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    CHARLES MUSSER et al., Appellants, v. CARRIE MUSSER et al., Respondents.
    Division Two,
    March 26, 1920.
    1. COMMON LAW: Pleading: Effect. The effect of the statute of Kansas which provides that “the common law as modified by the constitutional and statutory law, judicial decisions, and the conditions and wants of the people shall remain in force in aid of the general statutes of this State” extends no further than to assert the common law to he there in force as therein stated, and to render unnecessary any presumption that might otherwise obtain an account of that State not having been carved out of the original territory subject to the law of England. Considered in any other sense, the pleading of the statute is a mere conclusion.
    2. -: Definition: How Pleaded. The common law is not “a true body of law” in the sense that it is collected into a code or any particular book; but it began in statements- and principles announced in decisions of courts, which have been multiplied and modified by subsequent decisions, until they are regarded as accumulated and approved expressions of what is right and just. In this country, the common law is inseparably identified with judicial decisions, and what is the common law of any particular state is to be ascertained by an examination of its decisions, as precedents; and where an attempt is made to plead the common law of another state, the rules of decision of the courts of that State, as applicable to the particular case, are the things to be alleged, as the basis of the action. It is not sufficient to plead what counsel may think is the common law of the foreign state, but it, as well as its violations, must be pleaded with distinctive^ ness, as any other substantive fact.
    3.--: Pleading: Conclusions. In pleading the decisions of another state from which the common law therein is to be determined, pertinent parts of such decisions should be alleged, in order to avoid the charge of stating mere conclusions. If the common law of such foreign state is the basis of recovery or the constitutive fact of plaintiff’s case, mere conclusions as to what counsel may think the decisions of its courts may mean will not suffice.

      4. -:--: -: Private Charity. In a suit to construe a will, devising property in Kansas and probated in that State, the will was alleged to be invalid for that it attempted to create a private charity, in violation of the common law in force in that State, and the petition, after a general averment “that the common law in force in Kansas is and was in part at all times mentioned as follows,” proceeded, in several paragraphs, in some of them arbitrarily and in others argumentatively, to state what is alleged to be the law of Kansas relating to wills and charities and the powers and duties of the donee (a school district) in reference thereto, but alleging nothing either affirmative, definite or precise as to what is the actual common law of the State. Held, that it is essential that the common law of Kansas itself, as found in the court decisions of the State, be pleaded as any' other fact, and the petition is not good as against a general demurrer.
    5. -: -: -: Ultimate Facts. A petition, in stating the ultimate facts in regard to the common law of another state, relied on as the basis of the action, and not the law itself, is not sufficient. Ultimate facts are nothing more than issuable, constitutive or traversable facts essential to the statement of a cause, of action, and are not mere conclusions as to what the facts are.
    6. -: *-: Demurrer: Admissions. A general demurrer to a petition does not admit conclusions of law. Where the petition simply contains general averments as to what the common law of another state is, but does not plead that law itself as facts, a demurrer to it that it does not state -facts sufficient to constitute a cause of action does-not admit the common law of the State to ]?e what the averments allege it to be.

      7. -: -: Private Charity: Gift for Educational Purposes. The Supreme Court of Kansas has never decided that every public charity must be such as the State may lawfully maintain by public taxation. Therefore, an allegation in the petition to construe a will by which property was bequeathed “for the purpose of creating an endowment for the education of worthy young men and woman of a school district” in a named county, “preference to be given to those who ar'e orphaned,” that the will attempted to create a private charity, and that the gift was void because the object was not one which “the State its'elf ought and lawfully might endow and support with public resources,” does not and cannot state a cause of action, because there are no decisions of that State so holding.
    Appeal from Clay Circuit Court. — Hon.- Frank P. Divelbiss, Judge.
    Appirmkd.

      Carl G. Wagner, Frank T. Burnham, Frank W. Yale, and Ernest S. Ellis, for appellants.
    (1) The will, by its terms, refers to and provides that it shall be construed'under the laws of the State of Kansas. This reference and provision makes the law of Kansas as much a part of the will as though it had been inserted verbatim therein. Shulsky v. Shulsky, 98’ Kan. 69'; Chambers v. McDaniel, 28 N. C. 229; Vestry v. Bostwick, 8¡ App. B. C. 456; 40 Cyc. 1094, notes. (2) The trust sought to be created by the will is not a public charity, and is void on its face, under the laws of the State of Kansas, as being against the rule prohibiting perpetuities of title in.estates, because the fund provided can only be used for the benefit of certain persons to be selected and certified by the “school board” from a classification of individuals, which does not arise in the course of nature, but is wholly arbitrary and grows out of and only' exists in' the “private conventions, class associations and artificial distinctions of men.” Troutman v. DeBoissiere, 66 Kan. 1. (3) The power to appoint and certify beneficiaries sought by said will to be conferred upon the “school hoard” cannot be exercised. Its powers are fixed by statute and it cannot be the recipient of or exercise any power sought to be conferred upon it by an individual. Hence, the intended beneficihries of the trust cannot be legally ascertained and determined. Harwood v. Tracy, 118 Mo. 637; Dodson v. Scruggs, 47 Mo. 285; Re Hoffer’s Estate, 70 Wis. 407; Leman v. Sherman, 117 111. 657; Sinking Fluid Commrs. v. Walker, 6 How. (U. S.) 143; Shaw v. Payne, 12 Allen (Mass.) 293; Dunbar v. Soule, 129 Mass. 284; McClary v. McLain, 2 Ohio St. 3168; English v. Sailors’ Snug Harbor, 3 Pet. (U. S.) 99; 1! Perry on Trusts, sec. 296; 35 Cyc. 899 et seq.; 39 Cyc. 272, and notes; 28 Am. & Eng. Ency. (2 Ed.) 965; 12 Am. & Eng. Ency. 301. (4) But even if such power of appointment could be conferred upon the “school board” the provisions of the will are incomplete and insufficient to permit action thereunder, because no standard or measure of the required qualifications of beneficiaries is provided, and no means or method is named by which the facts necessary to be certified may be ascertained. In re Hauck, 70 Mich. 410; Fountaine v. Ravenel, 19 How. (U. S.) 368; Beek/man v. Bonsor, 23 N. T. 298; Grimes, v. Harman, 35 Ind. 220; Gallego’s v. Atty. Gen., '3 Leigh, 450; Dashiel v. Atty. Gen., 5 Piar. & Johns. 392; Hughes -v. Daly, 49 Conn. 34; Lepage v. McNamara, 5 Iowa, 124; White v. Fisk, 22 Conn. 31. (5) The trust attempted to be created by the will cannot be sustained as a public charity because the State and the public, through its courts, possess no “admitted right of visitation and control.” Troutman v. DeBoissiore, 66 Ivan. 1. On the contrary the will by its terms expressly precludes the courts from the exercise of such right and power.

      Dwight M. Smith and Goodwin Greason for respondents.
    (1) The attack upon the will in question being predicated upon the laws of Kansas, and no laws of Kansas that affect the validity of the will being- pleaded, the amended petition of plaintiff below stated no cause of action, and demurrer was properly sustained. Gibson v. Railroad, 225 Mo. 485; Rialto Co. v. Minor, 183 Mo. App. 128; McDonald v. Life Assn., 154 Mo. 628; Lee v. Mo. Pac., 195 Mo. 415; Coleman v. Lucksinger, 224 Mo. 14; Ginnochio v. Railroad, 155 Mo. App. 168; State v. Harty, 208 S. W. (Mo.) 837. (2) Since plaintiff’s amended petition alleges the common law to be in force in Kansas, and pleads no statute or decision of Kansas modifying it, a Missouri court in construing’; the will in question must presume the common law of Kansas to be the same as the common law of Missouri, as found in its own decisions. McPike v. McPike, 111 Mo. 226; Kollock v. Emmert & Co., 43 Mo. App. 570; Jordan v. Pence, 123 Mo. App. 324; Morrissey v. Wiggins Ferry Co., 47 Mo. 525; Bank v. Com. Co., 139 Mo. App. 124. (3) The will in question, under the laws of Missouri, creates a public charity of the most unimpeachable character. Crow ex rel. v. Clay County, 196 Mo. 261; Catron v. Scarritt Collegiate Institute, 264 Mo. 725; Robinson v. Crutcher, 209 S. W. (Mo.) 104; Strother v. Barrow, 246 Mo. 241; Sandusky v. San-dusky, 261 Mo. 357; Hadley v. Forsee, 203. Mo. 426; Buchanan v. Kennard, 234 Mo. -139; Buckley v. Monck, 187 S. W. (Mo.) 34; Cummings v. Dent, 189 S. W.-(Mo.) 1161; Sappington v. School Fund Trustees, 123 Mo. 32; Anderson v. Roberts, 147 Mo. 486; Lackland v. Walker, 151 Mo. 257; Chambers v. St. Louis, 291 Mo. 543; Howe v. Wilson, 91 Mo. 45; Powell v. Hatch, 100 Mo. 592; Barkley v. Donnelly, 112 Mo. 561;- Missouri Hist. Society v. Academy, of Science, 94 Mo. 466. (4) The will is equally valid under1 Kansas statutes and decisions, as well as general law relating to charitable trusts. Troutman v. DeBoissiere, 66 Kan. 1; Wash-burn College v. O ’Hara, .75 Kan. 700; Keeler v. Lauer, 73 Kan. 393; Secs. 9850, 9840, 9841, 7443., 7445, Statutes of Kansas. 1909; 5 R. C. L. 309; 11 C. J. p."361, sec. 20. (5) Since the will creates a valid public charity, and provides competent trustees to take title, the heirs-at-law have no interest in the estate, and the plan provided in the will for designating beneficiaries does not concern them. W. C. A. _ v. Kansas City, 147 Mo. 103; Academy of Visitation v. Cleminens, 50 Mo. 167; Crow ex rel. v. Clay County, 196 Mo. 261; Sandusky v. Sandusky, 265 Mo. 234; Glaze v. Allen, 213 S. W. 785; Mott v. Morris, 2491 Mo. 147; Barkley v. Donnelly, 112. Mo. 570; Harwood v. Tracy, 118 Mo. 661; 5 R. ó. L. 299, 309, 370 ;. 11 -C. J. 342.
   WALKER, C. J.

This action was brought in the Circuit Court of Clay County to obtain a construction of the will of Benjamin Musser. ' A demurrer to the petition, which alleged that it did not state facts sufficient to .constitute a cause of action, was sustained. Refusing to plead further, a judgment was entered against the plaintiffs, who thereupon appealed to this court.

The property devised was located in Jewell County, Kansas. The will provided for the probating of same in that county and that it was to be construed under the laws of that State.

The petition alleged the invalidity of the will in that by its terms it created a private charity, in violation of ‘ the common law in force in Kansas applicable thereto, and was hence void. The sufficiency of the petition is assailed as to the manner in which it pleads the existence of 'the common law in that State.

Under Section 9850, General Statutes of Kansas 1909 (Dassler), set forth in the petition, it is provided that “the common law as modified by constitutional and statutory law, • judicial decisions, and the condition and wants of the people, shall remain in force in aid of the general statutes of this State.”

The effect of the pleading- of this section extends no further than to declare the common law in force in Kansas as therein stated, and to render unnecessary any presumption that might otherwise obtain on account of that State not having- been carved out of the original territory subject to tbe law of England. Considered in any other sense the pleading- of this statute is a mere conclusion. [Gibson v. Railroad, 225 Mo. 473.]

Other sections of the statutes of Kansas pleaded are irrelevant to the determination of the matter at issue.

The manner in which the common law is pleaded is as follows:

"That the common law in'force and in effect in the State of Kansas is and was, at all the times herein mentioned, in part as follows:

"That where a conveyance or will attempts to create and vest property in trust in perpetuity in trustees and their successors for the benefit of beneficiaries therein designated, the instrument is void on its face as violating’: the rule against perpetuities of title in estates, unless the trust so attempted to be created constitutes a public charity.

"The beneficiaries of a valid public charity must partake of a quasi-public character. The public must be under obligations to them as a class; ais a class they must have some claim upon the public and that claim must be one founded in nature and cognizable by the instincts of a common humanity; it cannot be one growing-out of or existing in the private conventions or class associations or artificial distinctions of men. Public charities may be restricted to a particular 'class in the State or of its municipal divisions, but they must be general for all the designated class within the particular municipality. Such classification must be based on some obvious natural distinction, having reference to the merits hoped to be attained. It must not be arbitrary or artificial. The class must stand in a natural and meritorious relation to the public at large. A gift for a general public use must be for an object which the State itself ought or lawfully might endow and support with public resources.

"The rule against perpetuities was devised to prevent the perpetual entailment of estates and to give them over to free conveyance. That rule should not be relaxed except in the interest, of the general public, and it is not relaxed except where the public itself holds- the title and is the trustee, or, if not holding the title and acting’ as the trustee, possesses an admitted right of visitation and control.

“The right and power of visitation on the part of the State is lodged in the courts having'; equitable jurisdiction, to be exercised at- the instance of the Attorney-General of the State, and unless the trust be of such a nature. as that the Attorney-General might bring an information in the courts to enforce its administration it cannot be a public charity.

“In the State of Kansas, the public duty which the Attorney-General may sue to enforce, or the public wrong which he may sue to prevent, must be a duty or a wrong affecting' the whole community or affecting the community in general, or a matter affecting the interests of the entire public. A charity which the Attorney-General of the State of Kansas can sue to enforce or conserve must be a charity of a character so public as to interest the whole community — the community in general — the entire public.”

I. Remote as the inquiry may seem upon a, superficial consideration of the subject, the question as to what is meant by the “common law in force in Kansas” demands solution before it can be intelligently determined whether the petition is, as was held by the trial court, fatally defective in not properly pleading that law.

The opinions of many of our courts of last resort, including our own, state generally that the common law “imports a system of unwritten law not evidenced by statute, but by traditions and the opinions and judgments of the sages of the law.” The Supreme Court of the United States has in several instances (West. U. Tel. Co. v. Call Pub. Co., 181 U. S. 92 ; Kansas v. Colorado, 206 U. S. l. c. 96) answered the inquiry by quoting the language of Kent (1 Com. 471) that “the common law includes those 'principles, usages and) rules of action applicable to tbe government and security of persons and property, which do not rest for their authority upon any express and positive declaration of the will of the Legislature.” These definitions afford us little aid in the present inquiry. In what manner is it to be determined according to any definite and uniform plan' which will serve as a rule for judicial guidance, what the “traditions” are and who are the sages “whose opinions and judgments” are to enlighten us as to what constitutes the common law? If “principles, usages and rules of action” are to afford the required enlightenment, in what do these essentials consist, from what sources are they to be derived and how is their uniformity to be determined in any particular ease ?

There is, says Mr. Justice Ewart in effect in discussing this question (40 Can. L. J. 95), “a short way of settling it. If there was or is any true body of law known as the Common Law, apart from the decisions of the courts, let him who asserts the fact quote or otherwise refer us to a single item of it. The Leges Barbar o-rum we know; the laws of Justinian we know; the laws of the Twelve Tables (B.C. 509') we know; even the laWs of Hammurabi of Babylon (B. C., say 2250) Ve know, and can, quote from. Will somebody please furnish us with an extract from the "Common Law of England? .

“Surely this can easily be done. Go to the law reports and read to us. The judges, if they were deciding according to this ‘ true body of law, ’ will undoubtedly so indicate. No, these modern judges seem to know nothing, of it. Open, then, these musty old Year Books; thumb them all. No? Try the Rolls — 'back as far as John’s reign. Nothing there? Well, don’t despair; in the works of Bracton (Chief Justiciar of England 1265'-1267) or in those of Glanvil (the oldest writer on English jurisprudence, and Chief Justiciar of England in the reign of Henry II) there must be some trace of this 'true body.’ Not a word?

“Well, where did these judges and writers get the law that they tell us of?' Mr. Justice McClain would answer: •

" 'By ascertaining what it was customary for English judges to decide in like cases. The reading of Bracton, himself, beyond the introductory pages, proves conclusively the fact. ... He refers to decisions of the courts, although he is compelled to do so from current or personal knowledge, as reported decisions were as yet apparently unknown, .and.. instead of, announcing general principles, borrowed from any code, or pandects, or digests, he tells what was decided in air assize of mort d ’ancestor, &c. . . . His successors, were the digesters and abridgement-makers — Fitzherbert and Brooke and Rolle and Viner — and these men concerned themselves with the decisions, of the English judges and prepared the way for Coke and Hale and Blackstone, the great expounders of the distinctively English system of law.’ [Address, American Bar Assn., 1902'.]

"If I am to be told that nobody says .that anybody can give extracts from the Common Law, and that what is meant is that ..the Common Law consisted of certain well known principles upon which the decisions were based, then I ask prof ert of - one of these principles. And if it be alleged that production is impossible, for that the said principles were in the mind or heart, or consciousness, of the people, and not otherwise or elsewhere, I still require at least a hint as to what they looked like before believing in their corporeality.”

Prior to the appointment by William I. of a Chief Justiciar, who was a permanent judicial officer, having-supreme jurisdiction throughout England, there may have been in existence customs and usages by which law was crudely administered by the Saxon local folk courts, but when professional judges were created, which followed the appointment of the judicial officer, they at once commenced to reduce the tangle of customs and usages to order and to construct that system which has for its ultimate aim the ascertainment of rules which shall regulate human relations in accordance with the common sense of right. [Nature of Positive Law, Light-wood.]

The Supreme Court of the United States in the case of Kansas v. Colorado, supra, at page 96, after quoting the passage from Kent referred to, declares the true rule in regard to what constitutes the common law, to this effect: “that it does not rest on any statute or other written declaration of the sovereign, hut there must, as to each principle thereof, he a first statement. These statements are found in the decisions of courts and the first statement presents the principle as certainly as the last. Multiplication of declarations merely adds certainty. For, after all, the common law is but the accumulated expression of the numerous judicial tribunals in their efforts- to ascertain what is right and'just between individuals in respect to private disputes. ’ ’

Mr. Lightwood, in his learned treatise on the Nature of Positive Law (p. 359), says that “all law is made either directly by way of statute or obliquely by judicial decision. These are decided to be the only modes in which law can be made. Hence it does not exist by virtue of being customary to or in accordance with legal opinion or with natural law.”1

Mr. Pomeroy says “that the initial activity in creating the common law of England was done not by Parliamentary legislation, nor by royal decrees, but by the justices in their decisions of civil and criminal causes.” [Eq. Juris, sec. 13.]

Says Mr. Austin,, after reviewing the entire subject: “There can be no law -without judicial sanction and until a custom has been adopted as a law by courts of justice it is always uncertain whether it will be sustained by that sanction or not.” [II Lectures on Juris., p, 504.]

Thus it will, be seen that the common law in this country is inseparably identified with the decisions of the courts. “Even if we were to assume that the adoption of the common law of England means the .adoption of a single system or one uniform and consistent set of principles, usages and rules of action applicable to the government and security of persons and property, we are yet forced to recognize that each of the separate states has. adopted the common-law principle of the authority of precedent, and acts on the theory that what its courts decide is the real common law governing each question passed on.” [Pope, Com. Law in U. S. 24 Harv. L. R. 12.]

If, therefore, we are to continue to recognize the authority of precedent, it is essential in determining what the common law is in re'spect to any question, to refer1 to the decisions of the courts of last resort therein. These, if sufficiently comprehensive, are decisive of the case. Precedents elsewhere established by courts under the common-law system, whether in England or one of our States, may serve as .guides to a court in the absence of its own former rulings, in determining what the applicable principle of the common daw is in a given case. Further than this their province is purely persuasive and they rise to the dignity of rulings in a particular jurisdiction only when given judicial sanction. When, therefore, it is pleaded, as it is in the case at bar, that the matter at issue is to be determined by the common law in force in a particular jurisdiction, we ascertain what that law is by an examination of the decisions of the courts. Their importance in the determination of the question is* thus made manifest, and is emphasized where, as here, the law invoked is substantive or forms the basis of the action. Where this is true the pleading of the law becomes an essential averment. [Hazelett v. Woodruff, 150 Mo. 589, 51 S. W 1048; Clark v. Barnes, 58 Mo. App. 672; Banchor v. Gregory, 9 Mo. App. 104; Mystic Legion v. Brewer, 75 Kan. 734.]

II. The general rule, leaving out of consideration for the moment any distinction between the manner in which the common or the statute law of a State is to bo pleaded, is that where one relies upon the law ^ another State to sustain his cause of action, he must not only state with distinctness what that law is, as in pleading] any other substantive fact, but also the facts which constitute its violation, that the court may be enabled to judge of its effect. Mere conelusions as to what counsel may think the law means will not suffice. [Wentz v. Railroad, 259 Mo. 450, 168 S. W. 1166, 40 Ann. Cas. 317; Gibson v. Railroad, 225 Mo. l. c. 483; Coleman v. Lucksinger, 224 Mo. l. c. 14.] In pleading decisions of other States from which the common law therein is to be determined, to avoid the charge of stating mere conclusions, pertinent parts of such decisions should be alleged. [Miller v. Chinn, 195 S. W. l. c. 554; Malott v. Harvey, 204 S. W. 940; Lillard v. Lierly, 200 Mo. App. 144, 202 S. W. 1057; Ginnochio v. Railroad, 155 Mo. App. l. c. 168; 91 Ency. Pl. Pr. 543.] These cases sufficiently announce the rule in this jurisdiction and it is not deemed necessary to burden the opinion with like rulings from courts of last resort elsewhere. While the rule as to what constitutes a sufficient pleading of a foreign law when the same is a constitutive fact in a case, may be deduced from the foregoing statement of general principles, illustrations drawn from adjudicated cases afford more definite criteria as to the distinctive differences between conclusions and direct and positive statements of fact.

In Wabash Railroad Co. v. Hassett, 170 Ind. l. c. 376, the Supreme Court, in ruling upon a demurrer to the petition, had under consideration the following allegation as to the common law of Illinois: ‘ That by the common law of the State of Illinois on October 13-14, 1905, employees of railroad corporations operating lines of railroad in such' State were fellow-servants only when such employees were brought together in direct co-operation in the performance of a particular work at the time, etc.” “This,” said th© court, “is manifestly no declaration as to what the common law of Illinois was upon the dates named; but, without setting out the substance of such law with regard to fellow-servants, the pleader has interpreted it for himself and merely alleges his conclusion as to its legal effect. This allegation is insufficient as against a demurrer for want of facts.”

In Phinney v. Phinney, 17 How. Pr. 197, it was alleged that “under the laws of Spain a person became seized of certain real estate.” In ruling upon a demurrer to the complaint the Supreme Court said.: “This kind of statement involves a mere conclusion or inference, in which the plaintiffs, it will he readily seen, may be greatly mistaken. In effect it expresses an opinion; of the law and asks the court blindly to adopt it, without giving the court the necessary materials to test its correctness. Foreign laws are - mere facts, and, like other facts, must be set forth and proved.” The demurrer was sustained.

In Cubbedge & Co. v. Napier, 62 Ala. 518, the averment that at the time of the execution and delivery of a note and mortgage under and by virtue of the laws of Georgia, ‘ ‘ all title to property made as a part of a usurious contract or to evade the usury laws of the State are void,” was held bad as not being an averment of fact, but a.conclusion of the pleader.

In Lomb v. Pioneer S. & L. Co., 96 Ala. 430, 11 So. 154, an averment that a note and contract were according to the laws of Minnesota legal, valid and non-usurious and that it is provided by the law of that State that premiums taken for loans made by a building and loan association shall not be considered or treated as interest, nor render such associations amenable to the usury laws, is bad because it is a statement of a conclusion and not of a fact.

In Templeton v. Sharp, 10 Ky. L. Rep. 499, 9 S. W. 696, an allegation that the legal rate of interest in another State is ten per cent and that the stipulation in a> note to pay that rate is lawful and enforceable, is bad, in simply stating’ the pleader’s conclusion.

In Thomas v. Gr. Tr. R. Co., 1 Penne. (Del.) 593, 42 Atl. 987, a plea in an action against a carrier for nondelivery of goods which states facts alleged by plaintiff to be in violation of the the custom laws of Canada and alleges that by reason thereof the goods were seized in transit, is bad in not setting out the terms of the foreign law. More definite even that the foregoing is the ruling of the Supreme Court of Alabama in Forsyth v. Preer, 62 Ala. 443, that a general statement of p, foreign law ig insufficient, it being essential that the law itself be substantially pleaded as any other fact.

There is a line of cases of which Angell v. Van Schaick, 132 N. Y. 187, is a type, which holds in pleading the construction of the laws of another State by its courts, that the facts on which the decision is based need not be set out, nor the title of the case, or when it was rendered; these cases hold in addition, however, that it must be distinctly averred what the courts of the State did decide in construing the law. While no specific ruling on the exceptions noted in the Angelí case has been made in this jurisdiction, it seems more in accord with that certainty and precision of pleading required by our code, that in addition to a specific statement of the facts as to what the law of the other State is, a direct reference should be made to where the court’s ruling may be found.

III. Aided by the foregoing cases, to which others of like import might be added but for' the risk of unduly lengthening this opinion, we come to a consideration of that portion of the petition at bar upon which plaintiffs ^ase their cause of action. After a general averment “that the common law in force and in effect in, the State of Kansas is and was in part at all the times mentioned as follows,” several paragraphs are added which set forth sometimes abstractly and at other times argumentatively what is alleged to be the law of Kansas relating to wills and charities and the powers and duties of members of school boards. Other than the initial sentence quoted there is nothing either affirmative, definite or precise in these averments. The rule applicable to all allegations of this character that they shall be so framed as to inform the court what the foreign law is, where it may be found and the facts which constitute its violation, is in no sense complied with. [Am. Bank v. Lang, 2 N. D. 66, 49 N. W. 414; Armendiaz v. De La Serna, 40 Tex. 291; Dunham v. Holloway, 2 Okla. 78, 41 Pac. 140; Stockton v. Lehigh, 14 Phila. 77.] As we said in effect in a well considered opinion by Blair, J., in Furlong v. German-Am. Press Assn., 189 S. W. 385, the language employed, constitutes but bald allegations of the petition and lienee insufficient to properly plead the Kansas law. If enough affirmative allegations could be gleaned from these statements to enable it to be determined therefrom what the law relied upon is, we would not feel authorized in holding the pleading insufficient, although otherwise encumbered with statements couched in the form of legal conclusions, but allegations of the character required do not appear. [State ex rel. Peet v. Ellison, 196 S. W. (Mo.) 1103; State ex inf. v. Armour P. Co., 265 Mo. l. c. 144.]

The contention that the petition is sufficient in its stating what the ultimate facts are in regard to the law relied upon, despite the fact that it may contain the defects stated, involves .a contradiction apparent to anyone familiar with legal terminology, and bence without merit. Ultimate facts are nothing more than issuable, constitutive or traversable facts essential to the statement of the cause of action; if these had Peen pleaded, the petition would have been free from the designated defects. [Caywood v. Farrell, 175 Ill. 480, 51 N. E. 775; Read v. State Ins. Co., 103 Ia. 307, 64 Am. St. Rep. 180; Meyer v. School Dist., 4 S. D. 420, 57 N. W. 68 1 Estes’ Pl., sec. 190.] It is scarcely necessary to add that it is axiomatic that legal conclusions cannot be pleaded as ultimate facts (31 Cyc. 70).

Furthermore, contention of plaintiffs that defendants have admitted the existence of the common law of Kansas as to what constitutes a public charity is not tenable. It is elementary that the admissive force of a demurrer has no application to conclusions of law. [State ex rel. v. Harty, 208 S. W. l. c. 837; Maniaci v. Ex. Co., 266 Mo. l. c. 642.]

IY. Our holding that the failure of the petition to state a cause of action in so far as it attempts to plead the common law of Kansas relied upon by plaintiffs, is sufficient to authorize an affirmance of the judgment herein. [Mallinckrodt Chem. Wks. v. Nemnich, 169 Mo. l. c. 397.] We have in addition, however, reviewed the decisions of the Supreme Court of that State to determine if, under a proper pleading, plaintiffs’ contention could be sustained. The only case the language of which lends support to plaintiffs’ contention is that of Troutman v. DeBoissiere, 66 Kan. 1. While there is language in the opinion in that case declaratory of the conclusions employed by plaintiffs, we find upon an analysis that it is largely arguendo or an expression of the views of the judge writing .the opinion. The decisive issue in that case .was subsequently discussed and determined by the Supreme Court oi; that State in Washburn College v. O’Hara, 75 Kan. l. c. 702.

The residuary clause of the will in the Washburn case was assailed on the ground that it created a trust which was not a public charity. Troutman v. DeBoissiere was cited as being directly in point and controling upon this question. The Supreme Court of that State in ruling thereon in the Washburn case said: “The argument of the defendants in error is founded chiefly .upon a statement in that opinion which reads: ‘A public chaiity is a gift to a public object which the State itself, with public resources, should, or lawfully might, foster. ’ This proposition does not appear in the syllabus and is not the question upon which the court divided. It cannot be said, therefore, that the court intended to decide that every public charity must be such as the State may lawfully maintain by public taxation. The real point decided was that in the trust there being considered the beneficiaries were limited to such an 'extent that the gift could not be regarded as a public charity. The statement was used in. the opinion by way of an argument to illustrate the general scope and extent of a trust which may be properly classed as a public charity. In that case the fund provided could only be used for the benefit of the orphans of deceased Odd Fellows of the State of Kansas. This limitation excluded it from the category of public charities.” I

The will in the Washburn case in a residuary clause bequeathed the remainder of the testator’s estate in trust to the trustees of an incorporated educational institution, to be held, by them as a perpetual fund for the higher education of young men t.o be selected by trustees for the Christian ministry. It was held that such a bequest created an educational trust which is a public charity. There are no other rulings of the Supreme Court of that State as to the adoption of the common law applicable to the facts in the instant case. The ruling principle in the Washburn case is in no wise different from the rule as to public charities adopted in Missouri.

The devise and bequest in the case at bar was “for the purpose of creating an endowment fund for the education of worthy young men and women of a school district in Jewell County, Kansas, preference to be given by the trustees to -those who are orphaned or who are fatherless or motherless arid who are desirous or worthy of help in obtaining a higher education. ’ ’

Under ouir rulings the trust created by this will is educational in its nature and constitutes a public charity. [Robinson v. Crutcher, 277 Mo. 1, 209 S. W. 104; Catron v. Scarritt Coll. Ins., 264 Mo. l. c. 725; Strother v. Barrow, 246 Mo. 241; Buchanan v. Kennard, 234 Mo. 117; Crow ex rel. v. Clay Co., 196 Mo. l. c. 260.]

Prom all of which it follows that the judgment of the trial court should be affirmed and it is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, J. WALKER, C. J.

license: Public Domain

text:
    THE STATE ex rel. KANSAS CITY v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    April 1, 1920.
    1. CONFLICT IN OPINIONS: Reference to Pleadings and Instructions: Part of Record for Review. Reference to the pleadings and instructions in the opinion of a ' Court of Appeals, though it neither outlines-the petition or answer nor sets out the substance of the instructions with clarity, is sufficient to make both the pleadings and instructions a part of the opinion for purposes of review upon certiorari. Reference to a written instrument by the opinion of the Court of Appeals makes such instrument as much a part of the opinion as if fully set forth therein.

      Held! by WALKER, C. J., dissenting, with whom WILLIAMS, X, concurs, that the purpose of the constitutional provisions authorizing the Supreme Court, upon certiorari, to review an opinion by the Court of Appeals, was to prevent a,conflict between the decisions of the two courts, and cannot be 'extended beyond that purpose without impairing their constitutipnal jurisdiction to render final decisions in cases over which they are given appellate jurisdiction; that the review should be restricted to the conflict manifested by the opinion Itself; that the Supreme Court’s restriction upon its power of review, to pleadings, instructions and documents referred to in the opinion, is purely arbitrary, and can by a like arbitrary ruling be extended to a review of the whole transcript of the testimony and other evidentiary facts.
    2. -: Attractive Nuisance: W-aU About Park. A wall about a city park, twenty feet in height in places, but its height depending on the topography of the ground, topped with a coping thirty inches wide, is not an attractive nuisance, within the doctrine of the turntable cases, to a child,'an invitee of the city, who, in play, enters upon the wall at a low place, and falls from it at its highest place, and the Court of Appeals, in approving an instruction which submitted to the jury that theory of negligence, contravened Kelly v. Benas, 217 Mo. 1. c. 13; O’Hara v. Gas Light Co., 244 Mo. 1. c. 404, and Buddy v. Union Herminal Ry. Co., 276 Mo. 276.

      Certiorari.

    Wbit quashed.

      E. M. Barber and A. F. Smith for relator.
    (1) The trial court erred in refusing' to give the peremptory instructions asked by the defendant, and' the decision of the Court of Appeals affirming its rulings in that regard is at variance with controlling1 decisions of this court, (a) A person has a right to u;se only1 that part of public property to which he is invited, either expressly or by implication. There being no invitation, express or implied, to use that part of the park on which plaintiff was playing at the time of his injury, the city is not responsible for his injury,. Ely v. St. Louis, 181 Mo. 729; Glaser v. Rothschild, 221 Mo. 185. (b) The city had, and exercised, the right to restrict by ordinance the use of its parks as playgrounds. The ordinance offered in evidence made it unlawful to use that part of the park on which plaintiff was playing at the time of his injury. The plaintiff has never questioned the validity of this ordinance, and it must therefore be given full force and effect. Roper v. Greenspon, 272 Mo. 296. (c) The wall in question was not such an “attractive nuisance”1 as to constitute an invitation to plaintiff to play upon it. O ’Hara v. Laclede Electric Co., 244 Mo. 404, 407,; Kelly, v. Benas, 217 Mo. 1; Buddy v. Union Terminal Ry. Co., 207 S. W. 821. (2) Plaintiff’s instructions assumed against the defendant facts which were at issue; they were so worded as to confuse the questions at issue, and thus mislead the jury; they placed upon the defendant the duty to exercise a degree and amount of care not required by law, and they submitted issues not properly before the jury. The decision of the Court of Appeals approving1 the giving of these instructions is contrary to controlling decisions of this court. James v. Mo. Co., 107 Mo. 484; Ganey v. Kansas City, 259 Mo. 663; Hipsley v. K. C. Co., 88 Mo. 354; Baustian v. Youngs, 152 Mo. 325; Young v. Webb City, 150' Mo. 341, and cases supra.

      Isaac B. Kimbrell and Martin J. 0’Donnell for* respondent. <
    (1) The opinion of the Court of Appeals, in construing the ordinance mentioned in the opinion, is not in conflict with any prior decision of this court for the reason that this court has never construed said ordinance. State ex rel. v. Sturgis, 276 Mo. 599. (2) The opinion is not in conflict with that of this court in Ely v. St. Louis, 181 Mo. 723, for the reason that this court in that case found that the place alleged to be a public street in that case was not, while here the opinion finds that the coping from which plaintiff fell was included in the public park and that plaintiff had been invited to use the coping and' that he fell into the chasm or precipice which the defendant negligently failed to fence. Under the authorities the verdict was therefore for the right party. Healy y. City, 211 S. W. 59; Kuenzell v. City, 212' S. Wi 876; Carey v. City, 187 Mo. 715.; Capp. v. St. Louis, 251 Mo. 256; Jenson v. City, 181 Mo. App. 369; Longwell v. City, 203 S. W. 657. (3i) The claim by relator that this is a “turntable case” and that this court has concluded not to allow a child to recover in the future when he invokes that doctrine is contradicted by the opinion which expressly finds that the plaintiff was using the park and the coping, which was part of same, under the rules provided by the park board and at the invitation of relator. Furthermore, the turntable doctrine, though badly bent by some recent decisions of this couih, is not yet broken. Carey v. City 187 Mo. 715; Bjork v. City, 135 Pac. 1009; Price v. Water Co., 58 Kan. 551; Pekin v. McMahon,-45 Am. St. 114, 154 111. 141. (4) Even had the trial court in its instructions assumed that certain facts put in issue by the pleadings were conclusively established by the evidence, yet an opinion approving such instructions would not conflict with the prior decisions of this court, but would be strictly in accord with same. Fullerton v. Fordyce, 121 Mo. 113; Davidson v. Transit Co., 211 Mo. 356; Donovant v. Co., 188 Mo. App. 93; Ragan v. Railway, 144 Mo. 623 ; Setebier v. Railway, 203 Mo. 702. (5) This court on certiorari cannot properly quash a judgment of the Court of Appeals for failure to reverse because of the giving of instructions, for it often happens that the appellate court finds that the verdict is for the right party, and in such case the statute and the common 'law prohibits a reversal because an erroneous instruction may have been given. Thompson on Charging the Jury, secs. 117,118; Sec. 2082, R. S. 1909; State ex rel. v. Reynolds, 270 Mo. 589. (6) The relator’s abstract of the record does not include the judgment of the trial or appellate court, nor does it include the record entries of the Court of Appeals, and consequently this court on scrutinizing the record 'will dismiss the case on its own motion. State ex rel. Pedigo v. Robertson, 181 S. W. 987; ITuston v. Allen, 236 Mo. 645; Hays v. Foos, 223 Mo. 423..
   GRAVES, J.

Certiorari to the Kansas City Court of Appeals. By this proceeding it is sought to have this court quash the judgment of the Court of Appeals in the case of Russell Barnett, by next friend, respondent, v. Kansas City, appellant.

The opinion of the Court of Appeals neither outlines the petition nor answer in the case, although, reference, in a way, is made to both. Nor is the substance of the instructions considered by the opinion set out with clarity in the opinion. 'In the opinion we find this brief reference to the instructions:

“Defendant has presented a great number of criticisms to the instructions given for plaintiff. Instruction No. 1 covers the case as made by plaintiff and we do not find any substantial objections to it. It is supported by the petition and the evidence.

“Instruction No. 2 is no more than a harmless abstract statement of the law. The only objection made is that it is said to compel the city to keep all parts of the park reasonably safe for children. We must read the instruction in connection with the evidence. There is no dispute as to the parts of the park where children usually played and'where plaintiff was playing when hurt, and, allowing to the jury any common sense, they knew the question was whether care and prudence required defendant to have it reasonably safe at those places; and that was stated in Instruction No. 3.

“That instruction submitted whether the coping at the place where plaintiff was playing was attractive to children as a part of the recreation ground. That was no more than submitting to them whether it was not a part of the park likely to be chosen by children who frequented the grounds in quest of amusements they were permitted to enjoy there.

“Instructions Nos. 4 and 5, relating to the definition of negligence and the measure of damages, are not objectionable.

“Six instructions were refused for defendant. If what we have written is correct, they were properly refused. They consisted chiefly in absolute declarations as matters of law and were ini practical effect demurrers to the evidence.”

The evidentiary facts of the case are thus set out in the opinion:

“Plaintiff, a boy eight years of age, instituted this action through a next friend, for damages resulting in serious injury to him by falling from the top of a retaining- wall to the street below, a distance of nearly twenty feet. He recovered judgment in the trial court.

“At an elevated place within its limits the defendant city maintains a large reservoir which has a tract of,, land surrounding it, set apart and maintained by the city as a public park, known as ‘Observation Park.’ The reservoir is enclosed with a wire fence and around it is a gravel walk about six feet wide. The topography of the ground and the grading- of the streets about it left precipices. These were supported by high stone walls topped with coping about 30 inches wide. At least one stone stairway led up from the street to the reservoir, There were seats in the park space and the public were free to go there at will. Band concerts were given of evenings, when thousands of people, half of them children, would attend. Children were in the habit of playing there. It was common for them to ‘ run races ’ on the gravel walk around the reservoir, and to walk around on the coping. A watchman in charge knew this. There was evidence tending to show that the watchman ordered boys to keep- off the grass and the rock wall. A boy twelve years old testified that boys, including himself, played at that part of the park. That he had lived near there ‘quite awhile and used to play there all the time.’ That at the time plaintiff was hurt, the boys ‘were divided into two armies and had been playing -soldier about an hour and a half or more before he [plaintiff] got hurt.’ There was also evidence tending to show that the watchman at other times than the time In question ordered the boys to keep, off the grass. That at times when boys would get on the wall he (the watchman) would run them off and tell them to stay off, ‘that we would get hurt — once in a while maybe. ’ On the day of his injury, a number of boys, including plaintiff, were playing ‘American Soldier,’ and this included running on the top of these retaining walls. They were higher in some places than others and in some parts the ground sloped u.p from the top of the wall to the reservoir. At a place where it was about twenty feet down to the paved street plaintiff was on the wall engaged in' the. play, when, as he testified, ‘ another boy started to come along and I thought lié was going to hit me and stepped backward and stepped off, ’ falling to the bottom.

“There was abundant evidence tending to show knowledge on the part of the city that children were in the habit of playing in the park, and we readily approve of the action of the trial court in refusing defendant’s demurrer to the evidence.”

This is the outline as gathered from the opinion, but the horizon broadens when we go to the pleadings and instructions referred to. in the opinion.

The negligence charged is thus stated in the petition:

“Plaintiff further states that it was the duty of defendant to exercise reasonable care to prevent injury to patrons of said park; to erect and maintain a proper and sufficient fence and gnards at or near the edges of said precipice so created by said parkway and said coping*, and particularly at and near the southeast corner of said block, near'the intersection of said Twenty-first and West Prospect streets, to prevent children engaging in playing or walking in said parkway and on said coping from falling over the precipice to said Twenty-first Street and being killed and injured, and also to have said parkway and coping properly watched and guarded, to prevent children from falling over said precipice.

“Plaintiff further states that defendant negligently failed to provide any fence or protection whatsoever on the said coping and between it and said park and parkway, and negligently failed to have same properly watched or guarded for the protection of children, as aforesaid. ’’’

After a general denial, and a plea of contributory negligence, the answer, thus proceeds:

“Defendant further says that by Section 1046 of the Revised Ordinances of Kansas City, approved February 2, 1910, it was provided that ‘no person shall play any game whatsoever in or upon any of the parks, boulevards, avenues, streets, parkways or park roads under the control of the Board of Park Commissioners; provided, however,' that ball, cricket, lawn tennis and other games of recreation may be played upon such portions of said parks as may be designated from time to time by the Board of Park Commissioners, and under such rules and regulations as! may be prescribed by said Board. The grass plots or lawns of public park and parkways shall not be used by any person as thoroughfares in crossing from one roadway, walk or street to another roadway, walk or street,’ and that the use of public parks or parkways as pleasure grounds by the people for the purpose of recreation must' be under such reasonable rules and regulations as may be prescribed by the Board of Park Commissioners.

“Defendant further says that the Board of Park Commissioners never provided any rule or regulation permitting persons to play, or use for the purpose of recreation, or otherwise, that part of the ground upon which plaintiff w'as playing at the time he claims to have been injured, and under rules and regulations of said Board of Park Commissioners, playing at the place where plaintiff was playing at the time he claims to have been injured was against the rules and regulations of said Board of Park Commissioners.

“Defendant further says that by Section 1058 of said Revised Ordinance, it was made a misdemeanor for any person to violate any of. the. provisions of said Section 1046.

“Wherefore, having fully answered, the defendant prays to be dismissed with its costs.”

That portion of the answer is referred to in the opinion.

Divers conflicts between this opinion and our opinions are suggested in the petition for our writ, and the brief for relator. These, and further facts, we leave for the opinion.

I. The scope of our review becomes important in this case. The opinion before us from the Court of Appeals is limited in its reference to the pleadings, and to the instructions. There is, however, direct reference to each. This suffices to make them and each them a portion of the opinion for the purposes of this review. Reference in the opinion to a written document in the case, makes it as much a part of the opinion, as if fully written out therein.

For consideration of the petition in full, we have direct authority in State ex rel. v. Ellison, 176 S. W. L. c. 12. This opinion has the concurrence of four judges, and on the question here involved, really of six judges. It will be noted that whilst Bond, J., dissented, he dissented on the “question of our jurisdiction only.” Blair, J., was not sitting, but his own writings later, and his votes later so place his views.

In State ex rel. v. Robertson, 188 S. W. l. c. 102, we had upon certiorari an opinion of the Springfield Court of Appeals. It referred to a previous opinion of such court in the same case. We held that this reference made such previous opinion a part of the opinion brought up- by our writ of certiorari. In this all the judges In Banc concurred, except Woodson,- J., absent, although Bond, J., concurred only in result.

The next case in order is that.of State ex rel. v. Ellison, 191 S. W. l. c. 53, whereat Blair, J., said:

“The order of publication is not set out in the opinion. Nevertheless, it is expressly referred to and made the basis of a distinct holding. The effect of this is to incorporate it in the opinion and require that it be treated and examined as a part of it. No one would doubt that any court in citing and applying the decision on this point would be under the necessity of consulting the record and construing the opinion in connection with the order of publication the record shows. If a reference of this sort in an opinion does not, in accordance with the general rule, warrant this court in treating the matter referred to as thereby made a part of the opinion for the purposes of writs like this, then the harmony of decision required to be maintained means only a surface harmony which may disappear as soon as it it determined what the opinion under examination really means. Such a result is unreasonable. The order of publication is to be held incorporated by reference.”

This ease had the concurrence of all the judges except Faris, J., not sitting. Bond, J., as usual in these certiorari cases (about this time), concurred in the result.

Following this is the case of State ex rel. v. Ellison, 195 S. W. l. c. 722, whereat we said:

“The record is somewhat broadened because the opinion before us refers specifically to the two previous opinion for the facts. We have, therefore ('by this reference in the last opinion), not only the three opinions of the Court of Appeals, but likewise such records and evidence as are incorporated therein, either by reference or by direct quotation. Under these circumstances, it would be indeed singular if the complete record in the Court of Appeals was not before ns through their several opinions.”

This opinion had the concurrence of all the judges In Banc, except Williams, J.,.not sitting, and Bond, J., who dissented. It will be noted that Faris, J., who was not sitting in the case written by Blair, J., supra, concurs in this opinion.

Next in line follows the case of State ex rel. v. Robertson, 197 S. W. l. c. 79, where we again held that a previous opinion of a Court of Appeals was made a part of the opinion before us, because it was directly referred to therein. We thus ruled over objection duly made here, and in so ruling said:

‘ ‘ The case of Allen v. Quercus Lumber Co., has been twice before the Springfield Court of Appeals. The first opinion, which reversed a judgment for plaintiff, is found in 190 Mo. App. 399, 177 S. W. 753. The second opinion, the one brought up by our writ, is found in 190 S. W. 86. We mention both opinions because the latter refers to the former for a statement of the facts as to how the plaintiff was injured. Respondents urge that the first opinion is not before us, but the reference thereto in the second opinion both in law and in fact makes it a part of the second opinion.”

This opinion was concurred in by all the judges, except Faris, J., who dissented. Bond, J., as usual in this character of cases, concurred only in the result.

So* runs the case law of the State until our lamented Brother Bond (whose opposition to our jurisdiction in this class of cases is manifest from the books) wrote State ex rel. Wahl v. Reynolds, 199 S. W. 978. In that case (with an eye always single to the 'curbing of our jurisdiction in certiorari cases) our late lamented and distinguished brother, said:

“In the rulings of this court permitting the use of a writ of certiorari in cases like the present (in which I am unable to concur), it is distinctly announced, as I understand, that the scope of review does not extend to any errors of opinion on the part of the Court of Appeals which do not conflict with the- latest previous-rulings of this court on the subject, nor does it embrace-any consideration of the record of the ease in the Court of Appeals further than the same is set forth in the opinion under review.”

In this opinion he had the concurrence of three other judges at that time. Note the use of the words “set forth” in the language of our learned brother. This of itself does not exclude the idea that an instrument which is clearly referred to in the opinion is not “set forth” in the opinion, as our previous cases had all held. But later our brother Williams in State ex rel. v. Reynolds, 200 S. W. l. c. 1041, cited and quoted the foregoing language from Wahl’s case, supra, and with two judges not sitting, he received only one concurrence to paragraph one of his opinion which covered this question. The present writer’s individual views are expressed in a concurring opinion, 200 S. W. l. c. 1041. Whereas we were not certain what Judge Bond meant by the words “set forth” in Wahl’s case, we were taking no chances on approving the language. We had dissented in Wahl’s case, as we had two- others.

By a scant majority of the court, we have ruled that in certiorari, we will go to the opinion of the Court of Appeals for the evidentiary facts and the things determined, but we have all the while ruled that reference to a written instrument by the opinion made such instrument as much a part of' the opinion as if fully set out therein. This ruling should not be disturbed, nor does Wahl’s case in language disturb it. The case at bar is a splendid example of what would happen if this rule should be abolished. No one could tell from the opinion before us what grounds of negligence were relied upon by the plaintiff. So too the instructions are referred to by number, but with much diligence you could not find from the opinion what was in instruction one and two for plaintiff. It is said that Instruction No. 3 for plaintiff submitted the question as to whether or not the wall and coping was ■attractive to children. We do not sa,y this by way of criticism, but as illustrative of the point, 'that we should include as a part of the opinion all instruments referred to in such opinion. If our rule remains as we have written it, no harm comes from this short Method of opinion, because we examine the pleadings and the instructions referred to in such opinion. We rule that we should go to the pleadings in this case, and also to the instructions, because they are in law and fact a part of the opinion by reason of the direct references therein.

The pleadings may be examined even on another theory. See concurring opinion in State ex rel. v. Reynolds, 200 S. W. l. c. 1041. An interesting, review of orneases upon certiorari up to August 23-, 1916, is found in an able article by Hon. J. P. McBaine, in 13 Law Series, Missouri Bulletin, from pages 30 to 75 inclusive.

" II. It will be gathered from the petition that there were two grounds of negligence charged against the city, (1) failure to put a fence-on the coping so as to keep persons using the coping from falling therefrom, and (2) failure to have such coping- properly watched and guarded., Instruction one for 'plaintiff, which the Court of Appeals says covers the case, omits the second ground of alleged negligence, and predicates the right of the plaintiff to recover solely on the failure to have a fence upon such coping. The evidence as finally stated in the court’s opinion discloses that the city did . have a person there who warned children not to play on the coping. TMs perhaps accounts for the abandonment of this alleged ground of negligence. As to evidentiary facts we shall confine our case to the facts found by the Court of Appeals. So that from this mid the preceding paragraph may be gathered the full scope of our review upon the question, of conflict of opinions.

III. In this case we need not go beyond the opinion of the Court of Appeals, construed even in the restricted sense of State ex rel. Wahl v. Reynolds et al., supra. In so saying we do not want to be understood as departing in the least from our rulings in paragraph one of this opinion. On the contrary we wish to reiterate that all documents (whether pleadings, instructions or other written documents) referred to in the opinion, are just as much a part of the opinion as if written out therein in haec verba.

The opinion says that Instruction No. 3 for the plaintiff presented to the jury the doctrine of the turntable cases, i. e. “an attractive nuisance.” Whilst the opinion is not very explicit, we have examined the instruction, and in fact the instruction does present such a theory of recovery, and the petition charges that the coping was attractive to children, and bottoms the right to recover on the negligence of a failure to fence, or a failure to guard it. The latter, ag said, was dropped by plaintiff at the trial, as evidenced by the instructions.

From the facts may, be gathered the idea that the city had enclosed the block constituting “Observation Park” by stone walls, whereever the same were required by the topography of the ground. At places the wall was near 20 feet high, but in plain and open view *of all who might be on the premises.

At most the opening of the park by the city, if in fact it had been fully opened to the public, would make the plaintiff at best but an invitee of the city. On the theory that the portion of the park' where the accident occurred had been opened to the public (a fact that the city denied and offered an ordinance in support of its denial) the plaintiff was in the park as an invitee. He was one invited there by the city. In such case the well • defined turntable doctrine of an attractive nuisance has no application to the facts of this case. That there might be an attractive nuisance on the premises of one who invites the public is not questioned, but what we mean is that a wall which encloses the premises, as did the wall in question here, is not in law an attractive nuisance, and for that reason this case does not fall within the doctrine of the turntable cases.

To the invitee is owed the duty of exercising reasonable ca¡re¡ for his safety. He must be guarded against hidden pitfalls and dangers not open and glaring, but the doctrine of the turntable cases is that the instrument itself invites the child, and is usually found in cases where the child is a trespasser or at most a-mere licensee. The real question is whether or not a wall which incloses one’s premises is such an instrument as to bring it within the purview of the turntable cases, the doctrine of which was invoked by1 plaintiff’s instruction three, supra.

In many places in this, the capital city of Missouri, are walls enclosing private residences, which walls vary in height with the topography of the ground. Should one of these owners invite the children of his neighborhood to play upon his lawn, would he be liable on the ground of maintaining an attractive nuisance? We think not. Yet those children would be as much invitees as is the general public to a park opened up by the city. The fence around this park, which is the walls which enclose it, is not such, as to place it within the category of an attractive nuisance, which is the theory of instruction three for the plaintiff. *

We but repeat and emphasize the language of Lamm, J., in Kelley v. Benas, 217 Mo. l. c. 13, whereat he most eloquently said:

“If the old channel of the law is to be quite changed by the application of the new doctrine automatically and without discrimination, if sentimental considerations (however elevated and tender) are to usurp the place of cold and calm reason as the foundation for rules of law, then the floodgate now damming back liability will be raised, letting in strange and deep waters for the landowner to struggle with. ’ ’

He was not dealing with an invitee, but he was dealing with things which do and which do not constitute an attractive nuisance within the meaning of the turntable cases, and hold's a pile of lumber (quite high in that ease) was not within the turntable rule.' A high pile of lumber, so placed as would permit boys to climb upon it, is no less attractive than the wall in the case before ms, yet Lamm, J., ruled that it did not fall within the turntable rule, as an attractive nuisance. The action of the Court of Appeals in approving instruction three conflicts with the Kelly-Benas case. In so ruling we have in mind the sole question of what constitutes such an attractive instrumentality as to bring it within the turntable rule.

In our judgment it likewise conflicts with O’Hara v. Gas Light Co., 244 Mo. l. c. 404 et seq. At page 405 we then said:

“As above indicated our court has followed the -middle ground, and has been exceedingly slow to enlarge the field of the ‘turntable doctrine.’ Por a full review of all our cases beginning with the Overholt-Vieths case, cited supra, see the recent case of Kelly v. Benas, 217 Mo. 1.”

When we used the words “as above indicated” we were referring to- the classification of states upon the turntable doctrine as made by the court in Brown v. Salt Lake City, 33 Utah, l. c. 236, whereat it was said:

“In some states where the; doctrine prevails the courts have sought to limit its application to open and dangerous machinery and appliances. Of this class Sullivan v. Huidekoper, 27 App. Cas. (D. C.) 154, 5 L. R. A. (N. S.) 263; Overholt v. Vieths, 93 Mo. 422; Richards v. Connell, 45 Neb. 467, and Stendal v. Boyd, 73 Minn. 53, are fair examples.”

This court has consistently refused to extend the turntable doctrine. The Court of Appeals, in the face of our ruling, has extended it. For a full review o-f all the cases see the recent opinion of Paris, J., in Buddy v. Union Terminal Ry. Co., 207 S. W. 821. This review o-f o-ur State law is so;.recent that another at this time would be unpardonable in an opinion, where brevity should be sought. It is sufficient to say that the ruling of the Kansas City Court of Appeals in sustaining instruction three for plaintiff in the instant case, controverts the rule announced by this court in each of the three cases, supra. In other words, an enclosing wall of a tract of ground is not an attractive nuisance within the rule fixed by this court. For this their record and judgment should be quashed.

There' are other matters suggested, and some of them are well worthy of consideration, but as our present ruling is such as to compel the Court of Appeals to reverse and remand the cause, the other questions may be obviated on a retrial. In this Idnd of a proceeding we are not instructing trial courts. We are simply determining conflict of opinions. If we find there is a conflict upon a question which would of necessity reverse the action of the Court of Appeals, as here, then we need seek no further reason for quashing its record and judgment. Let the record of the court of Appeals be quashed.

Blair, Goode and Williamson, JJ., concur; Walker, G. J., dissents, in opinion filed, in which Williams, J., joins; Woodson, J., not sitting.

WALKER, C. J.

(dissenting).' — Whatever may heretofore have been defined by this court as the limit of our review in certiorari proceedings when directed against the Courts of Appeals, I have reached the conclusion that our inquiry should be confined to the opinions of those courts. The Constitution and the statutes in no uncertain terms declare definitively the respective jurisdictions of the Supreme Court and the Courts of Appeals. The line of demarcation between these jurisdictions is not difficult to determine. Each within its own prescribed limits was intended to be supreme. The supremacy^ of the jurisdiction of the Supreme Court ends, however, where that of the Courts of Appeals begins. If this were not true the latter courts would not be courts of last resort within their prescribed province. That they are such courts is evident not only from express constitutional declaration, but from the fact that, although the Supreme Court is given general superintendence over subordinate courts, with the right to issue original and remedial writs, including certiorari, the framers of the Constitution, recognizing the supremacy and final determinative power of the Courts of Appeals in regard to their own opinions, found it necessary to expressly declare when and how the Supreme Court was empowered to review the opinions of the Courts of Appeals. The power thus conferred constituted an exception to the general jurisdiction of these courts and should be strictly construed. The reason of the law, however, is the life of the law; and the reason of this exception was to prevent a conflict between the rulings of the Supreme Court and the Courts of Appeals. Such rulings are given authoritative expression only in the opinions of . thelse courts. To these, therefore, we must refer to determine if a conflict exists. Take, for illustration, the opinion of the Court of Appeals' in the case at bar; if1 it discloses no conflict with former decisions of the Supreme Court, then within the meaning of the Constitution such conflict does not exist. If other meaning’: than this was intended by the organic limitation, then there does not exist any final jurisdiction of the Courts of Appeals. Granted the power to review anything referred to but not ruled upon in the opinion of the Court of Appeals that may give heart to the hope that a conflict may be found, and the entire record of the trial court is rendered subject to review. My learned brother has, it is true, in the majority opinion in declaring what constitutes the exploratory examination of the Supreme Court, limited the same to papers or documents referred to in the opinion under review. This limitation, however, under our construction of the Constitution, is purely arbitrary. If authorized to look to any paper referred to in such opinion, by which I understand is included not only documents in evidence but pleadings and instructions, then by what system of reasoning can the transcript of the testimony be excluded from consideration. There is as much authority, so far as the constitutional provision is concerned, for referring to the one as to the others.

Such a construction destroys the distinctive character of the proceeding at bar and substitutes in its stead a rehearing by the Supreme Court of the case finally determined in the Court of Appeals. This conclusion is based upon no technical construction of the Constitution. It finds its sufficient support in that commendatory feeling of confidence which should be and is entertained by the Supreme Court in regard to the correctness of the findings of the Court of Appeals as disclosed by its opinion. That confidence cannot be construed as otherwise than violated if the constitutional limitation be ignored. The importance of preserving inviolate, as by the law prescribed, the respective jurisdictions of the Supreme Court and the Courts of Appeals has impelled me to dissent to the majority opinion and to conclude'that our writ should be quashed.

Williams, J., concurs herein.