source: Caselaw Access Project

author: WOODSON, J. PER CURIAM.

license: Public Domain

text:
    CO-OPERATIVE LIVE STOCK COMMISSION COMPANY v. JAMES A. BROWNING et al., Appellants.
    In Banc,
    July 2, 1914.
    1. CAUSE OF ACTION: Conspiracy Between Commission Merchants Not to Buy from or Sell to Another Commission Merchant: Damages. Sections 10298-10305, Revised Statutes 1909, forbidding a combination “in restraint of trade or competition in the importation, transportation, ■ manufacture, purchase or sale of any product or commodity in this State or any article or thing bought or sold whatsoever,” and giving to “any person injured in his business or property” by such combination the right to “recover threefold the damages by him sustained,” do not give to a commission merchant a cause of action against other commission merchants engaged in buying and selling live stock for entering into a pool and combination to neither sell to nor buy from him live stock, nor to permit any other commission merchant to remain a member of their live-stock exchange who either sells to. or buys from him. Such commission merchant is not engaged in trade, but is simply the agent of those who are. Nor could a combination between the other commission merchants result in “restraint of competition in the importation, transportation, manufacture, purchase or sale of any product or commodity in this State.” Nor are such other- commission merchants purchasers within the meaning of the statute, since the combination was not entered into for the purpose of doing the things prohibited by the statute, hut solely to injure the said merchant’s commission business. In order that such commission merchant may have a cause of action under such statutes against the other commission merchants composing the association or exchange, it is necessary both to allege and prove that as a result of such combination injury resulted to plaintiff’s patrons or customers, or to stock raisers or shippers, or to the trade in live stock at the particular stock yards, or that importation of live stock thereto or transportation of live stock therefrom was lessened.
    2. HISTORY OF STATUTE: Combinations in Restraint of Trade. To properly ascertain the meaning of a remedial statute it is the duty of courts to read it in the light of its historical setting, to hold in view the existing evils it was intended to abolish, and to examine the instrumentalities provided by the Legislature for their destruction; and if the antitrust statutes are so viewed, it is apparent- that their purpose was to prohibit pools and combinations that would restrict commerce or increase the prices of the necessaries of life, either by limiting competition or the supply, or by “boycotts” or rebates to drive small dealers out of business. They never were intended to give to a mere agent engaged in the purchase and sale of any such necessary for others the right to recover damages from other such agents for the mere refusal to buy from or sell to him.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Reversed and remanded.

      Edward J. White, Martin L. Glardy, J. Walter Farrar, Ball & Byland, Kinley & Kihley and B. W. Goldsby for appellants.
    (1) The petition is insufficient. State v. Loomis, 115 Mo. 307; Cooley, Const. Lim. (6 Ed.), 484; 2 Story on Const. (5 Ed.), 1950; Gladdish v. Live Stock Exch., 113 Mo. App. 725; Anderson v. United States, 171 U. S. 604; United States v. Greenhut, 51 Fed. 210; In re Greene, 52 Fed. 104; Rice v. Oil Co., 134 Fed. 464. (2) The verdict and judgment were against the law. R. S. 1899, secs. 8981, 8978. (3) The acts of 1899 and 1907 are unconstitutional, insofar as they or either of them purport or may be construed to give an action against defendants. State ex rel. v. Associated Press, 159 Mo. 461; State v. Coffee Co., 171 Mo. 634; Sbiveley v. Lank-ford, 174 Mo. 535; State ex rel. v. Vandiver, 222 Mo. 206; State v. Julow, 129 Mo. 163; In re Goode, 3 Mo. App. 230; State ex rel. v. Lafayette Co. Ct., 41 Mo. 39; State v. Persinger, 76 Mo. 346; Witzman v. Railroad, 131 Mo. 612.

      Gage, Ladd & Small for respondent.
    (1) “We would seem to lack perception of the true nature of things were we to be deceived or blinded by the screen or pretense which the conspirators raised to mask their operations. Courts should be as astute to discover and discern the truth as the guilty are to conceal it.” Foot-Race Case, 147 Fed. 327. (2) There is abundant evidence tending’ to prove that the defendants and all other members of the traders’ exchange boycotted and threatened others not members of their exchange for and from doing business with the plaintiff. (3) In order to constitute a boycott or threaten to boycott, it was not necessary to use or-threaten violence to the person or property of anyone. It is sufficient if there was an injury or threat to cause a loss to another’s business. Door Co. v. Fuelle, 215 Mo. 4221. (4) “The rule of reason” is excluded by our statutes, and any combination which tends to limit or control or lessen trade or competition, no matter how little, falls within the condemnation of the antitrust laws of this State. State v. People’s Ice Co., 246 Mo. 221. (5) As a matter of law an agreement between defendants or between them and other members of the traders exchange not to buy from or sell to the plaintiff’s customers through the plaintiff, was a combination, agreement, trust, pool, association and conspiracy, etc., to restrain and limit trade and competition at this great cattle market at the stockyards in Kansas City, and whether such limitation or restraint of trade was “great or small,” the law was violated. State ex rel. v. People’s Ice Co., 246 Mo. 221. (6) “It is the combination or agreement that results in restraint of trade that the statute denounces, whether the result is accomplished by the act of each individual on his own account, doing as he agreed to do, or by the joint action of all. . . . It is the combination to accomplish that result that the statute is aimed to prevent. ’ ’ State ex rel. v. Live Stock Exchange, 211 Mo. 193; State ex rel. Barker v. Assurance Co., 158 S. W. 644. (7) All the sections and articles' of our antitrust statutes are in pari materia and must be construed as if contained in one act. Hence it follows that section 8981 in article 2 of chapter 143, relating to pools, trusts and conspiracies, Revised Statutes 1899, which gives triple damages to any person injured in his property or business arising from any violation of that article, also gives such triple ’damages arising from any violation of any provisions of article 1 of said chapter 143. State v. Oil Co., 218 Mo. 354; State v. Elevator Co., 106 N. W. 983; Brewing Co. v. Belinder, 97 Mo. App. 64. (8) It is too late to challenge the constitutionality of our antitrust statutes for the alleged reason that they interfere with the right to contract or take property without compensation, or due process of law, or deny any person the equal protection of the law. All these questions have long since been foreclosed and settled by this court. Standard Oil Case, 218 Mo. 378. (9) The case of Anderson v. United States, 171 U. S. 604, so much relied on by the defendants, is not in point. All that case decided, as has been held by the Court of Appeals of this State and the Supreme Court of Kansas, was that the members of the traders exchange were not engaged in interstate commerce; and therefore the Sherman Act did not apply. Brewing Co. v. Belinder, 97 Mo. App. 64; State v. Wilson, 84 Pac. 737. Furthermore as pointed out in State ex rel. v. Live Stock Exchange, 211 Mo. 197, and State v. Aikens, 83 Kan. 792, all the rules of the traders exchange were not before the court in the Anderson case, especially the rule requiring the payment of a thousand dollar entrance fee, and the approval of two-thirds of the members before any person could enter the portals of the exchange and be a trader on the yards with none to molest or make him afraid. Besides, it may be said that when the Anderson case was decided this antitrust legislation was a sort of a “Mysterious Strarger” — to be kept at a dignified and perfectly proper distance — and did not meet with the cordial reception and hearty welcome which its great virtues entitled it to, and which it has since, upon better acquaintance, been accorded, especially by the Supreme Court of this State. (10) The statutes so far as they provide for a civil suit to recover triple damages are not penal. Atlanta v. Foundry & Pipe Works, 127 Fed. 23; Casey v. Transit Co., 116 Mo. App. 250. (11) It is settled in this State that the enforcement and construction of these antitrust statutes is not to be “approached with a sour face;” but these statutes are remedial and must be liberally construed, so as to advance the remedy for the great wrongs therein denounced. It is the policy and purpose of the law that these statutes shall be rigidly enforced against all wrongdoers, and that the guilty shall -not escape through any astute or artificial construction which subverts the general intent of the lawmakers — which was to destroy the whole brood' of • trusts and combines against trade in this State, from the least unto the greatest. State v. Oil Co., 218 Mo. 359; State ex inf. v. Ins. Co., 152 Mo. 43. (12) The antitrust laws apply to commission merchants. The learned counsel for the appellants, neither at the trial of the case below nor in their briefs in this court, made any claim or point that the antitrust statutes did not apply to combines or boycotts against commission merchants, and therefore we did not argue that point or submit any authorities. In State ex rel. v. Live Stock Exchange. 211 Mo. 181, this court passed upon the very question, and held that the statute did apply to commission merchants, members of the Kanass City Live Stock Exchange. See, also, State v.. Wilson, 73 Kan. 334. So the record in this case shows that all the live stock-cattle, hogs and sheep — which comes to Kansas City is sent to commission merchants and sold by them. It is true that they sell on commission and do not own the stock, but they are the parties who actually sell it on the market, and for the most part the owners never know for what the stock is sold until after a report of the sales is made. The commission men represent the owners, stand in the place of the owners and they áre certainly bound and controlled by the antitrust laws of this State. And they can enter into an agreement and combine for the purpose of restraining trade and competition, or of lessening or raising prices, or doing anything which the owner himself could do in violation of the antitrust law. The antitrust law was primarily enacted for the purpose of protecting the producers and the consumers of farm products and other necessaries of life from combinations or monopolies which affect the prices or which tend to lessen competition in the trade. It is well known that nearly all of the food products, both raw material and finished, are for the most part handled by commission men, who, of all others, are in a position to enter into combines affecting the prices and trade and competition in the same. Butter, eggs, cheese, potatoes, flour, sugar, apples, oranges, lemons, fruits of all kinds, live stock — cattle, hogs, sheep, goats — poultry are bought and sold, and the prices are fixed, as a matter of fact, by commission merchants. And this antitrust statute was passed mainly, for the very purpose of protecting the producers and consumers of these food stuffs — the farmers and the town people — from combines and trusts formed by commission men. Therefore, to read them out of the benefits or the penalties of these statutes, would be to defeat the primary purpose of the law. There is nothing in the statutes saying that the combines or contracts or agreements in restraint of trade, condemned by the statutes, can only be or must be made by the owners of the products. But the statute says, “If any two or more persons or corporations who are engaged in buying or selling any article of commerce,” Sec. 8978, R. S. 1899; that “all arrangements, contracts, agreements or combination between persons or corporations, or between persons or any association of persons or corporations, designed or made with a view to' lessen, or which tend to lessen, full and free competition,” Sec. 8966, R. S. 1899; and “Any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade or competition,” Sec. 8965. The same language is used in the revised law of 1907. So that it is nowhere suggested or implied in any section of the statute, or in any óf the language used, that a vicious agreement in restraint of trade can only- he made by the owners of the produce; but it is assumed that such agreements may be made by others, to-wit, by their agents and other persons engaged in the actual business of buying or selling or fixing the prices, such as commission merchants. To hold otherwise would be to expose the producers of food stuffs (the farmers) and the consumers (the town people) to all the evils which the statute so clearly intended to prevent. This cannot be the law. The section of the statute providing the remedy says that “any person injured in his business” by a violation of the statute shall have a cause of action. He does not have to be the owner of anything, but if his business is injured or destroyed by an illegal combine, he can recover his damages. These statutes are highly salutary and remedial in their purpose, and are not to be destroyed or' repealed by a 'strict or hostile construction. State v. Oil Co., 218 Mo. 359, 384, 460; State ex inf. v. Ins. Co., 152 Mo. 43; State ex inf. v. Oil Co., 194 Mo. 148; State ex inf. v. Packing Co., 173 Mo. 356. All who are engaged in trade must be embraced in these antitrust laws, otherwise they are void as discriminatory and invading the equal protection of the law provisions of the Federal Constitution. The first Illinois antitrust law was declared void because it exempted “live stock while in the hands of the raiser.” Connolly v.- Pipe Co., 184 Ü. S. 554.
   WOODSON, J.

— The plaintiff instituted this suit November 5,1907, in the circuit court of Jackson county against the .defendants, to recover $96,000, actual and treble damages alleged to have been sustained by reason of a pool, trust, combination 'and agreement made and entered into by and between them and others, to destroy the plaintiff’s business — live stock commission business — at Kansas City, Missouri, in violation of the statutes hereinafter mentioned.

A trial was had which resulted in a verdict of $19,500, in favor of the plaintiff, and under the statute the court trebled that sum and rendered judgment for the plaintiff and against the defendants for the sum of $57,500.

This suit is novel, in that it differs from all others growing out of pools, trusts and combines, with which I am familiar, and is a fight between agents or the so-called middle men, and not between the State or her officers against manufacturers aiid carriers or financial or industrial institutions for conspiring to control commerce, prices, etc., except in an incidental manner, if at all, which will be presently stated, coupled with the earnest insistence of counsel for defendants that the petition does not ’state facts sufficient to constitute a cause of action against the defendants, and these facts necessitate a reproduction of it here, formal parts being omitted:

PETITION.

“Plaintiff states that it is, and at all the times hereinafter mentioned, was a corporation dnly organized under the laws of the State of Colorado, and duly authorized and licensed to do business in the State of Missouri.

“That at all such times the plaintiff was and still is empowered and authorized to carry on, and actually engaged in, the business of a live stock commission merchant, buying and selling cattle, hogs, sheep and liye stock of all kinds, on commission, for its patrons and customers, at the Kansas City stockyards, in Kansas City, Jackson county, Missouri; and that the defendants and others are and were at all such times traders and speculators engaged in buying and selling cattle, hogs, sheep and other live stock, and especially live stock known as ‘stockers’ and ‘feeders’ hereinafter mentioned, at said stockyards, and were and are members of a voluntary association known as the Traders Live Stock Exchange.

‘ ‘ The Kansas City Stockyards Company is and for many years has been a corporation owning and conducting said stockyards at said Kansas City, for the purpose of affording a market for the buying and selling of live stoek produced in the State of Missouri, and other States and Territories; and that by its charter said, company is required to keep said market open and free for the'use of all persons and corporations desiring to trade thereat, and for that purpose it has at all times owned and maintained large yards and pens, together with the necessary driveways, troughs, buildings and equipment for the care, handling and sale of such live' stoek.

“That at all such times and .at the present time large numbers of cattle, hogs, sheep and other live stock have been and are daily shipped and transported from said State of Missouri, and other States and Territories to said Kansas City stockyards, and are bought and sold upon said market. That said market is the second largest live stock market in the United States.

“That the live stock so sold upon said market is divided into two general classes; fat stock, or stock fit to be slaughtered, which is nearly all purchased by the packers and order buyers (said order buyers being perT sons who purchase such stock on orders for dealers at other localities), and ‘stockers’ or ‘feeders,’ which, for the most part, consist of cattle not fitted or ready for slaughter, and which are bought at said market by the defendants and other members of said Traders Live Stock Exchange, who, as aforesaid, are and were traders and speculators upon said market, and who, in turn, resell the same to farmers and cattle feeders, to be taken to the country to be fed and fattened, and ultimately returned to the market as fat cattle, to be sold for slaughter. ■

‘ ‘ That a greater number of such stockers and feeders are and have, for many years past, been bought and sold in said Kansas City stockyards than at any other market in the United States; and that such stockers and feeders constitute a very large part of the cattle received at said market, more than seven hundred thousand such stockers and feeders being annually received and sold thereat.

“That besides the plaintiff, there are and at all such times were a large number of other persons and corporations doing business at said Kansas City stockyards, as live stock commission merchants, all, or practically all, of whom, except the plaintiff, are and were at all such times members of a voluntary association known as the Kansas City Live Stock Exchange. That the plaintiff never was a member of said association, and during the times herein mentioned has been the only commission merchant doing business at said stockyards not a member of said Kansas City Live Stock Exchange. That at all such times the plaintiff has charged less commissions for buying and selling cattle, hogs, sheep and other live stock for its patrons and customers, than were charged and collected for buying and selling such live stock by the other commission merchants at said stockyards, who, as aforesaid, were and are all members of said Kansas City Live Stock Exchange, and that plaintiff has sold large numbers of fat cattle for its patrons and customers.

“That at all times herein mentioned the plaintiff has had and still has a very large number of patrons and customers, raisers and feeders of live stock, who were and are desirous of buying and selling their stockers and feeders through the plaintiff, as such commission merchant, and would have done so and would do so now but for the combination and conspiracy against the plaintiff entered into and maintained by the defendants, as hereinafter stated.

“Plaintiff states that it commenced its said business as a commission merchant at said stockyards on the first day of September, 1906, and ever since said time has been and still is engaged in such business at said stockyards, as hereinbefore stated.

‘ ‘ Plaintiff further states that at the time- of and immediately before the date of the commencement of business by the plaintiff, the defendants, as such traders and speculators, buyers and sellers, of live stock, and especially of stockers and feeders at said stockyards in Kansas- City, Jackson county, Missouri, created, entered into and became members of and participated in a pool, trust, agreement, combination, confederation and understanding among and between themselves and each other and between themselves and other members of said Traders Live Stock Exchange, in restraint of trade and competition in the importation, transportation, purchase and sale of such stockers and feeders at said Kansas City stockyards, in this State, by agreeing among and between themselves and with each other, and between themselves and other members of said Traders Live Stock Exchange and the members of said Kansas City Live Stock Exchange, to refuse to buy from or sell to any of the plaintiff’s patrons or customers through the plaintiff as such commission merchant, any such stockers and feeders at said stockyards, and in pursuance of such pool, trust, agreement, combination, confederation and understanding, have ever since then refused and still refuse to so buy or sell through the plaintiff, any such stockers or feeders at said Kansas City stockyards.

“Plaintiff further states that at the time and immediately before the date of the commencement of business by the plaintiff, the defendants as such traders and speculators, buyers and sellers of live stock, and especially of stockers and feeders at said stockyards in Kansas City, Jackson county, Missouri, created, entered into and became members of and participated in a pool, trust, agreement, combination, confederation and understanding among and between themselves and with each other, and between themselves and other members of said Traders Live Stock Exchange and the members of said Kansas City Live Stock Exchange, to regulate, control and fix the price of such stockers and feeders, so bought and sold at said Kansas City stockyards, by agreeing among and between themselves and with each other, and between themselves and other members of said Traders Live Stock Exchange, and the members of said Kansas City Live Stock Exchange, not to buy from or sell to any of the patrons or customers of the plaintiff through the plaintiff as such commission merchant, any such stockers or feeders, and ever since* then, in pursuance of such unlawful combination and understanding, refusing, and still refusing to so sell to or buy from the patrons or customers of the plaintiff any such stockers or feeders at said Kansas City stockyards.

“And plaintiff states that at the time and immediately before the date of the commencement of business by the plaintiff, the defendants, and other members of said Traders Live Stock Exchange, as snch traders and speculators, buyers and sellers of live stock, and especially of stockers and feeders, at said stockyards in Kansas City, Jackson county, Missouri, created, entered into and became members of and participated in a pool, trust, agreement, combination, con- . federation, association and understanding to control and limit the trade in snch stockers and feeders and to limit competition in such trade by refusing to buy from or sell to any of the patrons or customers of the plaintiff through the plaintiff as such commission merchant, any such stockers and feeders, for the reason that plaintiff was not a member of or party to such pool, trust, agreement, combination, confederation, association and understanding, and boycotted and threatened and ever since then have boycotted and threatened, arid still boycott and threaten any and all persons from so . buying or' selling any such stockers or feeders to the plaintiff’s patrons or customers through the plaintiff as such commission merchant; and that plaintiff is not and never has been a member of or party to said pool, trust, agreement, combination, confederation, association and understanding in reference to such stockers and feeders aforesaid.

“Plaintiff says that the defendants, ever since the plaintiff commenced business as aforesaid, have maintained and continued and still maintain and continue such pool, trust, agreement, combination, confederation, association and understanding and conspiracy in restraint of trade aforesaid. That at all the "dates and times herein mentioned, the defendants have entered into, among and between themselves and with each other, and between themselves and other members of said Traders Live Stock Exchange, and the members of said Kansas City Live Stock Exchange, arrangements, contracts, agreements, combinations and understandings designed and made with a view to lessen, and which tend to lessen lawful trade and full and free competition in the importation, transportation and sale in this State of such stoekers and feeders at said Kansas City stockyards in Kansas City, Jackson county, Missouri, in this, that at the time aforesaid when plaintiff commenced business, ever since then and still, the defendants, by an arrangement, contract, agreement, combination, understanding and conspiracy in restraint of trade, among and between themselves and with each other and between themselves and other members of said Traders Live Stock Exchange and the members of said Kansas City Live Stock Exchange, at all such times have refused and still refuse to buy from any of the patrons or customers of the plaintiff through the plaintiff, as such commission merchant, any such stoekers and feeders, and have at all such times refused and still refuse to sell to any of the customers or patrons of plaintiff, through the plaintiff as such commission merchant, any such stoekers or feeders.

“Plaintiff further states that defendants, and said other traders and speculators at said stockyards, also bought and sold thereat, large numbers of cows, calves and other live stock, and that all the above agreements, combinations, pools, trusts, arrangements, conspiracies and acts of defendants and others, hereinbefore set forth, against the plaintiff and its customers and patrons, also related to, embraced and included cows, calves, and. all other live stock so dealt in by said defendants and other traders and speculators, as well as stoekers and feeders as hereinbefore set forth.

“And plaintiff states that by reason of the unlawful and illegal acts and conspiracies of the defendants, aforesaid, the plaintiff has been wholly prevented from buying or selling or doing any business as such commission merchant, in such stoekers and feeders, cows, calves and other live stock bought and sold and dealt in by the defendants and said other traders and speculators and'members of said Traders Live Stock Exchange, at said stockyards, as aforesaid, and is still so prevented and disabled from doing any such business. That but for the said unlawful acts and conspiracies of the defendants, as aforesaid, the plaintiff, owing to its large number of patrons and customers, would have done a large business at said stockyards in buying and selling such stoekers and feeders, cows, calves and other live stock on commission, from which it would have realized a profit of twenty thousand dollars in the aggregate, from the date when it commenced business as aforesaid up to the date of the filing of the petition herein.

“Plaintiff states that before it commenced business as aforesaid, as such commission merchant, Blanchard & Ehrke and Burnside-Jardon Company were and for a long time had been engaged in the live-stock commission business at said stockyards, and had a large number of customers and patrons, for whom said commission merchants did a large business, in handling such stoekers, feeders, cows, calves and other live stock dealt in by the defendants and said other traders and speculators; that for the purpose of enabling the plaintiff to start its said business with a large number of customers for the class of live stock last above mentioned, at great expense, it purchased from said Blanchard & Ehrke and said Burnside-Jardon Company, their said live-stock commission business, including the good will and patronage thereof, and also entered into contracts, employing agents and salesman for the purpose of carrying on said business, and paid out large sums of money as salaries to such agents and salesmen, in endeavoring to carry on said business, but that plaintiff was wholly unable to do any such business whatever, on account of the unlawful and illegal acts and conspiracies of the defendants, as aforesaid, and was obliged, at great cost and expense to itself, to cancel said contracts of employment; by reason of all of which the plaintiff was damaged and actually lost the sum of twelve thousand dollars.

“Plaintiff further states that the defendants, at the time they entered into the unlawful trusts, agreements, combinations and conspiracies hereinbefore set forth, knew that the necessary inevitable result thereof, and of their acts aforesaid, in pursuance thereof, would be to prevent the plaintiff from deriving the profits aforesaid, and to cause it the actual loss and damage aforesaid.

“That the plaintiff has been injured in its business by the defendants, by reason of the unlawful acts and conspiracies of the defendants aforesaid, and thereby sustained damages in the sum of at least thirty-two thousand dollars.

“Wherefore, plaintiff prays judgment against the defendants for the sum of ninety-six thousand dollars, being three-fold damages sustained by it, for costs of suit, and for reasonable attorneys’ fees, all as required and allowed by the statutes in such case made and provided. ’ ’

ANSWER.

The answer was:

“First: That the defendants deny each and every allegation in said petition contained.
“Second: That section 1 of the Laws of 1899 (page 316), being section 8978, Revised Statutes 1899, and section 4 of said act being section 8981, Revised Statutes 1899, are unconstitutional in that, said enactment (a) violates section 28 of article 4 of the Constitution of Missouri, by containing more than one subject, and by failing to express in the title of said act, as being within the object and scope thereof, a private personal right of action in damages for its violation; and (b) in so far as said act and each section thereof undertakes to prohibit and make unlawful a refusal to buy from, sell to or deal with any person or corporation for any reason whatever or for the reason stated in said act, it is unconstitutional and in violation of section 30 of article 2 of the Constitution of Missouri, and Amendment Fourteen of the Constitution of the United States, in that it deprives persons of liberty and property without due process of law; and (c) said aet violates said provisions of the Constitution of the State of Missouri and of the United States by depriving persons of liberty and property without due process of law, in so far as said act undertakes to prohibit and make unlawful any agreement between two or more persons to refrain from or refuse to do business with any other person for any reason or for the reason mentioned in said act.
“Third: The act of March 19, 1907 (Laws 1907, page 377), is unconstitutional in that:
(a) Its title contains more than one subject in violation of section 2& of article 4 of the Constitution of the State of Missouri:
(b) It violates section 30 of article 2 of the Constitution of Missouri, and Amendment Fourteen of the Constitution of the. United States, in so far as it undertakes to make unlawful án agreement between two or more persons to refuse to buy from or sell to any other person for the reason mentioned in said act, and in so far as it undertakes to prohibit individuals from separately or together refusing to have dealings with any other persons in the conduct of their individual business it undertakes to deprive them of liberty and property without due process of law -within the meaning of the State and Federal Constitutions aforesaid.
“Wherefore, the defendants pray judgment.”

I. It is earnestly insisted by counsel for appellants that the petition filed in the cause does not state facts sufficient to constitute a cause of action against their clients.

This insistence is predicated upon many grounds stated; hut from the view we take of the case it will not he necessary to follow counsel through their long and able arguments made in support thereof.

I am satisfied that the statutes under which this suit was brought and prosecuted, do not give the plaintiff a cause of action against the defendants, even though it should he conceded that everything charged in the petition he true.

In passing upon the sufficiency of the petition we must first get a clear conception of the principal facts charged therein before we can intelligently apply the law thereto.

(a) The petition charges that the plaintiff is a corporation organized for the purpose of buying and selling live stock on commission, at the Kansas City Stock Yards; (b) that the Kansas City Stock Yards is a corporation, organized for the purpose of affording a market for buying and selling live stock, and that its charter requires it to keep said market open and free for the use of all persons desiring to trade thereat; (c) that the live stock bought and sold on that market consisted of two classes, fat stock purchased by packers, and stockers or feeders,which are not fit for slaughter and are sold to feeders, and after being fattened are then sold to the packers; (d) that the Kansas City Live Stock Exchange is a voluntary association, composed of individuals and corporations each engaged in buying and selling in said yards, live stock on commission —the fat stock to the packers, and the thin or stockers, to the traders, who will be specially noticed later; (e) that the Traders Live Stock Exchange, of Kansas City, was a voluntary association, composed of individuals and corporations, each engaged in buying and selling live stock of all kinds on their own account. Their principal business, however, was to purchase feeders and stockers, which they then sold to farmers and feeders ; (f) that defendants were members of the latter exchange; (g) and the plaintiff, as previously stated, was a commission merchant, or agency • pure and simple, engaged in buying and selling live stock of all kinds, for a commission, for its various patrons; hut it was not a member of the Kansas City Live Stock Exchange or of the Traders Live Stock Exchange, previously mentioned.

Now, the gravamen of the plaintiff’s charge is, that the defendants, who were traders, as previously mentioned, and members of the Traders Live Stock Exchange, entered into a pool, trust and combination, among themselves, and the other members of the Traders Live Stock Exchange, whereby it was agreed and understood that none of them would buy of or sell to plaintiff, any kind of live stock; also that they would not buy from or sell to any member of the Kansas City Live Stock Exchange, who bought or sold live stock to the plaintiff, and thereby forced the plaintiff out of business, to its great damage, etc.

In other words, the plaintiff charges that in violation of an act of the Legislature approved March 19, 1907, Laws 1907, pp. 377 to 382, being same as sections 10298, 10300, 10301, 10305 and 10313, Revised Statutes 1909, defendants entered into a pool, trust and combine, by which they agreed among themselves and with others, that they would not trade with the plaintiff; also by which they agreed not to trade with anyone who did trade with it and thereby drove the plaintiff out of business, to its damage, etc.

, Those sections of the statute, in so far as here material, read as follows:

“Section 10298. Any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade or competition in the importation, transportation, manufacture, purchase or sale of any product or commodity in this State or any article or thing bought or sold whatsoever, shall be deemed and adjudged guilty of a conspiracy in restraint of trade, and shall be punished as provided in this act.
“Section 10300. Any two or more persons engaged in buying or selling any article of commerce, manufacture, mechanism, commodity, convenience, repair, any product of mining, or any article or thing of any class or hind whatsoever, who shall create, enter into, become members of or participate in any pool, trust, agreement, combination, confederation, association or understanding to control or limit the trade in any such article or thing, or to- limit competition in such trade, by refusing to buy from or sell to any other person any such article or thing aforesaid, for the reason that such other person is not a member of or a party to such pool, trust, combination, confederation, association or understanding, or shall boycott or threaten any person from buying or selling to any other person who is not a member of or a party to such pool, trust, agreement, combination, confederation, association or understanding in such article-or thing aforesaid, shall be deemed and adjudged guilty of a conspiracy in restraint of trade, and punished as provided for in this act.
“Section 10301. All arrangements, contracts, agreements, combinations or understandings made or entered into between any two or more persons, designed or made with a view to lessen, or which tend to lessen, lawful trade, or full and free competition in the importation, transportation, manufacture or sale in this State of any product, commodity or article, . . . and any person or persons creating, entering into, becoming a member of or participating in such arrangements, contracts, agreements, combinations, or understandings shall be deemed and adjudged guilty of a conspiracy in restraint of trade, and punished as provided for in this act.
“Section 10305. Any person injured in his business or property by any other person or persons by reason of anything forbidden or declared to be unlawful by this act may sue therefor in any circuit court of this State in which the defendant or defendants, or any of them, reside, or have any officer, agent or representative, or in which any such defendant or any agent, officer or representative may be found, without regard to the amount in controversy, and shall recover threefold the damage by him sustained, and the costs of suit, including a reasonable attorney’s fee.
“Section 10313. The enactment and taking effect of this law shall not. have the effect to release or extinguish any penalty, forfeiture or liability incurred by any corporation or person on account of the violation of any law of this State prior to the taking effect of this act.”

In approaching the construction of these statutes two things should be borne in mind: first, what object did the Legislature intend to accomplish by said enactment? and, second, in what manner were the rights of the plaintiff affected by the economy thereof? I say economy, because the rights of the plaintiff, if any, are secondary and incidentally flow from the principal object of the act.

In order to properly appreciate the meaning of all remedial statutes, to which these belong, it is the duty of the court to investigate and ascertain the evil that existed, which the Legislature intended to abolish by the enactment, as well as the inducements offered and instrumentalities created for the abolition of said evil.

If we look back of the year 1899 (when'this class of legislation was first enacted in this State, of which the present statutes are amendatory), which it is our duty to do, it will be seen from the current literature of the day, and especially in the great daily papers of the country, that those who were engaged in almost all classes of production, manufacture, transportation and financial business, were organizing their respective businesses into pools, trusts and combines, for the purpose of limiting competition, reducing expenses and increasing their profits, with no intention, however, at that time, if I am correctly informed, to restrict commerce or to increase the prices of the necessities of life. But as time passed, the survivors of the new regime, becoming more avaricious and expert in combinations, conceived the idea that, since the law of supply and demand governed both the buying and selling prices of all articles of commerce, they could respectively extend the pools, trusts and combines, so as to limit not only competition, and lessen expenses, but also limit the supply of practically all of the necessities of life, and thereby increase the demand and correspondingly increase the prices to be paid therefor, by the public. ’ Not only that, but by a system of boycotts, rebates, etc., the “big business” drove the little fellows out of business entirely, and thereby established pools, trusts and monopolies among themselves, and thereby, as previously stated, enabled them to not only limit production and restrain trade, but also to fix and maintain both buying and selling prices of all articles of commerce.

By that cold-blooded, avaricious and narrow business policy which so limited production, stifled trade and increased prices, an outraged and long-suffering public, through its Legislature, in 1907, enacted, among others, the statutes previously set out, for the purpose of destroying said pools, trust and combinations, and thereby restore competition and left the regulation of prices to be governed according to the old law of supply and demand, and to protect the weak against the strong, or the individual against the combinations.

I think that this is a true brief history of onr legislation upon this subject.

It goes without saying that the plaintiff contends that it belongs to the weak and individual class mentioned, and that the statutes under consideration were intended for its protection, and the punishment of the strong.

Is this contention of plaintiff sound? I think not; for the reasons to be presently stated.

By looking at said section 10298, previously copied, it will be seen that it is leveled at all persons who enter into any pool, trust or combination for the purpose of limiting trade and competition in the‘importation, transportation, manufacture, purchase or sale of any product or commodity in this State, etc.

The plaintiff, as previously stated, was simply a commission merchant or agency, engaged in buying and selling live stock for others, on the Kansas City stockyards, for a commission. The plaintiff neither produced, manufactured, owned or carried any article of commerce, nor was it authorized to so do by its charter. That being true, as stated in the petition, it would be illogical and we would he unwarranted under the language of these statutes to hold that the pool, trust or combine formed against the plaintiff could in any manner result in ‘ restraint of trade or competition in the importation, transportation, manufacture, purchase or sale of any product or commodity in this State.” This is true for the reason that the plaintiff, as stated, was not engaged in trade, within the meaning of the statute, but was the agent of those who were so engaged, and as such it could not lessen competition, importation, transportation, manufacture, purchase or sale of any product or commodity of this State.

The questions of competition in transportation, restraint of trade and the purchase and sale of live stock shipped to Kansas City, are controlled by the transportation companies, the owners of the stock, and the punchaseis thereof, and not by the commission man or sales agent, at Kansas City.

But it might be suggested that the defendants were purchasers within the meaning of the language used. In answer to that suggestion, it is sufficient to state that while they are purchasers, yet it is not stated, nor is it a fact, that the combination charged against them was entered into for the purpose of doing the things prohibited by the statutes, but that it was formed solely to injure the plaintiff’s commission business, and that by reason thereof, it, and not the public* was damaged.

' There is no allegation contained in the petition that the unlawful pool, trust and combination formed by the defendants and other members of the Traders Exchange was formed for the purpose of doing injury to the plaintiff’s patrons or customers, or to damage any other stock raiser, shipper, buyer or seller, but the charge is that they simply agreed among themselves not to buy or sell live stock through the plaintiff as a commission merchant.

For these reasons the patrons of the plaintiff should be entirely eliminated from the consideration of the case; all references to them but befog the legal propositions involved in the case.

There is no pretense that the combination charged against the defendants was intended to or did have any effect upon competition in the transportation of live stock to Kansas City; that it resulted or could in any manner have resulted in the restraint of trade, or was, intended to or could have fixed or maintained prices within the meaning of the antitrust statutes; but as charged in the petition, was entered into for the purpose of injuring the plaintiff in its business as a commission merchant.

But independent of that, it is common knowledge, which the Legislature knew, as well as all others do, that the live stock business of Kansas City does not depend upon any one -or more commission merchants, but upon the broad territories of rich land in the center of which that city is located — blessed with copious rainfalls and deep floods of warm sunshine, .producing the finest quality and greatest quantity of grain and grass that grow upon Grod’s footstool, the food of man and beast. Recognizing these natural conditions favorable to a great live stock market, the Legislature enacted the laws in question for the use and benefit of the public, and not for the benefit of the commission men who sell the stock on the market.

That being true, and the further fact appearing from the petition that the plaintiff is not a member of the Kansas City Live Stock Exchange, and not a member of or eligible to membership' in the Traders Exchange, and having no authority under its charter to purchase or sell live stock on its own account, but upon commission only, I see no legal objection to the right of the defendants, individually or collectively, to-determine with whom they will or will not deal, so long as that agreement does not limit commerce or control prices.

I am now speaking of the plaintiff’s rights and duties under the statutes, and not at common law, which I presume would afford redress for a wrong of this character if proven to the satisfaction of the jury.

If I correctly understand the meaning of the petition, the right of recovery is not predicated solely upon the facts that the conspiracy charged to have been made and entered into by and between the defendants and the members of the Traders-Exchange, would entitle it to a recovery, if it were not -for the further fact charged, that some agreement and the enforcement thereof not only damaged the plaintiff, hut that it also, in a degree, destroyed competition in the live stock business at Kansas City, and tended to fix and maintain prices. That is to say, there being at the time complained of, say two hundred live stock commission merchants in Kansas City and the plaintiff being one of them, then the unlawful conspiracy of the defendants against the plaintiff thereby destroyed competition in that business to the extent of one two-hundredths part thereof, by forcing it, one of the sales’ competitors, out of the market.

I must confess that this is a novel proposition and probably would be more forceful had the plaintiff been engaged in the buying and selling of live stock upon its own account and not for others upon commission, as the petition charges. Should such an agreement be carried into execution it would reduce the number of commission merchants in Kansas City from two hundred to one hundred and ninety-nine, but would that in any manner result in restraint of trade in the live stock business or tend to increase the prices to be paid therefor upon that market?

A commission merchant, as such, neither produces nor ships live stock to any market, but his business is, as charged in the petition, confined to selling live stock to packers, order men and traders, raised and shipped to market by third parties. In other words, the commission man is simply an agent engaged in the business of selling one man’s cattle to another for an agreed or a reasonable fee. That being unquestionably true, then can it be said that this petition charges or could truthfully charge that the live stock owner, the packer, trader or the consuming public was or could be damaged by the agreement complained of in this case?

It seems to me that the most damaging conclusion that could be drawn from the statements is that by forcing the plaintiff from the Kansas City market, the number and possibly the efficiency of the sales’ agencies of the market were diminished to that extent; but can it be declared as a matter of law that the natural result of that diminution of agency would necessarily lessen competition or increase the price of live stock in Kansas City, within the meaning of the- statutes! I 'think not. No authority is cited in support of or against this proposition, and I have been unable to * find any bearing upon the subject.

In order to accomplish such an effect under the statutes, if possible, which I deny, the petition should have charged and the evidence should have shown that by thus driving plaintiff out of business, the selling agencies of live stock on the Kansas City stockyards were so diminished and impaired that they were unable to handle the live stock consigned to that market, and that by reason thereof the market became glutted and the demands of the public could not be supplied, although there was a superfluity of -live stock on the market for sale.

In construing these statutes, can it be seriously contended that the Legislature, when enacting them, had in mind this remote, if possible, condition of affairs, which had never existed and in all probabilities never will? This is one of the instances where the asking of the- question answers it in the negative.

But by way of illustration: Suppose some member of this court and I had been trading with The Peck Dry Goods Company of Kansas City; that this afternoon we should step into that store and request one of the clerks therein to show us certain articles of merchandise ; that in response thereto the clerk should say to us he would not do so because he considered us undesirable customers; that thereupon we should walk out of the store and agree between ourselves not to trade with The Peck Dry Goods Company any more, through that, clerk; and that we should notify said company of that fact, could it be seriously contended that our said agreement would be a violation of the- antitrust statutes of this State and that we would be liable to Peck & Company for treble damages or for any other kind of damages for that matter! I think, clearly, not; and that being unquestionably true, then how can it be logically said that the defendants in this case are liable to the plaintiff, the commission man or sales ’ agent of the stock growers mentioned in this case? There is not one whit of difference in principle between the two cases. Neither could or would interfere in the remotest degree with commerce, tend .to stifle trade, create a monopoly or to fix or maintain prices. It might damage the individual commission man or sales ’ agent, but no one else.

Entertaining these views of the petition and the statutes upon which it is bottomed, I am clearly of the opinion that no cause of action is stated against the defendants.

The judgment of the circuit court is, therefore, reversed and the cause remanded.

PER CURIAM.

— The foregoing opinion of ‘Wood-son, J., written in division, with the illustration added near the end thereof, is adopted as the views of the Court in B>anc.

The judgment is therefore reversed and the cause remanded.

* Brown, Bond and Walker, JJ., concur; Graves and Baris, JJ., concur in result; Lamm, G. J., dissents.


author: WILLIAMS, C. PER CURIAM.

text:
    COLBY HALL v. MANUFACTURERS COAL AND COKE COMPANY, Appellant.
    In Banc,
    July 2, 1914.
    1. NEGLIGENCE: Contributory: Safe Place to Work: Demurrer to Evidence. The evidence for plaintiff tends to show that defendant’s foreman came into the mining room in which plaintiff was the sole worker and plaintiff asked him if he thought more of the roof would fall. After inspecting the part of the roof that afterwards fell the foreman assured the plaintiff that the roof was sound and safe. Plaintiff was somewhat inexperienced, was not familiar with the kind of rock in the roof, hut thought the foreman would know. Relying on his assurance of safety plaintiff continued to work in the room, and within two hours thereafter a large slab fell and injured him. Expert miners testified for the plaintiff that the slab was of a kind that became-loosened slowly and gradually and that a proper inspection by the foreman would have disclosed that the rock was liable to fall. On the other hand plaintiff’s evidence tended to show that, ordinarily, it was the duty of the plaintiff to look out for his own safety in the room in which he worked and that the duty of defendant was to furnish such props as might be required to prop the roof. Held, that it could not be said that plaintiff was guilty of contributory negligence as a matter of law, and that the trial court did not err in overruling a demurrer to the plaintiff’s evidence in' an action for damages.
    2. -:--: -: Negligent Assurance: Instructions. Where plaintiff’s claim for damages, as disclosed by his petition and evidence, is based on the negligent assurance of defendant that the roof of the mining room in which he worked was safe, an instruction undertaking to cover the whole case was erroneous which did not require the jury to find that the assurance was negligently given, and this error was not cured by the giving of another instruction which undertook to set forth what facts would constitute a negligent assurance.
    3. -: -: -: -: Reliance Thereon: Instructions. An instruction that although the jury might believe that the plaintiff knew, or by the exercise of ordinary care might have known, that the mining room in which he worked was not safe, yet this did not defeat a recovery if they found that he was negligently ordered into the room, and the danger was not such as to threaten immediate injury, is criticised for failure to require a finding that plaintiff relied upon the assurance of safety.
    4. -:--: -: Injury not Disputed: Instructions: Assumption of Suffering, etc. Where the fact of plaintiff’s injury is not disputed, an assumption, in an instruction, of his suffering, injury and loss of time, is not error.
    5. PLEADING: Special Damages. Special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged in the petition.
    6. --: -: Negligent Injury: Impotence. Under allegations in the petition in a personal injury case, that plaintiff’s body was severely and permanently wounded, torn and mangled, that his hips, pelvis, legs and ankles were broken and torn, that he is permanently injured, and that he will always suffer great bodily pain, etc., evidence was not admissible to show that his injuries had rendered him impotent. Impoteney in such case is a matter of special damages that must be specifically alleged. [Overruling, in part, Gurley v. Railroad, 122 Mo. 141, and Moore v. Transit Co., 226 Mo. 689.] [LAMM, C. J., and WOODSON, J., dissenting.]

      Appeal from Knox Circuit Court. — flow. Charles D. Stewart, Judge.
    Reversed and remanded.

      Campbell é Ellison and Higbee & Mills for appellant.
    (1) The court erred in admitting evidence of plaintiff’s impotency and loss of sexual desire, because not pleaded, and not shown to be a natural result of the injury. Dr. Nunn testified he could not say that the injuries caused impotency.' Moore v. Transit Co., 226 Mo. 698. (2) The court erred in overruling the defendant’s demurrer to the evidence at the close of plaintiff’s case. Plaintiff testified Shaw made the usual inspection of the roof; it was solid. Shaw’s test was made in the usual and customary manner and was sufficient, especially as he had the right to assume that plaintiff was an experienced miner. No inference of negligence arises from the fact that the rock fell. The master is not an insurer. Later plaintiff made the same test, with the same result. The defect was latent. Shaw’s test was made two or three hours before the rock fell. Plaintiff was engaged as a day man, not as a miner, when hurt. His duty was' to make dangerous places safe. It was an assumed risk. If he had been an experienced miner he would not have been injured. 26 Cyc. 1139; Stanley v. Railroad, 59 N. W. (Mich.) 393. The master is not liable for latent defects. 26 Cyc. 1145; Howard v. Railroad, 173 Mo. 524; Bohn v. Railroad, 106 Mo. 429; Bennett v. Lumber Co., 116 Mo. App. 699. • (3) The court erred in giving plaintiff’s instruction 1. (a) It purports to cover the entire case and ignores the issue of plaintiff’s contributory negligence. No instruction was given on that issue. It was equivalent to instructing the jury there was no evidence of contributory negligence. McMahon v. Ex. Co., 132 Mo. 649'; Raybourn v. Phillips, 160 Mo. App. 534; Hill v. Drug Co., 140 Mo. 433; Scanlan v. G-ulick, 199 Mo. 449: (b) It erroneously predicated plaintiff’s right to recover if “the said foreman negligently directed plaintiff to clean up the rock and other debris,” etc., without defining or advising’ the jury what constituted negligence. There was no definition of actionable negligence in any instruction. Raybourn v. Phillips, 160> Mo. App. 551. (4) The court erred in giving plaintiff’s instruction 2. Williams v. Coal Co., 127 S. W. 1000: (5) The court erred in giving plaintiff’s third instruction. Britt y. Crebbs, 158 S. W. 65. (6) The court erred in giving plaintiff’s fourth instruction. It -was equivalent to advising the jury that in the opinion of the court there was evidence authorizing them to find that some witness or witnesses for defendant were gnilty of perjury. The evidence did not authorize it. Schmidt v. Railroad, 149 Mo. 289'; Bank v. Murdock, 62 Mo. 74; White v. Maxey, 64 Mo. 559; McCormick v. Monroe, 64 Mo. App. 201; • Sampson v. Railroad,- 156 Mo. App. 425: (7) The court erred in giving plaintiff’s fifth instruction, (a) It assumes pain and suffering, loss of time and service since plaintiff’s recovery, (b) It authorizes the jury to assess plaintiff’s damages in their discretion without regard to the evidence.

      Fugate d¿> Son and Charles E. Murrell for respondent.
    (1) There is no plea of contributory negligence contained in defendant’s answer. Ramp v. Met. Sb Ry., 133; Mo. App. 700; Cain v. Wintersteen, 144 Mo. App. 1; White v. United Ry. Co., 157 S. W. 593. (2) Appellant’s fifth assignment of error is that the court erred in admitting the evidence of plaintiff’s impotency because the same is not pleaded and because it was not a natural result of the injuries. The court in the case of Moore .v. Transit Co., 226 Mo. 689', holds that all injuries which naturally result from the main or specific injury alleged, may be shown without being specially pleaded and held that impotency could be shown under the above allegation. The petition in the case at bar we contend is broad enough to permit the introduction of plaintiff’s impotency. There are many cases in Missouri holding that resulting infirmities from injuries may be shown under a general averment though not specially pleaded, among which are: Fleddermann v. Transit Co., 134 Mo. App. 199'; Wilbur v. Railroad, 110' Mo. App. 688 ; Yancleve v. Railroad, 124 Mo. App. 224. In the Yancleve case plaintiff was permitted to prove and recover for hemorrhages of the lungs and pulmonary consumption under the allegation that the plaintiff’s “Breast bomwas broken,- her chest bruised and crushed and that she was permanently wounded.” We contend that plaintiff’s impotency is shown by the evidence to be the natural result of the character of injury received by him. Epstein v. Railroad, 143 Mo. App. 135. Appellant complains that the trial court did not sustain its demurrer at the close of plaintiff’s ease. Under this heading appellant misstates the testimony as shown by the record. Plaintiff does not testify that Shaw made the usual inspection of the roof. Plaintiff says that he sounded the rock right over plaintiff’s head in the usual manner, while if the testimony of the witnesses are to be believed this slab of rock nine feet wide and eleven, feet .long could have been sounded by. Shaw and its dangerous condition ascertained had he examined the roof of the room. Shaw’s test was not made in the usual and customary manner or he would have sounded other places in the roof other than directly over plaintiff’s head. We take this to be a matter of common knowledge. It is not true as stated by appellant that plaintiff made the same test that Shaw did with the same result. There is no evidence that plaintiff tested this rock or the roof in the room on the morning of the injury. The evidence is to the contrary. Neither is it true that Shaw’s test was made two or three hours before the rock fell. Finally appellant contends that if respondent had been an experienced miner he would not have been injured; then it is fair to presume that if Shaw had been an experienced and competent foreman that plaintiff would not have been ordered into a place of danger and injured. We submit that plaintiff made a submissible case. Carter v. Baldwin, 107 Mo. App. 217; Lackland v. Coal Co., 110 Mo. App. 634; Swaringen v. Mining Co., 212 Mo.- 524; Fisher v. Lead Co., 156 Mo. 479. It is contended by respondent that all of the instructions given on behalf of respondent were erroneous because they ignored the issue of plaintiff’s contributory negligence. As heretofore stated the question of contributory negligence is not in this case. There is no allegation in plaintiff’s petition that he was in the exercise of ordinary'care and no allegation in defendant’s answer that respondent was guilty of negligence contributing to his injury. See cases cited under Point (1). This question is decided adversely to appellant in the recent case of White v. United Rys., 157 S. W. 593L Respondent’s instructions are in practically the same form as instructions in case of Carter v. Baldwin, 107 Mo. App. 217. The case at bar is on all fours with the Carter case and the court says “The instructions given are in harmony with the view herein expressed and we think correctly present the law to the jury.” Lackland v. Coal Co., 110 Mo. App. 634; Swaringen v. Mining Co., 212 Mo. 524; Hammond v. Coal & Coke Co., 156 Mo. 232; Sheperd v. Railroad, 189 Mo. 362; Clippard v. Railroad, 202 Mo. 432.
   WILLIAMS, C.

— This is an action to recover damages for personal injuries received by plaintiff while working in defendant’s coal mine near Novinger, Missouri. Suit was instituted in Adair county and on change of venue was sent to Knox county where trial was had resulting in a verdict and judgment in favor of plaintiff in the sum of $23,666. That portion of plaintiff’s petition charging; negligence is as follows:

“The defendant negligently, carelessly and recklessly set him to work in one of the rooms in said Mine number 50, known as room number 4 off the 10th west entry off the main south entry, at a place in said room where the rock, earth and other materials form- ' ing the roof of said room were in a loose and dangerous condition and liable to fall at any time; and did negligently, carelessly and recklessly fail and neglect to warn or notify the said plaintiff that the roof of said room, at the point and place where plaintiff was compelled to be in order to perform the work as directed, was in a loose and dangerous condition as aforesaid; but said defendant, its agents, employees and mine foreman did carelessly, negligently and recklessly assure this plaintiff that the roof of said room at the place aforesaid was in a safe and secure condition, and this plaintiff believing said foreman possessed superior knowledge of said roof, relied upon said statement and assurance and set about the work as directed; and this defendant had negligently, carelessly and recklessly failed and neglected to furnish and provide a safe, competent and proper man in charge of said room, and did negligently, carelessly, and recklessly fail and neglect to furnish and provide safe, competent and proper men in charge of said mine us mine foreman, and did negligently, carelessly and recklessly fail and neglect to furnish the said plaintiff with a reasonably safe, sufficient and proper place in which to perform his duties, and did negligently, carelessly and recklessly fail and neglect to warn or notify the said plaintiff of the dangers of working in said room, this plaintiff being then and there an inexperienced miner, and ignorant by reason thereof of the dangers lurking in said roof of said mine, which said facts the defendant well knew or by the exercise of ordinary care could have known.”

The petition further alleges that by reason of the negligence and carelessness of the defendant, as above stated, and without any warning to him, a large slab of rock from the roof of said mine fell upon plaintiff. Defendant’s answer contained, (1) a general denial, (2) that plaintiff’s injury “was due solely to his own negligence and carelessness in not properly taking care of and securing said room and the roof thereof,” (3) plea of assumed risk.

Plaintiff’s evidence tended to establish the following facts: At the time plaintiff was injured he was working in said mine in a room which was about twenty feet wide and fifty feet long; the roof of the room being a short distance above plaintiff’s head. While he was at work picking up some loose rock from the floor of this room, a slab of rock, nine feet wide and about eleven feet long and varying in thickness from a “feather edge” to eighteen inches, fell from the roof of the mine upon him. Prior to the accident, plaintiff had worked in this room about three and one-half days, three days of the time being spent in the work of digging coal. On the day preceding the day of the accident, plaintiff set 33 props under the roof in this room and drilled some holes and loaded them with powder. After he left the mine that day, these holes were fired, as was the custom, by the shot-firers. The next morning (the day that the injury occurred) plaintiff returned to the mine about 6:30 a. m., and after warming himself in the boiler room went down into said mine and to said room. Upon arriving there he found that during the night a considerable quantity of rock had fallen from the roof of the room and that the props had fallen (caused, possibly, by the firing of the shots). It was the custom in the mine that loose rock that fell from the roofs of the different rooms was cleaned up and taken away by special men which the company had in their employ for that work. Defendant’s foreman came into plaintiff’s room that morning and commented on the amount of loose rock that was down and told the plaintiff to clean out “a couple of cars of coal in front” and that then the company would clean up the rock. To this plaintiff said “all right” and then asked the foreman if he (the foreman) thought any more of the roof would fall. In answer to this question, the foreman took plaintiff’s pick and tested the roof above the place where plaintiff was working and after sounding the roof told the plaintiff that it was sound and safe. This was about an hour and a half or two hours prior to the accident. After the foreman left the room, plaintiff cleaned up the two cars of'coal and then went to see a Mr. Batley, who was then in the employ of defendant to do the special work of cleaning up the fallen rock from the rooms. Upon being asked by plaintiff as to when he could come and clean up said rock, Batley replied that he could not get to it that day and directed plaintiff to'go and see the foreman, Mr. Shaw, about it. Plaintiff thereupon called upon and requested the foreman to get some one else to do the work of cleaning up the loose rock. The foreman made the proposition to plaintiff that he (plaintiff) clean up the loose rock and that the company would pay him “extra” for doing that work. To this plaintiff agreed; returned to his room and started to clean up the loose rock. After having picked up five or six pieces of rock and while he was in the act of lifting another piece the slab fell upon him. The slab fell from that portion of the roof which the foreman had just previously inspected. The slab gave no warning of its breaking away. Plaintiff testified that he did not know that the roof was dangerous; he testified that he sounded the roof and that it sounded solid to him — but it does not appear from the evidence as to the exact time that plaintiff sounded the roof; as to whether it was on the day of the accident, and after the foreman had sounded the roof, or during the three previous days that he worked in the room, or on the morning of the accident and before' the foreman sounded the roof, the evidence is silent. Plaintiff further testified that he was not an experienced coal digger; that, while he had worked in the mines about four years at different times and places, most of his work had been driving mules in the mines, etc., and that he had had only about two months’ experience in digging coal. He testified that he was not familiar with the character and formation of the rock in this mine and that when the foreman of the mine sounded the roof and told him it was sound and safe, he relied upon what the foreman said, because he thought the foreman “would know, if anyone would.” By plaintiff’s other witnesses it was shown that there was a defect in the formation of the rock in the roof of this room. The defect was known as a “clay slip” and that this kind of defect made a roof very dangerous and treacherous and that the air would get into the rock formation at this defective place and sometimes in the night and sometimes in a day and a half or two days the rock would loosen so that it would fall, depending upon the kind of rock and the conditions surrounding it. One of plaintiff’s witnesses, an expert miner, testified that he examined the rock after its fall and that it was his opinion that the rock in question loosened by slow process and that the air would strike the rock where it broke and it “would gradually break away from the place where it was exposed to the air.” Plaintiff’s evidence further tended to show that if this rock had been examined one or two hours before it fell by a practical miner its dangerous and loose condition could have been ascertained. That if the roof is loose and dangerous it will sound hollow and drummy, and that if it is solid, it will sound solid. The evidence tended to show that it was the duty of the miners to look after the safety of the roof in the rooms in which they worked. Plaintiff was receiving $2.56 a day for doing the kind of work he was doing at the time he was injured. As to plaintiff’s injuries, the doctor testified that one of plaintiff’s legs was broken and one foot was broken in the angle joint, causing two or three bones to protrude through the skin; that the bones of the pelvis were dislocated; that some of the nerves of the body were paralyzed and that plaintiff suffered severe pain and was confined to his bed about three months and that he considered plaintiff’s injuries permanent. The plaintiff testified, as to his injuries, that he had suffered severe pain; that by reason of the injuries received he was confined to his bed thirteen weeks, and after that it was about four weeks before he could use crutches; that he then used crutches three months and after that and from June until October he moved about by the use of a cane and that at the time of the trial he was able to walk without the use of a cane; that the injuries affected his sleep and rendered him impotent and that as a result of the injuries he had practically lost his sexual desire. The doctor also testified that, if plaintiff was impotent, his impotency was,, in his opinion, caused by the injuries. Defendant objected to the introduction of this evidence on the ground only that the petition did not allege an injury of that kind, which objection was over ruled by the court and -defendant excepted. Plaintiff testified that at the time of trial he -was making three dollars a day working as a check-weighman; that his duty was to see that the company weighman correctly weighed the coal for the various miners; that during the summer he had endeavored to do some work shoveling on the streets; that he would be able to wo.rk one day if the work was not too heavy and would then have to lay off the next day and that finally he had to quit the work because he could not stand it. The evidence on the part of defendant tended to show that it was the duty of the miner to look after his own room. Charles Batley testified that plaintiff came to him the morning of the accident and told the witness that the roof in his room was bad and that the rock was down and wanted him to come and look at it. .Another of defendant’s witnesses testified that after the accident plaintiff admitted to him that he was fixing a place to set a prop when the rock fell. Mr. Shaw, the defendant’s foreman, at the time of the injury, testified for the defendant that he no longer worked for the defendant hut was at present engaged in running a drug store. This witness' denied that he was in the plaintiff’s room on the morning- of the accident and denied that he sounded the roof or that he told plaintiff the roof was solid and that the only talk he had with plaintiff on that day was when plaintiff came to him and he employed plaintiff to clean up the loose rock. This witness further testified that when he first showed plaintiff the room (which was about four or five days before the accident) he told plaintiff of the “clay slip” in the room and that the support must not be taken out from under the roof at that place.

Plaintiff’s instructions numbered 1, 2, 3,- 4 and 5, which are challenged by appellant, are as follows:

“1. The court instructs the jury that if you believe from the greater weight of evidence in the cause: That at the’time plaintiff was injured he was in the employ of the defendant company as a laborer in the ground of defendant’s mine, and that he was in the charge of and under the control and direction of one D. P. Shaw, as mine foreman in said mine, and that Said Shaw was employed by the defendant to act as such foreman; and if you further believe that as such foreman said Shaw had authority, and that it was his duty, to have charge of and direct the work and the manner in which plaintiff was engaged at the time he was injured ; and that it was the duty of the plaintiff to obey the orders and directions of said mine foreman as to the place and manner of doing' the work in said mine at the time plaintiff was injured; that while so engaged and in obedience to the commands and directions of said mine foreman the said foreman negligently directed plaintiff to clean up the rock and other debris in room No. 4 referred to in plaintiff’s petition and prior to said command had assured said plaintiff when inquired of, whether it was safe to work in said room on account of the top or overhanging rocks, that it was safe and that the plaintiff in obedience to said orders, and relying upon said assurance did go to work and commence to clean up the rock and other debris in said room and while in obedience to said orders he was in the discharge of the duty and.work assigned him a large slab of rock fell from said top or roof which resulted in plaintiff’s injuries then the plaintiff is entitled to recover in this action, unless precluded for some other reason assigned in the further instructions given you.
“2. The court instructs the jury that notwithstanding you may believe from the evidence in the cause that the plaintiff knew, or by the exercise of ordinary care on his part could have known, that the position he was working in, at the time he was injured, in room 4, in question, was not a safe one, yet, this does not and should not defeat his recovery in this-case; if you further find and believe from the evidence that he was negligently ordered into this position by the defendant’s mine foreman, D. P. Shaw, and was assured by the said Shaw that the slab of rock that fell on plaintiff would not fall and that the danger from the said slab of rock overhanging said place was not of such glaring and dangerous nature as to threaten immediate injury in case he obeyed said order.
“3. The court instructs the jury that if you find and believe from the greater weight of the evidence in the cause that the slab of rock which fell upon and injured the plaintiff was in a loose and dangerous condition in the roof of room number 4 of defendant’s mine number 50 on the morning* of November 24, 1908, and that the defendant’s foreman D. P. Shaw inspected and sounded the same and found the same to be loose and in a dangerous condition and liable to fall or if by the exercise of ordinary care on his part he could have discovered the loose and dangerous condition thereof by said inspection, if the same was in a loose and dangerous condition, if you find that.he did so inspect said rock, and assured plaintiff that it would not fall and that after the said assurance on his part he ordered plaintiff to work in said room beneath said slab of rock, then said order was negligently made and said assurance was negligently given within the meaning of these instructions, unless the danger was of. such a glaring nature that no prudent person, under the circumstances, would have obeyed the order.
“4. The court instructs the jury that they are the sole judges of weight and credibility of the testimony of the witnesses in this case and if they find and believe that any witness has wilfully sworn falsely to any material facts at issue in this case, then the jury are at liberty to disregard the whole or any part of such witness’s testimony.
‘ ‘ 5. The court instructs the jury that if you find the issues for the plaintiff, in .determining the measure of damages, you may take into consideration the mental and physical pain and suffering endured by plaintiff since said injury in consequence thereof, the character and extent of said injury and its continuance, if permanent, together with his loss of time and service. And you may find for him in such sum as in the judgment of the jury, under the evidence, will be reasonable compensation for the injury, not to exceed the sum of thirty-nine thousand, nine hundred dollars.”

I. It is contended that the court erred in overruling defendant’s demurrer, to the evidence. In support of this contention appellant refers to defendant’s evidence which is in conflict with the evidence offered by plaintiff. It is too well settled to need citation of authority, that in determining whether a demurrer to the evidence should have been sustained or overruled, defendant’s evidence tending to show absence of plaintiff’s right to recover cannot be considered, but the demurrer must be tested by the strength of plaintiff’s evidence aided by any of defendant’s evidence that may help make out plaintiff’s case. And in passing upon the sufficiency of the evidence challenged by demurrer, the general rule is that plaintiff’s evidence and ‘ ‘ every reasonable inference of fact arising therefrom” is to be taken as true. [Stauffer v. Railroad, 243 Mo. 305, l. c. 316.] Proceeding, then, to a review of plaintiff’s evidence, we find that defendant’s foreman came into the mining room in which plaintiff was the sole worker and that while there plaintiff asked the foreman if he thought more of the roof would fall, thereby inferring that plaintiff had some doubt about the matter. In answer to this question, or request, the foreman took plaintiff’s pick and undertook to inspect the roof for the purpose of determining its condition. The foreman inspected the part of the roof that afterwards fell and injured plaintiff and after making an inspection assured plaintiff that the roof was sound and safe. Plaintiff testified that he was somewhat inexperienced, was not familiar with the character of rock in the roof, but thought the foreman would know and relied upon the foreman’s assurance; that relying on this assurance of safety, he continued to work in .said room and in an hour or two thereafter the slab fell causing plaintiff’s injuries. The testimony of expert miners, testifying in plaintiff’s behalf, further tended to show that the slab in question became loosened slowly and gradually and that if a proper inspection of the.roof had been made at the time the foreman made the inspection it could have been discovered that the rock was loose and liable to fall. The above facts were within the scope of negligence alleged in the petition and were sufficient to make defendant’s liability a question for the jury’s-determination.

It is true that plaintiff’s evidence tended to show that, ordinarily, it was the duty of plaintiff to look out for his own safety in the room in which he worked and that the duty of the defendant was to furnish such props as might be required for use in propping the roof. But even though, as a general proposition, this be conceded, yet, when defendant’s vice-principal, the foreman, came into the room and in answer to plaintiff’s question or request undertook or assumed the duty of making an inspection as to the safety or soundness of the roof it undoubtedly then (if not before) became the duty of the defendant to exercise ordinary care to ascertain the true condition of the roof and (at least) to inform plaintiff of the facts that ah ordinarily careful inspection would have revealed.

In discussing a very analogous situation, involving the care that defendant should exercise in performing an assumed duty, the Supreme Court of Illinois in' the case of Consolidated Coal Company v. Scheiber, 167 Ill. 539, l. c. 545, said:

“Whether, therefore, it was the duty of appellant (the defendant company) or not to prop the roof, still, if it assumed that duty and undertook to discharge it, and did so in such a careless manner that the'roof was thereby loosened and rendered more liable to fall, and the plaintiff was in the exercise of due care for his own safety, as alleged and as necessarily found by the jury, the appellant would be liable. Saving undertaken to perform the loork it became its duty to perform it in a proper manner, whether bound in the first place to perform it at all or not.” (Italics ours.)

The evidence in the case at bar does not show-that the danger was so' obvious and glaring that a reasonably prudent man would not have continued to work in said room and plaintiff testified that he relied upon the assurance of safety made by the foreman. Under the facts disclosed by the evidence it should not therefore be said that plaintiff was guilty of contributory negligence as a matter of law. [Swearingen v. Mining Company, 212 Mo. 524; Hamman v. Central Coal and Coke Company, 156 Mo. 232.] It follows therefore that the court did not err in overruling the demurrer to the evidence.

II. It is further contended that the court erred in giving plaintiff’s instructions numbered 1, 2, 3, 4 and 5. (Instructions are copied in full in foregoing statement.)

It will be seen by comparison of the testimony with the allegations of the petition that the only actionable negligence which the evidence tended to support was the negligent assurance given by defendant’s foreman to plaintiff as to the soundness or safety of the roof, relied’ upon by plaintiff and given by the foreman knowing that plaintiff would most likely continue to work in said room, and further perhaps in permitting or “setting plaintiff to work” in said room after giving such negligent assurance without correcting the same.

Plaintiff’s instruction number 1 undertakes to cover the whole case, at least the whole case so far as the actionable negligence of defendant is concerned. It will be noticed that this instruction does not require the jury to find that the assurance was neg*ligently given. It does not require the jury to find facts which would amount to a negligent assurance. By that instruction the defendant is made an insurer as to the correctness of the facts disclosed by said assurance without regard to whether the assurance was or was not negligently given. Defendant upon assuming the duty of inspecting the roof was not bound to give plaintiff absolutely correct information about the condition of said roof, but only such information as a reasonably careful inspection, under the circumstances, would have revealed. The negligent assurance, as involved by the facts of the case, lies at the very foundation of plaintiff’s cause of action, for if the jury should find that there was no negligence in the giving of the assurance then there would have been no negligence in perr mitting plaintiff to work in said room under the facts disclosed by the evidence in this case, as discussed in the preceding paragraph. In support of the correctness of his instructions, plaintiff cites a line of cases of which the following cases are fair samples: Swearingen v. Mining Company, 212 Mo. 524; Carter v. Baldwin, 107 Mo. App. 217. In fact plaintiff’s instruction number 1 so closely resembles instruction number 1 in the case of Carter v. Baldwin, supra, as to indicate that the instruction in the latter case was used as a form or model for the instruction in the case at bar. While the instructions in the Carter case were discussed but slightly, yet, it appears from the facts stated by the court in that case that the question of assurance was in the case to the extent only of relieving plaintiff from the effect of contributory negligence or assumed risks and was not the essence of the actionable negligence as in the case at bar. The same is true as to the question of assurance in the other cases cited by respondent. There is quite a difference between the situation involved in the cases cited by respondent and the case at bar and the distinction is important. In the line of cases relied upon by respondent as above stated the matter of assurance was involved and relied upon to the extent only of relieving plaintiff from the effects of contributory negligence or assumed risks, but in the case at bar the primary function of the matter of assurance is to supply the ground or basis of defendant’s actionable negligence. It therefore becomes apparent that the authorities relied upon are so different in their fundamental facts as to afford no authority for the correctness of plaintiff’s instruction number 1 under the rather peculiar situation involved in the case at bar. It follows that the giving of said instruction constituted error. Neither can we say that the defect in instruction number 1 was cured by the giving of plaintiff’s instruction number 3 which undertakes to set forth what, facts would constitute a negligent assurance, etc. The terms, .“negligent assurance” or that the “assurance was negligently given,” are not contained in instruction number 1, and. it could not be said that a definition of those terms would make clear the meaning of instruction number 1 which did not contain such terms. Furthermore, even though instruction number 1 had contained those terms, all the facts constituting the actionable negligence should be required to be found by this instruction which attempted to cover the entire ground of actionable negligence. Instruction number 3 was not an attempt to define, as is usually done, such abstract terms as “negligence” or “carelessness” but it'was an attempt to supply facts which should have been required to have been found by the main instruction and when incorporated in the separate instruction would serve to confuse rather than to aid the jury.

Instruction number 2 is subject to criticism in - _ that it fails to require the jury to find that plaintiff relied upon the assurance of safety. See instruction covering same proposition in case of Swearingen v. Mining Company, supra, l. c. 537.

There was no error in the.giving of instructions 4 and 5. It is true that instruction 5 assumes plaintiff’s suffering, injury and loss of time which would make the instruction vulnerable had there been a contested issue in the trial court as to whether plaintiff in fact did sustain injury and suffer pain and loss of time. But where, as here, the fact of his being injured, etc., is not questioned or disputed the defect in the instruction becomes unimportant.

III. Plaintiff was permitted to prove that the injuries he received resulted in impotency. Defendant objected to the introduction of this evid^-me on the ground the petition failed to allege that impotency resulted from the injuries received. The court overruled the objection and defendant saved an exception. The admission of this evidence is assigned as error. The petition describes the injuries and results in the following language: “His body was severely and permanently wounded, bruised, contused, torn and mangled both internally and externally, and that the bones, flesh and ligaments of his hips, pelvis, legs and ankle were broken, bruised, torn and mangled, and that he suffered great bodily and mental pain and anguish as the result of said injuries aforesaid, and was confined to his bed and room, by reason thereof, for a long period of time, to-wit, the period of about thirteen weeks; that by reason of said injuries he was disabled and prevented from attending to his business affairs and interests or doing anything whatever towards gaining a livelihood from the date of said injury to the present time, and is and was, as a result of said injuries, permanently injured and crippled for life, that ever since said injuries and as a result thereof and by reason of said injuries he has suffered, does suffer and will continue to suffer for the remainder of his life, great bodily pain, annoyance, inconvenience and expense.”

It will be noticed that the petition fails to specifically allege impotency, neither does it contain an allegation of a general nature which might be said to embrace within its terms the condition of impotency. It is true that impotency might result from the injuries described, so might paralysis and many other diseases or conditions, but it cannot be said that impotency would necessarily result from the injuries detailed or described. If a condition or disease necessarily results or follows an injury there could be no valid reason for requiring the same to be specifically pleaded, because it would be presumed that the defendant would know, or at least be expected to discover before trial, those results or conditions which are necessarily produced by the injury alleged. Under such circumstances defendant would have ample opportunity to inquire into and to investigate the conditions so resulting and thereby be enabled to come to the trial of the cause fully prepared to present to the triers of the facts such defense as the results of his investigation might warrant. But where the condition or result is not a necessary result, how can the defendant be apprised of such issue unless the plaintiff (who certainly has full information on the subject) be required to state such result or condition in his petition? If plaintiff is not required to so plead, then, in effect, he is given license to ambush defendant in the trial contest by springing an issue as to special damages which the defendant could not have foreseen. And whpre the petition is such as in the case at bar, defendant could not have aided the situation by filing a motion to make more specific, because the petition contains no general terms which would by being made more specific uncover the hidden secret that impotency resulted from the injuries.

“ General damages are those which necessarily and by implication of law .result from the act or default complained of. . . . Special damages as contra-distinguished from general damages have been defined as those which are the natural but not the necessary result of the act complained of.” [8 Am. & Eng. Ency. Law (2 Ed.), 542-3; Brown v. Railroad, 99 Mo. 310; Nicholson v. Rogers, 129 Mo. 136.]

“Special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged. Such injuries do not necessarily result from the defendant’s wrongful act, but flow from it as a natural and proximate consequence; hence they must be specially alleged in order that the defendant may have notice thereof and be prepared to meet the same upon the trial.” [5 Ency. Pl. and Prac. 719, and numerous cases therein cited; Brown v. Railroad, supra; Nicholson v. Rogers, supra; Bliss on Code Pleading (3 Ed.), par. 297a, 297b; 13 Cyc. 176.]

The rule above announced seems to be in conflict with what is said on that subject in the case of Gurley v. Railroad, 122 Mo. 141, and the majority opinion in the case of Moore v. Transit Company, 226 Mo. 689. The exact point raised in the. Gurley case is not disclosed with sufficient clearness to enable us to determine whether it in fact conflicts with the conclusions herein announced; hut the Moore case, at least in a part of the discussion of the subject and in the result reached on the point, is in conflict with the rule which is herein announced. After a careful review of the authorities, we have come to the conclusion that those cases, in so far as they conflict with the conclusion herein reached, should be no longer followed.

Upon a careful consideration of the subject and review of the authorities we have come to the conclusion that the correct rule, the rule which has for its support the sounder logic and which while it works no unjust hardship upon the pleader yet undoubtedly bespeaks justice and greater fairness for the trial conflict, is stated by Graves, J., in his dissenting opinion in the case of Moore v. Transit Co., supra, l. c. 710, as follows:

“It is a well known fact that from certain kinds of physical injuries, certain results will thereafter inevitably follow. In other words, that such injuries will naturally produce certain conditions and diseases. In such case an allegation in the petition of the injury inflicted would justify proof of such conditions and diseases as would of necessity follow the injury and as to such conditions and diseases the defendant must come prepared to defend. But, on the other hand, there are other physical injuries which may or may not produce resulting conditions or diseases. For instance, an injury ,to the lung might superinduce pneumonia, but not necessarily so. An injury, to the nervous system might produce blindness, but not necessarily so. These conditions or diseases last mentioned may as readily come from other causes as from the physical injury or injuries. In such case the petition should be specific, to the end that the defendant could come prepared to meet the issues and show that the condition or disease was not caused by the physical injury. This he cannot do if the unpleaded conditions or diseases are sprung upon him for the first time at the trial. ’ ’

It therefore follows that the allegations of the petition were not sufficient to justify the admission of proof of impotency and the court erred in admitting such evidence over defendant’s objection and exception. [Campbell v. Cook, 86 Tex. 630; Jones v. Railroad, 71 N. Y. Supp. 647; Missouri, Kansas & Texas Ry. Co. v. Cook, 8 Tex. Civ. App. 376; Page v. President, etc., of D. & H. C. Co., 76 App. Div. (N. Y.) 160.]

By reason of tbe result reached, it becomes unnecessary to discuss tbe question raised by appellant as to tbe excessiveness of tbe verdict.

Tbe judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM.

— By reason of the fact that paragraph III of tbe foregoing opinion conflicted with tbe majority opinion of tbe Court in Banc in tbe case of Moore v. Transit Company, supra, this cause was transferred to Court in Banc for final' determination, and in Banc the opinion of "Williams, C., was adopted,

Lamm, G. J., and Woodson, J., dissenting.