text:
    THE STATE ex rel. LUSK et al., Receivers of St. Louis & San Francisco Railroad Company, v. JAMES ELLISON et al., Judges of Kansas City Court of Appeals.
    In Banc,
    July 12, 1917.
    1. NEGLIGENCE: Duty of Engineer to Trackmen. In determining the relative duties of engineers of switch trains and track workers to each other the Missouri decisions hold: (1) that trackmen are under a duty to look out for their own safety; (2) that an engineer is not required to keep a lookout for trackmen in the ordinary operation of trains; (3) that the engineer has the right to assume that trackmen, although in a place of danger, will, in the exercise of their duty to protect themselves, remove themselves from such place of danger before the train reaches them; and (4) that it is only after the engineer discovers that the trackman is oblivious to his danger and is not going to retire to a safe place that the engineer is obliged to take steps to protect such trackman.
    2. -:-: Eight to Clear Track: Proximate Cause. Plaintiff and his crew were working on what was known as the Middle Yard Lead in switch yards. Having replaced a broken rail and raised the joints with jack screws, they were engaged in filling up the low places with cinders. While the track was thus raised it was not safe to run trains or engines over them. When a certain switch crew, with their engine and cars, attempted to pass over the raised track, plaintff warned and signaled them, and they waited until tne jacks were removed and then proceeded. The same thing occurred a second time. When the switch crew started to pass over the track a third time, the plaintiff says that the engineer was looking towards the back end of his train, and not towards the front end, and that, in attempting to signal the engineer, he left his track, and as he went to one side thereof he was struck by a car coming from the opposite direction on what was called the East Yard Lead, whose tracks were eight feet from the Middle Yard Lead. Held, that the engineer was not entitled to a clear track on the Middle Yard Lead,, but his negligent failure to be on the lookout for plaintiffs signal cannot be held to have been the proximate cause of plaintiff’s injuries.
    3. -: -: Proximate Cause: Anticipating Injury to Trackman. Where the trackman, in an attempt to. signal an engineer whose engine was about to pass over the track and who was not entitled to a clear track, stepped from a place of danger on the track to signal the engineer, and in doing so got so close to another track that he was struck by a car rightfully moving thereon, the negligent failure of the engineer to keep a proper lookout for the track-man’s safety was not the proximate cause of his injury, for it was the duty of the trackman to be on the lookout for moving cars on the adjoining track, and the injury to the trackman, in the manner in which it occurred, was not one reasonably to be anticipated by the engineer; and the Court of Appeals, in holding that the engineer’s negligence was the proximate cause of the trackman’s injury, contravened the previous rulings of the Supreme Court in American Brewing Association v. Talbot, 141 Mo. 1. c. 683 et seq., and similar cases.
    4. CERTIORARI: Conflict in Principles of Law. It is sufficient to uphold a writ of certiorari to a Court of Appeals on the ground of failure to follow the last previous rulings of the Supreme Court, that the holding of said court, on a given state of facts, contravened the well established rulings in law or equity of the Supreme Court.
    Certiorari.
    Record quashed.

      W. F. Evans, Cowherd, Ingraham & Durham and Hale Houts for relators.
    (1) The decision of the Court of Appeals in holding that the relators owed plaintiff, a trackman, the duty to watch out for his safety upon the tracks and particularly upon the east yard lead, is in conflict with all previous decisions of this court defining the duty owed by railroad companies to trackmen, and more particularly with the decision of this court in the cases of Cahill v. Railroad, 205 Mo. 393; Degonia v. Railroad, 224 Mo. 564; Nivert v. Railroad, 232 Mo. 626; Rashall v. Railroad, 249 Mo. 509; Cabal v. Railroad, 251 Mo. 257. (2) The decision of the Court of Appeals in holding that the alleged failure of the engineer to keep a lookout for plaintiff was the proximate cause of his being injured on the other track by a box ear coming in the opposite direction is in conflict with all of the previous decisions of this court oh the question of proximate cause and more particularly with the decisions in these cases: Ralyea v. Railroad. 112 Mo. 86; Butz v. Cavanaugh, 137 Mo. 503; Coin v. Lounge Co., 222 Mo. 488; Brewing Co. v. Talbot, 141 Mo. 674. (3) The decision of the Court of Appeals in refusing to hold that plaintiff’s own negligence • was the sole cause of his injury is in conflict with the last .previous decision of this court in the case of Coin v. Lounge Co., 222 Mo. 488.

      Calvin & Rea and George C. Coggburn for respondents. .
    (1) The recovery had, and so far upheld, in this cause, is predicated'upon the theory that the negligent failure of the engineer to observe and obey the signal being given him by respondent, became, and was, the proximate cause of respondent’s injury; and the cases cited by'relators, holding that a railroad company owes no duty to warn trackmen of the approach of its trains, are not applicable; and, moreover, there is no conflict as between .the .decisions as rendered in those cases and the decision as rendered in the instant case. (2) The Kansas City Court of Appeads, in rendering its decision in this 'cause, was without the guidance of any decision of this court, inasmuch as this court has never dealt with the precise question as here involved. And this court will not, in this proceeding, quash the decision as rendered by the Kansas City Court of Appeals, seeing that it is not a decision rendered in defiance of the supremacy of this court, and that the Kansas City Court of Appeals becomes, and is, a court of last resort in cases within its appellate jurisdiction. State ex rel. v. Moore,. 84 Mo. App. 11; State ex rel. v. Yalliant, 123 Mo. 524; State ex rel. v. Walbridge, 116 Mo. 656; Summerrow v. Johnson, 56 Árk. 85; Cushing v. Gray, 23 Me. 9. (3) This court will not deal with the question as to whether or not the negligent failure of the engineer to heed the warning signal, became, and was, the proximate' cause of respondent’s being injured, so long as the decision under consideration is found not to be in conflict with the rulings of this court upon a similar or identical state of facts as the instant case presents. Cases supra. (4) Under all the testimony adduced upon the trial of this cause, it was a proper question for the jury to determine whether or not the negligent failure of the engineer to heed the warning signal became, and was, the proximate cause of the injury in question. Employers’ Liability Act (Act April 28, 1908), c. 149, U. S. Comp. Supp. 1911, p. 1323; Witham v. Delano, 184 Mo. App. 677; Hardwick v. Railroad, 181 Mo. App. 156; Cent. Dig. (Master & Servant), 671; Dee. Dig. (Master & Servant), sec. 228; Thornton’s Federal Employers’ Liability Act (3 Ed.), sec. 72; Penn Ry. Co. v. Cole, 214 Fed. 948; Ellis v. Railroad, 155-Ky. 745; Railroad v. Wene, 202 Fed. 887; Toby v. Railroad, 33 L. R. A. (Iowa) 501; Railroad v. Wignan, 56 111. 489; Railroad v. Neibel, 214 Fed. 95.3; Knapp v. Railroad, 153 N. W. (Minn.) 848; Donselliod v. Railroad, 94 Atl. (N. J.) 804; McMarshall v. Railroad, 80 Iowa, 757. (5) It was also a proper question for the jury to determine whether ■ or not respondent’s injury was directly due to relators’ negligence; whether or not respondent was guilty of contributory negligence; and, to consider and compare the negligence and contributory negligence of the respective parties, as touching liability for the injury which respondent sustained. Hardwick v. Railroad, 181 Mo. 677; Schlemmer v. Railroad, 205 U. S. 1; Penkey v. Railroad, 180 Mo. App. 202; Ellis v. Railroad, 155 Ky. 745; Louisville v. Wene, 202 Fed. 887; Railroad v. Cole, 214 Fed. 948; Railroad v. Beauregard, 36 Sup. Ct. Rep. 126. (6) In view of all the facts as disclosed by this record, and under any reasonable view which may be taken with reference- thereto, the question of appellants ’ negligence and respondent’s contributory negligence, as well as all other questions upon the material issues in this cause, were- properly submitted to the jury, and under appropriate instructions; and, no error materially affecting the merits of this action appearing, the finding thereupon should remain conclusive. Sec. 2082, R. S. 1909; Barkley v. Association, 153 Mo. 300; Jones v. Railway, 178 Mo. 528; Peterson v. Transit Co., 199 Mo. 331; Moekowik v. Railroad, 196 Mo. 550; Stump v. Kopp, 201 Mo-. 412; Berry v. Railroad, 214 Mo. 593; Mann v. Doerr, 222 Mo. 1; Hannon v. Transit Co., 102 Mo. App. 216; Woody v. Railroad, 104 Mo. App. 678; Railroad v. Railroad, 110 Mo. App. 300; Caplain v. Transit Co., 114 Mo. App. 256; Cross v. Gould, 131 Mo. App. 585.
   GRAVES, C. J.

Certiorari to the Kansas City Court of Appeáls, bringing up the judgment and opinion of that court in the case of S. B. Brightwell (Plaintiff), Respondent, v. James W. Lusk et al., Receivers (Defendants), Appellants. Brightwell’s action' was one for personal injuries, and was brought under the Federal Employers’ Liability Act. Defendants were the receivers of the St. Louis and San Francisco Railroad Company. Plaintiff was foreman of a crew repairing tracks in the switch.yard of the said railway in Kansas City, Mo. Plaintiff and his crew of three men were working on what was known as the “Middle Yard Lead” in those switch yards. They had replaced a broken rail and were thereafter engaged in raising the joints and filling up the low places with cinders. Jacks were used to raise these joints and whilst the track was thus raised by the jacks it was not safe to run cars and engines over them. When a certain switch crew, with their engine and cars, attempted to pass over this track, plaintiff warned or signaled them, and they waited until the jacks were removed and then ran on over .the rails where the plaintiff’s crew was at work. The same thing occurred a second time, and when the switch crew started to pass over this track the third time, plaintiff says that the engineer was looking toward the back end of his train, and not toward the front end, and that he, in attempting to signal the engineer, left his track and going to one side thereof in order to give the signal of warning was struck by a car coming from the opposite direction on what was called the “East Yard Lead” track. He says these tracks (Middle Yard Lead, and East Yard Lead) were eight feet apart. Defendants’ evidence makes them ten to fourteen feet apart. At eight feet apart, there was a clear space of four feet between passing trains.

The petition charges as negligence (1) the failuro of the engineer running on the “Middle Yard Lead” to keep a lookout for plaintiff’s signals, and (2) the running of the car on the “East Yard Lead” “without having some person thereon, and in charge thereof, aforesaid, to warn persons of its approach, or to stop same before allowing "it to collide with persons who happened to be on the track.”

In the trial court the case was submitted to the jury on the negligence of the engineer only. The latter alleged negligent running of the car on the East Lead Track was eliminated.

The plaintiff had judgment for $5,000, and the Kansas City Court of Appeals affirmed this judgment, and our writ was directed to this judgment of affirmance. Other details can best be stated in the course of the opinion.

I. As stated, the- Court of Appeals held' that the negligence of the engineer was shown b> the facts, and that such negligence was the proximate cause of the injury. The relat7 17 n 1 17 • i 77* 1 ors here contend that this holding contravenes our rule as announced in a line of cases of which Degonia v. Railroad Co., 224 Mo. 564; Cahill v. Railroad Co., 205 Mo. 393; Nivert v. Railroad Co., 232 Mo. 626; Rashall v. Railroad Co., 249 Mo. 509, and Gabal v. Railway Co., 251 Mo. 257, are samples. Recollecting that the question passed upon is the alleged negligence of the engineer in not looking forward for a signal from plaintiff, let us compare the ruling with the doctrine of our cases cited, supra. Those cases hold (1) that track-men are under a duty to look out for their own safety; (2) that an engineer is not required to keep a lookout for trackmen in the ordinary operation of trains; (3) that the engineer has the right to assume that track-men, although in a place of danger, will in the exercise of their duty to protect themselves remove themselves from such place of danger, before the train reaches them, and (4) that-it is only after the engineer discovers that the trackman is oblivious to his danger and is not.going to retire t,o a safe place, that the engineer is obliged to take steps to protect such trackman.

It will be noted that these cases also fix the liability of the master for the negligence of the engineer on the ground that such engineer knows of the danger to which the trackman is exposed, and knows, or should know by the exercise of care, that the trackman is' oblivious to the threatened danger. In the case at bar the facts do not justify the conclusion that this particular engineer was entitled to a clear track. He knew these men were doing this particular work, because he had twice run over this track and awaited the removal of the jacks. Whilst the question was properly raised by the trial court’s refusal to give a peremptory instruction for defendant, yet if the injury to plaintiff had been caused by the negligence of the engineer, we cannot say that the ruling .contravenes the eases cited. This engineer knew that he did not have a clear track. This, because he knew these men were placing jacks under the rail joints, and his track could not be clear. He might have had the-right to expect his track to be clear of plaintiff and his crew, because it was their duty to be on the lookout, but he did not have the right- to expect a clear running-track, because of the knowledge he had' of the work which was being done .thereon. But the damage in this case was not occasioned by the- running of the • train over the track where plaintiff was working, nor where plaintiff was injured. The train was stopped before reaching the point where plaintiff and his crew were working. No injury was directly occasioned by the management of this train. This train did not collide with the plaintiff. As we gather the case, the serious contention is: that the failure of the engineer to be looking forward for a signal from the plaintiff, occasioned the plaintiff to move to one side of the track to give the signal, and that this move resulted in plaintiff’s injury. The real question is, was the alleged negligence the proximate cause of the injury? The Court of Appeals said it was, and this holding is charged to he violative of holdings of this court. This question we take next.

II. Before discussing the question of proximate cause it might he well to dispose of a minor contention. In relators’ brief, under Point 1, it is said:

“The decision of the Court of Appeals, in holding that the.relators owed plaintiff, a trackman, ^he duty to watch out for his safety upon the tracks and particularly upon the East Yard, Lead, is in conflict with all previous decisions of this court defining the duty owed by railroad companies to trackmen, and more particularly with the decision of this court in the cases” cited. (The italics are ours).

' If the trial court or the Court of Appeals had undertaken to fix liability on the alleged negligent running of the car on the East Yard Lead, then there might be substance in this claim. Neither court undertook to so fix liability. The trial court did not submit such an issue, nor did the Court of Appeals undertake to pass thereon. In both courts the real issue was that the failure of the engineer to be upon the lookout for plaintiff’s signal was the proximate cause of the injury. The rule in Degonia’s case was not an issue in this case. It might have been had the second ground of negligencé been urged, but it was not.

III. The real question in this case is whether or not the alleged negligence of the engineer was ^ie proximate cause of the injury, and whether or not the ruling of the Court of Appeals contravenes the decisions of this court upon that question. . The Court of Appeals in the opinion thus states the matter:

“The engine was running slowly, not over four or five miles per hour, and was stopped before it reached the track jacks. The petition alleged that the proximate cause of the injury was negligence of the engineer in approaching the track jacks without looking for a stop signal and negligence is running the car along the east track without having an operator thereon to give warning' of its approach. In the instructions the court withdrew the latter charge from the jury and authorized- a verdict for plaintiff only upon the hypothesis that the alleged negligence of the engineer was a proximate cause of the injury.”

It will he seen that the one single issue was before the Court of Appeals. As stated by the Court of Appeals the evidence is conflicting. For plaintiff it tends to show that the engineer was looking back at the “drag” of cars, and not toward .the front of the moving train; that plaintiff was trying to signal him. to stop the train, and in his. efforts so to do, stepped across so near another track that he was knocked down and injured by a ear which had been shunted down that track. Singular to note, that, although plaintiff’s case proceeds on his inability to give the warning to the engineer, because he was looking backward, instead of forward, yet the engineer did stop his train before the danger point was reached. The Court of Appeals thus states the defendant’s side of the controversy:

“The engineer testified that plaintiff was not trying to signal him, but seemed to be looking intently at the track work. He said: T tooted the whistle two or three times for him to get out of the way or step one way or the other and he stepped over, that is, he came there in front of this box car that was coming down towards the crossover, then I seen that he didn’t see this car and so I hollered at him, the time was so short, and the car was so close from him that he did not seem.to realize, did not seem to hear me, and did not look up at all, and the car hit him.’ ”

That court, and we think rightfully, took the position that plaintiff’s evidence alone should be considered in determining the facts against which a demurrer to the evidence had been lodged. Defendant was contending that its demurrer to the plaintiff’s case should have been sustained, because such evidence did. not show ■that the alleged negligent' act was the proximate cause of the injury. In other words, that plaintiff had failed to make a case for the jury upon the first alleged ground of negligence.'

Proximate cause is a broad term, and whether or not a given or stated act is the proximate cause of an injury may depend upon other and surrounding facts. In the case at bar the facts for plaintiff are few and simple. Pie in the exercise of his duty thought it necessary to signal the engineer. Owing to the fact that the engineer was not looking toward him, he stepped out to one side to give this signal, and in so doing gqt so close to another track that a moving car thereon (and rightly moving thereon so far as this case is concerned) struck and injured him. This states the whole case. The question then is, was the injury to plaintiff, in the manner in which it occurred, one reasonably to have been anticipated by the engineer? Stated differently, were the existing facts such that the engineer should have reasonably anticipated that his failure to look forward would result in the- injury to plaintiff, in the manner in which such injury occurred. Under Gabal v. Railroad, 251 Mo. l. c. 268, and Degonia v. Railroad, 224 Mo. 564, and other similar eases, it was the duty of plaintiff to be on the lookout for moving trains or cars on the adjoining track. The engineer had the right to rely upon the fact that plaintiff would protect himself from injury from that source, no matter what duty he might have been- performing for defendant. And this is an important fact in considering whether or not the engineer should have anticipated the injury to plaintiff,' in failing to look forward.

If the injury was not one reasonably to have been anticipated as a sequence to the failure of the engineer, then such failure was not, in law, the proximate cause of -the injury. This doctrine is announced in American Brewing Assn. v. Talbot, 141 Mo. l. c. 683, whereat we said:

“Numerous-authorities hold that it is not negli-' genee not to take precautionary measures to prevent an injury which, if taken, would have prevented it, when the injury could not reasonably have been anticipated and would not, unless under exceptional circumstances, have happened.”

In the-same case, 141 Mo. l. c. 684, we quote with approval the following from “Negligence of Imposed Duties” by Ray:.

“The proper inquiry is not whether the accident might have been avoided if the one charged with negligence had anticipated its occurrence, but whether, taking the circumstances as they then existed, he was negligent in failing to anticipate and provide against the occurrence.’ ’

So too, on the same page, and the one following, we quoted with approval from Webb’s Pollock on Torts, the following:

“Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain ■ special and more ' stringent rules) the harm complained of is not such as a reasonable man in the defendant’s place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin, 5 Ex. 248, namely, Ghat a person is expected to anticipate and guard against all reasonable consequences, but that lie is not, by the law of England, expected to anticipate and guard against that which no reasonable mán would expect to occur,’ appears to contain the only rule tenable on principle where the liability is founded solely on negligence. ‘Mischief which could by no possibility have been foreseen, and which. no reasonable person would have anticipated’ may he the ground of legal compensation under some rule of exceptional severity, and such rules,- for various reasons, exist; .but under an ordinary rule of due care and caution it can not be taken into account.”

Prom it all, we take it, that the established rule of this court is that if the injury, as occasioned, was not one which could have reasonably been anticipated as a sequence of the alleged negligent act, then the alleged negligent act was not in law the proximate cause of the injury, and no recovery can he had therefor. It is this principle of law that the Court of Appeals has contravened in the case at bar. “G-rey Mule” cases as to facts are not required. It is sufficient that on a given state .of facts the holding of the appellate court contravenes well established rulings in law or equity as made by this court.

Conceding in the instant case that the engineer failed to look for a signal from plaintiff, yet it cannot be said that the engineer could have reasonably anticipated that the plaintiff would get over on or in close proximity to another track, and that a car or train thereon would strike and injure him. On the other hand he had the right to assume that plaintiff, so far as the other track was concerned, would protect himself. Under the facts the engineer could not reasonably anticipate that his failure to look forward would he followed by injury to plaintiff at the time and in the manner of its occurrence. The ruling of the Court of Appeals in holding that the act of the engineer was the proximate cause of this injury, is opposed to the general doctrine announced in American Brewing Association v. Talbot, supra, and other similar rulings of this court. It follows that the record and judgment of such court should be quashed, and it is so ordered.

All concur, except Bond, </., who dissents.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    THE STATE ex rel. W. B. HAYS v. W. R. ROBERTSON et al., Judges of Springfield Court of Appeals.
    In Banc,
    July 12, 1917.
    1. CONFLICT OF DECISIONS: Similar Facts: Certiorari. If the decision of the Court of Appeals is opposed to the conclusion reached upon similar facts in the previous cases of the Supreme Court, such decision should be quashed.
    2. -: -: Foreign Corporation: Doing Business Without License. Since the facts of the case of Mergenthaler Linotype Company v. Hays, 181 S. W. 1183, are the same in all material substance as those of United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, the decision of the Court of Appeals holding that said Lino-type Company was not doing business in this State within the meaning of the statute (Secs. 3037, 3039 and 3040, R. S. 1909) must be quashed.
    3. -: -: -: -: Office in State. The fact that in the Ramlose case the United .Shoe Machinery Company maintained an office in this State, while in the Mergenthaler case the Linotype Company had no such office, does not distinguish the cases, for the reason that the statute itself requires an office to be maintained, and no difference in favor of the Linotype Company can -be bottomed on its failure to comply with the statute.
    4. -: -: -: -: Warehouse. In the Ramlose case only repair parts and pieces for use upon the leased machines were kept in the company’s Missouri warehouse, but its business was not that of selling repairs, but of leasing machines. In the Mergenthaler ease $600,000 worth of linotype machines were moved bodily into this State and leased out at an annual rental far in excess of what their selling price would seem to warrant. Held, that the fact that the Linotype Company had no warehouse did not distinguish the cases, but if there is any difference the facts of the Mergenthaler case are stronger than those of the Ramlose case.
    5. FOREIGN CORPORATION: Leasing Machines and Collecting Rents: No License. No foreign corporation can through a period of ten years engage in this State in the business of renting out its property at an annual rental reserved, and of collecting rent yearly throughout rental periods of six years, without taking out a license to do business in this State. Such dealing is not buying and selling; it is not traffic; it is dealing with the property after the interstate commerce character of the shipment has ceased.

      6. -: -Conflict in Decisions: Royalty or Lump Sum. The fact that in the Ramlose case the foreign ^corporation collected the rental on its leased machines in the shape of one cent royalty on each pair of shoes manufactured does not distinguish it from the Mergenthaler case wherein the Linotype Company collected $632.50 per annum as rental for each machine leased. Both are in effect rent charges. .
    7. -:-:-: Agents: Interstate Commerce. The fact that the foreign corporation had resident agents in this State did not make its business of moving a large number of machines into this State, renting them for a long number of years at an annual rental, collecting the rents, and taking back the machines at the end of the rent period, interstate commerce. Agents are necessary instrumentalities of extensive intrastate or interstate commerce, and in no wise distinguishes the one from the other,.
    8. --■ — : Burden of Proof. The burden of proof is on the defendant to show that the plaintiff, a foreign corporation, is engaged in doing business in this State without a license.
    9. -: Proof of Contract: Admitted by Answer. ’A holding of the Court of Appeals that the defendant is not in a position to raise the point that he did not execute the contract sued on,- because his answer clearly admits the contract, is not in conflict with prior rulings of the Supreme Court.

      Certiorari.

    Judgment quashed.

      Sheppard & Sheppard, Leslie C. Green and Ernest A. Green for relator.
    (1) The respondents, in their opinions filed in the case of Mergenthaler Linotype Company v. Hays, held, as a matter of law, that there was no evidence of the transaction of business by the plaintiff, Mergenthaler Linotype Company, in this State; in so holding, the decision was in direct conflict with three controlling decisions of the Supreme Court. Linotype Co. v. Hays, 181 S. W. 1183; Linotype Co. v. Hays, 182 Mo. App. 113; Machinery Co. v. Ramlose, 210 Mo. 631; Machinery Co. v. Ramlose, 231 Mo. 508; Kansas City v. McDonald, 175 S. W. 917. (2) The opinions of the respondents are also in direct conflict with certain other decisions of the Supreme Court, and of - other courts of appeals, in holding that the answer filed by the defendant in said case in the circuit court admitted the execution of the contract of lease sued upon. Linotype Co. v. Hays, 181' S. W. 1183; Ruckman v. Milling Co., 139 Mo. App. 256; Kelley v. Thuey, 143 Mo. 436; Bldg. & Loan Assn. v. Obert, 169 Mo. 518; Campbell v. Wolf, 33 Mo. 459; Bowling v. Hax, 55 Mo. 446.

      David W. Hill for respondents.
    (1) The lease in suit was executed on the 12th day of May, 1910, and the plaintiff at no time had an office in Missouri, and not doing business in this State until about the first day of January, 1913, and up to that time was transacting business through traveling salesmen, which is permissible, according to the last proviso of Sec. 3040, R. S. 1909. (2) The facts of this ease on the second appeal being substantially the same as they were on the first appeal, the law of this case was settled by the Springfield Court of Appeals on the first appeal, by the opinion written by Judge Farrington, and among the many cases cited by the Springfield Court of Appeals, on the first appeal, are two of the cases which are referred to as controlling decisions of the Supreme Court, to-wit: United Shoe Machinery Co. v. Ramlose, 231 Mo. 508; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631. In that opinion the Springfield Court of Appeals distinguishes the facts in the case last above mentioned from the facts in the case at bar. Linotype Co. v. Hays, 182 Mo. App. 113. (3) The most casual comparison of the facts in the case at bar with the facts in the cases cited by relator as controlling cáses of the Supreme Court will convince this court that there is no conflict whatever. Furthermore, the two decisions of the Springfield Court of Appeals should be read together, and as they distinguish the facts of the ease at bar from the facts stated in the decisions which relator says control, for those reasons, the writ of certiorari should be quashed. State ex rel. v. Ellison, 263 Mo. 509. (4) The.court will hear in mind that no writ of certiorari was sued out as to the first decision of the Springfield Court of Appeals, hut was only sued out after the case was decided a second time by the Springfield Court of Appeals. The first decision settled the law of the case, was not in conflict with any decision of the Supreme Court, and under the doctrine of stare decisis the Court of Appeals was bound to follow its decision. Cape Girardeau & T. B; T. R. Co. v. Bridge Co., 215 Mo. 286.
   FARIS, J.

This is an original proceeding by certiorari to bring up to this court the record of the Springfield Court of Appeals in the case of Mergenthaler Linotype Co. v. Hays, 181 S. W. 1183. Two opinions have been written in the case by the learned Springfield Court of. Appeals. [182 Mo. App. 113.] In the opinion last rendered but first above cited, references are made to the first opinion for many of the- facts and for much of the law.

It is urged by relator as his ground for quashal, that the opinion of the Court of Appeals is in conflict with, the ease of United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, and of other cases of similar import. The point upon which the case turns is what constitutes the transaction by a foreign corporation of business in this State within the purview of sections 3037, 3039 and 3040, Revised Statutes 1909.

The facts in the Ramlose case which we held constituted the transaction of business in this State are thus stated in the reported case:

“Said company, accordingly, about December 18, 1900, and from time to time thereafter, leased certain machines to the defendant, including those he had formerly owned or claimed he owned. The leases contained various conditions, among which were: (1) That the machines should be used by him only in his factory in St. Louis; (2) that he should obtain from the lessor, at prices to be fixed by it, all parts necessary to keep the machines in repair, and also any additional machinery needed; (3) that he should pay all taxes levied on the machines; (4) that he should use the machines to their full capacity; (5) that he should pay the lessor a royalty of one cent a pair for all shoes manufactured, with a rebate allowance of fifty per cent if the royalty was paid by the 15th of the succeeding month; (6) that the lessor should have the right to attach indicators to the machines to register the number of shoes manufactured, and that the lessee should keep accurate accounts of the number of shoes manufactured; (7) that if he ceased to use exclusively the machines leased to him by the company, it should have a right to take possession thereof; (8) that the lease should: run seventeen years, but that the lessor should have the right to terminate it for any breach thereof or for any failure of the lessee to observe any one or more of the conditions of such lease or of any of the leases; (9) that a notice in writing sent through the mails should be sufficient to terminate such leases; (10) that the lessee acknowledged the validity of the lessor’s patents; (11) that no act of the lessor should waive any of the terms of the lease, unless by instrument of writing signed by its president, vice-president or treasurer; (12) that the term ‘lessor’ should include the company, its successors and assigns.”

The facts in the instant case as shown by the proof •below which the learned Springfield Court of Appeals excerpts and briefs for us run thus:

“We will briefly set forth the evidence as shown by this record. The plaintiff had in its employ a traveling salesman or solicitor whose duties required him to visit prospective customers in this State and induce them to enter into either contracts of purchase or contracts of lease. This salesman was working on a salary paid by the plaintiff and traveled in Missouri at the time this contract was made. In May, 1910, he induced the defendant Hays to enter into the contract of lease in question. It was signed by defendants (Hays and Davis) in Missouri, but was not to become a binding contract until accepted by the proper officers of the plaintiff in the State of New York. It was forwarded to New York and by the plaintiff accepted, and under its terms a linotype machine was delivered, to the defendants in the city of New York. The rent, under the terms of the -lease, was payable to the plaintiff in the State of New York. The evidence shows that during the first four months of the year 1910 the plaintiff entered in to'eleven separate and distinct contracts in this State a ad leased twenty-seven separate linotype machines to customers in Missouri, and these machines were all installed during the first four months of the year 1910. It further shows that between December, 1895, and January, 1910, the plaintiff leased about three hundred machines in this State, all of which were installed under substantially the same kind of a contract as the one sued on in this case. The evidence shows that the contract of lease in suit-provides that the plaintiff would furnish a machinist to erect the machine, at the instance of the lessees. Also that in many cases the plaintiff had sent its machinists into this State to erect and install its machines, and that these machinists were in the employ of the plaintiff and were paid a salary by plaintiff. There is evidence that plaintiff also had in its employ operators of linotype machines who were to.instruct the lessees how to operate the machine. It is shown that on May 12, 1910, the date of the contract of lease in suit, plaintiff had in force in this State ’forty-five other contracts similar to this one, and had forty-five other machines installed in Missouri, and that whenever requested plaintiff sent its machinists into this State to make repairs. It is also shown that in 1913, some three years after this contract was made, plaintiff procured a license to transact business in this State, one of the witnesses saying this was done to conform to the laws of Missouri. The plaintiff, during the ten years prior to the making of this contract, had machines installed in this State the total value of which was approximately $600,000. . .
“Clause 4 of the lease provides that the plaintiff will furnish, at the expense of the lessees, a competent machinist to erect the machine at the place of business of the lessees and a skilled operator to instruct the lessees in its use.' Clause 7 provides that the lessees will maintain the machine and its belongings in good condition and that they will at their own expense at once replace and repair all parts of the machine that become broken or damaged. The lease also provides that the lessor may inspect the machine at any time during the term of the lease, and the evidence disclosed that plaintiff did have in its employ inspectors who would go over the State inspecting its machines at least once every year.
“The evidence, we think, fails (under the authorities cited in our former opinion .and again cited in appellant’s brief now before us) to show that the acts of the plaintiff in making this lease and in performing the terms thereof subsequent to its execution digressed from carrying on business classified as interstate commerce, and wholly fails to evidence any fact showing that plaintiff had undertaken to carry on any local business, or intrastate commerce, in the State of Missouri.”

The contract made between the Mergenthaler Lino-type Company and Hays and Davis is not set out in the last opinion of the Court of' Appeals, but reference is made therein to the first opinion for the contents and provisions thereof. [182 Mo. App. 113.]

I. Upon these facts the Court of Appeals- ruled that the Mergenthaler Linotype Company was not when it made the contract with Hays and Davis on the 12th day of May, 1910, transacting business in Missouri. If this decision be opposed to what we said, or the conclusion which we reached upon similar facts (if the facts are similar) in the Ramlose case, we ought to quash the judgment of the Court of Appeals. That is the sole question to be determined.

When the matters and things transpired out of which the action between the Mergenthaler Linotype Company and Hays and Davis grew, i. e., when the contract of lease between the' above parties was entered into, section 3037, supra, had been construed as to divers phases and upon divers facts by this court. [Roeder v. Robertson, 202 Mo. 522; United Shoe Machinery Co. v. Ramlose, 210 Mo. 631.] It is true that in neither one of these cases do we specifically and categorically set forth what facts and all of the facts which must be shown in order to constitute a transacting of business in this State within the purview of said section 3037. In the Roeder ease the fact that the corporation from which the right which it was sought to enforce emanated, was doing business in this State contrary to the above section, was conceded by the facts agreed on. But if it be found that the facts set out in the Ramlose case are so far similar to the facts found by the learned Springfield Court of Appeals as that the same rule of law should .be applied in both cases, then of course we must quash a judgment which upon similar facts announces a different rule of law. Comparing the facts shown respectively in the two cases they run thus:

In the Ramlose ease the articles, to-wit, patented shoe making machines, (a) were leased by the United Shoe Machinery Company to Ramlose for seventeen years; in the Mergenthaler case the article, to-wit, á lino-type or type-casting machine was leased to Hays and Davis for six years; (b) in the Ramlose case the rent reserved (called therein royalty) was one cent per pair on each pair of shoes made by the lessee; in the Mergentha'ler case the rent was $632.50 in cash per year, payable in advance; (c) the leased machines in both cases were to be used only in the respective places of business of the lessees; (d) all pieces or parts necessary to replace broken or worn parts were in both cases to be bought from the lessors respectively, at prices fixed by the latter; (e) lessees in both cases were to pay all taxes .levied upon the machines; (f) in the Ramlose case the leased machines were to be operated to their full capacity ; in the Mergenthaler case it was forbidden to operate the machine more than sixteen hours per day; (g) in the Ramlose case the lessor had an agent and a place of business in this State; in the Mergenthaler case lessor had an agent, but no office or place of business of any kind in this State; (h) in both cases the contracts were to be performed in Missouri, i. e., tbe leased machines were to be used in Missouri, and the lease contracts were signed by the lessees in this State and by lessors in the foreign states of their respective domiciles; (i) it ..does not clearly appear in the Ramlose case how much business had been done by the lessor prior to the execution of the lease contract there in question; in the Mergenthaler case lessor had been engaged in the business of leasing type-casting machines for ten years before the lease-contract in question was made and had installed in this State under similar contracts machines of the aggregate value of approximately $600,000; (j) in the Mergenthaler case skilled machinists, operators and inspectors were kept constantly in the employ and pay of lessors for work in this State, but when services were rendered by the machinists and operators in erecting, or in giving instructions as to the operation of the leased machines such services were charged to, and were to be paid by the lessees; it does not clearly appear that such was.the case in the Ramlose case, except that upon a dispute arising as to tbe quantity of shoes made on which royalty, or rent, should be charged, the lessor insisted in naming the operators who should be hired by lessee; (k) in the Mergenthaler case there was given under the most stringest conditions as to time and notice of the exercise thereof, an option to purchase the leased machine after one year; in the Ramlose case there was no such option; (1) in the Mergenthaler case the machine was to be returned to lessor at the termination of the six-year rental period; in the Ramlose case no such provision seems to be mentioned; (m) in the Mergenthaler case the machine was to be insured by the lessor, but the lessees were to pay the premiums; in the Ram-lose case there was no such agreement; (n) in the Mergenthaler case access to the machine by the agents of lessor at all reasonable times was reserved, and a waiver of landlord’s lien for rent was required; there was no such agreement in the Ramlose case; and (o) both contracts provided in substance that the machines should remain the exclusive property of the lessor, and lessees should have no property right or title in them.

Under these facts, conceded, as this court found them to be, it was held in the Ramlose ease that the United Shoe Machinery Company was transacting business in this State. Was the Mergenthaler Linotype Company doing the like when it made the contract with Hays and Davis three years before it took out a license to do business in this State as a foreign corporation? We think this question must be answered in the affirmative.

In some aspects the Mergenthaler caSe is far stronger in favor of this view than is the Ramlose ease. The chief point of difference is that the Mergenthaler Company had neither an office nor a warehouse in this State: Whatever argument there may be in the fact of the maintenance of a warehouse by one and not by the other, there is no virtue in the argument of a difference based on the maintenance of an office. This for the reason that the statute itself requires that an office be maintained. Surely, no difference in favor of the Mergenthaler Company can be bottomed on its failure even to partially comply with the statute in question. As to the matter of the warehouse, it may be said that by the plainest inference repair parts and pieces only were kept in.such warehouse for use upon the leased machines of the Shoe Machinery Company. Here in the Mergenthaler case $600,000 worth of personal property, to-wit, type-casting machines, belonging to the latter company, were moved bodily into this State and leased out at an annual rental far in excess of that which the selling price of the machine would seem to warrant. In the one case mere repair parts and pieces were moved into the State; in the other some hundreds of type-casting machines were so moved. Moreover, the business of the United Shoe Machinery Company was not that of selling repair parts; it was that of leasing shoe-making machinery; one was merely a convenient incident to the other, its chief business.

"While fully recognizing that the burden of proof was upon defendants in the case of Mergenthaler Linotype Co. v. Hays et al., to show that the plaintiff in that case could not recover for that, being a foreign corporation, it was engaged in doing business in this State without having theretofore complied with the law; yet when it was shown that this company had moved into this State prior to the making of the contract here under discussion more than a half million dollars worth of its property, which it was leasing out under contracts, we are warranted, naught else appearing, in assuming that such transactions were merely part and parcel of its usual and ordinary business. In other words, that this business done by it in'this State differed in no material respect from its usual and ordinary business and from its usual and ordinary method of doing that business in the State of its domicile and in other states.

We are of opinion that any foreign corporation, without taking out a license in Missouri -under sections 3037, 3039, 3040 and 3342, Eevised Statutes 1909, can under the commerce clause of the Federal Constitution, unhindered wholly by us or by the laws of this State, sell its typecasting machines or other commodities to citizens of this State under such terms as it sees fit (Kansas City v. McDonald, 175 S. W. 917; Wulfing v. Cork Co., 250 Mo. l. c. 731), that it can likewise sell repair parts to purchasers of its products or machines, and agree to send its skilled workmen and operatives into this State, at the expense of the users of its machines, to erect the same and teach the manner of the operation thereof. [Milan Milling Co. v. Gorten, 93 Tenn. 590; Flint & Walling Mfg. Co. v. McDonald, 21 S. D. 526.] But we do not think that any foreign corporation can through a period of ten years engage in this State in thé business of renting out its property at' an annual rent reserved, and of collecting that rent yearly throughout rental periods of six years, without complying with our statutes licensing foreign corporations. We need not lengthen-these views by a recital of the reasons for requiring a foreign corporation to maintain an office and obtain a license before permitting such corporation to transact intrastate business in this State. The statute itself which so requires furnishes a sufficient reason for us. But the courts have collated some of these reasons wherein the curious may read them: Vide, Roeder v. Robertson, 202 Mo. 522; Osborne v. Shilling, 74 Kan. 675.

Neither docs it make any difference as between the facts in the Mergenthaler case and those in the Ramlose case, that in one a royalty in lieu of fixed rent was taken as compensation for the use of the machine, rather than a certain fixed cash sum payable annually in advance. Both are in effect rent-charges; both are doing business, though getting cash rent in advance may seem to be doing the better business. Interstate commerce, as to the particular phase confronting us, connotes trafficking transactions between citizens of different Statfes, whereby the title of the seller in the commodity sold is transferred to the buyer, or agreed so to be upon the contingency of payment of the purchase price by instalments or otherwise. [Kansas City v. McDonald, 175 S. W. 917.] 'Not one wherein the property of the quasi-seller is moved bodily into this State and leased for a long term of years for an exorbitant annual rental and to be returned to such seller at the end of the rental period.

The fact that in both cases the companies charged with transacting business in this State had resident agents here, proves nothing. Agents, like transportation companies, are mere instumentalities of commerce. Each is a necessity of commerce common to both intrastate and interstate .commerce, and so factors which in nowise differentiate the one sort of commerce from the other. In interstate commerce the delivery of the commodity to the purchasing citizen of another State may be either in the domicile of the vendor or of that of the vendee; it may be for cash,, or on time, by giving credit and taking back security, by payment-in full or by instalments, but if the title to the commodity does not pass, and is not to pass, certainly the business is not traffic; it is not buying and selling. It is but the bringing of the property of the foreign corporation into this State and so dealing therewith after it is in the State as to make of such property a source of income to the foreign corporation. In short, it is a continued dealing by the foreign company with the property in this State after interstate commerce has wholly ceased its dealings therewith. If such acts do not constitute transacting business in this State it is difficult to conceive what would be necessary in order for a foreign corporation to transact business here. Nor does the fact that a studied effort to give to the transactions a false color of interstate commerce, in any way change this view.

Concerning the further point urged by relator that there is no proof in the record that he executed the contract of lease, it suffices to say that this point, is so answered by the learned Court of Appeals as to leave nothing further for us to say about it. Théy rule that relator “is in no position to raise this point, as his answer in this ease clearly admits the contract of lease and the trial court was justified in finding that he signed it.” This is unquestionably good law.

We are of the opinion upon the other point, however, that the judgment of the Springfield Court of Appeals is in conflict with the case of United Shoe Machinery Co. v. Ramlose, supra, and that the judgment rendered by that court on the 8th day of January, 1916, in the cáse of Mergenthaler Linotype Co. v. Hays et al., should be quashed and for naught held. Let this be done.

All concur, except Bond, J., who dissents. -


author: BLAIR, J.

text:
    MEMPHIS ELECTRIC LIGHT, HEAT & POWER COMPANY, Appellant, v. CITY OF MEMPHIS, J. W. BENCE et al.
    Division One,
    July 14, 1917.
    1. PUBLIC UTILITIES FRANCHISE: Violation of Contract by'City: Injunction. Á city vested with power to do so and having entered into a contract with a light company whereby it agrees not to erect or acquire a competing plant, may be enjoined from violating such contract.
    2. -:-: Agreement Must Be Express and Not Simply Implied. But the agreement by the city not to erect or acquire a competing plant must be clearly expressed in the franchise contract, and cannot be implied from a reservation therein of a right to purchase the public utility company’s plant, or by the fact that the company’s franchise would be useless unless the city is excluded from competition with the company. Such contracts are -construed most strongly against the donee of the franchise and in favor of- the public.
    3. -: -: -: Agreement to Purchase. A reservation in the franchise contract to the city of a right to purchase the electric light plant does not raise an obligation to purchase in case the city is to acquire a plant during the franchise term, or prevent it from building a plant of its own.
    4. -: Construction: Implied by Judgment. A judgment dismissing an injunction brought by the light plant to restrain the city from building a plant of its own on the ground that the city had agreed not to do so during the life of plaintiff’s franchise, is a construction of the franchise, and the trial court is not called upon to construe it further.
    Appeal from Marion Circuit Court. — Hon. William T. Ragland, Judge.
    Affirmed.

      Ben J. Glahn, E. Scofield, J. E. Luther and J. M. Jayne for appellant.
    (1) The express provisions of the statute, franchise and ordinance shall be first considered, and then what is necessarily implied from such expressed' provisions. This is the only rule for finding the true and entire contract and the intention of the parties. Citizens’ St, Ry. Co. v. Railroad, 171 U. S. 48; Los Angeles v. Water Co., 177 U. S. 558; Dillon, Muh. Corp. (4 Ed.), pars. 451-459. (2) The law implies duties and obligations in a contract from those which are expressed, and the implied duties and obligations are as much a part of the contract as those expressed. Depot Co. v. Railroad, 113 Mo. 224; Bishop on Contracts, 241; 2 Parsons on Contracts (6 Ed.), 514; Walla Walla v. Water Works Co., 172 U. S. 1; United States v. Babbitt, 1 Black. 55; Whincup v. Hughes, L. R. 6 C. P. 78; Donahoe v. Kettell, 1 Cliff. 144. (3) Implication is but another term for meaning and intention apparent in the light of judicial inspection. Rhode Island v. Massachusetts, 12 Pet. 723. (4) The purpose of the franchise in question was not to govern the inhabitants of the city, but to obtain a private benefit for the city itself and its citizens. Bank v. Arkansas City, 34 L. R. A. 518, 22 C. C. A. 171, 76 Fed. 271. (5) The obligation of a contract or franchise is the law which binds the parties to perform their agreement; any impairment of the obligation of a contract— the degree of impairment is immaterial — is within the prohibition of the Constitution. Walker v. Whitehead, 16 Wall. 314. (6) The following cases fully support the right to an injunction in this suit: Water Works Co. v. Walla Walla, 60 Fed. 957; Walla Walla v. Water Co., 172 U. S. 1; Water Works v. Westerly, 75 Fed. 181; White v. Meadville, 177 Pa. 643, 34 L. R. A. 567; Vicksburg v. Water Works Co., 231 U. S. 259. (7) The respondent excludes itself from competition during the period named in the franchise, unless it would conclude to take advantage of section 4 of the franchise in this case and purchase appellant’s plant. Vicksburg v. Water Works Co., 202 U. S. 453. (8) Under the amended petition in this case the appellant asks the court “to construe said franchise and contract and define the rights of this appellant and of the respondent (City of Memphis) in and to said contract and franchise.”

      Hays, Heather & Henwood'and Hudson V. Smoot for- respondents.
    (1) The pleading and evidence clearly show that the plaintiff is not entitled to maintain its action, and that under the pleadings and evidence it is not entitled to the relief sought or to any relief. State ex rel. v. Allen, 178 Mo. 555; Waterworks Co. v. Skaneateles, 184 U. S. 354; Joplin v. Light Co., 191 U. S. 127; Gas Light & Coke Co. v. Hamilton, 146 U. S. 258. (2) As the city did not grant an exclusive franchise but expressly provided in said franchise that the same would not be considered as an exclusive franchise, and did not expressly disable itself from erecting and maintaining an electric light plant, no such restriction will be created by implication. Joplin v. Light Co., 191 U. S. 127; Water Supply Co. v. Mobile, 95 Fed. 539; Waterwork Co. v. Skaneateles, 184 U. S. 354; Water Co. v. Freeport City, 180 U. S. 587; Gas Light Co. v. St. Paul, 181 U. S. 142; Stein v. Water Supply Co., 141 U. S. 67; Gas Light & Coke Co. v. Hamilton, 146 U. S. 258; Electric Co. v. Newton, 42 Fed. 723; Water Co. v. Knoxville, 200 U. S. 22. (3) There is no provision whatever in the franchise nor is there any evidence or ordinance by which the city binds itself or requires the city to take or pay for light from the plaintiff. In the absence of such an ordinance or agreement the city certainly has the right to supply itself with lights and to erect and construct a plant of its own for that purpose. If the city is to be denied such a. right under franchise it is by implication, and implication alone, which the courts have repeatedly held could not be done. Stein v. Water Supply Co., 141 U. S. 67; Gas Light & Coke Co. v. Hamilton, 146 U. S. 258; Water Co. v. Freeport, 186 U. S. 578; Joplin v. Light Co., 191 U. S. 127; Water Co. v. Knoxville, 200 U. S. 22. (4) Grant of public franchises are always construed in favor of the public, and all doubt must be resolved in favor of the city, and against the company. Joplin v. Light Co., 191 U. S. 127; Water Supply Co v. Mobile, 175 U. S. 175; Water Co. v. Freeport, 180 U. S. 587.
   BLAIR, J.

Appellant is a corporation operating an electric light plant in respondent city and brought this suit to enjoin the city, the mayor, city clerk and city council from issuing and selling bonds voted in 1916 for the purpose of erecting a municipal light plant. Appellant originally acquired a franchise granted to one Craig and operated under it until its expiration in 1912. In that year a new twenty-year franchise was granted appellant, and it extended its lines and replaced some poles, incurring some expense in so doing.

The 1912 franchise ordinance recited the expiration of the former franchise and. that appellant sought a renewal and provided that “in consideration of the benefits that will accrue to the city of Memphis” the city granted appellant a franchise to operate its plant for an additional period of twenty years; granted the usual privileges as to the use of streets and alleys, but specifically provided that “this ordinance shall not be construed as being an exclusive franchise;” reserved to the city the right to purchase appellant’s plant at any time it desired, and, in case it desired to purchase, provided for an appraisement of the property by disinterested persons, subject to rejection by either party and re-appraisment by a like method, such second appraisement to be final. Rates of charges were specified in the ordinance, but no agreement on the city’s part to patronize appellant appears in the ordinance or elsewhere in the record. It is in evidence the city continuously, from the adoption of the franchise ordinance until the filing of this suit, procured appellant to furnish lights, paying monthly for the service rendered.

Appellant’s contention is that the franchise -excludes the city from installing a municipal plant, and that to suffer it to do so is to permit the impairment of the franchise contract and to take appellant’s property without due process of law. The argument advanced is, in substance, (1) that the exclusion of the city from competition with appellant is implied from the fact that appellant’s franchise would be valueless unless the city is so excluded; and (2) that the reservation by the city of a right to purchase appellant’s plant implies" an obligation to do so in case the city desires to acquire a plant of its own during the life of appellant’s franchise.

I. A city invested with the power to do so and having entered into a contract with a light company whereby it agrees not to erect or acquire a competing plant may be enjoined from violating such contraet [Walla Walla v. Walla Walla Water Co., 172 U. S. 1; Vicksburg v. Waterworks Co., 202 U. S. 453.]

' II. The power of respondent city to erect a light plant is one given it for the benefit of the public. The Supreme Court of the United States holds that “government, possessing powers that affect the public interests, and having entered into a contract involving such interests, is not, by means merely of implications or presumptions, to be disarmed of powers necessary to accomplish the objects of its existence ; that any ambiguity in the terms of such a contraet ‘must operate against the adventurers and in favor of the public, and the plaintiffs can claim nothing that is not clearly given by the act;’ that ‘it can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created;’ and that those who insist that the government has surrendered any of its powers.or agreed that they may be diminished, must find clear warrant for such a contention before it can be heeded. ‘Grants of franchises and special privileges are always to be construed most strongly against the donee, and in favor of the public.’ ” [Water Co. v. Knoxville, 200 U. S. l. c. 33.] The court added that it had never departed from or modified these principles, and held that they were fully applicable “to ordinances and contracts by municipal corporations in respect of matters that concern the public.”

The decision from which we have just quoted was one rendered in a case in which a waterworks company attempted to enjoin the city of Knoxville from erecting a municipal plant during the life of a franchise previously granted the company hy the city. That franchise, like the one in this ease, gave the city the right to purchase the company’s plant, if it so desired.

In that case, as in tins, it was argued that the company “could not possibly have believed that the city would establish waterworks to be operated in competition with its system, for such competition would be ruinous to the water company, as its projectors, on a moment’s reflection, could have perceived when the agreement of 1882 was made.” The court responded to this argument by saying: “On the other hand, the city may with reason say that, having once thought of having its own waterworks, the failure to insert in that agreement a provision precluding it, in all circumstances and during a long period, from having its own separate system, shows that it was not its purpose so to restrict the exercise of its powers, but to remain absolutely free to act as changed circumstances or the public exigences might demand.”

In Vicksburg v. Water Works Co., supra, the court re-affirmed the rule that franchise contracts are “to be most strongly construed in favor of the public, and that where the privilege claimed is doubtful nothing is to be taken by mere implication as against public rights. This rule has been applied to a series of contracts in waterworks and lighting cases, and we have no disposition to detract from its force and effect.”

The franchise involved in this ease expressly provides that it is not to be construed as exclusive. It contains no language expressly prohibiting the city from exercising its power to construct and operate a lighting plant during the franchise term. It simply grants to appellant the right to operate its plant during twenty years. Had appellant desired to exclude the city from competition with it, assuming the city is empowered to contract to abstain from such competition, it should have sought a franchise plainly effecting that result. The contract it secured does not do so and, whatever the effect upon appellant may be, of competition with a municipal plant, we cannot now add to the franchise stipula-' tions the parties did not insert when they framed it.

The argument that the city’s right to purchase raises an obligation to do so in case the city is to acquire a plant at all during the franchise term is clearly untenable. That provision of the franchise merely gives the city an option it may or may not exercise as it sees fit. There is nothing in the language of this section of the franchise ordinance which hints at any obligation upon the part of the city to purchase or at ■ any restriction upon the city’s power to erect a plant of its own.

- The cases chiefly relied upon by appellant, are the Walla Walla and Vicksburg cases, already cited. In the former there was in the franchise granted a specific provision that until certain conditions had been met (and they concededly had not been met) “the city of Walla Walla shall not erect, maintain or become interested in any waterworks except the ones herein referred to, save as hereinafter specified.” In the Vicksburg case, the court based its decision upon the ground that “the city provided and the company has accepted a grant which says in plain and apt words that it shall have an exclusive right, a sole and undivided privilege.” As pointed out, the court in the Vicksburg case re-afSrmed the doctrine concerning the construction of franchises with respect to limitations upon the powers of a city. It is apparent these decisions cannot aid appellant. In Joplin v. Light Co., 191 U. S. l. c. 158, a case very like the one at bar, the franchise was held not to prevent the construction of a municipal plant, and the Walla Walla case distinguished on the ground we have stated.

Appellant’s franchise contains nothing excluding the city’s power to construct a plant of its own. No such exclusion can be implied. No rights of appellant are infringed by the city’s doing that which the contract between it and appellant left it free to do.

All concur, Bond, P. J., in the result.

III. It is said the trial court erred in failing to “construe” the franchise in its judgment. The judgment rendered is necessarily the result of a construction such as we have given the franchise. That construction is inevitably involved in the finding against appepan^ without regard to appellant’s right to sue to construe the franchise, we think the construction implied by the judgment meéts all.the requirements of the case. The' judgment is affirmed.


author: BLARE, J.

text:
    MORRIS FRANKEL, Appellant, v. HERBERT N. HUDSON.
    Division One,
    July 14, 1917.
    1. APPEAL: Abandonment: Institution of Second Action. The institution of a second action based on the same facts, after a demurrer to plaintiff’s case had been sustained and he had appealed, did not constitute an abandonment of the appeal.
    2. AUTOMOBILE: Pedestrian: Crossing Street: Highest Degree of Care. A pedestrian has a right to use a public street, and an automobile, confined to neither track nor rails, is a dangerous agency. By statute drivers of automobiles moving along a public street must use “the highest degree of care that a very careful person would use, under like or similar circumstances, to prevent injury” to persons in the street; in approaching a pedestrian “who is upon the traveled part of any highway, such motor vehicle shall slow down and give a timely signal;” and in approaching a street car which has been stopped to discharge or take on passengers, the same precautions must be observed.
    3. NEGLIGENCE: Pleading: Humanitarian Doctrine. An allegation that defendant negligently drove and operated his automobile and thereby struck and injured plaintiff, is a sufficient pleading to let in the humanitarian doctrine.
    4. -: Case for Jury: Contributory Negligence. If there is evidence warranting a finding that defendant violated the statute in driving his automobile, the case is one for the jury, and whether defendant was guilty of contributory negligence in becoming excited and attempting to escape is also for the jury to decide.
    5. -; Contributory: Bright. Fright at the suddenly discovered approach of an automobile imminently near is something so natural and usual that one driving such a vehicle should anticipate it and govern himself accordingly, where the circumstances indicate a pedestrian in the street may be taken unawares.
    6. -: -: -- — : Error in Judgment. One in peril through the negligence of another is not, as a matter of law, guilty of contributory negligence if, in attempting to escape, he errs in judgment and moves in the wrong direction.
    7. -: -: Case for Jury: Demurrer to Evidence. If the evidence establishes without contradiction that a pedestrian, without looking, stepped off the sidewalK immediately in front of an automobile, moving slowly and carefully and giving warning signals, a demurrer to his case should be sustained. But if there is evidence (1) that he was standing in the street, at a crossing, waiting for a street car, which had stopped, to move out of the way; that, defendant, approaching in his automobile, at a rate of five or six miles an hour, saw plaintiff twenty-five or thirty feet away, and gave no signal and did not slow down, but proceeded directly towards plaintiff unfil he saw a collision with him was imminent, and without checking the speed or giving any signal he proceeded until he struck him; or (2) that, although defendant saw plaintiff in the street twenty-five or thirty feet away, he approached in his automobile within ten feet without warning him or slowing down, and plaintiff attempted to escape and in his excitement went in the same direction the automobile had taken and was struck; (3) or that the defendant saw the pedestrian in a perilous situation in the street in time to have stopped, but did not do so; or (4) that defendant, after turning to one side and after plaintiff attempted to escape, could have stopped his automobile before striking him, but proceeded some eighteen feet from the point where he first turned aside, caught up with the plaintiff and injured him, the case is one for the jury.
    8. -:-:-: Evidence Assumed as True. In determining whether the case should be submitted to the jury, all evidence and inference unfavorable to the plaintiff must be disregarded, and all evidence and all reasonable inferences favorable to him must be taken into consideration. And this rule is not affected by the fact that the witnesses were all called by plaintiff.
    9. STRIKING OUT PLEADING: Discretion. The refusal of the trial court to strike out the pleading of a party refusing to testify or give his deposition, is to be interfered with only in a case of a clear abuse of discretion. Appellate courts seldom hold such rulings erroneous.
    Appeal from St. Louis City Circuit Court. — Eon. Wilson A. Taylor, Judge.
    Reversed and remanded (with directions).

      David Goldsmith and Sale & Frey for appellant. .
    (1) The court erred in giving the instruction of non-suit at the close of the plaintiff’s case in the nature of a demurrer to the evidence, (a) In passing on a peremptory instruction in the nature of a demurrer to plaintiff’s evidence, the court must consider the evidence introduced by plaintiff as true, and make every finding and deduction in his favor which the jury would have been warranted in making. Meenach v. Crawford, 187 S. W. 882; Williams v. Railroad, 257 Mo. 112, 52 L. R. A. (N. S.) 443; Grouch v. Heffner, 183 Mo. App. 372. (b) Pedestrians have a lawful right to use a traveled public highway. The plaintiff was lawfully on the street at the place and at the time when the defendant drove his automobile against and over the plaintiff. Meenach v. Crawford, 187 S. W. 883; Ostermeier v. Implement Co., 255 Mo. 135. (e) When a pedestrian upon a public highway is run over by an automobile there arises a presumption that the driver of the automobile was negligent. Babbitt on Motor Vehicles, sec. 269, p. 284. (d) The driver of an automobile is bound to exercise “the highest degree of care that a very careful person would use under like or similar circumstances, to prevent injury” to persons on or traveling over, upon or across the public streets. Sec. 12, Laws 1911, p. 330. “In approaching or passing a car of the street railway which has been stopped to allow passengers to alight or to embark, the operator of every motor vehicle shall slow down, and if it be necessary for the safety of the public, he shall bring said vehicle to a full stop.” Sec. 8, Laws 1911, p. 327. ' (e) Automobiles are highly dangerous agencies. They do not travel .upon any fixed tracks, but appear on all parts' of the streets. They are of great weight and run rapidly, and one can never tell what course they will take on the appearance of a threatened collision. Meenach v. Crawford, 187 S. W. 883; Ex parte Kneedler, 243 Mo. 632, 40 L. R. A. (N. S.) 622; Ostermeier v. Implement Co., 255 Mo. 128; Bongner v. Ziegenhein, 165 Mo. App. 328; McFern v. Gardner, 12.1 Mo. App. 10. (f) In the cause at bar the facts required a finding for the plaintiff by the jury; a fortiori, they warranted such a finding. Meenaeh v. Crawford, 187 S. W. 882; Grouch v. Heffner, 184 Mo. App. 373; Jenkins v. Goodall, 183 111. App. 636; Raymond v. Hill, 168 Cal. 473; Navailles v. Deiman, 50 So. 449; Kessler v. Washburn, 157 111. App. 537; Ostermeier v. Implement Co., 255 Mo. 128. (2) The court should have sustained plaintiff’s motion to strike out defendant’s answer when defendant refused to appear to give his deposition. The defendant had been personally served with a notice to take depositions, had been duly subpoenaed, and had accepted witness fees. The discretion of the court in this matter was a legal discretion and not an arbitrary one. Larimore v. Bobb, 114 Mo. 446.
    IF. Christy Bryan and Charles E. Morrow for respondent.
    (1) There was no evidence tending to show that the defendant was guilty of any negligence, and the peremptory instruction to find for the defendant was properly given. Winter v. Van Blarcom, 258 Mo. 418; Parks v. Lindemann, 161 Wis. 101. (2) The plaintiff was standing in a place of safety, and, suddenly, without looking, and without notice to defendant, negligently ran into the automobile which had turned away from him, and thereby caused his own injuries. Winter v. Van Blarcom, 258 Mo. 418; Knapp v. Barrett, 216 N. Y. 226. (3) The court did not err in refusing to strike out defendant’s answer, (a) The subpoena served upon the defendant in Chicago was. issued by a notary public without authority, nor did it properly designate the court in which the cause was pending. No dedimus to take depositions had been issued at that time by the court in which the cause was pending in Missouri, as required by both the Illinois and Missouri statutes. R. S. 1909, secs. 6385, 6389; R. S. 1909, Illinois, sec. 36, p. 1123; In re Nitsche, 14 Mo. App. 213. (b) Even when the dedimus was issued subsequent to the issuance and service of the subpoena, it did not contain the name of witnesses, as required by the Illinois statutes. E. S. 111. (1909), sec. 36, p. 1123; McLean v. Thorp, 4 Mo-. 159. (c) The alleged subpoena attempted to be served, therefore, had no vitality and could not be -vitalized by the subsequent issuance of the dedimus. In re Nitsche, 14 Mo. App. 213.
   BLARE, J.

Appellant brought this action for damages for injuries received when he was struck by respondent’s automobile. This appeal followed an order overruling a motion to set- aside an involuntary nonsuit.

Since his appeal in this case, appellant began a second action against respondent, in which the petition counted on the same facts. Eespondent has filed a motion to dismiss the appeal on the ground that the institution of the second action is an abandonment of the appeal in this.

After the petition.in this case was filed, appellant gave notice to take depositions in Chicago, and subpoenaed respondent to give his deposition in that city. Eespondent did not appear, and appellant subsequently moved to strike out his answer. This motion was overruled, and this ruling is assigned for error.

Before the trial appellant caused to be issued a subpoena duces tecum commanding one Owen Jackson to produce at the trial a writing signed by respondent and alleged to contain material admissions. Jackson made return to this subpoena that he was an attorney at law and was counsel of record for respondent in this case and that all communications by respondent to him were privileged; that he did not have, at the time the subpoena was served on him nor thereafter, any writing or statement or copy thereof such as was described in the subpoena. The court took up the matter, recalled the •subpoena and set aside the order for its issuance. This is assigned for error.

After the evidence was in and respondent’s demurrer thereto had been tendered and respondent had announced .he would stand on his demurrer counsel asked that appellant be recalled, a dispute having arisen as to his testimony. -This was refused, and the refusal is assigned for error.

The evidence concerning the manner of appellant’s injury is set out in the opinion.

I. Respondent contends the filing of the second action constituted an abandonment of the appeal and that, despite the fact no service was had in such second action and it was dismissed for want of prosecution long prior to the docketing and submission of this cause, this appeal must be dismissed. Cases are cited. In Dannan v. Coleman, 8 Mo. App. 594, 595- (Memo.), it is held that a defendant who takes leave to plead after his demurrer is overruled is presumed to abandon his demurrer and cannot stand on it after an interlocutory judgment against him for failure to plead. In Gilstrap v. Felts, 50 Mo. l. c. 431, appellant had, after judgment arrested and new trial granted, participated in the new trial. It was held he could not complain of error in granting the new trial. In Burke v. Cunuingham, 42 Neb. 645, an appeal was first taken and a writ of error subsequently sued out. This last was held as an abandonment of the appeal under the law of that State. These decisions do not decide the question before us. From the statute (Secs. 1800 and 1804, R. S. 1909) it appears the pendency of this action might have been tendered as ground- of abatement of the second action. The institution of the second action no more constituted an abandonment of this appeal than it,- ipso facto, would have constituted an abandonment of this action had this been pending in the circuit court when the second action was begun.

II. The question whether the evidence introduced entitled appellant to have his case submitted to the jury, necessitates an examination of the testimony.

Appellant testified that about 9:30 a. m., June 5, 1912, he and one Jordan were on their way to Seventh and Morgan streets and had reached the southwest corner of Seventh and Locust; that an east-hound street car had stopped there, and that he and Jordan waited on the sidewalk until the bell for the car to proceed sounded; that he and Jordan then stepped into the street and took four or five steps north into Locust Street, when the car struck him, and he remembered nothing more.

Jordan testified that he and appellant reached the curb on the southwest corner of Seventh and Locust and stopped because of the presence of a street car in the street; that there “were lots of people there;” that he and appellant waited until the street car moved on and then took one step into the street and were immediately struck; that before stepping into the street he looked west and did not see the automobile; that when he first saw it it was five or six feet west of appellant; that “it might not have been a second” after they stepped into the street before they were struck; it was a very short time; “we had no more than hit the curb before we met with the accident;” that the right-hand front fender struck appellant; that aside from the street car he saw, before stepping into the street, no moving vehicle in Locust Street west of the point where he and appellant were standing.

Re-cross examination:

“Q. The fact of the matter is that the first time you looked west, after you went to step down on to the street, or after you had stepped down on the street, you saw this automobile some four or five feet west of you ■ — wasn’t it right on you, the first time you looked west after you stepped into the street? A. - Yes, sir.
“Q. You saw the automobile some four or five feet away from Frankel (appellant) ? A. Yes, sir.
‘ ‘ Q. And then it was almost on you and immediately struck you? A. Yes, sir; that is it exactly.”

Recalled, Jordan testified that when he saw the automobile he tried to jerk appellant out of the way; that appellant was paying no attention at all and hé (Jordan) was not paying a great deal; that he and appellant would not have been struck if they had stood where they were, provided the car had come straight; that the car actually swerved to the north; that he may have jerked Frankel to the north; that he was excited.

James Fitzpatrick testified he was on the northwest corner of the crossing and saw the occurrence; that appellant and Jordan were standing in the street, talking earnestly; they were about four feet from the curb; that he saw the automobile approaching, but fifteen or twenty feet away from them, and called to them, but they “didn’t seem to hear;” that defendant sounded his horn, but they seemed not to hear it; that as defendant saw he “was going to run into them he turned-the machine a little north, and the two men had seen the machine at that time and they ran in the same direction to get out of the way,” and the automobile struck them; that he was not a good judge of speed, but supposed the automobile was going five or six miles per hour; that it was twenty to twenty-five feet from the men when he first saw it; that the space between the south car-track- and the curb at that point is ten or eleven feet; that he saw no street car there.

“Q. You say you heard a horn blow? When did this horn blow? A. Shortly before it hit the man.
“Q. About how far was the machine from the man? A. Well I guess the distance, when I first had seen the machine, was about twenty-five or thirty feet away, something like that.
“Q. Was it the automobile horn that blew? A. Yes, sir.”

He testified that if the men had stood still, where they were when he first saw the automobile, it would, had it continued in its course, have passed without striking them; that the automobile approached to within ten feet of the men and they ran north in the same direction the automobile turned and they had gone about eight or ten feet when it struck them.

There was evidence the automobile could have been stopped in three and one-half to six feet and that the rate at which’ it was traveling, five or six miles an hour, was a careful rate and one at which the vehicle could he said to be under control.

In determining- whether the cause should have been submitted fo the jury, all evidence and inferences unfavorable to appellant must he disregarded, and all evidence and all reasonable inferences favorable to him must he taken into consideration. This rule is not affected by the fact that the witnesses were all called by appellant. While he could not impeach one of Ms own witnesses, he was at liberty to prove the facts to be otherwise than as such witness testified. [Schumacher v. Breweries Co., 247 Mo. l. c. 154, 155, and cases cited.]

It is to he kept in mind that appellant had a right to use the street and that the vehicle which injured him was one which is not confined to a track or rails and one which is recognized as a dangerous agency. By statute (Laws 1911, pp. 326, 327, 330) it is required that drivers of automobiles moving along public streets must use “the highest degree of care that a very 'careful person would use, under like or similar circumstances, to prevent injury” to persons in streets; and that in approaching a pedestrian “who is upon the traveled part of any highway, and not upon a sidewalk . . . such motor vehicle shall slow down and give a timely signal;” and in approaching a street ear which has been stopped to discharge or take on passengers the same precautions are enjoined. [Meenach v. Crawford, 187 S. W. 879.]

There is evidence appellant was standing in the street, at a crossing, waiting for a street car, which had stopped, to move out of the way; that respondent approaching in his automobile, at the rate of five or six miles per hour, saw appellant twenty-five or thirty feet away; that respondent gave no signal and did not slow down, but proceeded directly toward appellant until he saw a collision with Mm was imminent; that, without checking his automobile or giving any signal he proceeded until he struck appellant. Another view supported by the evidence is that though he saw appellant twenty-five or thirty feet away, he approached within ten feet of him without warning him or slowing 'down, and seeing a collision to he imminent, attempted to turn out into the street; that appellant and his companion attempted to escape and in their excitement went in the same direction the automobile had taken and were struck. Also, the evidence warrants the conclusion that respondent saw appellant in the street in time to have stopped, but did not do so; also that respondent, after turning out, if he did, and after appellant attempted to escape, could then have stopped before striking him, but proceeded into the street some eighteen feet from the point where it is said he first turned out, caught up with appellant and injured him.

(a) The petition charges respondent negligently drove and operated his automobile and thereby struck and injured appellant. Under the rule long settled in this State this allegation is sufficient pleading “'to let in the humanitarian doctrine.” [Fleming v. Railroad, 263 Mo. l. c. 188, 189; Kellny v. Railroad, 101 Mo. 75; Hilz v. Railroad, 101 Mo. 56; Hanlon v. Railroad, 104 Mo. l. c. 391.] The evidence clearly warranted the submission of the cause on that theory.

(b) Without regard to the humanitarian doctrine, the evidence was for the jury. There was evidence warranting a finding that respondent violated the statute, and whether appellant was guilty of contributory negligence was for the jury to decide. [Meenach v. Crawford, supra; Carradine v. Ford, 187 S. W. l. c. 289, 290; Grouch v. Heffner, 184 Mo. App. l. c. 372, 373, and cases cited.] Even if the jury should find appellant and Ms companion became excited and, attempting to escape, fled in the wrong direction, it is yet a question of fact whether, in the' circumstances, that action was negligent. Fright at the suddenly discovered approach of an automobile imminently near is something so natural, so .usual, that one driving a vehicle should anticipate it and govern himself accordingly where the circumstances indicate one in the streets may. be taken unawares. [Meenach v. Crawford, supra; Hodges v. Chambers, 171 Mo. App. l. c. 567.] One in peril through, the negligence of another is not, as a matter of law, .guilty of contributory negligence if, in attempting to escape, he- errs in judgment and moves in the wrong direction. [Heartsell v. Billows, 184 Mo. App. l. c. 423.]

Respondent cites cases. In Winter v. Van Blarcom, 258 Mo. l. c. 424, Williams, C., held that the evidence failed to show any negligence on the part of defendant, and that plaintiff’s injury resulted from his suddenly running from a safe place (so far as the automobile was concerned) across the street and in front of a carefully driven automobile, the driver having no opportunity to avoid striking him. In Parkes v. Lindenmann, 161 Wis. 108 et seq., a woman was standing near a street car track awaiting a street car which was approaching and about one-half block away; the driver of an automobile attempted to pass in front of her and between her and the car toward which she was looking; his course was such that the evidence all shows she was in no danger had she stood still; the machine would have “cleared her from three to seven feet;” that she ran north and the driver turned south to avoid striking her, and would have done so but she turned back and ran directly in front of the automobile; that the driver tried to stop and again turned north to avoid a collision, but was unable to do so. The fender struck her and the car stopped within two feet. The court recognized the rule that in an emergency the failure to take the best means of escape is not negligence. The court held defendant was not negligent; that the automobile was in plaintiff’s line of vision, attempting to pass in front of her and moving so as clearly to avoid striking her and at a careful speed, six miles per hour; that the driver had the right to presume that one waiting for an approaching car did not intend to step forward upon the car track; that the course he took, in the circumstances, “in all probability seemed to be outside of where she [plaintiff] would be likely to be or go” and yet where she would see him; that he could be charged with anticipation of probable results only. It is clear the facts of that case are markedly different from the facts of this, and that the opinion announces no rule in conflict with what has been said.

In Knapp v. Barrett, 216 N. Y. 226, it was held that' it is the duty of a pedestrian, in crossing a street, to “use his eyes and thus protect himself from danger.” In that case an old man was struck by an express wagon. The trial court instructed that “the law did not require plaintiff to look” but that ordinary care might have required him to look. This was held erroneous. The court said that one who crosses a street without any exercise of the faculty of sight, is negligent as a matter of law, and that, to escape the consequences of such negligence, he must prove the accident would still have happened. The court concedes that no particular manner of looking is required and that the turning of the head is not necessary, as a matter of law, and that a vision of sufficient open space to give a reasonable assurance of safety is enough to take the question to the jury. What was held was that the instruction told the jury, in effect, that plaintiff, though he, without looking at all, “walked blindly in the path of the wagon, they might acquit him of all negligence.” That is not this case. Certainly, if the jury find in this case, as some of the evidence tends to prove, that appellant, without looking, stepped off the curb immediately in front of an automobile, moving slowly and carefully and giving warning signals, there can be no verdict against respondént. No statute like ours affected the decision of the New York court, and the evidence in that case is quite unlike the phases of the evidence in this which entitle" appellant to a submission of the issues. Other cases are cited, but an examination of them discloses they do not conflict with the views already expressed.

III. Refusal of a trial court to strike out the pleading of a party refusing to testify or give his deposition (R. S. 1909, sec. 6361) is to be interfered with only in a case of a clear abuse, of discretion. Appellate courts seldom bold sucb rulings erroneous. In tbis case, -while tbe remandment of the cause renders tbe question of less importance, it may nevertheless be said we do not discover such abuse of discretion as would warrant a bolding that tbe trial court erred in tbe matter.

With respect to tbe ruling on tbe offer to recall appellant, that question will hardly arise on another trial. Neither, in view of tbe conclusion reached, is it necessary to discuss tbe ruling' withdrawing tbe subpoena duces tecum.

Tbe order overruling, tbe motion to set aside tbe nonsuit is reversed' and the cause remanded with directions to sustain that motion and proceed with tbe cause in a manner not inconsistent with this opinion.

All concur.