text:
    CHARLOTTE E. MITCHELL, Appellant, v. HALLEY SPARLIN.
    Division Two,
    February 17, 1914.
    1. TERMS OF COURT: Judicial Notice. The court takes judicial notice of the number of regular terms of circuit court held in a county, and of the date they begin.
    2. BILL OF EXCEPTIONS: Untimely Filing: Act of 1911. A bill of exceptions not filed within the time prescribed by order of the court allowing the appeal, if the order was made and" the time had expired prior to the enactment of the statute of 1911, Laws 1911, p. 139, cannot be considered on appeal— for instance, if the appeal was taken at the March term, 1910, and appellant given leave to file bill of exceptions on or before the June term, 1910, and at that term no order was made or action taken in the matter, and without any extension of time the bill was filed in December, 1910. The Act of 1911 does not have a retroactive operation; and did not have the effect to revive a right already dead and extinct.
    Appeal from Newton Circuit Court. — IIon. F. G. Johnston, Judge.
    Affirmed.

      li. B. Wilcox and Thomas M. Saxton for appellant.

      A. D. Bennett for respondent.
   WALKER, P. J.

This is an appeal by the plaintiff from a judgment in ejectment rendered in the circuit court of Newton county, at its February term, 1910, in favor of defendant, for forty acres of land in said county, described as the northwest quarter of the southwest quarter of section twenty, township twenty-five, range thirty-three. The trial was had, judgment rendered, and an appeal granted at an adjourned term of the regular February term of said circuit court, held in March, 1910, the record entry of the granting of the appeal bearing date of March. 16, 1910, and being as follows: “Appeal granted to the Supreme Court and plaintiff given leave to file bill of exceptions on or before the 2d day of the next term of this court.”

Judicial notice will be taken of the fact that three regular terms of the circuit court of Newton county are required to be held in each year, namely: on the fourth Monday in February, the first Monday in June, and the second Monday in October (Sec. 4039, R. S. 1909). [Ray Co. Bank v. Hutton, 224 Mo. 42, 51; Nickey v. Leader, 235 Mo. 30, 40.] The “next term” of said court was, therefore, within the meaning of the above order, the June term, 1910, at which time no orders were made or action taken in regard to this case. At the October term the following entry appears of record: “And on the 10th day of October, 1910, it being the first judicial day of said October term of the court, the following proceedings in this cause were had, to-wit: ‘Time for filing bill of exceptions in this cause extended until December 15, 1910.’ ” And thereafter on the 13th day of December, 1910, the plaintiff filed her bill of exceptions.

The material portions of the statute (Sec. 2029, R. S. 1909) regulating the signing and filing of exceptions at the time the proceedings were had herein, required same to be written and filed at the time or during the term when taken, or within such time thereafter as the court by an order of record may allow, which time may be extended by the court or judge thereof in vacation for good cause shown, or within such time thereafter as the parties to the suit may agree upon.

Adapting the phraseology of the foregoing statute to the facts in this case, plaintiff was authorized to file her exceptions on or before the second day of the June term, 1910, of said circuit court; the filing of same thereafter, to entitle them to a review by this court, must have been based upon an order* of the trial court or judge thereof in vacation, or by agreement of the parties before the expiration of the time limited in the court’s order of March 16th. This conclusion is supported by numerous rulings of this court in reference to the time within which exceptions shall be filed under the statute as it existed prior to the enactment of 1911 (Laws 1911, p. 139), the most recent of which is found in Craig v. Railroad, 248 Mo. 270, 275. But no action was taken evidenced by a record entry, in regard to said exceptions within the time limited, nor until the October term, 1910, of said court.. The order made at this term was, therefore, a nullity or an attempt to give operative force to a right which had ceased to exist.

The enactment of the statute of 1911, supra, repealing section 2029, Revised Statutes 1909, in regard to the filing of exceptions, while affording appellants-in cases to which it is applicable, more latitude than the statute it supplants, adds nothing to plaintiff's-rights- in this case; it was not enacted until March 13, 1911, or more than eight months after plaintiff’s right to file her exceptions had ceased to exist; and although it be held that the statute is purely one of procedure, affecting no vested right, and that it may, therefore, be construed to be retroactive, under no reasonable construction can it be held to give life or potential force to the trial court’s order, which by its own terms, ceased to be operative or to have a legal existence long before the statute of 1911 was enacted. This being true, plaintiff’s right in perfecting her appeal after the time limited in said order had expired, was to have the record proper certified to this court, our review of this case being limited thereto. This question has, in a ease on all fours with the one at bar, been ably and elaborately discussed in Craig v. Railroad, supra, l. c. 277, in which Graves, J., spealdng for the court, said: “We do not believe that the statute was ever intended to apply to a case having the facts of the one before us. The record discloses that the plaintiff’s right to file a bill of exceptions had expired long before the Act of 1911 was ever contemplated. With her the right, under the law, was a dead issue. In our judgment the intent of the Act of 1911 was to protect parties having live and existing rights at the date of its- enactment.”

In a subsequent case, Ottumwa Bridge Co. v. Corrigan, 251 Mo. 667, the ruling in Craig v. Railroad, supra, in reference to the Act of 1911, was- approved, the court’s language, expressed by Brown, C., being as follows: “While the act is remedial in its nature, the construction contended for by appellants would inure chiefly, if not wholly, to the benefit of those who, either deliberately or through negligence, had surrendered the right to have a review of the matters of exception involved, and it does not seem that they have a higher equity than those who, for the same reasons, have failed to take their appeal within the time permitted by law. We still see no reason why, by construction, they should be forced under the wings of the act by permitting it to retroact upon a status already existing by enlarging the scope and effect of the appeal.”

The facts herein being parallel with those in the Craig and Ottumwa Bridge Co. eases', supra, we are limited in a review of this case to the record proper. Finding no error therein, the judgment should be affirmed, and it is so ordered.

Brown and Faris, JJconcur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM.

license: Public Domain

text:
    CHARLES OSTERMEIER v. KINGMAN-ST. LOUIS IMPLEMENT COMPANY, Appellant.
    Division Two,
    February 17, 1914.
    1. APPELLATE JURISDICTION: Constitutional Question. The question of the constitutionality of Sec. 8523, R. S. 1909, which prescribes the degree of care to be used by drivers of automobiles, having been properly raised in an action in which plaintiff was awarded damages for his injury by an automobile driven by defendant’s servant, and the point having been preserved for appeal, the Supreme Court has jurisdiction of the appeal on that ground. Having acquired such jurisdiction, it will decide the case even though it find that defendant was liable at common law and the point as to the constitutionality of the statute be therefore not decided.

      2. NEGLIGENCE: Driving Automobile in Street. Defendant’s» chauffeur backed defendant’s automobile out of the garage, across the sidewalk, and then in a curve toward the middle of the street, sounding the horn the last time as he was entering the street, and looking meanwhile in the opposite direction from that in which the car moved. Near the street car track the automobile backed into plaintiff, a street sweeper who was working in the street and facing away from the approaching car. Held, that plaintiff was not negligent in having his eyes upon his work and failing to see the car, and that the chauffeur' was guilty of negligence for backing the car in such circumstances while looking in the opposite direction.
    3. VERDICT: Not Excessive. A verdict for $3500 awarded to a street sweeper, who was seventy-eight years old and earning a dollar and a half a day when injured by the negligent running of defendant’s automobile by defendant’s servant, is not excessive, plaintiff’s head having been injured, his arm broken, and his whole side bruised, so that at the time of the trial it hurt him to lift his arm, he had pains in his head and eyes, and could not sleep well.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Affirmed.

      Sturdevant & Sturdevant for appellant.
    Not a single act of negligence was proved upon the part of the defendant in this case. The rule in this State that plaintiff must prove against the defendant the negligence alleged in its petition is imperative and admits of no exception. Yarnell v. Railroad, 113 Mo. 579; Looney v. Railroad, 200 U. S. 480. The same principle is.reiterated in later decisions of this court. Zeis v. Brewing Assn., 205 Mo. 653; Glaser v. Rothschild, 221 Mo. 204. Nor does the rule res ipsa loquitur apply in a case where a plaintiff bases his right of recovery upon specific charges of negligence set forth in his petition; nor can a plaintiff recover where he has failed to look and listen, under circumstances of this kind, and where, being.experienced and familiar with all the dangers of the situation, he fails to take the ordinary precautions for his safety. Mc-Grath v. Transit Co., 197 Mo. 97; Benedick v. Potts, 88 Md. 52; Cothron v. Packing Co., 98 Mo. App. 349; Hamilton v. Railroad, 114 Mo. App. 509; Ely v. Railroad, 77 Mo. 34; Leslie v. Railroad, 130 Mo. 136; Mc-Manamee v. Railroad, 135 Mo. 447; Bartley v. Railroad, 148 Mo. 139; Gayle v. Car & Foundry Co., 177 Mo. 450; Breeden v. Mining- Co., 103 Mo. App. 179; Davies v. Railroad, 159 Mo. 1; Wheat v. St. Louis, 179 Mo. 572; Evans v. Railroad, 178 Mo. 517; Clancy v. Railroad, 192 Mo. 615; Orcutt v. Bldg. Co., 201 Mo. 443; Kirkpatrick v. Railroad, 211 Mo. 83; Gibler v. Railroad, 148 Mo. App. 486; Anderson v. Railroad, 149 Mo. 272. Under the circumstances with all the noise made by that machine, going out at the lowest possible rate of speed, and the horn being sounded clearly three separate times, that the only legitimate inference to be drawn is that the plaintiff, careless and indifferent or absent-minded at the time, simply stepped in front of it and received the injury complained of. That his own conduct from his testimony was negligent under the circumstances and positively so, we think does not admit of doubt. Both parties had a right upon the street. Much less than ordinary diligence on the part of the plaintiff would evidently have avoided this accident. He was near the middle of the block, not at a place where persons with vehicles would naturally be expecting pedestrians'. This situation imposed upon him a higher degree of care than would have been required at a regular crossing. Henry v. Railroad, 113 Mo. 536; Wheat v. St. Louis, 179 Mo. 572; Quirk v. Elevator Co., 126 Mo. 293; Brockschmidt v. Railroad, 205 Mo. 445; Van Dyke v.,Railroad, 230 Mo. 259.

      R. P. & G. B. Williams for respondent.
    (1) The failure of defendant’s chauffeur to look in the direction in which he was operating his machine on a populous street was negligence per se. McFern v. Gardner, 121 Mo. App. 10; Rapp v. Transit Co., 190 Mo. 161; Sluder v. Transit Co., 189 Mo. 136; Risk v. Railroad, 189 Mo. 169; Sepetoski v. Transit Co., 102 Mo. App. 119. (2) Plaintiff was lawfully on the street at the time he was injured and he was not required to look and listen for approaching automobiles under penalty that failure would be contributory negligence. Felker v. Elect. Co., 216 Mo. 195; Gerhard v. Ford, 119 N. W. (Mich.) 904. (3) The verdict of the jury was not excessive; the following were cases of injuries to old men about the age and condition of plaintiff, and in all of which the verdicts' for large amounts were sustained: Fleming v. Railroad, 89 Mo. App. 140; Milledge' v. Kansas City, 100 Mo. App. 490; Wills v. Railroad, 44 Mo. App. 51. (4) It is well settled that where the conditions reasonably justify the distinguishing of a class, and the law affects equally all who come within that class, such law is not within the constitutional inhibition against class legislation, and this has been the construction of the Automobile Act. State v. Swagerty, 203 Mo. 517; State v. Loomis, 115 Mo. 307; State ex rel. v. Miller, 100 Mo. 439; State v. Granneman, 132 Mo. 326; State v. Washburn, 167 Mo. 680; Ex parte Loving, 178 Mo. 194; Christy v. Elliott, 216 111. 40. (5) Ordinary care is such care as is ordinarily used by prudent persons under similar circumstances. Frick v. Railroad, 75 Mo. 595 ; Hartman v. Muehlebach, 64 Mo. App. 579.
   ROY, C.

Plaintiff recovered a judgment for $3500 for personal injuries. Defendant has appealed.

On October 13,1909, and for two years prior thereto, the plaintiff was a street sweeper or scraper, working back and forth on Ninth street for several blocks in front of defendant’s garage, which was at 2117, on the west side of Ninth street. He was about seventy-eight years of age and was getting a dollar and a half per day. The petition contained the following:

‘ ‘ That on said date, defendant was the owner of a certain automobile, which at the time was in the possession of a servant and employee of defendant, who was then and there driving the same.
“That while plaintiff was so engaged in the discharge of his duty the said automobile so in charge and possession of the servant and employee of the defendant, was backed out of a building across the sidewalk, down on Ninth street and was negligently and carelessly run against and over plaintiff,
“That said person'in charge of and running said automobile did not give plaintiff any warning of the approach thereof; did not look or endeavor to ascertain whether or not plaintiff or any other person was on the street in the rear of the automobile but without any warning ran the same against plaintiff, and with great violence and force threw plaintiff upon the ground, breaking his nose, wounding his head, side and knee, and dragging plaintiff under said automobile along and over the ground a distance of more than eighteen feet, bruising and wounding him as aforesaid, and has ever since said time prevented him from attending to his business or any other business; has caused him great pain and suffering; has put him to great expense in endeavoring to be healed of his wounds. And plaintiff states that he is permanently injured by reason of the conduct of defendant.”

And the answer the following:

“And further answering, defendant alleges that such injuries, as the plaintiff sustained at the time laid in the petition, were produced and caused solely by the plaintiff’s own negligence in failing to use ordinary care for his own safety while in the discharge of his duties as an employee of the city of St. Louis; engaged in cleaning and sweeping streets as alleged; that plaintiff negligently and carelessly failed to observe the slow approach of defendant’s automobile toward him, which by the exercise of ordinary care he could have seen, until the same drew near where he was standing; that the plaintiff negligently and carelessly failed, after hearing the whistle of the said automobile and seeing the same so approaching, to exercise any diligence in moving out of the path thereof or in any other manner protecting himself and negligently and carelessly failed to apprise the defendant of his presence upon the street in the rear of said automobile after plaintiff heard and saw said automobile and its approach toward him, or by the exercise of ordinary diligence could have heard and seen the same so approaching him.”

The circumstances of the injury were stated by plaintiff in his testimony as follows:

"Q. Were you standing when you were struck by the machine? A. I was standing — I was scraping right along, you know, to the south. I was looking to the south, you know.
"Q. On Ninth street? A. On Ninth street.
"Q. About how far were you from the car track. A. It must be about two or three feet, you know.
"Q. Which side of the track were you on? A. Well, I think I was on the west side. If I ain’t mistaken it was on the west side.
"Q. Well, now, is the car track about the center of Ninth street? A. Yes, sir.
"Q. About how far is the garage from the place where you were standing? A. What do you say?
"Q. About how far is this shed out of which the chauffeur backed his machine from the place where you were standing? A. I can’t tell just exactly. It might be about fifty or sixty feet, you know — maybe a little more. I don’t know just exactly, you know.
"Q. What direction was your face turned? A. Well, I don’t know, I was scraping, you know.
“Q. What? A. I was scraping, and then they hit me in the back and right down on my face.
“Q. Which direction were yon looking? A. Looking to the south.
“Q. Which direction was the shed from where yon were standing? A. It was a little bit kind of northwest. ’ ’

Defendant’s chauffeur testified that when he first saw the plaintiff he was lying crosswise under the rear axle and across the street car track. Plaintiff testified that his head was injured and the arm broken and his whole side blackened, and that at the time of the trial it hurt him to lift his arm and that he had pains in his head and eyes and that he could not sleep well but would shake. He said “sometimes it gets me in the head or the back of my neck and I jump, you know.”

The testimony of the chauffeur and of other witnesses for the defendant was that the chauffeur got into the car in the garage, and asked some schoolboys if the way was clear. He received an affirmative answer, blew the horn, started backing out, blew the horn on the sidewalk and again as he was entering the street, backed the car in the form of a quadrant of a circle, looking in the direction opposite to the way he was going, the top being up, and when at a point from twenty-five to thirty feet south of a line drawn from the south side of the entrance to the garage across the street, and while in the center of the street on the street car track, the car struck plaintiff. While the car was in motion there was a noise made by the exhaust.

I. This appeal comes to this court because of the fact that appellants attack the constitutionality of seetion 8523, Revised Statutes 1909, prescribtHe degree of care to be used by the drivers of automobiles. However, we have concluded that, although that question was properly raised so as to give us jurisdiction, it is not necessary to decide it. Under the common law, unaided by that statute, the plaintiff was entitled to a peremptory instruction for a verdict in his favor. That eminent jurist, Judge Scott, long before automobiles were known, in Vaughn v. Scade, 30 Mo. 600, wrote the automobile law so clearly that it is easy to follow it. He said: “He who undertakes to drive a carriage in a crowded street must exercise a diligence proportionate to the dangerous nature of that employment. He must know that there are women and children in the street, and that their necessities compel them to be there. If one is found off the crossing, he is not therefore liable to be run over. "When, by a diligence proportionate to the nature of the service in which one is employed, he can avoid injuring one who is found off the crossing, it is his bounden duty to use reasonably that diligence in order to do so.” If he must know that there are women and children in the street, he must know under the circumstances of this case that there are street sweepers in the street, and, knowing that, he must not, while looking in the opposite direction, back his automobile over such street sweeper who is engaged at his usual task with his attention on his work.

In McFern v. Gardner, 121 Mo. App. l. c. 11, it was held that it is the duty of a chauffeur to keep a vigilant watch ahead for vehicles and pedestrians.

In Schmidt v. Railroad, 149 Mo. l. c. 285, it was said: “Under some circumstances a very high degree of vigilance is demanded by the requirement of ordinary care. Where the consequence of negligence will probably be serious injury to others, and where the means of avoiding the infliction of injury upon others are completely within the party’s power, ordinary care requires almost the utmost degree of human vigilance and foresight. ’ ’ It was held in Shamp v. Lambert, 142 Mo. App. l. c. 573, that one is not bound to anticipate negligence on the part of others.

In Kathmeyer v. Mehl, 60 Atl. (N. J.), 40, it was said: ‘ ‘ The next ground upon which the verdict is attacked is that the plaintiff himself was negligent. The evidence showed that he was standing in the roadway conversing with a friend, who had stopped his wagon at the point where the accident happened, for the purpose of engaging in conversation with the plaintiff. We see nothing negligent in the plaintiff’s action. Certainly he had no reason to suppose that, merely because he was standing in the roadway, he would be run down by the recklessness of the driver of an automobile. He was lawfully there, and any person using the highway was bound to take notice of him, and to use care not to injure him, and the plaintiff had a right to assume that this would be done.”

In Anselment v. Daniell, 23 N. Y. Supp. 875, it was held that where a workman engaged in a kneeling position in paving a street turned his head to attend to his work, and, in doing so, was struck by the hub of a rapidly driven vehicle, where there was room for such vehicle to pass at a safe distance, it was negligence in the driver. The court said: “Plaintiff’s occupation imperatively demanded his attention, and the use of his eyes. The noise of approaching vehicles was unavoidably inaudible to him. His person was plainly visible to the drivers of approaching vehicles — a fact in itself sufficient to excite the caution of an ordinarily prudent person. To hold him, employed as he was, to the exercise of constant vigilance to avoid injury from the want of ordinary care on the part of the drivers of vehicles incessantly passing on a public thoroughfare, means either that he must expose himself and his fellow workmen to the risk of injury from inattentive performance of his work, or that he must abandon his work altogether. We are unable to see wherein plaintiff was at fault, and, without fault, he cannot he said to have been guilty of contributory negligence.”

In Lauson v. Fond du Lac, 141 Wis. 57, it was held that a chauffeur on a county road must take notice that animals and persons may be on the road at any time, and that such chauffeur has no right to expect a clear way as does the engineer of a locomotive or the motorman of a street car. That case was cited and approved in Scott v. O’Leary, 138 N. W. (Iowa) 512.

It is conceded by the answer that the plaintiff was a street sweeper engaged in his duty as such. That answer alleges as an element of contributory negligence that plaintiff failed to apprise the defendant of his presence upon the street in the rear of the automobile. That averment is a concession of the fact that the plaintiff was not seen by the chauffeur, and the latter testified that he backed his car while looking in the opposite direction.

We call attention to the fact that the horn was blown as the car started, again on the sidewalk and the last time just as it entered the street. That horn blown at the west curb of the street was no notice to plaintiff that a car was circling around to run over him in the middle of the street. The natural inference was that it was passing on the west side. The circular motion of the car was such that it was not moving in the direction of plaintiff until the moment of striking him. We hold that it was not negligence in the plaintiff to have his eyes on his work and to fail to see the car under the circumstances, and we hold that the chauffeur was guilty of negligence in hacking his car over him while looking in the opposite direction.

II. The point is made that the damages are excessive. The trial court and the jury had the plaintiff before them and could see his condition. It is our duty to review the discretion of the trial- court in passing on that question, but no authority is shown us for holding that the verdict is excessive under the circumstances of this case. The judgment is affirmed.

Williams, G., concurs.

PER CURIAM.

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

All the judges concur.


author: WILLIAMS, C. PER CURIAM.

text:
    ALPHONSINE WARREN, Plaintiff in Error, v. BADGER LEAD AND ZINC COMPANY.
    Division Two,
    February 17, 1914.
    WRIT OF ERROR: After Judgment on Demurrer: Motion in Arrest. Where a demurrer was sustained to plaintiffs petition and final judgment rendered against her upon her refusal to plead further, and thereafter she filed a motion in arrest, which was overruled, a writ of error must be brought within one year after the rendering of the judgment. The writ cannot be brought after that time although it be within a year after the overruling of the motion in arrest, for in such a case a motion in arrest serves no useful purpose — in fact, its use is bad practice.
    Error to Greene Circuit Court. — Hon. James T. Neville, Judge.
    Writ dismissed.

      Matthew H. Galt and Frank B. Williams for plaintiff in error.
    Defendant in error is guilty of laches. Its motion should have been filed before plaintiff in error had gone to the expense of abstract and brief. Gaar-Scott v. Nelson, 166 Mo. App. 51. Our contention is that there was no final judgment until April 13, 1909, when the motion in arrest was overruled. State ex rel. v. Ryan, 115 Mo. App. 421. The whole matter rested within the breast of the court until the motion in arrest was determined. Thomas v. Thomas, 64 Mo. 353; Riddlesbarger v. McDaniel, 38 Mo. 138; Mill Co. v. Sugg, 142 Mo. 358; McGurry v. Wall, 122 Mo. 619; State ex rel. v. Smith, 104 Mo. 419; Lane v. Kingsbury, 11 Mo. 402; Brewing Co. v. Elhardt, 139 Mo. App. 129; Bank v. Ellis, 162 Mo. App. 395; Warren v. Railroad, 122 Mo. App. 254; Walter v. Scoffield, 167 Mo. 545. During the term, the court can modify or set aside its judgments on its own motion. Rottmann v. Schmucker, 94 Mo. 139. Judge Goode in State v. Howard, 128 Mo. App. 488, defines the purpose of a motion in arrest, as follows: “The purpose of a motion in arrest is not to call attention to exceptions which became a part of the record by filing a bill of them, but to direct attention to errors and imperfections apparent in the record proper.” Citing State v. Larew, 191 Mo. 196. As the imperfections in the record proper appear on the record proper, it would avail nothing in this case to preserve in a bill of exceptions, exceptions to the court’s ruling on the motion in arrest. Defendant in error argues that the only purpose and object of a motion in arrest or for a new trial is to lay the foundation for a bill of exceptions. This is a broad statement. It has been within our experience that a new trial has been granted on motion and judgments have been arrested, modified and set aside. The trial court should have an opportunity to correct its own errors. This is fundamental and needs no citation of authorities. Defendant in error contends that it was unnecessary for plaintiff to file a motion in arrest, as she could have come up directly from or against the judgment of the court, sustaining the demurrer. Be that as it may the fact that the motion in arrest was filed prevents the judgment from becoming final until the motion in arrest is disposed of.

      E. J. White and Maim, Todd & Mann for defendant in error.
    The judgment of the circuit court having been rendered on February 17, 1909, the writ of error not having been sued out until April 2,1910, was of course more than one year after the judgment. To sustain plaintiff in error in her position that the writ of error was sued out within one year she is doubtless relying upon the fact that she filed in the circuit court a motion in arrest and that the motion in arrest was not overruled until April 13, 1909, and she is doubtless counting April 13, 1909, as the date upon which the judgment was rendered in the circuit court. In this, however, she is in error, for the reason that a motion in arrest of the judgment has no function to perform and is absolutely useless as a means of obtaining the decision of the appellate court to review the ruling of the circuit court upon a demurrer to a petition. The petition, the demurrer, the ruling of the court thereon, and the judgment are all matters of record, and it has been frequently held that a motion in arrest performs no function in preserving for ruling by the appellate court the action of the trial court on a demurrer, and under the circumstances of this case is a mere lifeless thing. Spears v. Bond,. 79 Mo. 467; Thorp v. Miller, 137 Mo. 239; Benton County v. Morgan, 163 Mo. 661; Newton v. Newton, 162 Mo. 173; McKenzie v. Donnell, 151 Mo. 448; Tarldo v. Clark, 186 Mo. 293; Houtz v. Heilman, 228 Mo. 663; Bateson v. Clark, 37 Mo. 31; Frowein v. Poage, 231 Mo. 91. But if plaintiff in error contends that in order to have the action of the circuit court upon a demurrer to a petition reviewed by the appellate court, a motion in arrest is a requisite, then in this case she is not in position to have that action reviewed for the reason that to keep life in a motion in arrest so that it can be presented to the appellate court, an exception must be saved to the overruling of the same and it must needs be preserved in a bill of exceptions signed by tbe trial judge and filed in tbe trial court. Tbis was not done in tbis case, and therefore for tbat reason tbe motion in arrest is not before tbis court. Tbe abstract of tbe record of plaintiff in error is absolutely silent on tbe filing of tbis bill of exceptions, and must in truth and in fact be so for tbe reason tbat none was ever settled, signed or filed. However, to keep a motion in arrest alive it must have found a lodgment in tbe bill of exceptions together with tbe exceptions to tbe action of tbe court in overruling tbe same. Tarkio v. Clark, 186 Mo. 293; Angel v. Portageville, 168 Mo. App. 21; Bank v. Bank, 169 Mo. 76.
   WILLIAMS, C.

Plaintiff instituted suit in tbe circuit court of Greene county, Missouri, to recover damages for tbe death of her husband, which occurred while working in defendant’s lead and zinc mines, and is alleged to have been caused by defendant’s negligence.

During tbe January, 1909, term of said circuit court and on January 16, 1909, tbe court sustained defendant’s general demurrer to plaintiff’s amended petition, and later during said term, on February 17, 1909, tbe plaintiff declining to plead further tbe court rendered final judgment for tbe defendant. On February 22, and during said January term, plaintiff filed a motion in arrest of judgment, challenging tbe correctness of tbe court’s ruling on said demurrer. Later, during said January term, to-wit, on April 13, 1909, said motion in arrest of judgment was overruled and on said day plaintiff was granted an appeal to tbis court. On April 2, 1910, plaintiff dismissed said appeal and thereafter on tbe same date sued out a writ of error. Defendant in error has filed a motion to dismiss tbe writ of error on tbe ground tbat it was not brought within one year from tbe date of tbe rendition of tbe judgment. Tbe view tbat we take of tbe matter renders it unnecessary to set out further the matters concerning the merits of the controversy below.

OPINION.

It appears from the foregoing statement that the writ of error was brought more than one year after the final judgment was entered in the case but within one year from the date of the overruling of the motion in arrest of judgment.

Section 2054, Revised Statutes 1909, declares that “writs of error upon any final judgment or decision,” etc., “are writs of right,” and provides that they “shall issue of course out of the Supreme Court and courts of appeals in vacation as well as in term, subject to the regulations prescribed by law” Section 2056, Revised Statutes 1909, provides that the writ of error ‘ ‘ shall be brought within one year after the rendering of such judgment or decision, and not thereafter,” unless certain disabilities exist which are not here involved.

The question to be here determined is, when did the one-year Statute of Limitations begin to run? If it began to run on February 17,1909, the date the judgment was entered, as contended by defendant in error, then the writ of error was brought too late. If, on the other hand, the one year limitation beg'an to run April 12, 1909, the date the motion in arrest was overruled, as claimed by plaintiff in error, then the writ of error was sued out in time.

Plaintiff in error insists that the judgment was not finally rendered for the purposes of appellate review until the motion in arrest was overruled and for leading authority therefor relies upon the case of Walter v. Scofield, 167 Mo. 537, which holds that the date of the overruling of the motion for a new trial is the date the above Statute of Limitations begins to run. Defendant in error insists that in the present case the motion in arrest performed no necessary or useful function for the purpose of a review by appeal or writ of error, and therefore should not be permitted to. affect the date of the rendition of the final judgment. Plaintiff in error, replying to this,' admits that the filing of the motion in arrest in the case at bar was not necessary in order to have this court review the trial court’s action in sustaining said demurrer but insists that so long as the motion in arrest was pending the “whole matter rested within the breast of the court,” and during said time the judgment might be “arrested, modified or set aside.” For that reason it is urged that the judgment was not final, for the purposes of appellate review', until the motion in arrest was overruled. It will he noticed from the statement of facts the motion in arrest was, in fact, overruled at the same term at which the judgment was entered. If the logic of plaintiff in this regard be correct, then, with equal security, it could be said that the judgment would not be a final judgment for the purposes of appellate review until after the end of the term at which it was rendered, for the reason that during said, term the judgment remains, so to speak, “in the breast, of the court,” and during the term can he set aside of the court’s own motion or initiative. [Rottmann v. Schmucker, 94 Mo. 139.] This line of argument leads to an absurdity, for if the judgment was not final until the term of court had ended, then an appeal from a final judgment- (which must he taken at the term the judgment is rendered) could never he taken. From this reductio ad absurdum it follows that the fact that the judgment in the trial court has not passed the period within which it might be set aside by action of the trial court is not a true or sufficient test in determining whether the judgment is finally rendered for the purposes of appellate review.

In the case of Walter v. Scofield, supra, it appears that the motion for new trial was not only a proper motion in said case but was also a necessary motion to build the case below for appellate review. If the motion in arrest of judgment, in the present case, filled a like office it should no doubt produce the same effect, e. g., affect the date of the rendition of the final judgment for the purposes of appellate review.

In determining the force and effect of the motion in arrest in the present case, it does not become necessary to discuss at length the general tendency of the offices of a motion in arrest to become obscure, and the apparent lack of necessity of such a motion, in most instances at least, for the purposes of appellate review. That subject is discussed in the case of Stid v. Railroad, 211 Mo. 411. In passing, however, it might be said that the apparent general disuse into which a motion in arrest (in civil cases at least) has fallen, has been, no doubt, greatly influenced and largely brought about by the interpretation which has been placed upon section 2083, Revised Statutes 1909 (first enacted in 1822), providing that the Supreme Court and courts of appeal “shall examine the record and award a new trial, reverse or affirm the judgment or decision of the circuit court, or give such judgment as such court ought to have given, as to them shall seem agreeable to law,” and upon section 2081, Revised Statutes 1909 (first enacted in 1808), providing in substance that no exceptions shall be reviewed in the appellate court “except such as shall have been expressly decided by such court.” [Bateson v. Clark, 37 Mo. 31.] In interpreting these two statutes, it has been held that a distinction exists between errors appearing upon the record proper and those appearing from the other proceedings at the trial, in that errors arising from the record proper are reviewed upon appeal though no exception is saved to the trial court’s ruling thereon, but that errors arising from proceedings at the trial other than that shown by record proper must be brought to the trial court’s attention by motion for new trial and exception saved to the overruling of same. And since the primary function of the motion in arrest was to raise error appearing upon the face of the record proper (McCarty v. O’Bryan, 137 Mo. 584), it becomes apparent that under such circumstances and perhaps under most circumstances the motion in arrest has become unessential for the purpose of appellate review in civil cases. This result has, no doubt, to some extent been influenced also by the provisions of section 1804, Revised Statutes 1909 (first enacted in 1849), providing that certain objections to the petition (except as to the court’s jurisdiction over the subject-matter and that the petition does not state facts sufficient to constitute a cause of action) shall be deemed to have been waived unless raised by demurrer or answer. Whether this situation also applies to the practice in criminal cases, notwithstanding section 5286, Revised Statutes 1909, need not be here discussed.

But in deciding the point here involved, our conclusion shall be controlled, solely, by the force and effect of the motion in arrest in the manner in which it is attempted to be used, under the situation developed in the present case.

It is a well-settled rule that the ruling of the trial court upon a demurrer to the petition is a matter that appears upon the face of the record proper, and no exception need be saved in the trial court to command an appellate review of the court’s action thereon. [Spears v. Bond, 79 Mo. 467; Diener v. Publishing Co., 230 Mo. 613.] It need not be raised in the trial court by motion in arrest. [Thorp v. Miller, 137 Mo. 231, l. c. 239.]

A motion in arrest is of common law origin (5 Am. & Eng. Ency. Law, 502), and its nse in civil cases in this State, there being no statutory enactment changing, enlarging or defining its scope and purpose in civil cases, is necessarily no greater than was its usé and function in the practice at common law. [R. S. 1909, sec. 8047.] Referring to the practice at common law we find that the filing of a motion in arrest of judgment was not only not necessary in order, to raise the error committed by the court in ruling on a demurrer but in fact such practice was not permissible. The trial court would not entertain a motion in arrest to review its solemn decision on the question of law involved in passing upon a demurrer. [2 Tidd’s Practice, 918.] In the early case of Freeman v. Camden, 7 Mo. 298, Scott, J., writing on this subject said: “After the court has deliberately expressed its judgment upon demurrer the same matter is never allowed to be urged in arrest of judgment.”

In the case of Spears v. Bond, 79 Mo. 467, in discussing the practice to be followed when a demurrer is sustained to the petition, it was said: “If plaintiff declined to amend but elected to stand on his petition then final judgment should have gone from which an appeal could have been taken. But there was no manner of necessity for a bill of exceptions in order to preserve the demurrer as it is a part of the record and ‘would keep’ without resort to any such preservatory processes.” (Italics ours.)

If then, the motion in arrest not only did not perform a necessary or useful function in the case at bar for the purpose of an appellate review but in fact performed no office in the trial court and the filing of the same for the purposes sought was improper and not recognized as the proper practice, it should not be said that it had the effect of delaying the date of the final judgment already entered and thereby be given the power to toll the one-year Statute of Limitations within which time the writ of error must he brought.

It follows, therefore, that the writ of error was brought more than one year after the rendition of the final judgment in the cause and the motion to dismiss the writ of error should be sustained.

It is so ordered.

Roy, G., concurs.

PER CURIAM.

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

Walker, P. J., and Brown, J., concur; Faris, J., dissents.


text:
    JOHN A. GILLIAM, Appellant, v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY.
    Division Two,
    February 17, 1914.
    ATTORNEY’S FEES: Allowance by Court: Notice to Clients. An attorney who has conducted litigation for a plaintiff and a number of intervenors, seeking to have a fund in the hands of defendant declared a trust fund, is not entitled, upon motion, to have attorney’s fees allowed to him by the trial court, out of the funds recovered, as against the intervenors, without notice to them. On the question of their liability for a fee, and the amount of it, they were entitled to their dayt in court.
    Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.
    Affirmed.

      John A. Gilliam pro se.

      Boyle & Priest, T. M. Pierce and T. E. Francis for respondents.
   ROY, C.

On April 6, 1907, James B. Johnson,, through his attorney, John A. Gilliam, brought suit as a judgment creditor of the St. Louis Transit Company to set aside a transfer of certain property from the debtor to the United Railways Company, as in fraud of creditors, and to have the property so transferred declared and held to be a trust fund for the satisfaction of the creditors. There were several millions of dollars’ worth of such property. The indebtedness to plaintiff was by reason of two judgments rendered against the Transit Company, one in favor of Ernestine Sellmann, rendered March 22, 1905, for $2750 and the other in favor of Susan Morgan, rendered November 22, 1904, both assigned to the plaintiff, Johnson, and both representing damages recovered by Sellman and Morgan respectively for personal injuries by reason of the negligence of the Transit Company.

The petition alleged that there were other such creditors holding valid claims and debts against the Transit Company amounting in the aggregate to two million dollars. The petition contained the following: “Plaintiff James B. Johnson states that he is a judgment creditor of the St. Louis Transit Company and is the owner of the judgment hereinafter set forth recovered against said company by Ernestine Sellmann, and is the owner of the judgment hereinafter set forth recovered against said company by Susan Morgan, and he brings this action against the within named defendants in behalf of himself and all other bona fide creditors of the St. Louis Transit Company who are similarly situated, who will come in and be made parties complainant and will share the costs, expenses and attorney’s fees incurred in this action.”

There is no allegation in the petition as to what, if any, agreement there was as to such attorney’s fees. Subsequently many creditors of the Transit Company filed intervening petitions. The abstract on ■file in this ease does not show the caption or signatures to those intervening petitions and does not show whether they are signed by Mr. Gilliam or by some ■other attorney. By their terms those petitions adopt the allegations in the plaintiff’s petition and pray for the same kind of relief as asked in that petition. On March 31, 1910, after the taking of evidence in the ■cause, but before any finding or decree therein, John A. Gilliam filed a motion for an allowance to him of an attorney’s fee in the cause. That motion contains the following:

“Now comes John A. Gilliam and states to the ■court that he is and has been the attorney of the plaintiff in this case from its beginning; that by his contract with the plaintiff in this case upon the judgments sued upon herein for the plaintiff he was to receive from said plaintiff substantially twenty-two per cent ■of the entire amount that might be recovered of the principal and interest on the judgments of the plaintiff, James B. Johnson, sued upon herein. That in addition to said percentage to be received from the plaintiff, there was an express stipulation between the plaintiff and the mover herein, John A. Gilliam, that said John A. Gilliam, as a part of his compensation in handling this case for plaintiff, and such intervenors as might join the plaintiff herein, was to have all fees which might be allowed by the court in the case as attorney’s fees, or as fees as between solicitor and client.”

Also the following:

“The mover submits to the court that under the facts of this case he is equitably entitled for the recovery of assets of the St. Louis Transit Company found in the hands of the defendants to a reasonable fee, based upon the amount of work that he has already done in the case, and which reasonably would be required hereafter to prosecute this case to a final conclusion, and said John A. Gilliam states that under the law, as he understands it, the most equitable way of fixing and collecting the fee for the mover herein, is to make it a charge upon the fund which has been found to be in the hands of the defendants and the mover herein asks the court to make an allowance to him and a charge upon the funds found in the hands of the defendant, United Bailways Company, of a reasonable amount for his service in securing that fund for the benefit of the creditors of the St. Louis Transit Company. In the alternative, however, if the court shall find that the mover should not be paid out of that fund, he asks that' a reasonable fee be allowed to him,, to be charged pro rata upon the amounts which the several intervening creditors not represented by him may recover as the final result of this case.
“The mover herein, said John A. Gilliam, states that in the services he has performed for James B. Johnson he has worked as well for the benefit of the intervening creditors herein as he has for that plaintiff, and if he cannot be reimbursed out of the funds recovered, said intervening creditors ought to contribute their due proportion toward the payment of the services of the mover in their behalf.”

It was overruled. Judgment went in favor of the plaintiff and intervenors against the United Bailways Company for the respective amounts due them as such creditors. There was an appeal by the United Bail-ways Company from the judgment against it, and also an appeal by Gilliam from the order disallowing his motion. Both those appeals, so far at least as they affected the United Railways Company, were decided in an opinion by Judge Lamm, reported in 247 Mo. 326, in which the judgment of the lower court against the United Bailways Company and also the order overruling the motion for the allowance of the attorney’s fee were affirmed. That opinion said nothing expressly on the question of Mr. Gilliam’s rights on his motion as against the intervenors. His appeal as against them has been docketed as a separate appeal from the one decided against him in Judge Lamm's opinion. In other words, one appeal has become two.

There is nothing in the record to show that the intervenors were ever notified of the filing of the motion for the allowance of an attorney’s fee against them. They have filed no brief herein. Appellant’s brief has on it this endorsement: “Received copy of above brief this 9th day of April, 1913, M. C. Early, attorney for certain intervenors. ’ ’

I. "We will not undertake to decide the question as to whether Mr. Gilliam’s appeal as against the intervenors has any vitality left in it after that same appeal has been passed upon as it was in the opinion referred to in the statement. We hold that the order and judgment overruling his motion for such fee must be affirmed for the reason that the intervenors had no notice of such proceeding.

It is an elementary proposition that the retaining of counsel in such a cause does not, without notice to the client, give the court jurisdiction to enter judgment against the client in favor of the attorney for a fee.

Jones v. Yore, 142 Mo. 38, was a case where a guardian ad litem appointed by the court for minor defendants in a will contest, after final judgment in favor of the defendants, was, on motion, allowed a reasonable fee for his services. The opinion in that case speaks of the fact that the motion was filed after final judgment and appears in one place to be based on that fact, yet the whole opinion considered, it is clear that the court held that a representative cannot cease to be the alter ego, and become the adversary, without notice of his change of attitude. Such being' the case, Mr. Gilliam would not have been entitled, witbmit notice to his client, Mr. Johnson, to have an allowance against Mm for a fee. His rights against the intervenors were no greater than against Johnson. On the question of their liability for a fee, and the amount of it, they were entitled to their day in court. ¥e are not censuring the attorney. He was far more vigilant and successful in the performance of his duty as counsel than in his efforts to obtain a just compensation. He ought to be paid.

Proceeding upon the theory, without so holding, that there is such an appeal here pending, we affirm the judgment.

Williams, G., concurs.

PER CURIAM.

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

All the judges concur.


author: WALKER, P. J.

text:
    THE STATE v. JACOB MAURER, BENJAMIN SURKAMP and THOMAS SHORTELL, Appellants.
    Division Two,
    February 17, 1914.
    1. STATUTES: Headings and Catchwords. The headings of chapters, articles and sections are no part of the statutes, and are not to be considered as aids to an ascertainment of their meaning. They are mere arbitrary indices or catchwords inserted for convenience of reference by clerks or revisers, who have no legislative authority, and are therefore powerless to lessen or expand the meaning of the law.
    2. INFORMATION: Sale of Oleomargarine: Interpretation or Definitive Clause not Used. An information charging that defendant “did unlawfully sell and offer for sale a substance designed to be used as a substitute for butter, to-wit, oleomargarine, under the name of and under the pretense that the same was butter,” etc., sufficiently charges an offense under Sec. 657, R. S. 1909. It was not necessary to employ in addition to the language of section 657 that of section 650. Even if it be conceded that section 650 is a definitive or interpretative clause of the seven sections which follow, the charge embraces all the constitutive elements of the offense denounced by section 657, informs the accused of the nature of the cause of action against him, enables the court to determine whether the facts stated constitute an offense upon which a proper judgment may be rendered, and a judgment will be a bar to a future prosecution for the same offense; and those things are sufficient.
    3.--: -: -: Conversion of Word “and” Into “or” in Statute. The conversion of the word “and” in a statute into the word “or” is permissible when the effect would neither aggravate the offense nor increase the punishment; and no such effect would follow the conversion of the word “and” between the words “butter” and “designed” into the word “or” in section 650, declaring that “for the purpose of sections 650 to 662 of this article, every article, substitute or compound, other than that produced from pure milk, or cream from the same, made in the semblance of butter and designed to be used as a substitute for butter made from pure milk, or cream from the same, is hereby declared to be imitation butter.” And an information charging an offense in the express words of section 657, declaring that “no person, by himself or another, shall sell or offer for sale any substance designed to be used for a substitute for butter under the name of or under the pretense that the same is butter,” is not faulty because it does not use the words “made in the semblance of butter,” found in section 650 and not found in' said section 657. The substitution of the word “or” for “and” in said section 650 effectuates the legislative intent and purpose, which was to protect the public against fraud; and besides, without such substitution, the use of the word “oleomargarine” in the information after the words “a substance designed to be used as a substitute for butter, to-wit, oleomargarine,” was, in effect, the same as the use of the words “made in the semblance of butter,” as those words are the accepted definition of oleomargarine.
    4.--: General Rule. An information which charges the offense with sufficient particularity to advise the defendant with what he is charged is sufficient, and is all that he can demand or the law requires.
    5.--: in Misdemeanor Cases. The same nicety of expression is not required in informations based upon beneficient statutes enacted to protect the public against frauds in foods as is necessary in indictments charging common law felonies; and greater latitute is exercised by courts in the construction of such statutes, a violation of which is a misdemeanor, and in sustaining indictments and informations based thereon, than in those relating to graver offenses more immediately affecting individuals than the general public.

      6. -: Sale of Oleomargarine: Omission of Name of Purchaser. An information charging a defendant with selling or offering to sell “a substance designed to be used as a substitute for butter, to-wit, oleomargarine,” need not charge the name of the purchaser. The name of the purchaser is not essential to the description of the offense, nor does the offense involve the commission of a trespass against the property or person of another.
    7.'-:--: False Pretense. An information charging the sale of a substance designed to be used as a substitute for butter need not specify the pretense under which the sales were made. It is sufficient if it charges the offense in the language of the statute.
    8.--:-: Intent. Nor is it necessary that the information charge that the defendant knew the substance sold was oleomargarine. The criminality of the offense under the statute does not depend upon the intent with which the sale is made, but upon the fact that the spurious substance is sold or offered for sale.
    9. APPELLATE PRACTICE: Quantum of Proof. Unless there is an absence of substantial evidence to sustain the verdict, the finding of the jury, who are the judges of the facts, will not be disturbed by the court on appeal.
    10.SALE OF OLEOMARGARINE: Made by Clerk or Agent. A defendant is chargeable with the sale of oleomargarine madé by his clerk in the ordinary course of business, unless made against defendant’s order, and that would constitute a matter of defense.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge.
    Affirmed.

      Zachritz & Zachritz for appellants Surkamp and Maurer.
    (1) The information charges no violation of law. In order to charge the offense under section 4835, the information should have alleged a sale, or offer of sale, of the imitation substitute for butter without packing the same in firkins, tubs or paper packages, with the true name of said imitation substitute clearly and Indelibly branded, marked or labeled tbereon. It is fundamental that an indictment or information predicated upon the provisions of a statute must charge the offense in the language of the statute, and the ah legation must be sufficient to fully inform the defendant of the.nature and character of the offense he is called upon to answer on his trial. State v. Watson, 216 Mo. 420; State v. Gibbs, 129 Mo. App. 700; State v. Haney, 130 Mo. 95-98; State v. Lentz, 184 Mo. 223. (2) The court should have sustained defendant’s demurrer at the close of the State’s case. To authorize .a conviction for a statutory crime every essential element of the offense provided for by the statute must be established by the State. State v. Dines, 206 Mo. 649; State v. Lentz, 184 Mo. 223. (3) The evidence, Including defendant’s testimony, all shows that defendant was not present on the day of the sale, had no knowledge of what transpired; that the firkins containing oleomargarine were labeled such; that he had a government license, and that he had not given consent to the sale by this clerk, but, on the contrary, that his instructions to all of his clerks, including this one, had been to sell oleomargarine for oleomargarine and butler for butter. State v. Meagher, 49 Mo. App. 571; State v. William James, 63 Mo. 570. (4) The court should have sustained a demurrer at the close of the whole case. State v. Meagher 49 Mo. App. 571; State v. James, 63 Mo. 570.

      Fauntleroy, Cullen & Say for appellant Shortell.
    (1) The information is a mere copy of a statute which does not individuate the offense, and is insufficient. State v. Miner, 233 Mo. 312; State v. Burke, 151 Mo. 142; United States v. Cruickshank, 92 U. S. •542; State v. Meysenburg, 171 Mo. 25; State v. Krueger, 134 Mo. 262; State v. Watson, 206 Mo. 420; State v. Stowe, 132 Mo. 199; State v. Fraker, 148 Mo. 143; State v. Barbee, 136 Mo. 440; State v. Pickett, 174 Mo. 668; State v. Cameron, 216 Mo. 420. (2) The information does not allege or specify what the .pretense was. It is, therefore, not sufficiently definite to inform the accused of the nature and cause of the accusation against him as required by Constitution, art. 2, sec. 22; People v. Brady, 56 N. Y. 182; State v. Martin, 226 Mo. 538; State v. Pickett, 174 Mo. 663; State v. Praker, 148 Mo. 143; State v. Levy, 119 Mo. 434; State v. Kain, 118 Mo. 5; State v. Chapel, 117 Mo. 639; State v. Fleming, 117 Mo. 377; State v. Cameron, 117 Mo. 371; State v. Benson, 110 Mo. 18; State v. Terry, 109 Mo. 601; State v. Clay, 100 Mo. 571. (3) In the information no person is named to whom the sale was made. State v. Miner, 233 Mo. 312; Robertson v. City, 38 N. J. L. 72; People v. Bums, 6 N. Y. Supp. 611; Flannagan v. Plainfield, 44 N. J. L. 119; State v. Burke, 151 Mo. 144; State v. Martin, 108 Mo. 117. (4) For aught that appears in the information, the defendant may have been in entire ignorance that the package was not butter. The information should allege that the defendant knew the article was imitation butter and pretence was false. Scienter is not alleged. Com. v. Boynton, 12 Cush. (Mass.) 500; State v. Roberts, 201 Mo. 722; State v. Bradley, 68 Mo. 140; State v. Phelon, 159 Mo. 127; State v. DeLay, 93 Mo. 98; State v. Peacock, 31 Mo. 413; People v. Behee, 51 N. W. (Mich.) 515. (5) There is no proof in the case tending to prove that the oleomargarine sold was a substitute for butter and hence the court erred in assuming, in the instruction given, that oleomargarine was a substitute for butter and erred in refusing defendant’s instruction, covering this issue, and erred in overruling defendant’s request for a verdict of acquittal. People v. Meyer, 60 N. Y. Supp. 415; People v. "VVahle, 109 N. Y. Supp. 629; People v. Schnizius, 113 N. Y. Supp. 313; Bennett v. Carr, 96 N. W. (Mich.) 26; People v. Simpson, 114 N. Y. Supp. 945; People v. Arensberg, 103 N. Y. 388, 57 Am. Rep. 741. (6) The evidence in this case was wholly insufficient to prove that the article sold was “imitation butter” or a substitute for butter. Authorities, supra; People v. Wahle, 109 N. Y. Supp. 629; People v. Hillman, 69 N. Y. Supp. 66.

      John T. Barker, Attorney-General, and Paul P. Prosser for the State.
    (1) A cardinal rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature. For the purpose of discovering the legislative intent, it is always proper, and often necessary, to consider the history of the statute, the reason of its enactment, and the prior state of the law on the subject to which the statute relates. State v. Eckhardt, 232 Mo. 54; Decker v. Diemer, 229 Mo. 324. (2) The object of section 657 is to protect the public against fraud in the sale, as butter, of any substitute therefor. People v. Freeman, 242 111. 373; State v. Adding-ton, 17 Mo. App. 225, 70 Mo. 110; State v. Bockstruck. 136 Mo. 356. (3) The object of the statute is in keeping with the general course of legislation in this State with reference to preventing fraud and deception in the manufacture and sale of oleomargarine and other substitutes for butter. Laws 1877, p. 319; Sec. 1599, R. S. 1879; Laws 1881, p. 120; Laws 1885, p. 149; Laws 1887, p. 174; Secs. 3885 and 3886, R. S. 1889. (4) Having ascertained the object of the statute, it is the duty of the court so to construe it as to further the remedy and suppress the evil. Decker v. Diemer, 229 Mo. 324; Keeney v. McYoy, 206 Mo. 65; State ex rel. v. Gmelich, 208 Mo. 159; 36 Cyc. 1110. (5) While criminal statutes must be strictly construed, yet courts are not authorized to so interpret them as to defeat the manifest intent and purpose of the Legislature. State v. Woodward, 182 Mo. 407; State v. Walker, 129 Mo. App. 374; Groff v. State, 171 Ind, 547; State v. Whitaker, 160 Mo. 68; Yall v. Snow. 201 Mo. 521; Riggs v. Railroad, 120 Mo. App. 349; Weirich v. State, 22 L. R. A. (N. S.) 1221. (6) Construction and interpretation have no place or office where the language of a statute is unambiguous and its meaning evident. Clark v. Railroad, 219 Mo. 534; Henry, etc., Co. v. Evans, 97 Mo. 52; State ex rel. v, Riley, 203 Mo. 187. (7) This court will take judicial notice that the term ‘ ‘ oleomargarine ” is of equivalent import with the statutory definition of “imitation butter.” Schollenberger v. Pennsylvania, 171 U. S. 9; 29 Cyc. 1475; Black’s Law Dictionary; Standard, Century and Webster’s New International Dictionaries; Act Congress, Aug. 2, 1876, ch. 240; Laws 1877, p. 174. (8) Where the information charges the offense in words of equivalent import with the statutory words, it is sufficient. State v. Williams, 21 Mo. 496; State v. Dengolensky, 82 Mo. 44; State v. Effinger, 44 Mo. App. 83. (9) The informations sufficiently individuate the offense, are in the language of the statute creating it, and clearly apprised the defendants of the charge which they were called upon to answer. State v. Presbury, 19 Mo. 345; State v. Kennon, 21 Mo. 263; State v. Van Wye, 136 Mo. 237; State v. Bockstruck, 136 Mo. 35; State v. Dewitt, 152 Mo. 84; State v. West, 157 Mo. 316; State v. Hall, 164 Mo. 531; State v. Hendrickson, 165 Mo. 267; State v. Lee, 228 Mo. 492; State v. Hilton, 248 Mo. 530; State v. Becker, 248 Mo. 562; Rasch v. State, 89 Md. 755; United States v. Hess, 124 U. S. 483. It may not be amiss to suggest, in this connection, that the same nicety is not required in drawing informations in cases of minor offenses as is required in charging common law felonies. State v. Fletcher, 18 Mo. 427; State v. Nelson, 19 Mo. 396; State v. Hogle, 156 Mo. App. 372; State v. Rouelle, 137 Mo. App. 623.
   WALKER, P. J.

Appellants were prosecuted in the court of criminal correction, in the city of St. Louis, upon separate informations charging them with violations of section 657, Revised Statutes 1909 (originally enacted as Sec. 6, Laws 1895, p. 26), in having sold oleomargarine under the pretense that the same was butter. A,side from, formal matters and that the defendants in the Maurer and Surkamp cases made the sales by clerks, the informations are identical in alleging that the defendant “did unlawfully sell and offer for sale a substance designed to be used as a substitute for butter, to-wit, oleomargarine, under the name of and under the pretense that the same was butter,” etc.

Upon trials before juries, each of the appellants was found guilty, and Maurer was fined fifty dollars, and the others one hundred dollars each.

These cases, as Mrs. Malaprop might have said, have been “pendulating” between this court and the St. Louis Court of Appeals since judgments were rendered therein by the trial court in 1910, experiencing a difficulty not unlike that encountered by Noah’s dove on its first voyage — their ambulatory history being thus noted in the records: The constitutional validity of the statute upon which the prosecutions were based, having been questioned in the motions in arrest of judgment, the cases were appealed to this court, where it was held that the constitutional question had not been timely raised and the cases were ordered transferred to the St. Louis Court of Appeals. Upon hearings there, the judgments of the trial court were reversed in an opinion by Allen, J., in which Nortoni, J., concurred, and Reynolds, J., dissented, in a separate opinion, in which he held that the majority opinion was in conflict with a previous decision of the Supreme Court, whereupon the cases were again transferred to this court for final determination.

The facts and the assignments of error being practically the same in these cases, we will, for convenience, consider them together; where different, we will review them separately.

Appellants contend that the informations charge no offense; that the testimony was insufficient to sustain the prosecutions; that the trial court erred in the exclusion of testimony, and that certain remarks of counsel for the State constituted reversible error.

I. The headings of chapters, articles or sections are not to be considered in construing our statutes; these indicia are mere arbitrary designations inserted for convenience of reference by clerks or revisers, who have no legislative authority, and are, therefore. powerless to lessen or expand the letter or meaning of the law. [Ferguson v. Gentry, 206 Mo. 189, 195; State v. Doerring, 194 Mo. 398, 414; Logan v. Fidelity Co., 146 Mo. 114, 122; Huff v. Alsup, 64 Mo. 51.] This observation is made preliminary to a review of the statutes upon which the informations are based, on account of references in the majority opinion of the Court of Appeals to these headings as aids to construction.

II. A review of sections 1 and 6 of the original act of 1895 (Laws 1895, p. 26), which have been carriéd forward in the same words in the reUsion of. 1909, as sections 650 and 657, is necessary in determining the sufficiency of the informations in these cases.

These sections are as follows:

“Sec. 650. Imitation butter defined. — For the purpose of sections 650 to 662 of this article, every article, substitute or compound, other than that produced from pure milk, or cream from the same, made in the semblance of butter and designed to be used as a substitute for butter made from pure milk, or cream from the same, is hereby declared to be imitation butter.”
“Sec. 657. Offering imitation butter for sale.— No person, by himself or another, shall sell or offer for sale any substance designed to be used for a substitute for butter under the name of or under the pretense that the same is butter.”

The contention of the appellants is that the informations are invalid in failing to charge the offense in the language of section 650, in addition to that of section 657, upon which the informations are drawn. These sections are each complete in themselves, and. while appellants do not so expressly state, the implication necessarily follows from their contention that section 650 is to be regarded as a definitive or an interpretation clause of section 657, and, if so, it is necessary in charging an offense under said section to employ in addition to its own language, that of section 650, on the ground that the latter embraces a part of the constituent elements of the offense.

The rule is not questioned that an information or indictment based upon a statute defining an offense unknown to the common law is sufficient if drawn in the express language of the statute, if it contains all the constituent elements of the offense; if not, these elements must be added. [State v. Harroun, 199 Mo. 519.] The reason for thé charging of all the elements constituting an offense is, first, that the accused may be fully informed of the charge made against him; second, that the court may be enabled to determine whether the facts stated constitute an offense upon which a proper judgment may be rendered; and, third, that the judgment may be a bar to a future prosecution for the same offense. [Arch. Cr. Pl. 42, 43; Comm. v. Pray, 13 Pick. (Mass.) 359, 363; Clark’s Cr. Pr. 150.] No such difficulty can arise in the cases at bar; the informations charge the offense in the express lan-' guage of the statute, which is clear and unequivocal, and add that the substance designed to be used as a substitute for butter was “oleomargarine.” If it be admitted, therefore, that section 650 is an interpretation clause of section 657, no necessity existed under the rules of criminal pleading for the insertion of any of the words of the former section in an information based on the latter, and such insertion would have been, as we will presently show in discussing the meaning of the word oleomargarine, redundant and expletory. However, without violating any of the canons of construction, or defeating the purpose of the statute, or, in any way, aggravating the offense, section 650 may be construed to be an interpretation clause, not only of section 657, but of the other sections (Secs. 651-657) defining offenses in the original act, provided the wording of said section (650) be interpreted as was the evident intention of the Legislature when it was enacted. This may be accomplished by inserting the word “or” instead of the word “and” between the words “butter” and “designed,” so that the portion of said section (650) under discussion shall read “made in the semblance of butter or designed to be used as á substitute for butter,” etc. While it has been held that the word “and” cannot be read “or,” or vice versa, in criminal statutes, this ruling is subject to qualifications, and is opposed to the greater weight of authority, many cases holding that a conversion of these words, one into the other, is permissible, although it may operate to .the’ disadvantage of the accused when the spirit and reason of the law plainly require and justify it. [Potter’s Dwarris, p. 296; State v. Long, 238 Mo. l. c. 392; Rolland v. Comm., 82 Pa. St. 306, 326; U. S. v. Moore, 104 Fed. 78; Swearingen v. U. S., 161 U. S. 446, 450.] The limitation on this rule is that the conversion should not be made when the effect would be to aggravate the offense or increase the punishment. [State v. Walters, 97 N. C. 489, 2 Am. St. 310.] The application of the rule to the cases at bar cannot by any reasonable interpretation be said to have this effect. That it was the intent and purpose of the Legislature to use the word “or” instead of “and,” as we have indicated, will become evident upon a comparison of the different sections of the statute under review. To illustrate: • Section 651 denounces the making’, selling, keeping, or offering for sale, substances “made in the semblance of butter,” while each of the other sections (652-657) define offenses in regard to marking, shipping under its true name, branding mixtures and renovated butter, having unmarked containers. in possession, and offering for sale, not “substances made in the semblance of butter,” but, as expressly stated in each of said sections, substances which “may be designed to be used as substitutes for butter.” Thus construed, section 650 may reasonably serve as an interpretation clause to all of the succeeding sections of said act, the phrase in regard to substances “made in the semblance of butter,” being applicable to section 651 alone, and that expressed in the words “designed to be made as a substitute for butter” applying to each of the other sections.

The prime purpose of the statute is to protect the public against fraud, to enable purchasers to obtain what they intend to buy, and, as an incident thereto, to discourage, by the imposition of fines, the manufacture of or dealing in the articles designated. While it is not necessary to violate the rule in regard to the strict construction of criminal statutes, in order to sustain the sufficiency of the informations in the instant cases, such a narrow construction should not be made as will, in effect, defeat the intent and purpose of the Legislature. As was well said by Fekriss, J., in State v. Lovan, 245 Mo. l. c. 532, “when an information, taken as a whole, clearly advises the defendant that he is charged with an offense as defined by the statute, and clearly sets forth the facts on which the charge is based, it is sufficient.” And in State v. Woodward, 182 Mo. l. c. 407, Gantt, J., said: “While criminal statutes are to he strictly construed in favor of the defendant, the courts are not authorized to so interpret them as to defeat the obvious purpose of the Legislature or so to narrow the words of the statute as to exclude cases which those words in their ordinary acceptation would include. ” Toso narrowly construe the statute as to require an indictment or information bottomed on section 657 to contain, in addition to the words of the section, the words “made in the semblance of butter” would have no other effect than to defeat the purpose of the law, because any substances designed to be used as substitutes for butter, the manufacture or sale of which are intended to be prohibited, are not made in the semblance of butter. This the Legislature must have known and, therefore, the substitution of “or” for “and” but effectuates the legislative will.

However, without the substitution of “or” for “and” in section 650, an information or indictment drawn upon section 657, with the addition of the word “oleomargarine,” as it appears in these informations, will be sufficient. The addition of this word to that of the express language of the statute, is, in effect, the same as the use of the words “made in the semblance of butter,” oleomargarine being thus defined by the act of Congress in relation thereto (Act of Congress, Aug. 2, 1886, Chap. 840), and in many judicial interpretations of the words (Braun v. Coyne, 125 Fed. 331; Comm. v. Vandyke, 9 Pa. Dist. 49; Butler v. Chambers, 36 Minn. 69; 29 Cyc. 1475), as well as the meaning given it by the standard lexicographers; from all of which “the court will be presumed,” as Judge Brown has pithily said in a recent case, “to know what everybody else knows,” and judicial cognizance will, therefore, be taken of the fact that oleomargarine is a substance made in the semblance of butter; from which reasoning it follows that the informations were not only drawn in the language of the particular section defining the offense, but state all the constituent elements which it is contended should be included therein by reason of section 650.

In construing informations based upon statutes of the character of the one in question, not a little consideration should be given to the purpose of the act, which is beneficent, but also to the grade of the offense, greater latitude being exercised by the courts in the construction of statutes defining misdemeanors to prevent frauds and in sustaining informations or indictments based thereon, than those which have to do with graver offenses and more immediately affect individuals than the general public.

The terse reasoning of Reynolds, J., in State v. Rouelle, 137 Mo. App. l. c. 623, is appropriate in this connection. It is as follows: “The matter for our determination in a case of this kind, that is to say, any of this class of misdemeanors, is, to endeavor to ascertain whether the information substantially charges an offense, aimed at by the statute, with sufficient particularity to apprise the defendant of the act with which he is charged and to serve as a bar to a further prosecution of him for the same offense. We do not propose, in handling cases under these statutes . . . to indulge in unnecessary technicalities or refinements of reason. . . . The information in this case . . . charges this offense with sufficient particularity, to advise this defendant with what he is charged. ’ ’ This is all the appellants can demand, or that the law requires.

This measure of sufficiency of an information charging a misdemeanor, is affirmatively stated in State v. Hogle, 156 Mo. App. l. c. 372, in which Nixon, J., citing State v. Fletcher, 18 Mo. l. c. 427; State v. Nelson, 19 Mo. l. c. 396, and State v. Seiberling, 143 Mo. App. l. c. 321, says: ‘ ‘ The same nicety is not required in drawing indictments in cases of minor offenses as is required in charging common-law felonies.”

While this court has not, heretofore, in the discussion of informations or indictments based upon this statute, given particular consideration to the inter-' pretation of the section on which these charges are based, its deductions, as attested by the adjudicated cases having reference to kindred sections, are in accord with the conclusions reached here.

In State v. Bockstruck, 136 Mo. 335, an information was based on section 2 of the original act (now Sec. 651, R. S. 1909). The information contained all the substantial allegations of the section, but none of the express language of section 650, yet the charge was held sufficient to sustain a conviction.

The phraseology of the information in State v. Newell, 140 Mo. 282, was similar to that employed in the Bockstruck case, supra, and was based on the same section of the statute; it, however, contained none of the language of section 650, but was, nevertheless, held to properly charge the offense under the statute.

In State v. Stocker, 80 Mo. App. 354, an information was based on section 2, Laws 1895, p. 26 (now Sec. 651, R. S. 1909), which charged the offense in the language of that section, without reference to section 650, and the information was held to be sufficient.

The sufficiency of these informations is, therefore, in our opinion, established by reason, as well as authority.

IIL The name of the purchaser of the oleomargarine was not a necessary allegation in charging the offense. Where the name of a person other than the accused is not essential to the description of the offense, as it was not in these cases, or the offense does not involve the commission of a trespass against the person or property of another, thereby becoming an essential ingredient of the offense, its omission from an indictment or information is not error. [State v. Pollock, 105 Mo. App. l. c. 277.] This rule has been repeatedly announced in this State in cases charging violations of the liquor laws; and for like reasons we are of the opinion it is equally applicable in cases charging infractions of the pure food laws. In charging violations of the liquor laws and in the concrete cases, the offenses consist in the sales of the prohibited articles; the rule, therefore, authorizing the omission of the name of the purchaser from the charge may be applied with equal propriety to either class of cases, and we so hold.

The following authorities here and elsewhere support this conclusion: State v. Jaques, 68 Mo. 260; State v. Haney, 151 Mo. App. l. c. 253; State v. Merget, 129 Mo. App. 46; Commonwealth v. Lampton, 4 Bibb (Ky.), 261; State v. Cooney, 72 N. J. L. 76.

IY. There is no merit in appellants’ contention that the informations are insufficient in not specifying the pretense under which the sales were made. The instant cases embrace offenses wholly foreign to those requiring a compliance with the rules of criminal pleading applicable to charges of false pretenses; they charge violations of a statute, the purpose of which is to regulate the dealing in and selling of an article which common experience has demonstrated is a fertile source of fraud and deception, and they are sufficient in charging the offenses in the language of the statute.

Y. The criminality of the offenses charged did not depend upon the intent with which the sales were made, but the fact that they were made, hence, it was no^ necessary to allege that appellants knew the article sold was oleomargarine; the act of selling and not the operation of the mind of the seller at the time of the sale constituted the crime. Under this state of facts no averment of knowledge or intent was necessary other than is involved in a statement of the offense. [State v. Sakowski, 191 Mo. 635, 645; State v. Kentner, 178 Mo. 487, 493; State v. McCollum, 44 Mo. 343, 345; State v. Haney, 130 Mo. App. 95.]

In a Pennsylvania case it was said of a statute with regard to the sale of oleomargarine: “The prohibition is absolute and general; it could not be expressed in terms more explicit and comprehensive. The statutory definition of the offense embraces no ' word implying that the forbidden act shall be done knowingly or wilfully, and, if it did, the design and purpose of the act would be practically defeated. The intention of the Legislature is plain, that persons engaged in the traffic shall engage in it at their peril, and that they cannot set up their ignorance of the nature and qualities of the commodities they sell, as a defense.” [Commonwealth v. Weiss, 139 Pa. St. 247, 23 Am. St. 182, 11 L. R. A. 530, note. So in Indiana, Isenhour v. State, 157 Ind. 517, 87 Am. St. 228; Strong v. State, 2 Ohio N. P. 93, 3 Ohio Dec. 284; Bissman v. State, 9 Ohio Cir. Ct. Rep. 714; State v. Kelly, 54 Ohio St. 166.]

VI. Unless there is an absence of substantial evidence to sustain the verdict, the finding of the jury, who are the judges of the facts, will not ^g disturbed. While not required to do so, except to determine if there is any substantial evidence, we have examined the transcript of the testimony in these cases and find no lack of proof of appellants’ guilt. [State v. Barton, 214 Mo. 316, 321; State v. Sassaman, 214 Mo. 695, 737; State v. Chenault, 212 Mo. 132, 137.]

VII. No testimony was excluded which, if admitted, would have tended to sustain the defense made by the appellants; they were, therefore, not prejudiced in this regard and will not be heard to complain.

VIII.The instructions taken as a whole fairly-presented the law of the ease, and are subject to no objection upon which can be based a substantial ground of error.

IX. Appellants have not neglected to wield that “trenchant blade, Toledo trusty,” which from much use hath ne’er grown rusty, as one of the assignments of error deemed sufficient to effect a reversal, to-wit, the remarks of the prosecuting attorney. A review of the testimony discloses that in one instance the remarks were prompted by the argument of counsel for the defense, and in the other that they consisted of argumentative deductions based upon the evidence. Measured by the multiplied illustrations found in the reports of this form of assignment of error, we do not find these in question to have been prejudicial, and consequently not a substantial ground of error.

X. In two of the cases at bar the proof showed that the sales were made by clerks of the appellants. The language of the statute is that “no person, by himself or another, shall sell or offer for sale,” etc. The sales by the clerks, as shown by the evidence, were made in the ordinary course of business. If made against the order of the principals, this was a matter of defense. [State v. Bockstruck, 136 Mo. 335, 350.] Under statutes similar in phraseology to the one on which these informations are based, it has been held by a number of courts of last resort that when a sale is made by an agent or clerk it is sufficient if the information or indictment so charges, and proof of a sale in such a manner will constitute prima-facie evidence of guilt. [See cases cited under Sec. 601, p. 768, Thornton on Pure Pood and Drugs.]

The minority opinion of the St. Louis Court of Appeals is in full accord with the conclusions made herein and would have been adopted as the opinion of this court but for the fact that it discusses and disposes of a number of questions not assigned as grounds of error here.

From all of the foregoing, we are of the opinion that the conclusions reached in the majority opinion of the St. Louis Court of Appeals, in each of the cases under review, should be overruled, and that the judgments rendered therein by the court of criminal correction should be affirmed, and it is so ordered.

Brown and Baris, JJ., concur.