author: ROY, C.

text:
    JEREMIAH FLANIGAN v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    In Banc,
    January 25, 1919.
    1. MASTER AND SERVANT: Before Work Hours. If the relation of master and servant did not exist between plaintiff and defendant at the time he entered defendant’s sand house and a stove fell and burned him, he cannot recover for his consequent injuries.
    2. -: Arrival Ahead of Time at Place of Work: Unusual Route: No Previous Employment. Plaintiff had worked in defendant’s railroad repair yards, in which was a sand house, at which the men occasionally warmed themselves at a stove therein. He worked until February, when his foot was hurt, and resumed work on the 25th and quit on the 26th, and was told by the foreman to come back when his foot got well. On March 5th he was at the yards, but did not apply for work. Defendant provided cars by which workmen were carried, leaving their homes at six-twenty and arriving at the yards at seven o’clock, the hour for work. Plaintiff, on the morning of March 6th, took a street car fifteen minutes after five, and after leaving it walked a mile to the yards, arriving at fifteen or twenty minutes before seven. He did not apply to the foreman for his work card, as was customary, nor did he go to the wash house where his tools were, but went to the sand house to warm. No one was present, and he entered, and after he had ■ stood by the stove for two minutes it fell against and on him, severely burning him. Defendant had no knowledge that he was at the sand house or in the yards, and had not been informed that he expected to report for work on that day. Held, that the relation of master and servant had not commenced and did not exist, and plaintiff cannot recover for his injuries, and the demurrer to the evidence should have been sustained. Held, by BOND, C. J„ and BLAIR and WILLIAMS, JJ., that the judgment should be reversed and the cause remanded.

      Appeal from Jackson Circuit Court. — Hon. Daniel E. Bird, Judge.
    Eeversed.

      Cyrus Crane and Hugh E. Martin for appellant.
    On the entire evidence the plaintiff is not entitled to recover and a verdict should have been directed in defendant’s favor. (1) The defendant did not owe .plaintiff the duty of master and servant in regard to the sand-drying stove in question; hence there was no negligence with respect thereto on defendant’s part (2) Defendant had fully performed its duty with respect to furnishing plaintiff a place to warm himself. There was no failure on defendant’s part in that respect, and hence no negligence in regard thereto. (3) The evidence was not sufficient to establish negligence on defendant’s part, (a) No defects of any kind were shown and no failure to use usual appliances. American Brewing Association v. Talbot, 141 Mo. 684. (b) There was no evidence of defects or knowledge thereof on the part of the defendant. Strother v. Ey. Co., 188 S. W. 1102. (c) The ease is not one of res ipso loquitur. Klehe v. Distilling Co., 207 Mo. 480; Eemovich v. Construction Co., 264 Mo. 43; McGrath v. Transit Co., 197 Mo. 97; Fuchs v. City of St. Louis, 167 Mo. 620; Beebe v. Transit Co., 206 Mo. 419. (d) The accident might have happened in several ways, but the evidence does not disclose a cause for which the defendant is liable. Beebe v. Transit Co., 206 Mo. 419; .Patton v. Eailway, 179 U. S. 658. (4) Nothing was proved except the occurrence of the accident and the resulting injury. This does not establish liability. Bohn v. Eailroad, 106 Mo. 429.

      Atwoopl, Hill & Popham for respondent.
    (1) The sand house was habitually and customarily used by plaintiff and others in defendant’s employ as a place in which, to warm in order to properly perform' their duties. This use was made of it with the knowledge and consent of defendant’s foremen. Therefore, the defendant owed to plaintiff the duty of exercising ordinary care to erect and maintain the stove and sand drying receptacle attached thereto in a reasonably safe condition. . Jackson v. Butler, 249 Mo. 360 ; Behncke v. Mitchell Clay .Mining Co., 189 Mo. App. 647; Brick Co. v. Fisher, 79 Kan. 580; Sugar Co. v. Riley, 50 Kans. 405; Boden v. Demolí, 56 Fed. 848. (2) Plaintiff did not erect the stove nor was he required to work with or. about it, nor was he under any duty of inspection as to its condition. Therefore, the falling of the stove in the manner it did bespeaks negligence calling for explanation on the part of defendant. In such a case the doctrine of res ipsa loquitur applies. Jackson v. Butler, 249 Mo. 360; Myers v. City of Independence, 189 S. W. 821; Klebe v. Distilling Co., 207 Mo. 491; Thompson v. Railroad, 243 Mo. 351; Blanton v. Dold, 109 Mo. 74; Hamilton v. Railroad, 123 Mo. App. 624; Sackewitz v. Am. Biscuit Co.,-78 Mo. App. 151; St. Clair v. Railroad, 122 Mo. App. 526; Mining Co. v. Railroad, 194 Mo. App. 40; Shuler v. Railroad, 87 Mo. App. 623 ; 3 Labatt M. & S. (2 Ed.), sec 1601, p. 4864, note 10. (3) Aside from the rule of res ipsa loquitur negligence may be inferred from the fact of the falling of the stove and the circumstances attending it and the use being made of this stove. Mulberry v. Telephone Co., 191 Mo. App. 124; Capehardt v. Murta, 165 Mo. App. 63. (4) The falling of the stove was not an accident in the legal sense of an unavoidable casualty. Moreover, accident is a defense which must be specially pleaded, which defendant failed to do. 29 Cyc. 580; C. R. I. & P. Ry. Co. v. Shaw, 63 Nehr. 380, 56 L. R. A. 341.
   ROY, C.

Plaintiff recovered judgment for $9500 as damages for personal injuries, and defendant has appealed.

Plaintiff was a car repairer, and had at times worked for defendant in its repair yards at Kansas City. In those yards was a wash house where workmen kept their tools, and where there was a stove for their use when they desired to make a fire to warm. Near by ■was the foreman’s office, where there was always a foreman in charge of the yards ancl workmen, and where, before going to work in the morning, the workmen applied for and received their cards for the day. There was also the sand house, in which there was a stove for drying sand. With defendant’s knowledge and acquiescence, the workmen sometimes used that place to get warm.

Plaintiff testified that he was working for defendant until sometime in February, 1914, when he got his foot hurt, and did not work until on February 25th and 26th. When he quit on the last named day the foreman told him to come back when his foot got well. The wages for the last two days were not paid him until after his injury. One day after February 26th he was in defendant’s yards and borrowed a quarter from one of the men, but did not apply for work.

Plaintiff lived at Eighteenth and Broadway, and the company provided cars and passes by which workmen, including plaintiff, were carried from near their homes to said yards, leaving Second and Wyandotte at 6:20 and arriving at the yards a few minutes before or after seven, the hour for work. Plaintiff testified that he did not take that route that morning, but that he took a street car about fifteen minutes after five; and that, after leaving the street car, he had over a mile to walk to his work. Arriving at the yards fifteen or twenty minutes before seven, he did not apply at the foreman’s office for his work card, nor did he go to the wash house where his tools were, but went to the sand house to warm. There was no one there. The night man in charge of the sand house usually left about six or half past. Plaintiff entered the sand house and stood by the stove about two minutes when it fell against and on him, bruising and burning him, whereby he suffered severe injuries, practically losing the use of one arm and hand.

Defendant asked an instruction in the nature of a demurrer to the evidence, which was refused.

This is a very unusual case. The English case, Sharp v. Johnson & Co., 2 K. B. 139, decided in 1905, comes nearer to it than any other we can find. In that case the workmen, including the plaintiff therein, went daily by train from London to the country where they worked, arriving twenty’minutes before the work began. Each was required to deposit a ticket at the office before time to begin work. It was a custom, known to the defendant, for the men to eat at a mess cabin on the premises before going to work. The plaintiff in that case, while on his way to deposit his ticket, fell into an excavation and was injured. It was there said, p. 147:

“This is not the case of a man hanging about his employers’ premises during an unnecessarily long period before work commences. The applicant, with other workmen, had to come down from London by an early train which brought them to the place of employment about twenty minutes before the time for actually beginning work. The employers seem to have been aware of this and they had provided a mess cabin on the works at which the men employed could obtain refreshment, and which appears to have been open between 6:05 and 6:30 A. M. There was abundant evidence that, although, strictly speaking, it was the duty of the workmen to put their tickets in the slot at the office within three minutes from 6:30 A. M., it was the common practice of the men, when they arrived by the early train from London, to put their tickets on the ledge in front of the pigeon-hole, in order that the timekeeper might take them thence, as he habitually did, on his arrival at the ticket office at 6:30. There is no doubt that only a reasonable margin before the time of commencing actual work can be considered as coming within the period of employment, but it must, I think, cover an interval during which, as in this case, with the knowledge and consent of the employers, the workman was permitted to he upon the premises for the purpose of depositing his ticket and then proceeding to the mess cabin provided by them in order to procure refreshment. ’ ’

In Milwaukee v. Althoff, 156 Wis. 68, the court cited the English case above-mentioned and said, p. 71: “In the instant case, when the servant reported to his foreman and received his instructions for the day and proceeded to carry out these instructions by starting for the place where he was to work, the relation of master and servant commenced, and that in walking to the place of work the servant was performing a service growing out of and incidental to his employment.” It was also there said: “The courts very generally hold that the relation of master and servant exists when the servant is under the master’s control and subject to his direction.”

There are several things which cannot be overlooked in this connection. Plaintiff was not regularly at work for defendant. He had not worked for more than a week. Defendant had not been notified that plaintiff would come to work on that day, nor did it know that he was there. The last time that plaintiff was previously in the yards he was not there to work, but was apparently spending his time otherwise. When he came that morning, it was not by the usual means of travel furnished by defendant, nor did he get there at the usual time, but earlier, fifteen or twenty minutes before time to go to work. He certainly was not an employee of defendant from February 26th to that day, and he had done nothing on March 6th to renew that relation except to come to the yards in the manner-above stated.

' When a workman day after day presents himself at the same place and at the same time for work, it may be presumed that both parties contemplate that the relationship shall begin in the usual way and at the usual time on each day. But, in this case, if plaintiff was the employee of defendant for that day, he became such by his own act of coming there as he did, and without the knowledge of defendant that he was there, and without any expectation of defendant that he would be there on that day. Defendant’s other workmen took the cars furnished by defendant and arrived at the yards a few minutes before or after seven, the hour for work. It does not appear that there was, in such case, either time or necessity for a workman to resort to the sand house to warm before going to work. If defendant had known that plaintiff would get up at five, take a street car, then walk a mile, and get to the sand house fifteen or twenty minutes before seven, instead of leaving home at six and arriving on its cars at seven, it may have kept some one in charge of the sand house ready to look after his welfare.

We are of the opinion that the relation of master and servant did not exist between defendant and plaintiff at the time of the injury, and that defendant owed plaintiff no duty with reference to such stove.

The judgment is reversed.

PER CURIAM: — The foregoing opinion of Roy, C., in Division Two, is adopted as the opinion of Court in Banc.

Walker, Faris, Woodson and Graves, JJ., concur; Bond, G. J., Blair and Williams, JJ., dissent, and think the case should be reversed and remanded.


source: Caselaw Access Project

author: BOND, C. J.

license: Public Domain

text:
    BOECKLER LUMBER COMPANY, Appellant, v. WILLIAM WAHLBRINK et al.
    In Banc,
    January 25, 1919.
    CONFLICT IN OPINIONS. The majority opinion of the St. Louis Court of Appeals in Boeckler Lumber Company v. Wahlbrink, 191 Mo. App. 334, reaches correct conclusions, and its decision is approved.

      Appeal from St. Louis City • Circuit Court.- — Hon. Eugene. McQuillm, Judge.
    Reversed and remanded (with directions.)

   BOND, C. J.

This case is here hy certification from the St. Louis Court of Appeals, upon the dissent of one of its judges, because he deemed the decision of his brethren in conflict with the ruling of the Kansas City Court of Appeals. [Boeckler Lumber Co. v. Wahlbrink, 191 Mo. App. 334, et seq.]

The opinion of the majority of the Court of Appeals contains a full statement of the facts in this cause and reaches a correct conclusion as to its proper determination. The decision of that court is, therefore, approved, and .the judgment of the trial court herein is reversed and the cause remanded with directions to enter judgment in accordance with the directions contained in the majority opinion of the St. Louis Court of Appeals. It is so ordered.

PER CURIAM: — The foregoing opinion of Bond, J., from Division One is adopted as the opinion of Court in Banc.

Walker, Earis and Graves, JJ., concur; Blair, Woodson and Williams', JJ., dissent.


author: GRAVES, J. BLAIR, J. FARIS, J.

text:
    GEORGE DALTON, by JAMES DALTON, His Next Friend, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY et al., Appellants.
    In Banc,
    February 15, 1919.
    1. NEGLIGENCE: Trespasser: Continuous User of Switch Yards. Continuous user of switch yards by the public for such a length of time as to justify imputing implied notice, requires the railroad company to be on the lookout for persons who might be on the tracks. Under such circumstances the company has no right to expect a clear track; but if by the exercise of reasonable care persons on the track can be seen and their injury averted, and such reasonable care is not exercised, the company is liable in damages for the consequent injuries. Held, by FARIS, X, dissenting, that a showing of such continuous user of a switch yard for walking is not sufficient to require a lookout to be kept for persons on detached cars in the yards, and does not create an implied consent for boys to use and play upon the cars. Nor can the duty to keep a lookout for a trespasser whose presence is neither known nor suspected arise in the very teeth of a continuous and perennial effort of the railway company to prevent such user.
    2. -: -: City Ordinance and Statute. Neither a city ordinance nor a statute which forbids any person from climbing upon moving cars or cars “forming a part of a train of cars” has any application to a boy who was sitting on a car forming a part of a string of several detached cars standing in the switch yards.
    3. -: -: Humanitarian Buie. An injured trespasser, under the humantarian rule, has a right of action for damages, if the defendant railroad company saw and knew his peril and then injured him, when by the exercise of ordinary care on the part of its employees the injury could have been averted.

      4. -: -: -: Contributory Negligence: Seeing Peril and Duty to See. Contributory negligence will not bar a recovery in a case falling within the humanitarian rule. If the injured child negligently placed himself in a place of peril, and the defendants (1) saw him in such place and failed thereafter to use reasonable care and caution to prevent his injury,, they are liable, or (2) if the place, though a switch yard, was one where children were to be expected and therefore requiring the railway company to be on the lookout for children upon or around the cars, it was the company’s duty to see whether or not children were there and prevent injury to them.
    5. -: Duty to Warn Trespasser. \Held, by GRAVES, X, that, under the humanitarian rule, a railroad company is not required to give warning to a trespasser upon standing cars in its switch yards before it can move them, although, because of continuous user of the yards as a play ground and the cars in connection therewith, it was required to keep a lookout for such trespassers. So that an instruction which tells the jury that it was the duty of the railway company, whether its servants saw plaintiff or not and whether by the exercise of ordinary care they could have seen him or not, to give warning, so that plaintiff and other trespassers on the detached cars standing in the switch yards and against which the trainmen backed their engine, could have reached a place of safety, goes further than the humanitarian rule, and is error.

      Held, by BLAIR, J., concurring in the result, with whom WILLIAMS, J., concurs, that, in the performance of the duty to keep a lookout to discover a dangerous situation, it is not the exercise of reasonable care for the trainmen to put themselves in a position from which it is physically impossible to see a person in a place of peril. If the place has been subjected to such user as to give notice of the probable presence oí persons there, it is the duty of the trainmen to use reasonable care to discover their presence there and to avert injury.
    Appeal from Montgomery Circuit Court. — Hon. James D. Barnett, Judge.
    Reversed and remanded.

      Mahan, Smith & Mahan, N. S. Brown and Jos. W. Jamison for appellants.
    (1) Upon the physical facts, defendant’s agents could not see George Dalton at the time of his injury, and all of plaintiff’s evidence tending to show that he could he seen is contrary to natural law and should therefore be disregarded. Clarke v. Railroad, 242 Mo. 606; Kelsay v. Railroad, 129 Mo. 376; Nugent v. Milling Co., 131 Mo. 253; Daniels -v. Railroad, 177 Mo. App. 281.. Plaintiff made Burns, appellant’s engineer, a witness in his own behalf. Burns testified it was impossible for him to see Dalton, looking from the cab window from his engine on the bluff side, because of curves in the track; because his view was partially obstructed by a bunk car standing on a stub track close by; because of the varying heights of the cars in the train, and the further fact that the car on which Dalton was sitting was more than a quarter of a mile distant from his engine. No observation had been or was made by any other witness who testified on behalf of plaintiff from the same or a similar position from that occupied by Burns under similar circumstances and conditions, and plaintiff therefore offered no testimony sufficient in law that tended to contradict Burns’s testimony, and plaintiff is bound by what he said. Burge v. Railroad, 244 Mo. 93; Armstrong v. Denver & R. P. Railroad Co., 203 S. W. 246; Hawkins v. Railroad, 135 Mo. App. 533'. (2) Plaintiff was a willful trespasser. He was neither an invitee or licensee and the humanitarian doctrine cannot he invoked in his behalf. Papich v. Chicago, M. & St. P. Ry. Co., 167 N. W. 686. “It is the settled law, as to infants as well as adults, that if one is injured by going under cars which may he moved a!t any time, he must he dealt with as a trespasser.” Thomas v. Railway, 93 Iowa 253; Bourrett v. Railway, 152 Iowa 582; Purcell v. Railroad, 117 Iowa, 667. “Since no duty to the trespasser arises until he is actually seen, it follows of necessity no care is due him before his peril is known. On that theory the general rule has been worked out, that an owner of property trespased upon, is not liable for an injury resulting from the trespass merely because care might have successfully guarded against such injury.” Papich v. C., M. & St. P. Ry., 167 N. W. 688. See Hounsell v. Smyth, 7 C. B. (N. S.) 731; Hargreaves v. Deacon, 25 Mich. 1; Gavin v. City, 97 111. 68; Bishop v. Railroad, 14 R. I. 318. “It follows that there was here no duty to give warning that the cars were about to he moved.” Brackett v. Railway, 111 S. W- (Ky.) 710 ; Schmidt v. Railway, 181 Fed. 83; Pa. Railway v. Martin, 111 Fed. 586. “A railroad company owes no duty to trespassers in its yards, regardless of age, except that of not wantonly or recklessly injuring them after having discovered them to he in peril.” Barney v. H. & St. J. Railroad Co., 126 Mo. 372; Ruschenburg v. Ry. Co., 109 Mo. 112; Curley v. Mo. Pac. Ry. Co., 98 Mo. 19; Wencker v. M. K. & T. Ry. Co., 169 Mo. 593. A “mere licensee” is one who is clothed with no right and to whom no invitation has been extended, hut who is upon, the premises of another by permission or acquiescence. Norfolk & W. Ry. Co. v. Denny, 106 Va. 383. No one can become such licensee on premises of a railroad company or on its trains while standing at a station without the consent of the company, either express or implied. Berry v. Mo. Pac. Ry. Co., 124 Mo. 223; Furey v. N. Y. Cent. H. R. Co., 67 N. J. L. 270. (3) George Dalton was a law breaker and a trespasser, and cannot recover in this case. Defendants’ demurrer to the evidence should have been sustained, and instruction for verdict for the defendants given, and the court erred in failing to do so. Barney v. Railroad, 126 Mo. 391; Kelly v. Benas, 217 Mo. 12; Hall v. Railroad, 219 Mo. 586; Giles v. Railroad, 169 Mo. App. 37; Barker v. Railroad, 98 Mo. 53. At the time of his injury he was acting in violation of an ordinance of Hannibal, and was guilty <5f a misdemeanor under each section. Being a law breaker, he could not, under any circumstances become a licensee of defendants. They only owed him' the duty of not wantonly or willfully injuring him after his peril was discovered. Wencker v. M., K. & T. Ry. Co., 169 Mo. 600; O’Donnell v. Railroad 197 Mo. 122; Feebaclc v. Railway Co., 167 Mo. 215; Carrier v. Railway Co., 175 Mo. 481. And this rule is not changed because Dalton' was a minor. Barney v. Railroad, 126 Mo. 392; Hobert v. Collins, Lavery & Co., 80 N. J. L. 425; Anternoitz v. Railroad, 193 Mass.- 542; Seeley v. Railroad, 157 Mich. 688.

      W: A. Dudley, Chas. W. Wilson, O. II. Avery and Shepard Barclay for respondent.
    (1) Dalton was not a law-breaker under the city ordinance or the statute, because not within the terms of either on the facts in evidence. R. S. 1909, sec. 4874. (2) The fourth instruction for plaintiff was correct; because, even though plaintiff may be guilty of negliligence, contributing to his injury, it is no bar to his recovering therefor. “If the defendant could,,in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him.” Radley v. Railway, 1 App. Cas. (L. R.) 754; Inland Nav. Co. v. Tolson, 139 U. S. 558; Adams v. Ferry Co., 27 Mo. 95; Huelsenkamp v. Railway 37 Mo. 552; Morrissey v. Ferry Co., 43 Mo. 384; Karle v. Railway, 55 Mo. 484; Meyers v. Railroad, 59 Mo. 231; Klockenbrink v. Railroad, 81 Mo. App. 356, 172 Mo. 678; King v. Railways, 204 S. W. 1129; Beard v. Railroad, 272 Mo. 142. (3) Plaintiff’s fourth instruction was correct in stating that (on the facts supposed as to long user this railway yard as a playground for children and thoroughfare for the public) it was the duty of defendants “to exercise ordinary care to ascertain whether anybody was upon said tracks or cars and to exercise care to notify any person on or about said tracks or on or around ‘said cars’ of the proposed movement of cars on. said sidetrack, to enable them to get to a place of safety.” Tutt v. Railroad, 104 Fed. 741 (similar facts); Felton v. Aubrey, 74 Fed. 350; G-arner v. Trumbull, 94 Fed. 321; Cahill v. Railroad, 74 Fed. 285; Erie Railroad Co. v. Burke, 214 Fed. 247; Barry v. Railroad, 92 N. T. 293; Kay v. Railroad, 65 Pa. St. 269; Lamphear v. Railroad, 194 N. T. 172; Taylor v. Del.- & H. Co., 113 Pa. St. 174; Francis v. Railroad, 247 Pa. St. 425; Mason v. Railway, 89 Wis. 151; Carmer v. Railway, 95 Wis. 513; Cesas v. Railroad, 33 Utah, 156; Ashworth v. Railway, 116 Ca. 641; Railroad Co. v. Popp, 27 S. W. (Ky.) 992; Ervine v. Railroad, 158 Mo. App. 1; Mitchell v. Railroad,' 34 Atl. 674; LeMay v. Railroad, 105 Mo. 351. As to such places as that in question, the same principles as to the duty to warn, before discovery, apply as in the case of railway track crossings; as many of these decisions cited assume, and some express. R. S. 1909, sec. 3140. (4) Respondent asks the court to reconsider the ruling as to “unseen trespassers,” and to declare the law to be that in such circumstances as require the railway operatives to anticipate the presence of children where cars may strike them, it becomes the duty of such operatives to exercise ordinary care to warn those who may be in danger, as well as to use care to discover their presence. Such places are not different from regular track crossings, so far as concerns the duty to warn of train movements thereon. R. S. 1909, sec. 3140; Beard v. Railroad, 272 Mo. 155; Klockenbrink v. Railroad, 81 Mo. App. 356, 172 Mo. 678; Wilkins v. Railway, 101 Mo. 106; Fnsili v. Railway, 45 Mo. 106; Thompson v. Railway, 93 Mo. App. 555; Lynch Case, 111 Mo. 601; Brown v. Railroad, 50 Mo. 464; Clark v. Railway, 64 Mo. 440; Ransom v. Depot Co., 126 S. W. 785; Kreis v. Railroad, 131 Mo. 544; Railway v. Means, 104 N. E. 787; Klotz v. Railroad, 68 Minn. 341; Cooper v. Railway, 66 Mich. 261. (5) The fourth instruction for plaintiff was sound in stating the duty of defendants. It did not submit facts for a verdict thereon; but it announced the principles of law as to defendants’ duty to exercise reasonable care to warn as well as to discover persons in peril of being injured by train movements in a place where defendants were bound to anticipate their presence quite as much as at an established highway crossing of the track. R. S. 1909, sec. 3140. See decisions cited above. “The rationale of the rule requiring special precautions in backing trains over crossings or other places where persons are likely to be is in the increased danger to which they are subjected.” Klotz v. Railroad, 68 Minn. 341; 2 Shearman & Red. on Negligence (6 Ed.), sec. 471, p. 1179. (6) “Negligent ignorance is in law equivalent to knowledge.” Ashworth v. Railway, 116 Ga. 635; Riñe v. Railway, 100 Mo. 235. (7) Plaintiff was not bound by all the testimony of defendants’ engineer, Brown, whom plaintiff introduced as a witness: “this does not preclude him from establishing a case by other testimony, even though it is contradictory of that which he first offered.” Phelan v. Paving Co., 227 Mo. 711; Maginnis ■ v. Railroad, 268 Mo. 675; Knopp v. "Wagner, 195 Mo. 637; State v. Shapiro, 216 Mo. 370; Brown v. Wood, 19 Mo. 475; Dunn v. Donnaker, 87 Mo. 597. (8) Where facts admitted by defendants or proven by undisputed testimony indicate that the judgment below is “for the right party” it should be affirmed, without regard to any supposed errors. Here, on the admitted facts as to user of these railways premises, absence of watchman (or other employee) near the place where the plaintiff was sitting on the car, and absence of any warning or notice to plaintiff of the switching movement, defendants were liable. Redman v. Adams, 165 Mo. 71; State v. Adams, 75 Mo. 605; Commiskey. v. M'cPike, 20 Mo. App. 82; Walsh v. Exposition Co., 101 Mo. 534; Lancaster v. Collins, 115 U. S. 227; King’ v. King, 155 Mo. 406; Woody v. Railway, 104 Mo. 678; Burns v. City, 131 Mo. 372; R, S. 1909, secs. 1850, 2082.
   GRAVES, J.

In an action bottomed upon negligence, the plaintiff, through his next friend, recovered a judgment against the defendants for $22,500, from which this appeal was taken. At the date of the accident George Dalton was a rather bright boy past the age-of twelve years.

In the switch yards in the northern part of Hannibal, Missouri, is a track running near the bluff, which track is the west track of those yards. To the west of this track is a public road, and across this road, close in to the bluff, is a store and some residences. These switch yards are a quarter of a mile or more in length, and lie between the public road above mentioned and the Mississippi River. Plaintiff and another boy were upon a car then standing upon this west switch-yard track (near the north end thereof) and was knocked therefrom by the force of a coupling or running together of other cars with the bunch of cars where plaintiff was located. In his fall he was thrown under the wheel of the car and both arms cut off. Ir an attempt to obviate the question of the plaintih being a trespasser (pure and simple), the petition alleges at great length sundry alleged usages, as follows: that said switch yards were unenclosed; that the inhabitants along this public road obtained their water from a spring near tfye river and from the river; that in the yards for some years there had been a sand-digger, which was attractive to children when it was in operation; that for a number of years there had been a constant and continuous use of these yards by the citizens, including children; that there was (opposite these dwellings and store) a swimming pool in the river, which was much used hy boys at the season of this accident, and these boys daily crossed these yards; that for years there had been a continuous use of these yards by the public going from north to south through them; that for years these yards had been continuously used by children as' a playground; that for years children and especially boys were continuously in, around and upon the cars standing in this switch yard; that defendants had knowledge of all these conditions.

The petition then charges the following as negligence upon the part of the defendants: (1) that plaintiff could have been seen in his perilous position by the train crew which coupled up the cars in time to have warned him and saved him; (2) failure to keep a lookout or guard in the switch-yards to warn plaintiff and others of the movement of ears; (3) failure to fence the yards, so as to exclude persons therefrom, especially children; (4) failure to sound bell or whistle or otherwise warn persons in such yards, that cars were to be moved; (5) the coupling of the cars together with unnecessary force; and (6) failure of defendant’s servants to use ordinary care to see plaintiff’s perilous position.

After unsucessful motions to strike out large portions of the petition the defendant answered: (1) general denial; (2) contributory negligence upon the part of George Dalton; (3) contributory negligence upon the part of the father and mother of George Dalton; (4) that George Dalton was a trespasser, and defendants had no reason to believe that he would be upon a car located upon private property,, and (5) that George Dalton was at the time of his injury on the car in violation of a city ordinance of the City of Hannibal, which ordinance is duly pleaded.

Reply was in the nature of a general denial.

For the plaintiff the principal instructions read:

“3. And the court further instructs the jury that if they find from the evidence that at the time the plaintiff received his injuries and for a number of years prior thereto the switch yards and railroad tracks where the plaintiff received his injuries had been daily used by large numbers of persons as a passway in going from one point to another in that vicinity and that numbers of people daily walked over, upon, across and along said tracks and at all hours of the day, and that at said time and for a number of years prior thereto, women and children were accustomed daily to travel on said tracks, gathering coal which had fallen from the cars on to said tracks, and if the jury further find from the evidence that at the time the plaintiff received his injuries and for a number of years prior thereto, children and young boys had been and" were in the habit of congregating in said switch yards and -tracks and using the same as a play ground, daily playing in said switch yard upon and along said railroad tracks and on and around the cars standing on said tracks, and you further find from the evidence that the agents, servants and employees of the defendants who did the switching and handling of cars in said switch yard or tracks knew that people were so in the habit of daily using said switch yard and tracks as a pass-way and knew that children and young hoys were so • in the habit of daily using switch yard and tracks as 1 a play ground, and were accustomed daily to play in and about said switch yard and on, around and about the cars standing on said tracks, then it was the duty of the defendants, their agents, servants and employees, when engaged in switching or moving cars on said sidetrack, to exercise ordinary care to ascertain whether anybody was upon said tracks or cars and to exercise care to notify any persons on or about said tracks or on or around the cars standing on said side-track or in any place of danger,, of the proposed movement of cars on said sidetrack, to enable them to get.to a place of safety.

“And if the jury further find from the evidence that at the time the plaintiff received his injury, the plaintiff, George Dalton, was a boy about twelve years of age and was sitting on an empty car which was standing on said sidetrack, and that the agents, servants and employees, while plaintiff was so sitting on said stationary car, without any warning or notice to the plaintiff, caused other cars to be switched on to said sidetrack «and propelled with such violence and force against the cars already standing on said sidetrack as to knock the plaintiff off of said car and cause said cars to run over plaintiff’s arms and produce the injuries complained of, and if you further find from the evidence that the agents, servants and employees who switched said additional cars to said sidetrack, at the time the plaintiff received his injuries, saw the plaintiff sitting on said car standing on said sidetrack, or by the exercise of ordinary care could have seen him in time to have warned the plaintiff of his danger and thus have avoided injuring him, but neglected to warn the plaintiff, then the jury should find in favor of the plaintiff and assess his damages at such sum as the jury may believe from the evidence will compensate plaintiff for the injuries sustained, • not exceeding the sum of fifty thousand dollars, notwithstanding the jury may further find that the plaintiff was a trespasser and was g’uilty of negligence in being on said car at the time, and notwithstanding the jury may also further find that the plaintiff, George Dalton, was on said car at the time of his injuries in violation of the provisions of the ordinance of the City of Hannibal produced in evidence.

“4. And the court further instructs the jury that if they find from the evidence that the defendants knew at the time the plaintiff was injured that children and young boys were accustomed daily to play on said sidetracks and on and around the cars standing on said sidetracks, as set forth in a preceding instruction, then it was the duty of the defendants before switching the cars on said sidetrack to take reasonable care to see that said track was clear and to notify or warn any such child or boy as might be upon said sidetrack or cars standing thereon, in time to enable them to escape the dangers resulting from the switching of ears on said track.”

We have given at length the grounds of alleged negligence as well as the two main instructions for plaintiff, to the end that plaintiff’s theory of the case may fully appear. Questions raised and the evidence bearing thereon will be noted in the opinion.

I. An important question in this case is the status of the plaintiff at the time of his injury. He was at the time in the private switch yards of defendants, and this fact, standing alone, would make him a trespasser, pure and simple. But this fact does stand alone. There is proof of the continuous use of the switch yards by boys, and also the fact that boys played in, upon and around the standing cars in the switch yard. There is also, in evidence an ordinance of the City of Hannibal, which reads: “Any boy under the age of eighteen years, who shall in this city, without having lawful authority to do so, mount or climb upon, enter or hang to, any freight, gravel, baggage, hand or passenger ear, or locomotive engine, when the same is in motion, or is attached to or forming a part of any train of cars, or to any locomotive engine, whether the same is in motion or standing upon any railroad track, shall be deemed guilty of a misdemeanor. ’ ’

By the defendants this ordinance is urged on the evident theory that a law-breaker cannot occupy the status of a licensee, and would not be entitled to the protection of a licensee. We need not discuss this theory, because the facts shown do not bring the plaintiff within the terms of the ordinance. The plaintiff was sitting upon a car, which constituted one of a string of several cars, but this string of cars was not attached to an engine, or otherwise “forming a part of any ■train of cars.” When this ordinance is closely studied, it is apparent, that its purpose is to punish boys who mount or climb upon moving cars, or cars in a train, which, although standing still, would be' moved as trains are usually moved. A few cars coupled together, but standing off to themselves, on a sidetrack, are not cars “attached to or forming a part of any train of ears,” within the meaning of this ordinance. The first part of the ordinance relates to moving cars or engines solely, and- the latter part, in our judgment, has reference to a car in a made-up train (with engine attached) which was liable to be put in motion any time. This is the most that we can make out of this ordinance. In this view of the ordinance plaintiff was not violating it- at the time of his injury. He was not a lawbreaker so far as the ordinance is concerned.

We are also cited to Section 4874, Revised Statutes 1909, the material portion of which reads: “If any person, minor or adult, shall climb upon, hold to or in any manner attach himself to any locomotive engine or ear, while the same shall be in motion, or running into or through any city or town in this State, he shall be deemed guilty of a misdeameanor. ”

This statute has no application. It applies to moving cars, and this car was not a moving car when boarded by the plaintiff. So that neither the ordinance, nor the statute in any way effect the status of the plaintiff, and we are relegated to the facts to fix such status. The case does not fall within the rule announced by Sherwood, J., in Barney v. Railroad Co., 126 Mo. 372. In that ease the boy hung on to a moving car in a train of cars and was injured. In so doing he violated both the statute, supra, and a city ordinance of the City of St. Joseph. Under these facts Judge Sherwood said:

“But plaintiff, in the particular act which resulted in the accident, was a trespasser, made so by the statute as well as by the ordinance of St. Joseph, Section 3927, Revised Statutes 1889, makes it a misdemeanor for £any person, minor or adult, to climb upon, hold to or in any manner attach himself to any locomotive engine or car, while the same is in motion, or running into or through any city or town in this State.’ The ordinance is of similar import.

“Plaintiff being a trespasser, a violator of law, could have no ground of recovery based on Ms own dereliction. But it is claimed for plaintiff that these regulations of the law do not apply to ‘babies.’ While the law may not apply in a criminal proceeding to a child of very tender years, yet, still for the purpose of a civil action, the consequences of the unlawful act must be the same in the case of an infant even of very tender years, as in the case of an adult. In a word, the act of the infant in consequence of his tender years is, though non-criminal,-jet is wrongful in the sense of being an invasion of the rights of another, just as much so as though done by an adult. And a landowner is under no duty to a mere trespasser to keep his premises safe; and the fact that the trespasser is an infant does not raise a duty where none otherwise exists. [Frost v. Railroad, 64 N. H. 220, and cases cited.] ”

We have no occasion to discuss this rule in the instant case, because as above indicated neither the statute nor the ordinance was violated in this case. If it be contended that a trespasser can never have a right of action, and that the rule, supra, so holds, then we would have to differ. The facts of that case are not the facts of this case, and the opinion in that case must be read in the light of the facts. Even a trespasser, under the humanitarian rule, would have a right of action, if the defendant railway company saw and knew his peril, and then injured him, when by the exercise of ordinary care, the injury could have been avoided. But of this later.

The facts for the plaintiff tend to show a user of these yards by pedestrians (both in crossing the tracks from the public road or bluff to the river, and up and down the tracks from the south to the north) of some years standing. The facts also tend to show a 'user of these switch yards by children as a playground, and in that connection the use of standing cars, and this user was of some years standing. A swimming pool in the river took many boys across the yards, and a sand-digger (somewhat attractive to children when in operation) was in this yard (or adjacent thereto) and children watched its operation. Boys, for several years, had continuously played in, around and upon standing cars, in these yards, as the evidence for the plaintiff would tend to prove, The time of such user was of sufficient length for defendants, their agents and servants, to have been fully advised of such use. As to the use of the railroad tracks the case law of this State was reviewed in Ahnefeld v. Railroad, 212 Mo. 280. At page 300 of that volume Fox, J., uses this language: '‘It is immaterial as to how you denominate the persons who use the track, whether it is said they were invited by the railway company or whether it is said they were licensees, or whether it was a habit and custom to use the track, or whether you denominate them as trespassers; the controlling fact is whether there has been such use of the track as a passway or footpath by the public as to afford reasonable grounds to the operatives of the train upon such track to expect or anticipate the presence of persons so near the railroad track as to endanger them. A careful consideration of all the cases to which our attention has been directed and of which counsel so earnestly complained, will demonstrate that in their last analysis the final conclusion is predicated and the rule announced upon the main fact that the operatives of the railway company at certain points along its railway had reasonable grounds, by reason of the continuous use of the track at that point by the public, to expect or anticipate the presence of persons so near the railroad track at such points as to endanger them; hence, followed the just, fair and reasonable rule that under such circumstances it would be the duty of the operatives to keep a lookout for the presence of such persons and to usé ordinary care and caution in avoiding any injury to them.”

The doctrine is, that continuous user for such a time as to enable implied notice to the railroad to be imputed, requires the railroad to be upon the lookout. Snch railroad has no right to expect a clear track, and proceed upon the theory of a clear track. Such user requires the railroad to be on the lookout for persons who might be upon the track, and if by the exercise of reasonable care, such persons could have been seen, and the injury averted by the exercise of reasonable care; then, if injury happens, the railroad may be held liable. So too, we think that if children have been playing in, upon and around the standing cars in a switch yard, so continuously and for - such length of time, that the employees of the railroad should have known of this user, then there is imposed»-upon the railroad the duty of keeping a reasonable lookout for such children. The case for plaintiff seems to have been partially submitted on this theory, or better stated, the plaintiff has attempted to place his case to the jury on this theory, but has added another theory.

Granting then, that it was the duty of the defendant to keep a lookout for children upon these standing-ears, how stands the case? Of the several questions herein involved we speak later.

II. Plaintiff was a bright boy nearly thirteen years of age. He had been told by his father, and the city officers, of the danger. He says in his own testimony that he knew of the danger of being on these cars owing to the switching of them in yar(3s. His counsel do not urge that he was not guilty of contributory negli-, gence, but plant themselves upon the doctrine of the humanitarian rule, to which they say contributory negligence is no defense. That contributory negligence will not bar a recovery in a case falling within the humanitarian rule is now well settled law in this State. So that in this case, although the plaintiff had negligently placed himself in a place of peril, yet if the defendants (1) saw him in such place of peril, and failed thereafter to use reasonable care and caution to prevent his injury, they would be liable, or (2) this being a place where defendants were required to be on the lookout for children around and upon the cars, and where children were to he expected, it was the duty of the defendants to use reasonable care to see whether or not children were there, and to prevent injury to them.

The real question is whether or not the two instructions quoted in our statement properly present the case. The two instructions when read together present the case to the jury on two theories, (1) that if the defendants saw, or by the exercise of ordinary care could have seen, the plaintiff, in time to have warned him, or otherwise to have averted the injury, and did not do it. then the defendants were liable, and (2) that if the user was shown, then it was the duty of the defendants to give notice before switching cars, to the end that children playing around or upon them might get to a place of safety, and a failure to notify was negligence.

In so far as- these instructions go to the humanitarian rule, they are all right, but the question is whether or not they do not go beyond that rule, and ground an action on primary negligence as well. It must be conceded that under the facts shown it was defendant’s duty to be on the lookout for children, and if by the exercise of ordinary care it could have seen the plaintiff in a position of peril in time to have averted the accident by the exercise of ordinary care, or if the defendants, as a fact, did see him, in time to have avoided the accident by the exercise of ordinary care, then they are liable notwithstanding the fact that the plaintiff was negligent in being where he was at the time of the accident. This is the humanitarian rule. This is the rule which excludes from view the contributory negligence of the plaintiff. But do these instructions stop there? We think not. They go further and say that it was the duty of defendants (whether they saw plaintiff or not, and whether by the exercise of ordinary care they could have seen him or not) to give warning, so that plaintiff or others in peril could have gotten to a place of safety. If the defendants owed the plaintiff the duty of giving a warning (whether they saw him or not), the failure was what might be termed primary negligence, as distinguished from the negligence chargeable to a defendant under the humanitarian rule. To such negligence contributory negligence may be invoked as a defense. But the question really goes deeper in this case. Is there an obligation to give warning to unseen trespassers? By-this we intend to include trespassers who ought to have been seen by the exercise of ordinary care, if at places where defendant is required to be upon a lookout for persons on their cars. We are cited to no case from this court holding that a railroad company must give notice to trespassers of its intention to move standing cars upon switch tracks. Without a shown user the defendant is not obliged to keep a lookout for trespassers. The user merely imposes the additional duty of a prudent lookout for persons who are likely to be in peril. ' To my mind it does not impose the duty of giving warning to unseen persons, who are trespassers. The rule of humanity has never been extended that far by any ruling of this court. The case of Featherstone v. Railroad, 174 Mo. App. 664, is cited, but it is not in point. In that case the plaintiff proved that the railroad had a custom of sending a brakeman ahead to notify all persons on or about the cars (including children who were playing in the yards) that the cars would be moved, and what is said in that case is in view of this custom. That case is not this case. To bold that warning of the movement of cars must be given to unseen trespassers would be to place trespassers in the category of employees. The humanity rule has never been so applied to our knowledge. This court has been liberal with the rule, and rightfully so, but it is going too far to say that a railroad must give warning before it can move cars in its own switch yard, because perchance there might be a trespasser in or upon such cars. If the cars are frequented by trespassers, and such a user is shown, the duty to be on the lookout for them is imposed, but the rule has never gone further.

These instructions for the plaintiff go further than we have gone under the humanitarian doctrine. In so far as they require the defendant to, be on the lookout for trespassers, they' are all right under the facts of this case. Continuous trespassing does not make the person any the less a trespasser, but the long continued trespassing does give knowledge to defendants, and this knowledge imposes the duty to be on the lookout for such trespassers. In other words, if the defendants saw, or by the. exercise of reasonable care could have seen the plaintiff in time to have prevented the injury, then the conceded negligence of the plaintiff would not preclude a recovery. But the instructions do not stop there. They go further as above indicated. For this error the judgment will have to be reversed and the cause remanded.

It might not be out of the way to suggest that the petition is unnecessarily long and verbose, and in a way lacking in pointed statements of the real grounds of plaintiff’s action. Under the facts plaintiff’s contributory negligence would bar him but for the humanitarian rule, and his petition should ground his cause on that rule.

Other questions urged may not reappear upon the rehearing of the case. Let the judgment be reversed and the cause remanded.

PER CURIAM: — The foregoing opinion of Gkavks, J., in Division One is adopted by Court in Banc. Bond, C. J., concurs in paragraph one and the result, but dissents to paragraph 2;

Blair and Williams, JJ., concur in result; Walker and Woodson, JJ., dissent; Baris, J., dissents in a separate opinion.

BLAIR, J.

(concurring.) — Paragraph II of the

opinion holds there was error in instructions. In approaching a spot which has been subjected to such user as to give constructive notice of the probable presence of persons in a place of danger, it is the duty of operatives in charge of a train to use reasonable care to discover the presence of such persons and avert injury to them. What is reasonable care in a particular case is dependent upon surrounding circumstances. I fear paragraph II possibly is open to the construction that in any case it is a defense if the operatives were actually in a position from which they could not see if they had looked. Can the company place its employees on or near the engine, back a string of cars a half mile long around a curve, the cars taking such a position that the spot where persons are to be expected to be in a place of danger cannot be seen, and then be upheld when it asserts its employees could not have seen such person had they looked ever so carefully? Is is reasonable care, in the performance of the duty to keep a lookout to discover a dangerous situation, to put yourself in a position from which it is physically impossible for such lookout, however faithfully maintained, to enable you to see the place of probable danger at all until the injury is inflicted?

The duty to keep a lookout in a case like this implies a duty to have some one in a position from which a lookout can be kept. In so far as the opinion is open to a construction opposed to this view, I am unable to agree. In the rest and the result I concur.

Williams, J., concurs.

FARIS, J.

(dissenting.) — I agree that the facts in this case fail to bring it within the ordinance pleaded, but I cannot concur in the view that other facts in the case bring it within the rule announced in the case of Ahnefeld v. Railroad, 212 Mo. 280. In what I shall suggest I am conceding, for the argument’s sake, the correctness of the rule of the Ahnefeld case which puts trespassers and mere licensees in the same category, and which, in the face of the■ rule existing in practically all other jurisdictions (20 R. C. L. 142), requires a lookout to be kept for all trespassers upon defendant’s tracks at places whereat such persons from their custom of trespassing are liable to be. This rule to the extent noted is too well-settled to dispute.

I concede that there was shown abundant u?,er through a long period of years, of defendant’s yards and tracks to create a custom through user from which a license to walk on the tracks may be deduced, so as to necessitate the maintenance, under the -rule in the Ahnefeíd ease, of a lookout for persons walking on, or crossing over these yards and tracks. But that is not the case before us; a license to walk on or cross over the yards and tracks does not embrace or include a license to enter on and in cars standing on such tracks and in such yards. If plaintiff (whose condition is so pitiable as almost to shake calm judgment) had been walking on or crossing over the tracks or yards when he was injured there would be under the rule supra, a fairly clear case of liability. But he was in no such position. He was on top of a coal car astride of the brake-ivheel, when the defendant, pursuing its ordinary business in its usual and necessary way, shook him off while making a coupling and ran over him. So, I think before plaintiff can invoke the rule of the Ahnefeld case and recover, implied consent to user creating a license for boys to be and play upon cars must be shown. I do not think it can be the law that the defendant was required to keejD a lookout for trespassers in and on its cars, or to seek out such and warn them or evict them, before it was entitled to use is property in its customary way. Surely (absent the rule in the “turntable cases,” neither pleaded, invoked nor applicable here), it would be a dangerous doctrine to say that implied consent to a trespass in or on cars, or in one’s house or barn, could ever grow into such a license from user. But even if I am wrong about this, surely the duty to keep a lookout for a trespasser whose presence is neither actually known nor suspected, cannot arise, in the very teeth of a continuous and perennial effort of the owner, or the defendant here to- prevent such user.

The courts of Missouri stand almost alone in having extended the “last-clear-chance” doctrine to include not only the duty to avoid (if possible to do so with the appliances at hand) injuring one who is guilty of concurrent contributory negligence after he is seen to be in danger, but also to require the, maintenance by a defendant railroad of a lookout at certain places whereat such contributory negligence is likely to occur. These places include public streets of cities, towns, and villages, public road crossings over railroads, private railroad yards and even stretches of track in the country whereon trespassers are and have been so long accustomed to walk as to create upon defendant’s part an implied invitation to such trespassers to use its private property as a public path. But the question here goes far beyond this present conceded status of the Missouri, or humanitarian, rule.

The requirement to keep a lookout for trespassers on a stretch of track in the country, or in a private switchyard, inevitably arises from implied consent, or invitation, to trespassers to use such switchyards or tracks as ways of passage. This implied-consent is to be deduced from long acquiescence in such use by the public. If there has been no such acquiescence it is difficult to see how the- duty could ever arise to keep a lookout for trespassers. It is true that the Ahnefeld case puts the basis of such a duty upon the humane principle that the defendant on account of long continued use of its tracks as passage-ways by trespassers had reason to expect trespassers to be there and so was required to maintain a lookout for them. This may be called the Missouri extension of the last-clear-chance doctrine, but granting its correctness there are I think in the instant case two glaring points of differentiation from the Ahnefeld case. In the Ahnefeld case it was applied to the duty of keeping a lookout for persons walking upon the tracks of a railroad, whereon persons had walked without objection, let or hindrance from such railroad for twenty-five years. In this case, it is sought to apply it to rolling-stock in a case where boys were accustomed to: play upon gravel-cars in defendant’s private yards; not with the consent of defendant, express or implied, but against the continuous efforts of defendant, the police officers and the father of this boy to prevent such use. We of course leave out tlie efforts of the public officers and of the father of the boy to prevent such use, since such facts go only to conceded contributory negligence. But the new and serious question here is: Can a custom of user, which must be bottomed on implied consent, or invitation, grow up which will require the keeping of a lookout, when defendant is continuously using every effort to prevent such unauthorised use f We have called attention to the Missouri extension of the humanitarian doctrine as set out in the Ahnefeld ease. But there is a vast difference between the very convenient and natural use of a railroad track by pedestrians, and the going in and on standing cars and using them as play-houses. Likewise there is a difference between requiring the duty to keep a lookout from one who by long acquiescence has seemed to consent to a trespass and from one who has continuously and publicly denied and negatived that consent. I think in respect of the two behalves mentioned, the majority opinion goes beyond the Ahnefeld case, which itself goes far beyond the rule in practically all other jurisdictions. [20 R. C. L. 142; 29 Cyc. 530; 33 Cyc. 855.]

So, I am of the view that before plaintiff can invoke the rule of the Ahnefeld case he must show that the duty to keep a lookout for him arose from implied consent, from acquiescence of defendant, for him to be and play upon its standing cars. There is no such consent to be implied from the facts here, but the contrary appears. For the plaintiff. in his own testimony, in answer to questions from his counsel, said: “Q. I say did any of the trainmen ever order you away from cars that were standing, standing cars. A. Yes, sir.” His counsel, evidently deeming that he had not heard aright, again asked plaintiff: “Q. I say did they order you away from the standing cars, the cars that were standing? A. Yes, sir. Q. Who ordered you away? A. The man working at the digger.” ’ Testifying as to the efforts of the local police to keep him out of the yards, the plaintiff said: “Q. Do you know Mr. Anderson, who is a policeman over there? A. Yes, .sir. Q. He used to come down where you boys were, didn’t he, and tell you to get away? A. Yes, sir. Q. He told you the night before you got hurt; do you remember a crowd of you boys being there? A. Yes, sir. Q. And he told you you ought to go away, that you might get hurt, didn’t he? A. Yes, sir. He has told us all. Q. Told you all that? A. Yes, sir. Q. Did you go away that time? A. Yes, sir. Q. Came back the next day? A. Yes sir. Q. Now, do you know some other policeman and officers up there who told you boys to keep away? A. Yes, sir. Q. And do you know the engine crew that run those engines? A. No, sir. Q. Don’t you know any of those men? A. No, sir. Q. Did you ever see any of the boys throw rocks at them when they would tell the boys to get away? A. Yes, sir. Q. Who did you see throw rocks? A. I seen Moxley throw rocks at the boys. Q. Did you ever throw rocks at any of them? A. No, sir. Q. Well, now, whenever the trainmen or officers and men around the sand-digger over there, when they would see you boys around there, they would tell you to go away, wouldn’t they? A. Yes, sir.”

In cross-examination plaintiff was asked: ££Q. Well, now, whenever the trainmen, or officers and men around the sand-digger over there did see you boys around there, they would tell you to go away, did they not? A. Yes, sir.”

One of the plaintiff’s witnesses, a Mr. Helton, who had been a member of the Hannibal police force, said that he had been instructed to keep boys off of these cars. Thereupon he was asked whether he had been able to keep them off. He answered': “We did all we could to keep them off. Yes, sir, we did our best. Q. Run them off the cars? A. Yes, sir.” Another witness for plaintiff, upon this point, said: ££Q. What do boys do? A. They jump on and off the engine and on the cars. It is a hard matter to keep them off down there. I didn’t notice anybody that day. Q. I mean before that time? A. Oh, yes, I have. Q. Have you ever had any experience with trying to keep the boys off? A. Oh I have, yes. They would jump off one end and would jump on the other. Q. You mean you would put the same boy off one end and he would run and jump on to the other? A. Yes, sir, I have. Q. Was that frequent? A. 0, not very frequent, but I have done it several times. Q. Would you say it was an easy matter, or a hard matter, to keep the boys off? A.. When they take a notion to get on it is a hard matter to keep them off.”

It would seem to be a contradiction in terms to say that plaintiff in the face of the facts shown by the record, which in part I set out, can bring himself within the pale of a licensee upon the ground of implied consent or invitation. “Implied invitation,” says the Supreme Court of New Jersey, “is part of the law of negligence by which an obligation to use reasonable care arises from the conduct of the parties; its essence is that the defendant knew, or ought to have known, that something that he was doing or permitting to bé done might give rise in an ordinarily discerning mind to a natural belief that he intended that to be done which his conduct had led the plaintiff to believe that he intended. It is not enough that the user believed that the use was intended; he must bring his belief home to the owner by pointing to some act or conduct of his that afforded a reasonable basis for such a belief.” [Furey v. Railroad, 67 N. J. L. l. c, 275.]

I am convinced that upon the facts of the case defendant owed no duty to avoid injuring plaintiff ivhere he sat till it actually saw him. There is no proof that he was ever seen or that he was known to be in a place of danger before the accident. His lamentable condition appeals to me strongly, and I regret that I can not bring myself to see* any cause of action in him. Therefore, I dissent to the views and judgment reached by the majority, and for the reasons given vote to reverse the case outright.


author: GRAVES, J.

text:
    THE STATE ex rel. SAMUEL J. DOUGLAS v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    In Banc,
    February 15, 1919.
    1. LIBEL: Letter to City Government: Qualified Privilege. A letter addressed to the Board of Complaint, a governmental agency of the city, concerning a city employee, is qualifiedly privileged, and in the absence of an allegation that it was maliciously written is to be considered as presumably written in good faith and without malice.
    2. MANDAMUS: Production of Evidence: Privileged Communication: For Use in Libel Suit. The Supreme Court has never ruled that a court by mandamus may compel the production of a letter, not alleged to be maliciously written and therefore a privileged communication, addressed to a governmental agency established for the purpose of promoting the efficiency of the public service and authorized to receive complaints against any department, officer or employee of the city and after investigation to recommend any action deemed advisable, and which caused relator to be discharged and to be arrested, in order that its contents may be made known and used as a basis of a pending libel suit against the writers; and, hence, the opinion of the Court of Appeals holding that the members of the said Board of Complaint cannot be compelled to produce such letter for said purpose cannot be quashed on certiorari.

    3. CERTIORARI: Conflict in Opinions. Unless there is a conflict in the opinion of the Court of Appeals and some previous decision of the Supreme Court, the opinion of the Court of Appeals cannot be quashed on certiorari.

    Certiorari.
    Writ quashed.

      Douglas. W. Robert for relator.
    The opinion of the Court of Appeals holds that all communications to the Board of Complaint are privileged and that no court can compel the production of them or compel the board to allow inspection, even if said letters were written maliciously and without probable cause, and this conflicts with the opinion of this court in the case of Finley v. Steele, 159 Mo. 299. Peak v. Taubman, 251 Mo. 418; Holmes v. Eoyal Union, 225 Mo. 568; Minter v. Bradstreet, 174 Mo. 487; Wagner v. Scott, 164 Mo. 301; Smith v. Fidelity Co-190 Mo. App. 457; Overton v. White, 117 Mo. App. 604; Yager v. Bruce, 116 Mo. App. 483.

      Charles H. Daues and Everett P. Qriffin for respondent.
    (1) In a proceeding by certiorari to review an opinion of the St. Louis Court of Appeals, the Supreme Court follows these rules: First, The Supreme Court will consider one question and one question only, and that is whether or not the decision of the Court of Appeals is in conflict with the latest previous rulings of the Supreme Court on the same question. Second, There must be a conflict between the decision of the Court of Appeals and the latest previous rulings of the Supreme Court. If there is no decision of the Supreme Court on the question decided by the St. Louis Court of Appeals, then there can be no conflict, and even the fact that the Court of Appeals may have decided the case wrongly will not be considered by the Supreme Court. Third, The Supreme Court will not go outside of the opinion of the Court of Appeals to ascertain what the facts are and will only consider the points raised in the petition for the writ of certiorari. Fourth, The Supreme Court will give weight to the fact that the Judge of the Court of Appeals who dissented in a particular case did not certify the case to the Supreme Court, showing that he did not think there was any conflict between the opinion of the Court of Appeals and any decisions of the Supreme Court. State ex rel. v. Farrington, 272 Mo. 157; State ex rel. v. Eeynolds, 272 Mo. 588; State ex rel. v. Ellison, 199 S. W. 403; State ex rel. St. Eegis v. Eeynolds, 200 S. W. 1039; State ex rel. Shawhan v. Ellison, 200 S. W. 1042. (2) The opinion of the St. Louis Court of Appeals is not in conflict with the decision in the case of Finley v. Steele, 159 Mo. 299, and the other cases following that case cited in relator’s brief, nor is it in conflict with any of the latest previous rulings of the Supreme Court. The opinion of the Court of Appeals was written on the theory set forth in the following cases: Gray v. Pentland, 2 Serg. & Rawle (Penn.), 23; Yoter v. Sanno, 6 Watts, 166; Worthington v. Scribner, 109 Mass. 487; Res v. Hardy, 24 Howell’s St. Tr. 808; Boske v. Comingore, 177 U. S. 459; 4 -Tones’ Commentaries on Evidence, sec. 762, p. 480; Smart v. Kansas City, 208 Mo. 162; Massachusetts Mutual Life Ins. Co. v. Board of Trustees of the Michigan Asylum for the Insane, 144 N. W. 538.
   GRAVES, J.

Certiorari to the St. Louis Court of Appeals. The judgment sought to he quashed is one entered in an original proceeding in that court. Such judgment was in a mandamus proceeding, and the Court of Appeals has succinctly outlined the facts in an opinion filed, thus:

“It is set out in the petition for a writ of mandamus now before us, that by Section 2 of Article XIV of the Charter of the City of St. Louis, a Complaint Board, consisting of three members, was created, with power in that hoard to employ a secretary. Setting out the action, it is averred that the respondents Tune, Walbridge and Cassidy are such board, and the respondent Marsh, its secretary, and that relator is an employee of the City of St. Louis in its streets and sewers department, and that one Lawrence McDaniel and one George E. Thomas, on November 29, 1916', wrote a certain letter, addressed to the Complaint Board, and filed the same with that board, and that thereby that letter became a public document and part of the records of the City of St. Louis. Averring that the relator could not set forth accurately the language of the letter, relator sets out .what he avers is the substance of it. It is further averred that the relator, on December 29, 1916, filed in the circuit court of the City of St. Louis his action for libel against McDaniel and Thomas, in which he charged that the letter was written by them and that by reason of the writing of the letter, the Complaint Board, or some one acting for it, or under it, or pursuant to its direction, caused a police officer to arrest the plaintiff and he was taken to the City Dispensary by a police officer and thence to the City Hospital in the City of St. Louis, where he was confined for a period of three days, to his damage, as he says, in the sum of $50,000. It is further averred that in that action it was necessary, for the relator, as plaintiff therein, to accurately set forth the language used in the letter, which he contends is libelous; that through his attorney he called upon the defendants, as members of the Complaint Board, and demanded that he be permitted to inspect and make a copy of the letter; that the Complaint Board, not only by its several officers, but also acting at a meeting thereof, refused to permit the relator to make a copy of the letter; that thereupon the relator, plaintiff in the above mentioned action against McDaniel and Thomas, gave due notice of his intention to take depositions, and applied to the division of the circuit court of the City of St. Louis, in which the cause was pending, for a subpoena choces teciom, commanding said Marsh, as secretary of the board, to appear at the taking of these depositions and bring with him the letter referred to; that Marsh duly appeared before the commission theretofore appointed to take depositions in the case, but refused to produce the letter; that thereupon the commissioner duly reported to the court the refusal of the witness and asked that he be held in contempt until the letter was produced; that Marsh, by his attoiney, acting under the direction of the Complaint Board, filed a motion to quash the subpoena on the ground that the circuit court had no authority to issue the same, which motion the circuit court sustained, as it is said in the petition, ‘on the authority of State ex rel. McCulloch v. Taylor, 187 S. W. 1181, 268 Mo. 312.’ Averring that a copy of the letter is necessary for the relator in the preparation of his action against McDaniel and Thomas, and will be necessary evidence at the trial of the case, and that there is liability that the letter may he lost between this time and the time the canse is set for trial, and that in that letter, the relator, an employee of the City of St. Lonis, is charged with certain offenses, and for that reason is entitled to have an inspection and copy of the letter, and that the letter is a part of the public records of the City of St. Louis and for that reason the relator is entitled to have an inspection and make a copy, and that without a copy of the letter and the letter itself at the proper time, relator cannot prepare or try his action against McDaniel and Thomas, and that the petitioner is remediless in the premises by or through ordinary process or proceedings, he prays our court to award its writ of mandamus against respondents Tune, Walhridge, Cassidy and Marsh, commanding them. to permit petitioner, his agent, or attorney, to inspect or make a copy of the letter.

“On presentation of this petition, an alternative writ of mandamus was issued.

“Respondents, in their return, after admitting the allegations as to proceedings in the circuit court to obtain the production or inspection of the letter referred to, and averring that the Complaint Board was created by the terms and provisions of the Charter of the City of St. Louis in the interests of the City of St. Louis and for the betterment and improvement of the public service in the various departments of the government of the city, and that it would be against public policy and against the public interests for the Complaint Board, or its members, to disclose the contents of a letter or letters of the character described in the relator’s petition, or to disclose the name or names of the writer or writers thereof, because such disclosure would deter people from making complaints which might be beneficial to the public interests and the public service, set up with great particularity why they should not be required to permit relator or others to inspect or make copies of complaints filed with them, and denying the power of the court to make the order, or grant the relief asked; also claiming that if relator is entitled to any order for the production of any letter, his remedy is in the circuit court.

“On this return being filed, relator moved for judgment and the cause has been duly submitted and argued.

“This is the second time that this same case has been presented to us and writ prayed for as now. Considering it involved a matter beyond our jurisdiction, that is, construction of the Constitution of the State, and was ancillary to a suit for $50,000, which amount also placed the cause beyond our jurisdiction, we transferred it to the- Supreme Court. See under this same title, 191 S. W. 1078, a decision not to be officially reported. It seems that counsel for relator, to avoid delay, dismissed that case in the Supreme Court and there commenced an original proceeding on the like petition. The Supreme Court issued its alternative writ, to which respondent made return, and on' the cause being presented, the court vacated the alternative writ and dismissed the cause, holding that there was nothing-disclosed by the record why the proceeding should not be broug-ht in our court, saying of our court, in an opinion reported in 273 Mo. 255:

“ ‘That the court has, under Section 12 of Article 6 of the Constitution, the same authority to issue writs of mandamus that this court has under Section 3 of the same article, unless otherwise limited by other provisions of the Constitution. That there is no such limitation in this case there can be no question, for the reason that neither the subject-matter of the libel suit mentioned, nor the amount involved therein is involved in this case. This is a collateral proceeding to that action, merely involving the right of. the relator to compel the Board of Complaint to produce the letter mentioned for his inspection and use as evidence in said libel suit, ’

“Relator thereupon instituted the present proceeding in our court, we issuing an alternative writ of mandamus. ’ ’

The court of appeals quashed their alternative writ^ and it is this' judgment that is here for consideration. It is urged that this opinion of the St. Louis Court of Appeals conflicts with our opinion in Finley v. Steele, 159 Mo. 299. The facts are few and simple, and the issues are really matters of law.

I. To separate wheat from chaff, it should be noted that the relator herein (the plaintiff in an alleged libel suit) does not aver in his application for mandamus to the St. Louis Court of Appeals that the letter which he seeks to see, was maliciously written. So far as his petition for this mandamus is concerned, such letter was presumably written in the utmost good faith and without malice, because the law presumes right action rather than wrong action upon the part of the citizen. So far as the record before us, which we are allowed to consider, is concerned, there is no allegation stating that the letter was maliciously written. This may be material later upon the alleged question of such letter being beyond what is known as a qualified privileged communication. The fact should be borne in mind. The application for mandamus simply states that the relator herein has brought and has pending an action for libel, and that it is necessary to have a copy of this letter, to his mind, a public document. He alleges the character of the board to which the letter was addressed, but does not allege that the letter was sent out of malice. In other words, so far as the petition before us for review is concerned, we must presume, under the law, that the letter was sent in good faith and without malice.

II. If we must say that the letter was sent without malice, in the absence of an avermént in the application or petition for mandamus that it was maliciously sent, Are must hold that the letter Aras at least qualifiedly privileged, and the qualified priAdlege would good in the absence of an allegation of malice. The petition for mandamus shoAvs the board to which it was addressed was at least a governmental agency provided for the good of the city government. Complaints made to such a body, at the very least, must be held to be qualifiedly privileged, and the qualified privilege cannot be destroyed without a charge of malice. To destroy the patent qualified privilege of this letter, absence of good faith, and presence of malice, should have been charged. No such charge is made and upon this theory alone the Court of Appeals reached a right result in refusing the writ.

In the laAV of libel qualified privileged communications are recognized. The ban of a qualified privilege cannot be raised except by 'a charge of malice, and the proof thereof. In that most estimable work, 17 R. C. L.' p. 341, we have the doctrine clearly stated in this language.

“This general idea has been otherwise expressed as follows: A communication made in good faith on

any subject-matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. In the absence of malice an utterance may be qualifiedly privileged, even though it is not true, and notwithstanding the fact that it contains a charge of crime. But mere color of lawful occasion and pretense of justifiable end cannot shield from liability a person who publishes and circulates defamatory matter. Hence, a publication loses its character as privileged, and is actionable, on proof of actual malice, or, at least, such gross disregard of the rights of the person injured as is equivalent to malice in fact. In the case of a- qualified privileged communication the occasion on which it Avas made rebuts the inference prima-faeie arising from a statement prejudicial to the character of the plaintiff, and puts the burden on him to prove that there was malice in fact, that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made.”

The relator in this mandamus proceeding alleges all the facts necessary to put this communication or letter within the rule above announced. He fails to allege malice, the only thing which will take the communication from under the ban of a qualified privilege. This failure renders the letter or a copy thereof a useless thing for relator, in the course of his trial.

The foregoing remarks are all matters within the law of libel. Whether these paragraphs are material to the issues here, is doubtful. They only tend to show that the Court of Appeals was at least right in the result.

III. The real question in this case is whether or not the opinion of the Court of Appeals conflicts with our rulings. It is urged that it conflicts with Finley v. Steele, 159 Mo. 299, and cases approving and following it.

The Court of Appeals did not discuss the libel rule of a qualified privilege, and for this reason we suggested, supra, that what we said in paragraphs one and two, supra, might not be relevant to the real issue in this certioari proceeding. The Court of Appeals, first quotes Section 2 of Article XIV of the New City Charter, thus:

“Article XIV, of the present Charter of the City of St. Louis, adopted by vote of the people June 30, 1914, is headed ‘Public Welfare Board.’ Under the first section provision is made for the administration of the Mulanphy' Fund. The second section is as follows:

“ ‘Sec. 2. There is hereby established a Complaint Board to consist of three members to serve without compensation. Said members shall be appointed by the mayor for terms of one, two and three years, respectively. Each year thereafter the mayor shall appoint one member for a term of three years. Members shall hold office until their successors qualify. Said board shall employ a secretary, and may appoint such other employees as may be provided by ordinance. It shall receive complaints against any department, board, division, officer or employee of the city, or against any public utility corporation, and examine the same. It shall recommend to the proper city or state authorities any action deemed advisable.’

“The third section makes provision for other boards and institutions. The respondents are the members and secretary of that board.”

The said court then proceeds to discuss the character of this board and the purposes of the law-makers (the people in this case) in enacting the charter. No case from Missouri Supreme Court rules upon this matter. Upon the character of this board the court says:

“As we understand the provisions of Section 2 of Article NIV of the Charter of the City of St. Louis, the Complaint Board was established for the very purpose of promoting efficiency in the public service. That board is authorized to receive complaints against any department, board, officer, or employee of the city and examine into the same. It has no power to take any action of itself. All that its power, after investigation and inquiry, consists of, is to recommend to the proper city of state authorities any action deemed advisable as to city employees and officers or public service corporation. They serve without compensation. In the very highest sense, they are the confidential servants of the city and of its officers, for the purpose of advising those officers as to the character, fitness, ability and suitably of the various employees of the city, as well as of the acts of public utility corporations. We can conceive of no higher, more important, and useful branch of public administration than the duties thrown upon this Complaint Board. It is almost a necessary implication, when we consider the creation and objects and scope of this board, that communications from citizens, complaints from citizens, are the main source for putting the powers of inquiry of the board into play. Surely this provision of the Charter does not contemplate that the members of the board, who are serving without compensation, are to go around, of their own initiation, and investigate into and inquire as to all of the several officers and employees of the city, consisting of thousands of individuals. They must rely almost entirely upon information voluntarily given to them by citizens, who may have knowledge of the conduct and character and fitness of city employees. The creation of the board, in itself and in a measure, invites complaints from citizens of their officers and of public employees. If every citizen who knows of the unfitness of an officer or employee, or of facts he thinks require an investigation, believes it his duty to lodge information before the board, he will hesitate a long while before doing so if he knows his complaint is to be made public and become part of the public records, so that any one may have access to it and be subjected to action for a possible libel. It is not to be expected, if that is so, that very many- will come forward and lodge a complaint. We think that if it was understood that the complaints lodged by citizens against these employees are to become public property, without the consent of the party filing it, the very object for which this board is created would be defeated. It may be that in sealing the records, so far as. relates to these complaints, from public inspection, some individual will be hurt, but the right of that individual must yield to the right and to the benefit of the public at large. In our opinion these communications by citizens to the Complaint Board, covering the conduct of public officers and employees, are to be considered as highly confidential, and as records to which public policy would forbid the confidence to be violated. Such is said to be the law where the question has been very fully considered in a recent work on evidence, namely, Jones’s Commentaries on the Law of Evidence in Civil Cases, vol. 6, sec. 762, p. 576, to which, without repeating or reproducing, we refer. There the case of Boske v. Comingore, 177 U. S. 459, is referred to and quoted at length as sustaining the confidential character of such communications.

“In Gray v. Pentland, 2 Serg. & Rawle, 23, the Supreme Court of Pennsylvania held that accusations preferred to the Governor of the State against a person in office are, so far of the nature of judicial proceedings, that the accuser is not held to prove the truth of them; that it is excused if they did not originate in malice and without probable cause, and that parol evidence cannot be given of the contents of a libelous deposition sent to the Governor containing charges against an officer of his appointment in an action for libel, though the court has refused a subpoena duces tecum, and that the Governor, to whom such a deposition is addressed, must exercise his own judgment with respect to the propriety of the production of the writing. This same principle was subsequently recognized as sound by the Supreme Court of Pennsylvania in Yoter v. Sanno, 6 Watts, 164, l. c. 166.

“In Worthington v. Scribner, 109 Mass. 487, Judge Gray, afterwards Mr. Justice Gray of the Supreme Court of the United States, held (l. c. 488): ‘It is the duty of every citizen to communicate to his government any information he has of the commission of an offense against its laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among the secrets of State, and leaves the question how, for and under what circumstances the names of the informers and the channel of communication shall be suffered to be known, to the absolute discretion of the government, to be exercised according to its views of what the interests of the public require. Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informer himself, or by any other person, without the permission of the government. The evidence is excluded, not for the protection of the witness or of the party in the particular case, hut upon general grounds of public policy, because of the confidential nature of such communications.’

“While we have no decision of our court that directly meets this proposition, we have its spirit applied in Smart v. Kansas City, 208 Mo. 162, 105 S. W. 709. There it was held that a hospital physician who attends a patient at the hospital not only cannot testify as to what he learned of the patient’s condition while so attending her, but that the official hospital record, into which has been copied the diagnosis of the case, is privileged and not admissible in evidence. It is further there held that the fact that the city ordinances require such records to be kept furnish no reason why the statute against disclosure of privileged communications should be violated. That opinion is not altogether germane to the cause before us, but is illustrative of the rule as to privileged communications. In line with this decision of our Supreme Court is that of Massachusetts Mutual Life Ins. Co. v. Board of Trustees of Michigan Asylum for the Insane, 178 Mich. 193, 144 N. W. 538.

“Our conclusion is that the respondents here were justified in their refusal to permit relator to have an inspection of the letter, assuming such letter was in their control, and in refusing to allow the relator to make a copy of it. That is as far as we go in this case, except to say that neither our court nor the circuit court in which the action for libel is pending, can compel the production of the letter for the purposes sought by relator. Whether the circuit court, in which the action for libel is pending, can proceed with the case, in the absence of the original letter, and allow parol testimony .to be given as to its contents, is a question which is not now before us and which we do not decide. The alternative writ heretofore issued is quashed and a permanent writ denied.”

It must be noted that the opinion is predicated solely on the theory that it is against public policy to permit publicity to be made of the complaints and information furnished this board by the citizens of St. Louis.- The case of Finley v. Steele, 159 Mo. 299, discusses no such question. It does discuss the question of what is a qualified privilege in the law of libel, and how the ban of the qualified privilege may be raised. The discussion is along the very line of the rule announced in 17 R. C. L., p. 341, supra. The court was discussing the law of libel and not the law of evidence. It had before it a libel case which had been fully tried upon plaintiff’s side, and a nonsuit forced by the trial court.

In the instant case the Court of Appeals did not have before it a libel suit, nor the law of libel. Privilege or qualified privilege in libel law was not before it, nor discussed by it. The sole question it disposed of was the character of complaints before this board under the law of evidence.

It held that public policy demanded that complaints to this general-welfare board should not be made public. Without such ruling conflicts with our rulings it must stand.

We are cited to no case from this court covering the ground work of the Court of Appeals opinion. Certain it is that there is no conflict between their opinion and Finley v. Steele, supra, or any of the cases following that case. The subject-matters discussed are wholly different. In such case, we are forced to quash our writ, as having been impfovidently issued.

Our writ is therefore quashed, to the end that the record of the Court of Appeals may stand.

All concur, Bond, G. J., in the result.