source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. KOCHTITZKY et al. v. RILEY et al.
    In Banc,
    March 30, 1907.
    1. CIVIL SUIT. The phrases “civil case” and “civil suit” refer to the legal means or proceedings by which the rights and remedies of private individuals are enforced or protected, in contradistinction to the words "criminal cases,” which refer to public wrongs and their punishment.
    2. -: Change of Venue: Drainage District. TThder the provisions of section 818, Revised Statutes of 1899, providing that “a change of venue may be awarded in any civil suit,” landowners, upon a compliance with the statutory requirements, are entitled to a change of venue in a proceeding brought in tne circuit court for the formation and incorporation of a drainage district for the reclamation of swamp and overflowed lands. Such a proceeding is a “civil suit” within the meaning of those words.

      3. PROHIBITION: Change of Venue: Error. If the application for a change of venue is not in conformity to the statutory requirements, or if the proper notice that an application for a change would be made was not given, then error in granting the change of venue may be corrected by an appeal. The court having jurisdiction to grant the change of venue, the Supreme Court will not by writ of prohibition prohibit it from exercising that jurisdiction, however erroneous its action may be. It is not the purpose of the writ of prohibition to correct errors of the trial court.
    Prohibition.
    Writ denied.

      Oliver & Oliver for relators.
    (1) The writ of prohibition is of common law origin and is of great antiquity. It was framed to confine courts of special, limited, or inferior jurisdiction within the proper limits of their authority, and to prevent confusion in the administration of justice. 16 Enc. PL and Pr., 1093; 2 Bailey on Jurisdiction, see. 449; Smith v; Whitney, 116 IT. S. 167. (2) It issues to an inferior court, when such court exceeds its jurisdiction in a case of which it may take cognizance, no less than when it has no jurisdiction whatever. And it is available to keep a court within the limits of its lawful authority in a particular proceeding, as it is to prevent the exercise of jurisdiction over a cause not given by law to it for consideration. State v. Slover, 126 Mo. 652; State v. Withrow, 133 Mo. 500; 2 Bailey on Jurisdiction, sec. 447; Bailroad v. Wear, 135 Mo. 230. (3) If a court attempts to exercise jurisdiction in a case, or in a manner not authorized by law, it is the duty of the Supreme Court, under its supervisory jurisdiction over all inferior courts, to prohibit it. Const., art. 6, sec. 3; Bailroad v. Wear, supra; State ex rel. v. Spencer, 166 Mo. 271. (4) The writ is not confined to cases where the lower court has no jurisdiction at all, but extends to cases where the court having jurisdiction of the suit exceeds its legitimate or lawful powers. State v. Slover, 126 Mo. 652; State v. Withrow, 133 Mo. 500; State v. Ellis, 130 Mo. 90. (5) The right to a change of venue is purely statutory and has no existence outside of the special grant of power to award it; and to entitle a party to a change of venue, he must comply with all'the substantial requirements of the enabling act. State v. Headricks, 149 Mo. 403; State v. Wofford, 119 Mo. 409; State v. Sanders, 106 Mo. 194; State v. Woodson, 86 Mo. App. 253; Cole v. Cole, 89 Mo. App. 233; Smith v. Railroad, 31 Mo. App. 140. (6) An application which fails to show when the applicant received his information as to the bias or prejudice of the trial judge is insufficient and will be refused. Smith v. Railroad, 31 Mo. App. 140; Ranney v. Railroad, 157 Mo. 477; Railroad v. Holliday, 137 Mo. 440. (7) The statute under which these drainage proceedings are had makes no provision for a change of venue. And the right to a change of venue, as above stated, is purely statutory and does not exist except in those instances where the statute gives it. (a) • It has been held that a statute authorizing the removal of a suit, action, issue, petition, presentment or indictment by the judge or judges of any court of the State does not authorize the removal of an equity suit by a change of venue. Cook v. Cook, 41 Md. 362. (b) So a change of venue was denied on a quo warrcmto where this court ordered it to be tried in a specified county. State v. Townsley, 56 Mo. 107. (c) Changes of venue will not lie from one circuit court to another, from the hearing of a petition for the opening of a public road, unless the statute grants the right. Ex parte Williams, 4 Terg. (Tenn.) 580. (d) The statute authorizing a change of venue from a justice of the peace in a ease of assault and battery does not warrant a change of venue where the proceedings are before the court of criminal correction. State v. Zeppenfeld, 12 Mo-. App. 573. (e) In a “suit” pending before the probate court neither party to the “suit” is entitled to a change of venue, and the action of a probate judge in granting a change of venue was .condemned by the St. Louis Court of Appeals and held to be without authority of law. Morris v. Lane, 44 Mo. App. 1. (f) There is no general- and inherent power in courts to remove a cause pending therein to another court. But that power can only be given by statute, and the statute must be complied with. And it was held in Michigan that while the policy- of the State did not favor the action of judges trying cases where they had been of counsel, the jurisdiction of the court was not taken away because of the incapacity of the judge to sit in a given case; and it was held that every ease must remain in the court where it originated until removed by lawful authority. Shannon v. Smith, 31 Mich. 451. (8) This is not a “suit” — which is a controversy between a “plaintiff” and a “defendant;” this is an independent and special statutory proceeding authorizing contiguous landowners to incorporate a quasi public corporation for a particular purpose. The only resemblance it bears to a suit is the fact that non-petitioning landowners are notified by “summons” or an “order of publication,” as in civil cases. Laws 1905, p. 191; L. & S. Co. v. Miller, 170' Mo-. 240. (9') An examination of the statute under which these drainage proceedings were instituted will convince any reasonable mind that the statute is complete in itself and that the mode of procedure is exclusive. The construction contended for by respondent is unreasonable, for if the proceedings for the incorporation of a drainage district is a “civil suit” within the meaning of the code, then the proceedings would have to be brought in every county where the lands are situated, as provided by the statutes. Section 8253, Laws 1905, page 120, provides that any owner of real estate who has not signed the “articles of association” may object to the organization and incorporation of the drainage • district by filing ‘ ‘ objections ” on or before the first day of the term of tbe court. Tbe statute limits bis objections, however, as follows: 1. “Why such drainage district should not be organized and incorporated.” 2. “Why his land or any part thereof will not be-benefited by the proposed drainage.” The objections thus xbade, and they are all that he is permitted to make, shall be heard by the .court in a “ summary manner, without unnecessary delay,” and in case the objections are overruled, the circuit court shall by its order, duly entered and recorded, “declare and decree said drainage district to be a public corporation of this State.” The real purpose of "the statute up to this state of the proceedings is to secure a decree declaring the proposed drainage district a corporation. Land & Stock Co. v. Miller, 170 Mo.. 240.

      Jo7m A. Sope for respondents.
    (1) If the drainage proceeding is anything that can be entertained at all by the circuit court, it is a civil suit within the meaning of the change of venue statute. 2 Bouvier’s Diet., p. 1065; Hockemeyer v. Thompson, 150 Ind. 176; Bass v. Elliott, 105 Ind. 517; Weston v. Charleston, 2 Peters (U. S.) 467; Pac. Ry. cases, 115 U. S. 5. “Civil suit” in the change of venue statute must mean the same as “civil case” in the section of the Constitution defining and limiting the jurisdiction of circuit courts to “criminal cases” and “civil cases;” therefore, if this drainage matter is not a “civil suit” relators have no case in the circuit court; on the other hand, if it is a civil suit, respondents are entitled to a change of venue. Sec. 22, art.-6, Const.; see. 818, R. S. 1899. A change of venue is authorized, notwithstanding it is a special statutory proceeding, and although, there is no provision for change of venue in the special statute regulating the proceeding. Railroad v. Fowler, 113 Mo. 466; Manson v. Coleman, 86 Mo. App. 23; State ex rel. v. Smith, 176 Mo. 97; Nash v. Craig, 134 Mo. 354. (2) “ The rulings of the circuit court on the application for a change of venue are reviewable by appeal, writ of error or certiorari, either of which remedies is adequate for the alleged errors complained of herein, and having other adequate remedies, relators are not entitled to have the proceedings of the circuit court reviewed, set aside or interfered with by the writ of prohibition.” Eudaley v. Railroad, 186 Mo. 399; State ex rel. v. Evans, 184 Mo. 632; High, Extra. Rem. (3 Ed.), sec. 765. The question whether or not the change of venue statute (sec. 818) applies to special statutory proceedings has been pronounced by this court “debatable both on principle and authority.” State ex rel. v. Evans, 184 Mo. 642. It will not be denied, we assume, that the action of Judge Riley on the motion for change of venue, whether it was erroneous or not, can be reviewed on appeal, or, if no appeal lies, by certiorari; nor can it be disputed that the general rule is that prohibition will not issue when these other remedies exist. The question then is, does the fact that the material prosperity of certain private interests and their plan to enrich themselves at the expense of others will be promoted, justify a departure from the general rule and the issuance of this writ when there are other remedies?
   WOODSON, J.

In September, 1905, the relators and other landowners in the counties of Bollinger, Cape Girardeau, Dunklin, New Madrid, Pemiscot, Scott and Stoddard filed in the office of the clerk of the circuit court of New Madrid county “Articles of Association” for the formation and incorporation of a drainage district for the réclamation of swamp and overflowed lands, located in those counties. The articles of association were drawn in conformity with article 3, chapter 122, of the Revised Statutes of Missouri, 1899, and the amendments thereto, approved April 8, 1905, relating to swamp and overflowed lands; and prayed for an order of said court incorporating the landed territory, described in said articles, into a drainage district, to be known as the Little River Drainage District.

The articles of association and the petition so filed conform to all the requirements of the said statute and act before mentioned, and all the non-petitioning landowners of the district either entered their appearance, were personally served or duly notified by publication, as provided in the statute.'

It is alleged in the articles of association and the petition that New Madrid county had within its boundaries a greater portion of the land proposed to be embraced in said drainage district than has any of the other counties mentioned, and for that reason the suit was begun in that county. The summons was returnable the first day of the March term, 1905, of that court.

On the 21st of March, 1906, respondents, Louis and Mary H. G-. Houck, filed objections to the incorporation of the said drainage district, which were of great length.

No further order was made by the court at that time, but, by consent- of the parties, the hearing of the objections was continued until July 7,1906.

On said last day respondents, .Louis and Mary Houck, filed in said cause an application for a change of venue, which, omitting the caption, is as follows:

“Now come Louis Houck and Mary H. G. Houck, objectors and defendants in the above-entitled cause, and respectfully state that they cannot have a fair and impartial trial of said canse in the circuit court of New Madrid county, Missouri, for the reason that the opposite parties in said cause, to-wit, plaintiffs and petitioners therein for the incorporation and' establishment of said drainage district, have an undue influence over the mind of the Honorable Henry O. Riley, the judge of said court, and for the further reason that said judge is biased and prejudiced against the objectors and defendants and in favor of the said plaintiffs and petitioners in said cause;
‘ ‘ That information and knowledge of said bias and prejudice on the part of said judge and of the said undue influence exercised over his mind came to your petitioners for this change of venue after the last adjournment of this court and after the filing of their objections herein against the incorporation and establishment of said drainage district, and that this application for a change of venue is made as soon as practicable after the filing of said objections.
“Wherefore, the defendants and objectors pray the court to change the venue of said cause and awafd the same to some other court, where the causes complained of do not exist. ’ ’

The application was signed by said Louis Houck, and duly sworn to on July 3, 190-6.

The relators then filed a motion to strike from the files of the court the respondent’s application for a change of . venue, and assigned as reasons therefor, among others, the following:

“1. That the filing of said pretended application was improvident and without any statutory authority or right.
“2. That the statute under which these proceedings were instituted for the incorporation of a drainage district makes no provision for a change of venue from the court where the proceedings are instituted, and the right to a change of venue is purely statutory, and does not exist, except in those instances where the statute authorizes it.
“3. That the pretended application for a change of venue is insufficient in form, and does not comply with the statute in that it does not state when the alleged information came to the knowledge of Louis' Houck.
“4. That the pretended application was filed with? out giving notice to the adverse party.
“5. That the statute, under which these proceedings were instituted, authorizing the incorporation of a drainage district, makes no provision for the granting of a change of venue, hut on the contrary provides that the ‘objections’ shall be heard before the court in a ‘ summary manner, and without unnecessary delay, ’ and that this application for a change, of venue was manifestly made for the purpose of delay. ’ ’

The relator’s motion to strike out was at.once taken up by the court, and after it had been seen and heard was by the court overruled, to which ruling and action of the court the relators duly excepted at the time.

Thereupon, the court took up the application of the respondents, Louis and Mary H. G. Houck, and announced from the bench that said application would be sustained, and the venue in said proceeding (the formation and incorporation of said drainage district), would be changed from New Madrid county to some other county.

To this action of the circuit court the relators objected and excepted at the time.

Thereupon, the relators requested said circuit court to withhold its order and judgment in granting a change of venue and sending said proceedings for the incorporation of a drainage district to some other county until relators could be heard in this court, and ascertain whether or not the respondents, Louis and Mary H. Gr. Houck, were entitled to a change of venue under, the statute authorizing a circuit court to incorporate, a drainage district. This latter request was by the circuit court granted.

Thereupon, relators instituted this proceeding, in this court, praying for a writ of prohibition, prohibiting the Hon. Henry C. Eiley, judge of the New Madrid Circuit Court, from granting said change of venue, and prohibiting Louis and Mary Houck from further prosecuting their said application for a chang'é. This court issued a provisional writ, requiring respondents to show. cause why a permanent writ should not issue. The answer and returns of the respondents substantially admit the facts before stated, and insist:

First. That the action of said judge was within the limits of his lawful jurisdiction, and that he had a right to take up and dispose of said application for a change of venue in the same manner, and in the same way, as though the proceedings for the incorporation and information of a drainage district was a “civil suit’’ within the meaning of section 818, Revised Statutes 1899.

Second. That if.the respondent judge committed error in holding that a change of venue would lie in a proceeding relating to the formation of a drainage district, it was reviewable on appeal, and that prohibition for that reason would not lie.

Respondents Louis and Mary Houck in their separate return set up many other reasons why they should be discharged, which go to the merits of the case and have no bearing upon the issues presented here, hnd for that reason they will not be further noticed.

OPINION.

I. There are but two points presented in the case for the court’s determination, and they are: whether or not the circuit court of New Madrid county was exceeding its lawful jurisdiction in holding that the venue in a proceeding for the incorporation of a drainage district could he changed from that county to some Other county; and whether or not this court in this character of proceeding can review the assigned errors of the trial court.

We will consider these questions in the order mentioned.

If this proceeding is a civil suit within the meaning of section 818 of the Revised Statutes of Missouri, 1899, regarding changes of venue in civil suits, then the circuit .court of New Madrid county was not exceeding its lawful jurisdiction when it announced its purpose to grant the change of venue to some other county in the State, and in that case the provisional writ should he quashed; hut if, upon the other hand, such a proceeding as this is not such a suit within the meaning of said section, then said court was at that time transcending its jurisdiction, and the provisional writ’ should be made permanent.

The respondents contend for the affirmative of this proposition, while the relators maintain the negative thereof. The issue thus joined requires us first to determine what is a “civil suit” within the meaning of the statute.

' Mr. Webster says that the word civil means (5), “Relating to rights and remedies sought by action or suit.”

" Civil remedy (Law), “That given to a person injured by action, as opposed to a criminal prosecution.”

Civil suit, “A suit for a private claim or injury.”

Bouvier defines the word “civil” in these words: “In contradistinction to criminal to indicate the private rights and remedies of men as members of the community in contrast to those which are public and relate to the government; thus, we speak of civil process and criminal process, civil jurisdiction and criminal jurisdiction. ’ ’

‘ ‘ Civil Action. In Practice. ’ ’

“In the Civil Law.” “A personal action which is instituted to compel payment, or the doing some other thing which is purely civil.”

‘ ‘ At Common Law. ” “ An action which has for its object the recovery of private or civil rights, or compensation for their infraction.” [1 Bouvier Law Dict. (Rawle’s Revision), p. 329.]

The word “suit” in practice means, “An action.” “It is more general than ‘action,’ which is almost exclusively applied to law and denotes any legal proceeding of a civil kind brought by one person against another. ’ ’

“ ‘Suit’ is a generic term of comprehensive signification, and applies to any proceeding in a court of justice in which the plaintiff pursues, in such' court, the remedy which the law affords him for the redress of any injury, or the recovery of a right.” [2 Bouvier’s Law Dict. (Rawle’s Revision), p. 1065.]

Mr. Webster defines the word “ease” to be, “A state of facts involving a question for discussion or decision; especially a cause or suit in court. ’ ’

Bouvier defines the word to mean, “A question contended before a court of justice. An action or suit at law or in equity.” [1 Bouvier’s Law Dict. (Rawle’s Rev.), p. 288.]

Mr. Webster says, 4. (Law), the word “suit” means, ‘ ‘ The attempt to gain an end by legal process; an action or process for the recovery of a right or claim; legal application to a court of justice; prosecution of right before auy tribunal; as a civil suit; a criminal suit; a suit in chancery.”

It will be seen from an examination of these various definitions that the phrases, “civil case” and “civil suit, ’ ’ refer to tlie legal means by which the rights and remedies of private individuals are enforced or protected, in contradistinction to the words “criminal cases,” which refer to public wrongs and their punishment; and that the word “case,” when considered alone, means- the facts, or the state of facts which constitute the rights of the .individual, or his cause of action, which the “proceeding,” “action” or “suit” protects or enforces.

This court has repeatedly held that in the construction of a statute, “the words of the law are to be taken in their ordinary, usual and natural meaning.” [Henry & C. Co. v. Evans, 97 Mo. 55; McFarland v. Railroad, 94 Mo. App. 340.]

- The same rule of construction applies to a constitutional provision.

‘ ‘ The general and primary rule of construction requires that words, when there is nothing to indicate that they are used in a particular sense, shall be given their ordinary or popular meaning.” [Smith v. Railroad, 143 Mo. l. c. 37, 38; Martin v. Hunter, 14 U. S. 326.]

It might not be out of place here to state that the authorities before cited attach to the word “suit” a broader and more comprehensive meaning than is given to the word “action” or “ease;” and it is of some ■significance that the broader term is used in the change of venue statute rather than the one employed in the Constitution regarding the jurisdiction of the circuit court. • Section 22 of article 6 of the Constitution of 1875, stripped of all passages unimportant in this inquiry, provides that, “The circuit court shall have jurisdiction over all criminal cases not otherwise provided for by law; exclusive original jurisdiction in all ‘civil cases’ not otherwise provided for.” The'evident intent was to confer upon litigants the right to a change of venue in cases pending in courts other than the circuit, consequently the Legislature extended that right to cases pending before justices of the peace and in the criminal court. We mention this fact simply to show the liberal spirit with which the lawmakers have dealt with the question of change of venue.

The wording of that statute, in so far as it is material in this case, is as follows: “A change of venue may be awarded in any civil suit to any court of record for any of the following causes.”

This question seems to have never come before this court for adjudication before, but it has received attention at the hands of other courts of this country.

In a proceeding instituted by the common council of Kansas City, before the mayor, to inquire and find the value of the property taken for the purpose of widening a street, and to assess the benefits caused by the improvement so made upon the surrounding property, the jury found the value of the property taken to be $7,305, and assessed the benefits at $12,325. The case was appealed to the circuit court of Jackson county. • A petition for removal to the United States Circuit Court was filed in said court, because a Federal question was involved, which was resisted, because, among other reasons assigned, such a proceeding was not removable under the United States statute which provides for the removal of certain suits from the State to the United States courts. The Supreme Court of the United States, in passing upon that question, said:

“This controversy is to all intents and purposes ‘a suit.’ ... We think that the case was removable to that court under the act of March 3, 1875.” [Pacific Railroad Removal Cases, 115 U. S. 5, 6, 17, 23.]

In Indiana an act of the Legislature created a “superior court,” and gave to it “concurrent jurisdiction with the circuit court in all cases of appeal from . . . "boards of county commissioners, or city courts in civil eases, etc.” A year after the passage of said act, a drainage act was passed, and the section thereof authorizing an appeal is general and does not' designate the court to which the appeal is to he taken. After the passage of the latter act, a proceeding was instituted before the board of commissioners for the construction of a ditch under the provisions of the drainage act. From the judgment of the board establishing the drain, the appellants appealed to the superior court of Allen county. That court, on the motion of appellant, dismissed the appeal on the ground that no appeal to that court was authorized by law in such cases. The ease was then appealed to the superior court, and in discussing that act, the court said:. “It gives the superior court ‘concurrent jurisdiction with the circuit court in all cases of appeals from . . . boards of county commissioners and mayors of [or] city courts in civil cases, etc.’ ” Continuing, the court said: “It is suggested that a drainage proceeding under the drainage act is not a civil case, and, therefore, the act does not confer jurisdiction of appeals on the superior court. To this it may be answered that no other proceeding before the board of commissioners is a civil case in the strict sense, and yet appeals are authorized from boards of commissioners to the superior court. The phrases ‘civil cases’ and ‘civil causes’ as used in the section quoted were evidently used in contradistinction to criminal cases, for the purpose of including all cases other than criminal cases. . . . This language was evidently intended to vest all appellate jurisdiction in the superior court which was then vested in the circuit court, except in criminal, cases.” [Hockemeyer v. Thompson, 150 Ind. l. c. 178.]

In another case in Indiana, Bass and Gordon filed their petition in the circuit court, praying for the location and construction of a ditch or drain under the drainage act; commissioners were appointed; they made-their report to the court, and certain exceptions thereto were filed, and, thereafter, Elliott and others filed, an application for a change of venue from the judge of said court, which was sustained. The cause was later appealed to the superior court, and the first error complained of was the action of the trial court in granting) the change of venue. That court said: “It is claimed by counsel that a cause such as this is not a civil action, but a special proceeding under the statute concerning drainage; and; as that statute contains no provision for a change of venue from the judge . . . counsel contend with some force and plausibility that the court erred in sustaining the motion for a change of judge. But, under the recent decisions of this court, the construction of appellants’ counsel is untenable and cannot be sustained. Thus, in Neff v. Reed, 98 Ind. 341, it was held substantially that a proceeding for a location and construction of a ditch or drain, under the statue concerning drainage, was so far a civil action that the provisions of the civil code in relation to a motion for a new trial, were allowable and applicable to such proceeding. So, also, in Crume v. Wilson, 104 Ind. 583, the court said: ‘We are of the opinion that in drainage cases the modes of procedure and the rules of practice presqribed by our civil code may properly be used to supply omissions in the drainage statutes.’ Accordingly, it was there held that, although there is no provision of our drainage statute which authorizes the petitioner for a drain to dismiss his cause at any time, of his own motion, yet the provisions of section 333, R. S. 1881, in relation to the dismissal of a civil action by the plaintiff, were applicable to drainage cases, and the petitioner for a drain might thereunder, at the proper time, dismiss his petition. Applying the doctrine of the cases cited to the case in hand, we have no difficulty in reaching the conclusion that a proceeding for the location and construction of a ditch or drain, under our drainage statutes, is so far a civil action that the provisions of sections 412 to 417, R. S. 1881, in relation to a change of venue from the judge, . . . must he held applicable to such a ease as the one under consideration.” [Bass v. Elliott, 105 Ind. l. c. 518, 519.]

According to the definitions and the foregoing authorities it is clearly deducible that the words “civil cases” as used in the Constitution and “civil suits” as employed in our civil code mean the proceeding, actions, or suits by which private rights are protected, enforced, or their violation redressed. We are, therefore, of the opinion that a proceeding under our statute for the incorporation of a drainage district is so far a civil suit that the section in relation to changes of venue is applicable to such proceedings. This conclusion is supported by the language of Judge Black in a condemnation proceeding for a right of way for a railroad, which is as follows:

“It is true the statute makes no specific provision for raising these or like issues, but it is utterly unreasonable to say that the defendant must.be notified when the petition will be heard, and yet, when he appears, he cannot be heard to show that the petitioner has no right to condemn the particular property for the alleged use.” [Railroad v. Railroad, 94 Mo. l. c. 543.] This case shows to what great length this court will go in order to apply the provision of the civil code to this class of special proceedings.

One of the most, if not the most, important steps in these drainage proceedings is the incorporation and the establishment of its boundaries. Under the broad and liberal provision of the drainage act very serious injury might be inflicted upon the property-owners if they were denied a fair or impartial trial at this stage of the proceeding.

We have been cited to some cases of other States, which counsel for relators contend oppose the conclusions here reached, and support his theory of the case. Among them is the case of Cooke v. Cooke, 41 Md. 362. The question of a right to a change of venue arose in that case under a constitutional provision which provided for the change of venue in several different kinds of actions at law, but made no provision regarding equity cases. The Supreme Court held that a change of venue in an' equity case would not lie under that provision of the constitution. While the wording in some particulars is similar to the wording of our statute upon that subject, yet a careful reading of the opinion will show that the court placed but little reliance upon the wording, but disposed of the case upon the former ruling of the court and the policy of their law. The other eases cited have but little bearing or weight in this case.

II. “The object and purpose of a writ of prohibition is to prevent a court of peculiar, limited or inferior jurisdiction from assuming jurisdiction of a matter beyond its legal cognizance.” [2 Bailey on Jurisdiction, sec. 449; Smith v. Whitney, 116 U. S. 167; 16 Ency. Plead. & Prac., p. 1093.]

The writ is equally appropriate and available to keep such a coni I; within the boundaries of its lawful power in given cases, no less than to prevent its cognizance of causes not consigned to its jurisdiction. [State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Withrow, 133 Mo. 500; 2 Bailey on Jurisdiction, sec. 447; Const. of Mo., 1875, sec. 3, art. 6; Railroad v. Wear, 135 Mo. 230; State ex rel. v. Spencer, 166 Mo. 271.]

It is not the purpose of the writ to correct errors of the trial court. If the application for a change of venue was not in conformity to the mandates of the statute, or if the proper notice was not given, then the proper procedure was by appeal. If tbe court'whose action is complained of acts within its jurisdiction, the writ of prohibition will not lie, however erroneous the action may be which the superintending tribunal is asked to prohibit. [State ex rel. v. Moehlenkamp, 133 Mo. 134; State ex rel. v. Laughlin, 10 Mo. App. 1; State ex rel. v. Lubke, 29 Mo. App. 555; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216.]

For the reasons before stated, the permanent writ is denied, and respondents are discharged from the rule.

All concur.


author: GANTT, J.

text:
    THE STATE v. MARTIN PAULSGROVE, Appellant.
    Division Two,
    April 2, 1907.
    1. TRANSCRIPT: Criminal Cases. Counsel in a criminal case should superintend the making up of the transcript, and see to. it that it is properly certified and otherwise complies with the law and the rules of the court.
    2. INSANITY: Instruction: Excuse: Omission of Word “Always.” The instruction should tell the jury that “partial insanity does not always excuse,” and the word “always” should not be omitted. But where, upon a reading of the whole instruction from which that word is omitted, it seems impossible that the jury could have been misled by that inadvertent omission, it will not be held to be reversible error.
    3. -: Excuse for Crime. One may be partially insane and yet responsible for his criminal acts. The law does not excuse unless the derangement is so great that it actually renders the accused incapable at the time of committing the offense of distinguishing between the right and the wrong in reference to the particular act charged and proven against him.

      4. ----: Instruction: Proof: Like any Other Fact: Insertion of Word “Not.” In one instruction given for the- State the jury were told that “insanity is a fact which may not be proven like any other fact.” Feld, that the word “not” was incorrectly incorporated, but that was so plainly an inadvertence that, when all the instructions given are considered together, it cannot be seen that it had any prejudicial effect upon the rights of defendant.
    5. -: Question for Jury. Where the instructions given on both sides fairly and fully submit to the jury the issue as to the sanity or'insanity of the defendant and his criminal responsibility in the killing of his sweetheart, and there is evidence that tends to support the defense that he was not responsible for the homicide and ample evidence to the contrary, and no "error was committed in the admission and exclusion of evidence, the issue is one for the jury to determine; and if their finding is free from bias and prejudice, the court will not interfere therewith.
    6. --: Instruction for Murder in Second Degree. • Where there is no evidence of just provocation and defendant is clearly guilty of murder in the first degree or excusable on the ground of insanity, the court should not direct the jury that if defendant in an excited and passionate frame of mind, without adequate cause or provocation, killed the deceased, they will find him guilty of murder in the second degree. No instruction on murder in the second degree should be given in such case.
    7. -: Instruction on lyianslaughte'r. An instruction that seeks to have the court instruct on manslaughter in the fourth . degree if the defendant killed deceased because she refused to marry him, should be refused. Unless there is some evidence tending to show a lawful provocation for the homicide, no instruction for manslaughter in the fourth degree should be given.
    8. -: Instruction on Circumstantial Evidence. Where the defense is insanity and all the evidence as to defendant’s mental condition was open, direct and oral, and there was no circumstantial evidence about who committed the homicide, an instruction which seeks to submit to the jury the law as to a conviction upon circumstantial evidence would be misleading and should be refused.
    9. REFUSING CORRECT INSTRUCTIONS. Where the instructions given fully and fairly cover every issue in the case, a refusal of correct instructions asked by defendant, is not error.

      Appeal from DeKalb Circuit Court. — Hon. A. D. Burnes, Judge.
    Affirmed.

      Herbert 8. Hadley, Attorney-General, and John K&nnish, Assistant Attorney-General, for the State.
    (1) Only the record proper is before this court for review, (a) No authenticated bill of exceptions appears as part of the record in this case. "What purports to be a bill of exceptions does not contain the instructions, the motion for a new trial or motion in arrest of judgment, and is not signed by the judge nor certified to by the clerk of the court. State v. Baty, 166 Mo. 561; Reno v. Fitz Jarrell, 163 Mo. 411. Copying the motions for a new trial and in arrest in the record proper does not preserve them in the bill of exceptions. State v. Revely, 145 Mo. 666; State v. Griffin, 98 Mo. 672. (b) It is shown by the record that the motions for a new trial and in arrest of judgment were filed after judgment and sentence, nor was any objection made when judgment was rendered nor motion by defendant to set the same aside in order that motions for a new trial and in arrest of judgment might be filed. The motions for a new trial and in arrest must be filed before judgment. R. S. 1899, secs. 2689, 2690; State v. Rosenblatt, 185 Mo. 114; Willis v. State, 62 Ind. 391. (2) The court did not err in giving instructions to the jury on behalf of the State. Fifteen instructions were given on behalf of the State covering the subjects of murder in the first degree, the presumption of innocence, reasonable doubt, absence of motive and credibility of witnesses, and as to the effect of statements made by defendant concerning the offense charged. These instructions were in accordance with approved precedents. Instructions were also given fully covering the law of insanity, and were in conformity with the precedents of this court on that subject. State v. Pagels, 92 Mo. 314; State v. Dues-trow, 137 Mo. 44; State v. Speyer, 182 Mo. 66; State v. Church, 199 Mo. 605. In instruction 6, given on behalf of the State, the word “not” seems to have been omitted by mistake, but as the same subject was fully and correctly covered by instruction 10, given on behalf of defendant, the jury could not have been misled by such mistake. (3) Ten instructions were given on behalf of defendant, and presented the law of the ease in at least as favorable form as the defendant was entitled to. Of the seventeen instructions asked by defendant, seven were properly refused by the court. The first because under the law the defendant was not entitled to an instruction on the theory of murder in the second degree. State v. Speyer, 182 Mo. 77; State v. Holloway, 156 Mo. 222; Baldwin v. State, 12 Mo. 223. The second, because the court had fully instructed on that question in instruction 3 given on behalf of defendant. The third, because the question sought to be presented therein was fully covered by instruction 3 given on behalf of the State, and 5 given on behalf of the defendant. The fourth, because there was no •evidence in the ease to authorize an instruction on manslaughter in the fourth degree. Baldwin v. State, supra. The fifth and sixth, because the court had fully instructed on the questions of law presented therein. The seventh, because defendant is not entitled .to an instruction on circumstantial evidence in a case where the defense is insanity. State v. Soper, 148 Mo. 239.
   GANTT, J.

From a conviction and sentence for murder in the first degree by the circuit court of DeKalb county, the defendant has appealed to this court.

This prosecution was commenced on the 20th of January, 1905, by the filing of an information by the prosecuting attorney of Andrew county in the office of the clerk of the circuit court of said county in vacation, charging the defendant with murder in the first degree of Mary Newman. At the May term, 1905, the’ cause was set down specially for trial on the 29th of August, 1905. On the last-mentioned date, the defendant was duly arraigned and a plea of not guilty entered. On a proper application, a change of venue was granted to DeKalh county. At the October term, 1905, of the DeKalb court, the defendant was tried and convicted of murder in the first degree. Motions for new trial and in arrest of judgment were filed and overruled and the defendant duly sentenced by the court. The defendant is not represented in this court by counsel and this has necessitated an examination of the whole record by this court.

The testimony discloses that at the time of the homicide, the 18th of January, 1905, the defendant was an unmarried man about twenty-four years of age, and resided in Andrew county. He had served- as a soldier in the Army of the United States in the Philippine Islands for probably two years, and after the return of his regiment to the United States, he was discharged and returned to Andrew county in the early part of 1904. The father of the defendant resided on a farm in Andrew county seven miles east of Savannah. The defendant worked as a farm hand in the neighborhood, and stayed at the home of his father part óf the time. The deceased, Miss Mary Newman, lived with her parents some three or four miles distant from the Paulsgrove home. At the time of the homicide she was teaching- school in the Paulsgrove neighborhood and boarding with that family. The defendant had been a suitor of Miss Newman for nearly a year after his return from the army to Andrew county, and had frequently called upon her at her own home and at his father’s. He visited her at the latter place the night- before the homicide. On Wednesday evening about three o’clock, January 18, 1905, the defendant came to his father’s house and remained there conversing with the members of the family until about 4:30 p. m., when Miss Newman and three of the smaller Paulsgrove children returned from school. In a few minutes after her arrival, the defendant told Miss Newman that he wanted to see her, and they went into the parlor, which seems to have been the east room on the ground floor of the building, and closed the door. After they had been in the parlor a short time, the family heard Miss Newman scream “0, Martin, don’t!” Mrs. Paulsgrove ran to the parlor door, opened it, and saw the defendant have hold of Miss Newman; Mrs. Paulsgrove seized him and he then turned upon her, she jumped behind the stove, and he shot at her twice with a pistol; he then forcibly took Miss Newman from the parlor into the adjoining sitting room, the latter struggling and resisting until she fainted. He then pulled her upon the bed in the sitting room, and shot her twice through the head,, each of which wounds was mortal.

The defendant, prior to the homicide, had tried to buy a revolver at different places, saying he wanted to shoot rabbits. About two hours before the homicide, he bought a revolver at a little village called Kodiac about two miles from the Paulsgrove residence.

For some time before the homicide the defendant had told a number of people in the neighborhood of his affection for Miss Newman, and to several had stated that he intended to be married to her. On one occasion, when he was told not to be too sure of it, that she might go back on him, he replied with an oath that if she did, he would shoot her.

Just after the shooting of the deceased by the defendant, he went out of the house on the north side and said, “I loved her and she threw me away, I could not stand it, and I killed her.” He remained at Ms father’s house about half an hour after the shooting. During that time he cut the telephone wire and said to his half brother, “Do not speak a word, you have done me enough dirt, but I will let you go this time.” He then left his home and went to Savannah, where he was arrested about ten o’clock that night.

The defense was insanity. The depositions of five soldiers, a lieutenant of the company in which he served in the Philippine Islands, and four other members of the company, were read in evidence and tended strongly to prove that the defendant was insane during the time of his service in the Philippines. There were other witnesses also, who had known the defendant in the neighborhood in which he lived and had been reared, whose testimony tended to'prove that the defendant was not of sound mind. On the other hand, the State introduced a large number of witnesses, including the neighbors and farmers for whom the defendant had worked, and other testimony covering the defendant’s life from his boyhood until the date of the homicide, which tended to prove that he was not insane ; that while he was not of a very bright mind, he was reasonably intelligent and of sound mind, and that he was an exceedingly trustworthy and industrious boy and man in the performance of his work as a farm laborer and an employee of the dairy company.

The information is in all respects sufficient and according to the often approved precedents, and it is therefore unnecessary to set it forth at length. It was duly verified by the prosecuting attorney.

' The court submitted the case to the jury upon an issue of murder in the first degree, and upon a plea of not guilty and a plea of insanity. The court defined the words “wilfully,” “feloniously,” “deliberately,” “premeditatedly,” “malice” and “malice aforethought” as those words have often been defined in instructions which have met the approval of this court. And also gave the usual instructions on the presumption of innocence, reasonable doubt, the credibility of the witnesses and good character, and then the court instructed the jury as follows :

“Insanity is a physical disease located'in the brain, which disease so perverts and deranges one or inore of the mental and moral faculties as to render the person suffering from this affliction incapable of distinguishing right from wrong, in reference to the particular act charged against him, and incapable of understanding that the particular act in question was a violation' of the laws of God and society. Wherefore, the court instructs the jury that if they believe and find from the evidence that the defendant, at the time he did the killing alleged in the information, was so perverted and deranged in one or more of his mental and moral faculties as to be incapable of understanding at the time he killed Mary Newman that such killing was wrong, and that he, the defendant, at the time was incapable of understanding that this act of killing was a violation of the laws of God and society, they should find him not guilty. Insanity is either partial or general. Total insanity always excuses. Partial insanity does not excuse. One may he partially insane and yet be responsible for his criminal acts. The law does not excuse unless the derangement is so great that it actually renders the person incapable at the time of its commission of distinguishing between right and wrong in reference to the particular act charged and proven against him. The law presumes every person who has reached the years of discretion to he of sound mind, and this presumption continues until the contrary is shown. So that when, as in this case, insanity is pleaded as a defense to a criminal charge, the fact of the existence of such insanity at the time of the commission of the act complained of must, before you can acquit on that ground, be established by the evidence to your reasonable satisfaction, and the burden of proving this fact is upon the defendant.”

No. 6. “The law presumes every man is sane until the contrary is established by the evidence-to the satisfaction of the jury, and when insanity in any form is set up as a defense, it is a fact which may not be proven like any other fact. The burden of proving such insanity is on the defendant, and he is not entitled to the benefit of a mere doubt whether he was or was not insane.”

No. 7. “The jury are further instructed that excitement, passion and angered feelings or revenge produced by motives of anger, hatred or revenge is not insanity, and that the law holds the wrong doer of an act under such conditions responsible for his acts, and the jury have no right to excuse or in anywise justify or mitigate defendant’s act in the taking of Mary Newman’s life, except they can do so under and according to law as declared in these instructions. ’ ’

No. 8. “The court instructs the jury that mere weakness of intellect will not shield one who commits a crime, and in this case, although you may believe from the evidence that the defendant is mentally deficient in some degree, yet, unless you are reasonably satisfied by the evidence that at the time the alleged crime is charged to have been committed by the defendant, his mental faculties were so- weak and his mind so deficient that he was unconscious at the time of committing the act that it was wrong, and that ,he ought not to do it, and that he had not the ability or mental capacity to choose between right and wrong, you will find the defendant guilty as charged in the information. ’ ’

Among other instructions the court gave the following at the request of the defendant:

No. 1. “The information in this case is a mere formal charge against the defendant, and of itself is no evidence whatever of his guilt, and no juror should permit himself to be in any degree or to any extent influenced by it. ’ ’

No. 2. “The court instructs the jury that, on the question of sanity or insanity of the defendant, you will consider all of the evidence offered in the case, the life, habits, conduct and mental condition of the defendant from his early manhood to the present time, so far as the same are shown in evidence, the homicide itself and all of the circumstances attending it; the absence or presence of any motive for the conduct of defendant, as shown by the evidence, and all the testimony bearing on his sanity or insanity. And if you find that the defendant was at the time of the homicide insane and irresponsible from any disorder or disease of the brain, resulting in such a derangement of the mental faculties that he had not the capacity to distinguish right from wrong as to the act with which he is charged, then the defendant is not responsible in law, and you ought to find him not guilty.”

No'. 3. “The court instructs the jury that if they believe from the evidence that the defendant was insane or of unsound mind at any time or times prior to the shooting charged in the information, with lucid intervals, or partially lucid intervals or periods in which the defendant knew right from wrong, then and in that case it devolves upon the State to prove by a preponderance of the evidence given in the case that at the time the fatal shot was fired that took the life of the deceased, the defendant was at the time in one of his lucid or partially lucid intervals or periods.”

No. 5. “You are further instructed that the law presumes the defendant innocent of the offense'charged against him; and the burden of the proof rests on the State to show to the jury from' the evidence in the case his guilt beyond a reasonable doubt. If you have a reasonable doubt of defendant’s guilt, you should acquit him; hut a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching defendant’s guilt, and not a mere possibility of his innocence.”

No. 6. “The jury are instructed that when the evidence fails to show any motive on the part of the defendant to commit a crime charged, this is a circumstance in favor of his innocence, and in this case, if the jury find, upon a careful examination of all the evidence, that it fails to show any motive on the part of the defendant, Paulsgrove, to commit the crime charged against him, then this is a circumstance which the jury ought to consider, in connection with all the evidence in the case, in making up their verdict. In order to ascertain whether or not a motive existed on the part of said defendant to commit the crime charged against him, they will take into consideration all the evidence in the case. ’ ’

No. 8. “If, after fully and deliberately weighing and considering all the evidence before them in this case, the jury entertain any reasonable doubt of the defendant’s guilt, they must give him the benefit of such doubt and acquit him. A juror is understood to entertain a reasonable doubt when he has an abiding conviction of mind founded on the evidence to a moral certainty that the defendant is not guilty as charged.”

No. 9. “By the terms ‘preponderance of the testimony,’ and ‘burden of proof,’ as used in the instructions in this case, is meant the greater weight of the testimony in the case. ’ ’

No. 10. “The jury are instructed that the plea of insanity or imbecility of mind is a lawful one in this case, and to establish the insanity or imbecility of the defendant, positive and direct proof of it is not required by law, and to entitle him to an acquittal by reason of his mental insanity or imbecility of any character, circumstantial evidence, -which reasonably satisfies your minds of its existence, is sufficient. ’ ’

The defendant prayed other instructions which were refused and they will be noted in the course of the opinion.

I. It is insisted by the Attorney-General that the court should only examine the record proper on this appeal on, account of the manner in which the transcript has been certified to us. There is much force in the contention. It is greatly to be regretted that counsel in these criminal causes, especially where a charge is so grave as in this case, do not superintend the making up .of the transcript. After a consideration, however, of all the matter certified by the clerk, and inartistically as the record is made up, in view of the gravity of the charge, we have felt it our duty to consider the whole record, matters of exception as well as the record proper.

II. The issue was simple and single and the controlling question submitted to the jury was whether the defendant was sane or insane when he shot and killed Miss Newman. The evidence left not a shadow of a doubt that the defendant shot and killed Miss Newman, and upon the conclusion of the evidence and the instructions of the court, there was no middle ground left for the jury to occupy under the evidence and the law. They were bound either to find the defendant guilty of murder in the first degree, or acquit him on the ground that by reason of his insanity he was not responsible for his act in killing the deceased. And this was the view taken by the learned circuit court as indicated by his instructions to the jury. The reading of the instructions on the subject of insanity will show that they are in harmony with the law of this State on that subject since the case of Baldwin v. State, 12 Mo. 223. There is, it is true, the omission of one word in the fifth instruction given for the State, wherein the court says, “Partial insanity does not excuse.” The word “always” by an oversight is left out, but when the whole instruction on that subject is read together, it seems to us impossible that the jury should have been mislead by this inadvertent omission of the word “always.” The court properly declared the law to be that one may be partially insane arid yet responsible for his criminal acts. The law does not excuse unless the derangement is so great that it actually renders the person incapable at the time of its commission of distinguishing between the right and the wrong in reference to the particular act charged and proven against him. And this was the view announced in the instructions asked by the defendant and given by the court. In the sixth instruction given for the State the word “not” was incorrectly and inadvertently (evidently) incorporated in the instruction, but the use of the word “not” in this instruction is so plainly an inadvertence that when we consider all the instructions together, we cannot believe that it had any prejudicial effect upon the rights of the defendant. Taking the instructions given on both sides of the question together, we think the issue as to the sanity or insanity of the defendant and his criminal responsibility for the killing of Miss Newman, was fairly and fully submitted to the jury. And the evidence called for the instructions as given. It was a question of fact which the jury alone were authorized to pass upon under the instructions of the court, and while there was evidence tending to support the claim of the defendant that he was not responsible for his. act, it was too obvious for discussion that there was ample evidence from which the jury could find that the defendant was sane at the time he shot and killed the deceased and knew the right from the wrong of his act in so doing. There is nothing in the finding of the jury on this point that smacks of bias or prejudice, or that would justify this court in assuming the prerogative of the jury in weighing the evidence and reaching a different conclusion. We have too often decided that we will not invade the province of the jury and- attempt to pass upon the weight of the evidence.

III. We have carefully considered the various objections made during the progress of the trial to the admission and exclusion of evidence. The defense was insanity and the court was exceedingly liberal, in allowing the defendant great latitude in his efforts to establish his insanity. Without recapitulating each item of evidence to which objection was made, it must suffice to say that we have been unable to find any ruling on the admission or exclusion of evidence that could be said to be prejudicial to the defendant.

IV. This brings us to a consideration of the instructions asked by the defendant and refused by the court. The first of these instructions sought to have the court direct the jury that if the defendant in an excited and passionate frame of mind without adequate cause or provocation, killed the deceased, then they would find him guilty of murder in the second degree. There was no error in refusing this instruction, because there was not a particle of evidence which would have justified the jury in finding the defendant guilty of murder in the second degree. There was no just provocation which would have reduced the homicide to murder in the second degree. And all the evidence tended to show that if the defendant was sane, he was guilty of murder in the first degree, or nothing. [State v. Speyer, 182 Mo. 77; State v. Holloway, 156 Mo. 222; Baldwin v. State, 12 Mo. 223.]

No error occurred in the refusal of the second of these refused instructions, because the court had already fully instructed on that question in the instruetion numbered three given at the instance of the defendant. Likewise the court- properly refused the third of these refused instructions, because it had fully covered the proposition involved by its instruction numbered three given in behalf of the State and instruction numbered five given for the defendant.

The fourth of these, instructions which the court refused sought to have the court instruct on manslaughter in the fourth degree, if the defendant killed the deceased because she refused to marry him. There was no evidence in the case which would have authorized the court to instruct on manslaughter in any degree. There was not a scintilla of evidence tending to show the slightest lawful provocation for the homicide.

The fifth and sixth of these refused instructions had already been fully covered by the instructions for the State and the defendant, and it was not error to refuse to repeat them.

The last of these refused instructions sought to submit to the jury the law as to a conviction upon circumstantial evidence. As was said in State v. Soper, 148 Mo. l. c. 239, “This instruction would have been misleading. There was no circumstantial evidence about who did the homicide, that was indisputable, while all the evidence as to defendant’s mental condition was open, direct and oral. The instruction was properly refused.”.

V. As already said, the evidence on behalf of the State tended to prove a deliberate, premeditated case of murder in the first degree. To avoid the consequence of this proof, the defendant interposed the defense of insanity, and while there was evidence tending to establish that defense, there was a great mass of evidence on the part of the State given by the neighbors and employers of the defendant, which tended to prove that the defendant was not insane when he shot and killed the deceased. And this question was one which was resolved by the jury against the defendant, and -the jury were amply justified in reaching that conclusion.

After a careful consideration of the whole record, we have been unable to find any reversible error and it results that the judgment of the circuit court must be and is affirmed and the sentence which the law pronounces is directed to be carried into execution.

Fox, P. J,, and Burgess, J., concur.


author: BURGESS, J.

text:
    GIBLER v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.
    Division Two,
    April 2, 1907.
    1. TOLL BRIDGE: Liability to Pedestrian. A company which operates a public toll bridge across the Mississippi river is not a common carrier. It must keep the bridge in a reasonably safe condition for travel, and is liable to a pedestrian for negligence .only for a failure to do that. But the ordinary care which it must use is care proportionate to the danger.to be apprehended.
    2. -: -: Contributory Negligence: Reasonable Care: Question for Jury: Demurrer to Evidence. A snow less than an inch and a half deep fell on December 8th. -The next morning the snow on the street .car tracks on the bridge and the wagon drivewajy was swept off and piled on the sidewalks of the bridge, and this was the condition when plaintiff crossed the bridge on the 10th, except that some of the snow had melted and formed slush, part of which had turned into ice. That evening when plaintiff attempted to walk across, he kept to the driveway from which defendant had partially removed the snow, and walked thereon until it was difficult, if not impossible, for him to proceed further on the driveway because of the blockade of vehicles near the toll-collector’s office. He turned towards the sidewalk to avoid a team driven towards ihim and was then compelled to step on the sidewalk to avoid a buggy driven in his direction. After getting on the sidewalk he made a step or two forward, but on account of the ice and slush accumulated there he slipped and fell, and his leg was broken. The bridge was 4,200 feet long, 3,168 passengers crossed it that day, and after it quit snowing on December 8th eighty men were put to work to remove the snow, and one witness testified that one side of the bridge could be easily cleaned in a half , day, yet the men were still at work removing the snow and ice at the time plaintiff was injured, which was two full days after the snow fell. EeM, that, the effect of the demurrer being to admit as true all material facts shown by the evidence, the question of plaintiff’s contributory negligence was one in regard to which reasonable minds might differ, and was therefore properly submitted to the jury, as was also the question of whether the bridge was reasonably safe for persons passing over it.
    S. -: -1: Instruction: Dangerous Obstruction: Ordinary Care. Defendant’s charge that an instruction allowed the plaintiff to recover if he stepped upon ice and slush on the sidewalk of the toll bridge, without requiring the jury to first find that such ice and slush formed a dangerous obstruction to pedestrians in passing over said sidewalk, is not well grounded in view of the fact that the instruction told the jury that “if they find from the evidence that the defendant did not exercise ordinary care in so maintaining said sidewalk with said ice and slush thereon and in permitting said ice and slush to be on said sidewalk,”' etc.
    4. INSTRUCTION: General: How Cured. An ambiguous or general term in one instruction may be explained by another instruction, and a partial view may thus be supplemented, provided the whole be consistent and harmonious.
    5. -: Ordinary Care: Definition. An instruction which defines “ordinary care” as applied to the keeper of a toll bridge as “such care as a prudent operator of a toll bridge would exercise” instead of “such care as a person of ordinary prudence would exercise,” is not misleading or confusing, as both expressions mean practically the same thing, but it is nevertheless unhappily worded.
    6. -: Personal Injuries: Medical Services: No Evidence. An instruction which authorizes plaintiff to recover in a personal injury case damages “for any expenses necessarily incurred by him for medicines, medical or surgical attention which the jury may believe from the evidence he has incurred by reason of said injuries and directly caused thereby” should not be given if there is no evidence on which to base it. And where the evidence on the subject consists of the testimony of two physicians, one of whom called on plaintiff once or twice, but did not 'receive any compensation and only stated that he usually charged two dollars a visit, and the other that he merely examined plaintiff for the purpose of testifying as an expert, and no showing was made of plaintiff’s liabliity for such services, or the reasonable value thereof, and of plaintiff’s testimony that he did not know the amount of the doctors’ bills, there is no evidence on which to base the instruction. The instruction as it stands leaves it to the jury to estimate the damages that ought to be allowed, without any evidence to enlighten them, and is therefore error.
    Appeal from Audrain Circuit Court. — Eon. E. W. Johnson, Judge.
    Reversed and remanded.

      J. E. McKeighan and Wm. R. Gentry for appellant.
    (1) The court erred in overruling the demurrer to the evidence: (a) Because the evidence showed that defendant was exercising ordinary care to clean up its bridge and keep it in safe condition. Ordinary care was all that was required of defendant in this connection. Grigsby v. Chappell, 5 Rich. L. (S. C.) 445. (b) Because plaintiff’s own testimony shows that he was guilty of negligence in selecting the route which he chose to walk upon when he knew of the presence of the ice, slush and snow, and when by stepping back on to the thirty-four foot roadway he would have had a clean path to walk upon. Where two ways are open to walk or drive upon, one safe and the other obviously dangerous to pedestrians or drivers, and the pedestrian or driver selects the obviously dangerous one and is injured, he cannot recover. Cohn v. City of Kansas, 108 Mo. 387; Wheat v. St. Louis, 179 Mo. 572; Ray v. Poplar Bluff, 70 Mo. App. 252. (2) The court erred in giving improper instructions at the request of the plaintiff, (a) Plaintiff’s instruction 1 was defective in that it allowed plaintiff to recover if lie stepped upon ice and slush on the sidewalk on the bridge, without requiring the jury to first find that said ice and slush formed a dangerous obstruction to pedestrians in passing over said sidewalk. Stone v. Hubbardson, 100 Mass. 49; Chase v. Cleveland, 44 Ohio St. 505; Grossenbach v. Milwaukee, 65 Wis. 31; Broburg v. Des Moines, 63 Iowa 523. (b) Instruction 3 was wrong because it permitted the plaintiff to recover for ‘ ‘ expenses necessarily incurred by him for medical or surgical attention, ’ ’ when there was no evidence tending to show that he had incurred any expenses for medical or surgical attention. Nelson v. Railroad, 113 Mo. App. 659; Duke v. Railroad, 99 Mo. 349; Smith v. Railroad, 108 Mo: 243; Robertson v. Railroad, 152 Mo. 382; Waldopfel v. Railroad, 102 Mo. App. 529; Rhodes v. City of Nevada, 47 Mo. App. 499.

      A. B. Taylor, E. E. Rudolph- and P. H. Cullen for respondent.
    (1) The court did not commit error in overruling the demurrer to the evidence, for the reason that plaintiff submitted substantial evidence tending to prove his case, which showed a prima-facie right of recovery, and plaintiff was entitled to have the probative force of his evidence determined by the jury. Baird v. Railroad, 146 Mo. 265; Eichorn v. Railroad, 130 Mo. 575; Graney v. Railroad, 140 Mo. 89; Butts v. Bank, 99' Mo. App. 172; Ladd v. Williams, 104 Mo'. App. 390; Knapp v. Hanley, 108 Mo. App. 353; Pembroke ,v. Railroad, 32 Mo. App. 61. (2) The question of whether or not plaintiff was guilty of contributory negligence in continuing to use a sidewalk where he was compelled to go, and upon which there was an accumulation of ice and snow, when he might have stepped back on the driveway, which at the time and place was at least equally as dangerous, because of teams and vehicles hurrying out from the blockade at the toll collector’s office, a few rods away, was a question for the jury to decide, especially when it was shown that plaintiff was using every reasonable precaution to prevent being injured. Loewer v. City of Sedalia, 77 Mo. 431; Buesching v. St. Louis Gas Co., 73 Mo. 220; Hite v. Railroad, 130 Mo. 138. (3) The question of plaintiff’s right to recover was properly submitted by the court in plaintiff’s first instruction. Pembroke v. Railroad', 32 Mo. App. 61; 1 Thompson on Negligence, 317; Reno v. St. Joseph, 169 Mo. 642. However, instruction 4, offered by defendant and given by the court, is upon the very same question; and almost identically expressed, with the further and additional words “that the plaintiff must prove by a preponderance of the evidence that said ice and slush was a dangerous obstruction to pedestrians passing over said walk on said bridge,” and the rule can be here applied that if omissions in the instructions given for plaintiff are fully supplied by those given for defendant, the instructions will be regarded as invulnerable. Goetz v. Railroad, 50 Mo. 472; Chambers v. Chester, 172 Mo. 462; Westen v. Mining Co., 105 Mo1. App. 708; Kennedy v. Railroad, 103 Mo. App. 5; Baker v. Independence; 106 Mo. App. 507; Liese v. Meyer, 143 Mo. 560. (4) Instruction 2, given by the court, defining the term “ordinary care,” as applied to defendant, was correct, and- the court did not commit error in giving it. Holden v. Railroad, 177 Mo. 456; Frieck v. Railroad, 75 Mo. 609; King v. Oil Co., 81 Mo. App. 155. (5) The court did not commit error in giving instruction 3, as to the measure of damage, for there was substantial evidence upon which to base each element of damage; including any expenses necessarily incurred by plaintiff for medical and surgical attention, which the jury may believe from the evidence he has incurred by reason of said injuries and directly caused thereby. Gorham v. Railroad, 113 Mo. 421; Hayden v. Parsons, 7-0 Mo. App. 493; Taylor v. Iron Works, 133 Mo. 349; Mirrielees v. Railroad, 163 Mo. 492.
   BURGESS, J.

This is an action fox damages for personal injuries alleged to have been sustained by plaintiff by reason of the negligence of defendant in allowing the sidewalk on the bridge known as the Eads Bridge, spanning the Mississippi river at the city of St. Louis, upon which plaintiff was walking as a foot passenger, to remain in a defective and dangerous condition. The suit was instituted in -the circuit court of the city of St. Louis, and the venue changed to Audrain county, where the case was tried on the 1st day of July, 1904, resulting in a verdict and judgment for $5,000 in favor of plaintiff. Defendant filed motion for a new trial, which was overruled by the court, and defendant appealed.

The petition, after reciting the incorporation of the defendant, and charging that it operated the bridge in question as a public toll bridge, alleges that on the 10th day of December, 1901, plaintiff, having paid the required toll, was lawfully on the bridge, passing from the east to the west side thereof, and that while so doing he stepped on ice and slush on the sidewalk of the bridge, which was used as a place for foot passengers to walk, and that he slipped and fell by reason of said ice and slush, breaking his thigh bone and sustaining other bodily injuries. It is charged in the petition that the ice and slush, so accumulated upon the sidewalk, constituted a dangerous obstruction to the passage of passengers over said bridge, and that defendant was negligent in allowing the sidewalk to remain in such defective and dangerous, condition. The petition closes with the usual allegations as to. the injuries, pain and suffering, loss of time and earnings, and charges that the plaintiff "has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, to his damage in the sum of ten thousand dollars, for which sum he prays judgment.”

The answer consisted of a general denial and a plea of contributory negligence on'the part of plaintiff, to which answer plaintiff replied with a general denial.

The evidence on the part of the plaintiff tended to show that on the morning of Monday, December 9, 1901, plaintiff walked across the bridge from the -St. Louis side to go to work at his trade as a glazier in East St. Louis, and that as snow had fallen on Sunday, the bridge was in a bad condition for foot passengers, and many people, because of the snow and slush on the sidewalks, were walking across the bridge over the portion commonly used as a wagonway.. Plaintiff testified that when he returned to St. Louis the same evening the condition of the bridge sidewalks was no better than in the morning, and that there was from five to eight inches of slush at some places on the walks ;' that it was higher in some places than in - others, as though it had been piled up or swept there. On Tuesday morning plaintiff noticed that the sidewalks were still in the same condition, while the center of the bridge was cleaner and in better condition than the day before. On the evening of said Tuesday plaintiff, accompanied by Gus Weiss, a fellow-workman, started to walk across the bridge from the east side, and seeing the sidewalks unfit to walk on, they walked on the center or roadway of the bridge. When they came within about a hundred yards of the west toll office they saw the roadway blocked with vehicles. A wagon came along and plaintiff got out of its way by stepping on the street car track on the north side of the bridge. Then came a buggy, driven along said street car track, and to get out of its way plaintiff stepped over the guardrail between the sidewalk and the driveway and placed his foot on the sidewalk, which was a little lower than the driveway. After reaching the sidewalk plaintiff took one or two steps, when his foot slipped on the slnsh and ice and he fell on his right hip and arm, the fall breaking his thigh bone at the hip joint. The time was about 5 p. m., and was about dusk. Plaintiff knew the condition of the sidewalk at the. time, but as there were teams passing on the bridge he took his chances on the sidewalk rather than take ehances in crossing the bridge to the south side ahead of the teams. Weiss raised plaintiff up and assisted him into a street car, which carried him to the west end of the bridge. He was taken to the dispensary at St. Louis, and from there home, where he was confined several months, after which he was able to get about on crutches. Plaintiff stated that he could walk a few steps without crutches, but could not stand it long, and used at least one crutch all the time. He said that on account of the injury he had been unable to do any work until about a year before the time of the trial, when he got a job, with the privilege of sitting down, his earnings being from fourteen to fifteen dollars every two weeks. Before the injury he was earning three dollars per day and was in good health. He did not know the exact amount he had paid for liniments and medicines, but thought it was about twenty-five dollars. The amount of the doctor’s bill he did not know.

Plaintiff was treated by Dr. Hill, but as he was not progressing fast enough he called in Dr. Eoss, who in his testimony stated that he called on plaintiff several weeks after the injury had occurred, and found evidences of fracture.of the thigh bone at the hip joint. He only visited the plaintiff once or twice. For such visits he said his general charge was two dollars, but did not say that plaintiff had paid him.

Dr. Prank Eing testified that he examined plaintiff’s condition with reference to the injury some three weeks before, and found evidence of fracture of the femur bone at the hip joint. He said plaintiff would always suffer pain in using the injured leg, and would never be able to walk without support.

Witness G-us Weiss, testifying for plaintiff, said that he crossed the bridge on Monday morning, December 9, when he found snow and ice on the bridge and sidewalks between four and five inches deep. Some places it was piled up. The snow had been swept from the street car tracks on to the sidewalks, and the pedestrians used the wagon road in crossing the bridge. On the evening of the same day the conditions were no better, nor on the following morning', December 10. His testimony was like that of plaintiff regarding the condition of the bridge and sidewalks and the circumstances preceding and attending the injury, differing slightly in the details.

The testimony adduced by defendant was to the effect that snow fell on December 8 to a depth of one and three-tenth inches; that it quit snowing at 5:20 p. m., same day, and that after it quit snowing defendant’s foreman put eighty men, together with carts, to work to clean the snow off of the bridge, piling the snow and slush in piles on the north sidewalk, and they were still at work cleaning it off at the time of the accident (which was two full days after the snow fell), and there were yet many piles left on the north sidewalk to be carted away or thrown over the side of the bridge into the river.

Witness Mochett testified that he was at work sixty or seventy feet east from the place where plaintiff was injured cleaning up dirty little spots; that the mud from the driveway was being piled in piles on the north sidewalk, and the cart was there ready to haul it off; that as a rule the piles were only made from the ticket office to Third street (the west end of the bridge), and to the east of the ticket office (the place where plaintiff received his injury), whatever was cleaned from the bridge was thrown into the river; that it sometimes took a half day and sometimes a day to clean the snow off, and they could go over one side easily in half a day, throwing the snow into the river. That the walk was rough from being worn.

Witness O’Neil testified that he was at work fifty or sixty feet east of plaintiff, scraping mud; that the piles were composed of snow and mud mixed. Witness saw no snow on the sidewalk that day except the piles of slush and mud; that the.sidewalk was nine feet wide and only two or three feet next the guardrail was occupied by any piles of slush and mud; that the piles were composed of mud only so far as witness knew.

Witness Williams testified that in cleaning the bridge they always commenced on south side of driveway next to the guardrail and swept the roadway on to the north sidewalk and piled it all on the north sidewalk. That there were no restrictions as to where passengers should walk. That there were 3,168 fares collected on the bridge December 10, 1906.

At the close of all the evidence, defendant asked for an instruction in the nature of a demurrer to the evidence, which was refused by the court, and defendant duly excepted.

The first inquiry is as to whether the court erred in overruling the demurrer to the evidence.

Although defendant is not a common carrier, its obligation is to keep its bridge in a reasonably safe condition for travel, and it is only liable for negligence in failing to so keep it. The owner of the toll-bridge is not a common carrier, for in general he has no possession or control over the goods passing over it. He is not like a stage-owner or a railroad company. In these cases the passenger surrenders himself to the care and control of the stage-owner or railroad company, or their agents and servants in charge of the stage or train upon which he is a passenger; hut in crossing a toll bridge, the acts and conduct of a passenger are regulated by his own will. In Grigsby v. Chappell, 5 Rich. L. (S. C.) l. c. 445, it is said: “A bridge over a stream is but a continuation of the public highway which the owner, in consideration of certain tolls, undertakes to build and keep in repair. He is more like the owner of a turnpike road, and his liabilities are analogous. His obligation is to keep the bridge in proper condition for the safe passage of passengers. This is his duty, and if he omit it, he must answer for whatever loss others may sustain.”

.It is not claimed that the bridge was out of repair; but it appears from the evidence that a snow had fallen, and that next morning the snow on the street car tracks on the bridge was swept off and piled'' on the sidewalks of the bridge; so that besides the snow which had fallen on the sidewalks there was an accumulation thereon of the snow and slush swept from the street car tracks and driveway, and this was the condition when plaintiff crossed the bridge two days after the snow had fallen, except that some of the snow had melted and formed slush, part of which had turned into ice. When plaintiff started to cross the bridge on the evening he sustained the injury he kept to the driveway, which defendant had partially cleaned, and walked thereon until it was difficult, if not impossible, for him to proceed further on the driveway because of the blockade of vehicles near the toll collector’s office. He turned to the right or north side of the bridge to avoid a team driven towards him, and was then compelled to step on the sidewalk to avoid a buggy driven in his direction. After getting on the sidewalk he made a step or two forward thereon when, on account of the ice and slush accumulated there, he slipped and fell, receiving the injuries stated.

The evidence offered by the defendant showed that 3,168 passengers crossed the bridge on the day plaintiff was injured, that the bridge was about 4,200 feet long, and that after it had quit snowing on December 8 defendant put eighty men to work cleaning off the snow. One witness stated that one side of the bridge could be easily cleaned in half a day; yet it would appear that the men were still at work cleaning off the snow and slush and piling it on the sidewalk at the time plaintiff was injured, which was two full days after the snow had fallen.

The effect of the demurrer was to admit as true all material facts shown by the evidence. This being so, did the facts and circumstances in evidence make out a prima-facie case and authorize the submission of it to the jury? It has been said that “persons, artificial or natural, who construct bridges and receive toll from those who use them are bound to use due care, skill and diligence to keep them in a reasonably safe condition for use by those who have a right to travel upon them. . . . While the owners of such a bridge are not warrantors or insurers, they are bound to exercise ordinary care to keep them in a reasonably safe condition for passage.” [Elliott on Roads and Streets (2 Ed.), secs. 39, 40.]

While some of the adjudged cases hold that more than ordinary care is required of the owners of toll bridges, because they collect fares from those who use them, the authorities substantially agree that ordinary care is all the law requires, but to constitute ordinary care the care must be proportionate to the danger to be apprehended.

We are of the opinion that the question of plaintiff’s contributory negligence, under the evidence as adduced, was one in regard to which reasonable minds might well differ, and was, therefore, properly submitted to the jury (Berry v. Railroad, 124 Mo. 223; Powers v. Railroad, 202 Mo. 267) as well also as the question as to whether the bridge was reasonably safe for persons passing over it at the time of the accident.

Plaintiff’s instructions numbered 1, 2, and 3 are claimed to be erroneous. They are as follows:

“1. If the jury find from the evidence that on the 10th day of December, 1901, the defendant was using and operating the bridge mentioned in the evidence for the purpose of carrying persons- for hire over the Mississippi river; and if the jury find from the evidence that on said day the plaintiff was passing over said bridge and that he paid his fare for such passage; and if the jury find from the evidence that on said day there was accumulated on the sidewalk of said bridge provided by said defendant for its foot passengers to walk upon, ice and slush, and that whilst the plaintiff was so walking upon said bridge he stepped upon some ice and slush and was thereby caused to- slip and fall and sustain injuries mentioned in the evidence; and if the jury find from the evidence that the defendant did not exercise ordinary care in so maintaining said sidewalk with said ice and slush thereon and in so permitting said ice and slush to be on said.' sidewalk; and if the jury believe from the evidence that the plaintiff was exercising ordinary care at the time of his injury, then plaintiff is entitled to recover.
“2. The court instructs the jury that by the term ‘ordinary care’ as applied to the defendant in the instructions, is meant such care as a prudent operator of a toll bridge would exercise under the same or similar circumstances, and as applied to the plaintiff is meant such care as a person of ordinary prudence would use under the same or similar circumstances.
“3. If the jury find for the plaintiff they should assess his damages at such a sum as they may believe from the evidence will be a fair pecuniary compensation to him.
“1st. For any pain of body or mind which the jury may believe from the evidence he has suffered or will hereafter suffer by reason of his injuries and directly caused thereby.
“2d. For any loss of the earnings of his labor and avocation which the jury may believe from the evidence he has sustained or will hereafter sustain by reason of his injuries and directly caused thereby.
“3d. For any expenses necessarily incurred by him for medicines, medical or surgical attention which the jury may believe from the evidence he has incurred by reason of said injuries and directly caused thereby. ’ ’

Instruction number 1 is assailed upon the ground, as claimed, that it allowed the plaintiff to recover if he stepped upon ice and slush on the sidewalk of the bridge, without requiring the jury to first find that such ice and slush formed a dangerous obstruction to pedestrians in passing over said sidewalk. If this instruction had gone no further than the limit assigned to it by defendant, it would be subject to the objection urged against it, but the instruction goes .further, and tells the jury that “if they find from the evidence that the defendant did not exercise ordinary care in so maintaining said sidewalk with said ice and slush thereon, and in so permitting said ice and slush to be on said sidewalk,” etc., which shows that the objection is not well grounded. The instruction, as a whole, only required of the defendant the exercise of ordinary care in maintaining its sidewalk free from ice and slush. Besides, this identical point was covered by instruction numbered 1 given at the instance of defendant, and which told the jury that in order to recover, “the plaintiff must prove by a preponderance of the evidence: 1st, that the plaintiff slipped and fell on account of ice or slush that had accumulated on the sidewalk of said bridge; 2d, that-the defendant, in allowing said ice and slush, to so accumulate on said sidewalk, was guilty of negligence; 3d, that said ice or slush was a dangerous obstruction to pedestrians passing over said sidewalk on said bridge. And even then, the plaintiff is not entitled to recover if you further find from the evidence that the injuries complained of by plaintiff were in anywise directly due to any want of ordinary care- on his part, or that said injuries could have been avoided by the exercise of ordinary cáre on the part of plaintiff.”

These instructions are not conflicting, but are in perfect harmony with each other. Even conceding (which we by no means do) that plaintiff’s instructions only cover part of the case, any omission therein was supplied by those given at defendant’s instance. An ambiguous or general term in one instruction may be explained by another instruction, and a partial view may also thus be supplemented, provided the whole be consistent and harmonious. [Goetz v. Railroad, 50 Mo. 472; Chambers v. Chester, 172 Mo. 461; Liese v. Meyer, 143 Mo. 547.]

Plaintiff’s instruction numbered 2 is challenged upon the ground that it is misleading in that it leaves the jury to grope in darkness as to what degree of care should be exercised by the defendant; that while it tells the jury that defendant should exercise such care as a prudent operator of a toll bridge would exercise under the same or similar circumstances, it does not throw any light upon the subject as to what degree of care a toll bridge operator does or should exercise, and that it is further defective in its wording md draws an improper distinction between the degree of care'incumbent on the plaintiff.and that incumbent on the defendant.

It is conceded by defendant that the definition of ordinary care as applied to plaintiff is correctly given, when it is stated that it is such care as a person of ordinary prudence would use under the same or similar circumstances, but it is insisted that the term “ordinary care” as applied to the defendant was erroneously defined by the court as such care as a prudent operator of a toll bridge would exercise. "While the instruction is unhappily worded, in that it uses the words “such care as a prudent operator of a toll bridge would exercise,” instead of the words “such care as á person of ordinary prudence would exercise,” we do not think it misleading or confusing, as both expressions mean practically the same thing. Therefore, the judgment should not be reversed upon this ground alone.

It is insisted that plaintiff’s instruction numbered 3 is erroneous in that it told the jury that plaintiff was entitled to recover damages “for any expenses necessarily incurred by him for medicines., medical or surgical attention which the jury may believe from the evidence he has incurred by reason of said injuries and directly caused thereby,” the objection being that there was no evidence upon which to base this part of the instruction.

Upon a careful examination of the record, we have failed to find any evidence which would authorize the giving of such instruction. But two physicians ever said that they called on plaintiff in a professional capacity after his injury. One of them called on him toce or twice, but did not state that he received any compensation for his services. His only statement in that regard was that he generally charged two dollars a visit. Nor is there any evidence that plaintiff ever paid him anything for his- services. Dr. Ring, the other physician, examined the plaintiff twice merely for the purpose of testifying as an expert in the case, and neither party to the suit asked him about the liability, if any, incurred by plaintiff on account of his services, or the reasonable value thereof: nor did he make any statement in that regard. Plaintiff, upon this question, testified that he did not know the amount of the doctors ’ bills. It will be noted that the instruction told the jury that if they found for plaintiff they would allow him “for any expenses necessarily incurred by him for medicines, medical or surgical attention,” etc., thus leaving the jury to estimate the damages that ought to be allowed on account of expenses incurred for medical and surgical attention without any evidence to enlighten them or any bases upon which to form such estimate. Damages of this character cannot be allowed except upon proof. [Duke v. Bailroad, 99 Mo. 349; Smith v. Railroad, 108 Mo. 243; Morris v. Railroad, 144 Mo. 500; Robertson v. Railroad, 152 Mo. 382.] In Nelson v. Railroad, 113 Mo. App. l. c. 663, it is said: “Proof of the liability paid or incurred is some evidence of the value of the services (Abbitt v. Railroad, 104 Mo. App. 534), but when, as in this case, the evidence fails to show either the amount of the charge or the reasonable value of the services, there is an entire failure of proof, and the jury should not be permitted to speculate in an effort to award full compensation for the actual damages suffered. Nor can it be said that the error was harmless. The verdict greatly exceeded the sum of the actual disbursements made by pla'ntiff. We are unable to know just how much of the excess represents damages of this character, but, presumably, the jury obeyed the instruction and allowed something for them. Under the pleadings and evidence it was error to direct this to be done. ’ ’

For the error noted the judgment is reversed and the cause remanded.

All concur.


text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. LANGELAND.
    Division Two,
    April 2, 1907.
    PUBLIC HEALTH: Milk: Constitutional Ordinance. A city ordinance which imposes a fine on any person who sells or exposes for sale “milk containing less than three per cent by weight of butter-fat, and 8.5 per cent of solids not fat, and seven-tenths of one per cent ash, of which fifty per cent is insoluble in hot water,” does not violate any of the constitutional rights of the citizen.
    Error, to St. Louis Court of Criminal Correction. — - Hon. Hiram N. Moore, Judge..
    Reversed {with directions).

      Chas. W. Bates and Chas. P. Williams for plaintiff in error.
   GANTT, J.

This is an action by the city of St. Louis against the defendant for the violation of an. ordinance of said city, entitled, ‘An ordinance to license and regulate the sale of. milk and cream, and to provide for the inspection thereof,’ this ordinance being numbered 20,808, section 18, approved August 27, 1902. The information charges that the defendant on the 5th day of February, 1903, in the city of St. Louis at Kings Highway and Natural Bridge Road, did sell, keep for sale and expose for sale at said time and place, milk containing less than three per cent by weight of butter-fat, and 8.5 per cent of solids not fat, and seven-tenths of one per cent ash, of which fifty per cent was insoluble in hot water, contrary to the ordinance aforesaid.

The defendant moved in the St. Louis Court of Criminal Correction to- quash the complaint and dismiss the action on sixteen grounds, which motion the court sustained and dismissed the suit, to which action of the court the plaintiff then and there, at the time duly excepted, and has in due time- brought the matter to this court by writ of error.

I. All the constitutional questions relied upon in the motion to quash the information in the court of criminal correction, were disposed of adversely to the contention of the defendant in the cases of St. Louis v. Liessing, 190 Mo. 464, and the kindred cases of the City of St. Louis v. Grafeman Dairy Company, 190 Mo. 492; City of St. Louis v. Schuler, 190 Mo. 524; City of St. Louis v. Polinsky, 190 Mo. 516; City of St. Louis v. Grafeman Dairy Co., 1901 Mo. 507.

II. The information was sufficient and the court erred in dismissing the cause. [St. Louis v. Bippen, 201 Mo. 528.]

Judgment reversed with directions to- the St. Louis Court of Criminal Correction to reinstate the cause and grant a new trial and proceed in accordance with the views herein expressed.

Fox, P. J., and Burgess. J., concur.