author: BOND, J.

text:
    ALEXANDER CHAPUT et al., Appellants, v. GEORGE PICKEL.
    Division One,
    May 31, 1913.
    1. LIVRE TERRIEN: Made in 1768 by St. Ange. A grant of land lying within the present limits of St. Louis, made in 1768, by St. Ange or Labuxiere, or both of them, unless confirmed by the -authority of the Spanish government, was invalid and void; and though it appear as a part of the book “Livre Terrien” in the office of the Secretary of State it will not be held to have conveyed any title to the named grantee, unless it be shown that the Spanish government confirmed the attempted and otherwise unauthorized and illegal grant. St. Ange, who had been the lieutenant of the French government in Illinois prior to the treaty of 1763, ceding the country east of'the Mississippi River to Great Britain and that west of it to Spain, after that treaty, crossed over to St. Louis, and supposing the territory west of the river still belonged to France -made grants of land as he had formerly done, but he had no authority to do so, and while the Spanish government confirmed some grants made by him, yet it has been uniformly held that none of his grants are to be considered legal unless such confirmation is shown.
    2. --: -: Copies Evidence. While it is provided by statute that copies of the contents of the land book called “Livre Terrien” in the 'office of the Secretary of State are admissible in evidence, yet the statute also expressly states that the copies are admissible “with like effect as the original;” and if an original grant found in that book, or- elsewhere, is invalid and for that reason inadmissible in evidence, because made by St. Ange and not confirmed by the Spanish government, so is the certified copy inadmissible.
    3. GOVERNMENT PATENT: To Representative: Not Shown to be in Esse. Where plaintiffs claim title through a Government patent to the “representative” of Joseph Calve, who had been dead fifty years at the time the title emanated from the Government in 1845, and they totally fail to show that his daughter, under whom they claim, was his representative and entitled to some interest in the land, or that she was alive at the time the patent issued, an essential link in their chain of title is missing, and they cannot recover in ejectment upon their independent paper title alone.

      Appeal from St. Louis City Circuit Court. — Hon. James E. Withroiv, Judge.
    Affirmed.

      Christian E. Schneider for appellants.
    (1) It was error on the part of the court to sustain the objection of the respondents to the introduction of the certified copy of the grant to Calve. Secs. 6302, 6341, R. S. 1909; 'Wright v. Thomas, 4 Mo. 575; Finn v. Public Schools, 23 Mo. 5701, 39 Mo. 59!. (2) The court below further erred in giving the peremptory instruction at the close of plaintiff’s case, for under the evidence and proofs admitted at the trial without objection appellants had made out a prima-facie case. Appellants proved by testimony of witnesses Octavia Jeroux, Sylvain Spanle, Charles Tourville and Nancy Chaput that they were heirs of one Joseph Calve. Appellants introduced without objection “American State Papers, vol. 3, p. 279, which showed that the lands in question were confirmed to Joseph Calve’s representatives. Also -map and field notes of Survey 1583, and entry of patent certificate. These were competent under what are now Secs. 6301a, 6313, 6314 and 6317, R. S. 1909. Mr. Mechin’s testimony showed the ground in question was in U. S. Survey No. 1883. It was therefore error to instruct the jury: “The court instructs the jury that upon the evidence adduced the plaintiffs are not entitled to recover.” The defendants’ answer was a general denial and what is known as the ten-year Statute of limitations. The testimony adduced did not sustain either of these grounds and the instruction given by the court .above referred to ought not have been given.

      George W. Lubhe and George W. LubTce, Jr., for respondents.
    (1) No error was committed by the trial court in excluding from the evidence the copy certified by the Secretary of State May 3, 1907, from “Livre Terrien No. 1,” purporting to have been signed by St. Ange-Labuxierre, April 30, 1768, as a concession to Joseph Calve of 2x40 arpents in the Grand Prairie on one side of the Widow Marechal and on the other by the Little River, and on condition that he establish the same within the year, (a) St. Ange and Labuxierre had no authority to make concessions previous to 17691. They bore no other character than that of private citizens “of some influence and distinction” and in signing assumed to themselves no title. And the record of any such in Livre Terrien No. 1 was not admissible in evidence. Wright v. Thomas, 4 Mo. 585. The statute which made copies “of all petitions, grants, orders and returns of surveys and other evidences of title contained in any land book called Livre Terrien,” certified by the Secretary of State, competent evidence did not also make the copy competent evidence to show the genuineness of the original or of the authority of the party whose signature appeared to the purported grant. R. S. 1909, sec. 6302. (b) No proof was offered to show that the condition of the purported grant had been performed. The wording of the condition as translated was ‘ ‘ that he establish the said land under the year, ’ ’ meaning, no doubt, that Calve was required within the year to identify and possess himself of the 2x40' arpents in the Grand Prairie between the holding of the Widow Marechal and the Little River, (c) And if as a concession granted by St. Ange and Labuxierre “as private citizens of some influence and distinction,” some consideration was given to it later by the United States authorities (as stated in Wright v. Thomas, 4 Mo. 577), when the Recorder of Land Titles made the confirmation to Joseph Calve’s “representatives,” shown by the American State papers, and ordered the survey which Surveyor Brown made in 1835 and numbered 1583, which was followed May 24,1845, by the issuance of the patent certificate to Joseph Calve’s “representatives, ’ ’ which he delivered to Mr. Schible, then this St. Ange-Labuxierre concession became merged in the patent and the surveyor’s certificate and the recorder’s patent certificate became the best evidence. (2) There was also no error committed by the trial court when the judge gave to the jury the instruction that plaintiffs were not entitled to recover upon the evidence adduced, and later refused to set aside the nonsuit and denied plaintiffs a new trial, (a) There was nothing in the pleadings or in the evidence to identify the lots 7 and 8 of city block 3737 described in plaintiffs ’ petition as being within survey 1583, the Calve tract, or that the John E. Cook subdivision, in whole or in part, formed part of that tract. This was a material fact necessary to be found by the jury to entitle plaintiffs to a verdict and without evidence to support it the instruction that plaintiffs were not entitled to recover was correctly given. The evidence must identify the property sued for. Sanford v. Herron, 161 Mo. 176; Jackson v. Hardin, 83 Mo. 186; Reichenbach v. Ellerbe, 115 Mo. 588; Hite v. Railroad, 130 Mo. 132. (b) The Louisiana Purchase vested the Calve tract in the United States and it remained there until the confirmation and survey were made in 1835 and the issuance and delivery to Mr. Schible in 1845 of the patent certificate in favor of Joseph Calve’s “representatives.” Calve was then no 'longer living. He died before 1800, and having no title at his decease, none could pass to his heirs as such. His “representatives” were the grantees of the Government ; and this term or designation being a comprehensive one, its meaning could not be limited to heirs and thus be an unequivocal designation of the descendants of Calve then living., as the parties to whom the Government was passing the title. Bnt it was incumbent on plaintiffs to show by evidence that Calve bad not done anything with his claim fox the land or allowed anything to be done in regard to it by sale or otherwise to entitle some party other than his heirs to ask of the Government a survey of it and a patent certificate for it. And without this showing plaintiffs were not entitled to recover. In ejectment plaintiff must recover if at all on the strength of his own title and not because of the weakness or want of title of the defendant who is in possession. Stephens v. Murray, 132 Mo. 168; Burnham v. Hitt, 113 Mo. 120; Creech v. Childress, 156 Mo. 313. (c) More than thirty-one years before the commencement of this suit the title to the Calve tract had emanated from the Government, but during all that time none of the plaintiffs or their ancestors under whom they claimed had been in possession of it or had paid taxes on it. All the evidence indicated that during all this time other parties were in possession of it who must have paid the taxes on it and paid the assessments for sewer and street and alley improvements made against it. This “forever barred” plaintiffs from all claim to it under the thirty-year statute, now R. S. 1909, sec. 1881. Fairbanks v. Long, 91 Mo. 628; Collins v. Pease, 116 Mo. 135; Scannell v. Soda Fountain Co., 161 Mo. 619; De Hatre v. Edmonds, 200 Mo. 216; Campbell v. Greer, 2091 Mo. 200.
    STATEMENT BY THE COURT.
    The plaintiffs brought an ejectment against defendant for the possession of lots numbered 7 and 8 of Block 3837 of the city of St. Louis, fronting 110 feet on the north line of Finney avenue by a depth northwardly of 115 feet to an alley. The ouster is made as of December 1, 1897. The answer was a general denial, coupled with a plea of the Statute-of Limitation, based on ten years’ adverse possession. Issue was taken. At the conclusion of the evidence, the trial court instructed the jury that plaintiffs were not entitled to recover. Whereupon plaintiffs took a nonsuit with leave, and within four da^s filed a motion to set the same aside. This motion was overruled, and plaintiffs appealed therefrom to this court.
    On the trial plaintiffs produced evidence tending to prove that they were the descendants and heirs .at law of one Joseph Calve. They then introduced in evidence a'concession to Calve of a piece of ground in Grand Prairie, April 30,1768, which was expressed in the following terms, as shown by a copy under a certificate of the‘Secretary of State of a part of “Livre Terxien” No. 1, page 17, pertaining to a grant of land issued to Joseph Calve as the same is recorded in Book F, p. 153,,of the records of the land titles in the office of the said Secretary of State. The concession so certified is translated into English in the following terms:
    ££Fo. 17, J. IT. Calve, on said day on the demand of Joseph Calve habitant at St. Louis we have conceded and conceded with title of property a land of two arpens in front by forty arpens in depth, situated at the grand prerie, holding on one side to the widow Marechal, and on the other to the little Eiver, with the conditions that he establish the said land under the year at day given at St. Louis the 30 April 1768.
    ‘£ St. Ange-Labuxiere. ’ ’
    To the introduction of this paper objection was made by defendant on the ground that it was incompetent and irrelevant in that the original thereof would be incompetent and irrelevant if offered in evidence for the reason that its contents failed to show that the persons signing it had any authority to utter it or any right to make a grant or concession according to' its terms. This objection was sustained, and the. paper was excluded from the evidence in the case. Plaintiffs read in evidence from a hook, marked ££ American State Papers — Public Lands, Yol. 3, p. 279. Confirmation of Village Claims, ’ ’ what purported to he a concession to Joseph Calve’s representatives 2x40 arpens, Out Lot B, Prairie St. Louis, for acts of ownership by possession and cultivation prior to 1803, with warrant or order for the survey thereof. And plaintiffs also read in evidence a certified copy from the office of the Secretary of State of what appeared to be a copy of the field: notes of the survey No. 1583, executed by Joseph C. Brown, Deputy Surveyor of the United States, September 15, 1835, of this concession of 2x40 arpens to Joseph Calve’s representatives in the Grand Prairie Common Fields of St. Louis. And plaintiffs then introduced in evidence the following patent certificate issued by Theodore Hunt, Recorder of Land Titles, to-wit:
    “Date No. Name No. Sur. Arpens Acres To whom May 24 1194 Joseph Calve’s 1583 80 67 71-100 delivered 1845 representatives .Mr. Soluble”
    T 45 N R 7 E
    Joseph Calve died before 1800 A. D. From the date of the government grant to his ‘ ‘ representatives ’ ’ until the bringing of this suit, plaintiffs gave no evidence of any acts of ownership over the land or possession thereof by themselves or any one through whom they claimed. There was evidence of possession by defendants or those under whom they claimed for more than thirty-one years.
    .The errors assigned by appellant are the ruling of the court in excluding the copy of what purported to be a concession by St. Ange-Labuxiere, above quoted, and the instruction that plaintiffs could not recover.
   OPINION.

BOND, J.

(after stating the facts as above).

I. The first contention in the brief of learned counsel for appellants is that the trial court erred in excluding from the evidence the copy of the contents of the “Livre Terrien” No. 1, page 17, purporting’ to be a concession of title to the property sued for to Joseph Calve, signed “St. Ange-Labuxiere” and dated St. Louis, April 30,1768, set out in the foregoing statement. There was no error in this ruling.

An interesting account of the adventures of St. Ange, one of the signers of this paper, is contained in a decision of this court, Administrators of Wright v. Thomas, 4 Mo. 577. In that case it appeared that the same grantors (St. Ange and Labuxiere) executed a similiar concession of the same quantity of land (2 arpens in width by 40 arpens in depth) to the widow Herbert, on the 18th of July, 1769; and the crucial question then presented was the validity of that grant. The evidence then disclosed that St. Ange, who was a French officer, left the territory east of the Mississippi river after its cession to Great Britain by his home government under the same treaty whereby France also ceded her territory west of the Mississippi river, including St. Louis, to the Spanish crown; that St. Ange did not know of the latter grant and supposed when ho retired from east of the Mississippi river and took up his residence in St. Louis, that he had again become a resident of French territory; that he was accompanied by a number of French citizens who preferred, like himself, to retire from the east side of the Mississippi after its transfer to Great Britain, and supposed, like himself that St. Louis was still a part of the French domain; that during his residence in St. Louis and prior to the promulgation of the treaty whereby that had become a part of the Spanish possessions, he was accustomed to make similar grants of land, and during the interval previous to the arrival of a Spanish governor he assumed in many respects the prerogatives of that officer, but neither had nor claimed any commission so to do; that after the establishment of the Spanish authority, A. D. 1770', some of the grants made by St. Ange and Labuxiere were confirmed under the authority of the Spanish government. The court held that until this happened such grants had no validity whatever, and ruled that the grant then before the court, not having been confirmed by the Spanish government, had no legal force whatever and carried no title but must be regarded as simply the act of a private citizen ‘ ‘ of some influence and distinction,” and made without any adequate or official authority.

It is not claimed in the case now under review, that the concession made by St. Ange and Labuxiere on the 30th of April, 1768, was ever confirmed by any authorized representative of the Spanish government, to whom the territory including it then belonged. Some confirmations were made in the year 1770, but there is no evidence that the concession in the present case was one of those confirmed by the Spanish government.

While it is provided by our statutes that copies of the contents of the land book commonly called “Livre Terrien,” from which the concession was copied and certified to by the Secretary of State, are admissible in evidence, yet the statute expressly states that this is done “with like effect as the original.” [R. S. 1909, sec. 6302.] Clearly, therefore, this copy can have no evidentiary or probative force which would not be given to the original if it had been produced on the trial of this case. And since it has been shown under the ruling before cited, that the original would not have constituted any muniment of title, the trial court did not err in excluding from evidence the copy offered by appellants.

II. Although the concession made by St. Ange and Labuxiere to plaintiffs ’ ancestors was void for want of legal authority, yet after the territory west of the Mississippi had become a part of the United States, there is contained in Yol. 3 of the American State Papers— Public Lands — a confirmation to Joseph Calve’s “representatives” of 2 x 40 . , . . . . arpens for acts of ownership and possession prior to 1803, lying in the city of St. Louis, with an order for its survey. The evidence shows that there was a subsequent survey and a Government patent was issued to 80 arpens o.r 61-71 acres delivered to a Mr. Schible for Joseph Calve’s “representatives” on the 24th of May, 1845. And this presents the question as to the effect of that patent as a vestiture of .title. When the title thus emanated from the Government, Joseph Calve had been dead fifty years. It will be observed that this grant was not made to the heirs of Joseph Calve. Hence no primaUacie case existed in favor of any person bearing that relation to him, for the terms of the patent did not purport to put any title in such.person. There was no evidence that any descendant of his was at the time in possession of the land or had made any claim thereto during the fifty years that Joseph Calve was dead. Under these circumstances all that the agents of the government could do would be to have the patent read, as it did, “to his representative.” In order to connect themselves with the title it was essential that the plaintiffs should adduce evidence tending to show that the daughter of Joseph Calve under whom they claim was at the time of the issuance of the patent his “representative” and entitled to some part or all of the land in controversy. That the agents of the Government did not know of any claim or right on her part to the land in controversy is evident from the fact that the patent was not issued to her as an heir or descendant of Joseph Calve, but was expressed so as to vest title “to his representatives.” There is not a particle of evidence in the record that she represented him one whit as to any interest in the land in dispute. The term “representatives” includes grantees, assignees,’transferees, devisees and other persons in privity with Joseph Calve. In order to connect his daughter with the above patent, it was indispensable that the parties claiming through her should have adduced some testimony to show that she was alive fifty years after the death of her father, and that during his lifetime he had neither conveyed by deed or will the property in question nor had it been taken from him by operation of law in part or in whole. Por, unless such a. showing was made, a link under the patent in question was missing. They have failed to show any connection through her with the title to any part of 'the land sued for. Their failure to adduce this evidence creates a hiatus in their chain of title which precluded any recovery in this action under the well established rule, that in ejectment suits, where the parties do not claim under a common ancestor, plaintiffs can only recover upon a. clear deraignment for a fee simple title good against the world. [Maynor v. Land & Timber Co., 236 Mo. l. c. 728; Felker v. Breece, 226 Mo. 320; Creech v. Childers, 156 Mo. l. c. 343; Burnham v. Hitt, 143 Mo. l. c. 420; Stephens v. Murray, 132 Mo. 468.]

The trial court did not err therefore in its direction to the jury in this case to bring in a verdict for the defendant.

The judgment heréin is affirmed.

All concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    CHARLES HISLOP et al., Appellants, v. CITY OF JOPLIN.
    Division One,
    May 31, 1913.
    1. EXTENDING CITY LIMITS: Sec. 5752, R. S. 1899: Constitutional Despite Invalid Proviso. Section 5752, R. S. 1899, providing that “the mayor and council of such city [of the third class], with the consent of a majority of the legal voters of such city voting at an election therefor, shall have power to extend the limits of the city over territory adjacent thereto . . . in such manner as in their judgment and discretion may redound to the benefit of the city:” is valid and constitutional despite an unconstitutional proviso, to-wit: “Provided, however, that all agricultural and pasture lands in tracts in excess of forty acres in such city shall he exempt from taxation for city purposes until said lands are laid off into lots and blocks and plats of the same filed for record.”
    2. -: Ordinance: Reasonableness: Presumptions: Burden of Proof. Since it is within the statutory power of a city council to provide by ordinance for the extension of the city limits, an ordinance for such extension is presumed to be reasonable and valid until that presumption is overthrown by evidence which clearly shows the contrary, and courts will not look closely into mere matters of judgment where there may be a reasonable difference of opinion. . The burden is upon those who seek to enjoin the operation of such an ordinance to prove facts clearly establishing its unreasonableness.
    3. -:--: -: Evidence. By the census of 1910 the city of Joplin was found to have over 32,000 inhabitants, and in the eighteen years preceding 1908 had increased in population nearly two hundred and fifty per cent. In that year the city limits were extended so as to bring into the city about 2100 acres, approximately one-third of which had been platted. The plaintiffs seek by injunction to defeat the .extension, and one of them estimated the population of the extension at about 300 families, but the evidence as to the distribution of this population is meagre. Whether that part of the original city lying adjacent to the extension is a residential, business or manufacturing district is not shown. Indeed there was little or no evidence as to whether the lands were needed for city purposes, or as to how, by whom or for what purposes they were held and whether the unplatted lands are to be brought on the market as town property when they reach a value satisfactory to the owners. Neither the value of the lands included nor the extent to which the value depended upon their adaptability for city purposes is discoverable from the record, nor does it appear that they are not needed to supply places for the abode and business of residents of the town. Held, that, in such circumstances, the extension cannot be defeated as unreasonable.
    4. -: -: Fraud of Council: Evidence. Evidence that in the six months since an extension of city limits, lights, sewers, police, etc., had not been provided in the annexed district is relevant as supporting an allegation that the extension worked a fraud, but where, as in this case, the evidence indicates that plaintiffs and others kept up a continuing agitation against the extension both before and after the election, it better accords with the presumption of right action to ascribe the delay to the public agitation than to fraud on the part of the city council.

      Appeal from Jasper Circuit Court. — Eon. E. L. Bright, Judge.
    Affirmed.

      Mooneyham & Shepherd for appellants.
    (1) Where an ordinance of a city is unreasonable, unjust or oppressive, it ,will not be enforced. Springfield v. Jacobs, 101 Mo. App. 339; 1 Beech on Public Corporations, sec. 90 ; Tugman v. Chicago, 78 111. 405; Caldwell v. Alton, 33 111. 416; Norris v. Westport, 110 Mo. 502; Graysitt v. Railroad, 116 Mo. 450; Kelly v. Meeks, 87 Mo. 396; Corrigan v. Gage, 68 Mo. 541; St. Louis v. Webber, 44 Mo. 547; Lamar v. Weidman, 57 Mo. App. 547; Hannibal v. Tele. Co., 31 Mo. App. 23; Carrollton v. Bozzette, 159 111. 284; Ottumwa-v. Zekind, 95 Iowa, 622; Cape Girardeau v. Riley, 72 Mo. 220. (2) This ordinance is unreasonable, oppressive and unjust as shown by the evidence. The complainants received nothing in return for the taxes they pay; no police protection; no fire protection; no gas or electric light service. Kelly v. Meeks, 87 Mo. 421; Corrigan v. Gage, 68 Mo. 544; St. Louis v. Webber, 44 Mo. 547; City v. Telephone Co., 21 Mo. 23; Parker v. Zeisler, 73 Mo. App. 537. (3) The property of plaintiffs does not come within any of the requirements that are laid down as necessary by the courts, before a city may extend its limits reasonably and properly. The property of plaintiffs has not been platted; it is not being held for city property until it shall reach a price commensurate with the ideas of plaintiffs, when it shall be placed on the market as city property; it is not a densely populated region; it is not the natural growth of the city beyond its limits; it is not necessary that the city should exercise police control over it, and it receives none of the benefits that city property ought to receive from the municipality. Vestal v. Little Rock, 54 Ark. 321; Copeland v. St. Joseph, 126 Mo. 417; Parker v. Ziesler, 73 Mo. App. 537. (4) Sec. 5752, R. S. 1899, is unconstitutional and void, because it contains a proviso that all agricultural and pasture lands in tracts of forty acres in such city shall be exempt from taxation for city purposes, until said land is laid off in lots and blocks and plats of same, are filed for record. This is in violation of Art. 6, Secs. 6 and 7, Constitution of Missouri. It is an attempt to exempt property for taxation in a manner not provided for by the Constitution. It follows, as a matter of course, that ordinance No. 3298, and all ordinances under which the city of Joplin attempted to extend its limits on the 14th day of August, 1908, was null' and void. Where a city extends its limits by ordinance, and the statute authorizing the ordinance is void, the ordinance will be void. Copeland v. St. Joseph, 126 Mo. 417; State ex rel. v. Wardell, 153 Mo. 319; Kansas City v. Cook, 69 Mo. 127. (5) The proviso, contained in Sec. 5752, Ann. Statutes 1906, is tied to the balance of the section by the word, “provided,” showing clearly the Legislature intended to make the preceding part dependent upon this proviso. Where the unconstitutional portion cannot be separated from that which is constitutional, the whole of the law is unconstitutional and void. Slawson v. Racine, 13 Wis. 398; Kansas City v. Cook, 69 Mo. 127; State ex rel. v. Wardell, 153 Mo. 319; Westport v. McGee, 128 Mo. 152. If any* further proof was needed of the intention of the Legislature to make the power of the city to extend its city limits dependent upon the proviso for the exemption of the forty acre tracts, it is shown by the Laws of 1909. At pages 288 and 289, the Legislature, realizing that their former act was unconstitutional because of this proviso upon which they had made the power of the city to extend its limits dependent, repealed section 5752, and enacted a new section, leaving out the offensive clause, stating that inasmuch as cities of the third class had no power under the present law to extend their limits, that an emergency was created within the meaning of the Constitution and therefore this act should take effect and be in force from and after its passage. The word, “provided,” is a conjunction, and means: on condition; with the understanding; or; if. Standard Dictionary, p. 1054. In no case that has been decided by this State, or any other State, has a statute been held good where an unconstitutional portion is connected with the constitutional by the word, “provided.” State ex rel. v. Burch, 186 Mo. 205; Burch v. Platsburg, 180 Mo. 413; Westport v. McGee 128 Mo. 152.

      Mercer Arnold for respondent.
   BLAIR, C.

Plaintiffs are resident owners of realty in a tract which the defendant city attempted in 1908 to bring within its limits by proceeding under section 5752, Revised Statutes 1899. An election was ordered . and held and the requisite majority favoring the extension, the result was by ordinance duly passed declared to be the addition to the city of the tract involved. City taxes were assessed against and levied upon property in the affected territory and the city officers were threatening and attempting to enforce their collection when this suit was begun by plaintiffs, for themselves and all others similarly interested and situated, to enjoin the city from proceeding further in that direction. The petition alleged that the extension was, on enumerated grounds, unreasonable and that section 5752, Revised Statutes 1899, was unconstitutional and void and that., consequently, the assessment and levy were void and the taxes unenforceable. It is also alleged that the effect of the extension is to work a fraud upon the rights of plaintiffs and others and, further, that resort to equity is necessary in order to prevent a multiplicity of suits.

The case was submitted on plaintiffs’ evidence and the trial court dismissed the bill and rendered judgment for defendant.

I. Section 5752, Eevised Statutes 1899, provided that “the mayor and council of such city, with the consent of a majority of the legal voters of such city voting at an election therefor, shall have power to extend the limits of the city over territory adjacent thereto ... in such manner as in their judgment and discretion may redound to the benefit of the city: Provided, however,.that all agricultural and pasture lands in tracts in excess of forty acres in such city shall be exempt from taxation for city purposes until said lands are laid off into lots and blocks and plats of the same filed for record. ’ ’

The proviso in this section conflicts with constitutional provisions and is void. Whether its invalidity destroys all that part of the section concerning limit extensions is another question.

As has previously been pointed out (State ex rel. v. Wardell, 153 Mo. 319) the Legislature in 1889 repealed the then existing and valid section (Laws 1887, p. 66, sec. 2) authorizing cities of the third class to extend their limits, and made a futile effort to replace it with section 1466, Eevised Statutes 1889, in which the proviso by which it was attempted to exempt from taxation certain agricultural and pasture lands included in such extension was held to invalidate the whole of the provision authorizing limit extensions.

In City of Westport ex rel. v. McGee, 128 Mo. 152 and Birch v. Plattsburg, 180 Mo. 413, the constitutionality of section 1580, Eevised Statutes 1889, by which section cities of the fourth class were authorized to extend their limits, was drawn in question. That section, after providing a method for the extension of limits by snch cities, contained this final sentence: “All agricultural or pastoral lands included within the corporate limits of such city shall be exempt from taxation for city purposes until they have, by recorded plats or sale, been reduced to tracts or lots of five acres or less.”

In the cases cited the quoted portion of section 1580 was held unconstitutional but the court decided its invalidity did not affect the remainder of the section.

In the first of these cases the court, in discussing the effect of the partial invalidity of section 1580, said:

“It will be observed that no condition is annexed, and no proviso added, by which its powers over any territory thus annexed is curtailed.- In this respect it differs radically and substantially from the Act of 1887. But immediately following this provision is another which exempts,' not the lands included in the extension only, but ‘all tracts of agricultural or pastoral lands included within the corporate limits of the city,’ which exceed five acres in area. Standing thus, the two provisions are distinct, one relating to extension, the other to exemption from taxation without reference to extension.” The court then pointed out that this section first contained no exempting clause, that in 1879 it was amended by adding a sentence by which it was attempted to exempt “all agricultural or pastoral lands included in such extension” that in 1889 this was amended (Sec. 1580) so as to read “All agricultural and pastoral lands within the corporate limits of the city” and in 1891 the entire invalid provision was eliminated and proceeded.
“Can it be said, in view of this history of this provision, that the Legislature would have denied these cities the power to extend their limits, unless the unconstitutional provision had been inserted in the act? Nothing short of the most positive language should lead us to such a conclusion. We do not-think this general exemption indicates an intention to deny the right of extension, but was simply an attempt of the Legislature to exempt such property generally, because we must go further than merely to hold that the power to extend the limits was dependent upon the exemption, because, as it now appears, we must hold that the Legislature would have denied the power of incorporation altogether where such tracts were included in the city limits, and this in the face of the unconstitutionally of the exemption, and the fact that all other cities were permitted to extend their limits without such a provision. Our conclusion is that the exemption is unconstitutional, and that the power of extension in this charter was not so dependent upon it that the ordinance incorporating defendant’s lands within the city should be held void.”

In discussing this same section in Birch v. Plattsburg, supra, this court after quoting the general rule that it is only “where the provisions are so interdependent that one may not operate without the other, or so related in substance and object that it is impossible to suppose that the Legislature would have passed the one without the other, the whole must fall” by reason of partial invalidity, said:

“Applying the rule to the legislation in hand (which has been set out at length to demonstrate the fact) the conclusion reached seems irresistible. The purpose of the Legislature by the section in question to confer upon cities of the fourth class the power to extend their limits, is manifest from the beginning, to the end thereof. It was conferred in the beginning, before this obnoxious exemption clause was injected into the section, and has been continued unimpaired since that clause was eliminated. [E. S. 1899, sec. 5895; Laws 1895, p. 65.] The clause itself is an independent one. The other provisions of the section are not dependent in any manner or form, on the clause, nor is it dependent upon them, but may be stricken out, leaving the remainder of the section a law complete in itself, that may be executed according to the legislative intent.”

There is this difference between the section (5752, R. S. 1899) under consideration and that dealt with in the cases mentioned, that though both purport to exempt all agricultural and pasture lands of certain area within the entire city limits and not merely those within the extension, yet in section 1580, Revised Statutes 1889, the exempting clause consisted of a separate, distinct and unconnected sentence, while in section 5752, Revised Statutes 1899, that clause is an ordinary proviso, connected with the preceding sentence by the words “provided, however.”

If the conclusion reached in the cases quoted is accepted as correct there remains only the question whether this difference renders inapplicable the rule they announce. It is established law that the mere fact the valid and invalid provisions are found in the same section is not conclusive on the question. In fact their occurrence in the same sentence would not be so. The question is “whether they are essentially and inseparably connected in substance.” [1 Lewis’ Sutherland on Statutory Construction, sec. 296.]

It is clear enough that the section contains valid provisions sufficiently complete to be capable of enforcement though the invalid proviso had been omitted, and it is also clear that there is no such essential and inseparable connection in substance between the subjects of extension of limits and the taxation, or exemption from taxation, of agricultural lands in the city at large that the two cannot be legislated upon separately. It would hardly be suggested that if the exempting clause appeared in another section it would invalidate the provisions as to extensions, and, as shown above, it has been expressly held not to do so when it appeared in a distinct sentence in the same section with such provisions. The effect of that ruling was, also, that the exemption was not the inducement for the whole, and that it was not unreasonable to presume the Legislature would have passed the valid part even though the invalid portion had been stricken out.

The right to extend their limits, without exemptions from taxation, previously had been accorded to cities of the third and other classes and is accorded them now. Provisos are usually held to refer to the immediately preceding subject-matter, but the substance of the proviso in section 5752, in so far as it affects agricultural lands within the unextended city, bears no real relation to the idea of extension at all. The preceding part of the section deals with the jurisdiction and limits of the unextended city as well as extension of the limits, and the language of the proviso is as applicable to the original as to the extended limits. Is it reasonable to say the section means that all lands, agricultural and others, in cities of the third class are to be taxed alike until the limits are extended and then designated agricultural and pasture lands, previously taxed, in the original limits as well as within the extension, are to be exempted? This is the meaning which must be given it if the proviso is limited strictly to the preceding sentence and construed as a condition upon which the Legislature granted such cities power to extend their limits. The more natural construction seems to be that the Legislature simply undertook to exempt certain lands from taxation whether the limits were extended or remained unchanged — a general exemption to be applicable at all times in cities of the third class.

Accepting this as the more reasonable construction, and keeping in mind the fact that by section 5752 the Legislature was providing for the continuation and incorporation as well as the extension of cities of the third class, it does not seem reasonable to say, iu view of what seems to have been the dominant legislative purpose in enacting the section mentioned, that the court can presume the valid portion of the section would not have been enacted had the Legislature been aware of the invalidity of the proviso or if it had been stricken out. The purpose to exempt agricultural lands within cities before their limits should be extended is as clear as the purpose to exempt like lands within extensions and the former cannot well be said to be an appropriate compensation or inducement for the grant of the power to extend the limits. How it could so operate in the legislative mind is not easily comprehensible. The legislative motive, so far as this part of the attempted exemption is concerned, was not to condition the power to extend limits, but simply to grant an exemption from taxation. That being the motive prompting the enactment of the proviso in so far as it affected the agricultural lands already included within cities of the third class, it would seem reasonable to ascribe the whole proviso to it. The language of the proviso is general. There are no special words applicable solely to exemption within extensions of limits. There being an apparent reason for the proviso which clearly explains its enactment in part and is also applicable to explain the whole, it would be exhibiting great anxiety to overthrow legislation for this court to engage in a search through the general language of the proviso for some separable motive for its enactment in so far as it affects agricultural lands within extensions, whereby to undermine the whole provision for extending city limits. Interpreted as a simple effort to exempt from taxation certain lands within third class cities the invalid proviso cannot reasonably'be said to bear such a relation to the remainder of the'section that the provision as to extension of limits must fall.

The ordinance siibmitting to the voters the question as to the proposed extension is not in the record and it will be presumed it followed the valid portion of section 5752 and contained no provision attempting to exempt any property from taxation.

2. It is argued that the extension was unreasonable and therefore invalid.

Since it was within the statutory power of the council to provide by ordinance for the extension of the city limits the particular ordinance here involved is presumed to be reasonable and valid until that presumption is overthrown by evidence which clearly shows the contrary and courts will not “look closely into mere matters- of judgment where there may be a reasonable difference of opinion.” [City of St. Louis v. Weber, 44 Mo. l. c. 550; Copeland v. St. Joseph, 126 Mo. l. c. 431; 2 Dillon on Mun. Corps., sec. 649.] The burden was upon plaintiffs to prove facts clearly establishing the unreasonableness of the ordinance assailed.

In State ex inf. v. Kansas City, 233 Mo. l. c. 213, this court approved the conclusions of law arrived at by the commissioner, Judge Kimbrough Stone, wherein, quoting from a case he pointed out had theretofore been approved by this court, he held that the rule to he applied in determining the reasonableness of an extension of city limits is:

“1. That the city limits may reasonably and properly be extended so as to take in contiguous lands (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any proper toAvn purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents; or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses. ...”

Some additional grounds are also stated. By the census of 1910 Joplin was found to have over 32,000 inhabitants and in the eighteen years preceding the extension assailed had increased in population nearly two hundred and fifty per cent. The area of the city prior to the extension of its limits in 1908 is not shown, but the extension brought into the city about 2100 acres, approximately one-third of which had been platted. One of the plaintiffs estimated the population of the extension at about 300 families. The evidence as to the manner in which this population was distributed over the extension is very meagre and it does not appear where, with reference to the old limits, the most of these families live. "Whether the district of the original city lying adja.cent to the extension is a residential, business or manufacturing' district is not shown. Whether the lands in the extension were needed for city purposes is neither disproved nor proved by the evidence. There is little or no evidence either way upon the question. There was almost no evidence as to how, by whom or for what purposes the platted and unplatted lands are held, and whether the latter are to be brought on the market as town property when they attain a value the owners think satisfactory was not shown. Neither the value of the lands included nor the extent to which that value depended upon their adaptability for city purposes is discoverable from the record, nor does it appear that they are not needed to supply places for the abode and business of residents of the town.

These questions were proper ones for consideration by the council and it will be presumed to have passed upon them in reaching its conclusion to submit the proposed extension to the voters and will be presumed to have concluded on the existing facts that for one or more of the reasons enumerated the lands within the proposed extension might lawfully he added to the city. It is presumed that the council acted reasonably. In view of these considerations the trial court could not well hold that the council acted unreasonably "until evidence of the facts and conditions were adduced which disclosed that the council attempted to include lands which it had no lawful right to include. The mere possibility of unreasonable action is not a sufficient answer to the presumptions mentioned. The burden was upon plaintiffs to show a lack of lawful reason to support the council’s action before the extension could be held invalid (St. Louis v. Theatre Co., 202 Mo. l. c. 701) and this rule is as applicable to a limit extension ordinance as to any other. [Copeland v. St. Joseph, supra.]

It is said, however, that lights, sewers, police, etc. have not been provided in the newly acquired territory and this avoids the ordinance. On the ^ . question of fraud this evidence is relevant but" in this case the evidence indicates plaintiffs and others kept up a continuing agitation against the extension, both before and after the election, and organized and raised funds to test its validity.

This suit was actually begun March 1, 1909, and in considering the evidence of delay in improving, lighting and policing the extension during the six months between the passage of the ordinance declaring the result of the election and the commencement of this suit it better accords with the presumption of right action to ascribe that delay to the public agitation against the extension and the threatened and impending suit to test its validity than to fraud on the part of the council, even if it be conceded a delay for six months might under other circumstances justify an inference of fraud. The trial court did not draw the inference of fraud and there is no good reason for holding it erred in failing to do so.

Under the applicable rules of law this court is not in position to say that the trial court erred in finding that on the credible evidence adduced there was no sufficient showing of the unreasonableness of the extension ordinance. The judgment is affirmed.

Brown, C., concurs in the result.

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

All of the judges concur.


author: BROWN, C.

text:
    CHARLES W. NOLAN v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    May 31, 1913.
    1. PLEADING: Passenger and Carrier: Appeal. An allegation that plaintiff attempted to board defendant’s street car for the purpose of becoming a passenger thereon is sufficient on appeal to bring the case within the relationship of passenger and carrier.
    2. MOTION FOR NEW TRIAL: Overruled: Proper Exception. An entry in the Bill of Exceptions that “the court overruled the defendant’s foregoing motion for a now trial and in arrest of judgment, to which action and ruling of the court in overruling said motion for a new trial and said motion in arrest of judgment the defendant at the time duly excepted,” is sufficient to show that an exception was taken to the overruling of the motion for a new trial.
    3. NEGLIGENCE: Invitation to Passenger from Street Railway: Evidence. Street railway companies have the right either to invite or permit persons to take passage upon their cars at any safe place along their lines, and having either invited or signified their permission to receive one for such transportation, he becomes entitled to all the rights of a passenger, while employing the facilities that the carrier provides, to enable him to avail himself of such invitation or permission. In this case the plaintiff, according to his testimony, stepped over the fence and upon the side of the street bounding an unimproved tract of city property, and, seeing a car approaching at a distance of a hundred feet, signaled with his hand for it to stop to which the motorman replied with a nod and a slackening of speed. Plaintiff then moved to a position beside the track and opposite an alley through which traffic entered the street. When the car reached him, running then, he says, at not more than two miles an hour, he put one foot on the step, seized a handrail with one hand, and was about the grasp another handrail with his other hand, when the car suddenly increased its speed with such a jerk that his hold was broken and he feel beneath the wheels. Held, sufficient evidence to support a verdict for plaintiff upon the theory that he had become a passenger.
    4. -: -: Bringing Car to Dead Stop. It is not necessary, in order to make one a passenger on a street car, that permission to board should be signified by bringing the car to a dead stop. This permission may be granted in any way well calculated to notify the would-be passenger of its existence, and by giving him an opportunity to enter the car with perfect safety.
    5. -:--: Instructions: Assuming Facts. The principal issue in the case was whether the motorman, as plaintiff asserts, upon a signal from him expressing his desire to take • passage on the car, indicated his consent by reducing his speed to two miles an hour, or whether, as defendant asserts, no signal was given and the car continued to run at a speed of ten or twelve miles an hour until plaintiff was injured while attempting to board it. The law applicable to that issue was explained in an instruction given for plaintiff, and the jury were also told in another of his instructions that in determining whether or not the plaintiff was guilty of negligence in getting on a moving car they should consider whether, in so doing, he used such care- as would have been used by an ordinarily prudent person under the same circumstances. The court also instructed the jury, at plaintiff’s request, that “a carrier of passengers is required to use the highest degree of care,” and its failure so to do would constitute negligence, but did not in any of the instructions define the word “passenger” or tell the jury what facts to which the evidence was applicable would constitute the plaintiff a passenger. Held, that the giving of the last mentioned instruction was, in the circumstances, error.
    Appeal from Jackson Circuit Court . — Eon. John G. Park, Judge.
    Reversed and remanded.

      John II. Lucas and Charles N. Sadler for appellant.
    (1) The court erred in submitting the case to the jury upon the pleadings filed herein. * The petition wholly fails to state a cause of action against the appellant in the following respects: (a) It wholly fails to allege sufficient facts to warrant the conclusion that the respondent became or was a passenger upon appellant’s cars, (b) It wholly fails to allege any fact evidencing that appellant intended to receive or extended any invitation on the part of respondent to become or attempt to become a passenger upon its cars, (c) It wholly fails to state facts sufficient to constitute a cause of action. R. S. 1909, sec. 1794; Rodgers v. Insurance Co., 186 Mo. 255; Schepers v. Union Depot Co., 126 Mo. 673; Schaefer v. Railroad, 128 Mo. 71; Raining v. Railroad, 157 Mo. 477; Railroad v. Liddicoat, 99 Ala. 545 ; Corum v. Railroad, 113 Mo. App. 631; Scott v. Railroad, 138 Mo. App. 204. (2) The evidence is insufficient to warrant a verdict in behalf of .respondent herein, and the court erred in refusing to sustain the demurrer offered at the close of plaintiff’s case, an'd in refusing to sustain the peremptory charge requested at the close of all the evidence in the case, for the reason that under the evidence the respondent was not entitled to recover. Devoy v. Railroad, 192 Mo. 211; Schepers v. Union Dlepot Co., 126 Mo. 673 ; Schaefer v. Railroad, 128 Mo. 71; Raining v. Railroad, 157 Mo. 477; Lehnick v. Railroad, 118 Mo. App: 611; Bartley v. Railroad, 148 Mo. 124. (3:) The court erred in giving instructions requested by the respondent. These instructions enlarge the issues, submit issues not tendered by the pleadings, assume facts not stated in the pleadings no.r warranted by evidence, having a tendency to mislead the jury, and are erroneous and unauthorized by the law governing the controversy between the respondent and appellant. (a) Instruction 1 assumes that the relationship of passenger and carrier existed and such fact is neither alleged in the petition nor shown to exist in evidence, and is controverted by the evidence and shown not to exist by the preponderance of all the evidence; is misleading, having’ a tendency to divert the mind of the jury from the real issues involved therein. Browning v. Railroad, 118 Mo. App. 458; Bank v. Wallace, 21 Mo. App. 572; Wright v. Eonda, 44 Mo. App. 642; Kirby v. Railroad, 85 Mo. App. 350; Degonia v. Railroad, 224 Mo. 589; Black v. Railroad, 217 Mo. 685; Day v. Railroad, 81 Mo. App. 471; 1 Blashfield, Instructions to Jury, secs. 29-30. (b) Instruction 2: R. S. 1909, sec. 1794. Rodgers v. Insurance Co., 186 Mo. 255; Schepers v. Union Depot Co., 126 Mo. 673; Schaefer v. Railroad, 128 Mo. 71; Raming- v. Railroad, 157 Mo. 477; Railroad v. Liddicoat, 99' Ala. 545; Corum v. Railroad, 113 Mo. App. 631; Scott v. Railroad, 138‘ Mo. App. 204; Devoy v. Railroad, 192 Mo. 211; Browning v. Railroad, 118 Mo. App. 458; Bank v. Wallace, 21 Mo. App. 572; Wright v. Fonda, 44 Mo. App. 642 ;Kirby v. Railroad, 85 Mo. App. 350; Degonia. v. Railroad, 224 Mo. 589; Black v. Railroad, 217 Mo. 685; Day v. Railroad, 81 Mo. App. 471; 1 Blashfield, Instructions to Jury, secs.-29-30; Nugent v. Milling Co., 131 Mo. 241. (c) Instruction 3: Moore v. Railroad, 126 Mo. 275; Hansberger v. Electric L. & P. Co., 82 Mo. App. 5791 2. (d) Instruction 9: Stid v. Railroad, 236 Mo. 382.

      Boyle, Guthrie, Hoiuell & Smith and Joseph S. Broolis for respondent.
    (1) A motion for new trial and a motion in arrest of judgment are distinct matters of procedure, requiring separate adjudications and separate exceptions thereto. McKee v. Jones, etc., Co., 152 Mo. App. 241. (2) The |)etition sufficiently alleged the relation of passenger and carrier, but if it had not, there was no demurrer or objection to the introduction of testimony, and it was good after verdict. O’Mara v. Transit Co., 102 Mo. App. 202, 208; Spencer v. Transit Co., Ill Mo. App. 665; Milliken v. Commission Co., 202 Mo. 637; Cobb v. Railroad, 149 Mo. 143; Thomasson v. Insurance Co., 217 Mo. 497; Moellman'v. Lumber Co., 134 Mo. App. 4891; Doherty v. Kansas City, 105 Mo. App. 173; Hurst v. Ash Grove, 96 Mo. 168; Hilz v. Railroad, 101 Mo. 36; Stewart v. Outhwaite, 141 Mo. 562; Heff erman v. Ragsdale, 199 Mo. 375; Moore v. Board of Regents, 215 Mo. 726; McCarthy v. Railroad, 105 Mo. App. 596; Padgitt v. Railroad, 159 Mo. 152; Holt v. Railroad, 87 Mo. App. 211; Powell v. Railroad, 229 Mo. 267; Iiolt v. Railroad, 174 Mo. 529; Booth on Street Railway Law, sec. 326; O’Brien v. Transit Co., 212 Mo. 67; Lange v. Railroad, 208 Mo. 475; Cowen v. Railroad, 113 Mo. App. 631; Scott v. Railroad, 138 Mo.'App. 203; Devoy v. Transit Co., 192 Mo. 197; Sharp v. Railroad, 213 Mo. 527'; Bragg v. Railroad, 192 Mo. 357; Niellor v. Railroad, 102 Mo. 470. (3) Under the evidence plaintiff was entitled to recover — the demurrer to the evidence was properly overruled, (a) It is not negligence; per se to attempt to board a moving car unless it is so obviously dangerous, that no prudent man would assume it; and especially is this the case where the conduct of the motorman is such as to invite plaintiff to board it, or lead him to believe he was so invited, (b) Contracts of' carriage between passenger and carrier are made every minute of the day by signal and responsive movements of the carrier’s servants and are as complete and binding as if made in writing, (c) "Where a signal is given or the attitude is such as to indicate a wish to board a car, and either is seen and recognized by the motorman and in apparent response he turns off the power, indicating that the car will be stopped, the contract of the carrier and passenger is complete, (d) It is not necessary that there should be an express contract to constitute the relation of carrier and passenger, nor that there should be a consummated contract. It may be implied from slight circumstances. The existence of thei relation depends largely upon the intention of the party at the time he enters, or while attempting to enter, (e) Where a person intends to take passage on a street car, and has hailed it for that purpose, and it has slowed down as it approached, apparently for the purpose of receiving him, he is to be regarded as a passenger while prudently attempting to enter upon the car. Spencer v. Transit Co., Ill Mo. App. 653; Scott v. Railroad, 138 Mo. App. 203; Devoy v. Railroad, 192 Mo. 197; Clark’s Street Rys. (2 Ed.), sec. 3; Barth v. Railroad, 142 Mo. 535; Booth on Street Ry. Law, sec. 326; 2 White on Personal Injuries, sec. 784; Murphy v. Railroad 43 Mo. App. 342; Leslie v. Railroad, 88 Mo. 50; Buesching v. Gaslight Co., 73 Mo., 219; Donahue v. Railroad, 91 Mo. 357; Powers v. Transit Co., 202 Mo. 267. (4) Instruction numbered 1, given for plaintiff, follows the established precedents; the giving of a special instruction defining the degree of care required has always been the practice in Missouri. This instruction does not fall within the rule applied by appellant to “instructions of a general character.” Orcutt v. Century Bldg. Co., 201 Mo. 424; Tillman v. Transit Co. 102 Mo. App. 557; Gilroy v. Transit Co., 117 Mo. App. 663.
   BROWN, C.

This is a suit for personal injury ah leged to have been suffered by plaintiff through the negligence of the motorman in operating an electric street car on defendant’s street railway in Kansas City. That part of the petition which relates to the issue in this appeal is as follows:

“That on or about the 9th day of September, 1907, plaintiff attempted to board one of defendant’s westbound cars on said Thirty-first street at or near the intersection of said Thirty-first street with Cóllege avenue, for the purpose of becoming a passenger thereon. and that while he was in the act of so doing, defendant so carelessly and negligently ran, operated and managed said car as to canse plaintiff to be thrown therefrom and upon said Thirty-first street and caused him to be run over by said car and thereby caused him to be greatly injured.”

Damages were asked in the amount of thirty-five thousand dollars. The answer was a general denial, and general plea of contributory negligence.

The accident happened oh Thirty-first street, which extended east and west and was occupied by a double track street railway operated by defendant with electric power. The north track was used by the westbound traffic and the south track by eastbound traffic, after the usual manner of American railways. The street was unpaved from Indiana avenue on the east to Bellefontaine avenue on the west, say three or four blocks. For this entire distance, and extending a distance of three city blocks south from Thirty-first street the land was fenced in a single-field which was called at the trial “the pasture” and was in grass, with a few trees. The plaintiff was a landscape gardner, twenty-eight years old, something over six feet in height, weighing about two hundred and fifteen pounds, and was strong and active. He had been examining the sod in the- pasture, had purchased some of it, and wanted to return to his work at Thirty-first street and Woodland avenue, about ten blocks west.- There were no houses on the south side of Thirty-first street between Indiana and Bellefontaine and only one or two on the north side. None of the streets were paved in that vicinity. The plaintiff, who was his own sole witness as to the immediate circumstances of the accident, said he had just come up .to the wire fence along the south side of Thirty-third street opposite to a travelled .road that turned into it both ways on the north side. He pressed down the wire, stepped over the fence, and saw the car coming about a hundred feet to the east, and signaled with his ■ right hand for it to stop. The motorman “just nodded his body — just nodded.” He was then about twenty-five feet from the south track. The front vestibule ■where the motorman stood, as well as the rear one, was open, and there were no gates to keep one from getting on or off, and he could see the motorman as plain as he could see anything.; They were looking at each other. He walked over to the north rail of the south track and stood there. When he gave the signal he saw the motorman make a turn like he was turning the motor and reached over with lfis right hand. The power relaxed and gradually died out. He could tell this from the noise or buzz of the car. When the car had got to a point about twenty feet east of him “it had,” in the words of the witness, “slowed down quite a bit; it was not running, I would not say, over a couple of miles an hour. A man could easily get on it if it would keep on slowing.” Continuing the substance of plaintiff’s statement in the first person as it is condensed in the appellant’s brief he said:

“When I reached the north rail of the south track I gave him another signal of the same kind, just in a way to be sure of it. The car came on, and when I gave this signal I stepped across from that rail over to where I could get on the car. The car was running at the same rate of speed. I stepped over there to wMt until where I could get on, and then I would step on; I got hold with both hands and stepped on. I should say the car was running' something like two miles an hour. I stepped my right foot on the step and reached up and caught hold with this hand: I didn’t get a very good hold, but when the car went on, the car just jumped; caught hold of the car with the right hand on the handle of the body of the car; my right foot was on the step.
“My left hand just had caught hold of the other handle, the handhold on the side of the vestibule; did not get a firm hold, just got my fingers on the handle and the car started; it started with a jerk, that is what pulled this hand loose'. All those cars start with a jerk; it jerked this-hand loose and I went with my back right around with the" car and I fell under it. ’ ’

The appellant introduced much testimony to the effect that at the time plaintiff undertook to board the car it was running from ten to twelve miles per hour ; that he did) not signal nor communicate with the motorman in any way, but simply stood beside the track and caught it as it passed.

There was no evidence introduced by the defendant as to the character of the plaintiff’s injuries. The testimony of the surgeon who treated him from the day after the accident, when his right leg had already been amputated about midway between the ankle and the knee, up to the time of the trial six months afterwards, was to the effect that “he was generally bruised up in all parts of his body.” Among these injuries, in addition to that which made the amputation necessary, was a compound fracture of the nose which has left a scar and some disfiguration; the fifth metacarpal bone of his right hand was broken and the fourth one bruised, and was bruised about the back, shoulders and chest. He has lost the use of his right hand and forearm to a considerable extent, the muscles supplied by certain nerves seeming to be powerless. He has no use of nor sensation in the ring and little fingers of his right hand. The hand is affected by a form of paralysis. The surgeon thinks the condition is permanent.

At the close of plaintiff’s testimony, and also when all the testimony was in, the defendant asked an instruction in the nature of a demurrer to the evidence which was each time refused by the court and defendant excepted. " The court then gave the following instructions for plaintiff.

“1. A carrier of passengers is required to use the highest degree of care reasonably practicable among prudent and skillful men in that kind of business to carry its passengers safely, and its failure, if any, to use such, care would constitute negligence on the part of such carrier. A passenger is bound to use ordinary care, that is, such care as would be used by an ordinarily prudent person under the same or similar circumstances, and his failure, if any, to use such care would constitute negligence on the part of such passenger.

"2. If the jury find and believe from the evidence that on September 9', 1907, the defendant was operating the car on which plaintiff claims to have attempted to take passage, for the purpose of carrying passengers for hire, and if the jury further find and believe from the evidence that on said September 9, 1907, plaintiff, while standing at or near the intersection of Thirty-'first street and College avenue, if he was, signaled defendant’s motorman in charge of its westbound car, approaching said point, of his intention, if any, to become a passenger upon said car at said place; and if the jury further find and believe from the evidence that said motorman, in obedience to his signal, slowed down said car as it approached the place where plaintiff was standing, for the purpose of receiving him as a passenger thereon while it was so slowed down and moving slowly at such point; and if you further find and believe from the evidence that while said car was so slowed down and so moving slowly at such point, if it was, the plaintiff stepped upon the step of such car for the purpose of becoming a passenger thereon, with the knowledge and consent, if any, of the motorman in charge thereof; and that while the plaintiff was so getting upon said ear and before he had a reasonable time or opportunity to get upon said car as a passenger, defendant’s motorman in charge of said car negligently caused or suffered said car to suddenly go forward with increased speed and shock, and that thereby plaintiff was caused to be thrown and fall from said car and sustain injuries; and if the jury further find and believe from the evidence that the defendant’s motorman so in charge of said car, while plaintiff was in the act of getting on said ear, failed in the foregoing respects to exercise such high degree of care as would have been exercised by a skillful and careful motorman under the same or similar circumstances and' thereby directly caused said movement of said car and plaintiff’s injuries, if any; and if the jury further find and believe from the evidence that the plaintiff was not guilty of negligence which produced or contributed to his injury, then your verdict should be for the plaintiff.

“3. In determining whether or not the plaintiff was guilty of contributory negligence in getting on a moving car, if he was, you are instructed that if in so doing he used such care as would have been used by an ordinarily prudent person under the same or similar circumstances, then he was not guilty of such contributory negligence.

“4. Even though you may believe from the evidence that the plaintiff was guilty of negligence in getting upon a moving car, if he did, still, if you further believe from the evidence that he would have reached a position of safety on said car except for a subsequent and accelerated negligent movement thereof, if any, by the motorman in charge of such car, and that such subsequent movement, if any, was the direct cause of his injuries, if any, then plaintiff’s prior negligence, if any, in attempting to get upon said car is in itself no defense to this action, but you cannot find for plaintiff except you find the facts to be as outlined in instruction 2. ’ ’

Also an instruction relating to damages, which closed as follows: “Tour verdict cannot exceed the sum of thirty-five thousand dollars.” At the defendant’s instance, the court gave, among others unimportant to the issues here, the following instruction:

“7. The court instructs the jury that it was not the duty of the defendant’s motorman to stop his car in the middle of the block to permit a person to become a passenger. So that in this case if you find and believe ' from the evidence that the motorman operating defendant’s car was running it at full speed, and did not stop or slacken tire speed of his car to permit plaintiff to become a passenger thereon, your verdict will be for the defendant.”

And refused the following:

“A. If the jury believe and find from the evidence that plaintiff attempted to get upon defendant’s car while the same was in motion, and fell by reason of the car being in motion at the time he so attempted to get-on said car, your verdict will be for the defendant.” To all adverse rulings defendant duly excepted. The verdict was for plaintiff for twenty-five thousand dollars.

Motions for a new trial and in arrest of judgment were filed in due time, and after a remittitur of seventy-five hundred dollars, which the court required as a condition of sustaining the judgment, these motions were overruled in the following order:

“Now >on this day comes the plaintiff and remits from the amount of the verdict heretofore rendered in his favor the sum of seven thousand five hundred dollars, leaving the balance of said verdict seventeen thousand five hundred dollars. Whereupon defendant’s motion for a new trial of this cause, also- motion in arrest of judgment, are by the court overruled, to which said rulings of the court defendant excepts. ’ ’ >

This action is preserved in the bill of exceptions as follows:

“On Monday, March 30', 1908 the same being the sixty-seventh day of the January term, 1908, the court overruled the defendant’s foregoing motion for a new trial and motion in arrest of judgment. To which action and ruling of the court in overruling said motion for a new trial and said motion in arrest of judgment the defendant at the time duly excepted.”

Judgment was thereupon entered for seventeen thousand five hundred dollars, from which this appeal is taken.

I. The appellant first insists that the petition wholly fails to state facts sufficient to constitute a cause of action. While its objections are not indicated in its brief with clearness, they are evidently intended to be included in or suggested by the statement that “to recover, the petition must count on the relation of passenger and carrier, and state sufficient facts to bring* the case within such relationship.” Tf this means that where the carrier is sued for an alleged violation of duty to a passenger, the petition must set out all the acts by which the relation was brought about, it is a mistaken conception of the law relating to pleading under our code, which requires that only “the substantive facts” shall be pleaded. These are called by this court in Bragg v. Railroad, 192 Mo. 331, 335, the ultimate as well as the substantive facts, and it is there stated to be “a horn-book principle that the pleading of mere evidential facts is bad.” The petition copied in the official report of that case illustrates the application of the rule to this It sets out the relation of passenger and carrier by the statement “that while plaintiff was on said car as a passenger” the negligence occurred,. The petition in this case states that the plaintiff was entering the car for the purpose of becoming a passenger, leaving the court as well 'as the adversary party to infer the relation which that fact implied, and that the inference was well drawn is shown by the fact that the case was tried and submitted by both parties upon the issue whether or not the motorman slackened the speed of his car to permit the plaintiff to become a passenger thereon. But the question here is not whether by the technical rules of either grammar or pleading it is stated that the plaintiff was a passenger upon defendant’s car. The code not only provides that the pleadings “shall be liberally construed, with a view to substantial justice between the parties” (R. S. 1909, see. 1831), and that the pleader shall not be required to state evidence. (Id., see. 1818), but the courts are directed “in every stage of the action” to “di-sregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party” {Id., see. 1850); and in the section last cited the appellate court is especially directed that “no judgment shall be reversed or affected by reason of such error or defect.” Justice will not allow a party to lie in wait for his adversary, take his chances on a verdict and then, if it be-against-him, profit by the strict technicality of the science of pleading, if a liberal construction will obviate the objection. [Cobb v. Railroad, 149 Mo. 135, 144; Milliken v. Commission Co., 202 Mo. 637, 654-5; Thomasson v. Insurance Co., 217 Mo. 485, 497.] In the case last cited it was said to be the well-settled rule, at common law as well as under the code, that if a material matter be not expressly averred in the. petition, but is necessarily implied by what is stated in the context, the defect is cured after verdict. Applying these rules to this petition it is amply sufficient to sustain the judgment upon the theory upon which the case was submitted by the court, to which we shall again have occasion to refer.

II. The respondent contends that no matter of exception which our practice requires to be reviewed upon motion for a new trial has come before this court because the record does not show that any exception was taken to the overruling of that motion. It is only merited tribute to say that this is even more subtile than the reasoning of defendant with reference to the sufficiency of the petition.

The entry in"the bill of exceptions on which this question has been raised is as follows: “On Monday, March 30, 1908, the same being the sixty-seventh day of the January term, 1908, the court overruled the defendant’s foregoing motion for a new trial and motion in arrest of judgment. To which action and ruling of the court in overruling said motion for a new trial and said motion in arrest of judgment the defendant at the time duly excepted ” The reasoning is, and it seems to have been suggested by the opinion of the Kansas City Court of Appeals in McKee v. Dry Goods Company, 152 Mo. App. 241, that in judicial practice there may be such a thing as one ruling on two separate and distinct propositions; that it may make a fundamental difference whether the court should say, “I overrule both these motions;” or should say, “I overrule each of these motions.” We do not understand how its choice in this respect can affect the substantial rights of either party. This view is in accordance with the decision of this court in Weber v. Cable Ry. Co., 100 Mo. 194, 205-206. The overruling of both motions necessarily involved a ruling upon each, and the exception to these rulings, in the very form in which they were made, was necessarily as broad as the language in which they were expressed and to which the exception was taken, and was therefore an exception to each.

III. In considering the question of the sufficiency of the evidence to sustain the verdict the appellant suggests that the petition avers that at the time the plaintiff attempted to board the car, he was “standing at or near the intersection of Thirty-first street and College avenue, ’ ’ whilefin fact he was a considerable distance from College avenue, which was the nearest street to the east. There was no question as to the actual place of the occurrence, and no such variance between the allegation and the fact as to call for the application of the curative provisions of section 1846, Revised Statutes, 1909.

The appellant reasons, however, that the court should have acceded to its request to peremptorily instruct in its favor because, under the pleadings and evidence, there could he no recovery unless upon the theory that, at the time of the injury, the relation of passenger and carrier existed between the parties, and that there is, in this case, no evidence of such relation; and it lays the foundation for the argument by quoting from the opinion of this court in Schepers v. Union Depot Company, 126 Mo. 665, as follows: “The relation can only be created by contract express or implied. There must always be an offer and request to be carried on one side and an acceptance on the other. . . . There must have been some act on the part of the carrier indicating an acceptance.” This rule is undoubtedly well stated, but, like all other rules it mustbo interpreted in connection with the thing to which it applies. A public carrier of passengers like the appellant is under the legal obligation, subject to necessary and reasonable rules, and up to the reasonable limit of its capacity, to carry without discrimination those who present themselves properly for that purpose. The appellant in his brief refers to the “invitation” of the carrier as an element of the contract. This “ invita - iion” consists of the exhibition of a readiness to perform its duty. The “offer” of the potential passenger is the indication to the carrier that he desires to exercise his right to ride upon the terms accorded to all. His “acceptance” by' the carrier is expressed by affording him the opportunity to do so. When he has availed himself of this acceptance by entering upon the necessary and convenient use of the facilities afforded for that purpose the relation of passenger and carrier with its mutual duties and obligations exists.

The plaintiff was his own sole witness as to the immediate circumstances under which the accident occurred, while the defendant had three witnesses whose testimony covered the same ground, the motorman and conductor operating the car, and a young man who testified that he was a passenger. Their testimony was irreconcilable with the numerical weight of three to one in favor of the defendant. We have carefully read the entire evidence and find in it nothing which removes it from the operation of the rule that the weight and credibility of the evidence is peculiarly within the province of the - jury, and that their verdict will not be disturbed on appeal if it is supported by substantial evidence. “"While appellate courts have never released their hold on testimony so that they may not say there is no proof, yet the rule is to ... . accord to the triers of fact, who see and hear, the correlative right to weigh the testimony.” [Stumpe v. Kopp, 201 Mo. 412.] The same rule was lately expressed by Judge Bbace of this court in the following language: “In answer to the suggestion that the defendant’s demurrer to the evidence ought to have been sustained, it is only necessary to say that there was evidence tending to prove that the bill was not owing, and that the argument goes to the weight of the evidence, with which we have nothing to do.” [McNulty v. Railroad, 203 Mo. 475, 479.]

A short statement of the testimony tending to prove the facts relied on by respondent to sustain the judgment will enable us to apply these principles to the subject of this paragraph.

The locality in question was outside the area of paved streets. The accident occurred on Thirty-first street, which extends westward, the direction in which the car was running, from Indiana avenue, a distance of three blocks to Bellefontaine avenue. Between these' points no street approaches it from the south but the entire distance is included in a pasture. From the north College avenue, the first street west of Indiana avenue, is opened into it. The next street to the west is not opened through the land tying immediately north of Thirty-first street, but the travel from that direction seems to have been deflected towards the west, and comes into Thirty-first street at the, point where the alley east of Bellefontaine avenue was located, which is variously described in the evidence to be at a distance of from 100 feet to 200 feet east of the last named avenue. Up to this point all the testimony seems to agree. The plaintiff testified that before the accident he was in the pasture south of Thirty-first street on business connected with the purchase of sod and desired to take a ear running west over Thirty-first street to a point beyond Bellefontaine avenue. The defendant had two tracks on Thirty-first street, the north one being used for westbound traffic. He came out of the pasture, pressed down the top wire and stepped over the wire fence which was maintained along the south side of the street at a distance of about twenty-five feet from defendant’s south track, and when inside the fence signaled with his hand the car, which was coming from the east and was then about 100 feet from him. The motorman answered his signal by bowing and slowed his car. The plaintiff then passed to the north side of the south track, signaling again to the motorman who was looking- at him. At this time the speed of the car had been reduced to about two miles per hour. The front vestibule occupied by the motorman was open on the left side of the car, from which the plaintiff approached, and as it passed the plaintiff, he put his right foot on the step, caught the handhold on the front of the car with his left hand and attempted to grasp the one at the rear of the vestibule opening with his right hand, but had not got a firm hold, when the car started up suddenly, jerking his hand loose and throwing him off the step so that he went down under the wheels. The evidence all agrees that this attempt to get on the car was opposite to the alley or road coming into Thirty-first street from the north, and was on the south side of the moving car.

It is a matter of common knowledge and arising from necessity that street railways do not ordinarily maintain terminal stations for receiving and discharging passengers, which must be done with such frequency as to accomplish the object of that class of pub-lie service. It is usually done at street intersections, but even where this is the case, the precise point depends to a great extent upon the peculiar ideas of those who operate the facility. Most of us have been annoyed by a sudden change in the policy of the railway in this respect, so that when we have stopped at the "far” side of the street from which it has formerly picked us up, we have found that it has made its stopping place on the other side, and left us to make an attempt on the next car.' Where the distance is long between the streets, there are frequently stopping places at intermediate pointg. They are sometimes marked and sometimes unmarked. But notwithstanding these perplexing uncertainties we have never doubted that these public utilities have the right either to invite or permit, persons to take passage upon their cars at any.safe place along their lines, and having either invited or signified its permission to receive one for such transportation, he becomes entitled to all the rights of a passenger, while employing the facilities that the carrier furnishes, to enable him to avail himself of such invitation or permission. Applying these principles to this case we see no reason why the plaintiff should not, at the place where this accident occurred, have signified to the defendant his desire to become a passenger on the approaching car, nor why the defendant should not, through its motorman in charge of the. movement of the ear, have acceded to that request and have given him an opportunity to enter the conveyance.

It is intimated, however, by the appellant in its argument that this permission could only be extended by bringing the car to a dead stop. This is a mistake. It may be granted in any way well calculated to notify the would-be passenger of that fact, and by giving him an opportunity to enter the car with perfect safety; and it seems absurd to say that as a matter of law it is unsafe for one enjoying all the vigor of health and manhood, which the plaintiff said he enjoyed at that time, to attempt to enter a car moving at tlie rate of two miles per hour. [Spencer v. Transit Co., 111 Mo. App. 653; Eikenberry v. Transit Co., 103 Mo. App. 442.]

The case does not rest upon the theory that the injury was caused by the fact that the car was in motion at the time the plaintiff attempted to enter it, but that it was caused by the sudden acceleration of is movement while he was in the act of entering, and necessarily in a position rendering him easily susceptible to being thrown down by such a movement. If the plaintiff’s testimony were true, and we must assume it to be true for this purpose, he became a passenger when he attempted to enter the car, and the defendant was charged with the exercise of such care as is incident to that relation. Whether or not he was guilty of contributory negligence in so doing was a question for the jury.

IV. While this court will not interfere with verdicts on the ground that they are against the weight of the evidence, yet it recognizes that under the operation of this rule extreme cases will arise. In such cases we must he satisfied that the instructions given for the party obtaining the verdict are so unexceptionable as to have fairly .and plainly presented the issues; for we will not presume that in a plain case the jury have trodden the facts under their feet when there is reasonable ground ,to believe that they have been misled by the instructions of the court. [Carroll v. Paul’s Administrator, 16 Mo. 226, 240.] Our own statute (R. S. 1909, sec. 2082) emphasizes our duty to consider the effect of the instructions upon the verdict by forbidding us to reverse the judgment, unless we shall believe not only that error was committed hut that it materially affected the merits of the action. In the light of these principles it becomes our duty to examine these instructions.

The principal issue presented in the case was squarely upon the question as to whether, as asserted by the plaintiff, the motorman, upon a signal from him-expressive of his desire to take passage upon the car, indicated the defendant’s consent by reducing his speed to about two miles per hour, or whether, as asserted by defendant, no signal was given, and the car continued at a speed of ten or twelve miles an hour until the plaintiff was. injured in his attempt to board it while running at that speed. The law applicable to that issue was properly explained in the second instruction given for the plaintiff. They were also told in plaintiff’s instruction number three that in determining whether or not the plaintiff was guilty of negligence in getting on a moving car they should consider whether, in so doing, he used such care as would have been used by an ordinarily prudent person under the same circumstances.

This refers alike to all conditions of speed which. the jury were authorized to infer from any evidence in the case.

Under these circumstances the court, in the first instruction given for plaintiff, told the jury in a general way that “a carrier of passengers is required to use the highest degree of care reasonably practicable among prudent and skillful men in that kind of business to carry its passengers safely, and its failure, if any, to use such care would constitute negligence on the part of such carrier.” There was nothing in any of the instructions given by the court which defined the word “passenger” to the jury or told them what facts to which the evidence was applicable would constitute the plaintiff a passenger. The instruction quoted simply assumed that he was somehow a passenger, and told the jury that he was entitled to the high degree of care' incident to that relation. This left the triers of the fact in the same position of uncertainty as to what constituted the relation as was the plaintiff when he charged in his petition not that he was a passenger, but that he was getting on the ear for the purpose of becoming a passenger, and when he stated in his second instruction, which was an excellent presentation of the entire issue, that he “stepped upon the step of such ear for the purpose of becoming a passenger thereon.” It seems unfair that, in the uncertain state of his own mind indicated by these expressions, he should have cast upon the jury the entire burden of determining, as a conclusion of law, the particular phases of the evidence upon which the relation of passenger and carrier might be predicated. Perhaps the solution most evident to them was that the instruction assumed that the relation existed, and that they had no other duty to perform than, assuming its existence in every aspect presented by the evidence, to. apply the rule of extraordinary care which it prescribed. Its general character made it applicable to every issue, including that submitted in the plaintiff’s third instruction, which, by its terms, applies as well to an attempt to board a ear moving at the rate of twelve miles an hour as to the attempt to enter one moving at two miles per hour.

We have thought that the vice of the first instruction might be cured by the closing words which seem to have been an afterthought in the fourth, which are as follows: “but you cannot find for plaintiff except you find the facts to be as outlined in instruction 2.” The conjunctive “but,” however, with which this modification is introduced, naturally as well as grammatically confines its effect to the connection in which it occurs.

For the reasons given we are compelled to hold that the giving of the first instruction for the plaintiff was error; and believing, as we do, that it was of such a nature as materially to affect the verdict the judgment will be reversed and the cause remanded for a new trial.

PER CURIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All the judges concur.