author: MOZLEY, C. PER CURIAM:

text:
    LA COSETTE HENDREN et al., Trustees, Appellants, v. FREDERICK W. NEEPER et al.
    Division Two,
    July 5, 1919.
    CORPORATION: Sale of Properties: Annihilation: Injunction. A corporation organized for the express purpose of buying and selling real estate will not be destroyed by a sale of a large tract of land belonging to it; and an injunction suit to enjoin the sale, brought by a minority of the directors against the majority, who in regular meeting assembled have authorized the sale, cannot be maintained on the ground that such sale will annihilate the corporation.
    Appeal from Hannibal Court of Common Pleas. — Hon. William T. Ragland, Judge.
    Affirmed. •

      F. L. Schofield for appellants.
    (1) Although the powers of the corporation as they are set out in the articles of agreement are broad enough to include the buying and selling and dealing in real estate generally, yet the incorporators, neither at the time of entering into the articles of agreement nor since, ever contemplated or purposed the exercise of these broader powers. (2) The intentions or things purposed by the corporation itself, if such intentions and purposes are to be considered apart from the wish and will of those who have constituently composed it, must be gathered from the business to which it has always confined itself. (8) Whatever the real and actual ultimate intentions and purposes, whether of the incorporators or of the corporation itself, may have been, these ultimate intentions and purposes, conceding that they have all the time existed, have always .reposed in the corporate body itself, and have never been delegated or committed to its board of directors; and until so designated and committed by antecedent action of the stockholders, the directors possess no power or authority in the premises. (4) Notwithstanding its corporate powers extended to the buying and selling and dealing in real estate generally, it has never exercised such powers. It has never bought or sold an acre of land. Its corporate purposes, corporate efforts, corporate enterprise and practically sole and only corporate business, from the time of its organization down to the time of the commencement of this suit, have been confined to its primary purpose of owning, farming and improving the single body of lands acquired by it in the very processes of its organization. For the corporation to now go forward in the exercise of its ulterior powers by selling off the entire body of these lands and, with the proceeds, engaging in the business of buying and selling and dealing in real estate generally “at any place within the United States of America,” would be a radical and complete change in its business and affairs, and it belongs to the corporate body alone, through the proper action of its members and stockholders, to determine whether or not it will make so vital a change. 2 Cook on Corp. sec. 670; Morawetz on Corp., secs. 238, 239, 240; Railway Co. v. Ulerton, 18 Wal. 233; Buford v. K. N. L. Packet Co., 3 Mo. App. 166; 7 Am. & Eng. Ency. Law, p. 734, 735; 26 Am. & Eng. Ency. Law, p. 965; Hunt v. Am. Grocery Co., 81 Fed. 532; Metcalf v. Am. School Furn. Co.. 122 Fed. 115; City of St. L. v. St. L. Gaslight Co., 70 Mo. 98; Field v. Roanoke Inv. Co., 123 Mo. 603; Gill v. Balis, 72 Mo. 424, 433; Cummings v. Parker, 250 Mo. 441. •

      Eby & Hulse and F. W. Neeper for respondents.
    (1) If the charter of a corporation expressly authorized a lease or sale of the corporate property, such a lease or sale may be made by a majority of the directors in meeting assembled, and the minority are bound thereby. It is immaterial what the terms of the lease may be, or whether advantageous or disadvantageous to the stockholders. The dissenting minority have no remedy unless fraud can be shown. 2 Cook on Stock (3 Ed.), sec. 898. (2) At common law the directors have powers co-extensive with those of the corporation, and have not a mere delegated authority as common agents; and in the absence of restrictions in the charter or by-laws, directors have all the authority of the corporation itself in the conduct of its ordinary business. Generally, whatever directors do, within the scope and powers of the corporation, the corporation does. 1 Beach on Private Corporations, sec. 227; Conyngton on Corporate Management, p. 23, sec. 31; Tanner v. Railway Co., 180 Mo. 17; City of St. Louis v. St. Louis Gaslight Co., 70 Mo. 98.
   MOZLEY, C.

Injunction by the minority of the board of directors of the Hannibal, Missouri, Land Company against the majority of said board, seeking to restrain said majority from selling about twenty-eight hundred acres of land owned by the Hannibal, Missouri, Land Company, a corporation.

The said Land Company was duly organized as a corporation on or about the 9th day of June, 1904, under Article 7, Chapter 12, Revised Statutes 1899. The land involved was formerly owned by William A. Munger and his brother, Lyman P. Munger, and is situated in Marion County, Missouri. The two Mungers and Lucy A. Munger, the wife of Lyman P. Munger, formed the incorporation. William A. Munger had five hundred shares, his brother, Lyman P.- Munger, had four hundred and ninety-nine shares, and Lucy A. Munger, one share, all of the par value of one hundred dollars each. Upon the organization of said corporation, said William A. Munger, said Lyman P. Munger and his Avife, Lucy A. Munger, deeded the whole of the lands referred to, to the corporation, the Hannibal, Missouri, Land Company, and received therefor certificates of stock in proportion to the shares they had subscribed. In the articles of incorporation it was provided as follows: “The purposes for which this incorporation is formed are to buy and sell real estate, both farm and city property, at any place within the United States of America; and to own and hold, operate and control such real estate and to exercise such acts of ownership and control over the same as may be exercised over the ownership and control of real estate by a private citizen of the State of Missouri.”

Lyman P. Munger departed this life on or about the 28th day of February, 1906, leaving a will in which he bequeathed all of his said capital stock in said corporation to his wife, Lucy A. Munger. On the--day of May, 1911, the • said William A. Munger departed this life, leaving a will in which plaintiffs, La Oosette Hendren and Thomas P. Head, were named and appointed executors, and bequeathing his said five hundred shares of the capital stock in said corporation to the said executors as trustees, with power of ultimate sale and distribution to certain named parties, who were to be the beneficiaries of the said William A. Munger. Thereafter the said Lucy A. Munger transferred one share of said stock to the defendant Frederick W. Neeper, and after-wards died, leaving a will duly proved and admitted to probate, whereby she bequeathed all of her remaining capital stock, namely, four hundred and ninety-nine shares, to the defendant Leigh A. Neeper. In addition to the lands above referred to, the Mungers owned about 1650 acres each in Illinois, and it, after the organization of the corporation, was handled through the corporation. The corporation owns other property beside that mentioned, and had about $5000 in cash. It is conceded in the record that the defendants constituted a majority of the board of directors of said corporation.

At the regular annual meeting of the board of directors of said company, one William A. Rinehart had submitted a proposition in writing to buy said 2800 acres referred to, and pay therefor to said company the sum of $124,500. All of the members of said board were present at said regular meeting, and the proposition of Rinehart was duly laid before the board by defendant Frederick W. Neeper, one of said directors and the then president of said corporation. The matter was passed over from time to time until the 14th day of March, when said proposition was accepted by a majority vote of said board of directors, by resolution duly passed, and said board contracted to sell said lands for $124,500 as follows: $20,000 cash, upon the execution of the deed, and the further sum of $104,500 in three annual installments, payable respectively in one, two and three years from date of said sale, with interest on each of said deferred payments at five and one-half per cent, per annum from the date of sale, and the said Rinehart was to convey, by trust deed, to the corporation, said lands, to secure the payment of the balance on the purchase price of same. The plaintiffs, as trustees, at this juncture, instituted this action to enjoin the consummation of said sale. On a trial in the Hannibal Court of Common Pleas the chancellor found the issues for defendants, denied plaintiffs injunctive relief or any relief, and dismissed the bill. From that decree, plaintiffs appealed to the Saint Louis Court of Appeals, which court, because the amount involved is in excess of its jurisdiction, certified the cause to this court.

Appellants assign error as follows:

(1) Under the law and all the evidence the finding and decree should have been for plaintiffs, awarding the relief prayed. The court erred in finding for defendants and in rendering a decree dismissing plaintiffs’ bill.
(2) The court erred in overruling plaintiffs’ motion for a rehearing and a new trial and their motion in arrest of judgment.

Under these assignments the contention is made by appellants that if the sale of the land in controversy is consummated, it will result in annihilating the corporation and that this cannot be done without the consent of all the stockholders. We cannot subscribe to that view. To do so would be to lose sight of the purposes for which the corporation was formed. Its charter powers expressly authorizes it to buy and sell real estate — in fact recites that the corporation was formed for that purpose. The sale of the land in question has no reference to the destruction of the corporation, it is merely carrying out the specific charter power the corporation possesses. Nor is there anything in the record that discloses any attempt or desire, in making this sale, upon the part of the majority of the directors, to interfere with the integrity of the. corporation.

Cook, in his admirable treatise on corporations, states the following as the law: “The law seePis to be clear that all corporate contracts are to be made by the directors. This includes original contracts as well as modifications of them. If a.contract is within the express or implied powers of the corporation, then the directors need not consult the stockholders nor follow their wishes, even though the latter constitute a majority or a minority, and though these stockholders object in meeting assembled or individually in the courts.” [Yol. 3, par. 709, p. 2423.] Further in the same volume, para-" graph 712, page 2435, it is said: “All contracts of a corporation are to be made by or under the direction of its board of directors. And in all cases the board of directors and not the stockholders, nor the president, secretary, treasurer, or other agent, is the original and supreme power in corporation to make corporate contracts. The stockholders, indeed, have very few functions. The board of directors have the widest of powers. All of the various acts and contracts which a corporation may enter into are entered into by and through the board of directors. The board of directors make or authorize' tlm making of the notes, bills, mortgages, sales, deeds, liens, and contracts generally of the corporation. ’ ’

We think there is no doubt that the majority of the board of directors were acting expressly with the charter powers of the corporation in making said contract of sale to Rinehart, and that said sale is legal and the corporation bound thereby.

Entertaining these views, it results that the decree of the lower court will be affirmed. It is so ordered.

White, G., concurs; Railey, G., absent.

PER CURIAM:

The foregoing opinion of Mo’zley, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WHITE, C. PER CURIAM:

license: Public Domain

text:
    FRED STEGMANN et. al., Appellants, v. HENRY L. WEEKE, Commissioner of Weights and Measures of City of St. Louis.
    (No. 21,151)
    Division Two,
    July 5, 1919.
    1. INJUNCTION: Dismissal Without Hearing. In an injunction, if the bill states a cause of action entitling plaintiff to a hearing on the merits and he does not in any way waive his right to have the case proceed in due course, it would seem, though it is not decided, that, under Sec. 2532, R. S. 1909, the court is not authorized to dismiss the bill without a hearing on the merits and without having passed upon the matter pf issuing a temporary restraining order.
    2. MEASUREMENTS: Unlawful Bushel: Prescribed By Ordinance. An ordinance which prescribes that a bushel box shall be 23% inches long, 9% inches deep and 11 inches wide calls for a box whose cubical content is 2493.5 inches, and is contrary to the statute (Sec. 11961, R. S. 1909) which says the content of a bushel shall be 2150.4 cubic inches, and attempts to make unlawful the use of a box of any other dimensions, even though it contained the exact statutory content.
    3. MOOT CASE: Abatement: Costs. An appeal from a judgment dismissing plaintiffs’ bill for an injunction at their cost will not abate unless thereby they are given a full measure of relief. Before a defendant may abate a case by complying with the demands-of the petition, he must comply with all its demands, including the payment of costs.
    4. -:-: Injunction: Threat to Continue Wrong. An injunction to restrain a city officer from destroying the market boxes of plaintiffs, who are farmers and gardeners, will not abate an appeal on the ground that the objectionable sections of the ordinance under which defendant- had destroyed their boxes had been repealed after the case was submitted and others enacted in lieu thereof, if the defendant has threatened to destroy, without a hearing, all boxes he believes to be of different dimensions from those prescribed by the ordinance as amended. In view of such threat, the determination of the case does not turn upon a mere moot question.
    5. INJUNCTION: -Clean Hands: Determined Without Hearing. The trial court is not empowered to decide, without a hearing on the merits, upon a mere preliminary consideration of the question whether upon the face of the petition a temporary restraining order should be issued, that the plaintiffs have not come into court with clean hands.
    6. -: -: Limitations of Rule. The rule that he who comes into equity must come with clean hands has its limitations. The particular iniquity which prevents the pursuit of an equitable remedy must relate to the particular matter in hand, and must arise out of the transaction which is the subject of the suit. If the. plaintiffs, who by their petition ask that a city commissioner be restrained from destroying their market boxes, who has threatened to destroy them on the ground \ that they are not of the dimensions prescribed by ordinance, have used the boxes with the understanding that some persons would be deceived as to their contents, they come with unclean hands; but if the facts show that the boxes have long been in use, that the purchasers of their produce fully know their contents, and fail to show that some consumer or purchaser has been deceived, they do not come with unclean hands.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    Reversed and remanded.

      Edward W. Foristel, Taylor R. Young and T. T. Hinde, for appellants.
    (1) The first cause was not heard on its merits at a final hearing, hence, since the petition states a cause of action, the court should not have dismissed the suit at the preliminary hearing on the order to show-cause why a temporary injunction should not issue. And even if the petition did not state a good cause of action, appellants had a right to amend. Harrison v. Rush, 15 Mo. 175; State ex rel. v. Smith, 188 Mo. 179; (2) Sections 22 and 23, both original and amended, of the ordinance are unconstitutional, both under the Federal and State Constitutions, in that they impair appellants’ right to contract and deprive them of their property without due process of law. Article 5 of Amendments to U. S. Constitution; Art. 2, sec. 10, U. S. Constitution ; Art. 2, sec. 15, Missouri Constitution: Art. 2, sec. 30, Missouri Constitution; St. Louis v. Dreisoerner, 243 Mo. 224. (3) Original Section 23 of the ordinánce is illegal under our statute providing that no city shall have the power to levy or collect a license or fee from any farmer or producer for the sale of produce raised by him, when sold from his wagon in a city. The annual inspection fee of ten cents per box is nothing-more nor less than a tax, license or fee. Sec. 9516, R. S. 1909; St. Louis v. Meyer, 185 Mo. 583. (4) Original Section 22 of the ordinance violates our statute, pertaining to weights and measures in at least two particulars: (a) It attempts to establish a standard bushel box with a capacity of 343.16 cubic inches in excess of the statutory standard; (b) it fixes absolute and arbitrary dimensions, thus limiting the shape, as well as the capacity, of the container. Sec. 11961, R. S. 1909; Sec. 11963, R, S. 1909.

      Charles H. Danes and H..A. Hamilton for respondent.
    (1) If an event occurs pending an appeal which renders a decision unnecessary, the appeal will be dismissed. Such condition may arise by the act of the appellee in relinquishing the right to do some act in respect to which the appeal was taken. That part of Ordinance No. 29795 against which complaint is made having been repealed, the matter presented in said cause is a moot question. (2) All substantial • interest in the controversy having been extinguished, this court will not hear the appeal merely to determine the right to costs. Hicks v. St; Louis, 234 Mo. 647; Union El. L. & P. Co. v. St. Louis, 253 Mo. 592; Howe v. Doyle, 187 Mich. 655; Russell v. Campbell, 112 N. C. 404; Mabry v. Kettering, 91 Ark. 81; Pinkerton v. Randolph, 200 Mass. 24; Moore v. Cooper Monument Co., 81 S. E. 170; Anderson v. Cloud County, 90 Kan. 15; Wingert v. First National Bank, 223 U.. S. 670, 672; Lisman v. Knickerbocker Trust Co., 211 Fed. 413.
   WHITE, C.

The plaintiffs are truck gardeners and farmers, and officers of a voluntary unincorporated association which consists of twenty-five hundred members. The defendant is Commissioner of Weights and Measures of the City of St. Louis. The plaintiffs filed their amended petition in the circuit court of St. Louis on April 24, 1918, in which they set out a certain ordinance of the City of St. Louis, No. 29795, enacted on the ninth day of August, 1917, which was alleged to be in violation of the State and Federal Constitutions and unreasonable and oppressive. Under this ordinance the defendant in his official capacity had destroyed, and threatened to continue destroying, -certain boxes used by the plaintiffs and other members of the association. The petition asked 'for a temporary restraining order and, upon a final hearing, a permanent injunction to prevent said acts on the part of the defendant.

On the filing of said petition the court issued an order directing the, defendant to show cause on a certain day why a temporary restraining order should not be issued. The defendant thereupon, on the day mentioned, filed his return to the order, in which he set out certain sections of the ordinance referred to, prescribing the dimensions of boxes which might be used in the marketing of produce, and alleged that the plaintiffs in marketing their produce used boxes of other and different dimensions, contrary to the ordinance, and for that reason he had seized a number of such boxes.

After hearing the evidence upon the petition and return, the court, instead of merely passing upon the matter- of issuing a restraining order, dismissed the bill at plaintiffs’ costs.

I. Appellants here complain that the court had no right in this mere preliminary hearing, in which the only matter to he determined by the court was whether a temporary restraining order should issue, to dismiss the bill; that the bill states a cause of action which entitled the plaintiff to a hearing on the merits, and even if it did not state a cause of action the plaintiff had a right to amend and have a trial in due course upon the merits of the case. Although the return of the defendant may be treated as an answer to the petition, it is not contended anywhere by the respondent that the taking of evidence was a trial of the case upon the merits or that the plaintiffs in any way waived their right to have the case proceed in due course. It looks as if Section 2532, Revised Statutes 1909, did not authorize this summary disposition, but the case may be disposed of without determining that question.

II. The ordinance under which the defendant sought to justify his acts in destroying the plaintiffs’ boxes, and which the plaintiffs claim is unconstitutional and unreasonable, consists of many sections. The pertinent ones set out in the petition and in the return, are sections 22 and 23. Section 22 provides that a standard bushel box shall be of the following dimensions, inside measurement: length, 23% inches; depth, 9|- inches; width, 11 inches. Dimensions also are provided for half-bushel, quarter-bushel, eighth-bushel, sixteenth-bushel, and thirty-second-bushel boxes. The bushel box of the dimensions prescribed would contain 2493.56 cubic inches. The other boxes prescribing for fractional parts of a bushel correspond in capacity to the bushel box. Section 11961, Revised Statutes 1999, provides that the cubical contents of the half-bushel shall be 1075.2 cubic inches; trouble this would be 2150.4 cubic inches. This is approximately the same for the contents of the bushel, 2150.5 cubic inches, as provided by the Federal' statute. The cubical contents of the bushel by the ordinance is therefore 343.06 inches in excess of the actual bushel provided by the State and Federal statutes.

The boxes used by the plaintiffs are spoken of in the evidence as “short bushel” boxes. The plaintiffs only claimed that they contained three-fourths of a bushel each, but -by actual measurements the contents was seven-eighths of a bushel, and, when heaped up, a bushel. These were the boxes which the plaintiffs were using to dispose of their produce at the time they were seized and destroyed by the defendant. The appellants make a statement of the case which the respondent concedes to be correct, and the statement includes the written opinion of Judge Wilson A. Taylor who heard the ease, which opinion sets out at length the facts as determined by him. According to the facts as found by Judge Taylor and as supported by the evidence in the record, the plaintiffs were farmers and truck gardeners. They sold their produce in the boxes mentioned to commission merchants only, who in turn sold it in the same boxes to retail men and hucksters, and such sales were never by the bushel, but always by the box. The commission man, the purchaser, knew exactly the contents of the box, as did also the hucksters who bought from the commission men.

The ordinance provides that it shall be unlawful for any person, firm or corporation to sell or offer for sale in thp city of St. Louis any fruits or vegetables in any box or receptacle that is of a capacity different from that prescribed, providing a penalty for the violation of the ordinance. In other words, the ordinance provides an unlawful measurement for the selling of produce. If the appellants were using a box of any other contents than the one prescribed, even though it contain the exact statutory bushel, it would be as unlawful, according to the ordinance, as the boxes they actually used. It is the enforcement of this ordinance which the plaintiffs seek to enjoin.

Respondent, however, presents two reasons why ,ie claims the judgment of the circuit court in dismissing the bill should be sustained here.

III. First, it is asserted, the question is now a' moot ■question. It seems that after the case was submitted to the court in the manner mentioned the Board of Aider-men of the City of St. Louis repealed the objectionable sections of Ordinance 29795, and enacted others ^eu them, so that there is no longer any possibility of an attempt to enforce them. So, it is argued, this court could not affect the condition of the parties by passing upon the question which is now merely academic.

It is true, it has been determined by this court in several cases, when a defendant in any case voluntarily does the thing which the plaintiff seeks to have accomplished by an order of court, at any stage of the proceeding, whether it is done before or after the trial or before or after the appeal is granted, the suit may be abated. [Hicks v. City of St. Louis, 234 Mo. l. c. 653.] The repeal of an ordinance pending a prosecution under it, operates to relieve the defendant from further prosecution. [Electric Light & Power Co. v. St. Louis, 253 Mo. l. c. 603.] It is true in this case, the repeal of the ordinance at which the plaintiffs strike would disarm them, if that were all there is in the case. It is held, however, that before a defendant may abate a case by complying with the demands of the petition he must comply with all such demands, including the payment of the cost. [State ex rel. v. Philips, 97 Mo. l. c. 339-40.] This court there said in relation to that matter, l. c. 339: “The plaintiff had the right to have the full measure of the relief he claimed, or else by a solemn adjudication of the court, to know the why and the wherefore of the refusal which denied him redress in full, of his demands.” Also, 1. c. 340: “Plaintiff was entitled, to insist that the court should make such a thorough disposition of the whole cause as would protect him even against nominal damages or costs.”

In State ex inf. v. Standard Oil Co., 218 Mo. l. c. 390, it is held that before defendant may abate a suit in such case he must have paid all the costs. [See, also, Miller v. Assurance Co., 233 Mo. l. c. 98; in re Hutton’s Estate, 92 Mo. App. l. c. 138.]

In this case the bill was dismissed at the plaintiff’s costs. Not only that, but according to the statement which respondent admits is correct, the defendant intended to continue the destruction of plaintiff’s boxes. If the court did not enjoin this proceeding he would continue to break up the boxes “until there is not another dinky box left in town.” The threat'could hardly be stronger. That is to- say, the Commissioners of Weigths and Measures proposed, without a hearing, to punish all whom he believed to be violators of the ordinance as amended. So the repeal of the objectionable ordinance did not give the plaintiffs a full measure of relief, for the reason that the costs were assessed against them and for the reason that the destruction of their property was to be continued. Therefore, the determina-, tion of the case does not turn upon a mere moot question, but upon questions which, the plaintiff has a right to have considered, though the result may have no effect except to determine upon whom the costs shall fall.

IY. The other point made by respondents is that the plaintiffs in this case did not come into court with clean hands. That was the theory as stated by Judge Taylor upon which he dismissed the bill. The fact that this question was decided without a hearing upon the merits of the case, but upon a mere preliminary consideration ,of the question, whether upon the face of the petition a temporary restraining order should be issued, is sufficient to stamp it as error. But inasmuch as the case is to be further considered by the circuit court it is well enough to touch upon that question.

The ancient maxim that he who comes into equity must come with clean hands has been applied to various kinds of cases, but it has its limitations. The particular-iniquity which prevents the pursuit of an equitable remedy on the part of a plaintiff must relate to the particular matter in hand, must arise out of the transaction which is the subject of the suit. [1 Pomeroy on Equity Jurisprudence, sec. 339; Williams v. Beatty, 139 Mo. App. l. c. 174; Hingston v. Montgomery, 121 Mo. App. l. c. 462; Chicago v. Union Stockyards Co., 164 Ill. 224.]

If the plaintiffs originally had constructed the boxes, had devised their contents, and had sold with the understanding that some purchaser would be deceived, there might be some reason for saying they did not come into equity with clean hands in seeking to prevent the destruction of .the boxes. But it is shown that the commission men who purchased from the farmers bought by the box, knowing fully its contents, and never by the bushel; that the purchasers from the commission men, the retail dealers and the hucksters, - bought in the same way. It is not shown that any consumer was deceived by these boxes. That is a matter upon which there is no allegation and no evidence. There is no evidence even that any consumer ever purchased any produce in those boxes. The finding of Judge Taylor is to the effect: “These same short bushels are handed on down to the retailer and very likely to the consumer.”

It is not sufficient to show that there was a possibility of unfair dealing by some remote person in the chain of transactions, hut it must be shown that the plaintiffs had reason to believe actual unfair dealings would be conducted.

These same boxes had been in use for twenty-five years; when heaped up they held a bushel, when level full they held seven-eighths of a bushel. The plaintiffs in the beginning probably in each case came into a business in Avhich several thousand other farmers and truck gardeners were engaged, and found these boxes in universal use and no complaints made. They furnished their produce in the boxes and received empties' to the same number in return at the time of each sale. If the commission merchant didn’t have the empties on hand for the exchange he would give an order on the box factory for the requisite number and the farmer immediately went there and. got new boxes. It appears that most of these boxes were in fact purchased by the commission men. Neither on the face of the petition, nor on the evidence as produced at the preliminary, is there a showing that the plaintiffs came into court with unclean hands; that is a matter which should be determined upon the final hearing. If the plaintiffs knew or had reason to believe that the boxes passed on to the consumer and that the consumer was in fact deceived by them as to the contents, another question would be presented from that presented here, where no such facts are shown.

The conclusion is that the trial court was .in error In dismissing the petition without a hearing, and no considerations have been presented .to relieve from the consequences of that erroneous ruling.

The judgment is reversed and the cause remanded.

Railey, G., not sitting; Mosley, G., concurs.

PER CURIAM:

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

All of the judges concur.


author: WHITE, C. PER CURIAM: PARIS, J.

text:
    FRED STEGMANN et al., Appellants, v. HENRY L. WEEKE, Commissioner of Weights and Measures of City of St. Louis.
    (No. 21, 152)
    Division Two,
    July 5, 1919.
    1. WEIGHTS AND MEASURES: Legislative Power: Invasion of Sight to Contract. For the purpose of protecting the public and consumers from fraud and imposition in their purchase of commodities, the Legislature has the right, as a police regulation, to regulate weights and measures, and delegate that authority to municipal corporations, in so far as they exercise police powers; but the regulation must not be such as to invade the constitu- » tional right to make contracts.

      2. -: -: -: Reasonable Restrictions. A legislative exercise of the police power to fix weights and measures necessarily limits the freedom of contract that would otherwise exist; but so long as the restriction has a reasonable relation to the exercise of the power and is not so arbitrary or capricious as to be a deprivation of due process of law, freedom of contract in the constitutional sense is not interfered with.
    S. -: -: -: Bushel Boxes According to Statute: Penalty for Use of Boxes of Different Dimensions. An ordinance establishing standard bushel and half-bushel boxes to contain the same cubical content of the bushel and half-bushel prescribed by statute, to be used by truck gardeners and farmers in selling their fruits, vegetables and other produce in the city, and prescribing a penalty for the use of boxes of a different capacity and thereby sufficiently guaranteeing that boxes of a different capacity will not be used, is not unconstitutional as impairing the obligation of contracts, although it makes unlawful the use of boxes of a less capacity which have been in general use for many years.
    4. -: Bushel Boxes of Given Dimension: No Penalty. The court may determine whether an ordinance prescribing that hushel and half-bushel boxes to be used by farmers and truck gardeners in marketing their fruits and vegetables within the city shall be of certain dimensions, is unreasonably arbitrary, and may settle the question by inspecting the face of the ordinance, or may find it unreasonable by a state of facts which affects its operation; but" an ordinance which prescribes that a bushel box shall have certain dimensions and a half-bushel box certain other dimensions, but prescribes no penalty for the use of boxes of different dimensions, but only a penalty for the use of boxes of a different capacity, is not unreasonable.

      Held, by PARIS, J., concurring, that the ordinance is valid .only because it prescribes no penalty for the use of boxes of different dimensions, thus making the prescription that the bushel and half-bushel boxes shall have certain dimensions only advisory, and not mandatory. Held, also, that the city has no power to say that the- boxes shall be of a required length, width and depth.
    5. -: -: -: Oppressive Enforcement: Injunction. Plaintiffs cannot have an injunction to restrain the city from pursuing some unexpected and unthreatened prosecution. If the ordinance requires plaintiffs in marketing their vegetables and produce to use boxes having the number of cubic inches prescribed by statute for bushel and half-bushel containers, and fixes a penalty for the use of boxes of different capacity, and also goes further and prescribes that boxes of those capacities shall be of certain length, breadth and width but prescribes no penalty for the use of boxes of different dimensions, and their contention is that the ordinance interferes with their use of boxes of a smaller capacity which have long been in use, and they make no showing that they intend to use boxes of the prescribed capacity, the ordinance will not be held to be invalid on the theory that it will be interpreted to mean that they must use boxes of the specified dimensions and therefore will be oppressively and illegally enforced.
    6. -: Sale By Weight. Where the ordinance does not require the immediate purchaser from the gardeners to purchase by weight, although such purchasers are commission merchants and retail dealers who have not been deceived as to the contents of the “short” boxes long in use, yet if the commodities in the boxes can be passed on to the°ultimate consumer, the city has the right, in order to provide against imposition by the use of the smaller boxes, to enact an ordinance requiring the use of boxes containing the statutory capacity of a bushel and half-bushel, and affixing a penalty for the use of boxes of different capacities.
    Appeal from St. Louis City Circuit Court.— Hon. Vital W. Garesche, Judge.
    Affirmed.

      Edward W. Foristel, Taylor R. Young and T. T. Hinde for appellants.
    (1) Courts have jurisdiction to enjoin the enforcement of an illegal ordinance. Coal Company v. City of St. Louis, 130 Mo. 323; Union Cemetery Assn, v. Kansas City, 252 Mo. 466; Jewel Tea Co. v. City of Carthage, 257 Mo. 383; Hays v. Poplar Bluff, 263 Mo. 516. (2) Sections 22 and 23, both original and amended, are not in harmony with the constitutional and statutory State provisions, and for that reason are illegal and void. St. Louis v. Meyer, 185 Mo. 593; Peterson v. Railroad, 265 Mo. 497; See. 9582, R. S. 1909; St. Louis v. Bernard, 249 Mo. 56; St. Louis v. Dreisoerner, 243 Mo. 223; Hays v. City of. Poplar Bluff, 263 Mo. 516; Union Cemetery Assn. v. Kansas City, 252 Mo. 466; St. Louis v. Worlds Pub. Co., 270 Mo. 146; St. Louis v. King, 226 Mo. 334. (3) As to appellants, the ordinance is beyond the police power of the city to enact, unreasonable and oppressive, and for that reason void under all the authorities above cited. (4) Appellants did not have an adequate remedy at law. Coal Company v. City of St. Louis, 130 Mo. 323; Jewel Tea Company v. Carthage, 257 Mo. 383.

      Charles R. Banes and H. A. Hamilton for respondent.
    (1) By its charter the City of St. Louis is expressly invested with power to inspect, test, measure and weigh any article of consumption within said city, and to establish, regulate, license and inspect weights and measures. Charter, art. 1, sec. 1, 27; Charter, art. 1, sec. 1, 28. (2) The ordinance in question having for its purpose the protection of the inhabitants of the City of St. Louis against false weights and measures, is a valid exercise of the police power of said city and is not obnoxious to any provision of the State or Federal constitutions. Sylvester Coal Co. v. St. Louis, 130 Mo. 323; State ex rel. v. Merchants Exchange, 269 Mo. ‘346;. Chicago v. Schmidinger, 243 111. 167; Schmidinger v. Chicago, 226 U. S. 578; People v. Wagner, 86 Mich. 594. (3) The City of St. Louis being authorized to establish and regulate weights and measures, may prescribe the form and dimensions of the container in which articles of consumption are marketed in said city. Turner v. State, 55 Md. 240; Turner v. Maryland, 107 IT. S. 38. (4) Ordinance No. 29795, as amended, does not conflict with the Constitution or statutes of the State of Missouri, but is in complete harmony therewith. (5) The Municipal Assembly of St. Louis is vested with the power of determining the necessity of regulating business in said city, and courts will not ordinarily review the exercise of its discretion. An ordinance passed in the exercise of legal authority will not be declared void on the ground of unreasonableness unless no difference of opinion can exist upon the question, and a clear case must be made to authorize a court to interfere on that ground. St. Louis v. Weber, 44 Mo. 547; Gratiot v. Missouri Pacific Railroad Co., 116 Mo, 450; Chillicothe v. Brown, 38 Mo. App. 609; Kansas City v. Sutton, 52 Mo. App. 398; Monett v. Campbell, 204 S. W. 32.

   WHITE, C.

This is a companion case to No. 21,151 of the same title. Many facts pertinent here are fully set out in the opinion in chat case and it may be read in connection with this case. However, for convenience, it is proper briefly to restate some of -them. That was a suit brought by plaintiffs as farmers and truck gardeners, to restrain the Commissioner of Weights and Measures of the City of St Louis from enforcing a certain ordinance, No. 29,795. in that case the circuit court, on a preliminary hearing for the purpose of determining whether a temporary restraining order should be issued, dismissed the biP without a final hearing on the merits of the case.

The ordinance complained of, enacted August 9, 1917, provided for a bushel box, and boxes holding fractions of a bushel, in which produce, fruits and vegeables should be marketed, of a cubical content in excess of the statutory bushel as provided by Section 11961, Revised Statutes 1909, and by the Federal statute. The plaintiffs were using as a bushel box one containing less cubical contents than the statutory bushel. After that case was heard and before its determination the City of St. Louis amended the ordinance so as to make it accord with the statute of Missouri and the Federal Statute. When that was done and the former case dismissed, the plaintiffs brought this suit to enjoin the enforcement of the ordinance as amended. In their petition in this case they set out the original ordinance enacted August 9, 1917, in full, and the amendment to the same made in April, 1918.

They allege that they are farmers and gardeners and market their produce either to commission merchants, retail grocers or hucksters; that their produce is packed in wooden boxes, or crates, before being loaded, and in loading the boxes are packed in tiers and so arranged that the bottom tier is protected from upper tiers; that in capacity said boxes or crates range from three-fourths of a bushel, standard measure as defined by statute, to a bushel, and are used by all truck gardeners in the vicinity where plaintiffs grow their produce; that they have been used for twenty-five years in that manner and are peculiarly suited to the economical and safe delivery of produce; that the plaintiffs and other truck gardeners and farmers have on hand, complete to be used, 1,875,000 of such boxes, which cost them in the neighborhood of $350,000; that their delivery trucks are especially designed' to conform to the size of said boxes and crates; that the produce which they sell is neither bought nor sold by the bushel but, by special agreement between the sellers and purchasers, it is sold by the box or crate and the purchasers from plaintiffs are not in any manner'misled or deceived as to the capacity of the boxes in which the produce is sold; that they deliver their boxes full to the purchaser and receive in return in each case empty boxes of the same size and character from the purchaser.

Upon the filing of this petition and a bond in the sum of one thousand dollars, duly approved, a temporary restraining order was issued and served upon the defendant Weeke, who was ordered to show cause on a certain day why the induction should not issue. Thereupon the defendant filed his return in the nature of an answer to the allegations of the petition. Afterwards the parties filed a stipulation as to certain facts, wherein they agreed that the case might be submitted ‘ ‘ for final adjudication upon the petition of the said return of the respondents, • to be taken and construed as an answer thereto, and the reply of the plaintiffs filed on that date, together with certain stipulations of facts.” The court thereupon heard the case upon its merits, found the issues in favor of the defendant and dismissed the bill, and from that judgment the plaintiffs appealed to this court.

Ordinance No. 29,795, in its original form provided, among other thing’s, the duties of the Commissioner of Weights and Measures to test the accuracy of weights and measures and to seize in the name of the city, all false weights, measures and scales, and to make arrests of persons violating the ordinance by using false weights and measures and scales.” It provided for inspection of all weights and measures examined, and penalties for persons having weights and measures in their possession, for refusing to allow them to be tested and examined, and' for using weights and measures that are not tested; that the commissioner should mark ££condemned” weights, measures, standards, etc., that did not conform to the standard in this State, and that it should be a misdemeanor to use a weight or measure containing a less quantity than represented.

Section 22 of that ordinance fixed the dimensions for' standard boxes to hold bushels, half-bushels, and other fractional parts of a bushel, making the cubical contents of such boxes greater than the statutory requirements. Section 23 of the ordinance provided for a fee of ten cents each for' inspection of such boxes, that they should be inspected once a year, and that' it should be a misdemeanor for anyone to use boxes of other dimensions for the purpose of selling fruits or vegetables. Those were the sections struck at in the other suit.

By the amendment of April, 1918, sections 22 and 23 of the ordinance were made to read as follows:

££ Section 22. Standard bushel box and fractional part part thereof established. There is hereby established a standard bushel box, the dimensions of which shall be as follows; Length twenty-two inches; depth, eight and one-half inches; width, eleven and one-half inches; which bushel box shall contain twenty-one hundred and fifty and five-tenths• cubic inches. There is hereby established a star dar d half-bushel box, the dimensions of which shall be as follows: Length, twenty-two inches; depth, four and one-quarter inches; width, eleven and one-half inches, which half bushel box shall contain one thousand and seventy-five and two-tenths cubic inches. All boxes or containers in which fruits and. vegetables are sold or offered for sale shall be of the foregoing dimensions and standards, unless otherwise provided by ordinance.

“Section 23. Penalty. Any person, firm or corporation who shall sell or offer for sale in the City of St, Louis any fruits or vegetables except fresh berries, cherries, currants or other small fruits, in any box or receptacle that is of a capacity different from that hereinbefore provided, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than five dollars nor more than fiv.e hundred dollars.”

It will be seen by this amendment Section 22 is in agreement with the statute as to the cubical contents of a bushel. The answer restates much of the same matter contained in the petition, including the ordinance, and sets out at length Judge Taylor’s opinion delivered in the previous ease.

The stipulation which supplements the pleadings is to the effect that the defendant Commissioner of Weights and Measures intends to arrest and prosecute plaintiffs and others using boxes in violation of the ordinance as long as they fail to use boxes of 'the exact dimensions and contents provided in the amended ordinance, regardless of how said boxes are marked or whether said boxes contain more than the quantity marked on the box or not; that the defendant, Weeke, has not destroyed any boxes belonging to any of the plaintiffs since the 23rd day of April, 1918; that all persons who now sell direct to the consumer of products sold by the plaintiffs are required to sell and do sell by weight and not by measure.” The further fact was stipulated for what it is worth, that a number of farmers and truck gardeners, naming them, forty-five or fifty, use boxes which correspond to the requirements of amended sections 22 and 23 of the ordinance.

The amended ordinance at which this proceeding is aimed does not contain the oppressive feature of inspection fee for each box contained in the original ordinance and there is no threat of the Commissioner of Weights and Measures to destroy without a hearing the boxes or other property of plaintiffs.

I. Appellant asserts that sections 22-23 of the ordinance are unconstitutional and in conflict with Article I, Section Í0, of the United States ’ Constitution, and with Article XI, Section 15, of the Constitution of Missouri, in that the ordinance, prohibiting a person from selling his produce in any form or manner or in any quantity which he sees fit and which his purchasers desire, so long as his method is fair and characterized by honest dealing with his purchaser, impairs the right to make contracts.

As a police regulation, for the purpose of protecting the public and consumers from fraud and imposition in their purchase of commodities, it is recognized by the courts that the legislative authority has the right to regulate weights and measures and delegate that authority to municipal corporations so that the latter, in so far as they exercise police powers, may regulate weights and measures. The question here is whether this regulation is such as to invade the constitutional right to make contracts. This court has considered the question in construing the statutes providing for official weighers of coal and grain. A leading case is State ex inf. v. Merchants Exchange, 269 Mo. 346. In that case the court had under consideration the constitutionality of a statute which forbade any person, corporation or association other than the duly authorized and appointed State weigher to issue any weight certificate or to issue or sign any ticket purporting to he the weight of any car, wagon, sack, or other package of grain weighed at any warehouse in the State. The court held that the purpose of the act was to protect from fraud the people who sold and bought grain, and hanks who loaned money on warehouse receipts. This language is used, 1. c. 358: “The whole purport of the act is for such official supervision in the principal grain markets as will protect not only the buyers, but the sellers of grain. In other words, it establishes a disinterested agency between the buyer and seller, both as to weights and grades of the grain. If a wheat-grower of Missouri ships a car of wheat to St. Louis, he is not forced to take the grading and weighing of the defendant (an association of grain dealers and speculators), but he has the protection of the disinterested agency established by the State, an agency duly bonded for faithful performance of duty.”

The effect of that statute then was to make the certificate of the weigher an official guaranty that the commodity which is represented was correctly represented, without further investigation on the part of the purchaser or of the seller. It would not only save time and expense in negotiations of that kind, but was a power for protection against fraud and imposition in connection with such sales. The case quotes from an earlier case, Coal Co. v. City of St. Louis, 130 Mo. 327, where a municipal ordinance similar in import was under consideration, and it was held binding and valid under the charter authority of the City of St. Louis wherein it had authority to license, tax and regulate retailers, and establish the standard of weights and measures to be used in the City of St. Louis.” It is pointed out in those cases that a purchaser or a seller may, weigh his grain for his own satisfaction, but that the official weight only can be allowed in buying and selling.

In the case of Ex parte House v. Mayes, 227 Mo. 636, this court had under consideration a statute which provided that no agent or broker selling grain, etc., should have authority, under claim of right to do so by reason of any custom or rule of any board of trade, to sell such commodities except on the basis of the actual weight thereof, and any contract for such sale in violation of the act should be null and void. The Board of Trade of Kansas City had a rule which permitted the purchaser of grain to deduct a hundred pounds from a carload of such grain because of dirt and foreign substances which were presumed to be in it and which were swept out after it was unloaded, it being common experience that about that amount of dirt on the average was in each carload. One R. J. House was prosecuted for making such deduction in accordance with the rules of the Board of. Trade and in violation of the statute. It was held that the statute was valid and constitutional as a matter of police protection, and not in violation of the Constitution which prohibits any act impairing the obligation of contracts.

An ordinance of the City of Chicago, fixing the standard size of loaves of bread and prohibiting the sale of •loaves of any other size, was held to be constitutional by the Supreme Court of Illinois. [Chicago v. Schmidinger, 243 Ill. 167.] The case was taken to the Supreme Court of the United States, where it was affirmed under the title, Schmidinger v. City of Chicago, 226 U. S. 578. That court, in the opinion rendered, thus comments upon the claim that the effect of the ordinance was to impair the right to contract, l. c, 589: This court has had frequent occasion to declare that there is no absolute freedom of contract. The exercise of the police power fixing weights and measures and standard sizes must necessarily limit the freedom of contract which would otherwise exist. Such limits are constantly imposed upon the right to contract freely, because of restrictions upon that right deemed necessary in the interest of the general welfare. So long as such action has a reasonable relation to the exercise of the power belonging to the local legislative body and is not so arbitrary or capricious as to be a deprivation of due process of law, freedom of contract is not interfered with in a constitutional sense. ’ ’

The law of Maryland which provided that it should be unlawful to carry, out of the State any hogshead of tobacco raised in that State except as had been inspected, marked and passed according to the provisions of the act regulating the inspecting and marketing of tobacco, was held to be constitutional by the Supreme Court. [Turner v. Maryland, 107 U. S. 38.]

The Supreme Court of Massachusetts held constitutional an act which provided that the sale of oats and meal must he by the bushel, and providing that an action could not be maintained for the price of such commodity when sold by the bag. [Eaton v. Kegan, 114 Mass. 433.]

The ordinance under consideration here fixes the cubical contents of bushel and half-bushel boxes and provides a penalty for using boxes of a different capacity. The effect of the. ordinance is that certain commodities could not be sold except in containers containing a bushel or a half-bushel. The prohibition of the use of boxes of other capacity is sufficient guaranty that boxes of other capacity would not be used, and furnished the same protection to the purchaser that the final weighing certificates would furnish in case of the sale of hay and coal as considered by the court in the Merchants Exchange case, supra, and the Coal Company case, supra. The reason for the validity of the statute and the ordinance in those cases applies with equal force to the ordinance here. It is not unconstitutional as impairing the obligation of contracts.

II. But it is claimed that the ordinance is an unreasonable regulation in its operation, in that it not only prohibits the use of containers of any other capacity than that provided, but prescribes the exact dimensi°ns7 the length and depth of the boxes, and forbids the use of containers of equal capacity of any other shape. That is, a box may be a perfect cube and contain a bushel or a half-bushel. Of course, this court may determine whether an ordinance is reasonable or unreasonable (Union Cemetery Assn. v. Kansas City, 252 Mo. l. c. 500 ), and in considering the matter may settle it by inspection of the ordinance on its face, or, may find it unreasonable by a state of facts which affects its operation. [St. Louis v. Theatre Co., 202 Mo. l. c. 699.] It might be unreasonable in one place and perfectly reasonable in another. It might be unreasonable in a mere village, whereas in a large city, with its great volume of busii ess of the character affected, it would be a' reasonable regulation. Plere there are several thousand farmers engaged in raising and selling produce. There are hu idreds of thousands of consumers in the City of St. Lo lis, many of whom, doubtless the majority, at some time or other purchase these very commodities. The evident purpose of the ordinance in providing containers of uniform-shapes and sizes was that a" purchaser easily could tell the exact quantity of the commodity he vas buying, the presumption being that the box contain ing the commodity which he purchased had passed t. e final test as to capacity, and he need not trouble himself in relation to that matter or inquire further. Likewise, it may be said that certain definite shapes and dimensions, would greatly facilitate inspection, lessen the expense of supervision for the city and conduce ir no way to hamper or hinder the course of trade.

It might be sa d further that the plaintiffs here could not complain hat the definite dimensions of the boxes were providec because they were using, or claimed the right to use, b xes of uniform dimensions and capacity. The evidence shows they nearly all used exactly the same kind of boxes, as did all other persons pursuing like business. It seems from the facts stated in the record that it was to their advantage to use exactly the samé kind of containers as to shape and dimensions. However, it is sufficient answer to this point to say that no penalty is fixed for the violation of that part of the ordinance prescribing the dimensions of the box; the plaintiffs could not be prosecuted for misdemeanors unless they used boxes of different capacity. In that respect the ordinance is no more unreasonable than the Chicago ordinance fixing the size of loaves of bread, or the statutes and ordinances considered in the Missouri cases cited above.

III. Plaintiffs, however, assert that the ordinance will be interpreted and enforced oppressively and illegally. Persons might use boxes having different length, width and depth from those mentioned in Section 22, and if they possessed the cubical coutents the boxes there provided for they would not be guilty of a misdemeanor under the provision's of Section 23. Yet, according to the stipulation, the defendant expects to prosecute plaintiffs for using boxes unless they are of the exact dimensions provided in the ordinance.

In this connection it appears that the only boxes which the plaintiffs" use, and have no right to use, are those which do not have the contents provided for in Section 22. There is nothing to show that they expect to use boxes of the right capacity and of a different shape, but only expect to use the boxes they have been using which are of an insufficient capacity; therefore they are liable to incur the penalties of the ordinance in all they propose to do. This court cannot conjecture that they will use some boxes which they do not expect to use, or that they will be arrested and prosecuted for doing something which they do not intend to do. They cannot have an injunction to restrain the city from pursuing some unexpected and unthreatened prosecution.

IY. It is stipulated, as noted above, that the consumer who purchases the goods from their immediate vendors, goods which plaintiffs sell, are required to purchase by weight and not by measure. It is not stated whether this requirement is by ordinance or by contract. Section 28 of the ordinance provides that certain products enumerated, which are presumed to include some of the products sold by plaintiffs, shall be sold by weight, excepting, however, “commodities in original packages,” and then provides that: “The term ‘original package,’ as herein used, shall be taken to mean packages in which the commodities have been packed before shipping by the grower, producer, or original packer thereof, and the contents of which have not been disturbed or diminished except for the purpose of ripening it or of replacing spoiled goods.”

This provision of Section 28 evidently would exclude plaintiffs and those pursuing a like business, from an obligation to sell by weight, or persons-handling their produce in original packages from selling by weight, and therefore the ordinance is in direct conflict with this stipulation as to its purport. This section of the ordinance must be construed in connection with the other sections. It certainly was not the intention in the passage of the ordinance to make any provisions which are absolutely nugatory. There would be no purpose' or use in providing for dimensions *of measures to contain a bushel, and half-bushel, unless the products were sold by the bushel or half-bushel; and the exclusion of the original packers and of property which comes in original packages from the requirement to sell by weight is the only reasonable construction of the provision in Section 28 in connection with the rest of the ordinance. We must attempt to take the evident meaning of the ordinance as it reads, even though counsel for both parties may have misunderstood its meaning, or may have inadvertently construed it differently.

It is also noted that throughout the ordinance the inspection and the penalties fixed apply to false standards, false weights ■ and measures. The evidence here does not show that the boxes which the plaintiffs were using were measures or standards of measures; they were simply the containers in which they sold their products. The boxes are not used like a half-bushel measure to measure out the quantity of the product, they are only used to contain the products sold. Nevertheless Sections 22 and 23, leaving out of consideration the balance of the ordinance, fix the size and shape of box and name the penalty for using those of different capacity. Those sections are valid and effective as to that ■ purpose, regardless of the rest of the ordinance.

While it is admitted that plaintiffs sold only to commission merchants and retail dealers who were not at all deceived as to the contents of the boxes and who did not buy by the bushel, nevertheless the commodities in the original packages under the ordinance could be passed on to the ultimate consumer. It was entirely within the discretion of the city government to provide against imposition which they thought might occur in such sales to consumers. Their discretion and judgment in providing against possible fraud in the matter, whether sound or otherwise, is not for this court to determine. It is sufficient that the governing body deems the restrictions necessary for the protection of citizens and consumers. It has lawful authority to make the regulations and this court will not interfere.

The judgment is affirmed.

Bailey, G., not sitting; Mosley, G., concurs.

PER CURIAM:

The foregoing opinion by White,

C., has been adopted • as the opinion of the court.

Williams, P. J., and Walker, J., concur; Faris, J., concurs in separate opinion.

PARIS, J.

(concurring.) — I concur for the reason only that-there is no penalty attached for the failure to use a container of the prescribed dimensions, thus leaving so much of the ordinanee as prescribes the dimensions-of such containers neither mandatory nor punishable, but advisory only.

I do not agree that the City of St. Louis has the authority under the .guise of a police regulation to require the use of containers of fixed and arbitrary dimensions. I concede the authority in the city to pass an ordinance requiring such containers to be of a certain capacity so as to guard against fraud and cheating and even to require such containers to be rectangular in shape, so as to minimize time and labor in ascertaining the conformity of such containers to the capacity required by the ordinance. But I do not think it lies in the power of the city to say by its ordinance that such containers must be of a required length, width and depth.* •Neither do I think that one using containers of an impeccable capacity, so far as complying with the requirement as to capacity is concerned, could be punished in any wise for using a longer, or a shorter, a wider or narrower, a deeper or shallower container than the arbitrary standard prescribed by ordinance.

Upon the view that the ordinance means what I have said above that it ought to mean, I concur.


author: WILLIAMS, P. J.

text:
    J. A. PRICK, Appellant, v. MILLERS NATIONAL INSURANCE COMPANY.
    Division Two,
    July 5, 1919.
    APPEAL: No Assignment. I£ appellant’s brief in a civil case nowhere distinctly alleges the errors upon which he relies for a reversal of the judgment, either by assignments or points and authorities, Rules 15 and 16 of the Supreme Court require that his appeal be dismissed. Mere statements that “plaintiff is entitled to recover on the undisputed facts,” that “Instruction 2 should have been given,” etc., do not “distinctly allege the errors committed by the trial court.”
    Appeal from Jackson Circuit Court. — Now. Thomas B. Buchner, Judge.
    Dismissed.

      Fyke & Snider and Fenton Hume for appellant.

      Barger & Hides and White, Hachney & Lyons for respondent; Bates, Hides & Folonie of counsel.
   WILLIAMS, P. J.

This is an action at law to recover an alleged $8,000 loss under a fire insurance policy.

Trial was had in the Circuit Court of Jackson County before the court sitting as a jury, which resulted in a judgment for defendant. Thereupon plaintiff duly appealed to this court.

This case upon practically the same facts, but in a somewhat different form, was before this court before. [Erick v. Millers National Ins. Co., 184 S. W. 1161.]

Appellant’s brief contains no assignment of errors. In his brief under the head of “Points and Authorities” we find the following ;

“1. Plaintiff is entitled to recover on the undisputed facts.
“2. When the policy was transferred to plaintiff by the Caney Company, the original insurer, defendant was notified of the transfer and requested to substitute plaintiff as insured and only the formal part of transfer remained to be arranged. The policy then became a new contract between plaintiff and defendant. Instruction 2 to this effect should have been given— Instruction 5. Keim v. Ins. Co., 42 Mo. 39, l. c. 41; King v. Ins. Co., 195 Mo. 290, l. c. 307; Andrus v. Ins. Co. 168 Mo. l. c. 165; Bayless v. Ins. Co. 106. Mo. App. 684; Planters Mut. Ins. Co., v. Southern S. F. Co., 56 S. W. 443.
“3. The policy permitted 60 days’ vacancy or non-operation, and that length of time had not elapsed after plaintiff became the owner and insured when the fire occurred — Instruction 3.
“4. Plaintiff is not bound by acts of the Home National Bank in its dealings with defendant; the contract between said bank as mortgagee, and defendant, being a separate contract from the one between plaintiff and defendant, and there is no evidence said bank had authority to act for plaintiff — Instruction 4. Morrow v. Lancashire Ins. Co., 29 Ont. 377.”

Eule 15 of this court (as amended October 23,1917-See Supreme Court Eules on page 3 of supplement to 270 Mo. Eeport) provides, among other things, that “the brief for appellant shall distinctly allege the errors committed by the trial court . . . No brief . . . which violates this rule ivill be considered by the court.”

This rule works no undue hardship upon the appellant, but when followed saves this court much time and labor in reviewing the case. In fact such a rule is well-nigh indispensable to the proper dispatch of appellate work.

Appellant’s brief in the instant case nowhere distinctly alleges the- errors upon which he seeks a reversal of the cause, as is required by said rule.

“It has been held that where appellant though making no formal collective assignment of errors in any given part of his brief, yet separately assigns error specifically in distinct subheads of his points and authorities, we will accept this as a substantial compliance with the statute and our rules” (Vahldick v. Vahldick, 264 Mo. 1. c. 532); yet we have never held that a brief complies with this rule when, as here, it nowhere contains a distinct or specific allegation or assignment of error.'

Unless Rule 15 is to be treated as a “mere scrap of paper” we are not at liberty to review the case, but under Rule 16, and the practice in regard thereto, it is our duty to dismiss the appeal for failure to comply 'with our rules. [Vahldick v. Vahldick, 264 Mo. 529 and cases therein cited..]

The appeal is therefore dismissed.

All concur.


author: PARIS, J.

text:
    JAMES E. TANNEHILL, Curator of Estate of RUTH E. TANNEHILL et al., Appellant, v. KANSAS CITY, CLINTON & SPRINGFIELD RAILWAY COMPANY.
    Division Two,
    July 5, 1919.
    1. NEGLIGENCE: Contributory: Demurrer to Evidence. If tbe evidence adduced by plaintiff proves bis own contributory negligence as a matter of law, and there is no room in tbe case for tbe lastcbance doctrine, defendant’s demurrer to tbe evidence should be sustained, altbougb the evidence also establishes defendant’s prima-facie negligence. In such case plaintiff’s evidence establishing his own contributory negligence destroys the prima-facie negligence of defendant. And a demurrer to his evidence in such case is certainly available where there is a defensive plea of contributory negligence, and on reason and authority it would be available without such plea.
    2. -: -: -: Bad Weather Conditions: Ringing Bell. Conceding that the failure of the trainmen to ring the bell or sound the whistle as the train approached a public-street crossing constituted prima-facie negligence on the part of defendant, and conceding further that bad weather conditions were prevailing, yet as plaintiff’s own evidence is to the effect that under ordinary conditions the driver of the automobile could have seen the train a quarter of a mile away from a place 400 feet from the crossing, and that the automobile was forty or fifty feet from the crossing when the driver last looked, and he went ahead, traveling up-grade at the rate of five or six miles per hour and could have stopped in a space of eight or ten feet, and without looking again, attempted to cross the track and the automobile was struck by the train, it must he held as a matter of law that the driver was guilty of contributory negligence, which, under the other facts, bars a right to recover damages for the death of the driver’s brother, sitting in the automobile.
    3. -: -: Imputed to Joint Owner. The contributory negligence of the driver is to be attributed to his brother who was a joint owner of the automobile, was engaged with him in a joint enterprise and was riding with him in the automobile at the time of its collision with a railroad train.
    4. -:-: Humanitarian Rule. If the driver of the automobile could see the railroad train for the first time when it was 200 feet from the crossing, it must be assumed that the trainmen could not see the automobile at a greater distance, and if the uncontradicted evidence is that the train could have been stopped only in from 400 to 600 feet, there is no place in the case for the humanitarian doctrine, that the trainmen could have stopped the train, after they saw the driver’s peril, in time to have avoided striking his automobile.
    Appeal from Cass Circuit Court. — Eon. Andrew A. WMtseft, Judge.
    Abrirme».

      L. M. Crouch, Parks & Son and Campbell & Campbell for appellant.
    (1) “Contributory negligence, as a rule, Is a matter of defense, which must be pleaded and proved by the defendant. When plaintiff makes out a prima-facie case, entitling him to go to the jury, the burden then shifts to the defendant, if he relies upon plaintiff’s negligence, to disprove and overcome that case, to the satisfaction of the jury. And the prima-facie case for plaintiff having been made out, the case can never be peremptorily taken from the jury,- for, however strong the countervailing testimony of plaintiff’s contributory negligence may be, its credibility and weight are for the jury.” Peterson v. C. & A. Ry. Co., 265 Mo. 462; Farrar v. Met. St. Ry. Co., 249 Mo. 230; Taylor v. Met. St. Ry., 256 Mo. 191, 1. c. 213, 215; Krehmeyer v. Transit Co., 220 Mo. 639; DeRousse v. West, 200 S. W. 783; Kennayde v. Railroad, 45 Mo. 2'55; Underwood v. Ry. Co., 190 Mo. App. 497; Thornsberry v. Ry. Co., 178 S. W. 197, 1. c. 200, par. 5; Hubbard v. Lusk, 181 S. W; 1028; Goebel v. United Rys. Co., 181 S. W. 1051; Montague v. Mo. & K. I. Ry. Co., 193 S. W. 935; Walker v. Wabash Ry. Co., 193 Mo. App. 249. (2) “On demurrer to the evidence, plaintiff is entitled to every favorable or reasonable inference arising therefrom.” Lamport v. Fire & Life Assn." Co., 197 S. W. 95; Hanser v. Bieber, 197 S. W. 68; .letter v. St. Joseph Terminal Ry. Co., 193 S. W. 956; Hendrix v. United Rys. Co., 193 S. W. 812; Montague v. Mo. & K. I. Ry. Co., 193 S. W. 935; Campbell v. St.. L. & Sub. Ry. Co., 175 Mo. 161. (3) the presumption of due care on the part of H. Earl Tannehill accompained him, as he approached the railway crossing, regardless of whether or not there was any evidence to show that he looked and listened for an approaching train. McQuitty v. Kansas City Southern Ry. Co., 194 S. W. 888; Underwood v. St. L. I. M. & S. Ry. Co., 190 Mo. App. 415; Hubbard v. Lusk, 181 S. W. 1031. (4) The demurrer should have been overruled and the case submitted to the jury, under the evidence in the case and under the pleadings under the humanitarian or last-chance doctrine. Ellis v. Metr. St. Ry. Co., 234 Mo. 657; Flynn v. Metr. St. Ry. Co., 166 Mo. App. 187; Bruening v. St. Ry. Co., 181 Mo. App. 264; Norders v. Metr. St. Ry. Co., 168 Mo. App. 172; Flack v. Railroad, .162 Mo. App. 659; Cole v. Metr. St. Ry. Co., 133 Mo. App. 440; McNamara v. St. Ry. Co., 133 Mo. App. 645; Delmar v. Metr. St. Ry. Co., 136 Mo. App. 443; Sheldon v. St. Ry. Co., 167 Mo. App. 404; Johnson v. Traction Co., 176 Mo. App. 174; Crutcher v. Railroad, 241 Mo. 137; Taylor v. Railroad, 256 Mo. 191; Strauss v. Railroad, 106 Mo. App. 153; White v. Railroad, 202 Mo. 539; King v. Wabash Ry. Co., 211 Mo. 1; Shipley v. Metr. Str. Ry. Co., 144 Mo. App. 7; Lynch v. C. & A. Ry. Co, 208 Mo. 1; Reyburn v. Railroad, 187 Mo. 575; Riñe v. Railroad, 100 Mo. 234; Krehmeyer v. Transit Co., 220 Mo. 639; Farrar v. Metr. Str. Ry. Co., 249 Mo. 220. (5) The negligence, if any, of Thos. P. Tannehill, could not be imputed to H. Earl Tannehill, for the evidence shows that H. Earl Tannehill was not driving the automobile, nor was he in any way exercising any control over the car. or in any way directing Thos. P. Tannehill in its control and management, but on the contrary Thos. P. Tannehill had the exclusive, control over its operation and management. Johnson v. Traction Co., 176 Mo. App. 185; Moon v. St. Louis Transit Co., 237 Mo. 434; Stotler v. C. & A. Ry. Co., 209 Mo. 146-148; Farrar v. Metr. St. Ry. Co., 249 Mo. 219; Sluder v. Transit Co., 189 Mo. 107; Ebert v. Metr. St. Ry. Co., 174 Mo. App. 45; Connor v. Railroad, 149 Mo. App. 675; Diskon v. Railroad, 104 Mo. 491; Baxter v. St. Louis Transit Co., 103 Mo. App. 598; Keitel v. Railroad, 28 Mo. App. 657.

      John H. Lucas, Wm. C. Lucas and D. C. Barnett for respondent.
    (1) There was no evidence on which to base a submission of either of the two alleged acts of negligence, viz.: Failure to sound the whistle or ring the bell. There was an entire failure of proof of either allegation. The rule is well established “when the evidence is of such a character that the trial judge would have a plain duty to perform in setting aside the verdict as unsupported by the evidence, it is his duty and prerogative to interfere before submission to the jury and direct a verdict for the defendant.” Jackson v. Hardin, 83 Mo. 175; Hite v. Metroplitan St. Railway Co., 130 Mo. 132; Warner v. St. L. & M. R. Railroad, 178 Mo. 132; "Waggoner v. Railroad, 152 Mo. App. 179; Weltmer v. Bishop, 171 Mo. 116; Sexton v. Met. St. Ry. Co., 245 Mo. 272; Burge v. Wabash Railroad, 244 Mo. 94. (2) The deceased was guilty of such contributory negligence as barred a recovery. McManamee v. Mo. Pac. Ry. Co., 135 Mo. 449; Huggart v. Mo. Pac. Ry. Co., 134 Mo. 679; Kelsay , v. Mo. Pac. Ry. Co., 129 Mo. 372'. (3) There is no room for the application of the humanitarian rule, and the claim therefor is without substantive evidence to support the contention. Keele v. A., T. & S. F. Railroad, 258 Mo. 77; McGee v. Wabash Railroad, 214 Mo. 541; Roilison v. Wabash Railroad, 252 Mo. 537; Phippin v. Mo. Pac. Ry. Co., 196 Mo. 343. (4) The final contention is that as the deceased was not driving the car he was absolved from the exercise of ordinary care, a contention unsustained in reason and unsupported by precedent. It was the duty of the deceased to look and listen for the approaching train, and this duty could not be shifted to his business associate. Burton v. Pryor, 198 S. W. 1120’; Erie R. R. Co. v. Hurlburt, 221 Fed. 907; Brommer v. Penn. Railroad, 29 L. R. A. 924; Coby v. Q., O. & K. C. Railroad 174 Mo. App. 648.
   PARIS, J.

Appellant as the curator of certain minor children of one H. Earl Tennehill, deceased, sued to recover damages for the negligent killing of the latter by a passenger train of defendant. Upon a trial nisi, the court at the close of plaintiff’s case in chief sustained defendant’s demurrer to the evidence. Thereupon plaintiff took a voluntary nonsuit with leave. Cast in his motion to set this nonsuit aside, plaintiff in the conventional mode appealed.

The grounds upon which plaintiff, pursuant to his petition, seeks to fix liability upon defendant, are: (a) The failure and neglect of defendant’s servants, agents and employees in charge of said train to sound the whistle or ring the bell upon defendant’s locomotive at the crossing where the decedent was struck and killed, and (b) the negligent failure to avoid striking and killing decedent at a place whereat he could and ought to have been seen in a position of danger in time to have stopped the train and thus avoided killing him. Defendant’s answer is a general denial and a plea of decedent’s contributory negligence.

Decedent, who lived at Garden City, Missouri, while riding in an automobile, was struck and killed, at a grade crossing of a public highway, called in the record the “Kenagy Crossing,” on December 18, 1914. The time was about one o’clock in the afternoon. The train was practically on time. The day was cloudy and overcast, damp and foggy, or misty. A light snow partially covered the ground, and the roads were muddy, or slushy. The railroad and the highway crossed at an angle of forty-five degrees.

Decedent and one of his brothers were returning to their home at Garden City from a trip to Clinton in an automobile. Decedent’s brother was driving the car, which car was jointly owned by decedent, the brother who was driving, and another brother. The curtains of the car were down as the car approached this crossing, though a view of objects to the side was obtainable through celluloid covered spaces, or windows, some seven or eight inches by twelve or fourteen inches in dimensions. Decedent was about thirty-five years of age, and slightly hard of hearing. His business was that of a real estate agent, wherein he seems to have been engaged with the brother in question, and perhaps with another brother, at his home town of Garden City.

The only eye-witness who testified upon the trial was the brother of decedent, who, as stated, was driving the car at the time the decedent was killed. Upon the testimony of this brother the ■ case, of necessity, must largely turn. He says that as he and decedent approached this crossing and, when at a distance of some 409 feet therefrom, he looked for an approaching train; that he knew a train was due from the south at about one o’clock, but that he did not know what time of day it was. Seeing no train, though from the point at which he looked a train coming as was the one which killed decedent could ordinarily have been seen when a quarter of a mile distant from the crossing, he continued driving. When he and decedent reached a point some forty feet from the crossing and while driving on an up-grade at the rate of five or six miles an hour, he again looked for a train. From this last point of observation, a train could ordinarily have been seen a quarter of a mile away, but on this day, on account of the prevailing weather conditions, the witness says, he could only have seen a train when the same was some 200 feet distant from the crossing. Seeing no train from this final point of observation, hearing none, and hearing no crossing signals, he looked in the other direction toward Garden City and continued driving until he reached the railroad track. There he suddenly saw the locomotive right upon him, and was instantly struck, and hurled with the car and decedent some 100 feet. From this impact decedent was fatally injured, dying in the afternoon of the same day, and the witness rendered unconscious for some few minutes. The automobile, this witness says, at the rate it was traveling when struck, could have been stopped in from eight to ten feet.

Whether the required statutory signals were given by sounding a whistle, or whether the train on this day and at this time was visible at a greater distance than that stated by decedent’s brother, is contradictory upon the record before us; some of plaintiff’s witnesses saying-these signals were given, some that they were not given, and some that if they were given the witnesses did not hear them. Touching the visibility of the train, so far as such visibility was affected by existing wheather conditions, some of plaintiff’s witnesses say they actually saw it on this day and at this time, while it was from a quarter of a mile to a mile and a half away. This, however, by the way, for the rule requires us here to apply every inference in favor of plaintiff, and to consider in his favor the very highest points shown by the proof. .

Since the case is a fact case, we will on this account reserve other facts for recital when we shall come to discuss what we deem to be the controlling law of the case.

I. As forcast, this case presents but one question; that question is, was the evidence sufficient to take the case to the jury? Plaintiff in effect contends, w^h absolute correctness, we think (if it were, or could here be, considered alone), that there was sufficient evidence of one element of negligence pleaded, that is, as to the failure of the defendant to sound the whistle or ring the bell upon the engine (Sec. 3140, R. S. 1909), as to constitute primafacie negligence, to take the case to the jury. In this connection, plaintiff urges upon us the rule stated in the case of Peterson v. Railroad, 265 Mo. 462, which rule he excerpts bodily from the syllabus of the case. Taking the rule stated in the Peterson case as his text, plaintiff insists that since contributory negligence is an affirmative defense, the moment a prima-faeie case bottomed upon defendant’s negligence is made out, every such ease must go to the jury, and therefore this case ought to have gone to the jury.

This view, we think, leaves out of consideration another controlling point by which the rule contended for is in a proper case always modified. That point is, that even if the plaintiff’s evidence make out a primafacie case, or, to be more exact, make out proof of defendant's negligence, yet if in developing such a case the evidence adduced by plaintiff also proves plaintiff’s own contributory negligence as a matter of law, then the case is not one for the jury, but is one for the couid, and the court ought to sustain a demurrer to the evidence. [Sissel v. Railroad, 211 Mo. 515.]

In the Sissel case, supra, Graves, J. upon a point presented in that ’case which was much similar, and wholly analogous upon principle, said at page 526, this: “Even though there was no plea of contributory negligence, yet the trial court would be authorized to take a case from the jury upon a demurrer to the evidence whenever it was shown by plaintiff’s own proof there was contributory negligence, such as to preclude a recovery. Without a proper plea of contributory negligence the defendant should not be permitted to show, affirmatively, by his proof, that there was contributory negligence, but where the witnesses for plaintiff disclose the facts, an,d the court is thus possessed of them, such court has but one course to follow, and that is to say that by plaintiff’s proof no case has been made. The rule which this court has followed is thus stated in 5 Ency. Plead. & Prac., p. 13: ‘The defendant may take advantage of contributory negligence which is shown in the development of the plaintiff’s case, although he has not pleaded it as a defense.’ ”

In the instant case, there is a defensive plea of contributory negligence. If plaintiff may not recover when his- own evidence, or evidence which he offers, shows contributory negligence as a matter of law, even when defendant has not pleaded such contributory negligence, then a fortiori he cannot recover in such situation when defendant has interposed this plea. Even the case of Peterson v. Railroad, supra, which seemingly is largely relied on by plaintiff, does not, when the facts in that case are examined, nor even when the language used is carefully read, bear out the rule contended for by plaintiff. For the learned writer of that opinion, in stating the rule which is urged upon us, was careful to restrict it to cases wherein the primafacie case had been made ont, thus clearly negativing its application to a case wherein, though prima-facie the negligence of defendant is shown, yet goes farther and destroys such prima-facie case before he stops offering evidence, by proving his own contributory negligence as a matter of law. The rule we cite from the Sis sel case is too well-settled for either dispute or cavil.

Applying this rule to the facts shown in evidence in the instant case, we are of the opinion that the plaintiff’s proof shows contributory negligence of decedent as a matter of law, and thus precludes plaintiff’s recovery. Numerous witnesses offered by plaintiff testified to having seen the train which killed decedent when it was from a quarter of a mile or a mile, or more, distant. Witnesses for plaintiff who were half a mile away at the moment the train struck the car could even see the car, or the debris therefrom, flying through the air. But we concede, of course, that decedent was not under the rule enjoined on us in this sort of case, required to see the train as others saw it. If there be a witness who says that the weather conditions prevailing prevented the seeing of it at so great a distance, the case, so far as this phase is concerned, is one for the jury. [Lamport v. Ins. Co., 197 S. W. 95; Hanser v. Bieber, 197 S. W. 68; Campbell v. Railroad, 175 Mo. 161].

The brother of decedent, who was in the car driving it at and prior to the moment at which the latter was struck and killed, says that he could have seen the train, under ordinary conditions, a quarter of a mile away, at a time and from a place whereat the automobile was 490 feet distant from the crossing. When decedent and his brother got within forty feet or fifty feet of the crossing, this brother again looked south down the track, in the direction whence the train was approaching, and saw — he says — nothing of this train. He then turned his head in the other direction, looking toward Garden City and away from the point whence the train was coming, and without again looking, continued to drive toward the track, traversing the forty-feet of distance, till the car went upon the track and was struck by the train. When the brother looked last, forty feet away from the track, he was in such a position that even the weather conditions. considered, he could have seen the train when it was 200 feet away. Ordinarily, he says, he could from this point have seen it when it-was more than a quarter of a mile away. The automobile was then going up-grade at the rate of five or six miles an hour, and could have been brought to a stop in eight or ten feet. In other words, there was space between the time the driver last looked, and the place and moment at which he tried to cross the track and was struck, to have stopped the car four or five times. There can be no other reasonable inference than that the driver was guilty of contributory negligence, which, if he had been hurt, would have precluded his recovery. We think the physical facts to be deduced from uncontradicted evidence admit of no other inference.

Other facts in the case indicate that the engine and the car both reached this crossing at about the same instant. The front wheel on the left-hand side of the car struck the pilot of the engine. The step upon the right-hand side of this pilot was badly bent, as also were the steps leading from the ground to the cab of the locomotive on this same side. Both wheels upon the left side of the car were demolished, and there was mud upon the right-hand cylinder and the driving rod of the locomotive.

Leaving this phase of the case to be again recurred to, we are further of the'view that the evidence also shows the contributory negligence of decedent himself as a matter of law. Asked touching' the actions of decedent at the moment the automobile approached this crossing, decedent’s brother said:

“Q. And he turned around and was looking back to the rear end of the car at the time and before this collision? That is a fact isn’t it? - A. At the time lie was.
“Q. Was looking back at the time of this collision, be wasn’t looking out in front of the car but was looking back gathering these packages that he was going to give to his children, in the back part of the car, -wasn’t he? A. He had just turned around.
“Q. Well it took sometime to turn around didn’t it, a second or so? A. Oh, it didn’t take so great length of time.
“Q. Took just about as long as it would take to stop the car wouldn’t it? A. About.”

The above excerpt shows, we think conclusively&wkey; and there is nothing in the record to destroy or minimize its force — that decedent was not looking when he was driven into the zone of danger. He was looking to the .rear instead of toward the south, or to the front, a period of time sufficient to have brought about the stopping of the car before the car went upon the track. The mathematics of the situation shows this conclusively. For if, as the only witness upon this point says, the train was running from twenty-five to thirty-five miles an hour, or if, as plaintiff’s counsel assume, the train was running thirty miles an hour, and the car, as the driver thereof says, was running six miles an hour, then when the car got within ten feet of the track the train was in full view and only fifty or sixty feet away. There was then yet remaining time to stop the car, for the driver swears it could have been stopped in eight or ten feet. From the same figures, it is likewise demonstrable that when the train came into view of the deceased and his brother two hundred feet away, the car was then forty feet from the track. The space "was sufficient, upon all the evidence, within which to. have stopped the car four times before reaching the zone of danger. All this is true, with but slight variations, whether we take the minimum or maximum speed of the locomotive and the car, and whether we take the minimum or maximum space within which the car could have been stopped.

In such a situation, what was said by this court in the case of Kelsay v. Railroad, 129 Mo. l. c. 372, applies: ‘ The duty of a traveler upon a highway, in approaching a railroad crossing, to use all reasonable precautions to ascertain the approach of trains and to avoid injury by them is well settled law, not only in this court, but perhaps of all the courts of this country. This rule imperatively requires him to look carefully in both directions, at a convenient distance from the crossing, before venturing upon it, if by looking, a train could be seen. The duty will not be performed by attempting to look only from a point at which the view is obstructed. The duty is a continuing one until the crossing is reached. If there is a point between the obstruction and the track which gives opportunity to see it is the duty of the traveler to' look. He can not close his eyes and thereby relieve himself of the consequences of his own neglect. [Hayden v. Railroad, 124 Mo. 566.] ”

But, recurring to the question in the negligence of decedent’s brother who was driving, if we were to take the view that decedent was himself free from actual negligence, we are yet of the opinion that the obvious negligence of his brother who was driving is upon the facts in this record, imputable to decedent. For this brother, as stated above, admits that after looking for the train, the time of passing of which he knew, when he was forty or fifty feet from the crossing, he then looked no more, but turned his gaze toward Harden City, which was in the opposite direction from that from which the train was coming, and continued to look in this direction till the instant at which the train was actually upon him and struck the car.

In such situation, the joint enterprise and joint ownership of the automobile considered, the negligence of the driver was imputable to the deceased. It is true, that by the great preponderance of authority the negligence of the driver of an automobile is not imputable to a mere guest, or to a passenger who is riding in the machine, but who has no authority 'either over the machine or over the driver thereof. [Dale v. Denver Tramway Co., 97 C. C. A. 511; Baltimore v. Maryland, 92 C. C. A. 335; Lininger v. San Francisco Ry. Co., 18 Cal. App. 411; Tousley v. Pacific Ry Co., 166 Cal 457; Porter v. Jacksonville Ry., 45 Fla. 692; Ind. Traction Co. v. Love, 180 Ind. 442; Hubbard v. Bartholomew, 144 N. W. 13; Corley v. Ry. Co., 90 Kan. 70; United Railways Co. v. Crain, 123 Md. 332; Littlefield v. Gilman, 207 Mass. 539; Terwilliger v. Railroad, 209 N. Y. 522; Tonseth v. Portland Co.. 141 Pac. 868; Hermann v. Rhode Island Co., 90 Atl. 813; Latimer v. Anderson County, 95 S. C. 187.]

The like rule has been applied to the negligence of the driver of an automobile for hire, in a case wherein the passenger merely gives directions as to the desired designation, but who neither has nor exercises any further control over either the machine, or the driver. [Rush v. Ry. Co., 157 Mo. App. 504; McFadden v. Lott, 161 Mo. App. 652; Thompson v. Ry., 165 Cal. 748; Roby v. K. C. Ry. Co., 130 La. 880; Meyers v. Tri-State Co., 121 Minn. 68; Wachsmith v. Railroad, 233 Pa. 465; Wilson v. Puget Sound Co., 52 Wash. 528; Galloway v. Detroit Ry. Co., 168 Mich. 343.]

But in the instant ease, decedent and his brother, who AA7as the driver of the car of which these two and another brother were joint owners, were engaged in a joint enterprise. They were returning to Garden City, whereat they were engaged as partners in the real estate business, from Clinton, to AAhich place they had been on some sort of business or pleasure, the record so far as we are able to find, not disclosing which. In such case, it is almost universally held that the negligence of the driver of the car is to be imputed to the other member of the joint enterprise. [Payne v. Chicago, etc., Ry. Co., 39 la. 523; Nesbit v. Garner, 75 la., 314; Donnelly v. Brooklyn Ry. Co., 109 N. Y. 16; Schron v. Staten Island Ry. Co., 45 N. Y. Supp. 124; Boyden v. Fitchburg Ry. Co., 72 Vt. 89; Omaha Ry. Co. v. Talbot, 48 Neb. 628.]

Here then, whether decedent and his brother were in their journey to Clinton upon either pleasure or business bent, they were neither master and servant, employee and employer, nor guest or passenger of the other. They owned the car jointly, they were upon a joint enterprise, either of business or' pleasure, and neither had any more or any less control of the car at the time than the other. In such case, it seems clear that the negligence of one part owner of the car, when engaged in a joint enterprise, is imputable to the other. So, upon either view, the ruling of the learned court nisi in sustaining the demurrer to the evidence was well taken.

II. But it is contended that there was a duty, arising from the humanitarian doctrine, to avoid injuring decedent. This contention upon the record before us deserves but short shift. The brother of decedent says that from a point forty or fifty feet from the track is was only possible to see the train when it was two hundred feet from the crossing. The only witness offered in the case to show within what space the train in question could have been stopped, at the rate it was running, swore that it could only have been stopped in from four hundred to six hundred feet. If decedent and his brother could see the train for the first time only when it was two hundred feet from the crossing, we may safely assume that the servants, agents and employees of the defendant in charge of its train could not see the automobile at a distance, on this day, greater than two hundred feet. Therefore,' if it requires a minimum of even four hundred feet within which to stop the train, no further comment is necessary. This view, of course, leaves out of consideration the testimony of other witnesses for plaintiff who swore that the train was in fact visible at a much greater distance than two hundred feet on this day. But none of these witnesses was at the point when they saw the train, that deceased and his brother occupied. Moreover, there inevitably arises in the case upon the latter view, a consideration of how far defendant was justified in concluding that decedent would stop before reaching the track,, in taking the course which defendant took. The learning upon the latter point is extensive, and we need not take up space here to discuss it. Merely remarking, in passing, that if it be in fact a duty incumbent by law upon a defendant railroad to stop its trains whenever those in charge thereof see an automobile within forty or fifty feet of a railroad crossing, and running only five or six miles an hour, it would require in many cases three or four days for a train to cross this State. But upon this point, and upon the rules suggested by what we have said, we may content ourselves with saying that the record herein is replete with facts showing that this is not a last-chance-doctrine case.

It results that the view taken nisi was correct, and this case ought to be affirmed. Let it be so ordered.

All concur.