author: WOODSON, P. J.

text:
    JOHN A. WENTZ v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    Division One,
    June 30, 1914.
    1. NEGLIGENCE: Passenger: Demurrer to Evidence. A railroad company in carrying a passenger is required to exercise for his safety the highest degree of care known to and generally exercised by a very careful and prudent person in that class of business. Where plaintiff was a passenger on defendant’s regular passenger train, and as it approached a station named Sterling an employee passed through and announced, “Sterling; twenty minutes for supper,” and then proceeded to the front of the car, opened the car and the vestibule door, and raised the trap, and the passenger followed him and as soon as the trap was raised descended the car steps, and just as he was in the act of alighting the train started with a jerk and threw him down, injuring him, a demurrer to the evidence should not be sustained, even though it was a dark night, and the train had . stopped at a railroad crossing, as it was by law required to do, two or three hundred yards from the station at Sterling, which was brilliantly illuminated. The acts of the employee amounted to an invitation for him to alight, and there being no evidence that he knew of the crossing or the custom of the train to stop there, he could not be charged with contributory negligence as a matter of law.
    2. INTERSTATE COMMERCE: General Denial: Waived by Special Plea. A defendant by pleading a general denial raises the issue of interstate commerce, and that issue is not waived, nor is counsel for plaintiff misled, by a special plea of the common law of the State in which the accident occurred, as a defense.
    3. COMMON LAW OF ANOTHER STATE: Pleading and Proof. Pleading statutes of another State declaring the Common Law of England to be in force there, is not pleading that law, and amounts to nothing more than statements of conclusions, and such pleas constitute no defense to an action for negligence. The common law is not the same in any two States, and the court cannot know what it is unless it is pleaded and proved; and if the only plea is that the defendant’s liability is to be determined by the common law of the foreign State, the court will assume that the common law of that State is the same as the common law of this.
    4.--: Passenger: Riding on Free Pass. If the only defense pleaded is the common law of the other State where the accident occurred, and that law itself as it affects a passenger riding on a free railroad pass is not pleaded, then the holding will be that the laws of that State, like the laws of this, absolutely prohibit a common carrier from contracting against liability for damages occasioned by its own negligence.
    5. -: -: -: Interstate Commerce: Waiver of Negligence. A free pass issued by a railroad company, to the father of one of its employees, who is not a member of his family, for free transportation from one State to another, is, under the Interstate Commerce Act of Congress, null and .void, and does not authorize the father to claim transportation upon the company’s trains or to ride upon them, nor can any agreement printed upon it and accepted by the father to release the company from damages negligently inflicted, be held, under the common law of this State, to be a. defense to a suit for personal injuries negligently inflicted by the company while the father was riding upon such free ticket.
    6. FAMILY: Definition: Interstate Commerce Act: Free Transportation. The word family, in its general and restricted meaning, is defined; but the word as used in the Interstate Commerce Act declaring that a railroad company may issue an “interstate free ticket” to “employees and their families,” is held not to include the father of an employee, who had resided in Wyoming, and when injured was on his way to Missouri to spend the winter, with the intention of returning to Wyoming in the spring, to work upon a son’s farm there.
    7.--: Interstate Commerce Act: Purpose of Free Pass to Families. The purpose of the clause of the Interstate Commerce Act permitting common carriers to issue an “interstate free ticket” to “employees and their families,” was two fold: First, and primarily, because by the very nature of their employment, they are subject to frequent and sudden change of residence, and to secure their continued service it is necessary that their families be transported to the new field of work; and, second, to cement a closer union and better feeling between them and their employer, and to increase their personal interest in the road’s prosperity and general welfare.
    8. NEGLIGENCE: Measure of Damages: Injuries in Question. Where the instruction told the jury that, in assessing plaintiff’s damages, to take into consideration the pain of body and mind “occasioned by his injuries in question,” it cannot be held that they were misled thereby into allowing him damages for injuries received by a kick from a mule and the passing of a wagon over his limbs sometime after “the injuries in question.”
    9. -: Instruction: Abstract Proposition. An instruction may be correct as an abstract proposition, and yet be vicious. If it correctly states the law as to some of the facts, but omits the law relative to the acts which caused the injury, it should be refused, for, by such segregation, the jury will be misled.
    Appeal from Jackson Circuit Court. — Eon. E. B. Morrison, Judge.
    Affirmed.

      Warner, Dean, McLeod & Langworthy for appellant; Byron Clark of counsel.
    (1) There is no evidence that the defendant was guilty of any negligent act. The announcement of the station and the opening of the vestibule doors as the train approached the depot were not only proper but were required as a matter of convenience to the passengers. The stopping of the train at the crossing was required by law and there was no reason to anticipate that the plaintiff would attempt to alight at that place, especially where there was no station, no lights, no platform, and the conductor himself had not yet alighted, and had not placed the stool to assist the passengers from the car. Union Pacific v. Luck, 79 Kan. 320; Mitchell v. Railroad, 51 Mich. 236; Railroad v. Holmes, 97 Ala. 332; Lunsford v. Railroad, 153 Ky. 283; Morris v. Railroad, 53 So. (La.) 698; Railroad v. Massey, 53 So. (Miss.) 385; Stewart v. Railroad, 146 Mass. 605. The plaintiff in rushing’ out of the car and down the steps without looking where he was going and stepping off the train in the dark at a place where there was no station, no platform, no lights, and when he could have easily discovered, if he had looked, that the train had not yet reached the station, was guilty of contributory negligence as a matter of law. Farrell v. Railroad, 100 Minn. 361; Hester v. Electric Co., 130 Ga. 454; Mitchell v. Railroad, 51 Mich. 236; Mearns v. Railroad, 163 N. Y. 108; Mearas v. Railroad, 139 Fed. 543; Bartle v. Railroad, 105 N. Y. Supp. 522; Railroad v. Holmes, 97 Ala. 332; Railroad v. Murray, 113 Ga. 1021; Nagel v. Railroad, 88 Cal. 86; Lunsford v. Railroad, 153 Ky. 283. (2) The court committed error in refusing to admit in evidence the free pass upon which the plaintiff was riding, and the conditions contained on the back thereof. The exclusion of the pass and the conditions thereof deprived the defendant of its constitutional rights. Since the pass upon which plaintiff was riding provided for interstate transportation, the conditions thereof must be construed in accordance with the decisions of the Federal courts. Interstate Commerce Act, being Act February 4, 1887, c. 104, sec. 1, as amended; U. S. Comp. Stat. 1901; Supp. 1911, pp. 1285, 1286; Express Co. v. Croninger, 226 U. S. 491; Railroad v. Harriman, 227 U. S. 672; Mondou v. Railroad, 223 U. S. 54; Railroad v. Vreeland, 227 U. S. 66; Minnesota Rate Case, 230 U. S. 398; Text Book Co. v. Pigg, 217 U. S. 108; Stove Co. v. Vickers, 226 U. S. 215; Railroad v. Elevator Co., 226 U. S. 426. Under the Federal authorities and decisions the provisions and conditions of the pass offered in evidence were and are valid and binding, and the pass and the conditions upon which it was issued should have been admitted in evidence. Railroad v. Adams, 192 U. S. 440; Boering v. Railroad, 193 U. S. 442; Duncan v. Railroad, 113 Fed. 508; 2 White on Personal Injuries on Railroads, secs. 851, 852. Even if the decisions of the Federal court did not control, the question as to the validity of the conditions contained on the pass would-have to be determined either by the laws of the State where the pass, was delivered or where the accident occurred. Smith v. Railroad, 194 Fed. 79; Shelton v. Railway, 189 Fed. 153; Railroad v. Grom, 142 Ky. 51; Magill v. Railroad, 84 S. C. 416; Hasbrook v. Railroad, 118 N. Y. S. 735-; Hughes v. Railroad, 202 Pa. 222; Barnett v. Railroad, 176 Pa. 45; Stamp v. Railroad, 161 S. W. (Tex. Civ. App.) 450; Knowlton v. Railway, 19 Ohio St. 260’. The pass was delivered in Wyoming, and the accident occurred in Colorado. Under the statutes of both of those States, which were offered in evidence, the common law of England was and is in force and effect in said States. R. S. Wyoming, 1899, sec. 2695; G. S. Colorado, 1908, sec. 6295. There is no statute or decision in the State of Wyoming, or the State of Colorado, making the conditions contained on the pass invalid, and under the common law of England such provisions are valid and binding. McCauley v. Railroad, L. R. 8 Q. B. D. 57; Hall v. Railroad, L. R. 10 Q. B. D. 437; Railroad v. Adams, 192 U. S. 440; Holly v. Railroad, 119 Ga. 767; Railroad v. Read, 37 111. 484; Payne v. Railroad, 157 Ind. 616; Rogers v. Steamboat Co., 86 N. E. (Me.) 261; Quimbv v. Railroad, 150 Mass. 365 ; Kinney v. Railroad, 32 N. J. 407; Welles v. Railroad, 26 Barb. (N. Y.) 641; Wells v. Railroad, 24 N. Y. 181; Perkins v. Railroad, 24 N. Y. 196; Muldoon v. Railroad, 10 Wash. 311; Marshall v. Railway & Light Co., 101 S. W. (Tenn.) 419; 2 Hutchinson on Carriers (3 Ed.), sec, 1075; Griswold v. Railroad, 53 Conn, 371; Duncan v. Railroad, 113 Fed, 508; White on Personal Injuries on Railroads, secs. 851, 852, note 39, pp. 1258, 1259j-The court in refusing to admit in evidence the pass and the conditions contained on the back thereof, de* prived the defendant of its property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, and in violation of section 30 of article 2 of the Constitution of Missouri, and also abridged the privilege of the defendant as a citizen, of the United States to contract, in violation of the Fourteenth Amendment to the Constitution of the United States, and impaired the obligation of the contract as contained in the provisions and conditions on the back of said pass in violation of section 10 of article 1 of the Constitution of the United States. Pritchard v. Norton, 106 U. S. 124; Hovey v. Elliott, 167 U. S. 409; Calhoun v. Fletcher, 63 Ala. 570; Zigler v. Railroad, 58 Ala. 594; Jensen v. Railroad, 6 Utah, 253; Dorrance v. Dorrance, 242 Mo. 651; Text Book Co. v. Pigg, 217 U. S. 91; Ex parte Young, 209 U. S. 123; Hoke v. Henderson, 15 N. C. 16.

      Boyle £ Eoiuell and Joseph 8. Brooks for respondents.
    (1) The court did not err in overruling the demurrer to the evidence interposed at the close of plaintiff’s case nor did it err in refusing to give to the jury the peremptory instruction requested by the defendant at the close of the entire’case. 2 White’s Personal Injuries on Railroads, sec. 704; McNulta v. Eusch, 134 111. 46; Railroad v. McCormick, 124 Pa. St. 427; Railroad v. Davis, 103 S. W. 603; McGee v. Railroad, 92 Mo. 218; Weber v. Railroad, 100 Mo. 194; Grace v. Railroad, 156 Mo. 295; Beach on Con. Neg., p. 173, and sec.' 23, p. 71; Kearney v. Railroad & Nav. Co., 59 Ore. 12; Crandall v. Railway, 96 Minn. 434. (2) The court did not err in refusing to admit in evidence the free pass upon which the plaintiff was riding and the conditions contained on the back thereof, nor did the exclusion thereof deprive the defendant of any of its constitutional rights. The general doctrine is that one who is accepted for transportation as a passenger without any compensation, is nevertheless entitled to all the care and protection which the carrier is under obligation to furnish paying passengers. 5 Am. & Eng. Encv. Law, p. 565; Lemon v. Chanslor, 68 Mo. 340; Dorsey v. Railroad, 83 Mo. App. 528; Buck v; Railroad, 46 Mo. App. 555; Railroad v. Derby, 14 How. 468; 6 Cyc. 544; Bryant v. Railroad, 53 Fed. 997; Frillingham v. Transit Co., 102 Mo. App. 559 ; Whittaker v. Railroad, L. R. 5 C. P. 464; Weller v. Railroad, L. R. 9 C. P. 126; Shohoney v. Railroad, 223 Mo. 684; Tel. Co. v. Pub. Co., 181 U. S. 92; 8 Cyc. 385; Interstate Com. v. Railroad, 145 U. S. 263; U. S. v. Worrell, 2 Dallas, 382; Smith v. Alabama, 124 U. S. 465; Livingston v. Moore, 7 Pet. 469; Davis v. Stouffer, 132 Mo-App. 555.
   WOODSON, P. J.

This suit was instituted by the plaintiff in the circuit court of Jackson county against the defendant to recover the sum of $1950, damages, for personal injuries alleged to have been sustained by him through the alleged negligence of the company.

A trial was had before the court and a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $800. Prom this judgment the defendant duly appealed the cause to this court, because of certain constitutional questions involved.

The' facts are practically undisputed and are substantially as follows:

The appellant was a railroad company duly organized and incorporated under the laws of Illinois, and had, among others, a line of tracks running through the States of Wyoming, Colorado, Nebraska 'and Missouri.

The respondent was a resident of Wyoming and wished to go to Kansas City, Missouri. In order to so do he requested his son, an employee of appellant, to procure for him a free pass over said road to Kansas City, which the son did.

This pass entitled respondent to passage from Torrington, Wyoming, to Kansas City, Missouri. Upon the back of said pass there was printed the following provisions, which respondent signed:

“The person accepting this free ticket agrees as follows:
“1. To make only such use of it as permitted by the Interstate Commerce Law, or by the law of any State in which it may be used.
“2. That the company shall not be liable for any injury to person or baggage,- caused by negligence, unless such negligence shall be gross, and in no event in a sum greater than $1000, in case of personal injury, and $100 in case of loss or damage to baggage.”

The respondent, on November 8, 1909, entered one of appellant’s passenger trains, at Torrington, with the intention to go to Kansas City, upon the supposed authority of the pass mentioned; one Gilchrist, slightly acquainted with respondent, accompanied him on said trip, both occupying the same seat — the respondent occupying the end of the seat next to the aisle of the car. Upon arriving at or near Sterling, Colorado, the-conductor of the -train, or some other employee of the company who had the authority to speak and act, came through the train and announced, “Sterling — twenty minutes for supper.” The person who made the announcement proceeded through the car, opened the ear door and the vestibule door, raised the trap, and the respondent and his companion, Gilchrist, immediately followed, and as soon as the doors were opened and the trap lifted the respondent descended the steps of the car; and just as lie was in the very act of alighting the train started forward with a jerk and threw him down, and caused the injuries complained of in this case. Gilchrist did not alight.

There was some evidence which tended to show that the person who made the announcement stepped from the car before respondent fell therefrom, but I do not think that is particularly material to the merits of the case.

It was very dark at the time the respondent stepped from the car and was injured, and there was no station-house, platform or lights at that point— simply a railroad crossing — which the law required the appellant to recognize and to stop its trains before passing over. Unquestionably this crossing and the law mentioned were the cause of the train stopping at the point where the respondent was injured, which was two or three hundred yards north and west of Sterling — the train, if I correctly understand the record, was going southeast.

After reaching Sterling the train again stopped and those of the passengers who wished supper alighted and partook of such refreshments as they desired.

It seems that the conductor, in the meantime, had some knowledge or notice that the respondent had gotten off at the road crossing, and that he had fallen in so doing, and that in consequence thereof when the •respondent.came up to the station, or while on the train after it left Sterling, the conductor approached him and asked if he was hurt, and repeated the question- and said, if you are hurt it becomes my duty to report the case and the facts to the company. In answer to this question the respondent answered that he was ‘not hurt, or if so, very slightly, and that the whole thing was due to his own carelessness.

The latter statement was denied by respondent. The respondent also testified that at the time he .alighted from the train he thought he was getting off at the station, but that it was so dark he could see nothing.

The station, some quarter of a mile from the road-crossing, was well lighted and had a good platform upon which passengers could alight. Respondent could have seen the station and lights had he been looking for them at the place where he alighted. It was not only customary for the train to stop at the road crossing mentioned, but the law of Colorado required it to so do.

The appellant’s evidence tended to show that the train at the crossing did not start with a jerk when respondent attempted to alight.

The respondent proceeded on his journey to Kansas City, without complaint; and the next spring he returned to Torrington, and began to work on a farm for one of his sons, and while so doing, a mule, according to its proverbial habit, kicked him in the back, knocked him down and a wagon ran over him, producing certain injuries.

At the trial the appellant offered in evidence the pass previously mentioned with the provisions printed on the back thereof, together with the signature thereto of the respondent, all of which the trial court excluded, and the appellant duly excepted.

Any other facts that may be necessary to be considered in passing upon any legal proposition involved in the case' will be stated in that connection.

I. The first question that should be disposed of is, did the trial court err in refusing to give the appellant’s instruction in the nature of a demurrer to the respondent’s evidence? and second in declining to give its peremptory instruction at the close of all the evidence, telling the jury to find for the defendant?

In my opinion both of these questions must be decided against the appellant, and my reasons for so stating are: That the record in this case shows that the respondent was a passenger upon one of appellant’s regular passenger trains, which fact required of the latter the exercise of the highest degree of care that was known to and generally exercised by a very careful and prudent person, engaged in that class of business. [Lemon v. Chanslor, 68 Mo. 340.]

The evidence shows that the train upon which respondent was being carried, approached Sterling and that someone in authority announced “Sterling— twenty minutes for supper,” and proceeded to open the car doors and lifted the trap leading to the ground, so that the passengers upon the train might alight; and after so saying and acting, the train came to a full stop. That in the meantime, when the announcement was being made and the doors opened, the respondent and his traveling companion immediately arose from their seats and followed the party making the announcement to the door, which he opened, leading from the car to the ground, with the intention of going to the dining room for supper.

These facts are not disputed, but counsel insist that the respondent was not entitled to a recovery for several reasons: first, because the announcement made, the opening of the door, the lifting of the trap and the stopping of the train did not amount to an invitation to. the respondent to alight therefrom, but was only intended to notify him and the other passengers that 'they were approaching Sterling, so that they might make the necessary arrangements to alight for supper when the train actually reached the station.

There can be no doubt but what that was the real intention of the parties in charge of the train; but appellant overlooks the fact that the evidence fails to show that the respondent knew of that fact or that there was a crossing between the point where the train was at the time the announcement was made and the town of Sterling where he was expected to take supper, or that lie knew the train was stopped for said crossing. In the absence of that knowledge the most natural thing in the world for one who wished supper under the circumstances, would be to conclude that the train was stopping at that point for the purpose of allowing passengers to alight for supper. This was clearly indicated by the opening of the doors to the ear and vestibule, the lifting of the trap over the steps leading to the ground and the announcement of “twenty minutes for supper.” None of those acts or words were necessary if it was simply the design of the appellant to stop at a railroad crossing. It could mean nothing else. The announcement and the opening of the doors were equivalent to a plain invitation to all passengers upon the train to alight and take supper. Of course, to those, if any, who know of the crossing and the custom of the train to stop thereat, in obedience to the law, and that there would be another stop at Sterling for supper, quite a different question would be presented; but no such knowledge is brought home to the respondent in this case. Consequently the case, in so far as the respondent is concerned, stands as though no crossing at that point existed, and that no stoppage of the train at that place had been the custom. That being true, the jury was unquestionably warranted in finding that the acts of the appellant amounted to an invitation to the respondent to alight from the train at that point.

Counsel for appellant seem to concede that proposition to be sound yet insist that respondent was guilty of such contributory negligence in stepping from the train, in the dark, under the circumstances mentioned, that the court should have declared as a matter of law he was not entitled to a recovery in this case.

The basis for this contention is, that the dining-room at Sterling, some two to four hundred yards distant from the crossing, was brilliantly illuminated and could have been easily seen by respondent had he looked in that direction for it.

In my opinion the evidence in this case warrants that conclusion; hut the trouble of the petition of counsel for appellant is that there is no evidence contained in this record which shows that- he had any reason to look a quarter of a mile up the track for the dining room, when the company had distinctly announced to him that the train was then stopping at the dining room for supper. While it may be true that a person of ordinary common sense and experience might and should have known that an “eating house” on a railroad is located at a station and is fully lighted, yet it is also common knowledge that such dining rooms are not always located directly upon the line of the road, but in some instances, if not frequently, are upon a by-street, where they cannot be seen from the train. This fact, taken in connection with the invitation to then and there alight, in my opinion, clearly made a case for the jury; and makes it equally clear that the trial court did not err in declining to instruct the jury that the respondent was guilty of contributory negligence, and therefore was not entitled to a recovery.

These views are fully sustained by the following authorities: 2 White’s Personal Injuries on Railroads, sec. 704; Kearney v. Ry. & Nav. Co., 59 Ore. 12; Crandall v. Railroad, 96 Minn. 434; Kansas City Southern Ry. Co. v. Davis, 83 Ark. 217; McGee v. Railroad, 92 Mo. 208, l. c. 218; Fillingham v. Transit Co., 102 Mo. App. l. c. 589; Railroad v. Painter, 53 Kan. 414; McDermott v. Railroad, 82 Wis. 246; Railroad v. White, 88 Pa. St. 327; Robson v. Railroad, L. R. 2 Q. B. D. 85; Poole v. Railroad, 100 Mich. 379; Bass v. Railroad, 70 N. H. 170; 5 Am. & Eng. Ency. Law, p. 565. And many others too numerous to mention.

II. The second ground relied upon by counsel for appellant for a reversal of the judgment is stated in the following language:

‘‘ The court committed error in refusing to admit in evidence the free pass upon which the plaintiff was riding, and the conditions contained on the back thereof. The exclusion of the pass and conditions thereof deprived the defendant of its constitutional rights. ’ ’

It is the contention of counsel for appellant that since the pass offered in evidence entitled the respondent to transportation through two or more States and that having availed himself of its benefits, the question of interstate commerce is thereby injected into the casé.

This contention of counsel is controverted by respondent for several reasons assigned.

First: It is insisted that since the defendant pleaded specially as a defense the common law of Wyoming and Colorado, as adopted by section 2695, Revised Statutes 1899, of the former State and section 6295, Revised Statutes 1908, of the latter, that it should be confined to that defense and not be permitted to interject into the case the interstate commerce question previously mentioned, for the reason assigned that, by having interposed the special defense, the respondent was thereby led to believe that no other defense would be made, and consequently he made no preparation to meet the Federal question mentioned.

The case of Beave v. St. Louis Transit Co., 212 Mo. 331, is an express authority in support of this insistence; but counsel for respondent overlook the fact that in addition to the special defense stated, the answer in this case also contained a general denial, which entitled appellant to interpose any Federal question, for' the reason that while the State courts will not take judicial notice of the laws of a sister State, yet they will so notice the Constitution and laws of the Enited States. Counsel for respondent concede that it was unnecessary for appellant to plead the interstate commerce act. Bnt it was necessary to plead the statutes of the States mentioned, if it wished to rely upon that defense also.

The appellant strictly observed the rules of good pleading and did nothing improper to mislead counsel for respondent or to lull them into a belief that the appellant would only rely upon the statutes pleaded as to ány defense it had in the case.

The case of Shohoney v. Railroad, 223 Mo. 649, does not cover this question.

We are, therefore, of the opinion that there is no merit in this insistence.

Second: It has been suggested that this is not a suit on the pass for a breach of contract, but for a tort — the wrongful injury of respondent, the contract thereby having been waived, and therefore the interstate commerce question was thereby forever barred as a defense to the case; and that being true, the common law of Colorado, where the injury occurred, governs the case.

The Wyoming and Colorado statutes were pleaded in the following language:

“Defendant further says that at all the times and dates mentioned or referred to in the petition and in this answer there was a statute in full force and effect in said State of Wyoming, being section 2695 of Revised Statutes of Wyoming, 1899, providing that the Common Law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, shall be the rule of decision in that State, and considered in full force until repealed by legislative authority; and there was also a statute in full force in the State of Colorado, being Section 6295 of Revised Statutes of Colorado, 1908, providing that the Common Law of England, so far as the same is applicable and of a general nature, shall be the rule of decision and shall be considered as of full force until repealed by legislative authority.”

The statute of Colorado was introduced in evidence and reads as follows:

“The Common Law of England, so far as the same is applicable and of a general nature, and all acts and statutes of the British Parliament, made in aid of or to supply the defects of the common law prior to the fourth year of James the First (excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and the ninth chapter of thirty-seventh Ilenry the Eighth), and which are of a general nature, and not local to that kingdom, shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority. ’ ’

Under the ruling of this court, as announced in the case of Gibson v. Chicago Great Western Railway Co., 225 Mo. 473, these pleas of the Wyoming and Colorado statutes were mere statements of conclusions and stated no defense to the cause of action whatever.

It was there held that when the statute of another State is relied upon as giving or constituting a cause of action it must be substantially pleaded with such distinctness that the court may judge of its effect and the facts that constitute its violation must also be pleaded. That a foreign statute in such cases must be pleaded just as any other substantive fact in the case, and not merely state conclusions of what counsel think they mean.

Of course the same rule applies when a foreign statute is interposed or pleaded as a defense to an action.

But conceding for the present that the statute of Colorado (the Wyoming statute cutting no figure whatever in the case) was properly pleaded, yet it is so indefinite in its terms that it affords the court of this State no information whatever as to what the common law of that State actually was at the time the respondent was injured. Recognizing this fact counsel for appellant introduced in evidence many opinions delivered by the Supreme Court of the United States and many of the various States of the Union, as well as a number by the courts of last resort in England, but not one from any court in the States of Colorado or Wyoming; and if I have made no mistake in my comparison of the list of the cases, none of those introduced in evidence originated under the laws of either of those two States. This, however, had they done so, would have had but little force and effect as a matter of evidence, for the plain reason that the courts of one State cannot declare the law of another except in the particular case in judgment; for the reason the other State is not legally bound to recognize, the rule of law announced in that case outside of enforcing the particular judgment under the full faith and credit clause of the Constitution of the United States.

Upon that state of the record, this nor any other court of this State can say what the common law of Colorado was at the time of the injury. This is true for the reason that the common law of England has never been adopted in full by any State of the Union, and but few, if any of them, have adopted it to the same extent.

In discussing this question this court in the case of Foley v. Harrison, 233 Mo. 460, l. c. 520, quoting largely from the Supreme Court of the United States, used this language:

“Before passing to the consideration of the authorities of this country specially applicable to the case at bar it will not be out of place to suggest that the common law of England bearing upon this question was never in force in all of its provisions in any of the States of this country. In the consideration of this subject Mr. Justice McLean, in Wheaton v. Peters, 33 U. S. 659, said: ‘No one will contend that the common law as it existed in England has ever been in force in all its provisions in any State of this Union. It was adopted so far only as its principles were suited to the conditions of the Colonies; and from this circumstance we see that wliat is common law in one State is not so considered in another. The judicial decisions, the usages and customs of the respective States must determine how far the common law has been introduced and sanctioned in each.’
“In Commonwealth v. York, 9 Met. 93, Chief Justice Shaw said: 'As this is an unwritten law, we must seek for the evidence of it in judicial records, precedents and decisions, and those digests, treatises and commentaries of learned and experienced men, which have acquired respect and confidence by long usage and general consent. If we consult English decisions made since the Revolution, it is not because they have any binding force as rules, but because they are expositions of the rules and principles of the common law, by men of great experience and judgment in the knowledge and application of the same laws which we are seeking to expound. And if we read the digests and treatises of reputable authors, published since we ceased to be English subjects, it is because they contain the authentic records of the precedents and judicial proceedings, which furnish the evidence of the common law. In like manner, the decisions of courts of other States, having the same common origin, and deriving their laws from the same common source, are valuable and useful in enabling us the more clearly to understand, and the more fitly to apply, the rules and principles of our own authoritative code of laws.'"

Under these rulings this court has no alternative except to return to the old and familiar rule, that the courts of this State will presume that the common Law of a sister State (if it exists therein by statute or otherwise) if not definitely stated, is the same as it is in this State.

If we should adopt that rule then.we would be forced to hold that the common law of Colorado, like the laws of this State, absolutely prohibits a common carrier from contracting against liability for damages occasioned by its own negligence.

Judge Lamm forcefully stated this proposition of law in the case of Charlton v. Railroad, 200 Mo. 413, l. c. 433, and it has been uniformly approved ever since. [George v. Railroad, 225 Mo. 364, l. c. 408.]

If the conclusions reached in this paragraph of the opinion were all that are necessary to dispose of the question of the admissibility of the pass issued by the appellant to respondent, then there would be no question but what the trial court correctly excluded the pass and the endorsement thereon from the jury. But judging from briefs of counsel for appellant, they are not inclined to such a passive submission to this disposition of this, the interstate commerce question, by having it brushed aside by such a gentle breeze of waiver by a suit in tort. . They seem to have an idea, even though the contract was waived by suing in tort, that the respondent’s presence upon the train and his transportation was being conducted under its provision at the time he was injured; and that the waiver of the contract for the purpose of this suit did not destroy the fact that he was traveling on the pass, and that fact of itself injected into the case the Federal question mentioned, and should therefore be governed by the law as announced by the Supreme Court of the United States.

Viewing this case as I do, I am of the opinion that it is not necessary to decide this question one way or the other, for the reason that another fact appearing from the face of this record regarding the pass renders it absolutely null and void under the very law relied upon by counsel for appellant to defeat a recovery, which I will now proceed to consider.

The record shows that the pass upon which respondent was riding at the time he was injured was good for transportation from Wyoming, through the States of Colorado and Nebraska, to Kansas City, Missouri; and that his son was an experienced railroad man, an employee of the appellant, and procured the free pass for his father, the respondent, by virtue of his employment. The pass was issued and the respondent was injured on or about the 8th day of November, 1909. On February 4, 1887, an act of Congress, as amended, relating to the regulation of interstate and foreign commerce became effective. [U. S. Compiled Statutes 1901, Suppl. 1911, pp. 1284, 1285, 1286 et seq.]

In the third paragraph of section 1 of the foregoing act is the following provision:

“All charges made for any service rendered or to be rendered in the transportation of passengers or property and for the transmission of messages by telegraph, telephone, or cable, as aforesaid, or in connection therewith, shall be just and reasonable; and every unjust and unreasonable charge for such service or any part thereof is prohibited and declared to be unlawful. ’ ’

In the fourth paragraph of the same section is the following:

“And it is hereby made the duty of all common carriers subject to the provisions of this act to establish, observe, and enforce just and reasonable classifications of property for transportation, with reference to which rates, tariffs, regulations, or practices are or may be made or prescribed, and just and reasonable regulations and practices affecting classifications, rates, or tariffs, the issuance, form and substance of tickets, receipts and bills of lading, . . . and every such unjust and unreasonable classification, regulation, and practice with reference to commerce between the States and with, foreign countries is prohibited and declared to be unlawful.”

Paragraph 5 of the same section provides as follows:

“No common carrier subject to the provisions of this act shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians and attorneys at law. ’ ’

This record also shows that the respondent when injured was on his way to spend the winter in Kansas City, with the intention of returning to Wyoming in the spring, with a view of working upon the farm of his. son — whether the son who procured the pass or not, the record does not show, and I suppose that fact is immaterial.

Under the Act of Congress mentioned, the appellant was absolutely prohibited from issuing a free pass to anyone “except its employees .and their families,” etc.

There is no evidence preserved by this record which tends to show that respondent was an employee of the appellant or that he was a member of the son’s family within the meaning of the act of Congress under consideration. A grown man’s father is not necessarily a member of the son’s family and vice versa. In fact, common observation teaches us that he rarely is a member thereof. Frequently we find that to be true, but the rule is to the contrary as everyone is informed by common knowledge. This common observation also teaches us that the grown son is more often a member of the father’s family than the father is a member of the son’s family.

The son mentioned in this case is the employee referred to in the fifth paragraph of the section of the act of Congress previously quoted, and of course the family therein mentioned was his family and not the members of his father’s or those of other persons.

Now the word family in the abstract has a very broad and varied meaning. It also has a very narrow and limited meaning according to the context in which the word is nsed. The best definition of the word I have been able to find is given by 19 Cyc. 450 to 454, and is as follows:

“Family. While the term may be said to have a well defined, broad and comprehensive meaning in general, it is one of great flexibility and is capable of many different meanings according to the connection in which it is nsed; thus it may mean ‘children,’ ‘wife and children,’ ‘blood relations,’ or the ‘members of the domestic circle,’ according to the connection; it may be of narrow or broad meaning as the intention of. the parties using the word, or as the intention of the law using it, may be made to appear; but unless the context manifests a different intention, the word ‘family’ is usually construed in its primary sense. In its ordinary and primary sense the term signifies the collective body of persons living in one house, or under one head or manager, or one domestic government; the relations between such persons necessarily being of a permanent or domestic character, not that of persons abiding temporarily together as strangers; a household; those who live under the same roof with the pater familias,. who form his fireside; in its restricted use in this sense the term would include only parents and their children, but the term, as commonly understood, is not so limited; thus it may include grandchildren, and all the persons of the same blood living together in the household; so it may include sons-in-law and daughters-in-law; in' fact, it may include all members of the household living under the authority of the head thereof, as the servants employed in the house; and sometimes it may include persons who are merely lodgers or boarders. No definite number of persons is necessary to constitute a family when the term is used in its primary sense, except that there must be at least two persons, for it is obvious that a collection of persons must consist of more than one person; a husband and wife living together without children, servants or any one at all may constitute a family. The word is frequently used in common speech without reference to any established household, but merely for the purpose of indicating the individuals related, as husband, wife, or parents and children. In another sense in which the term is used it includes such persons as are descendants of a common ancestor, it being said that its strict meaning as thus used in this connection is ‘children,’ and that this is the meaning that should be given it unless the context shows the term to have been used in a different sense; nevertheless the term has been extended to include the issue of the ancestor’s children, all his descendants, the whole group of persons thus related by blood, and is even said to be as broad as the word ‘relatives,’ which includes relatives by affinity as well as by blood; the husbands and wives of blood relatives. The ordinary meaning of the term when used in wills is said to be next of ldn, but it may mean heir-at-law, and it may have many other meanings or shades of meanings; in fact its legal import must be determined by the intention of the testator expressed in the language of the whole instrument, read in the light of relevant circumstances existing at the time of execution, and different meanings may be given to the term in two distinct clauses in the same will, when used in one case in reference to real property and in the other to personal property; and sometimes it may be rejected for uncertainty. When the term is used in connection with real estate, it implies inheritance — that species of succession which belongs to inheritance. ’ ’

• This definition is supported by all the authorities, as appears in a footnote thereto.

This court in the case of Ridenour-Baker Grocery Co. v. Monroe, 142 Mo. 165, has defined the words, a “head of a family” and the word “family” in their primary sense, the sense in which they are used in this class of legislation, in about as terse and clear language as I have been able to find. Judge Gantt, on page 170, said:

“Long before the adoption of our homestead act this court had defined the words ‘head of a family’ to be one who controls, supervises and manages the affairs about the house, not necessarily a father or a husband. [State v. Slater, 22 Mo. 464; Spengler v. Kaufman, 46 Mo. App. 644; Wade v. Jones, 20 Mo. 75; State to use v. Kane, 42 Mo. App. 253.]
“ ‘A family is a collective body of persons who live in one house under one head or manager. ’ [Duncan v. Frank, 8 Mo. App. 286.] ”

Evidently this is the sense in which Congress used the word family. The design of Congress was to permit a common carrier to carry its employees and their families free, primarily because it is common knowledge that they are, and the very nature of their employment makes them, subject to removal or change of residence from place to place, as the necessity of the business may require; and in order to accomplish that purpose promptly it is often necessary to not only transport the employee free, but to send his family with him also — otherwise, they would not be able to go, or submit to the change, and consequently his separation from his family often would prove detrimental to the public service in which the carrier is engaged. To meet this well known situation Congress authorized the carrier to pass its employees and their families free. The secondary inducement for the passage of the act, I apprehend, was to cement a closer union and better feeling between the carrier and its employees by transporting them and their families free upon the roads and trains which they maintain and operate, thereby giving them that kind of a personal interest in the company that is enjoyed by the employees of almost all other persons and' companies that employ labor. For the good) of the service they know and feel that they bear a closer relation to their employer and are entitled to greater privileges and more favors than are the mere strangers having no connection with the road. This is not only just and reasonable, but it adds largely, I have no doubt, to the efficiency and safety of the public service. But independent of that, in the absence of any showing to the contrary, neither this consideration nor the plain words of the act brings the father into the circle of the son’s family, within the meaning thereof.

In so far as this record discloses, they did not live in the same household, neither was dependent upon the other nor owed each other any duty whatever outside of the ties of consanguinity — the filial duties of the son to the father and the paternal affection of the father for the son. But this relationship does not bring the father in this case within the meaning of the act of Congress.

In the absence of other considerations there is no more reason for saying that a father should be considered a member of his son’s family than his grandfather or grandson should be, who live with their respective families.

Congress did not intend by this act to authorize a common carrier to issue free transportation to its employees and all of their Mood relations in direct or collateral lines, except where they were bona-fide members of the employee’s family.

If that was the design of Congress, then the act had just as well not have been enacted, for I dare say that if the million or more employees of the common carriers in this country and all their blood relations, regardless of family ties, are embraced within the provisions of this act of Congress, then by far the larger part of the citizens of the United States may, by consent of the carriers, lawfully travel free — thereby creating an evil far greater in extent than the one the act was designed to correct.

This, while a conjecture, I suppose no one at all familiar with the situation would deny.

If we have placed the proper construction upon the act of Congress under consideration, of which I have no doubt, then the pass offered in evidence, with the endorsements thereon, was absolutely null and void, and did not authorize the respondent to ride on it, nor can it be made the basis of an agreement to waive or release any or all damages he received by or through the negligence of the appellant while riding upon its train from Wyoming to Missouri. That being true, then the question naturally arises, what law governs this case?

Anticipating this question in a previous portion of the opinion, we reverted to the facts of the case and set out the statutes of Colorado offered in evidence, and referred to the decisions of the courts of this country and England introduced in evidence by appellant.

In taking up those matters it will not be necessary to restate the facts, but it should be borne in mind that the injury occurred in Colorado, and that the statute of that State, adopting the common law of England with certain limitations, was introduced and read in evidence, but no decision of any of the courts of that State declaring what that statute means was offered.

That being true, and that statute being so vague and uncertain, in the absence of a decision of the Colorado courts telling us what it means regarding the common law applicable to the. questions in hand, must assume that the common law of that State in that regard is the same as the common law of this State, which is to the effect that a contract made and entered into by and between a passenger and a common carrier releasing any or all damages for injuries received by Mm through ordinary or gross carelessness, if I may so use the words, is absolutely null and void, and that the courts of this State will not admit them in evidence or give to them any force or effect as against the injured passenger. This is so firmly established by the George-Railway case, previously mentioned, and cases cited therein, that it would be useless waste of time to cite others in support thereof.

This being true, and the free pass, upon which respondent was riding at the time he was injured being void as previously held by applying the common law of Colorado to the facts, which we must assume was the same as that of this State, we must hold that the circuit court of Jackson county, Missouri, in the trial of this cause did not err in excluding the pass and the endorsements thereon from the consideration of the jury.

III. It is contended by counsel for appellant that the trial court erred in giving instruction numbered one for the respondent. This is the ordinary instruction repeatedly approved by this court, telling the jury the degree of care the carrier owes a passenger; the facts that constituted negligence if the jury believe them to be true; and the measure of damages.

If I correctly understand counsel for appellant, they do not complain of this instruction because of any error in the matters suggested, but complain of it because it ignored and refused to give force and effect to the free pass and the endorsements thereon, upon which respondent was riding at the time he was injured.

We have fully answered that contention in the previous paragraph of this opinion, and I feel as though I can throw no more light upon it by further consideration.

There is no merit in this contention.

IV. Complaint is also lodged against the action of the trial conrt in giving the following instruction at the request of the respondent:

“The court instructs the jury that, if under the evidence and instructions of the court you find in favor of plaintiff, you should assess his damages at such an amount as you believe, from the evidence, will be a fair compensation to him for the injuries, if any, received by him, and, in arriving at the amount, of your verdict, you may take into consideration the pain of body and mind, if any, which he has suffered, occasioned by his injuries in question, if any, not to exceed, however, in all the sum of nineteen hundred and fifty dollars.”

It is contended by counsel for appellant that this instruction is so broad and indefinite that it misled the jury, and may have authorized it to include in the verdict the injuries the respondent received by the kick of the mule and the passage of the wagon over his limbs, which occurred some months after the respondent returned to Wyoming and while working on the farm of his son.

By reading this instruction it will be seen that in express terms it limits the damages to the injuries, if any, “which he [the respondent] suffered, occasioned by his injuries in question,” etc.

There were no injuries “in question” except those sued for.

"While it was true appellant introduced evidence tending to show respondent was injured by the mule and wagon, yet they were not “in question” within the clear meaning of the instruction. No court or jury would believe for a minute that the respondent was suing the railroad company for injuries received by him from the kick of a mule or the passage of a wagon over his legs, which occurred, if at all, mouths after the injuries sustained in the railroad accident.

There is no merit in this complaint.

Y. It is finally insisted that the circuit court erred in not giving the following instruction requested by appellant :

“The court instructs the jury that those in charge of the train on which plaintiff was riding had the lawful right to stop the train at the time and place they did stop it before passing over the railroad crossing referred to in the testimony; they also had the lawful right to announce to the passengers the fact that the train was approaching the railroad station and that supper would be taken there, and to make such announcement a reasonable length of time before the train arrived at the station to enable the passengers desiring to get off to make preparations therefor; they also had the lawful right, upon making such announcement, to commence opening the doorways leading from the cars composing said train a reasonable length of time before arriving at said station so that they might all be open by the time the train stopped at said station. ’ ’

There can be no question but what this instruction, as an abstract proposition, correctly states the law, but the vice of it consists in the fact that it stops short of the facts of the case which occurred in connection with those enumerated, that caused the injury. This segregation of the acts, which the appellant had the lawful right to do, from those it had no right to do, would have, if given, tended strongly to mislead the jury, in concluding that the appellant had the lawful right to do all the things enumerated in the instruction and that the respondent had no right to complain of them, notwithstanding they constituted the invitation which induced him to be in the place of danger he was placed in thereby, when the train unexpectedly and without notice, lurched forward, or rather started forward with a jerk.

This instruction as asked was properly refused.

Finding no error in the case the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: BROWN, C.

license: Public Domain

text:
    EMELINE CHAPLIN, Appellant, v. KANSAS CITY et al.
    Division One,
    June 30, 1914.
    1. CITIES: Parkways: Condemnation: Alleys. Under the charter of Kansas City,. Sec. 5 of Art. 10, the park commissioners have the power to select and designate lands for a system of “parks, parkways and boulevards,” and to select routes and streets for boulevards, and by and with the approval and authority of the city council, to lease, purchase, condemn or otherwise acquire land for parks, parkways, boulevards, etc. Held, that the park commissioners have the right to take an alley for a parkway.
    2. -: -: -: Subsequent Holders. Under the charter of Kansas City parties claiming or holding through or under those who owned property at the time of its taking for parkways and boulevards, are bound by the proceedings.
    3. -: -: -: -: Rights of Abutting Owners. Under its power of eminent domain a municipality may condemn a public alley for a parkway, the public easement being already in the city the interest of the owners of abutting property being private property and thus subject to condemnation.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Affirmed.

      R. 8. Julian for appellant.
    (1) Injunction lies. ‘ ‘ An abutting property owner bas tbe same right to the use of the street that rests in other property owners and the public at large. Besides this, he has the right of access to and from his lot, which right is special to him. It is an easement appurtenant to his real estate abutting on the street. It is private property as much as the lot itself and cannot be destroyed or impaired for public use, save by the payment of compensation therefor.” Knapp v. Transfer Co., 126 Mo. 35; Dubach v. Railroad, 89 Mo. 483; Dry Goods Co. v. Railway, 41 Mo. App. 63; Lakenan v. Bailroad, 36 Mo. App. 363; S’heedy v. Brick Works, 25 Mo. App. 529. (2) Powers of city. Neither the city nor the State can take away or seriously impair or place a new or added burden or servitude upon a highway-so as to take away or impair the right of the abutting property owner without awarding him such compensation as he is entitled to under the Constitution. Elliott on Roads and Streets (3 Ed.), sees. 823, 835, 882, 891 and 278; Cooley on Torts, 616; Stone v. Fairbury, 68 111. 394; Ross v. Thompson, 78 Ind. 90; Cummins v. Seymour, 79 Ind. 491. “The Legislature of the State could not authorize any other use of the property in question than that specified in the act of dedication.” Cummings v. St. Louis, 90 Mo.’ 264. (3) Property dedicated for one public use cannot be condemned for another or different public use. Imlay v. Bailroad, 26 Conn. 255; Williams Plank Boad Co., 21 Mo. 582; Refining Co. v. Grain & Elevator Co., 82 Mo. 125; Beid v. Board of Education, 73 Mo. 295; Campbell v. Kansas City, 102 Mo. 326; California v. Ploward, 78 Mo. 88; Hannibal v. Draper, 15 Mo. 634. (4) The right of access to a lot cannot be destroyed. Thurston v. St. Joseph, 51 Mo. 510; Knapp, Stout & Co. v. Transfer Co., 126 Mo. 26; State ex reí. v. Murphy, 134 Mo. 562; State ex rel. v. Railroad, 206 Mo. 262; Zimmerman v. Bailroad, 154 Mo. App. 301; 10 Am. & Eng. Ency. Law, 1127.

      A. F. Evans, Jay M. Lee and A. F. Smith for respondents.
    (1) The nse of the land, formerly in the alley, for boulevard purposes, is not inconsistent with the uses and purposes for which it was originally dedicated as an alley; no new burdens are added, and no old rights are taken away. The original dedication as an alley carried with it the right in the city to devote the land in the alley to such additional uses, not inconsistent with the original use, as new deeds demand. (2) Even if the new uses, for a boulevard, were not such as could have been applied to the alley under the original dedication, nevertheless all private rights and easements in the alley were condemned by the condemnation proceedings, to which appellant’s grantor was a party. Appellant’s grantor, and appellant claiming through her, are concluded by the verdict. (3) And as all private rights in the alley, if any, were condemned in the proceedings, only the owner of the rights taken, appellant’s grantor, by timely action, could-complain that she was not given just compensation therefor. The effect of the judgment cannot be attacked collaterally by a stranger. (4) Appellant fails to show any ground for equitable interference, either in her petition or in her evidence. (5) Summarizing appellant’s arguments and citations of law, none of them apply to the conditions of the case at bar. (a) The use of the land, formerly in the alley, for boulevard purposes, is not inconsistent with the uses and purposes for which it was originally dedicated as an alley; no new burdens are added, and no old rights are taken away. The original dedication as an alley carried with it the right in the city to devote the land in the alley to such additional uses, not inconsistent with the original use, as new needs demand. Bailey v. Culver, 12 Mo. App. 175; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488; ITodges v. Chambers, 171 Mo. App. 563; Lewis on Eminent Domain (3 Ed.), sec.' 220; Fagan v. Chicago, 84 111. 227; 5 Current Law, p. 1669; Elliott on Roads & Streets (2 Ed.), sec. 698; Bldg. Assn. v. Telephone Co., 88 Mo. 258; St. Louis v. Railroad Assn., 211 Mo. 364; Burns v. St. Joseph, 91 Mo. App. 489. (b) Even if the new uses, for a boulevard, were not such as could-have been applied to the alley under the original dedication, nevertheless all private rights and easements in the alley were condemned by the condemnation proceedings, to which appellant’s grantor was a party. Appellant’s grantor, and appellant claiming through her, are concluded by the verdict.
   BROWN, C.

This suit is to enjoin the construction of an artificial stone sidewalk six feet wide in an alley, the north line of which forms the southeastern boundary of plaintiff’s lot for a distance of 76.45 feet northeasterly from the line of Hamilton street in that part of Kansas City which was formerly Westport. This sidewalk is a part of an improvement called a “parkway,” connected with the park and boulevard system of Kansas City. The plaintiff’s land fronts southwesterly 111 feet on Hamilton street, which extends in a southeasterly and northwesterly direction. Prom the northwest corner at Hamilton street the northern boundary extends due east 120 feet to the west side of Baltimore avenue as widened; thence south 53.47 feet to the northwest line of the alley already mentioned; thence southwesterly along the northwest line of the alley to the northeast line of Hamilton street. Originally it extended 49.51 feet farther east, .but in condemnation proceedings to widen Baltimore street as a part of this same parkway plan, the eastern end to the extent stated was appropriated.

The defendants are the city of Kansas City, the Missouri Sidewalk and Construction .Company, the contractors for the work sought to be enjoined, and D. J Haff, Henry D. Ashley and John W. Wagner, the members of the board of park commissioners.

The petition states that this land was platted by the proprietor, as a part of Westport, in 1835, the alley twelve feet wide being dedicated on this plat; that it has never been vacated, and is now included in Kansas City, and has been converted into the park system of that city under ordinance number 39145 entitled “an ordinance to open and establish a,public parkway in Westport district,” passed and approved March 30, 1908; the construction company is about to construct the sidewalk under an ordinance of the city approved September 13, 1910, and also to construct artificial stone curbing along the alley at the same place; and that the city and its board of park commissioners will issue tax bills for all said construction and thus cloud the plaintiff’s title.

The petition contains no statement as' to other damage, nor does it mention the effect the work will have upon the value of plaintiff’s lot. In fact, the appellant, at the trial, successfully resisted the introduction of evidence on that issue. The prayer is that “the defendants and each of them, and their agents and servants, be enjoined and prohibited from building artificial stone sidewalks or artificial stone curbing in, along and over said alleyways,” and for general relief.

The defendants answered admitting that they were about to convert the alley in question into park property and that artificial stone sidewalks would be laid upon it, but claimed that the fee in the alley had been condemned under ordinance No. 39145 and had become vested in Kansas City for park purposes and divested out of plaintiff and her grantor, and asserting that they had the right, power, and authority to go ahead and convert the alley into grass plots and sidewalks and flower beds as they might see proper so to do.

Plaintiff replied admitting that the east 49.50 feet of her lot was taken under said condemnation proceedings under ordinance No. 39145, but denied that the city attempted to take said alleyway under those proceedings and alleged that the said alleyway was dedicated and devoted to a public purpose and that it was beyond the powers of Kansas City under its charter to take such alley for park purposes, and that under ordinance No.. 39145 it only attempted to take and only had the power to. take, and only did take private property, and that the city never attempted to condemn or take appellant’s fee and easement in the alleyway.

Upon the trial ordinance No. 39145 was introduced. It provided “that a public parkway be, and the same is hereby opened and established in the West-port park district in Kansas City, Jackson county, Missouri, comprising and including the following described lands, situated in said Westport park district.” Then followed a description of the land included in the parkway, which includes the alley already described, together with the strip 49.51 feet wide to be appropriated from the east end of the plaintiff’s land to widen Baltimore avenue. After describing all the lands included in the proposed parkway it proceeds: “And all tbe private property within the boundary lines above described is hereby taken and condemned for public use as a part of said parkway, excepting the use and easement for railway purposes of the tract or tracts now occupied and used by the old Kansas City, Memphis & Mobile Railroad Company, now known as the Kansas City & Westport Belt Railway.” The answer pleaded the appropriation and condemnation of all the land included in the ordinance. The character ' of the improvement contemplated on the front of the plaintiff’s lot is an artificial stone sidewalk six feet in width lying four feet outside the property line, the intervening space being’ intended for grass. Then conies a space ten feet wide for grass and trees. Only two feet of this comes within the limits of the twelve foot alley, the remainder extending over land appropriated for that purpose, to the curb line. Outside of this is the paved driveway of the road thirty feet wide.

Upon the trial the plaintiff’s bill was dismissed and she took this appeal. She assigned errors as follows :

“1. The trial court erred in its verdict and findings, because they were against the facts.
“2. The court erred because its verdict and findings were against the law.
“3. The court erred because Kansas City had no power under its charter nor any powers granted it by statute to take an alley already dedicated to a public use and convert it into a park or any other public use.
“4. The court erred in holding that there was any evidence that the fee and easement of the appellant was taken in the condemnation proceedings, as the verdict of the jury and the ordinance No. 39145 and the instruction of the court all show that there was no attempt to take anything but private property.
“5. The court erred in holding that the condemnation proceedings divested title from appellant and her grantor to the fee-that they owned to the middle of the alley and that estate was never attempted to be taken by the condemnation proceedings and it never was taken and there was no power in the city to have taken it except by vacating the alley and then condemning it.
“6. The court erred in finding for the respondents because it took appellant’s property without due process of law and in violation of her rights under section 30, article 11 of the Constitution of Missouri, and also in violation of her rights under section 1 of article 14 of the Amendments to the Constitution of the United States, in that it attempts to take her property without clue process of law and also denies to her the equal protection of the laws, and denies her her day in court. ”

Appellant does not question the regularity of the proceeding by which Kansas City attempted to include the alley upon which her premises abut in the parkway it was establishing, nor does she question its validity with respect to the condemnation of the east end of her own lot. Nor is it denied that the alley is included in the description by metes and bounds of the property that it had become “necessary to take or damage” for the purpose of the improvement. The appellant’s lot that abuts on it was not included in the description, which clearly indicates that in the opinion of the common council the taking of the alley did not damage the lot. We must assume that she was of the same opinion; for she does not charge any such damage in her petition, and successfully resisted the introduction of any evidence on that subject when it was tendered by respondents, for the reason that ‘ 'it is not a condemnation proceeding. ” Appellant also .carefully omits from the list of constitutional points upon which she assigns error the provision of the State Constitution (Art. 2, sec. 21) which provides “that private property shall not be taken or damaged for public use without just compensation . . . paid to the owner or into court for the owner,” before the property is disturbed or the proprietary rights of the owner therein divested; but includes the provision of section 30' of the same article, “that no person shall be deprived of . . . property without due process of law.”

The appellant does say that by virtue of its ownership of the abutting lot, she owns the fee in a part of the alley and an easement in the whole, and claims, (1) that having already been appropriated to public use as an alley the charter of Kansas City gives the city no power to appropriate it for or devote it to the public use as a “parkway;” (2) that conceding the power of the city in the premises, the record shows no attempt on the part of the city to appropriate or condemn this particular property in the alley for use as a parkway.

As to the first of the above propositions, the charter speaks with no uncertain voice. Section 5 of article 10 of the compilation of 1898 provides: “Said board of park commissioners shall have power, and it shall be its duty, to devise and adopt a system of public parks, parkways and boulevards, for the use of the city and its inhabitants, and to select and designate lands to be used and appropriated for such purposes, within or without the city limits, and to select routes and streets for boulevards, and to cause the same to be opened and widened as hereinafter set forth, and, by and with the approval and authority, by ordinance, of the common council, to lease, purchase, condemn or otherwise acquire, in the name of the city, land for parks, parkways, boulevards, or public squares.” Section 6 provides: “Said board of park commissioners shall also have power to superintend, control and manage any and all parks, parkways and boulevards belonging to or under control of the city, and such other public grounds and thoroughfares as may, by ordinance of the common council, be placed under the control and management of said board, and to improve, adorn and regulate the same in such manner as it may deem best, and to establish the width of sidewalks on all boulevards and parkways.” It will be seen that the board has power as full as the Legislature can confer to select streets for boulevards; to cause them to be opened and widened as set forth in the article, which includes the condemnation of private property; to control not only parks, parkways and boulevards, but other grounds and thoroughfares placed under its control by ordinances, and to improve, adorn and regulate them. Perhaps it is well enough to say with reference to the language used to designate these improvements, that we see no difference in their application to snch proceedings between a “parkway” and a “boulevard,” except that perhaps one of the features of the former may or may not be omitted in the latter. Webster’s International Dictionary defines the former to be “a broad thoroughfare, beautified with trees and turf,” and defines the latter to be “a broad avenue in or around a city, especially one laid out with trees, belts of turf, etc.” If any distinction is made in the charter or ordinances of Kansas City, our attention has not been directed to it. In the title to the amendment to the charter under which this proceeding was had, the word' “Boulevards” is considered sufficiently expressive to cover them all.

It is admitted that the appellant’s grantor was represented in the circuit court at the time of the assessment of damages under the ordinance number 39145 by which the condemnation of this property was instituted, that damages were awarded to her on account of the taking of the 49.5 feet off the east end of this tract, the remainder of which she afterwards conveyed to the appellant, and is the same land upon the ownership of which she founds this proceeding, and that the amount of the award was paid to her. The charter provides (Sec. 11, art. 10) that parties claiming or holding through or under the owners at the time of the taking effect of the ordinance shall be bound by the proceedings.

It also provides (Sec. 13, art. 10) that at the hearing the parties interested may submit evidence to the jury of freeholders, and such jury may examine personally each piece of property described on the map or plat, and all property claimed to be damaged. The verdict must show (Sec. 16): “A correct description of each piece or parcel of private property taken, if any, and the value thereof, and of each piece or parcel of private property damaged, and the amount of injury thereto.”

The appellant in her petition founds her title to maintain this suit solely on the ownership of the lot abutting on the north side of this former alley. She claims, in effect, that her deed, bounding her lot on northside of the alley, conveys to her the property rights in the alley which sbe is asserting here. If the conveyance had this effect, it is, of course, because her grantor came out of the condemnation proceeding with these same rights, and had them to convey. The claim is an assertion that these rights are appurtenant to the lot that does not include in its description the locality in which they exist. This being true their impairment or destruction would constitute an injury to the land, and fall upon the owner for the time being. It is evident, therefore, that this action must fail unless the proceeding to incorporate the alley in the parkway was void, and this is evidently the theory upon which it was instituted.

The sovereign power of eminent domain vested in the Legislature applies to every species of property, being limited in its scope and exercise only by the written constitutions upon which our State governments are founded, and by which their powers are distributed, and by the Constitution of the United States, and the powers granted by it to the general government. Although the State may already have charged the same property with a public usei or servitude, the remaining private interest is subject to appropriation for the same or any other public use. That it is “private property” within the strict as well as the ordinary meaning of those words goes without saying. In this case it included every private interest of the abutting property holder in the public easement to which the alley was dedicated, as well as all the interest and title in and to the soil which remained in the owner and passed with the land after the dedication. Add to this the public easement to which it had been dedicated, and we have the land itself represented in respect to ownership by the fee.- Had each — the State and the private proprietor — owned an undivided one half of the fee, their interest would not have been more definitely divided nor more perfectly united.

It follows from what we have said that the appropriation of this alley to the purposes indicated in the ordinance 39145 was within the power granted the city by its constitutional charter; that the proceeding for that purpose was regular in all respects, and included all private interests in the soil and public use of the alley, and that the judgment of the circuit court vesting all interests in the lands included in the ordinance in the city for a public parkway, was therefore valid and included any interest that the appellant’s grantor had as an abutting property owner in either the title or public use of the alley.

Although, as we said in the beginning of this opinion, the appellant has not, in his pleadings, placed himself in position to enjoin this work because it would damage his abutting property, we will say that in our opinion section 13 of article 10 of the charter gives the right to the owner of any property damaged by the appropriation of the property described in the ordinance and shown on the map made in accordance therewith, to the use contemplated in said ordinance, to claim and recover the damages therefor in the condemnation proceeding. There is no damage or wrong suggested in this case other than that resulting from the appropriation of the alley, and that being directly in issue the judgment of the court is conclusive upon all questions of damage arising from it to property outside as well as inside the metes and bound of the description contained in the ordinance.

The conclusion at which we have arrived in the foregoing opinion makes it unnecessary for us to examine the many other interesting questions presented by counsel. The judgment of the Jackson Circuit Court will be affirmed.

Blair, C., concurs.

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

All concur, Bond, J., in result.


text:
    GEORGE SCHMIDT et al. v. SUPREME COURT, UNITED ORDER OF FORESTERS, Appellant.
    Division One,
    June 30, 1914.
    1. JURISDICTION: Supreme Court: Consent. Jurisdiction cannot he conferred on the Supreme Court by consent of the parties, and if its jurisdiction has been improperly invoked, the court will upon its own motion refuse to exercise it.
    2. -:--: Constitutional Question. A litigant cannot on a second appeal invoke the jurisdiction of the Supreme Court by contending that certain statutes, which had been upheld by the highest courts of the State and Nation and upon the validity of which he had sought a decision in his favor at the former trial, are unconstitutional, thus using them to invoke jurisdiction upon the other questions in the case while abandoning them for every other purpose.
    Appeal from St. Louis City Circuit Court. — How. George H. Shields, Judge.
    Transferred to St. Louis Court of Appears.

      Douglas W. Robert for appellant; Robert $ Robert of counsel.

      W. F. Heideman for respondents.
   BROWN, C.

This is the second appeal in this case. The first was from a judgment for the defendant in the circuit court, to the St. Louis Court of Appeals, where it was affirmed, (124 Mo. App. 165), but certified to this court on the statement of the judges that the decision was contrary to the decision of the Kansas City Court of Appeals in Huff v. Woodmen, 85 Mo. App. 96. The opinion of this court reversing the judgment of the St. Louis Circuit Court and remanding the cause for trial appears in 228 Mo. 675.

Upon a retrial there was a verdict and judgment for $1455, from which this appeal has been taken directly to this court, apparently on the ground that the cause involved the construction of the Constitution of the United States.

The respondent is a fraternal beneficiary association organized under the laws of Wisconsin. The plaintiffs are half-brothers and half-sisters of Charles H. Posz, a resident of St. Louis, Missouri, a member in good standing of its local auxiliary organization in that city called Court Benton No. 129, and was as such the owner of a certificate entitling his beneficiary to $1000' in case of his death. The defendants are now the beneficiaries. The certificate was issued December I,1901. The association was first admitted to do business in this State, in accordance with the provisions of section 1410 of the Revised Statutes of 1899, January 6, 1902. Mr. Posz died by suicide May 15', 1903. Mr. Posz’s application for beneficiary membership in the association, including the insurance, dated November 15, 1901, contained the following questions and answers:

100. Number of brothers living? None.
103. Number of brothers dead? None.
106. Number of sisters living? None.
109. Number of sisters dead? None.

Also the following statements:

122. I hereby affirm and declare that the answers to each and all of the above questions as to my family history are true and correct, and that no intentional omission, concealment or mental reservation has been made of any material fact or circumstance relating thereto, and I agree that said questions and answers shall form a part of my contract with the United Order of Foresters.

124. I have verified each of the foregoing answers and statements as to my personal history, ad'Opt them as my own, whether written by me or not, and warrant that they are full, complete and absolutely true. I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of said answers and statements. I further agree that the foregoing answers and statements are offered by me as a consideration for the contract applied for, and are hereby -made a part of any benefit certificate or policy of insurance that may be issued to me by the United Order of Foresters.

125. I further agree that all of said answers are material, and if any one of them is false or untrue, then I or my beneficiary or beneficiaries have no claim on the United Order of Foresters.

4. That if my death ensues by reason of suicide or self-destruction, voluntary or involuntary, or while sane or insane, no benefits shall be due to my beneficiary or, beneficiaries on account of my death. ...........

7. That the laws of the society, in force on the date of my death, shall determine the rights of my beneficiary or beneficiaries, and that this .application and all rights and privileges accruing to me or my beneficiary or beneficiaries thereunder, shall be limited by and subject -to all laws, rules and regulations which are now in force, or which may hereafter be enacted or adopted by the United Order of Foresters.

A “law” duly enacted by the association was as follows:

“Sec. 9. Suicide. — The United Order of Foresters does not insure against suicide nor against self-destruction, and if any member shall commit suicide or self-destruction, or shall be the means in any manner of taking his own life, he shall by such act forfeit his certificate of membership, together with all rights and benefits due him or his beneficiary or beneficiaries from the Supreme Court or a High Court or a Subordinate Court.”

At the trial the defendant asked and the court refused to instruct the jury substantially as follows:

5. That the' fact that the defendant did not at the time it issued the certificate have a license to do business in Missouri would not preclude it from the defense of suicide and false representation for the reason that section 1410' of the Revised Statutes of Missouri 1899 is in conflict with section 1 of the Fourteenth Amendment to the Constitution of the United States, because it denies the defendant the equal protection of the laws of this State with corporations organized under the laws of this State.

6. That the same section 1410 is unconstitutional because it is a regulation of commerce between Missouri and Wisconsin.

7. That section 7890' of the Revised Statutes of Missouri 1899, with reference to misrepresentations being immaterial unless the matter misrepresented shall have actually contributed to the death, is unconstitutional and in contravention of section 1 of the Fourteenth Amendment, because it denies the defendant the right to contract.

8. -That section 7896 of the Revised Statutes of Missouri 1899, with reference to suicide, is unconstitutional for the same reason.

Upon the facts stated we are confronted at the outset with the question of our jurisdiction of this appeal. If it can be maintained it is only upon the ground that it involves the construction of the Constitution of the United States. While the question is not raised by the respondent, our jurisdiction is conferred by the Constitution, and not by the consent of the litigants. If it has been improperly invoked, it is our duty upon our own motion to refuse to exercise it.

Neither party has, in its 'brief, called our attention to any provision of the Constitution which it desires us to construe. Although the amount of the judgment is very far below the amount necessary to give us jurisdiction on that ground, the appellant has not seen fit to indicate why it is here, but has left us to search the record for our own justification, whether we accept or refuse it. We have done so with the following result. The suit was instituted November 19', 1903, in the circuit court for the city of St. Louis, and was tried in due course, resulting in a judgment for defendant. An appeal was taken to the St. Louis Court of Appeals, where the judgment was affirmed April 2, 1907, but the cause was transferred to this court because the judges of that court deemed its decision in cpnflict with the decision of the Kansas City Court of Appeals in Huff v. Woodmen, supra. The judgment was reversed by this court June 14,1910', and the cause remanded to the St. Louis Circuit Court for another trial, which was had in June, 1911, resulting in the judgment for plaintiff from which this appeal was taken. It is evident that during the seven and one-half years of litigation that intervened between the institution of the suit and the last trial, no question of constitutional construction was raised. At the trial a second amended answer was filed calling attention to the claim that each of the sections 7890' and 7896, Revised Statutes 1899, violated the first section of the Fourteenth Amendment to the Federal Constitution because it denied the defendant the right to contract, and therefore deprived it of its property without due process of law.

During the trial instructions were asked by defendant not only on the theory of the uneonstitutionality of sections 7890 and 7896 for the reason stated in the answer, but also on the theory that section 1410 of the Revised Statutes of 1899', which requires foreign fraternal beneficiary associations, before they shall be admitted to do business in this State, to conform to the requirements of said section, is unconstitutional “because it denies to the defendant the equal' protection of the laws in this State with corporations organized under the laws of this State” and “because it is a regulation of commerce between Missouri and Wisconsin. ’ ’

It has been ruled by this court that a question of such gravity as the construction of the Federal Constitution or the Constitution of the State “must be raised as soon as orderly procedure will allow.” In this case there is something more than a question of diligence in the conduct of defendant’s case. It not only failed to introduce this defense by the first open door but undertook to try its case without it, and after winning upon other theories, continued the litigation for years until beaten upon its own ground before it occurred to it to invoke the Constitution as a defense. Had it undertaken to raise the question here upon the first" appeal it would have been too late, for it had not been suggested in the trial court and could not have been raised for the first time in this court. By waiting longer they did not revive their right, for in the meantime this court had directly decided in this very case (1) that section 7896 is a valid and substantive law; (2) that it enters into all contracts affecting life indemnity; (3) that an assessment company to have the benefit of the exemption given it by the Act of 1887 must qualify and take out a license under said section 1410; and that unless and until it did so section 7896 entered into each and every one of its contracts. This necessarily disposed of every constitutional objection sought to be interposed at the last trial, except the one relating to section 7890. Of this the court made a separate mouthful, saying at the conclusion of its opinion:

“The question of false statements has not been urged. If it had been we think there is nothing in it. The alleged false statement was- that the applicant had no brothers and sisters. The proof was that he. had half-brothers and half-sisters. Even without our statute, under the general insurance law we do not think this fatal. Under the statute as applied in the Kern case, supra, it certainly is not fatal. It therefore follows that the trial court erred in its judgment in this case, and the St. Louis Court of Appeals'was in error in affirming such judgment, and' their opinion thereon is overruled, and the doctrine announced in the several cases from the Kansas City Court of Appeals, supra, is approved.” [Schmidt v. Foresters, 228 Mo. 675, l. c. 700, 712.]

These constitutional questions were not only ignored by the defendant and disposed of by the court on the previous appeal, but were stale at the time that appeal was decided, having been definitely disposed of by the Supreme Court of the United States, in the exercise of its paramount jurisdiction to construe the Federal Constitution, in the following cases: Knights Templar v. Jarman, 187 U. S. 197; Whitfield v. Insurance Company, 205 U. S. 489; Life Insurance Company v. Riggs, 203 U. S. 243. These cases contain such an admirable exposition of the law on the subject, including the Missouri statutes and cases, that it is unnecessary to make further citations. Tbe questions being no longer debatable when this appeal was taken furnished no foundation for the jurisdiction of this court. [State v. Campbell, 214 Mo. 362; Boling v. Railroad, 189 Mo. 219; Dickey v. Holmes, 208 Mo. 664.]

Of all these constitutional “questions” there is one that deserves to be singled out and dignified with a word of comment for its novelty. While all tbe others bad been tramped over in tbe march of judicial development until they bad ceased to be obstructions in tbe path, tbe idea that tbe foreign insurance company is an instrument, and its contracts subjects of commerce between tbe States, presented itself as a new discovery in an old and well tilled field, and we naturally turned to the briefs and argument of counsel for an explanation, but they were silent. It then occurred to us that this trial occurred immediately after the decisions of the Supreme Court of the United States and of this court in International Textbook Company v. Pigg, 217 U. S. 91, and the same company against Gillespie, 229 Mo. 397, were promulgated to the public, and that this point had been caught and tied to await an opportunity for further examination.

We do not wish to be understood as deciding whether, or to what extent, a litigant may.invoke the jurisdiction of this court to re-examine a constitutional question once decided by it. That question is not pertinent to this case. We do hold that after waiting for years during the progress of their case, without raising these questions; in the meantime going to trial and inviting a decision of this court assuming and founded upon the validity of all these statutes, which had been upheld by the highest courts of the State and Nation, and generally accepted as the law of the land, they cannot now be permitted, to use them to invoke our jurisdiction upon the other questions in the case while abandoning them for every other purpose.

The case is transferred to the St. Louis Court of Appeals.

Blair, G.., concurs.

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

All the judges concur.