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    LOUISA TINKLE v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division Two,
    May 19, 1908.
    1. NEGLIGENCE: Employment, How Shown: Cook. The authority of the foreman of defendant’s bridge gang to engage plaintiff to cook for the members of the gang at $3.50 each per week and to go with them from place to place on defendant’s car as they worked at repairing defendant’s bridges, and to bind the company by such engagement, may be shown by facts and circumstances, although there is no direct or positive evidence of such authority. And the facts in evidence in this case are held sufficient to establish the foreman’s authority to engage plaintiff and to show that defendant knew she was so employed, and rightfully on its ear, at the time of her injuries.
    2. -: Cooking While Train Was in Motion. It was not error to permit witnesses to testify to the custom of plaintiff to cook On defendant’s car, and to the custom of the bridge gang to eat, while the train was in motion, such evidence tending to show that plaintiff was not negligent in standing up and washing the dishes while the train was in motion — the charge being that while she was so engaged, the running train was stopped so suddenly as to throw her down and break her leg.
    3. -: Speed of Train. A witness who has had occasion while riding on trains to note their comparative speed and testifies that he is able to tell approximately how fast the train was running, is competent to testify as to the speed of the train, the weight of his testimony being for the consideration of the jury.
    4. -: Admission: Rejected But Afterwards Admitted. Where plaintiff’s written admission was first rejected because of lack of sufficient identification, but afterwards when it was again offered objection thereto was overruled and it was directed to be read to the jury, there is no merit in the contention that the admission was excluded.
    5. -: Sudden Stop: Injury to Employee: Demurrer. Defendant knew that plaintiff was on the cook car, which was carried from place to place in connection with its bridge gang, and that she was employed in cooking for the men. The car in which she was, was at the rear end of the train which consisted of twenty-five or thirty cars, and no brakeman was on it. The train started smoothly, but soon attained a speed of from eight to twelve miles an hour, and after it had run about a quarter of a mile, and while plaintiff and her husband, as their custom was, were washing the dishes, standing up, the train suddenly stopped, without notice to her, and causing such a violent jar and jerk as to throw her down with great force to the floor of the ear, breaking a thigh bone and crippling her for life; it also threw her husband down in the same way; jerked her son’s hand-hold loose from the door of the bunk car, swung him around against the side of the car, and almost threw him down; and it caused a heavy cast-iron cooking range, which had been fastened by cleats to the floor, to rear up out of its socket. Held, that plaintiff cannot be held guilty of such contributory negligence as bars her recovery, and the case was properly submitted to the jury, notwithstanding witnesses for the defendant testified that the stop was made in the usual way and was not more sudden than usual.

      6. -: -: -: Assumption of Risk. There was nothing in said circumstances which authorizes a holding that plaintiff assumed the risk. The doctrine does not apply where the injury was occasioned by the negligence of defendant.
    7. -: Employee or Licensee: Duty of Defendant. Plaintiff was employed by the foreman of defendant’s bridge gang to cook for the men at $3.50 per week for each, and was put to work on the cook car, fitted up and prepared for her by defendant, and there worked for over twelve months, going with and on the car as it was moved from place to place. Her duties required her to be on her feet, moving around in the car, whether it was standing or in motion, and while standing up washing dishes, as the train was moving from eight to twelve miles an hour, the car was stopped so suddenly that she was thrown down and badly injured. Helé, that she was rendering services for the benefit of defendant, and whether she was a servant or a licensee, defendant owed her a degree of ordinary care commensurate with her situation and the duties of her employment, and the same duty it owed an employee not engaged in the operation of the train but riding therein on the business of the company.
    -: Instruction: Not Bottomed on Petition. Where the petition alleges a specific act of negligence, namely, that “said defendant, its agents, servants and employees in charge of said engine, improperly, negligently and carelessly caused said engine to suddenly stop with a sudden and violent jerk and shock, thereby throwing plaintiff to the floor with great force,” etc., an instruction which authorizes a recovery if plaintiff was injured by defendant’s negligence “in the running or switching of one of its trains to which the car of plaintiff was attached,” ignores the issue tendered by the petition, and is erroneous, since if the action was predicated simply upon the negligence in the running and switching of the train plaintiff would not be entitled to recover.
    9. -: -: No Contributory Negligence. Where contributory negligence was pleaded and there is some evidence tending to prove that defense', plaintiff’s instruction should not ignore that issue.
    • 10. -: -: Issue Invited by Defendant: Burden of Contributory Negligence. Defendant cannot complain of an instruction which its defense invited. Where it pleaded contributory negligence and introduced evidence to sustain that plea, it cannot be heard to complain of an instruction for plaintiff which declares the burden of proving contributory negligence to be on defendant, which it contends should not have been given because the negligence of plaintiff appeared from her own evidence.

      11. -: -: Medical Services. The plaintiff’s right to recover for medical services should he limited hy her instructions to the amount claimed in the petition.
    12. -: -: -: By Married Woman, If the plaintiff, a married woman, was compelled to pay out money for medicines and professional services of physicians and nurses, she is entitled to recover the same.
    Appeal from Henry Circuit Court. — Eon. G. A. Denton, Judge.
    Reversed and remanded.

      L. F. Parker, W. F. Evans, John E. Lucas and G. A. Calvird for appellant.
    (1) The court erred in admitting evidence, viz., Louisa Tinkle: (a) Hearsay, conversation with one of Hess’s men. (b) Conversation with Hess, it not being shown that Pless had authority to bind defendant. (c) Company had paid on two occasions board bills, it not being shown that the company had any knowledge of any alleged agreement between Hess and plaintiff, (d) Arrangement for cars, it not being shown that company knew anything of the plaintiff’s connection therewith, (e) That no notice was given her that car was going to be moved. Cosgrove v. Railroad, 54 Mo. 498; Williams v. Edwards, 94 Mo. 447; Helm v. Railroad, 98 Mo. App. 419'; Seabold v. Bohn, 169 Mo. 537; Wilson v. Rutherford, 69 Mo. App. 304. (2) The court erred in overruling the demurrer offered by the defendant and refusing to give the peremptory charge at the conclusion of the whole case. There was no evidence of negligence in operation of the cars in switchyards, either in starting, running or stopping the same. Hedrick v. Railroad, 195 Mo. 116; Beebe v. Railroad, 108 S. W. 1023; Wait v. Railroad, 165 Mo. 612; Erwin v. Railroad, 9'4 Mo. App. 297; Portuchek v. Railroad, 101 Mo. App. 55; Guffey v. Railroad, 43 Mo. App. 466. Res ipsa loquitur does not apply. Smith v. Railroad, 113 Mo. 70; Hamilton v. Railroad, 100 S. W. 671; Hagnie v. Railroad, 103 S. W. 581; Copeland y. Railroad, 175' Mo>. 650. Contributory negligence: Engleldng v. Railroad, 187 Mo. 164; Schmidt v. Railroad, 191 Mo. 215; Shield v. Railroad, 100 Mo. App.'517; Debait v. Railroad, 123 Mo. 505 ; Tanner v. Railroad, 161 Mo. 497; Chaney v. Railroad, 176 Mo. 598. Risk assumed by plaintiff: Shields v. Railroad, 100 Mo. App. 517; Rutledge v. Railroad, 110 Mo. 320; Wait v. Railroad, 165 Mo. 612; Steffen v. Mayer, 96 Mo. 420; Williams v. Railroad, 119.Mo. 316. (3) The court erred in giving instruction 1 asked by plaintiff. This instruction' ignores the issues tendered by the pleadings and authorizes a recovery if the jury should believe that defendant was negligent in running or switching one of its trains; ignores the question of authority of Hess, and makes defendant the insurer of the safety of the plaintiff.' Thomas v. Babb, 45 Mo. 384; Lumber Co. v. Tie Co., 87 Mo. App. 167; Turney v. Baker, 103 Mo. App. 390; Bank v. Murdock, 62 Mo. 70; Mansur v. Botts, 80 Mo. 651; Yarnell v. Railroad, 113 Mo. 570; Crews v. Lackland, 67 Mo. 619; Greer v. Parker, 85 Mo. 107; Chappell v. Allen, 38 Mo. 213; Eitzgerald v. Hayward, 50 Mo. 516; McKeon v. Railroad, 43 Mo. 405; Deschner v. Railroad, 200 Mo. 333; Harper v. Terminal Co., 187 Mo. 588; Clark v. Kitchen, 52 Mo. 316; Chitty v. Railroad, 148 Mo. 75'. (4) Contributory negligence: The burden is on the defendant, but the instruction is misleading in the fact that the contributory negligence herein stands admitted by plaintiff, and should have been declared as a matter of law. Warder v. Seitz, 157 Mo. 151; Moore v. Railroad, 126 Mo. 265; Eckard v. Railroad,' 190 Mo. 611. (5) The husband was liable for medical bills, and for that reason instruction 9 was erroneous. Smoot v. Kansas City, 194 Mo. 524; Kroner v. Railroad, 107 Mo. App. 46; Wallis v. Westlroit, 82 Mo. App. 522; Newell v. Railroad, 108 Mo. App. 530; Perrigo v. St. Lonis, 185 Mo. 285.

      Jolmsor/ & Sea, John W. Ross, Peyton A. Parhs and W. E. Owen for respondent.
    (1) A non-expert witness may testify as to the speed of a train. He should qualify to make his opinion of probative force, and his qualification depends on his experience and training, his location and the observation he has made of running trains and other things that make his opinion of value — its weight being for the jury. Stotler v. Railroad,- 200' Mo. 123; Walsh v.-Railroad, 102 Mo. 586; Aston v. Railroad, 105 Mo. App. 231; Railroad v. Von Steinberg, 17 Mich. 99; Lawson on Expert and Opinion Evidence (2 Ed.), 505. (2) Evidence as to the usual course of conduct (plaintiff standing and cooking and cleaning up) for a considerable length of time without accident or injury is admissible in evidence to show that such course of conduct was not negligent. 5 Am. and Eng. Ency. Law, 639. (3) There was ample evidence of negligence on the part of defendant to go to the jury. It was for the jury and not for the court to pass on the credibility of witnesses, to reconcile the conflict in the testimony and determine the weight to be given to the evidence of the respective witnesses. There was strong and substantial evidence of the mismanagement of the train over which defendant had ■ immediate and exclusive control, and with the running of which plaintiff had nothing whatever to do. Coudy v. Railroad, 85 Mo. 85; Clark v. Railroad, 127 Mo. 210; Blanton v. Dold, 109 Mo. 64; Dixon v. Railroad, 109 Mo. 413; Turner v. Haar, 114 Mo. 335; Burger v. Railroad, 112 Mo. 238; Harris v. Railroad, 89 Mo. 233; Ward v. Steffen, 88 Mo. App. 571; Linn v. Bridge Co., 78 Mo. App. Ill; Whitehead v. Railroad, 99 Mo. 263; Sackewitz v. American Biscuit Co., 78 Mo. App. 144; Hupsley v. Railroad, 88 Mo. .App. 348. (4) The proof of the sudden stop of the train, the injury to plaintiff, the attendant circumstances and the unusual physical facts raise a presumption of negligence on the part of defendant, without proof of the exact way in which the train was mismanaged. The doctrine of res ipsa loquitur applies between master and servant, where the servant is not at fault .and in no manner was connected with the operation of the train. St. Clair v. Railroad, 122 Mo. App. 528; Haas v. Railroad, 11 Mo. App. 706; Blanton v. Dold, 109 Mo. 64; Lee v. Railroad, 112 Mo. App. 372; Miller v. Ocean Steamship Co., 118 N. Y. 199; Pasey v. Schooville, 10 Fed. 140; Sackewitz v. Am. Bis. Mfg. Co., 78 Mo. App. 144; Dougherty v. Railroad, 9 Mo. App. 484. It is not the injury, hut the manner and circumstances of the injury, that justify the application of the maxim res ipsa loquitur and the inference of the negligence, nor does the application of the principle depend on the relation of the parties, except directly so far as that relation defines the measure of duty imposed on the defendant. ' Griffin v. Maurice, 166 N. Y. 188; Shearman’s Redfield, Law of Negligence (5 Ed.), sec. 59. The term res i/psa loquitur is used in the law of negligence with reference to cases where an accident has occurred, and the physical facts surrounding it are such as to create reasonable probability that the accident was the result of negligence of defendant. Houston v. Brush, 66 Yt. 331; Bahi v. Lombard, 53 N. J. Law 233; Excelsior Electric Co. v. St., 57 N. J. Law 224. The most apt and concise statement of the principle of res ipsa loquitur is found in the leading ease of Scott v. London and St. Katherine Docks Co., 3 Hurl. & C. 596. (5) A servant assumes those risks alone which remain after the master has exercised ordinary care. It is the duty of the master to exercise reasonable care, commensurate with the nature of the business, to protect a servant from the hazards incident to it. Charlton v. Railroad, 200 Mo. 443; Curtis v. McNair, 173 Mo. 270'; Williams v. Railroad, 119’ Mo. 316; Rodney v. Railroad, 127 Mo. 676; Herdler v. Buck’s S. & R. Co., 136 Mo. 3. (6) Plaintiff being accustomed to the movement of freight trains, and the jerking, jamming and jarring incident thereto, and being expected and required to cook and prepare meals and have them ready on time, whether cars were running or standing, and having done so for more than one year without accident or injury, was not guilty of contributory negligence in standing while the train was moving; and the question of her negligence, under the facts and circumstances revealed in evidence, was properly submitted, to the jury, and their verdict is conclusive on that question. If any inference other than contributory negligence may be fairly drawn from all the evidence, then that question becomes one of fact for the jury. 5 Am. and Eng. Ency. Law, 639; Weller v. Railroad, 120 Mo. 648; Nugent v. Railroad, 80 Mo. 62; Harris v. Railroad, 89 Mo. 233; Palmer v. Tel. Co., 91 Mo. App. 114; Fox v. Packing Co., 96 Mo. App. 181. Recklessness or heedlessness should be very apparent to justify a declaration by the court, as a matter of law, that certain conduct on the part of plaintiff amounted to contributory negligence. Deschner v. Railroad, 200 Mo. 311; Reading v. Railroad, 33 Mo. App. 536. (7) By reason of the contract on the plaintiff’s part to cook for the bridge gang and be transported from point to point, and the agreement of defendant to furnish cars and fuel for. cooking, eating and sleeping and to transport provisions free of charge, all done for defendant’s benefit, may not plaintiff’s position on the train be compared to that of a postal clerk, and consequently a passenger on the .freight train when injured, and entitled to protection as such passenger? Maguffin v. Railroad, 102 Mo. 540; Melon v. Railroad, 105 Mo. 455; Jones v. Railroad, 125 Mo. 666; Carroll v. Railroad, 88 Mo. 248. If not a passenger, then plaintiff was either a direct employee of the company, or a necessary employee of defendant ’s employee, riding on the train and doing work for the benefit of defendant with its expressed sanction and approval and under its protection, both as to compensation for her labor and personal safety. In either case, the .defendant owed her the same duty it would any employee not engaged in running the train, but riding thereon on the business of the company. And that measure of its duty to plaintiff was to exercise reasonable care, commensurate with (the nature of plaintiff’s duties and occupation and) defendant’s business, so as to protect her from the hazards incident to running its freight trains. Roddy v. Railroad, 104 Mo. 247; Whitehead v. Railroad, 99 Mo. 263; Lyon v. O’Brien Boiler Works, 68 Mo. App. 148; Brown v. Sullivan, 10' S. W. 288; Ridings v. Railroad, 33 Mo. App. 534; Eason v. Railroad, 65 Tex. 577; Railroad v. Bolton, 430 Ohio St. 224; 2 Thompson, Neg., 1045.
   BURGESS, J.

— This is an action for damages for personal injuries caused, as alleged, by the negligence and carelessness of the defendant. The case was tried in the circuit court of Henry county on change of venue from Polk county, the trial resulting in a verdict and judgment for plaintiff in the sum of five thousand dollars, from which judgment defendant appeals.

The plaintiff, according to the evidence, was employed by one E. H. Hess, foreman of defendant’s “bridge gang,” to board and cook for the members of said bridge gang, plaintiff to furnish the board and do the cooking for the compensation of fifty cents a day, or $3.50 per week, for each man, it being further agreed between plaintiff and Hess that in case any of the men failed to pay her for said board,- Hess would deduct the money from their wages and send in board bills to the defendant company and she would receive checks from the company for the amount of the board bills. The evidence showed that plaintiff, in two instances, received checks from the company in payment of arrears for board. The defendant furnished for the use of plaintiff a car in which to do the cooking and for the serving of meals to the bridge gang, also a bunk or sleeping ear for the use of plaintiff and her husband and the members of the bridge gang. Defendant also furnished coal and fuel for cooking purposes, and transported the necessary provisions from point to point, free of charge. These arrangements were made by and through Hess, the bridge foreman, with the knowledge and approval of Gr. W. Turner, defendant’s superintendent of bridges and construction. Plaintiff was required to prepare three meals a day for the men, at 6:30 in the morning, at noon, and at 6:30 in the evening, and she was expected, and her unvarying practice during the period of one whole year was, to prepare and make ready the meals and clean up, whether the cars were moving or standing still. She had been employed as cook for a full year, and had traveled to various points in Missouri, Arkansas, the Indian Territory, and Texas, and had by reason of her long experiencé in riding on freight trains, become accustomed to the usual and ordinary jarring and jamming incident to the moving and stopping of such trains, and became skilled in the art of balancing and protecting herself from injury while in the performance of her work and duties.

On the night preceding the morning of the accident, which resulted in plaintiff’s injuries, the freight train to which the six cars used by the bridge gang were attached ran into the terminal yards of defendant at Monett, Barry county, Missouri, the bridge gang being on the way to Rody, Arkansas, to do some repair work. The plaintiff was not feeling well, and had her hnsband and son prepare breakfast for the men at 6:30 o ’clock the morning of the accident, and she came into the cook and dining car, at the close of the meal. She ate breakfast, and then she and her husband began washing the dishes. While they were so engaged, the train of cars moved out at a speed of eight to twelve miles per hour. The train started smoothly and ran for about a quarter of a mile, when it came to a sudden and violent stop, which produced a violent jar and jam, by reason of. which the plaintiff was thrown with great force to the floor of the car, and her right thigh bone was broken near the hip joint, rendering her a cripple for life. Her husband was also thrown to the floor, and a number of dishes were precipitated on the floor and broken. The sudden jar also caused a heavy cast iron range on the car, and which had been fastened down to the floor with heavy wooden cleats, to rear up out of its socket. Plaintiff’s son, Ira Tinkle, had hold of the door of the bunk car at the time, and was shaken up, but succeeded in remaining on his feet.

The evidence on the part of the plaintiff differs from that for the defendant as to the rate at which the cars were running and the suddenness of the stop, and particularly as to the latter. Both plaintiff and her son, Ira, testified that .in a whole year’s experience of riding on freight trains they had never felt or experienced so sudden and violent a shock or jar as the one which threw plaintiff on the floor of the car and caused the injury.

J. F. Watson, engineer on the train, testifying for the defendant, stated that there were between' twenty-five and thirty cars in the train; that it was running between six and eight miles an hour, and that he stopped the train in the usual way by means of the air brake and locomotive drivers and tenders; that he did not stop it suddenly, but that as the train was a long one, and there is always more or less “slack” on a train, a person in the last car, in which ear plaintiff was, would be likely to receive a shock and be thrown down, if such person was not on his guard.

The fireman on the engine, the switchyard foreman and -two switchmen testified for the defendant, their testimony being to the effect that the stop was not more sudden than usual, and that it was made in the usual way.

E. H. Hess, foreman of the bridge gang, testifying for the defendant, stated that he was in a car ahead of the cook car at the time the train was stopped, that he was writing at the time, and that he did not notice that the bump was more violent than usual. He also stated that plaintiff told him, after she was hurt, that she had been washing dishes, and was in a hurry putting them away at the time she was thrown down. He further testified that he had told plaintiff several times that she should sit down while the train was switching as there would be more or less jarring.

Plaintiff testified, in rebuttal, denying that Hess had ever told her to sit down whenever the train was switching.'

Two physicians and surgeons, who had examined plaintiff, testified that she suffered great pain from the injury, that the injury was permanent, and that the injured leg was about an inch and a half shorter than the other and would remain so.

Defendant insists that the court committed error in permitting plaintiff, as a witness in her own behalf, to testify, over defendant’s objection, (1) to a conversation had with Hess, the foreman, with reference to her employment as cook, it not being shown, as contended, that Hess had had authority to bind the defendant; (2) that the company had on two occasions paid board bills owing her by the men, it not being shown that the company had knowledge of any alleged agreement between Hess and plaintiff; (3) as to an arrangement for cars, it not being shown that the company knew of plaintiff’s connection therewith; (4) that no notice was given plaintiff that the cook car was abont to be moved.

Whether error was committed in admitting evidence of a conversation between plaintiff and Hess detailing the agreement and understanding under which plaintiff went to work as cook for defendant’s bridge gang depends upon whether Hess, in making such agreement, had authority so to do, and that the company was bound thereby. That there was no direct or positive evidence of such authority is quite clear, but the existence of such authority may be proven by facts and circumstances, if sufficient. The testimony of the plaintiff, Ira Tinkle, her son, and H. E. Hook, tended to prove that Hess was foreman of defendant’s bridge gang; that there were six cars in the outfit, one of which was fitted up and prepared by the defendant company for purposes of cooking and eating, another with bunks for sleeping, the remaining cars containing the bridge gang’s tools and equipment for bridge work; that Hess hired and discharged the men of the bridge gang and the cooks. Hess testified that he was foreman of the bridge gang;' that he worked under the direction of defendant’s superintendent of bridges and building; that the latter knew of his employing cooks for the men and having them work in the car; that the company furnished all the cars including the cooking and dining car; also furnished fuel for cooking purposes, and permitted the transportation of the necessary provisions from place to place free of charge, and that such had been the custom since his connection with the company; that the cars constituting the bridge gang outfit were hauled from place to place, as occasion might require, according to his directions; that it was always customary when any of the men quit work or were discharged, and their board bills were not paid by them, to attach such board bills to the payroll sent to the company, and that the company paid same.- It was also in evidence that the defendant company, on two occasions, had paid the plaintiff board bills owing her by members of the bridge gang who had quit work. All this evidence tends to prove that Hess had authority to hire plaintiff as cook for defendant’s -bridge gang and to bind the defendant. That the defendant knew- that plaintiff was employed as cook for its bridge gang is clearly indicated by the authority vested in Hess, the furnishing and preparation of a car for cooking and eating purposes, and the necessity therefor by reason of the movement of the bridge gang’s equipment from place to place over the company’s lines for the expeditious performance of its bridge work at points where, without the convenience of cooking and sleeping cars, it would at times be difficult to secure such necessary conveniences and accommodations for its men. In addition to this, as before stated, the company in two instances had paid board bills owing to plaintiff by two members of its bridge gang. Nor do we think that the admission of evidence as to the arrangement of the cars was error, as claimed by defendant, upon the ground that the company knew nothing of plaintiff’s connection therewith. Plaintiff -was in a sense in the service of the company in that what she was employed to do and was doing at the time of the injury was for the convenience and sustenance of the employees of the company, so that the men might thereby be able to put in more time at their work than they could if compelled to board elsewhere than on the car. Moreover, Ed Savage, a witness for defendant, who was foreman of the switch engine at the time of the injury, and whose duty it was, under the direction of the yard-master, to make up trains, testified that he knew at the time of the movement of the train that the cars constituting the bridge gang outfit were attached thereto and that the cook’s car was the hindmost or furthest removed from the engine. This witness, although he testified that he did not know plaintiff was in any car, must have known that the cook car was usually occupied by the cook, knowing the purposes for which that car was used.

Defendant’s objection to the action of the court in admitting evidence that plaintiff was not given notice by defendant’s servants that the ear in which she was at work was about to be moved, seems to have been made under a misapprehension, as it appears from the record that all evidence as to notice of starting the train was stricken out, at plaintiff’s suggestion, upon the ground that there was no allegation of negligence in starting the train.

There was, we think, no error in permitting Hook, one of the bridge men, and Ira Tinkle to testify to the custom of plaintiff to cook and the crew to eat while the train was in motion, such evidence tending to show that plaintiff was not guilty of negligence in standing up and washing the dishes while the train was in motion. It would have been impracticable, according to the evidence, to stop the train every time it was necessary to prepare and serve the meals and clean the dishes and utensils, and it had been plaintiff’s custom to do this work while the train was in motion the same as while standing still. Nor was there error in permitting Ira Tinkle to testify as to the speed of the train just before the stop which resulted in the injury. He testified that he had had occasion while riding upon trains to note the comparative speed of trains, that he was able to tell approximately how fast a train in which he was riding was going, and that this train’s speed, immediately before it stopped, was from ten to twelve miles per hour. It is true that this witness did not testify that he had timed moving cars, and his evidence was not, of course, as important as would be that of a person of more experience, and better qualified to testify in this regard, but we think he was competent to- testify in this case, the weight of his testimony being for the consideration of the jury. [Walsh v. Railroad, 102 Mo. 582; Aston v. Railroad, 105 Mo. App. 226.]

Defendant next insists that it sought to secure the written admission of plaintiff as to the accident, and offered her testimony with respect thereto', which consisted of plaintiff’s admissions made on cross-examination, and which was, as contended, sufficient to authorize the introduction of the paper, but which was excluded on objection by plaintiff. While it appears from defendant’s abstract that defendant offered in evidence the written statement of plaintiff as to the accident, and that it was excluded at the time for lack of sufficient identification, the defendant’s additional abstract shows that thereafter, when the statement (Exhibit A) was again offered to be read in evidence and plaintiff’s counsel objected thereto, the court overruled the objection and directed that the statement be read to the jury. It follows that there is no merit in this contention.

Defendant next assigns as error the action of the court in refusing to give instruction numbered one, asked by defendant, that ‘’‘on the pleadings and the evidence plaintiff cannot recover.” This contention is based upon the following propositions: 1. That the plaintiff’s own evidence fails to prove such facts as are necessary to a recovery. 2. That on all the evidence in the case the jury should have been required to return a verdict for the defendant.

Of these in their order. Plaintiff testified in her own behalf substantially as follows:

I was -standing on the right hand side of the car, next to the table, washing the dishes, while Mr. Tinkle stood at my side and wiped them, at the time the accident occurred. An engine hacked in and coupled on to the cars and pulled us out pretty rapidly, and stopped with a sudden bump, and throwed me down hard onto the floor, with my right hip down, and there was an awful pain in my right hip. Mr. Tinkle undertook to pick me up the best he could. I was hurt so bad I don’t hardly know how he did pick me up, but they picked me up and carried me forward.

Being asked what kind of a stop the train made at the particular time, she answered: “It was a sudden and violent stop, I called it; just seemed to me like it couldn’t have struck any quicker, and just seemed like it knocked me as hard on the floor as it could; seemed like every bone in my hip was broken. We was going pretty lively, and when they stopped they just stopped of a sudden and threw me with such violent force onto the floor.” She also testified that Mr. Tinkle was knocked down at the same time, and that she was accustomed to the ordinary jumping and jamming made by freight trains.

On cross-examination, she testified that she could not tell how long the train was in motion before it came to a stop; that it started off nicely, but kept getting a little faster, and that when it stopped it stopped all of a sudden; that she was washing dishes at the time the train stopped. Being asked why she didn’t sit down, she answered: “Because I hadn’t been notified that they were going to pull us out or do any switching.....I didn’t know they was going to pull up just a little and then stop. ” She further testified that they always notified her when they were going to pull out or do any switching, and that then she generally did as the train men told her; that she was used to any ordinary jam or movement of the train, and that she was going about her work and doing as she had • done a hundred times before; that she cooked and did her work while the cars were running in like manner as when standing on the sidetrack.

Ira Tinkle’s testimony, summarized, was as follows : After all had finished breakfast that morning on the car he went to the water car for water. While he was getting the water the train started, in a westerly direction. He ran and caught the bunk car and climbed in, and in a minute or two after the train had run about a quarter of a mile at a good speed, it came to a sudden stop. Describing the stop he said “it was kind of an unreasonable jar or jam,* looked like it came around against the side of the car, and jerked my hold loose from the door. I managed to stay on my feet. ’ ’ In answer to questions propounded to him, he said that he had occasion, while riding on trains, to notice their comparative speed, and could tell approximately, or had “a pretty good idea,” how fast trains are running by riding on them. Being asked to tell the rate of speed, if he observed it, at which the train was moving just before the stop, he replied, “I judge it was going between ten and twelve miles an hour.”

“Q. Now, I wish you would describe that stop, as near as you can, with reference to its suddenness? A. Well, all I can tell about this sudden stop — it stopped right there; it was quite a jam or jar; in fact it was the worst one we had on the cars as long as I was on them —mighty unusual.

“Q. When you got back into the cook’s car, in what condition did you find things in the car? A. Well, the stove — we had a big range stove, and it sat flat on the floor, and we had put cleats around the stove to hold it in place, and the stove was reared up out of its socket and was standing up on the heavy cleats, and there was broken dishes on the floor, and I pried the stove back in its place.”

H. E. Hook, a witness for plaintiff, testified that he was a member of the bridge gang at the time of and before the accident; that Hess had authority to discharge the cook or the men, and that during all the time he -was with the company Hess had charge of the employment of the members of the bridge gang and the cooks. The testimony of this witness with reference to the cooking and serving of meals and the washing of' the dishes and utensils by plaintiff while the car was in motion was substantially the same as that of Mrs. Tinkle.

The substance of the evidence for the defendant, as before stated, was that the train was stopped in the usual manner, and that the jar was not greater than usual.

The defendant insists that this evidence fails to show any negligence on its part, and that the peremptory instruction asked should, therefore, havé been given.

We think we are safe in saying that the facts disclosed by the record would not jusitfy our holding, as a matter of law, that plaintiff was guilty of negligence and that such negligence contributed to her injury. She was at the time engaged in the performance of her regular routine duties, such as she had been doing for a year or more without accident or injury to her person. In this case, however, to entitle plaintiff to a recovery, she not being a passenger for hire, it devolved upon her to show by a preponderance of the evidence that her injury was caused by the negligence of defendant’s servants, agents and employees in charge of said engine and train in causing said train and the cook’s ear attached thereto, without any notice or warning to plaintiff of their intention so to do, to stop so suddenly as to cause a jerk and shock so violent as to throw plaintiff with great force against the floor of said car, thereby causing the injury, pain and suffering alleged in the petition. And in this connection it may be said that it is a matter of common knowledge that jolting and jarring are incident to the operation of freight trains, and, therefore, to entitle plaintiff to recover, proof was necessary that the stop resulting in the jar and jolt which caused plaintiff’s injury was so sudden and unusual and of such a character as to show negligence on the part of defendant’s agents and servants in the operation of the train, and to endanger the life or limb of plaintiff, who they knew or should have known was an occupant of the cook’s car attached to said train.

The defendant relies upon the case of Hedrick v. Railroad, 195 Mo. 104, as decisive of the case at bar, the court in the Hedrick case holding the evidence to be wholly insufficient to justify a recovery. In that case, however, the facts were much more unfavorable to the plaintiff than are the facts disclosed by the record in this case to Mrs. Tinkle. The plaintiff therein was a passenger upon a very long freight train which was slowly approaching on up grade, to a place where it was to take on another car. There was no evidence of any negligent act on the part of any of the train crew, except that the plaintiff testified that the train was in a manner stopped when he got up from his seat and started towards the rear end of the car; that then there was a jump as if caused by a collision, and for a moment or two he did not know what had happened but when he came to himself he felt that he was injured, and sat down on a seat, at which time the train was perfectly still. He testified that he could not tell whether he had been thrown down or not, but that when he came to himself he was on his feet; that he had traveled a number of times in cabooses attached to freight trains, and on freight trains, and that this jar was the severest he had ever experienced on a freight train — so severe that it upset the water tank in the car and jerked him senseless and injured his neck. On cross-examination, he testified that when he started to go to the rear end of the caboose “the train was barely moving; it was not running one mile an hour; not near as fast as a man could walk; the rate of speed was so that a child could walk and get oif if it had not been' jarred.” He was asked whether he was thrown down and answered, “Well, I do not know whether I was or not. Right there is where I never will be clear; I do not think I went to the floor. I was stunned for a minute or two.” Asked whether or not he struck his head, neck or arm against anything in the caboose at that time, he answered, “I think I kind of caught myself on the — against the door casing or against the door as it swung, the jar was so violent and severe.”

In Wait v. Railroad, 165 Mo. 612, the plaintiff, a passenger on one of defendant’s trains, was told by the station agent at Milan from whom he had purchased a ticket, that the passenger coach of the freight train npon which he was to take passage would probably not stop at the platform, as it was the custom of the trainmen, when late, to attend to the freight business and then pull out without stopping, and that he had better go up the track some distance to where the passenger coach was standing and get on the car there. He did so, and the train started up with enough speed, as he thought, to indicate that it was oif and would not stop. He, therefore, got out of his seat and stepped into the aisle to pull off his overcoat. The train suddenly stopped, and he was thrown against the seats and badly injured. There was no evidence tending to show any defect in the track, train or appliances, or any want of skill or care on the part of the train men, or that the train was stopped at an unusual place or in an improper manner, or that the shock which caused the plaintiff’s fall was not a natural or ordinary incident of a proper stopping of the train. It was held that the trial court properly sustained a demurrer to the evideuce, there being no facts proved from which an inference of negligence on the part of the railroad company conld be legitimately drawn.

In Erwin v. Railroad, 94 Mo. App. l. c. 298, the case of Wait v. Railroad, supra, was cited with approval, the court saying, “We think the Wait case a much stronger case than the one in hand, and for reasons stated in that case and stated in this opinion, we think the court erred in overruling defendant’s demurrer to the evidence, wherefore the judgment is reversed.” Guffey v. Railroad, 53 Mo. App. 462, is of much the same character as the case last cited.

In Portuchek v. Railroad, 101 Mo. App. 52, it is held that a passenger traveling on a freight train assumes all extra hazards incident to and inseparably connected with such method of traveling, and if injury is caused only by the jerk or jolt occasioned by the stopping of the train in the ordinary way, such person is not entitled to recover; citing Erwin v. Railroad, supra; Wait v. Railroad, supra; Railroad v. Arnol, 144 Ill. 261; Olds v. Railroad, 172 Mass. 73.

The authorities all hold that when a railroad company “carries passengers for hire on its freight trains it must exercise the same degree of care as is required in the operation of its regular passenger trains, the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.” [Wait v. Railroad, supra, and authorities cited.] In the case last cited, as also in the Hedrick case, there is quoted with approval the following from Railroad v. Arnol, supra: “Persons taking passage upon freight trains, or in a caboose or car attached to a freight train, cannot expect or require the conveniences or all of the safeguards against danger that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodations provided by tbe company, subject to all tbe ordinary inconveniences, delays and hazards incident to such trains, when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. ’ ’ But the degree of care required of the railroad company for the safety of its passengers is the same, whether it be a passenger or freight train, such care, or the charge of negligence, being considered in connection with the makeup, purpose, equipment and management of the different kinds of trains, as before indicated.

In the case at bar it is clear, we think, that the defendant knew that plaintiff was upon its train at the time of the occurrence which caused the injury; that the train was twenty-five or thirty cars in length, with no brakeman on the rear car; that it started smoothly, but soon attained a speed of from eight to twelve miles an hour, and after it had run about a' quarter of a mile, and while plaintiff and her husband, as their custom was, were washing the dishes, it suddenly stopped, causing such a violent jar and jam as to throw her down with great force to the floor of the car, breaking her leg bone and crippling her for life, and threw her husband down at the same time; that the sudden stop and jar jerked her son’s hold loose from the door of the bunk car, swung him around against the-side of the car and almost threw him down; that it caused a heavy cast-iron cooking range, which had been fastened by cleats to the floor, to rear up out of its socket, and threw dishes on the floor and broke them; that plaintiff was given no warning that the train was switching or was about to stop. These facts make out a stronger case of negligence against the defendant than was made in either of the cases cited, and notwithstanding the fact that witnesses for the defendant testified that the stop was made in the usual Way and was not more sudden than usual, the case was properly submitted to the jury, as iu none of those cases was the jar so severe as in the case in hand.

Defendant also contends that the peremptory instruction ought to have been given for the reason that the alleged injury arose out of a risk assumed by plaintiff.

As a general rule, the doctrine of assumption of risk pertains to controversies between masters and servants, though circumstances may arise between parties other than masters and servants when the doctrine may apply; but such defense is never available unless it rests upon contract; “or, if not exclusively on contract, then on an act done so spontaneously by the party against whom the defense is invoked that he was ■a volunteer, and any bad result of the act must be attributed to an exercise of his free volition, instead of to the conduct of his adversary.....The word ‘assumption’ imports a contract, or some kindred act of an unconstrained will. Whenever a man does anything dangerous he encounters the risk, but it by no means follows that, legally speaking, he assumes the risk.” [Fillingham v. Railroad, 102 Mo. App. l. c. 580.] There is nothing disclosed by the record in this case which removes it from the operation of the general rule, or which would' justify the conclusion that the plaintiff assumed the risk. Moreover, the doctrine does not apply when the injury is occasioned by the negligence of the defendant.

It is further insisted that the peremptory instruction should have been given in view of the relation of defendant to the plaintiff and its duty to her. Defendant contends, first, that she was not a passenger; second, that she was not an employee, and that the relation of master and servant did not exist; third, that she was at most a mere licensee, and might reasonably be considered a trespasser.

We do not understand that it is contended that plaintiff was a passenger on the train at the time of the injury, nor do we think she was; nor do we think plaintiff was an employee of defendant, for it is evident from the.facts disclosed hy the record that the relation of master and servant did not exist between them, although the services rendered by plaintiff were in furtherance of defendant’s interests. But if not a direct employee of defendant, she was much more than a mere licensee. She was employed for defendant’s benefit hy defendant’s foreman, with defendant’s knowledge, and was put to work in the place fitted up and prepared for her hy defendant, and there worked for over twelve months. The duties of plaintiff required her to he on her feet, moving around in the car, preparing and serving meals and cleaning up thereafter, whether the cars used by the bridge gang were in motion or not, and the defendant owed her a degree of ordinary care commensurate with her situation and the duties of her employment. And whether plaintiff was on the train as the servant of defendant, or as a licen-1 see, she was at the time of the injury rendering services for the defendant’s benefit, though it may not he directly, with its knowledge and consent, and it owed her the same duty it would any employee not engaged in operating the train, hut riding therein on the business of the company. [Roddy v. Railroad, 104 Mo. 234; Pugmire v. Railroad, 92 Pac. 762.]

In Eason v. Railroad, 65 Tex. 577, it is held, in an action for personal injuries, that if the injured person is not a volunteer hut engaged at the request or with the permission of the railroad’s agent in a transaction of interest as well to himself or his master as to the railroad company, he is entitled to the same protection against the negligence of the company’s servants as if he were at the time attending to his own private affairs. The court said: “The principle upon which a recovery is allowed is this: The injured person is not a volunteer, but engaged at the request or with the permission of the railway’s agents in a transaction of interest as well to himself or his master as to the railroad company, and this entitles him to the same protection against the negligence of the company’s servants as if he were at the time attending to his private affairs. Though performing a service beneficial to both, he is doing so in his own behalf, and not as a servant of the company. Their request or acquiescence gives him the right to perform the service; the fact that he acts in his own behalf, however beneficial his labor may be to the company, gives him the right to be protected against the negligence of the company’s servants. ’ ’

The same doctrine is announced in Ryan v. Boiler Works, 68 Mo. App. 148. See, also, Brown v. Sullivan, 71 Tex. 470.

Defendant asserts that instruction No. 1 ignores all the issues tendered by the petition and predicates the right of recovery on issues not presented by the pleadings, namely, that defendant contracted that plaintiff might “maintain the boarding car for the bridge gang,” and that while engaged, under such contract, if injured by negligence “in the running or switching of one of its trains to which the car of plaintiff was attached,” she was entitled to recover.

We are inclined to the opinion that the petition sufficiently alleges that plaintiff had contracted with the company, through its agent, Hess, foreman of the bridge gang, to maintain the boarding car and board the bridge gang, but it does not allege that she was injured by the negligence of defendant in the running and switching of the ear. The allegation in the petition is that said “defendant, its agents, servants and employees in charge of said engine, improperly, negligently and carelessly caused said engine to suddenly stop with a sudden and violent jerk and shock, thereby throwing the plaintiff with great force to the floor,” etc.

There is a very material difference between the running and switching of a freight train and the stopping of it suddenly, with a violent jerk or shock. If this action were predicated simply upon negligence in the running and switching of the train in this instance, we should not hesitate to say that the plaintiff would not be entitled to recover; but this instruction authorizes a verdict upon that theoiy.' The petition alleges a specific act of negligence, and the instruction should be in accord, therewith. Besides, the instruction entirely ignores the issue of contributory negligence, which was pleaded in the answer and which there was some evidence tending to prove. Our conclusion is that said instruction is erroneous and misleading, and that as instruction number three is bottomed upon that instruction, it is also erroneous.

Defendant complains of the action of the court in giving instruction number five, which declares the burden of proving contributory negligence to be on the defendant, not that it is not correct as a proposition of law, but that it ought not to have been given in this case, because the negligence of the plaintiff appeared from her own evidence. But defendant not only alleged in its answer that plaintiff was guilty of contributory negligence, but adduced evidence in support of that defense, and it is in no position to complain of an instruction which its defense invited.

There- was, we think, no error in refusing instructions numbers two, three and six asked by defendant.

In instruction number nine the court told the jury that the plaintiff was entitled to recover , for medical services, without limiting the same to the amount claimed in the petition for such services. Upon retrial, this should be corrected. It is said that this instruction is erroneous by reason of the fact that the liability for medical services rested on the husband and not on the wife, and that she was not entitled to recover therefor. If, as alleged in the petition, plaintiff on account of her injuries and in the endeavor to be healed thereof, was compelled to pay out divers sums of money, to-wit, the sum of two hundred dollars, for professional services of physicians and nurses, and for drugs, then she was entitled to recover therefor. [Sec. 4335, E. S. 1899.]

For the reasons indicated the judgment should be reversed and the cause remanded for further trial. It is so ordered.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE STATE ex rel. WILBUR F. MARING v. JOHN E. SWANGER, Secretary of State.
    In Banc,

      May 20, 1908.
    1. PRIMARY ELECTIONS: Petitions: Sufficiency of Affidavit. The affidavit attached to nomination papers or petitions required by the statute to he filed with the Secretary of State in behalf of candidates for State offices, in order that their names may be officially printed on the party tickets to he voted upon at the primary election, is sufficient if it substantially complies with the statutory requirements. So that,, although the statute requires that, among other things, the affiant shall state that he knows “the respective residences” of the signers “are stated” in the petition, and those words are omitted from the affidavit, yet if the affiant states that the signers are qualified electors of the county, it is sufficient; for one who is a qualified elector of the county is by necessary implication a resident of the county.
    2. -: -: -: Construction of Statute. The directory provisions of' a statute should he so construed as to give force to its beneficent life and purpose.
    3. -: -: -: -: Substantial Compliance. A substantial compliance with any directory statute is sufficient— especially where the statute itself indicates that all that is required is a substantial compliance therewith.

      4. -: -: -: -: Prescribed Form. Although the Primary Election Statute prescribes a form of affidavit to he appended to a nomination paper, yet as it also prescribes a form of nomination paper and ordains that such paper shall “substantially” follow the prescribed form, the paper will be held to include the affidavit as a part of it, since the statute says that the affidavit shall be appended to, that is, made a part of, the paper. The statute, therefore, means that the affidavit, as well as the rest of the paper, shall substantially follow the prescribed form.
    5. -: -: -: Purpose of the Affidavit. The purpose of the statute in requiring an affidavit to be appended to the nomination paper was to authenticate the paper as a genuine document executed for the purposes of the law.
    6. -: -: -: Residence. The statute does not require that the affidavit state the postoffice address of the signers of a nomination paper; it simply says that the affiant shall state, among other things, that “their respective residences are stated therein.” And where the respective residence of each voter is stated opposite his name or signature on the nomination paper, and the affiant states that he “knows them each and all to be qualified electors” of the county, the Secretary of State can see by the nomination paper itself what the residences of the signers are, and no beneficial purpose would have been conserved had the affidavit stated that “their respective residences hre stated therein.”
    7. -: -: -: Reading in “As.” The statute does not say that the affidavit shall state “their respective residences are as stated” in the nomination paper. If it had done so a different question might arise. But as the word “as” is not in the law, the court will not read it in.
    8. --: -: -: Mandamus As a Remedy. Mandamus is a proper remedy to compel the Secretary of State to file and accept a nomination paper that is in substantial compliance with the statute. .
    Mandamus.
    Peremptory writ awarded.

      Perry 8. Bader for relator.-

      Herbert 8. Hadley, Attorney-General, and John Kennish, Assistant Attorney-General, for respondent.

      STATEMENT BY THE REPORTER.
    This is a suit hy mandamus, brought in this court, to compel the Secretary of State to file two nomination papers in behalf of the relator, who' is a candidate for the Republican nomination for State Treasurer.
    ■ The petition was presented in open court on May 19th, and the Attorney-General, who appeared for respondent, waived the issuance of the writ, and agreed that the petition might be considered as and for the writ.
    The petition is accompanied by two papers headed, “Petition, for Nomination.” One of these papera begins with these words: “I, the undersigned, a qualified elector in and for the county of Nodaway and the State of Missouri, and a. member of the Republican party, hereby nominate Wilbur P. Maring, who residesf at Jefferson City in the county of Cole and the State of Missouri, as a candidate for the office of State Treasurer, to be voted for at the primary to be held on the first Tuesday of August, 1908, as representing the principles of said party, and I further declare ’that I intend to support the candidate herein named.” Then under the column headed with the word “Name” are twenty-six different names written with pencil, and opposite each name in the column headed “Residence” are the words “Burlington Junction,” and in the next column headed “Date” are “May 12, 1908,” opposite each name.
    At the end of this paper is an affidavit in these words:

      ‘ ‘ State op Missouri;
    ‘ ‘ County of Nodaway.
    “On this the 14 day of May, 1908, personally appeared before me, John H. Bryant, a duly qualified elector, who being duly sworn, upon his oath states that he is personally acquainted with all the persons who have signed the foregoing petition, and knows them, each and all, to he qualified electors of Nodaway county, Missouri; that he knows that they signed the same with full knowledge of the contents thereof, and that each of the above-named petitioners signed the same on the date set opposite his name, and that he, the affiant, intends to support the candidate named therein.” Then follows the signature of John H. Bryant, and the certificate and seal of a notary public.
    The other paper attached to the petition was in all respects the same as the above except it purports to come from Benton county and was signed on different dates in January, 1908, by twenty-five persons whose “residence” is stated opposite their names to be Warsaw.
    The petition charges that relator presented these petitions to the respondent on May 16, 1908,- and asked that they be filed and accepted as valid nomination papers, but that respondent refused to file them or permit them to be filed for the sole reason that the words, “and that their respective residences are therein stated,” were omitted from the affidavit, which words the statute says áre to be stated in the affidavit. It is admitted by the Attorney-General, who filed a demurrer to the petition,' assigning as grounds therefor that it fails to state a cause of action, that if the omission of these words from the affidavits do not invalidate the nomination papers, they are valid and binding. It, therefore, is unnecessary to set out the allegations of the petition. It is not charged or claimed that the words “and that their respective residences are stated therein,” were intentionally omitted from the affidavits, but it is admitted by both relator and respondent that their omission was at most an oversight. The point for decision, therefore, is purely one of law, and is, Did the omission of these words, which the statute says shall be stated in the affidavit, invalidate the nomination papers?
    The sections of the statute bearing on the point at issue are these:
    “Sec. 1. Hereafter all candidates for elective offices shall be nominated by a primary held in accordance with this act.....
    “Sec. 5. The name of no candidate shall be printed upon an official ballot used at any primary unless at least sixty days prior to such primary a nomination paper shall have been filed in his behalf, as provided in this act, in substantially the following form. ’ ’ Then follows the form copied above from the petition from Nodaway county.
    “Sec. 6. All nomination papers except for county officers shall have substantially the above form written or printed at the top thereof.
    “Sec. 8. For State officers, all signers on each separate nomination paper shall reside in the county. The affidavit of a qualified elector shall be appended to each such nomination paper, stating that he is personally acquainted with all persons who have signed the same, and that he knows them to be electors of that precinct or county as the nomination papers shall require; that he knows that they signed the same with full knowledge thereof, and that their respective residences are stated therein, and that each signer signed the same on the date stated opposite his name, and that he, the affiant, intends to support the candidate named therein.....

      ‘ ‘ Sec. 9. Such nomination papers shall be signed: (a) If for a State office, by at least one per cent of the voters of the party of such candidate, in at least each of six counties in the State, and in the aggregate not less than one per cent nor more than ten per cent of the total vote of his party in the State.....
    “Sec. 11. All nomination papers shall be filed as follows: 1. For State officers .... in. the office of the Secretary of State.....
    “Sec. 15. An official ballot shall be printed and provided for nse at each primary precinct in the form provided herein. The names of all candidates for the respective offices, for whom the nomination papers prescribed shall have been duly filed, shall be printed thereon.
    “Sec. 30. It shall be the duty of the Secretary of State, on or before March 1,1908, to prepare all forms necessary to carry out the provisions of this act, which forms shall be substantially followed in all primaries held in pursuance thereof. Such forms shall.be printed with copies of this act for public use and distribution. ’ ’
   OPINION BY THE COURT.

PER CURIAM.

— The blunt and single question is this:

Is the omission of the statutory words, “that their respective residences are stated therein,” from the affidavits of the qualified electors appended to two certain nomination papers, nominating Mr. Maring as a candidate for the office of State Treasurer, fatal to their filing — the nomination papers and the appended affidavits being otherwise confessedly in strict compliance with the State Primary Act?

We are of opinion (Yalliant, J., absent and Graves, J., not sitting) that the omission is not fatal to the filing of such nomination papers, as one step towards getting on the official ballot, and that the final writ of mandamus should go.

This, because:

(a) Broadly, the State Primary Act being highly remedial and not in contravention of the common law, under canonized rules of construction its provisions should he liberally construed to further and give force to its beneficent life and purpose in advancing the remedy provided and retarding the mischief struck at. The rigor of very strict compliance with the minutiae of directory provisions (such as this) of the Primary .Act is not to- be exacted at the hands of the plain citizens unskilled in technical precision who are called upon to initiate action ,under the primary law, unless vehement call is made therefor by the act. The mind of the judicial interpreter of such a law must not be narrow and oh the qui vive for flaws or it will stumble; and, absent the oil of common-sense construction, the new and untried machinery of the law will break down and its technical burdens prove its utter undoing. Many instances readily recur of the application of the doctrine of the sufficiency of substantial compliance as against very strict -compliance. Thus (e. g.), the statute prescribes a form for acknowledgment of deeds. In construing that statute it has been steadily held that a substantial compliance is well enough. [See authorities collated by the learned annotator of Mo-. Ann. Stat., p. 842, et seq.] The same doctrine is applied in determining the sufficiency of the returns of constables on writs (Ables v. Webb, 186 Mo. l. c. 246); in determining the sufficiency of an affidavit for appeal (State ex rel. v. Broaddus et al., Judges, 210 Mo. 1); and, closer to the point, in interpreting’ those provisions of an election law not made mandatory by the clear reason or words of the statute (Sanders v. Lacks, 142 Mo. l. c. 262, et seq.). That the Legislature- held this doctrine in mind, witness the act itself. Thus, section 5 prescribes a form for a nomination paper and ordains that such paper shall “substantially” follow the form laid down. Section 8 provides that ‘ ‘ the affidavit of a qualified elector shall he appended to- each nomination paper,” i. e., should become a part of the paper. This being so, the statutory birthright of sub stantial compliance granted to the form of the nomination paper may well be held to run with the affidavit, by express legislative sanction. Now, a rule of construction the Legislature has said is good for the one (the paper, itself), shall the courts say is bad for the other (an incident to the paper) ? That such legislative benediction, the grace of substantial compliance; should be made as broad and efficacious as may be by judicial construction, goes as of course.

(b) Obviously, the office of the statutory affidavit was not so much to furnish a clue for the detection of fraud in the preparation of a nomination paper, as to authenticate the document itself — make 'it gO', pass current, as it were, with the Secretary of State as a genuine paper, executed for the purposes of the law and entitled to his official vise for filing and counting. Observe, the statute does not say the correct postoffice address of the signer shall be given in the paper nor as part of the affidavit. It says his residence shall be given — quite another thing; for A may reside at B and get his mail at C. “Residence” goes to his right to sign; for the law provides that “for State officers, all signers on each separate nomination paper shall reside in the same county.” If the Legislature had intended the postoffiee addresses of the signers should be given so that their identity on a pinch might be run down and established by the use of the United States mail, it was very lame in not saying so outright. It stops quite short of that. The statute pointing to the residence of the signers, when the affidavits in question certify that the several affiants knew the signers to be “qualified electors of the county” (which fact includes by necessary implication residence therein), and knew that they signed the respective nomination papers “with full knowledge of the contents thereof” (which fact includes by necessary implication their knowledge that said papers gave their residences as in the county), we think the fair purposes of the law were fully subserved. Indeed, what sensible legal purpose was to be gained by affiants also stating that the signers’ respective residences “are stated therein?” They were “stated therein.” The papers say so — res ipsa loquitur. Why state what the papers state when the official eye of the Secretary of State could see what they state, not through the glass of an affidavit, darkly, but face to face in the papers themselves, and when an affidavit containing the omitted words would furnish not a ray of light except a borrowed one? Let us suppose by way of hypothesis, as a reductio ad absurdum, that the nomination papers did not in fact give the residences, but, notwithstanding that omission, affiants had made affidavits that the residences “are stated therein,” would the Secretary of State in the line of his duty look no further than the affidavits to ascertain the real fact? To so hold would be judicial nonsense. If, then, he must look to the papers to see the fact, what vital function does the mere signboard in the words omitted from the affidavit serve? None that we can see. And what says the maxim — the law forces no one to do vain or useless things {Lex neminem cogit, etc.) ?

If the statute had ordained that affiant should state to his personal knowledge that the respective residences of the signers are as “stated therein,” a different question might be here. Under such circumstances, the oath of affiant would serve a purpose in attesting his personal knowledge of the truth of the particular fact that the residences were truthfully stated, but the statute makes no such requirement and we will not go beyond the law by reading it in by construction.

We hold, then, that the pretermitted words are not of the essence of the thing — that the statute in that regard is essentially directory; and, so holding, we conclude the omission not fatal to the validity of the nomination papers.

(c) Mandamus seems the proper remedy. [State ex rel. Scott v. Dirckx, County Clerk, 211 Mo. 568; State ex rel. Rinder v. Goff, 129 Wis. 668.]

Let the final writ go.

All concur, except ValUant, J., absent, and Graves, J., not sitting.


author: WOODSON, J.

text:
    THE STATE ex rel. ROBERT A. BOWLAND v. W. B. CLOUD.
    In Banc,
    May 25, 1908.
    COUNTY TREASURERS: Eligibility. Under the Act of 1907 county treasurers in office at the time the act was passed, whether serving their first or second term, are eligible to reelection, at the general election in November, 1908, for a term of four years beginning the following January.
    Mandamus.
    Peremptory writ awardee.
   WOODSON, J.

— This is an original proceeding, instituted in this court by the relator and against the respondent, as clerk of the county court of Greene county, to compel the latter to file the declaration of the former as a candidate for the office of treasurer of that county on the Republican ticket, in compliance with an act of the Legislature of 1907, entitled, “An Act to provide for party nominations by direct vote.” [Laws 1907, p. 263, sec. 5.]

The petition and alternative writ of mandamus states, in substance, that the relator, on April 22, 1908, with a'view to placing himself upon the official ballot of said Greene county, Missouri, as the candidate for the office of treasurer on the Republican ticket, signed and verified the declaration required by law, giving his full name and residence, designating the office for which he proposes to be a candidate, and the date of the primary election at which his claims are to be submitted, and naming the party upon whose ticket he is to be a candidate, which affidavit and declaration are in the form prescribed by the section of the act mentioned.

Relator further states that on the 22nd day of April, 1908, he presented to the said W. B. Cloud, as such clerk, at his office, the said declaration with the view of having the same filed, and with the view of having his name printed on the official ballot so as to have submitted his claims for nomination as county treasurer on the Republican ticket at the primary election, to be held on the said first Tuesday in August, 1908.

Relator further states that said W. B. Cloud, as such clerk, refused to accept said declaration and refused to file the same, and refused to mark the same filed, and refused to consider relator as a candidate for such office, and refused to publish his name on said’ official ballot for the alleged reason that the relator is not eligible to said office.

Relator states that on said pretext the said clerk returned to petitioner the said declaration with the following endorsement thereon:

“Springfield, Missouri, April 22, 1908.

“As I, W. B. Cloud, clerk of the county court of Greene county, Missouri, construe the act of the General Assembly, being an act entitled, ‘An Act to amend section 6764, chapter 97, Revised Statutes of 1899-, ’ approved April 1st, 1907, you are not eligible to the office of county treasurer, as you were elected county treasurer in’190'4, and elected to said office in 1906, and, therefore, are now serving your second term.

“I, therefore, respectfully decline to receive your declaration, and I refuse to file same in my office, and I give you notice hereby that I will not permit your name on the official ballot for the primary election to be held in August, 1908,” which was duly signed by the clerk.

Relator further states that the sole reason for the refusal of said clerk to refuse to accept and file said declaration is, as stated, that relator is ineligible by reason of now being an incumbent for the second successive term in said office, which relator admits to be true.

The return of respondent admits the facts as stated in the alternative writ to be true, and insists that relator is ineligible to succeed himself in the office of treasurer of said county, and for that reason declined to accept and file his said declaration.

To the return of respondent, relator filed a motion to make the alternative writ heretofore issued peremptory, notwithstanding the return.

This record presents the same question which was involved in the case of State ex rel. Scott v. Dirckx, 211 Mo. 568. What is there said applies with equal force to the facts of this ease; and the opinion delivered therein, by Gantt, C. J., is so ably and exhaustively considered that there remains but little or nothing that can be added by me on the subject. However, the section of the statute governing the elections of county treasurers contains a provision in favor of their eligibility which is not contained in the constitutional inhibition against sheriffs succeeding themselves in office.

The section of the statute of 1899 as amended by the Act of 1997, Laws 1997, p. 449, reads as follows:

“Section 6764. On the Tuesday after the first Monday in November, 1908, and every four years thereafter, there shall he elected by the qualified voters of the several counties of the State, a county treasurer, who shall be commissioned by the county court of his county, and who shall enter upon the discharge of the duties of his office, on the first day of January next succeeding his election, and shall hold his office for the term of four years, and until his successor is elected and qualified, unless sooner removed from office. Provided, that no person shall be eligible to succeed himself as treasurer: Provided, further, that this act shall not be construed to deprive any one who is now county treasurer of the right to be re-elected in 1908.”

According to the last proviso of this statute, and according to the decision of this court in the Scott case, supra, there can be no doubt but what relator is eligible to the office of county treasurer.

We are, therefore, of the opinion that the alternative writ of mandamus should be made peremptory; and it is so ordered.

All concur, except Vallicmt, J., who is absent, Lamm, J., specially as follows: The office of treasurer is not, like that of sheriff, a constitutional office, as in the Scott ease. The matter being regulated by statute and to the effect set forth by Brother Woodson, I concur on that ground.