author: BROWN, C. PER CURIAM.

text:
    CITY OF ST. LOUIS v. ABRAHAM SLUPSKY, Appellant.
    Division One,
    January 3, 1914.
    1. MUNICIPAL CORPORATIONS: Charter: General Welfare Clause: Disturbing the Peace: Disturber's Own Premises. The City of St. Louis has the power, under its charter (Art. 3, sec. 26, cl. 14), to pass “all such ordinances ... as may he expedient in maintaining the peace, good government, health and welfare of the city,” and it is therefore empowered to inflict a penalty for disturbing the peace by offensive conduct and vile language, even though the disturber stood meanwhile in his own back yard.

      2. -: -: -: -: -: Limitations on Owner’s Use of His Property. The right of every person to use his own property is subordinate to the right of society that he shall so use it as not to violate any of those rules of decency and health upon which the peace and comfort of those in the vicinity largely depend.
    3. NUISANCE: Vile Language. The filth that comes from the tongue, and addresses itself to the ear, is as revolting to normal people as the sensations that assail the other senses from nuisances against which the law protects them.
    4. BREACH OF PEACE: Words. “Breach of the peace” is a generic term that includes all violations of public peace or order, and acts tending to a disturbance thereof. It may consist of such acts as tend to excite violent resentment; but unless it tends to excite immediate violence, abusive and insulting language will not constitute a breach of the peace unless so provided by statute. »

      5. MUNICIPAL ORDINANCE: Words Calculated to Provoke Breach of the Peace: Instructions. In a prosecution under an ordinance of the city of St. Louis .which authorizes the infliction of a penalty upon any person who “shall disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace,” it was error for the court to instruct that if the jury believed that the defendant used indecent, unseemly, profane, obscene and offensive language in the presence of neighbors, and if their peace or the peace of either of them was disturbed thereby, they should find him guilty. Such instruction ignored the requirement of the ordiaance that the language — or some of it, at least — must have been “calculated to provoke a breach of the peace.”
    Appeal from St. Louis Court of Criminal Correction. —Hon. Benjamin J. Klene, Judge.
    Reversed and remanded.

      Chester H. Krum for appellant.
    (1) • (a) The city cannot take cognizance of occurrences on private premises. There must be something of a public nature in the place itself, (b) The charter authorizes the city to restrain and prevent any riot, rout, noise, disturbances, or disorderly assemblage and amusements dangerous to persons or prop^ erty. Charter, St. Louis, art. 3, sec. 26. There is no suggestion in the ordinance that the noise or language reprehensible under its provisions must be dangerous to persons or property.- (c) The report is so indefinite that a conviction under it might not operate as a bar to another action. St. Louis v. Babcock, 156 Mo. 153. (2) ’ Upon the whole case, the appellant should have been discharged. Although the proceeding is only quasi, yet it is the law that the ordinance must be strictly construed, the proof must be beyond a reasonable doubt — the quantum must be as nearly as possible that of a criminal charge, without coming quite up to the full measure. So to make faces and howl at one’s neighbor across a practically unscalable fence — all done on private premises — is not within the province of. St. Louis to consider, because the charter does not so provide. Sic est lex non scripta. And then even if the city can mulct under given circumstances, even the doctrine quasi requires some semblance of particularity and notice in the pleading which in the language of the immortal Benton starts, the ball in motion.

      William E. Baird and Everett Paul Griffin for respondent.
    (1) The city of St. Louis had ample authority to pass the ordinance against disturbance of the peace, under its police power, as well as under the specific power conferred by section nine of the charter. Charter, sec. 26‘, pars. 9, 14; Gunning Co. v. City, 235 Mo.. 99; St. Louis v. Galt, 179 Mo. 8; St. Louis v. McCann, 157 Mo. 301; Glasgow v. Bazan, 96 Mo. App. 412. (2) Appellant, because he was on his own property, had no special privilege to use the language or to commit the acts as charged in the complaint. The use of private property itself, is subordinate to the public welfare. Gunning Co. v. City, 235 Mo. 99 ; St. Louis v. Galt, 179 Mo. 8; St. Louis v. McCann, 157 Mo. 301; State v. Brumley, 53 Mo. App. 126; State v. Webb, 163 Mo. App. 275'.
   BROWN, C.

This proceeding was begun in the first district police court of the city of St. Louis, upon the following report of the chief of police:

“To the Police Justice of the First District Police Court of the City of St. Louis, Missouri,
June 29, 1909:
State of Missouri, \ City of St. Louis. )
“City of St. Louis, June 28, A. D. 1909:
“Abraham Slupsky,,
“To the City of St. Louis, Dr.
“To five hundred dollars for the violation of an ordinance of said city entitled An Ordinance in Revision of the General Ordinance of- the City of St. Louis, being ordinance No. 22903, section 1537, approved March 19,1907.
“In this, to-wit: In the City of St. Louis and State of Missouri, on or about the 28th day of June, 1909, the said Abraham Slupsky did then and there wilfully disturb the peace of others, and particularly of Lawrence L. and Marius D. Prince, by violent, tumultuous, offensive and obstreperous, conduct and carriage, and by loud and unusual noises, and by unseemingly profane, obscene and offensive' language, calculated to provoke a breach of the peace, and by assaulting, striking and fighting others, and particularly Lawrence L. and Marius D. Prince, contrary to the peace and dignity of the city and the ordinance in such cases made and provided.
Contrary to the ordinancé in such cases made and provided.
“E. P. Ckeecy,
“Chief of Police of the City of St. Louis.”

The ordinance is as follows:

“Sec. 1537. — Disturbances of the peace, assault, etc. — Penalty.—Any person who, in this city, shall disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another; or any person who, in this city, shall permit any such conduct in or upon any house or premises owned or possessed by them (him), or under (his) their management or control, so that others in the vicinity.are disturbed thereby, shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than five nor more than five hundred dollars.”

Appellant took a change of venue from the first district police court to the police court south of Arsenal street, where he was tried and judgment rendered in his favor, from which the city took its appeal to the court of criminal correction, where it came to trial.

The evidence, which is undisputed, was to the effect that Mr. Slupsky lived on the south side of the Lindell boulevard in the city of St'. Louis. His backyard was from one hundred to one hundred and twenty-five feet in depth and was divided from the backyard of the Prince family, who lived in the adjoining premises on the west, by a wire fence that was high enough to come up to Mr. Slupsky’s chest, and a hedge about half as high as the fence, along which it grew. On the date charged in the report or information, some of the younger members of the Prince family, including three boys, the youngest being seventeen years old, and their sisters who were young ladies of various ages that come within that description, were at luncheon in the dining room in the rear end of their house, when one of them, Benton, the youngest of the brothers, went ont into the yard, where he heard a turmoil in the Slupsky residence, and soon Mr. Slupsky came down his back steps apparently driving his children before him, and talking'to the Prince boy in a loud tone and with much profanity and vile language, and threatening not only him, but the Princes generally. He came up' to the fence where he stood for a while continuing the same kind of conversation, shaking his fists and swaying his body, while a few people gathered in the alley looked over the fence and listened. Mrs. Noonan, whose house fronted on Pine street, the next thoroughfare south of the Lindell boulevard, and whose backyard abutted on the alley which divided it from the Slupsky backyard, was in the house with her daughter and a child, heard it and went out and listened, and remarked that she would not stand for such language. Mr. Desloges, a lawyer, whose residence was also on "West Pine street across the alley from that of Mr. Prince, was. sitting in his library and heard the noise, and he went out and listened to the conversation from his- kitchen window. His cook and laundress were also interested and were at the alley gate. While things were in this condition Mr. Rainey, a policeman, who was walking down the alley about half a block away, heard the conversation, and a colored man called him and told him there was a fight down there in that yard, and he went down the alley to Mr. Prince’s back gate where he heard Mr. Slupsky talking very loudly. When the latter saw the policeman he went into the house. At the request of one of the Princes, Mr. Rainey followed him and placed him under arrest. The subject and character of the conversation were incidentally disclosed and illustrated in the testimony of Mr. Prince’s butler, an eyewitness from his bathroom window. Referring to Mr. Slupsky he said: ‘ ‘ Then he went in and got his butler and brought him out and told him if the chickens came in to sick the clog on them and let him kill every damned one of them and the son-of-a-bitch that would lay a hand on his dog he would cut the bastard’s heart out. Mr. Benton came around in the yard and he says to Mr. Benton, ‘Did yon hear what I say!’ He said he didn’t know whether he did or not. He says, ‘If the son-of-a-bitch lays a hand on my dog, I will cut the bastard’s heart out.’ Mr. Marius walked out and he began to shake his fist in Mr. Marius’s face. Mr. Marius says, ‘Don’t cuss me,’ and he went on talking. Then as he walked away, he says, ‘Society stiff, raising chickens in this neighborhood!’ ”

When evidence was offered the defendant objected to its admission on the ground that the report did not state facts sufficient to constitute a cause of action, and at the close of the testimony asked the court to instruct that upon the evidence adduced the jury would find for the defendant.’ The court overruled the objection to the introduction of testimony and refused the instruction asked, to each of which ruling’s the defendant at the time duly excepted. The court thereupon instructed the jury of its own motion as follows:

“If the jury believe from the evidence that the defendant, Abraham Slupsky, in the city of St. Louis and state of Missouri, on or about the 28th day of June, 1909, did wilfully, that is, intentionally, use indecent, unseemly, profane, obscene and offensive language in the rear of the premises’, 3846 Lindell boulevard, or the premises next west, in the presence of Lawrence L. Prince and Marius D. Prince, and that the peace of them, or either of them, was thereby actually disturbed by said indecent, unseemly, profane, obscene and offensive language, used as aforesaid, you will find the defendant guilty as charged in the report of the chief of police, filed herein, and unless you so find you should acquit the defendant.”

I. It is strenuously urged by the defendant that it is not within the power of the city to prevent one from using whatever language he chooses upon his own premises. He seems to be under impression that the ordinance upon which this complaint was framed depen¿[s for its validity upon the ninth clause 0f section 26> article 3, of the charter of the city, which empowers the Municipal Assembly “to restrain and prevent any riot, rout, noise, disturbance, or disorderly assemblage, and amusements, dangerous to persons or property, in any street, house or place in the city.” In this he is in error. Its authority is evidently derived from the fourteenth or general welfare clause of the same section, which authorizes it to pass ‘£ all such ordinances, not inconsistent with the provisions of this charter, or the laws of the State, as may be expedient, in maintaining the peace, good government, health and welfare of the city, . . . and to enforce the same by fines and penalties, not exceeding five hundred dollars.” Municipal corporations of this character are formed to meet the needs of denser populations, where propinquity renders the people dependent to a great extent upon the conduct of each other for the existence of those conditions of deceny, cleanliness and morality necessary to peace, comfort and health in civilized communities. The filth that comes from the tongue, and addresses itself to the ear, is as revolting to normal people as the sensations that assail the other senses from nuisances against which the law protects them.

The right of every person to use his own property, is subordinate to the right of society that he should so use it as not to violate any of those rules of decency and health upon which the peace and comfort of those in their vicinity largely depend. The vile, profane and noisy tirade of Mr. Slupsky was of this character and was as offensive discharged from one side of the wire fence as from the other. That the general welfare clause of the charter gives the Municipal Assembly the right to protect the people of the city against inflictions of that character is evident, and we therefore hold the ordinance in question to be within its powers, and applicable as well to such acts.done on the premises of the defendant in cases of this character as to those done upon the premises of another, or in a public place.

II. Greater difficulty is presented by the terms of the instruction upon which the case was submitted by the trial judge, of his own motion, to the . ,. jury. The ordinance upon which this prosecution is founded pronounces its penalty against any person who ‘ ‘ shall disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace.” The court instructed that if the defendant used indecent, unseemly, profane, obscene and offensive language in the presence of the Princes, and if their peace or the peace of either of them was actually disturbed thereby, they should find him guilty; thus ignoring the requirement of the ordinance that the language — or some of it, at least — must have been “calculated to provoke a breach of the peace,” and substituting the requirement of its own that the peace of some one must have been actually disturbed thereby. It is difficult to catch the idea that lies hidden under the use by the Municipal Assembly of the words quoted. The use of the word “provoke” would seem to indicate that they refer to a physical encounter, pr at least retaliation in kind, but it is not to be lightly imputed that the use of obscene language in the presence of women and children powerless to resent such an indignity by physical punishment would be lawful, while it is made unlawful only when directed against fighting ■men. But “breach of the peace” is a generic term, and includes all violations of public peace or order, and acts tending to a disturbance thereof. [5 Cyc. 1024 and cases cited.] This court has characterized in the same terms the 'calling of one woman by another “a drunken slut,” and threatening, if she did not leave, to throw a bucket of water on her. [State v. Lunn, 49 Mo. 90.] It may consist of such acts as tend to excite violent resentment. But unless it tends to excite immediate violence, abusive and insulting language will not constitute a breach of the peace unless, so provided by statute. [5 Cyc. 1025 and cases cited.] This finds ah extreme illustration in State v. Schlottman, 52 Mo. 164, where the language used was said to be “very immoral and reprehensible.” This omisión has been supplied by our Legislature, and this instruction would have been all right had the prosecution been by the State under section 3784, Revised Statutes 1890, as. amended by Laws 1903, p. 164; but the city of St. Louis seems to have been more lenient with this class of offenses, and has seen fit, so far as they affect its own peace as a municipality, to retain the common law qualification to which we have already adverted. It is true that we have no doubt the language attributed to Mr. Slupsky would have filled all the requirements of the ordinance, but it is not within our province to constitute ourselves a jury in a case of this character, and, in the absence of a plea to that effect, find him guilty of an offense other than that upon which the verdict was found.

The judgment of the court of criminal correction is reversed, 'and the cause remanded.

Blair, C., concurs.

PER CURIAM.

The foregoing opinion by Broion, G., is adopted as> the opinion of the court.

All the judg'es concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    THE STATE ex rel. GEORGE RUPPEL et al. v. JOHN WIETHAUPT, HERMAN HACKMAN, and GEORGE LEHMANN, Constituting the County Court of St. Louis County, AND DRAINAGE DISTRICT NUMBER ONE, Appellants.
    Division One,
    January 3, 1914.
    1. DRAINAGE DISTRICT: Notice of Viewers’ Report. The statute regulating the establishment of drainage districts in 1906 (Laws 1905, p. 180 et seq.) requires that, after the report of the first viewer's has been filed, notice shall be given of the pendency of the petition, “the appointment and report of said viewers, the place of beginning, route and terminus” of the ditch, etc.; and that means that notice must be given of the subject-matter of the viewers’ report, not merely of the fact that they have made a report.
    2. -: ----: Jurisdiction of County Court. The petition for the establishment of a drainage district described the ditch as beginning on or about the land of A, north of mile post 32 of the Rock Island railroad, running thence east along the right of way to the Bonhomme creek, and then in a northerly direction to the river. In accordance with the statute (Laws 1905, p. 180 et seq.) viewers were appointed by the county court, who reported that the ditch should begin at a point on the land of A, northwest of mile post 32 of the Rock Island railroad, and run thence east and nearly parallel with the railroad, at an average distance of 200 feet from, it, across the lands of several owners named, to Bonhomme creek, thence in a northerly direction, across other lands, to the river. Notice was then published of the pendency of the petition, of the, appointment of the viewers, and of the fact that they had filed their report, etc., but no description of the proposed ditch was included save that set out in the petition. Eelcl, that the statute as amended in 1905 requires notice of the subject-matter of the viewers’ report, and where, as here, there is a material variance between the description of the ditch as set out in the petition and that included in the viewers’ report, hut not published, the county court does not acquire jurisdiction to establish the ditch in accordance with the report of the viewers.
    3. -: Statutory Appeal: Notice. While an appeal lies from the county court in a proceeding to establish a drainage district, the statute authorizing it distinctly specifies the questions that may be considered by the court to which the appeal is taken and thereby denies any remedy by appeal for the insufficiency of the notice the statute requires to be given.

      4. CERTIORARI: Office of the Writ. The office of certiorari is to bring the record of the proceedings' of an inferior court or tribunal before a superior court to determine whether it has acted legally, and the leading object of the writ is to keep inferior judicatories within the bounds of their jurisdiction.
    5. -: Drainage District: Jurisdiction: Notice of Viewers' Report. Certiorari is the proper remedy to try the action of a county court in a statutory proceeding to establish a drainage district, where the court has proceeded to establish the ditch without giving notice of the viewers’ report, particularly where, as here, the record affirmatively shows that legal notice was not given.
    Appeal from St. Louis County Circuit Court. — Hon. John W. McElhimney, Judge.
    Affirmed.

      J. G. Kishaddon and A. H. Kishaddon for appellants.

      D. G. Taylor and B. H. Stevens for respondents.
   BLAIR, C.

This is an appeal from a judgment of the circuit court of St. Louis county quashing, on certiorari, the record of the county court of St. Louis county relating to the establishment of Drainage District No. One in that county. The character of the questions raised makes it necessary to set out portions of the county court record.

The petition for the establishment of the drainage district was filed April 23, 1906, and, omitting signatures, is as follows:

“To the Honorable County Court of St. Louis County, Missouri:
“We, the undersigned, landowners and citizens of St. Louis county, Missouri, do hereby petition your honorable court to construct a drainage ditch, as provided in article IY, chapter 122, Revised Statutes of Missouri, 1899, to drain overflowed land, including Bosley and Kramm lakes, and to carry the waters of the Bonhomme creek to the Missouri River. Said ditch to commence on or about the land of John Bayer, north of milepost thirty-two of the St. Louis, Kansas City & Colorado Railroad, known as the Rock Island System. The ditch running east along the right of way to the Bonhomme creek, then in a northerly direction to the Missouri River. Said proposed ditch will be about four and one-half miles in length, and the same will be of great public utility, and will be conducive to the public health, convenience and welfare, and it is not desired to, issue bonds.”

With the petition the required bond was filed, and on May 7, 1906, the county court appointed qualified viewers and an engineer to view the premises and report as the statute requires.

Their report, filed June 18,1906, was, caption and signatures omitted, as follows:

“To the Honorable County Court of St. Louis County, Missouri:
“We, the undersigned, resident freeholders of said county, who were heretofore, on the 7th day of May, 1906, by order of this honorable court, appointed viewers to view the line of the proposed drainage ditch, respectfully report that before entering upon their duties as such viewers, they did take and subscribe an oath before the clerk of this court, as required by section 8280, R. S. of Missouri, 1899. That thereupon, under the directions of the said order of this court, certified by the clerk, they did on May 22, 1906, view the line of the proposed ditch as set forth in the petition herein, and report that by actual view of the premises along and adjacent thereto that the proposed improvement is necessary and practicable, and will be conducive to public health, convenience and welfare, and that the best route of the proposed ditch is as follows :
“Beginning at a point in the land of John Bayer, northwest of milepost 32 of the Rook Island Railroad Company, thence running east and nearly parallel with said railroad, at an average distance of 200 feet from said railroad, through land of said Bayer, William Rickard, Mary D. Ficke, Lawrence Fick, Fred J. Broemmelsick, Georgia A. Stevens, Robert G. Coleman, P. A. Fick, Charlotte Fick, Mary Schaeffer, Chas. L. Boisselier, Alvina and Edgar Kessler, Leo Steiner, Jr., Wm. J. Kroenung, Otto Hohman, Louis Hartung, Damian Kroenung, ’ Frederick Kroenung, across the Kehr’s Mill road, Daniel Kroenung, to Bonhomme creek, thence in a northerly direction across land of Daniel Kroenung, Henry Blank, across Olive road, and Harry Ficke, Adam Steffan and Peter Steffan to the Missouri River.
‘ ‘ That the route of said proposed ditch will more fully appear from the plat hereto attached and made .part of this report, upon which plat said proposed ditch is indicated by a red line.
“Tour commissioners further report that such portion of said ditch should be covered where it crosses said roads, and the work of constructing the same should be let by contract without allotment.”

The plat alluded to was filed and is in the record here.

Upon the filing of this report, the county court fixed September 21, 1906, as the date for hearing the petition and report, and ordered the county clerk to publish a notice of the pendency of the said petition, the appointment and report of said viewers, the place of beginning, route and termination of said ditch or drain in the time and manner the statute prescribed. The notice published pursuant to this order was as follows:

“Notice is hereby given that there is pending in the county court of St. Louis county, Missouri, a petition signed by D. 0. Kroenung, John Bayer, Wm. J. Kroenung, Walter S. Ficke, Lawrence Fick, and J. F. Brommelsick, to construct a drainage ditch, to drain certain overflowed lands, under chapter 122, article 4, of the Revised Statutes of Missouri, and amendments thereto, said ditch to commence on or about the land of John Bayer, north of milepost 32 of the St. Louis, Kansas City & Colorado Railroad Company, now known as the Rock Island System, the ditch running east along the right of way of the said railroad company, to the Bonhomme creek, thence in a northern direction to the Missouri River, the terminus thereof.
“That said petition was filed April 23, 1906, and that Henry Heinemann, Charles Wardenberg and J. J. Collins were appointed viewers and Wm. Elbring, a competent civil engineer, was appointed to assist said viewers, which said appointments were made on the 7th day of May, 1906, and that said viewers did, on the 18th day of June, 1906, file with the clerk of the county court their report, wherein they find that said ditch is necessary, practicable and would be of great public utility and would be conducive to the public health, convenience and welfare'; also reporting therein the best route for the proposed drain, that the portion crossing the public roads should be covered and that the work of constructing the same should be let by contract without allotment, and said report is now pending in the county court.
“Notice is further given that the said county court did, on Monday, the 27th day of August, 1906, by an order of record, fix Friday, September 21, 1906, at 10 o’clock a. m. in the county court room, as the time for the hearing of the petition and the report of said viewers.
“In testimony whereof, I have hereunto set my hand and affixed the seal of said court, at office in Clayton, this, the 28th day of August, 1906.
“(SEAL) John Ruhl,
Clerk County Court.”

On September 21, 1906, the county court entered an order in which, among other things, it found in favor of the proposed improvement and established Drainage District No. One, describing the- diteh as described in the report of the viewers and engineer.

It will be observed that the original petition filed in the county court described the proposed ditch or drain as commencing “on or about the land of John Bayer, north of milepost 32 of the St. L., K. C. & C. R. R.; the ditch running east along the right of way to the Bonhomme creek, then in a northerly direction to the Missouri River,” while the report of the viewers and engineer appointed to determine, among other things, from actual view, “the best route for the proposed drain,” reported* that such best route was “as follows: Beginning at a point in the land of John Bayer, northwest of milepost 32 of the Rock Island Railroad Company, thence running east and nearly parallel with said railroad, at an average distance of 200 feet from said railroad through the land of said Bayer” (and nineteen other named persons) “to Bonhomme creek, thence in a northerly direction across the land of” (five named persons) “to the Missouri River.” This report referred to a plat-, filed with and made a part of it, “upon which plat said proposed ditch is indicated by a red line. ’ ’

It will also be observed that the notice published made no pretense of describing the proposed ditch as it was described in the report of the viewers, and failed to refer to the plat filed with that report. The description in the notice of the beginning point, route and terminus of the ditch is simply that given in the petition.

Under the statute in force in 1906 (Laws 1905, p. 180 et seq.), after the report of the first viewers was filed, notice was required to be given (Laws 1905, p. 181, sec. 8281) “of the pendency of said petition, the appointment cmd report of said viewers, the place of beginning, route and terminus of said proposed ditch or drain, and the time fixed” for hearing the petition and report..

Under the statute in force (Sec. 8281, R. S. 1899) prior to the amendment of 1905, the notice of the pendency of the petition and appointment of viewers and the time when the viewers would make their report was required to be given in advance of that report. Notice of the report itself was not possible since the notice was given in advance of the filing of the report. Under the Act of 1905, however, the report of the viewers was required to be filed before the notice was given and notice of the report was required, as well as of the pendency of the petition and the time of the hearing. Under both statutes it was necessary to give notice of the place of beginning, route and terminus of the ditch or drain.

Under the statute of 1899 the only information the court had of the beginning, route and terminus of the ditch was that given in the petition filed and that was sufficient if generally descriptive thereof, and, consequently, a like approximation in the notice was sufficient compliance with the statute. [State ex rel. v. Taylor, 224 Mo. l. c. 462.]

The reason for the amendment in 1905 of the section affecting this question is clear enough. The Legislature intended that those interested should have notice of the report itself after it was filed and before the hearing. The report, in the nature of the thing, usually would be more definite and certain than the petition and of this more definite location the notice, under the amendment of 1905, would inform those concerned. This could be the only sound reason for delaying the giving of notice until after the filing of the report, and requiring notice of the report, and is the undoubted intent of the statutory command that notice of the report should be given.

Under the Act of 1905, the hearing on the report of the viewers was of first importance. Upon that hearing the question of establishing the drainage district was to be finally determined, for the statute provided that if the court, upon that hearing, found in favor of making the improvement “the lands which, as hereinafter provided, it may be found will be thereby benefited, shall, for the purpose of this article, constitute a drainage district which shall be designated by number.”

It was at this time objections to the formation of the district were required to be made, if at all, and objections following the report of the second board of viewers went only to the correctness of the estimates of cost of location and construction and of damages and benefits and the fairness of the apportionment of the latter. [Laws 1905, p. 184, sec. 8288.]

•Was the notice given sufficient when examined in the light of the requirements of section 8281, as amended in 1905?

The plat filed by the viewers was, in legal effect, a part of the report they made. The statute did not require a plat to be filed, it is true, but it did require the viewers to report “the best route for the proposed drain,” and the viewers might report this wholly in words and figures, or they might, as they did, report it in words and figures and plats. The statute required them to locate what was, in their opinion, the best route, and was not greatly concerned with the form their report might take. The report, in this case, definitely located the route the viewers deemed the best.

• The original petition filed in the county court locates the route of the proposed ditch “along the right of way of” a named railroad. A fair interpretation of this quoted phrase is that it means the ditch was to be located adjacent to the right of way mentioned. If it did not mean this but meant only that the proposed ditch was to begin at some point on John Bayer’s land and then rnn parallel to the right of way, then the beginning'point might vary 3600 feet from north to south, that being about the distance Bayer’s land runs north from the right of way. But the words should be taken in their ordinary meaning. So taken, the description in the petition was of a ditch running eastwardly and adjacent to the right of way. This construction of the phrase fixes the point of beginning at a point immediately north of the right of way and north of milepost thirty-two. The petition, thus understood, located the beginning point and the ditch itself, through its easterly course, quite definitely.

The report of the first board of viewers (including the plat made a part of that report) located the beginning point of the ditch northwest of milepost 32 a short distance from the north line of the right of way, and gave its first course as east and nearly parallel with the right of way, at an average distance of 200 feet from the north line thereof, the plat showing the exact location.

There was a material difference between these two descriptions. Several small tracts north of the railroad which would have been little affected by a ditch along and adjacent to the right of way were cut about in half by the ditch proposed in the viewers’ report and parcels were shorn from every tract adjoining the right of way.

The discrepancy between the route described in the petition and in the published notice and that described in the report of the viewers was material. Landowners might have had no objection to an open ditch lying adjacent to the railroad right of way but might well have objected to one cutting their lands in half or cutting considerable parcels therefrom and leaving the severed portion lying between the ditch and right of way.

The very reason for the amendment of section 8281 in 1905 was to provide that notice of the viewers’ report should be given. Landowners likely to be affected had a right to rely upon that notice as showing the route recommended by the viewers and engineer. The only description in the notice was of a ditch along a route materially different from that recommended by the viewers, and the notice was, consequently, calculated to conceal the recommended route rather than to advise landowners of it. It will not do to say that “notice of the report,” as required by the statute, meant simply notice of the fact a report had been made. The statute requires “notice of the pendency of said petition, the appointment and report of said viewers, the place of beginning, route and terminus of said ditch.” The former statute (Sec. 8281, R. S. 1899) required only “notice of the pendency of said petition and the appointment of said viewers, the place of beginning,” etc. Under that statute the certainty with which the beginning, route and. terminus was to be described in the notice was affected by a preceding-section which made it sufficient for the petition to give a general description of them. The petition, under the old statute, contained all the information the trial court had before it when it formulated its notice; and if the petition complied with section 8279, Revised Statutes 1899, then a notice following the petition was sufficient under section 8281, Revised Statutes 1899.

The Act of 1905, section 8281, as amended, however, required as much notice of the report as the former statute required of the petition. The route reported by the viewers was much more likely to be adopted than that described in the petition, if the two differed, and notice of it was, in such case, correspondingly more important. The Act of 1905 required notice of the report no less certainly than section 8281, Revised Statutes 1899, required notice of the petition and as much required notice of the beginning, route and terminus of the ditch as described in the report as old section 8281 reqnirecl notice of them as described in the petition. It is not conceivable that under the statute of 1899 a substantial variance, in the notice, from the description in the petition could give jurisdiction, and-for like reasons, under the Act of 1905, a notice of the beginning, route and terminus of the ditch as described in the viewers’ report is essential, and in the absence thereof the court acquired no jurisdiction.

certiorari Certiorari is the appropriate remedy. While an appeal lies from the county court in a proceeding to establish a drainage district the statute authorizing ^ distinctly specified the questions which may be considered by the court to which the appeal is taken and thereby denies any remedy by appeal for the insufficiency of the notice the statute requires to. be given, as has been expressly held. [Tie and Timber Co. v. Drainage Dist. Co., 226 Mo. l. c. 440, 444; Drainage Dist. v. Railroad, 216 Mo. 709.] The office of certiorari is to “bring the record of the proceedings of an inferior court or tribunal before a superior court to determine whether it had acted legally” (State ex rel. v. Edwards, 104 Mo. l. c. 126; State ex rel. v. Guinotte, 156 Mo. l. c. 526) and “the leading object of the writ is to keep inferior judicatories within the bounds of their jurisdiction.” [State ex rel. v. Dowling, 50 Mo. l. c. 136.] In this case the county court was proceeding in invitum and not according to the course of the common law. The “fact of notice having been given in the mode pointed out by the statute is” a jurisdictional prerequisite the absence of which certiorari will reach (C. R. I. & P. Ry. v. Young, 96 Mo. l. c. 42) particularly in view of the fact that the record affirmatively shows no legal notice was given. The judgment is affirmed.

Brown, C., concurs.

PER CURIAM.

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

All the judges concur.


author: WOODSON, P. J.

text:
    JOHN LOLI, Appellant, v. CENTRAL COAL & COKE COMPANY.
    Division One,
    January 3, 1914.
    APPEAL: Premature: No Judgment. An appeal taken by plaintiff after the court has sustained a demurrer to his evidence and he has taken a nonsuit with leave, from a record entry reciting only those facts, is premature, there being no judgment in the cause.
    Appeal from Macon Circuit Court.- — Hon. Nat M. Shelton, Judge.
    Appeal dismissed.

      B. S. Matthews & Son for appellant.

      B. B. Dysart for respondent.
   WOODSON, P. J.

The plaintiff brought this suit in the circuit court of Macon county, to recover the sum of $10,000 damages for personal injuries sustained through the alleged negligence of the defendant.

Both parties announced ready for trial and plaintiff introduced his evidence, and at the close thereof the defendant asked an instruction in the nature of a demurrer telling the jury that the plaintiff was not entitled to a recovery. Thereupon the plaintiff took a nonsuit with leave to set the same aside.

The following is the record entry of the proceeding (formal parts omitted), viz.:

“Now at this day cause comes on for trial. Both parties present, plaintiff in person and by his attorneys, Matthews & Son, and defendant by its attorneys, B. R. Dysart and W. C. Goodson, and both parties answer ready for trial. It being aii action for damr ages a talesman of good and lawful men is called from the regular panel of petit jurors chosen from the body of Macon county and sworn and qualified and a list delivered to each party for their respective challenges. Now again the list is returned into open court with the following twelve men chosen: J. P. Roebuck, R. T. Morris, A. W. John, Prank Ryals, Dan Bealner, E. E. Reynolds, Butler Barnes, C. L. Gilbert, B. E. Morgan, D. W. May hew, Ruben Grimshaw, James Dameron, who were sworn to well and truly try said cause, and trial proceeded with reading of pleadings and statements of both parties. By order of court Tom Cornelia is appointed interpreter in this case, and evidence on behalf of plaintiff is heard. It being the noon hour court takes recess until one thirty o’clock p. m. One thirty o’clock p. m. court convenes and trial proceeds with further evidence on behalf of plaintiff to its close. "Whereupon defendant offers demurrer to plaintiff’s evidence and the same is taken up by the court, considered and sustained and plaintiff excepts and takes an involuntary nonsuit with leave to set the same aside. ’ ’

In due time and in proper form plaintiff filed motions for a new trial, and an arrest of judgment, which were by the court overruled.

Plaintiff excepted and appealed the cause to the Kansas City Court of Appeals.

The cause was regularly presented to that court and briefed by counsel for plaintiff, and counsel for defendant filed a motion therein to dismiss the appeal for the reason that no judgment had been rendered therein and therefore the appeal was premature.

The Court of Appeals took up the case for consideration and on its own motion, I take it, transferred the cause to this court for the reason that the amount involved exceeded its jurisdiction.

Upon reaching this court the cause was regularly set down for hearing, and counsel for the defendant filed herein a motion to dismiss the appeal for the same reason assigned in their motion for a dismissal filed in the Court of Appeals, namely, that the circuit court had never rendered a judgment in the cause, consequently the appeal was prematurely taken.

I have fully set forth in the statement of the case, a full statement of the proceedings had in the cause as they appear upon the record of the circuit court of Macon county.

By reading that statement, it will be seen that the circuit court simply gave the demurrer asked to the evidence, but rendered no judgment whatever in the cause.

From that showing it must follow that the appeal was prematurely taken, and that the motion to dismiss the appeal should be sustained. It is so ordered and the appeal is dismissed.

All concur.


text:
    HARRY TROLL, Curator of the Estate of JOSEPH KOZLOWSKI, a Minor, Appellant, v. EHRLER DRAYAGE COMPANY.
    Division One,
    January 3, 1914.
    1. DEMURRER TO PLAINTIFF’S EVIDENCE: Inferences Court May Draw. It is- the duty of the trial court, in passing upon a demurrer to plaintiff’s evidence, to make every inference of fact in his favor that a jury might have made with any degree of propriety, hut the court is not at liberty to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff.
    2. -: -: Negligence. Negligence is ordinarily a question for the jury. It is always so when the evidence on material points is conflicting, or where, the facts being undisputed, different minds might draw different conclusions from them. And when the question of negligence arises upon even a conceded state of facts from which reasonable men might arrive at different conclusions, it must be submitted to the jury, and if the inferences to be drawn from the evidence are not certain or incontrovertible, the question of negligence cannot be passed upon by the court.

      3. NEGLIGENCE: Warning: Consequences of Negligent' Act: Master and Servant. It is negligence for the driver of a wagon to start his horses after being warned that injury to. some one or something is likely to result, and his master is liable for the consequences of that negligence even though the driver did not at the time foresee, or even if he could not foresee, the actual consequences.
    4. --: -: -: Wagon Driver: Evidence: Demurrer. Plaintiff, a child eighteen months old, was playing in , charge of his ten or twelve-year-old sister in a yard from which a covered passage led to an alley in which defendant’s wagon stood. The evidence for the plaintiff tends to show that the sister left him a moment, and when, on re-entering the yard, she saw he had gone into the alley, she ran through the passageway and on approaching the alley entrance saw the child near the rear wheel of defendant’s wagon and saw the driver getting on the wagon and getting ready to start the horses. She testified she ran through the passageway and as she ran out into the alley she “hollered at” the driver, “Hey, mister, stop;” that he turned around and looked at her but “didn’t notice” and “didn’t listen” and didn’t stop but struck the horses with his whip, driving on and over the little boy. The wagon was fourteen feet long and seven feet wide and the load upon it was higher than the driver’s head when he was seated, but the evidence tends to show that he was standing on a step or foot-rest on the front of the wagon when the little girl shouted to him to stop. There was also evidence that he could easily have glanced along the side of the wagon and would then have seen the child near the wheel, and evidence that the child was seen a few moments before “wandering around in the alley.” Held, that there was sufficient evidence to take the case to the jury, and that, therefore, the trial court erred in sustaining a demurrer at the close of plaintiff’s evidence.
    Appeal from St. Louis City Circuit Court. — Ron. Charles Claflin Allen, Judge.
    Reversed and remanded.

      Leahy,'Saunders <& Barth for appellant.
    (1) On a demurrer to plaintiff’s evidence, every reasonable intendment in favor of plaintiff to be drawn from the evidence offered by Mm must be indulged in Ms favor, and tbe evidence introduced in Ms bebalf regarded as absolutely true. Gratiot v. Railroad, 116 Mo. 450; Schwyart v. Barrett, 145' Mo. App. 334; Hannan v. Coal Co., 156 Mo. 243; Fassbinder v. Railroad, 126' Mo. App. 568'; Meily v. Railroad, 215-Mo. 584; Frick v. Railroad, 75 Mo. 601; Panck v. Beef Co., 159 Mo. 467; Bensiek v. Transit Co., 125 Mo. App. 128. (2) Negligence is a blended question of law and ¡fact. Shearman & Redfield on Negligence (6 Ed.), sec. 52; Tarwater v. Railroad, 42 Mo. 192. And such has been the uniform ruling in this State. (3) In this case, the master is liable for the negligent acts of hisi servant, in injuring plaintiff. (4) ■ It appears to be the settled mile in this State that in an action for injuries, it is only where the facts are such that all reasonable men must draw the same conclusion that the question of negligence is for the court. Coombs v. Kirksville, 134 Mo. App-. 645 ; Kennedy v. Railroad, 190 Mo. 444; Dorks v. Seudder-Gale Gro. Co., 146 Mo. App. 246; Heine v. Railroad, 144 Mo. App. 447; Osborn v. Nelson,'141 Mo. App. 428; Yaughn v. Brewing Co., 152 Mo. App. 48; Murrel v. Smith, 152 Mo. App. 95. Though the facts are not disputed, negligence is still a question for the jury if different conclusions might be drawn by the minds of reasonable men from the facts as established. Tabler v. Railroad, 93 Mo. 79j; O’Meilla v. Railroad, 115 Mo. 205; Lamb v. Railroad, 147 Mo. 171; Gratiot v. Railroad, 116 Mo. 466; Hannan v. Coal Co., 156 Mo. 243; Combs v. Kirks-ville, 134 Mo. App. 649; Kennedy v. Railroad, 190' Mo. 444; Lasky v. Railroad, 83 Me. 461; Railroad v. Fitzpatrick, 35 Md. 32; McCully v. Clark, 40 Pa. St. 399, 80 Am. Dec. 584; Shoenblum v. New York, 58 App-. Div. 285. Negligence being a breach of the duty to exercise reasonable care under the circumstances, it is for the jury to consider all the surrounding conditions and say whether the defendant’s act or omission was or was not violative of this obligation. It is the province of the jury to note the special circumstances and surroundings of each particular case, and then to say whether the conduct' of the parties in that case was such as would be expected of reasonable and prudent men under a similar state of affairs. 21 Am. & Eng. Ency. Law (2 Ed.), p. 498. (G) In order for the plaintiff to sustain the burden of proof to show negligence, it is only necessary for him to make out a prima-facie case. Gannon v. Gas Light Co., 145 Mo. 502; Bischoff v. Schulz, 5 N. Y. Supp. 757; Canal Co. v. Bentley, 66 Pa. St. 30; Mitchell v. Eailroad, 100 Tenn. 329; Eailroad v. Foreman, 73 Tex. 311, 15 Am. St. 785>. "When this is done the burden shifts to the defendant, who must, to avoid liability, rebut such presumptions and show the absence of negligence. Mitchell v. Eailroad, 100 Tenn. 329. It is for the jury to determine whether the burden of proving negligence has been sustained. Cox v. Eailroad, 123 N. C. 604.

      Ellerbe & Brokaw for respondent.
    (1) The demurrer to plaintiff’s evidence was properly sustained as there was a complete absence of proof that plaintiff was seen or should or could have been seen by defendant’s servant before the accident. Parsons v. Yaeger, 7 Mo. App. 594; Bennett v. Eailroad, 242 Mo. 134. (2) Any finding of negligence on the part of the driver of the wagon can only be based upon a mere conjecture as distinguished from a legitimate inference. Porter v. Brewing Assn., 24 Mo. App. 1; Lee v. Jones, 181 Mo. 291. (3) A defendant is presumed to have been in the exercise of ordinary care, to have been performing his duties and obligations, until the contrary is shown by evidence. The mere injury to a plaintiff by an instrumentality or a servant of a defendant is not sufficient to warrant a presumption of negligence. Yarnell v. Eailroad, 113 Mo. 579; Webb v. Baldwin, 165 Mo. App. 252; Cahill v. Eailroad, 205 Mo. 404; Menteer v. Fruit Co., 240 Mo. 186. (4) It is improper for court or jury to base a presumption upon a presumption such as would have been necessary in order to have submitted this case to the jury. Yarnell v. Railroad, 113 Mo. 578; Sexton v. Railroad, 245 Mo. 254.
   BLAIR, C.

One of respondent’s wagons was driven over appellant, crushing off his left arm, and this action was instituted in the circuit court of the city of St. Louis to recover damages therefor. This appeal is from a judgment on a verdict the court directed for defendant at' the close of plaintiff’s, evidence.

At the time he was injured, Joseph Kozlowski was eighteen months old. About 2:30' p. m., August 17, 1908, this child was in charge of his (then) ten- or eleven-year-old sister and the two had been in a yard from which a covered passage three feet wide, ten feet high and twenty feet long led eastwardly into the alley running north and south through the block between Ninth and Tenth streets and south of O’Fallon street. Respondent’s wagon, in charge of a negro driver, was standing on the. east side of the alley, across from the entrance to the passageway described, the horses’ heads being to the south.

There was. evidence tending to show that the sister of the injured child momentarily left him, and when, on re-entering the yard, She saw he had gone into the alley, she ran through the passageway and on approaching the alley entrance saw the child near the rear wheel of respondent’s wagon and saw the driver getting on the wagon and getting ready to start the horses.. She testified she ran through the passageway and as she ran out into the alley she “hollered at” the driver, “Hey, mister, stop;” that he turned around and looked at her but “didn’t notice” and “didn’t listen” and didn’t stop but struck the horses with his whip, driving on and over the little boy who was playing by the wheel of the wagon.

The children had entered the yard they were in from the alley, coming straight np the alley but a minute or two before the little boy re-entered it, and it is a fair inference the wagon was then in the alley, but there is no evidence whether the driver was in a position to see the children at that time.

As the little girl entered the alley and cried to the driver to stop she was greatly agitated and was running at the topi of her speed toward the child near the rear wagon wheel. There is evidence she was quite beside herself with excitement. The wagon was fourteen feet long and seven feet wide and the load upon it was higher than the driver’s head when he was seated, but the evidence tends to show he was standing on a step or foot-rest on the front of the wagon when the little girl shouted to him to stop. There was also evidence he could have easily glanced along the side of the wagon and would then have seen the child near the wheel, and evidence the child was seen a few moments before “wandering around in the alley.”

After injuring the child, the driver did not stop his team until arrested a block or so away from the scene.

There was other evidence on other matters but that stated is all that relates to the question whether there was sufficient evidence of negligence to take the case to the jury, and this is the question presented by the appeal.

It was the duty of the trial court, in passing upon the demurrer to the evidence, “to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in bis favor . . . but the court was not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff ; that would clearly be usurping the province of the jury.” [Buesching v. Gaslight Co., 73 Mo. l. c. 231.]

Another principle is that “negligence is ordinarily a question for the jury. It is always so when ^ie evidence on material points is conflicting, or where the facts being undisputed different minds might reasonably draw different conclusions from them . . '. and when the question of negligence arises upon even a conceded state of facts from which reasonable men might arrive at different conclusions', it must be submitted to the jury, and if the inferences' to be drawn from the evidence are not certain or incontrovertible, the question of negligence cannot be passed upon by the court.” [Gratiot v. Railroad, 116 Mo. l. c. 466.]

Whether in this case the driver was negligent must be determined in the light of all the circumstances. He was: not entitled to the exclus^ve 1186 the alley. He certainly was not justified in-disregarding the injured child’s1 presence near the wheels of the wagon if he had notice of it in any way before he put the wagon in motion. There is no direct evidence he had such notice. A jury, however, might with propriety have found from the evidence that the driver heard the little girl’s cry to him. She testified positively that when she called to him to stop he turned around and looked at her. It is a fair inference that he was not more than twenty feet from her at the time. The jury would have been justified in concluding that when the ■child testified the driver turned but “didn’t listen to” her and that he looked at her “but he didn’t notice,” and (in answer to a leading question on cross-examination which included an incorrect assumption as to her previous testimony on the point) that he “looked as if he didn’t hear her,” she meant the driver did not heed her warning.

When the little girl cried, ont to the driver, the injured boy was then at the rear wheel of the wagon and it was not yet in motion. In connection with the cry to stop., which the jury would have been justified in finding the driver heard, the evidence would justify a further finding that, in response, he turned and saw the little girl and saw that she was greatly agitated and saw that her agitation was causing her to run excitedly toward the part of the wagon immediately in front of the rear wheel where the injured child was standing or playing. The driver was getting ready to start the horses. If he heard the cry to stop, it is a fair inference from the evidence that he understood it was addressed to him. Taking these things into consideration and adding to them the fact that when the driver turned he saw the little girl and saw that though' calling to him to stop she was not running toward him but toward the rear wheel of the wagon and for some purpose attempting to reach it in great haste and that whatever that purpose was it had greatly excited her, it must be said, assuming, as we must, that these things are true, that the driver had sufficient notice there was danger of some kind to be apprehended if he then put his wagon in motion.

It was not necessary that the warning should have "been specific. It was negligence for the driver to start his horses after being warned that injury /?. to some one or something was likely to result from such an act. There was evidence he disregarded the warning, whipped up his horses, and ran over the child. If these things are true, his master is liable for the consequences of that negligence even though he did not forsee, or even if he could not foresee, the actual consequences at the time. [Hoepper v. Hotel Co., 142 Mo. l. c. 389; Miller v. Railroad, 90 Mo. l. c. 394; Christianson v. Railroad, 67 Minn. l. c. 97, and cases cited; Santa Fe Ry. Co. v. Parry, 67 Kan. l. c. 519; City of Dixon v. Scott, 181 Ill. l. c. 119; Coolidge v. Hallauer, 126 Wis. l. c. 250; Hill v. Winsor, 118 Mass. l. c. 258, 259.]

The case should have been submitted to the jury. The judgment is reversed and the cause remanded.

Broiun, G., concurs.

PER CURIAM.

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

All the judges, concur.