the sale thereof by A. W. Stevens & Son in the State of New York to the appellant, who resided in Missouri, transferred a good title to him. Roer on Interstate Law, 194; Kelly v. Crapo, 45 N. Y. 86; Thuret v. Jenkins, 7 Martin (La.) 318; Cooley on Taxation, 270; Mills v. Thornton, 26 HI. 300; Fienmen v. Sachs, 33 Kan. 625; Gaylor v. Soragen, 32 Yt. 110; Wagner v. Breed, 29' Neb. 720; Douglass v. Ins. Co., 138 N. Y. 2091; Cross v. IT. S. Trust Co., 131 N. Y. 330; Collins v. Lumber Co., 128 Mo. 451. (5) Respondents denied the validity of the contract made by them with A. W. Stevens & Son and repudiated its terms in toto, after having obtained possession of the property, which was the subject of the negotiations, and then by refusing to surrender said property to appellant appropriated it to their own private use. Such an appropriation is in violation of section 20 of article 2 of the Constitution of this State, and is also a violation of section 30 of the same article, which provides that “no person shall be deprived of life, liberty or property without due process of law,” and is also in violation of article 5 of the Constitution of the United States. (6) The assignment and sale made by A.. W. Stevens. & Son in the State of New York was valid under the laws of that State, and was, therefore, valid in Missouri, as there is no law prohibiting such a sale in this State, and no creditor of A. W. Stevens & Son in the State was injured thereby. Fenton v. Edwards, 126 Cal. 43; Consolidated Tank Line Co. v. Collier, 148 111. '259; Hayden v. Yale, 45 La. 362; Ward v. Pipe Mfg. Co., 71 Conn. 345.

      W. M. Williams for respondents.
    (1) If plaintiff, under the agreed statement, was not entitled to recover, the judgment of the lower court should he affirmed. Munford v. Wilson, 15' Mo. 54; Land Co. v. Hays, 105 Mo. 153. (2) It does not appear that plaintiff paid any valuable consideration for the bill of sale executed to him by A. W. Stevens & Son. He was perfectly familiar with all of the facts and circumstances connected with the transaction between that corporation and the defendants and acted as agent for the former in the delivery of the property to the latter. He can not claim to be a bona fide purchaser; but, in any event, said A. W. Stevens & Son could not confer upon him a greater right to the property or any better cause of action than that possessed by said corporation itself. 1 Mechem on Sales, sec. 154.. (3) The corporation and its assignee are estopped to repudiate the contract or set up rights in opposition to it while retaining the money received under it. Yanstandt v. Hobbs, 84 Mo. App. 633; Chemical Co. v. Nichells, 66 Mo. App. 678; Poplin v. Clausen, 38 S. W. 974; 2 Mechem on Sales, secs. 912, 914, 1053. (4) “The policy of the law being to refuse its aid to those who have sought to violate it, it does so not only when the parties are seeking to enforce their illegal contracts, but also when they are seeking to escape them. It will not therefore, as a general rule, aid either party in his efforts to regain his former position. If, therefore, the seller has delivered the goods but has not received his pay, be not only could not collect the price, but he could not, as a rule, reg’ain his goods.” 2 Mechem on Sales, sec. 998; Downing v. Ringer, 7 Mo. 585; Mason v. Pitt, 21 Mo. 391. (5) Plaintiff has no standing to maintain this suit. A. W. Stevens & Son, the corporation through which he claims title, not only failed to comply with the statutes of this State before the transaction with defendants, but has never complied with the same. Said corporation could not maintain a suit in the cotirts of this State and the assignee of its claim is in no better position. Beale on Foreign Corporations, sec. 247. The contract-between the plaintiff and A. W. Stevens & Son was for the sale and delivery of property located in the State of Missouri. The contract was void and conferred no title upon the plaintiff. Erhardt v. Bobertson, 78 Mo. App. 404; TriState Amusement Co. v. Forest Park Highlands Amusement Co., 90 S. W. 1020; Chicago Mill & Lumber Co. v. Sims, 95 S. W. 344. (6) The facts in the agreed statement fail to show a conversion by the defendants, and the judgment was properly in their favor. The machinery was delivered to them under a contract of sale without any knowledge on their part of its invalidity. They paid part of the purchase money and gave- their notes for the remainder. Neither the money nor the notes have been returned or offered to be returned to them. There has been no refusal on their part to surrender the machinery and no demand made therefor. The fact set out in the agreed statement that “the other machinery has also remained upon the place of the defendants and part of it, the engine, has been used by them,” is insufficient to charge them in this action.
   'WOODSON, J.

This is a suit which was brought by appellant against the respondents, in the circuit court of Cooper county, to recover the value of an engine and threshing machine, which he alleges belonged to him and were wrongfully converted by respondents to their own use.

As there were no objections made to the pleadings, we- deem it unnecessary to state even the substance of them, since the case was submitted to the court upon an agreed statement of facts, except as to the value of the property.

The agreed statement of facts is as follows:

“It is admitted for the purposes of the trial of this cause that the defendants purchased, in or about the month of August, 1896, a threshing outfit, consisting of one sixteen-horsepower Stevens & Son traction engine, number 2157; one new Stevens thresher, number 9087; one Uncle Tom’s wind stacker, number 208; one self-feeder, number 273, and one Washington weigher, for which defendants promised and agreed to pay said A. W. Stevens & Son twenty-five hundred and eighty dollars; that said property was shipped by said A. W. Stevens & Son and: delivered, through plaintiff, to defendants ; that defendants took said property into their possession and to their farm; that the purchase price thereof was settled as follows: An old threshing outfit, belonging to defendants, was to be received by said A. W. Stevens & Son for ten hundred and eighty dollars, and defendants did execute thre'e promissory ¿otes, all dated August 6, 1896, and signed by defendants and made payable to said A. W. Stevens & Son; one for three hundred dollars, due January 1, 1897; one for six hundred dollars, due November 1, 1897; one for six hundred dollars, due January 1, 1898; all being negotiable notes and bearing interest at the rate of six per cent per annum; that said old threshing outfit, which was accepted in part payment for the machinery sold by said A. W. Stevens & Son to the defendants, was afterwards resold by said A. W. Stevens & Son to the defendants for three hundred dollars, which was paid in hash to said A. W. Stevens & Son; that the defendants also paid to said A. W. Stevens & Son the note for three hundred dollars, due January 1, 1897, and delivered to said corporation the other two notes for six hundred dollars, above described; and one of ,said notes was endorsed and transferred to J. GL Erhardt, who instituted suit upon the same in the circuit court of this county, and in said suit judgment was rendered for the defendants and upon appeal to the Kansas City Court of Appeals said judgment was affirmed, and is reported in Erhardt v. Robertson Brothers, 78 Appeals, page 404; that the three hundred dollars paid for the old threshing machine by the defendants, and the three hundred dollars paid in settlement of the note, due January 1, 1897, have never been returned to the defendants, nor has any part thereof, and that said money is still retained by said A. "W. Stevens & Son; that the promissory notes for six hundred dollars each have never.been returned, nor offered to be returned, to the defendants; .that a warranty accompanied the threshing outfit sold by said A. W. Stevens & Son to the defendants; that after trial defendants claimed said machinery did not comply with the warranty and notified said A. W. Stevens & Son to that effect, and declined to .accept and pay for said machinery.

“It is further admitted that at the time of the sale of said machinery by said A. W. Stevens & Son to the defendants, said A. W. Stevens & Son was a corporation for pecuniary profit formed in the State of New York, and was doing business in the State of Missouri, and it had not at that time, and never has since, complied with the terms of the act of the General Assembly of the State of Missouri, entitled, ‘An Act to require foreign corporations doing business in this State to have a public office or place of business in this State at which to transact its business, and subjecting it to certain conditions and requiring it to file its articles of incorporation with the Secretary of State and to pay certain taxes and fees thereon; approved April 21, 1891;’ that the said A. "W. Stevens & Son, at the time of making said contract with the defendants, had wholly failed to, and has ever since wholly failed to, maintain a public office, or place of business, in this State, for the transaction of business where legal service may be obtained upon it,, and where proper books are kept, to enable such corporation to comply with the constitutional and statutory provisions governing foreign corporations.

“That while said machinery sold by said A. W. Stevens & Son was on the farm of defendants in Cooper county, Missouri, a bill of sale transferring the same to plaintiff was executed, on or about July 20, 1899, in the State of New York, by said A. W. Stevens & Son, and the same was forwarded by mail to the plaintiff at Boonville, Missouri; that the old threshing machine was never delivered to A. W. Stevens & Son, but was resold by said A. W. Stevens & Son to the defendants, and the other machinery has also- remained upon the place of the defendants, and part of it, the engine, has been used by them. ’ ’

In addition to the above agreed facts plaintiff offered evidence tending to show that the property described in the petition was worth the sum of fifteen hundred dollars, and the defendants on their part offered evidence tending to show that said property was worth six hundred dollars. This was all the evidence.

Whereupon plaintiff prayed the court to declare the law as follows:

“First. Upon the agreed facts in this case, the plaintiff is entitled to recover.

“Second. The court declares the law to be that A. W. Stevens & Son, a corporation existing under the laws of the State of New York, did not lose or forfeit its interest in the property described in the pleadings, and the agreed statement of facts in the case, by its failure to comply with the act of the General Assembly of the State of Missouri, entitled, ‘An Act to require foreign corporations doing business in this State to have a public office or place of business in this State at which to transact its business, subjecting it to certain conditions, requiring it to file its articles of incorporation with the Secretary of State, and to pay certain fees and taxes thereon, approved April 21, 189-1.’

“Third. A. W. Stevens & Son did not lose its interest in the property described in the pleadings in this case, by sending it into the State of Missouri, and the said A. W. Stevens & Son, by its sale and transfer executed in the State of New York, conveyed a good title to the property to the plaintiff in this case. The situs of said property, in contemplation of law, adhered to said A. W. Stevens & Son.

“Fourth. A. W. Stevens & Son did not forfeit or lose its title or interest in said property by sending it to the State of Missouri and therefore had the right to sell and transfer the same in the State of New York to the plaintiff, who, at that time, resided in the State of Missouri.

“Fifth. The court will exclude from its consideration in arriving at a finding in this case all evidence offered by the defendants, and all facts agreed showing the amount of money claimed by the defendants to have been paid for the property described in the pleadings in this case, under the contract made with A. W. Stevens & Son in the State of Missouri, by or through the plaintiff, for the purchase of the threshing outfit deA scribed in the pleadings in this cause.

‘ ‘ Sixth. The defendants having refused to pay the two notes of six hundred dollars each, amounting to twelve hundred dollars, in accordance with the contract made for the purchase of said property, and said contract being void under the laws of this State, defendants cannot enforce or have any rights thereunder, and they are estopped from making any claim arising out of, or connected with said contract.

“Seventh. The act of the General Assembly of the State of Missouri, approved April 21, 1891, is not confiscatory. It did not have the effect of confiscating the properly of A. W. Stevens & Son, citizens of the State of New York, because the said A. W. Stevens & Son did not conform to the requirements of said act, to enable it to do business in this State. The Legislature of this State has no right to pass a law depriving any person or corporation, who is a citizen of another State of this Union, of his or its property, without due process of law, nor can the Legislature of this State, under the Constitution of the State and of the United States, transfer the property of a private person or corporation of the State of New York to another person or corporation of this State without requiring the person or corporation who receives said property-to make compensation therefor, and the plaintiff is entitled to recover. ’ ’

Which instructions or declarations of law, thus prayed by the plaintiff, the court refused to give, and to the refusal of the court to give said instructions and to declare the law as prayed, plaintiff then and there excepted to the refusal of all and each of said instructions.

The defendants on their part prayed the court to declare the law as follows:

“1st. The court declares the law to be that under the agreed statement of facts and the evidence submit-ted in the cause, the plaintiff cannot recover, and the finding and the judgment must be for the defendants.”

Which instruction the court gave. To the giving of which instruction, thus prayed by the defendants, plaintiff duly excepted at the time.

The court then found for the respondents and rendered judgment against the appellant for costs, to which action of the court he excepted; and within due time filed his motion for a new trial, which was, by the court, overruled, to which action appellant duly excepted, and has appealed the cause to this court because a constitutional question is involved.

I. Appellant concedes the contract between A. W. Stevens & Son and the respondents was void, and contends that on that account the title to the engine and threshing machine never passed or vested in the respondents, but remained in the vendors, and the contract of sale made by A. W. Stevens & Son to appellant vested the title thereto in him, and therefore he was entitled to recover in this case.

Conceding appellant’s 'contention to be correct, yet the agreed statement of facts disclosed the fact that he was the agent of‘Stevens & Son in the sale and delivery of the property, and was perfectly familiar with all the facts and circumstances surrounding the transactions, and for that reason he cannot successfully contend that he was a “bona fide” purchaser of the property. He acquired just such title and interest in and to the property as his vendor had, and nothing more. "We do not decide what would have been the effect had the appellant been an innocent purchaser.

The agreed facts also show that A. W. Stevens & Son, a foreign corporation, in violation of the laws of this State, received from respondents three hundred dollars in cash, an old threshing outfit, valued by the parties to the contract at $1,080, and two promissory notes of six hundred dollars each as the purchase price of the property sued for. It has never returned or offered to return the purchase price to the respondents.

The act approved April 21, 1901, which requires a foreign corporation, which comes into this State for the purpose of doing business for a profit, to first file with the Secretary of State, a copy of its charter or articles of incorporation, to open and maintain an office in this State, with some one in charge thereof, having authority to accept and receive process, and to require it to pay into the revenues of the State a reasonable sum of money for the right or privilege of transacting business therein, is not harsh nor oppressive. The purpose of the statute is to raise revenue, and to have some one present in the State to represent it in case litigation should' arise between it and the citizens of this State.

• Those who ask the assistance and protection of the State in the transaction of their business should not complain of an assessment which is to contribute to the support of the State government, nor to the requirement of maintaining, a representative in the State upon whom process may be served in case of litigation, and thereby avoid annoyance and inconvenience, and save time and expense in seeking justice in the courts of another State. Such a statute is but the expression of a wise public policy of the State. The justice of this policy has been recognized by many States of the Union, and they have enacted statutes, similar in character to ours, and many of them are much more stringent in their provisions, and exacting in the requirements of those who enjoy their protection and benefit.

Such a statute should not be so construed as to confer upon foreign corporations any additional or greater rights and powers than those possessed by domestic corporations or other citizens of the State. No corporation or citizen of this State would be permitted to repudiate a void contract of sale of merchandise, and, while retaining the purchase price, come into court, and recover the possession of the property sold, or recover the value thereof. Upon the broad principles of equity and justice restitution of the ill-begotten gains should be made before the unjust prayer for relief should be granted. The other party to the transaction should, according to natural justice, be restored to his “status quo ’ ’ before he should be commanded by the court to return the property which had been partially or fully paid for; otherwise the vendor would • have both the property sold and the purchase price, while the vendee would have only a doubtful cause of action against a foreign corporation, perhaps far away.

Snch a condition should not and does not exist under the laws of this State.

Appellant cannot maintain this action without first returning or offering to return the payments received by A. W. Stevens & Son. [Vanstandt v. Hobbs, 84 Mo. App. 633; Chemical Co. v. Nickells, 66 Mo. App. 690; Poplin v. Clausen, 38 S. W. 974; Mechem on Sales, secs. 912, 914, 1053; Daniels v. Tearney, 102 U. S. 415; City of St. Louis v. Davidson, 102 Mo. l. c. 155; O’Brien v. Wheelock, 184 U. S. 450.]

II. Appellant asks for a reversal of the judgment because the act which prohibits foreign corporations from doing business in this State until they comply with the provisions thereof is, “in so far as it seeks to make contracts so made with corporations of other States void, before they have complied with the requirements of said act, unconstitutional, because such act seeks to take from such foreign corporations, or non-resident citizens, its or his property without due process of law, and denies to such foreign citizen the same rights, immunities and privileges that are accorded to the citizens of this State, and because it denies to such foreign corporation or citizen the equal protection of the law. ’ ’

It will be seen that counsel for appellant assails the validity of the act upon three separate and distinct grounds: first, because it seeks to deprive the foreign corporation of its property without due process of law; second, that it denies such corporation the same rights, immunities and privileges that are accorded; to the citizens of this State; and, third, it denies, to such corporation equal protection of the law.

The learned counsel, it seems to us, wholly misapprehends the meaning and scope of 'the act. The act is prohibitive in its operation. It seeks to prevent foreign corporations from doing business in this State until they have complied with the provisions of the act by filing a copy of their charter or articles of incorporation with the Secretary of State and by appointing an agent in this State to represent them. If such corporations, in violation of the act, do business in this State, all such transactions are, by the courts, declared null and void, and all contracts mad'e by them with citizens of this State for the sale of goods, wares and merchandise are nullities, and the title to the property sought to be transferred thereby does not pass to and vest in the vendee, but remains in the vendor, the same as if the pretended contract had not been executed.

It is, therefore, clearly seen that the act does not violate the constitutional provision which prevents the taking of property without due process of law, because the act does not take the property of a foreign corporation from it, nor does it give it to another, but lets the title thereof remain in and abide with the corporation;- and if the corporation had parted with the possession of its property, under the void contract, and is unable to recover the possession without litigation, then the doors of the courts of this State are open to it, and it stands before the law upon precisely the same footing that residents of this State do — no better, nor no worse. We are unable to see in what way the act in question denies to such corporations the same rights, immunities and privileges that are accorded by law to the citizens of this State, or how it deprives them of the equal protection of the law. For under the facts of this case a citizen of this State would not be permitted to recover the possession of the property sold to- the respondents, nor its value, in case of its conversion, without first refunding or paying back to the respondents the consideration paid by them under the void contract, and received by A. W. Stevens & Son. He would be estopped from claiming the property until the purchase price had been returned, and for the same ■reason A. W. Stevens & Son, and its assignee, the appellant, is estopped in this ease. [See cases before cited.]

III. What has been stated in paragraph two of this opinion also answers, in the negative, the contention of appellant, that the judgment in this ease “takes private property for private use.” Neither the act in question nor the judgment of the court takes or disturbs the title of the property. The title remains just where A. W. Stevens & Son placed it, subject to the equities created against it by the conduct and action of the parties at the time of the. pretended sale of the property to respondents.

TV. Respondents contend that where a contract is illegal and void because contrary to the policy and laws of the State, the courts will not only refuse to aid those seeking to enforce such an illegal contract, but will not lend their assistance' to those attempting to escape from it, and cite in support of that contention the eases of Downing v. Ringer, 7 Mo, 585, and Mason v. Pitt, 21 Mo. 392. The first case mentioned was a suit on a promissory note, given as part payment of the purchase price of a lot of ground in the town of Philadelphia, Marion county, Missouri. The defense interposed was a statute of 1835, which imposed a penalty upon the proprietor óf a town, village or of an addition thereto for selling a lot therein before recording the plat or map thereof. The court held that the sale was in violation of the statute, and that the vendor could not recover the purchase money, because the court would not aid him in doing that which was prohibited by law.

The court in the latter case, in commenting upon the former, stated: “ If a vendee of a lot in such a town, knowing that the plat is unrecorded when he purchased, should bring an action to enforce a specific performance of the contract of sale, he might be met with the statute.”

We are of the opinion that both of those cases were correctly decided, upon both principle and authority, because if the court had permitted a recovery in either case, it would have necessarily given full force and effect to a contract which was forbidden to be made by the statute. But we are unable to see the application of the principle involved in those cases to the facts of the case at bar. Here there is no attempt to enforce the provisions of the illegal and void contract between A. W. Stevens & Son and the respondents, but, upon the contrary, all the parties to this suit, as well as Stevens & Son, concede the illegality of that contract, and that by reason thereof the title to the property never passed from the corporation nor vested in the respondents. That being true, the appellant contends that he had a perfect legal right to go to New York and purchase the property in controversy from the owner, A. W. Stevens & Son. This contract of purchase, not having been made in this State, is free from the provisions of the act of the Legislature above mentioned. That act is intendéd 'to prohibit foreign corporations from doing business and making contracts in this State before they comply with the provisions of our statutes. It was not the intention of the Legislature to prohibit the enforcement of valid contracts made by foreign corporations in their own States with citizens of this State. There is nothing in our laws which denies the right of such corporations to enforce valid contracts, whether made in this State or not. It must therefore follow that when appellant in New York purchased the undisputed title of A. W. Stevens & Son to the property in controversy, the doors of our courts are open to him and will aid him in the enforcement of his legal rights.

This court, in the case-of Kelerher v. Henderson, (Mo.), 101 S. W. 1083, in discussing this same question, used the following language: “The law does not impress upon the subject-matter of the contract its stamp of coudemnation, but upon the contract itself. Unless the plaintiffs’ contract, by which they seek to enforce their right, is infected with champerty, we see no reason why this suit may not be maintained, though such a contract exists between the defendant and the bondholders. It is time enough to turn a party out of court when he asks the aid of a court to enforce such a contract.” And the court further said in that case: “The fact that certain collateral portions of the contract or transaction which is before the court are tainted with illegality, that fact will not defeat a recovery upon the other provisions of the contract, which in themselves give a complete cause of aétion without the assistance of the infected portions. [Vette v. Geist, 155 Mo. 27.]”

The facts in this case do not lead the appellant as near the danger line as did the facts in the Kelerher case lead him. In fact, the .contract between A. W. Stevens & Son and the respondents is not even a collateral part of the contract existing between the appellant and A. W. Stevens & Son. [Euneau v. Rieger, 105 Mo. l. c. 682; Bick v. Overfelt, 88 Mo. App. 139.]

For the reasons above stated the judgment of the circuit court.is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    PAULINE WHITE v. ST. LOUIS & MERAMEC RIVER RAILROAD COMPANY, Appellant.
    Division One,
    March 28, 1907.
    1. MOTION TO ELECT: Made and Overruled at Previous Term: Orally Reviewed. A motion to compel plaintiff to elect on which act of alleged negligence she- would go to trial, made and overruled at a previous term, and renewed orally before tbe trial commences, should be again overruled. The statute contemplating that pleadings should be in writing includes demurrers, motions to elect, etc. Besides, the ruling at the previous term is not for review on appeal unless an exception thereto was preserved by a term bill of exceptions presented to the appellate court.

      2. -: Negligence: Inconsistent Allegations: Speed: Stopping Car. A petition which charges defendant’s negligence to be excessive rate of speed, and in not stopping its car in the shortest time possible on seeing a person on the track or approaching towards it, does not contain allegations that are “contradictory and inconsistent,” and therefore a motion to elect on that ground should be overruled. They do not destroy each other. Both can stand, and both be true.
    3. -: Specific Grounds: Exclusion of Others. Where a motion to elect specifies inconsistency, movant is precluded (under the statute) from urging any other ground.
    4. -: Ordinance and Common Law Negligence: Blended Inr Same Count. Whether the negligence complained of arises from the violation of a common law duty, or a statutory duty, or an ordinance duty, so long as the violated duties produce one injury and the one damage constituting the subject-matter of the suit, it is not error to blend the various acts of negligence in the same count of the petition. The mere origin of the negligence is of no significance. Excessive speed which amounts to negligence at common law, and negligence in failing to stop the car as the ordinance prescribes, can be pleaded in the same count.
    5. -: -: -: Eliminated from Case by Instruction. Where the petition charges excessive speed and negligent failure to stop the car after the injured party’s dangerous position was discovered, and only the latter issue is put to the jury, it is immaterial whether or not the allegations are inconsistent and contradictory, or whether or not both were made in the same count of the petition, and that a motion to elect was overruled. No injury can come to defendant from the presence in the petition of elements of negligence eliminated by instruction.
    6. -: After Joinder: Waiver. Excepting the two cardinal defects of failure to state a cause of action and lack of jurisdiction, all defects in the petition are waived whenever in the evolution of a lawsuit the case once advances to the stage of joinder of issues on the facts pleaded. Hence, when defendant refuses to stand on its motion to elect, files answer, goes to trial, and takes the chance of winning or losing on an issue of fact, it abandons its motion to elect, unless the allegations are so contradictory as to be self-destructive, and therefore state, no cause of action. Such a motion is of no more dignity or potency than a motion to make more specific and certain, a demurrer, or a motion to strike out because of departure or because of redundant, irrelevant or frivolous matter.

      7. NEGLIGENCE: Stopping Car: Case for Jury. Plaintiffs expert testified that the street car, "which struck the wagon plaintiffs husband was driving, could have been stopped in 150 feet when going twenty miles an hour, and in forty feet when going eight miles; and one witness put the horses on the track when the car was 150 feet away, and another put it still further away. Held, that the case should have gone to the jury, on the issue of whether defendant was guilty of negligence in not stopping the car before it struck the wagon.
    8. -: -: -: On Motorman’s Testimony. The motorman testified that he saw the heads of the horses appear in the cross street when his car was 75 feet from the place of the accident; that warned by the progress of the horses towards the track he got his car within control and had reduced its speed to two or three miles an hour while running 35 or 40 feet, and that he then discovered deceased was about to cross the track 40 or 50 feet in front, when he applied the reverse; and that he was unable to stop the car in running the 40 or 50 feet more, with the aid of the reverse and sand. Held, that it was for the jury to say whether or not the car could have been stopped in this forty feet by the use of the emergency appliances.
    9. -: Contributory: Defense. The fact that a driver of a wagon negligently put himself in a position of peril from an on-coming street car, did not warrant the defendant, who had notice of his peril, in running him down. It was still the duty of defendant to exercise ordinary care to avoid injuring him.
    10. -: -: Wantonness. Wilfulness, recklessness and wantonness are not indispensable elements upon which to base a right of action for the wrongful death of a person guilty of contributory negligence. If 'the defendant, in control of a dangerous instrumentality, in the exercise of ordinary care could have prevented an injury to a traveler in a public street who had negligently placed himself in danger of such injury, and failed to exercise that care, defendant is liable, whether or not defendant’s failure was wilful, reckless or wanton.
    11. -: Instructions. Two instructions given in this case are held to be proper declarations of law on the subject of negligence, and to follow approved precedents.
    Appeal from St. Louis City Circuit Court. — -New. Walter B. Douglas, Judge.

      Affirmed.

      Jefferson Chandler, T. ill. Pierce and 8. P. Mc-Chesney for appellant.
    (1) The court erred in overruling defendant’s motion to require plaintiff to elect whether she would stand upon common law negligence or ordinance negligence, because both inconsistent assignments of negligence could not properly be joined in the same count. Clancy v. Railroad, 192 Mo. 640; McHugh v. Railroad, 190 Mo. 85; Behen v. Railroad, 186 Mo. 430. (2) The court erred in refusing to give at the close of plaintiff’s evidence and at the close of all the evidence instructions in the nature of a demurrer to the evidence asked for by defendant: (a) Because there was no evidence of negligence on the- part of defendant. Lee v. Jones, 181 Mo. 299; Feary v. Railroad, 162 Mo. 75; Roenfeldt v. Railroad, 180 Mo: 554; Markowitz v. Railroad, 186 Mo. 350; Cogan v. Railroad, 101 Mo. App. 179. (b) Because the evidence shows conclusively that the injuries complained of by plaintiff were due to the continuous, concurring and contemporaneous negligence of deceased directly contributing to the injuries received. Buyer v. Railroad, 174 Mo. 351; Van Bach v. Railroad, 171 Mo. 347; Payne v. Railroad, 136 Mo. 534. (3) The court erred in instructing the jury of its own motion. The instruction was erroneous because there was no evidence of any willful, wanton or reckless conduct on the part of the servants of defendant, and the so-called humanitarian doctrine was neither plead nor put in issue by the proof. Clancey v. Railroad, 192 Mo. 560; Holwerson v. Railroad, 157 Mo. 244; Woods v. Railroad, 188 Mo. 258; Tanner v. Railroad, 161 Mo. 511; Sharp v. Railroad, 161 Mo. 235.

      J. L. Minnis for respondent; James M. Rollins and J. A. Rollins of counsel.
    (1) (a) Defendant’s motion to elect came too late. Secs. 598-602, R. S. 1899; Paddock v. Somes, 102 Mo. 226. (b) The motion was without merit. McCarty v. Rood Hotel Co., 144 Mo. 402; Riska v. Railroad, 180 Mo. 183; Clancy v. Railroad, 192 Mo. 641; Moore v. Railroad, 194 Mo. 13. (c) The assignments of negligence were not inconsistent. Moore v. Railroad, 194 Mo. 1; Latson v. Railroad, 192 Mo. 449. (d) If the court committed error in overruling the motion, the error was cured by submitting only one assignment of negligence to the jury. Gardner v. Crenshaw, 122 Mo. 79. (2) The evidence warranted the court in submitting the cause to the jury. Moore v. Railroad, 144 Mo. 1; Latson v. Railroad, 192 Mo. 449; Riska v. Railroad, supra.' (3) The court did not err in giving instruction 3 of its own motion. Cases last above cited. (4) Instruction 3 and defendant’s instruction 2 are consistent. Moore v. Railroad, 194 Mo. 12; Moore v. Railroad, 193 Mo. 420; R. S. 1899, secs. 659-865'.
   LAMM, J.

Pauline White is the widow of Edward White, who was killed while driving a loaded wagon at half past five o’clock p. m. on the 17th day of January, 1902, by a collision with one of defend-r ant’s street cars in the city of St. Louis. His widow sued and recovered $5,000 statutory damages. After the customary precedent steps, defendant appeals here.

Attending to the pleadings, plaintiff grounds her right of action on the following charges of negligence : First, that while her husband was lawfully driving a two-horse wagon loaded with lumber, north oh Twenty-first street, where it intersects Wash street, and when he was about in the middle of said intersection, the agents and employees of defendant in charge of a certain car going east on Wash street so negligently and carelessly ran, managed and controlled said car as to cause it to run into and against said wagon, overturning the same and so injuring her husband that he died as a result of the injuries sustained.

Second, for a further assignment of negligence it is alleged that defendant’s said agents and employees failed to slow up said car as it approached said intersection, which negligence directly contributed to cause and did cause the injury and death of her husband.

Third, plaintiff then pleads an ordinance of St. Louis, known as the Vigilant Watch ordinance, requiring motormen and conductors to keep a vigilant watch for vehicles, either on the track or moving towards it, and to stop the car in the shortest time and space possible on the first appearance of danger to such vehicle, and avers its violation, for that the motorman and conductor of the car doing the injury negligently failed to stop said car within the shortest space and time possible upon the first appearance of danger to plaintiff’s said husband; and plaintiff says such negligent violation of said ordinance directly contributed to cause and did cause his injury and death.

Fourth, and for a further assignment of negligence, plaintiff pleads the provisions of an ordinance regulating the speed of street cars in St. Louis at a maximum of eight miles per hour, that the provisions of said ordinance were negligently violated and such violation of said speed ordinance directly contributed to cause and did cause the injury and death of plaintiff’s said husband.

The answer tendered the general issue, and pleaded facts which, if true, constituted contributory negligence on the part of deceased.

The reply put in issue the new matter in the answer.

The case came on for trial in February, 1904. It seems the suit was brought prior to April, 1902, and that on the 9th day of April, 1902, defendant filed a motion requiring plaintiff to elect “upon which count of the petition she seeks to recover.” Technically there was but one count in the petition, and. the different elements constituting the negligence resulting in the death of Edward White were all set forth in that one. There seems to have been at least one prior trial, if not more; and we infer the motion to elect had been overruled at a prior term. It is not shown that any exception was saved to the first action of the court in overruling this motion; but when the final trial came on defendant’s counsel undertook to orally “renew” the old motion to elect, and the record shows the court overruled it again and defendant excepted. The. old motion, so “renewed” orally at the trial,.was as follows :

“Now comes defendant in the above-entitled cause and moves the court to compel plaintiff to elect between the averment of her petition that- the alleged injuries to Edward "White were caused by the car being run at a rate of speed in excess of eight miles an hour, in violation of an alleged ordinance of the city of St. Louis, and that the alleged injuries to Edward White were caused by the car being run at a rate of speed in excess of eight miles an hour, in violation of an alleged ordinance of the city of St. Louis, and that the alleged injuries to Edward White were caused by said alleged conduct; and the averment that said injuries were caused by the motomnan and condhctor failing to stop said car in the shortest time and space possible on the first appearance of danger, and for grounds of said motion assigns:

“1. That said allegations are contradictory, inconsistent, and one destroys the other.

“2. That even if the car was in fact going faster than eight miles an hour, and there was in fact an ordinance limiting the speed to eight miles an hour, still if snch rate of speed caused the alleged injuries then they could not have been caused by the failure to stop the car in the shortest time and space possible at the first appearance of danger, and if on the first appearance of danger the car could have been stopped in time to prevent the alleged injuries, the said alleged injuries could not have been the result of the speed at which the car was running.”

Attending to the facts uncovered below, they are as follows:

Wash street is sixty feet in width and runs east and west. The sidewalk on either side is twelve feet wide, leaving the travelled way for vehicles thirty-si'x feet from curb to curb. Defendant has two tracks on this street — the south for east-bound cars, the- north for west-bound cars. A block or so west of the place of the accident, Wash street takes a turn, but from the place of the accident to this turn there are no obstructions to vision in the street. The grade from the west to the east is a down grade of two and three-tenths per cent. The south track was so laid in Wash street that its, south rail was 10 feet 2 inches from the curb line. The building line, being twelve feet farther to the south, would be twenty-two feet five inches from the south rail. Twenty-first street runs north and south, cutting into and intersecting Wash at an angle of 'ninety degrees and is of the same width. Anyone standing in Twenty-first, in a continuation of the south building line of Wash, can look west a block. But there was a building at the southwest corner of Twenty-first and Wash. Hence, anyone approaching Wash on Twenty-first going north, would- have to be in (or past) this building line to see a block west. But it was in evidence that if a man stood in Twenty-first street, thirty feet south of the south rail, he could see one hundred feet west in the middle of the east-bound track.

So much for the locus in quo.

At the time in hand decedent was driving north on Twenty-first street and approaching its intersection with Wash. He was driving a team of horses hitched to a wagon arranged1 for hauling wood and lumber. His wagon had no bed, but had a frame suited for plying his business — that of a teamster— and on this occasion was heavily loaded with slabs cut in four-foot lengths. His load, as we understand it, was built up, say, four or five feet above the running gear of the wagon; and he was seated on top of the load, at such a distance back of the rumps of the horses as an ordinary wagon seat would be in an ordinary wagon bed. Allowing some play for the tugs, the singletrees and doubletree — allowing effect to the testimony which made the length of an ordinary horse ten feet from nose to tail — it would seem that the noses of a team of horses coming out of Twenty-first street into Wash would be at least thirteen or fourteen feet in front of the driver, and that a motorman could see the team while it was traveling that distance before he could see the driver or the driver could see the car.

In this condition of things, Edward White drove north into the intersection of Wash and' Twenty-first streets and had crossed over the south track of defendant to such distance that when an east-bound car collided with his wagon, it upset the wagon, throwing it north of the south track. The evidence tends to show that the car struck the wagon either in its center, or at the hind wheel, overturned it, and the load falling on Edward White, crushed his skull, killing him instantly. There was evidence tending to show that White was driving at a moderate pace. One witness testified he was going at a fast walk; another witness, that about the time of the collision, he was going very fast. But the great weight of the testimony tended to show he was traveling the ordinary gait of a work team pulling a heavy load.

One -witness for plaintiff (Mrs. Conway) testified the ear, when she first saw it, was about 150- feet away from the crossing and that it was then running from eighteen to twenty miles an hour. The force of this testimony is impaired by the fact that the record does not disclose the witness qualified to give a speed opinion. She had come into Wash street from Twenty-first, and says she first saw the car and then turned her head and saw the wagon, and the substance of her testimony is that the heads of the horses were about on the track when the car was 150 feet away. She says she saw the driver look up and down, and that he looked west, and she saw him “chop” his horses with the lines. We take it from the context that the witness meant to be understood as saying that at that very time the horses were just on (or to*) the track, and the car 150 feet away.

A little girl, Lola Sanders, stood at the northeast comer of Wash and Twenty-first. She had been to a grocery located on the northwest comer and had crossed Twenty-first street, facing east at the time, and heard the collision, and the crash caused her to look back. According to our interpretation of this child’s testimony she had seen the car and the wagon, before she crossed from the northwest to the northeast corner. She says that when she first saw the car it was midway of the block — 150' or 200' feet away, and that at that time the horses were about on the track —that is, their heads were about on the track. She locates the car at that critical juncture as in front of the residence of Mrs. Sandmeyer, who lived in the center of the block. The Sandmeyer residence was located by other evidence as 216 feet west of the intersection. Lola Sanders says she remembered the day and it was clear and dry and the track was dry. Another witness for plaintiff, Finan, a policeman, testified “it was a muddy kind of a day, ’ ’ it was not raining, and he did not notice the track, but the streets were not dry. Another of plaintiff’s witnesses testified he was standing on the northwest, corner, and when he first saw White he was a few feet south of the track, and the car was then a quarter of a block away.

Referring to the force with which the car struck the wagon, plaintiff’s evidence tended to- show, in substance, that the crash was heard by Simpson and Burke, who were inside close-by houses. The crash was heard by another witness one hundred feet away. It was heard by Finan, the policeman, who was walking his heat on Twenty-first street between Morgan and Franklin avenues — at least a block andi over from Wash street-. But it was further shown by plaintiff’s witnesses that neither the horses nor the wagon were injured, and the car was being slowed up at the moment of the collision and soon came to a stop — one witness saying the east end of - the car stopped at a continuation of the east line of Twenty-first street.’ And, as pointed out heretofore, the force of the collision was sufficient to knock the wagon off the south track and overturn it, top-heavy as it was.

Plaintiff also placed an expert on the stand to prove in what distance the car could have been stopped, and by him showed that at twenty miles an hour it' could be stopped in 150 feet, and at eight miles an hour it could be stopped in forty feet..

Plaintiff offered in evidence and read subdivision number 4 of section 1760 of the Municipal Code of St. Louis, known as the Vigilant Watch ordinance, providing as follows: “The conductor, motorman, grip-man, driver, or any other person in charge of each car shall keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance • of danger to such persons or vehicles, the ear shall be stopped in the shortest time and space possible.”

No speed ordinance, however, was put in, and we-might as well say here that by defendant’s instruction number 10 tbe jury were told there was no evidence to support the charge in the petition that there was an ordinance .of the city of St. Louis limiting the speed of the car to eight miles an hour, and the jury must disregard said charge.

Plaintiff produced an eye-witness, Bessie Class-man — from Russia, into this country, these nine years gone. It will not be necessary to dwell on her testimony. She evidently was puzzle-headed, did not see things in the true perspective, and her story'is told with incoherence, possibly arising from the poverty of her language. She testified the car was half a block away when the wagon was about half way across the tracks; that she was attracted-by Mr. White’s “yelling” to the “car-company” to stop; that when she first saw the horses they were running “awfully fast” —two or three times faster than a person can walk, from eight to twelve miles an hour. Further that “when I saw the yelling, at that time I heard the strike,” and then looked no more because she was seared. She said Mr. White took the lines and made the horses go quicker, “because he could not go quicker when the car was coming.”

Such was plaintiff’s case, with the added fact in proof that the loaos in quo was a much-frequented spot.

On defendant’s part it was shown by one expert that a car of the kind in question, at the place in question, going at seven to eight miles an hour with a light load, could be stopped in between seventy-five and eighty-five feet. This witness was the road officer of defendant company, and he further testified that the car in question could not run at a speed of twenty miles an hour. Defendant produced another expert, an employee, Mr. Risk, one of its motormen, who was familiar with the car and appliances, with Wash street and its grade at the intersection. He testified that, running down grade on the east-bound track at the point in question at the rate of twenty miles an hour with a light load, a ear could he stopped in about eighty or ninety feet. He so said twice. On being further pressed in his examination in chief, he said he did not understand the question ashed him, and, thereupon, he placed his estimate at 125 to 130 feet, and said that the change in his testimony came from the fact that in his first responses he did not figure on as steep a grade as actually existed. Moreover, he testified that a car going at eight miles an hour could be stopped in from seventy to eighty feet.

Defendant produced its motorman and conductor —the testimony of the latter being of no material value. The motorman, Muldoon, testified that he stopped the car at Twenty-second street (a street one block west of Twenty-first) and let off passengers there, and then started up to continue on his way down town — that between Twenty-first and Twenty-second streets, in a distance of about three hundred feet, he had got up speed to nine miles an hour; that he kept a vigilant watch ahead; that when his car got about seventy-five feet from Twenty-first street he saw the heads of the horses appear in the line of “Wash street; that he continued to ring his gong and put on his brake at the same time and thought the team would, stop; that when he first saw that the driver was going to cross he did all in his power to stop ; that when he got right close to the wagon he released his brake and applied the reverse, and that the reverse caused the wheels of the car to revolve in the opposite direction; that the horses were going in a moderate walk and the man was seated in the front of his wagon, and that he put on his reverse when the horses were on the track. He further testified' that he saw the whole progress of the horses from the instant their heads appeared in the line of Wash street until the collision ; that the bumper of the car struck the wagon about the center; that the center of the wagon was in the center of the trade, and the rear, wheels were on the south side of the track, and the front- wheels were on the north side or about on the track; that the north side of the ear’s bumper struck the rear part of the front wheels, and the other part of the bumper, the other part of the wagon; but that the collision was not with ■ the rear wheel of the wagon; that the wagon turned over on its side and was partly on the east-bound track and partly on the west-bound track, but the luriiber all fell over on the north side of the south track; that just the moment the car hit the wagon, it, the car, started to back up. He further said that when he first-saw the horses he applied the brake to get the car under control; that he always applied the brake going down grade; that in this instance he had not applied it all the way down — about half way down; 'that when he commenced to apply the brake he did that to take up the slack, and that was all he did until he got within seventy-five or eighty feet of Twenty-first street; that up to a certain time he thought the driver was going to stop; i. e., that when the horses were entering on the track and then his ear was forty or fifty feet away; that, he had traveled thirty feet while White had traveled twenty-two feet; that when the horses’ heads appeared in the line of Wash street he commenced to reduce the speed; that about forty or fifty feet away from the wagon he applied his reverse, and that at that time, the time he applied his reverse, he had got the speed down to two or three miles, an hour, and after that he went forty or fifty feet until the collision occurred. He further said that at that rate, by the use of the reverse, he could not stop in forty feet. Then this question was asked: “Q. You tell the jury then, that a Car running eight or nine miles an hour, that within thirty-five feet you could check its speed to two or three miles an hour, yet you could not stop it within forty feet, is that your testimony?” His answer was: “Yes, sir. That is what I said.”

Respondent’s additional abstract shows, among others, the following questions and answers during the cross-examination of Mr. Muldoon:

“Q. Now, what else did you do towards stopping the car when Mr. White’s horses entered about forty' or fifty feet upon the track, besides having already applied the brake, and reversing the car, did you do anything else? A. That was all I could do.

“Q. That was all you did? A. Before I reversed I released my brake so my reverse would take good.

“Q. You released your brake and then reversed? A. Yes, sir.

“Q. Is that all you did? A. That is all I could do.

“Q. Is that all you did? A. Yes.

“Q. That is all? A. Yes, sir.

“Q. Now, you have a sand box on your car, haven’t you? A. Yes, sir.

“Q. And the reason you have that sand box is, when on slippery tracks, or a wet track, to prevent your wheels from sliding on the track, and to stop the car you apply the sand to the tracks? A. Yes, sir.

“Q. I will ask you if it is not a fact that when you apply sand to the track and apply your brake that you stop a car in much shorter time than when you do not apply the sand? A. Yes, sir.

Q. And the reason of that is that the sand tends to keep the car from slipping? 'A. Yes, sir.

“Q. You tell the jury at that time on your ear part of the appliances for use was this sand, and you did not use it. A. I used the sand also.

“Q. Didn’t you say three or four times in reply to my question that the only thing you did when you saw Mr. White upon the track was to release the brake? A. Yes.

“Q. And reverse the car? A. Yes.

“Q. Then did I not ask yon twice afterwards if that was all yon did? A. Yes.

“Q. And yon said it was, didn’t you? A. That is all I could do with nay hands. All I did except apply the sand on the rail with nay foot.

“Q. Then the application of sand is an important element in stopping the car, is it not? A. Not SO' important.

“Q. Not so important? A. Yes.

“Q. When did yon apply the sand? A. I applied the sand after I saw he was coming on the track.

“Q. Wlaat? A. Yes, sir; I applied the sand after I saw he was coming on the track.

“Q. That is when he was fifty feet away? A. I don’t know how far away.

“Q. Yon said forty'or fifty feet? A. Yes.

“Q. WTiat was the result of reversing yonr car when yon saw him on the track? By reversing the machinery what do yon make the wheels do ? A. It made the wheels turn over.

“Q. From the time yon reversed the car, the wheels turned in an opposite direction the ear was heading? A. Yes.

“Q. Now, you want the jury to understand from the time yon saw Mr. White enter upon the track after he was forty or fifty feet in front .of yon, yon applied the sand on yonr car at that distance? A. Yes, sir.

“Q. That is yonr testimony? A. Yes, sir.

“Q. And that while the car was running two or three miles an hour, at that time yon applied your reverse? A. Yes, sir.”

Defendant produced an eye-witness, Mr. Watkins, who placed himself at the northeast corner of Twenty-first and Wash, and who said he saw the car when it struck the wagon; that when he first saw the team it was just in the act of going on the track in a moderate walk; that when he first saw the car it was about sixty or sixty-three feet away from the wagon, and the motorman was ringing the gong at that time. On cross-examination he testified, that his attention was first called to the car by the ringing of the gong. He noticed the motorman was trying to stop the car; that when he first saw the wagon and team the front feet of the horses, were in the act of going on the track; that the car was going at a “medium rate” and was slowing up and checking its speed until it struck the wagon; that the wagon had about passed over the track when it was struck; witness noticed that the car was about opposite a post when he first noticed it, and he stepped the distance from where he was to the post and found it to be about sixty or sixty-three feet.

Such was defendant’s case.

At the close of the evidence defendant was refused a peremptory instruction in the nature of a demurrer and saved its exception.

On plaintiff’s prayer the court gave two- instructions, only one of which is criticised; and that one reads as follows:

“1. The court instructs the jury that if they believe from the evidence that on the 17th day of January, 1902, the defendant was operating the railway and ear mentioned in the evidence as colliding with the wagon of Edward White at the intersection of Twenty-first street and Wash street, in the city of St. Louis, then it was the duty of the motorman of said car, upon the first appearance of danger to a person or vehicle either on the track or moving toward it, to have stopped said car in the shortest time and space possible under the circumstances, consistent with the safety of said car and the passengers on said car; and in this case, if the jury find from the evidence that the motorman in charge of defendant’s car saw Edward White on his wagon upon defendant’s track or so near the same as to be in danger of injury, and thereafter could have stopped said car without injury to the same or to its passengers, and by so stopping said car within the shortest time and space possible, under the circum-' stances, consistent with the safety of said car, and its passengers, could have averted injury to said White- and neglected to do so, in consequence of which, neglect to stop, said White was hilled; and if the jury further find from the evidence that plaintiff was the wife of Edward White at the time of his death, then the plaintiff is entitled to recover $5,000, no' more and no less.”

Followed the foregoing, the court gave several instructions, ex mero m,\0tu, only one of which is criticised, to-wit, number 3, reading:

“3. The negligence of White (if you find him to have been negligent) must have directly contributed to or caused the collision and injury in order to be a bar to plaintiff’s recovery; and even though you may believe that White was negligent in going upon the track, still, if you believe from the evidence that the defendant, by the exercise of ordinary care, could have stopped the car with safety to the car and the persons thereon, in time to prevent the collision, after the motorman had discovered the fact that White was in an apparently dangerous situation (if you believe from the evidence that the motorman did so discover) and thereafter negligently failed to so stop said car, and by reason of such failure to stop, the collision ensued which resulted in the death of White, then the plaintiff is entitled to a verdict in her favor, provided, of course, that you find from the evidence that plaintiff was the wife of said Edward White at the time of his death.”

Defendant’s allowed instructions were very full and very fair, covering every phase of the defense. Being refused three instructions, defendant saved exceptions, but (as the matter appears to us) counsel do not now predicate error of such refused instructions; hence, they may be omitted.

On this record, the following assignments of error are leaned on by defendant’s learned counsel: (1) That the court erred in its disposition of the motion to elect; (2) again in not giving defendant’s peremptory, instruction; (3) and again in giving instruction numbered 1 on the prayer of plaintiff, and instruction numbered 3 on its own motion.

Of these in order.

I. Did the court err in overruling the motion to elect? We think not, because:

(a) . No exception to the ruling on this motion at a prior term was preserved by a term bill of exceptions and presented here. The ruling sought to be reviewed was at the trial and made on counsel’s suggestion, ore terms, that they “renewed” the old motion. Our Code of Civil Procedure contemplates that pleadings should be in writing. This included demurrers and motions of like character. [R. S. 1899, secs. 599, 603, 612, 613, 619, 640, 641; Paddock v. Somes, 102 Mo. l. c. 235.] The old motion had served its purpose — was functus officio. The case had progressed beyond that, and if defendant desired to revive this motion, once acted on and exhausted, it should have put life and mettle into it by refiling it. Otherwise, the motion itself could not get into a bill of exceptions, made up of proceedings at the trial term. So that, even on this narrow and technical ground the ruling of the court will do.

(b) . Again (and on broader grounds) it will be seen that the motion is based on the theory that plaintiff should have been held to elect because the allegations in the petition are “contradictory, inconsistent and one destroys another.” Paragraph two of the ■motion is but an amplification of the foregoing generalizations and points out, arguendo, that if the rate of speed caused the injuries, then they could not have been caused by the failure to stop the ear in the shortest time and space possible at the first appearance of danger; and vice versa. That motion, therefore, alone struck at inconsistency and contradiction — that is, that one ground of recovery destroyed the other, that all plaintiff’s theories conld not exist and he true at one and the same time, thus bringing the petition within the maxim, allegans contraria non est awdiendus.,

But an answer to this contention is that, having specified the grounds of the motion, defendant is precluded from urging any ground not specified; for section 640, Revised Statutes 1899, provides that: “All motions shall be accompanied by a written specification of the reasons upon which they are founded; and no reason not so specified shall be urged in support of the motion,” and it must be apparent on the face of things that the averments in plaintiff’s petition charging negligence (whatever may be otherwise said of them) are not inconsistent — do not make a felo de se. All of them could be true at one and the same time. The gist of the specifications of negligence was that deceased was killed through defendant’s fault, in, first, running in excess of ordinance speed, and, second, in not stopping the car when a stop was called for and could have been made — both of which could be literally true together. For instance, if the car had been running at eight miles an hour, deceased might have got over the track and gone safely on his way. So, too, if the car had been stopped, deceased would not have been killed. If plaintiff had pleaded that the car was negligently running so fast that it couldn’t be stopped, then it might be that the only real ground of complaint would be in the fast running, rather than in slow stopping, and some inconsistency might creep in, if the pleader relied on both fast running and slow stopping for recovery; but no such condition exists in this case. Hence, the motion cannot be allowed under the doctrine of Behen v. Railroad, 186 Mo. 430, relied on by defendant, and the court’s ruling can be sustained on the theory there was no contradiction or inconsistency in the allegations of the petition.

(c). But the foregoing does not entirely and fairly dispose of the insistence of defendant’s learned counsel — made outside of the strict grounds of the motion, but still made and raising a question of practice that should be set at rest. They argue that the petition in one count commingles common law and ordinance negligence, and, therefore, the motion to elect was well enough under McHugh v. Railroad, 190 Mo. 85, and the later case of Clancy v. Railroad, 192 Mo. l. c. 640. What was said in the Olancy case was in paragraph one of the opinion, and that paragraph was not concurred in by the court. (P. 658.) In the McHugh case, however, the insistence of defendant was apparently allowed. But presently the Court in Banc confronted the same proposition in Rapp v. Railroad, 190 Mo. l. c. 153. The Rapp case met the approval of six judges, and, through Brace, C. J., we there said this:

“At the inception of the trial the defendant moved the court to require the plaintiff to elect on which one of the causes of action stated in the petition he will stand, upon the grounds: ‘First, that said petition attempts to combine in one count both alleged common law negligence and the alleged violation of an ordinance commonly called the Vigilant Watch ordinance; second, said petition attempts to combine in one count a cause of action ex contractu and a cause of action ex delicto ’ and in the course of the trial the plaintiff was permitted to introduce said ordinance in evidence over the objections of the defendant. The overruling of the motion to elect, and the admission of the ordinance in evidence, are assigned as errors. ■ These assignments of error were argued and considered in the case of Sluder v. Railroad, 189 Mo. 107, in which the whole question is exhaustively treated in the opinions in that case, delivered at the last sitting of the Court in Banc on the first of June, 1905 — and in which the ruling Was adverse to the contention of defendant. Hence, we hold in this, as we did in that case, which is on all-fours with this on these points, and for the reasons stated in the majority opinion therein, that the court committed no error in overruling the motion to elect, nor in admitting the ordinance in evidence.”

In a very late case, Haley v. Railroad, 197 Mo. l. c. 23, Valliant, J., used this language for the Court in Banc; and it met the approval of a majority of my brothers:

“If the supposed ordinance had been in existence the plaintiff would have had the right to plead it as he did and to plead also that the train was running at a rate of speed which, under the circumstances, • amounted to negligence at common law, because the facts stated as constituting a violation of the ordinance might be true and those stated as constituting - common law negligence might also be true. Several acts of negligence of the same nature, and all of which may be true and either of which or all of which together may have caused the accident, may be pleaded in one count.”

Furthermore, it will be found that, barring inconsistent and self-destructive averments, there have been presented to this court in the last half century • hundreds of cases' in which common law negligence and negligence made so by statute (or by some by-law of a city) have been pleaded in the same count and recovery has been allowed on proof of all or one or more of these specifications; and we cannot see why the different elements which blend together to produce the injury (so long as there is no discord between them) may not be so pleaded. The uniform practice has been to so' plead them; no injury results therefrom to defendant that we can see; and there is no more confusion in blending them in one count than would come in setting out each specification of negligence in a separate count.

It may be said, then, that whether the negligence " complained of arises from the violation of a common law duty, or a statutory duty, or an ordinance duty, is of no significance (that is, the mere origin of the duty violated is of no significance) so long as the violated duties produce the one injury and the one damage constituting the subject-matter of the suit. There was no error in overruling the motion because it commingled ordinance and common law negligence.

(d) . But further, there is no merit in the assignment of error now in hand, because there was only one ground of negligence put to the jury. That is to say, conceding the Vigilant Watch ordinance at root is merely declarative of the common law (which view we adopted in Deschner v. Railroad, 200 Mo. 310; see, also, Hovarka v. Railroad, 191 Mo. l. c. 454), and, therefore, conceding that a violation of that ordinance is, in effect, a violation of a common law duty, yet it will be seen the ease was put to the jury on the sole theory that defendant was liable only if by due care and diligence it could have stopped its car in time to have avoided the injury of deceased after he appeared to be in danger — the other theory, to-wit, the speed ordinance theory, being eliminated from the case by the instruction of the court. Hence, no injury could come to defendant from the presence in the petition of elements of negligence eliminated by instruction.

(e) . Moreover, the ruling on the motion was right, because, in the philosophy of the science of pleading, faults in a petition are waived (barring the two cardinal ones of stating no cause of action and lack of jurisdiction) whenever in the evolution of a lawsuit the case once advances to the stage .of joinder of issue on the facts as pleaded. In effect, such joinder is a challenge on the facts and on the facts alone, is a notice that defendant accepts the gage of battle and pitches the battle on the facts and invokes the expense, chances and machinery of a trial on such issue. When, then, defendant, as here, refused to stand on its motion to elect, filed answer, went to trial and took the chances of winning or losing on an issue of fact, it abandoned its motion to elect; for a motion to elect is of no more dignity and potency than a motion to make more specific and certain, than a demurrer, or a motion to strike out because of departure, or because of redundant, irrelevant or frivolous matter; and, therefore, I take it, if a defendant is held (as he is) to have waived Ms demurrer or his motion to strike out or Ms motion to make an allegation more specific by joining issue on the facts by answer, then, as like reason makes like law, he must, by the same token, be held to have waived his motion to elect by answering over except where the allegations are so contradictory as to be self destructive and, therefore, no- cause of action is stated. [Jordan v. Railroad, ante, p. 418.] It was expressly so ruled in Paddock v. Somes, 102 Mo. supra; and, by parity of reasoning, that case is sustained by a line of decisions; for example, Pickering v. Telegraph Co., 47 Mo. l. c. 460’; Thompson v. School District, 71 Mo. l. c. 500; Scovill v. Glasner, 79 Mo. 449; Sauter v. Leveridge, 103 Mo. l. c. 621; West v. McMullen, 112 Mo. 409; Holt County v. Cannon, 114 Mo. l. c. 519; Hill v. Railroad, 121 Mo. 477; (s. c., 49 Mo. App. 520); Walker v. Railroad, 193 Mo. l. c. 472. And is sustained by the policy evidenced by our statutes (see secs. 598 and 602, R. S. 1899).

For the foregoing reasons defendant’s first assignment of error is disallowed.

II. Was plaintiff entitled to go to the jury? It is argued by defendant that the case should have been taken from the jury on two grounds; first, because there was no evidence of negligence; second, because deceased was guilty of contributory negligence as a matter of law. But we cannot agree that either ground is sound. The case was entitled to go to the jury on the evidence of plaintiff’s expert that the car could have been stopped in 150 feet when going twenty miles an hour, and in forty feet in going eight miles an hour, because Mrs. Conway put the horses about on the track when the car was 150 feet away. Miss Sanders’ testimony was to the same effect. Only she put the car further away. Not only so, but Muldoon, the motorman, made a case entitling plaintiff to the judgment of the jury on the issue as to whether or not the car could have been stopped in time to have saved the life of Edward White. He said, in effect, that he saw the heads of the horses appear in Wash street when he was seventy-five feet west, that warned by the progress of the horses towards the track, he got his car within control and had reduced its speed to two or three miles an hour. He puts himself in the situation of having made this reduction in running, say, thirty-five or forty feet, and this without the aid of his reverse or without any sand on the track. He says, in effect, that with the car going at two or three miles an hour he then discovered that deceased was about to cross the track forty or fifty feet in advance of his car; and that he was unable to stop the car in running forty feet more with the aid of his reverse and sand. Was this so, or was it not so? Was it not for the jury to say whether, if the speed of his car had been reduced by five or six miles an hour in running thirty-five or forty feet by the use of the brake, it could not have been brought to a standstill within the next forty feet by the use of emergency appliances? Clearly so. The issue was for the jury, even on Muldoon’s testimony.

On the contributory negligence of deceased, it may be said the evidence showed he negligently put himself in a position of peril; but his prior negligent assumption of a perilous position did not warrant defendant, who had notice of his peril, in running bim down. Conceding such prior negligence of deceased, there still remained to defendant the duty to exercise ordinary care to prevent injuring him. [Rapp v. Railroad, supra; Riska v. Railroad, 180 Mo. 168; Scullin v. Railroad, 184 Mo. l. c. 707, and cases cited; Moore v. Railroad, 194 Mo. l; Eppstein v. Railroad, 197 Mo. 720.]

But, it is argued there were no elements of wilfulness, recklessness or wantonness in the conduct of Muldoon, hence, the contributory negligence of deceased must be held to be the proximate cause of his death and the case falls to the ground. It may be that Muldoon did not act wilfully, wantonly or recklessly. There is nothing in the case to show he did. But wilfulness, wantonness and recklessness are not indispensable elements upon which to base a right of action for the wrongful death of a person. If A wilfully kill B (barring self-defense or justifiable homicide) an action lies. So if D recklessly and wantonly kill 0 an action lies. So, too, if E negligently kill F an action lies. That we have now and then characterized negligence in given cases as tantamount to wantonness, recklessness and wilfulness, was intended, it would seem, as a mere form of characterization, as descriptive color — as epithets plastered on negligence in certain forms. It was never our intention to decide that an action would not lie where A negligently placed himself in a position of peril so far away from B, controlling the dangerous instrumentality, that B could have prevented A’s injury by the exercise of ordinary care and did not exercise it. [Hinzeman v. Railroad, 182 Mo. l. c. 623, et seq.; Rapp v. Railroad, 190 Mo. l. c. 161, and cases cited; Eppstein v. Railroad, supra.]

III. There was no error in giving instructions 1 and 3. They are shown to be proper declarations of law under the facts of this record and follow approved precedents. [Sluder v. Railroad, 189 Mo. 107; Levin v. Railroad, 140 Mo. 624; Hovarka v. Railroad, 191 Mo. 441; Schmidt v. Railroad, 149 Mo. 269; Bunyan v. Railroad, 127 Mo. 12.]

The judgment, being right, is affirmed.

All concur, except Woodson, Jnot sitting.