author: WALKEE, J.

text:
    ELIZABETH CARPENTER et al., v. CITY OF ST. JOSEPH et al., Appellants.
    Division Two,
    February 23, 1915.
    1. INJUNCTION: Unnecessary Defendants: Corrected on Appeal. In an injunction to enjoin the city and the members of the board of public works, the judgment, shown to be illegal as to the city and valid as to the other defendants, can be corrected on appeal by striking out the name of the city without necessitating a reversal.
    2. -: Pleading: Cause of Action: Trespass: Insolvency. A petition for injunction charging that plaintiffs are the owners of a certain lot, that the city had torn down the fences inclosing the same and had commenced to grade a strip sixty feet wide along the side of'the lot, and that if permitted to proceed, without condemnation proceedings or the payment of damages, the injury to the inheritance would be irreparable, is sufficient, although it contains no allegation of defendant’s insolvency.
    3. -: -: -: -: Irreparable Injury: Damages.. It is not material to the sufficiency of the petition for injunction to restrain defendant from further trespassing upon plaintiff’s land whether the averments of irreparable injury are generally or specifically pleaded. The determinative question is, will an action for damages afford an adequate remedy? If the injury is irreparable, injunction will lie regardless of whether an action for damages will afford an adequate remedy; while in other cases it will lie only where an action for damages will not afford an adequate remedy, and where that is true the facts of irreparable injury need not be particularly specified.
    4. -:--: -: — : -: Inadequacy of Legal Remedy. A statement of the facts constituting the trespass upon plaintiff’s land and the irreparable injury resulting therefrom sufficiently enumerates the facts necessary to support the general allegation that plaintiff has no adequate remedy at law.

      5. STREET: Dedication by User. To constitute a dedication of land' by user there must be adverse and exclusive possession, under a claim of right, with knowledge and acquiescence of the owner, or such open and notorious possession that he may be charged with notice; and the use must be continuous and uninterrupted for a period equal to that required by the statute barring a recovery of real estate; and, in addition, there must be an acceptance by the public manifested by the use of the-property as a public highway. The removal of fences by vandals or pedestrians who wish to cross over the lots, and the- use-of the lots in this way for a year or two at a time, until the , fences were again reconstructed, did not constitute a dedication. , by public user.
    6. -: Condemnation: No Payment. Until the money awarded to the owner of land taken by a condemnation proceeding for a public street, is paid to the owner, or into court for his. use, the city has no right to disturb him in the full enjoyment of the same. Enacting an ordinance authorizing the. register to draw a warrant on the treasurer “in favor of the-party or parties interested in said property for the amount in this ordinance specified, when so ordered by the mayor,” does, not constitute payment, or preclude an injunction by the owner-restraining the city from taking possession.
    Appeal from Buchanan Circuit Court. — Hon. W. K. Amioh, Judge.
    Affirmed.

      Frank B. Fulkerson, W. B. Norris, O. E. Shoultz and Phil. A. Slattery for appellants.
    (1) Plaintiffs’ petition does not state a cause of action for the following reasons: (a) It does not. state that the defendants are insolvent and not able-to respond in damages, (b) It does not state facts-sufficient to show that plaintiffs will suffer an irreparable damage, by reason of defendants’ acts, (c) While-the petition states the conclusion that plaintiffs have-no adequate remedy at law, it states no facts that can. support such an allegation, (d) The petition shows on its face that plaintiffs have an adequate remedy at. law, and are not entitled to injunction relief. Crenshaw v. Cook, 65 Mo. App. 264; Quinn v. Schneider, 118 Mo. App. 39; Carlin v. Wolff, 154 Mo. 543; Davis v. Hartwig, 195 Mo. 380; Schuster v. Myers, 148 Mo. 422; Owen v. Ford, 49 Mo. 437 ¡ 'Humphreys v. Milling Company, 98 Mo. 551; Van Frank v. Brooks, 93 Mo. App. 426; Anderson v. St. Louis, 47 Mo. 479r. (e) • The petition states no cause of action against the city because it states that the city was acting without authority and contrary to its charter provisions. The city is not liable for an unauthorized trespass. Quinn v. Schneider, 118 Mo. App. 39; Worley v. Columbia, 88 Mo. 106; McQuarter v. St. Joseph, 134 Mo. App. 640; Investment Co. v. Brick Co., 134 Mo. App. 357; Unionville v. Martin, 95 Mo. App. 28; Stuebner v. St. Joseph, 81 Mo. App. 273. The verdict should have been for defendants for the reasons: (a) That the evidence did not disclose an irreparable injury or destruction of the inheritance attempted or threatened by defendants, (b) Because the evidence shows that the land' in controversy had been condemned by defendants for the purpose of a street, (c) Because it had become a highway from long use by the public. (3) The judgment of the trial court should be set aside for the reason that a permanent injunction cannot be issued when the title is in dispute. In such cases, the question of title must first be settled in an action at law. Smith v. Jameson, 91 Mo. 13; Lytle v. James, 98 Mo. App. 341; Mining Co. v. Moore, 130 Mo. App. 632; Parker v. Winnipiseogee C. & W. Co., 67 U. S. 545; Irwin v. Dixon, 50 U. S. 10.

      Kendall B. Randolph for respondents.
    (1) Plaintiffs’ petition states a good cause of action. The defendants proceed upon an erroneous theory of law as to the sufficiency of the petition. The defendants in this case were proceeding in violation of the-. Constitution of the State to take private property for public use without just compensation and without damages being first ascertained and paid. Sec. 21, art. 2, 'Constitution. And in such a case it is wholly immaterial whether the defendants are insolvent or possessed of great wealth and whether or not any allegation of irreparable injury is made, and it also makes no difference whether or not it is alleged that there is no adequate remedy at law. McPike v. West, 71 Mo. 199; Rosenberger v. Miller, 61 Mo. App. 422; Carpenter v. Grisham, 59 Mo. 251; Graden v. Parkville, 114 Mo. App. 527; Holmes v. Kansas City, 209 Mo. 513'; Spur-lock v. Dorman,'182 Mo. 242. (2) The appellant makes the further point that the petition states no cause of action against the city. That question is really unimportant to the decision of this case although the defendants seek to keep in the background the fact that the members of the Board of Public Works are made defendants. The city, however, answered and claimed ownership in the city and admitted on the trial that the city did the grading and having assumed the position that it had a right to take the ground for a street, not having denied by its answer that it was attempting to take it and having claimed a right to take it, cannot be heard now to say that it is not a proper defendant in this case; none of the authorities, cited by appellant under that head, sustain the position taken by the city. The Board of Public Works under the charter of cities of the second class had charge of the streets and alleys and charge of the men who do the city street work. Laws 1903, p. 61. Also under the charter for cities of the first class adopted by St. Joseph in 1909 the Board of Public Works have control ■of what is commonly known as the street gang or of 'the city men who work on the streets, and had charge of the gang of men who went down to forcibly rob these women of their land. R. S. 1909, sec. 8831 and following. R. S. 1909, sec. 8681 and the sections following provide the method for taking private property for public use by tbe city of St. Joseph. (3) It is further contended by appellants that an injunction could not be granted on the ground that the title was in dispute. As a matter of fact, there is no dispute as to title and never has been. The city makes no pretense at having acquired the title and while it is true it claims it in its answer, it is merely a fictitious issue. •
   WALKEE, J.

This is a suit in equity brought by the respondents in the circuit court of Buchanan county to enjoin the city of St. Joseph and the members of the Board of Public Works, naming them-, from attempting to convert a certain lot or parcel of ground in said city belonging to respondents into a public highway without condemning the property or ascertaining or paying any damages therefor or instituting any proceedings to effect that end. There was no application for a temporary injunction.

Upon a trial before the circuit court of Buchanan county a decree was rendered in favor of respondents, the court finding that the lot or parcel of ground described in the petition was the property of respondr ents, that it was not a public street and that appellants had no right, title or interest therein and were without authority in attempting to appropriate same to the use of said city without a proceeding and the payment of such compensation therefor as might be ascertained and determined by law, and that no such proceeding had been instituted; wherefore the court adjudged and decreed that the appellants, and each of them, be enjoined and perpetually restrained from interfering with the possession of respondents in the said lot or parcel of land and from attempting to exercise any ownership over same or to grade same or use it as a public highway until such time as the said city of St. Joseph, by purchase or the payment of compensation therefor, should acquire title thereto.

Prom this decree appellants have prosecuted an appeal to this court.

Pleadings. The petition alleges the municipal organization and existence of the city of St. Joseph, and that the other defendants, naming them, are the members of the Board of Public Works of said city; that plaintiffs are the owners of the south forty feet of lot 3 in block 24, Pattee’s Addition to said city of St. Joseph, and have for a great number of years been in the absolute, open, notorious and exclusive possession thereof; that upon the - day of April, 1910, the said lot or parcel of ground was enclosed with a fence and in the possession of plaintiffs as aforesaid;, that the defendant, the city of St. Joseph, and the other defendants, as the Board of Public Works of said city, entered upon said premises, removed the fence surrounding the same and are endeavoring to convert said real estate into a public highway. That defendants wrongfully, without authority of law or without having any damages ascertained or paying same to plaintiffs, are converting said real estate into a public highway, and that no proceeding', as required by the Constitution and laws of this State, has been brought and prosecuted for the purpose of condemning said property. Plaintiffs state that they have no adequate remedy at law to prevent the threatened wrong and injury as aforesaid; that the said city of St. Joseph, and the other defendants, as the Board of Public Works of said city, are proceeding in violation of section 21 of article 2 of the Constitution of the State of Missouri, in that they are attempting to take said real estate for public use without just compensation; that they have not nor have they attempted to have such compensation assessed or ascertained by a jury or a board of commissioners, and have not paid or offered to pay any sum of money for said property to said plaintiffs.

Wherefore, plaintiffs pray that defendants may be enjoined and perpetually restrained from taking said property for a public highway, etc.

The answer is, first, a general denial; and, second, that the property claimed by plaintiffs is, a public highway, and that the public is entitled to said property for such use, and that defendants have the right to use and improve such property as a public highway as they may in their judgment and discretion desire to do.

Appellants assign as error (1) that the petition does not state a cause of action; and (2) that the verdict should have been for the defendants.

I. Sufficiency of Petition. The first of appellants’ assignments of error is made with sufficient definiteness to demand our attention. If a petition does not state facts sufficient to constitute a cause of action, its" failure so to do is never waived.' [Sec. 1804, R. S. 1909.] In construing this statute we have held in a long line of cases that this error is incurable and may be raised at any stage of the proceeding. [Smith v. Burrus, 106 Mo. l. c. 97; Clothing Co. v. Watson, 168 Mo. l. c. 143; Hudson v. Cahoon, 193 Mo. l. c. 557; Stonemets v. Head, 248 Mo. l. c. 254.]

It is contended that the petition does not state a cause of action (1) in not stating that defendants are insolvent and unable to respond, in damages; (2) in not alleging in what manner plaintiffs will suffer irreparable damages; (3) in averring as a mere conclusion and not with particularity that plaintiffs have no adequate remedy at law; (4) and because plaintiffs have an adequate remedy at law and are not entitled to injunctive relief.

While it is true, as a general proposition, that a city is not liable for an unauthorized trespass committed by its representatives, the facts show that the attempt to extend Lafayette street, and as a consequence to appropriate plaintiffs’ property - therefor, was sought to be consummated, under the authority of an ordinance and orders made in relation thereto; these, while abortive, had the sanction of pretended municipal authority in that they were enacted by and issued from the city council in the exercise of its legislative functions. If, as the facts show, the attempt to conform to the ordinances and to execute the orders made thereunder were unwarranted and unlawful, then both the city and the members of its Board of Public Works were liable, and their joinder as defendants was authorized. [Ely v. St. Louis, 181 Mo. l. c. 730; Quinn v. Schneider, 118 Mo. App. l. c. 44.]

However, except to review the contention of appellants, the question as to the propriety of the joinder of the city and the members of its Board of Public Works as defendants is not vital, because, if the fact had been shown that the judgment was illeg-al as to the city and valid as to the other defendants, we are authorized to correct the judgment here in this regard by striking out the name of the city without necessitating a reversal. [State ex rel. v. Tate, 109 Mo. l. c. 269; Mueller v. Kaessmann, 84 Mo. l. c. 330; Snell v. Harrison, 83 Mo. l. c. 660; Weil v. Simmons, 66 Mo. l. c. 619.]

■ It is contended that the petition is invalid because it does not aver that defendants are insolvent. The petition avers, and the facts show, that defendants had torn down plaintiffs’ fences and had commenced grading across a strip sixty feet in width along the side of plaintiffs ’ property.' If the work had been permitted to be continued it would, as found by the trial court, have constituted an irreparable injury to the property in a legal sense, because it would in effect have destroyed plaintiffs’ inheritance by depriving them of the use of the property, and when the highway was opened and the grading completed it would have been difficult if not impossible to determine whether the value of the remainder of the lots would not have been entirely destroyed or minimized to the extent that they would have been of no practical value to their owners. Under this state of facts it was not necessary to aver that the defendants were insolvent. [McPike v. West, 71 Mo. 199; Turner v. Stewart, 78 Mo. 480.] In further answer to appellants’ contentions, under our view of this case, it is not material to the sufficiency of the petition whether the averments of irreparable injury were generally or specifically pleaded. The determination of the question being: Will an action for damages afford an adequate remedy? [State Savings Bank v. Kercheval, 65 Mo. 682.] On account of the nature of the damages to the property we are of the opinion that it would not. Further precedent to sustain this conclusion may be found in Turner v. Stewart, 78 Mo. 480, where we held that it is not necessary that the defendant should be insolvent or the wrong irreparable to sustain the right to equitable relief against a trespass of this nature.

It is true that the portion of the statute (Sec. 2722, R. S. 1879) construed in Turner v. Stewart, supra, provided that: “The remedy by writ of injunction or prohibition shall exist in all cases where an injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages.” In the present statute (Sec. 2534, R. S. 1909) the word “irreparable” is inserted between the words “an” and “injury” as it appeared in the revision of 1879. Otherwise the portion of the statute quoted is identical with that now in force. This change does not lessen the force of the rule in Turner v. Stewart, supra— the distinction being that if an injury to real or personal property is irreparable, injunction will lie regardless of whether an action for damages will afford an adequate remedy, while it will only lie in other cases, not before enumerated, where an action for damages will not afford an adequate remedy. The instant case clearly coming within the last classification, it is immaterial whether the petition sets forth the nature of the irreparable injury with particularity or not.

Appellants further contend that the general alie- ■ gation in the petition that the plaintiffs have no adequate remedy at law is a mere conclusion and is ineffectual" unless accompanied by a statement of facts supporting it. As a general proposition averments in regard to inadequacy of remedy in pleadings of this character should state the facts in support of same. [Streator v. Linscott, 153 Cal. 285; Ehrich v. Grant, 111 App. Div. (N. Y.) 196, 97 N. Y. Supp. 600.]

In the case at bar, however, the statement of facts in regard to the nature of the attempted trespass sufficiently supplements the general averment so as to constitute a compliance with the rule stated.

Plaintiffs aver that defendants had begun and were about to grade the lots, which would have necessitated a change in their surface, if, as contemplated, a portion of such lots was converted into a public street. The consummation of this work would have resulted in a destruction of the property for any other purpose than that of a public highway, except as to such portions not included in the proposed improvement. Evidence is not necessary to establish this fact. Under these conditions only the staying power of a court of equity will suffice to protect plaintiffs in the right to the use and enjoyment of this property. [Carpenter v. Grisham, 59 Mo. l. c. 251; Graden v. Parkville, 114 Mo. App. l. c. 532; Spurlock v. Dornan, 182 Mo. l. c. 249.]

II. Dedication by User. The contention that the property had become a highway from long use by the public is made by appellants. This having been a controverted question of fact in which the court below found against appellants, we might, under the authority of Bingham v. Kollman, 256 Mo. l. c. 591, leave it without further consideration. But a proper regard for appellants’ contention entitles it to a more extended review. The evidence in regard to this matter was in effect as follows:

The property was used by sufferance for intermittent public travel for several years before the institution of this suit. In 1887 or 1888- a street railway company which had acquired a fee in the property graded a pathway across it for the convenience of foot passengers. Subsequently this company, which had purchased the property for a consideration of $1800, sold and transferred it for $2000, and subsequently plaintiffs became the purchasers of same. So far as the record shows,- the property was first fenced by its owners in 1888 or 1889, and remained enclosed for some time, the' period not being definite, when the fences was torn down by boys. Later, witnesses do not remember the date, it was again enclosed with a fence which remained thereon for three or four months, when it was again torn down, whether by boys as an act of vandalism or by persons desiring to pass over it, is not stated. The last time the property was fenced was about a year before the plaintiffs brought this suit; thereafter it remained fenced until torn down by the city street commissioner preparatory to grading same for a public highway immediately preceding the institution of this action.

To constitute a dedication by user there must be adverse and exclusive possession under a claim of right with the knowledge and acquiescence of the owner, or such open and notorious possession that he may be charged with notice; the use must also be continuous and uninterrupted for' a period equal to that of the statute barring a recovery of real estate. [Field v. Mark, 125 Mo. l. c. 516; Price v. Breckenridge, 77 Mo. l. c. 451; State v. Wells, 70 Mo. l. c. 637; State v. Walters, 69 Mo. l. c. 465; State v. Young, 27 Mo. l. c. 260.] In addition, there must he an acceptance by the public manifested by the use of the property as a public highway. [Rosenberger v. Miller, 61 Mo. App. l. c. 426.] Under the facts above set forth, it is evident that there was no dedication by user of this property.

There are no facts in this case which will authorize a finding that there has been a common-law dedication regardless of the Statute of Limitations applicable to actions for the recovery of real estate. First, there was no act of the owners indicating an intention to dedicate, and, second, the city’s action was not indicative of a purpose to accept the dedication and to improve and use the property as a street; but when it ultimately sought to establish the highway it was under the claim that the property had been properly condemned. Under this state of facts, the Statute of Limitations before referred to must prevail and the rule as to the intention of the, parties as a controlling feature is inapplicable. [MeGrath v. Nevada, 188 Mo. 102.]

An appropriate conclusion to this branch of the case is the admirable summary of the essentials of a dedication by user by Nixon, J., in State v. Hood, 143 Mo. App. l. c. 316, in which the court said, “To establish a dedication of this character the proof must be strict, cogent and convincing, and the acts proved must not be consistent with any construction other than that of a dedication.”

III. Condemnation. It is claimed by appellants that the property has been condemned for a public highway and that tbe respondents are on this account not authorized to maintain this action. On three different occasions attempts have been made by the city to condemn this property for a public highway. The only claim the city makes is as to the first condemnation, and under this there is no pretense that any compensation for the property sought to be condemned was ever paid to anybody. Tbe ordinance under which the property was sought to be condemned provides:

“Section 9. As soon as the money is paid to the owner or agent' or deposited with the treasury authorized by law to receive the same to be paid over to the parties entitled to damages for property condemned, the city may then and not before, enter upon, take possession of and appropriate the property condemned. ’ ’

Instead of making an unconditional appropriation for the payment of the amount found to be due the owners of the property in question for its appropriation, the ordinance passed provided that “the register is hereby authorized to draw his warrant on the treasurer in favor of the party or parties interested in said property for the amount specified in section 1 of this ordinance when so ordered by the mayor.”

There is no evidence that the mayor ever ordered any amount paid to the owners of the property thus sought to be condemned or that any warrant was drawn in payment of said sum so found to be due as damages to the owners. This order was entered more than thirty years ago, and since that time the property has-been frequently transferred for a valuable consideration, and'the present owners have paid taxes regularly thereon, and special taxes for betterments have been collected on it and it has been frequently fenced by the owners and has remained fenced except when the same has been removed by acts of vandalism or by persons trespassing thereon. The condemnation proceedings-twice begun by the city within the last ten years have proceeded as far as the appointment of commissioners and the award of damages, at which juncture the city, as shown by the record, has abandoned the proceedings by a repeal of the ordinances by which the condemnation was sought to be effected.

In Holmes v. Kansas City, 209 Mo. l. c. 530, this court held, in effect, quoting earlier decisions, that:. The compensation must he paid to the owner or into court for Mm before the condemning party can take possession, and until the compensation shall have been paid to the owner or into court for him the property shall not be disturbed or the proprietary rights of the owner therein divested. This provision, which is constitutional, contemplates that the compensation shall be paid to the owner before the property can be disturbed and is not satisfied with a mere deposit by way of security. If the owner will not accept the money, it can be paid into court for him, not there to remain as security for the final award, but for his immediate use. This right to have the amount of the award placed at the disposal of the property owner before his property is disturbed is a right of which he cannot be deprived by the act of the Legislature.

Under this plain construction of the plaintiffs’ constitutional right, we hold that there has been no such condemnation under the forms of the law as to entitle the city to enter upon and convert this property into a public highway.

Under the ruling in the Holmes case, supra, the city has no right to harm the inheritance of the owners of the property in question, and injunction is the appropriate remedy. Even if it be held under any of these condemnation proceedings that the money has been deposited in court for the owner, the order does not designate to whom it shall be paid, which negatives the idea that the payment was tendered for the benefit of plaintiffs herein. In view of the foregoing, we hold that there was no such condemnation as is contemplated by the Constitution, the statute and the ordinances in relation to this matter, and that the judgment of the trial court should be affirmed and it is so ordered.

All concur.


source: Caselaw Access Project

author: WILLIAMS, C. PER CURIAM:

license: Public Domain

text:
    HARRY W. STEGALL v. AMERICAN PIGMENT & CHEMICAL COMPANY, Plaintiff in Error.
    Division Two,
    February 23, 1915.
    APPELLATE JURISDICTION: Constitutional Question: Must Really Exist: Service of Process. Raising a constitutional question is npt a mere matter of assignment. If the only matter at issue is to be determined by the application of an admittedly valid general statute to the facts of. the case, no constitutional question is involved. Where an appeal is taken from the action of the circuit court overruling a motion to quash an execution for $235, and the only question involved was the sufficiency of the service of summons on the defendant foreign corporation in the suit resulting in the judgment, an assignment in the motion to quash that “defendants had not been served with process in the manner provided by law and that therefore said judgment violated defendant’s rights” under the due-process provisions of the Constitution, does not involve a construction of the Constitution, and hence the Supreme Court does not have jurisdiction.
    Error to St. Louis City Circuit Court. — Hon. George G. Hitchcock, Judge.
    Transferred to St. Louis Court of Appeals.

      James T. Roberts for plaintiff in error.

      Jamison & Thomas for defendant in error.
   WILLIAMS, C.

This is a proceeding by writ •of error to review the action of the circuit court of the city of St. Louis in overruling a motion to quash an •execution.

In June, 1908, Harry W. Stegall (defendant in •error) instituted, before a justice of the peace in the •city of St. Louis, a suit against the American Pigment & Chemical Company, a corporation (plaintiff in error), to recover judgment upon an account in the sum of $230, for services rendered.

The defendant company appeared specially in the justice court and moved to quash the return made by a special constable in executing the writ of summons. The main point of attack was that the defendant company had no office in this State and was not doing business in this State at the time the summons was served upon its president.

The motion to quash was overruled by the justice, and the defendant company declining to appear further in the case, judgment by default was rendered for the amount claimed. The defendant company then appealed to the circuit court and there the defendant company again appearing specially renewed its motion to quash the return upon substantially the same grounds as were advanced in the justice court. The circuit court permitted the special constable to amend his return. In passing upon the motion to quash, the circuit court heard testimony directed mainly to the issue as to whether the defendant company at the time of the sfervice of the summons upon its president was “doing business in this State”. After hearing the testimony, the court overruled the motion to quash, and thereafter, without further appearance upon the part of the defendant company, judgment was entered for the amount claimed. Thereafter the company, by writ of error, took the case for review to the St. Louis Court of Appeals, which court fully reviewed the errors assigned, and on June 28-, 1910, affirmed the judgment of the circuit court, as will appear from the opinion in said cause reported in 150 Mo. App. 251. Thereafter the defendant company applied to this court for a writ of prohibition by which it sought to prohibit the judge of the circuit court of the city of St. Louis from enforcing said judgment. Among the grounds assigned as reason why the relief prayed should be granted was that the defendant was a nonresident corporation and was doing no business in this State at the time of the alleged service of summons. On November 27, 1911, Court in Banc delivered its opinion and rendered judgment in said cause, quashing the preliminary rule in prohibition and denying the permanent writ. [See State ex rel. v. Shields, 237 Mo. 329.] Thereafter on December 15, 1911, the defendant company tiled in the circuit court, where the judgment was originally rendered, a motion to quash an execution which had been issued in said cause on December 7, 1911. The motion to quash the execution alleged:

1st. That at the time of service of said summons by the special constable, the company had no officer or agent in this State.

2nd. Said defendant was not served with process in this case in the manner required by the laws of this State.

3rd. The person served was not representing ■the defendant in this State in any official capacity.

4th. Said judgment was entered against defendant before it had an opportunity to plead further.

5th. The judgment upon which said execution was issued was rendered against defendant when the said defendant had not been served with process in the manner required by law and that therefore said judgment violated defendant’s rights under section 1 of article 14 of the Constitution of the United States, and section 30 of article 2 of the Constitution of the State of Missouri, in that it deprived defendant of its property without due process of law and the equal protection of the law.

6th. Said judgment violated defendant’s rights under section 15 of article 2 of.the Constitution of Missouri in that it changed the law as it existed at the time of service of summons, by holding that the acts of defendant amounted to “doing business in this State” and that therefore the said judgment operated as a retrospective law.

A hearing was had and the circuit court overruled the motion to quash. The defendant company now seeks by writ of error to have the court review the action of the circuit court in overruling said motion to quash the execution.

OPINION.

"We have reached the conclusion that we do not have jurisdiction in this case. There is nothing in the case that will bring it here, -unless it can be said that a constitutional question is involved. Apparently an attempt was made by plaintiff in error, (See paragraphs 5 and 6 in the motion to quash), to lodge a constitutional question in the case below, but the attempt must be held to have been unsuccessful.

“Raising a constitutional question is not a mere matter of form; the question must really exist and if it does not exist it is not raised.” [Canning & Packing Co. v. Evans, 238 Mo. 599, l. c. 605.]

The questions presented for review by the writ of error in the present case involve merely the action of the trial court in holding that the defendant company had been duly served with summons in the justice court. The determination of this question is to be brought about by the application of the general law to the facts in evidence, and the process by which the question is determined does not in any manner “involve the construction of the Constitution of the United States or of this State.” This being true, a constitutional question, in the jurisdictional sense, is not presented. [Bothe v. Railroad, 248 Mo. 36.] And even if it should be conceded, arguendo, that the judgment of the .trial court in the matter was erroneous, yet it would not follow that defendant’s right to due process of law had been violated. “A judgment may be erroneous, yet rendered in due process of law.” [Canning & Packing Co. v. Evans, supra; In re Converse, 137 U. S. 624, l. c. 631; Howard v. Kentucky, 200 U. S. 164, l. c. 173.]

If it could be said that tbe due-process clause of tbe Constitution is violated évery time an erroneous judgment is rendered by the trial court, then by the simple process of incorporating in the motion for a new trial the assignment that the judgment was erroneous and therefore violated said constitutional provisions, every case could be brought to this court for review. That such is not the law is so self-evident as to need no citation of authority. Neither can it be said that a constitutional question is raised by the claim that the judgment of the circuit court violates defendant’s rights under section 15 of article 2 of the Constitution of the State. Said constitutional inhibition is directed solely against certain legislative acts.

The St. Louis Court of Appeals “has the same jurisdiction to decide the regularity or irregularity of the action of the circuit court” in holding that defendant was duly served with summons in the justice court “as this court would have if the case otherwise came within our jurisdiction.” [Woody v. Railroad, 173 Mo. 547, l. c. 551.]

There being no question involved which would bring the case within the jurisdiction of this court, it therefore follows that under the mandatory provisions of section 3938, Revised Statutes 19099, the case must be transferred to the St. Louis Court of Appeals.

It is so ordered.

Roy, G., concurs.

PER CURIAM:

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

All the judges concur.


author: PARIS, P. J.

text:
    ALICE BURT et al., by JOHN HOUGENDOUGLER, Their Guardian, Appellants, v. ADELBERT P. NICHOLS.
    Division Two,
    February 23*, 1915.
    1. IDENTITY OF DEAD BODY: Rings. When the front doors of the lodging house were broken open the unrecognizable dead body of a woman, entirely naked and bare-footed, was found on the first floor, in the vicinity of the fiercest fire in the building. Plaintiffs’ mother regularly lodged there, in a room on the second floor, opening into the hall, into which led a stairway from the first floor. Certain rings were clasped tightly in the woman’s hand, which were identified by a man, to whom one of them belonged, and who had seen them in the possession of plaintiff’s mother only about four hours before the fire. Her employer testified he saw her body on the porch after the fire. Held, a case for the jury on the question of identity.

      2. LODGING HOUSE: Prima-Facie Case. Proof that deceased had been rooming at the house for six months prior to the fire, that eighteen or nineteen persons lodged there and that it was usually full, made out a prima-facie case that the house was being used as a lodging house and that the landlord knew of that use.
    3. -: -: Ownership. It being admitted or shown in evidence that defendant was the owner of the house at the time of the fire, the burden did not rest upon plaintiffs thereafter to show how long he had been the owner, but if he was not liable, because of sixty days of grace - granted by the statute, the matter of establishing that defense rested on him.
    4. -: Fire Escape: Waiver: Assumed Risks. The deceased woman by becoming a lodger in the lodging house and remaining there for six months or more did not waive compliance on the owner’s part with the statute and ordinance requiring fire escapes. Compliance with an express statute cannot be waived by one whose death or injury is due to another’s failure to comply with its plain requirement. The duty of the owner to place the fire escape upon the lodging house was not a contractual obligation, between deceased and the owner, nor between him and her landlady, and the doctrine of assumption of risks has no application to such a case.
    5. -: -: Substantial Compliance. Wherever the arrangement of the halls, porches and windows cannot be held out-of-hand, as a matter of law, as equivalent facilities for fire escapes, the question as to whether they constitute a substantial compliance with the statutory or ordinance requirements for fire escapes of named sized and construction, becomes one for the jury, as it was in this case.
    6. -: -: Proximate Cause: Contributory Negligence as Affirmative Defense. It is negligence per se in the owner of a lodging house to neglect and fail to comply with the statute and ordinances requiring such buildings to be equipped with fire safety appliances; but this fact alone does not inevitably fix liability; for defendant may avoid that by proof either of contributory negligence or of lack of proximate cause. But where contributory negligence is not shown by plaintiff’s own evidence, it is an affirmative defense, and a matter for the jury; and where the death of plaintiffs’ mother in the fire which destroyed the lodging house in which she was asleep, can only be logically imputed either to the owner’s negligence to provide proper fire escapes, or to her own contributory negligence, and the facts to establish her contributory negligence do not so clearly appear from plaintiffs’ proof that no reasonable person can draw two inferences therefrom, the court should not compel a nonsuit, but the case should go to the jury, even though the proximate cause be dark.
    '7. -: -: -: Res Ipsa Loquitur. Where fire safety-appliance laws are violated, and death, unexplained except by the physical facts, occurs as the result of the burning of a lodging house unequipped with the required appliances, the rule of res ipsa loquitur should be invoked to take the case to the jury.
    Appeal from Jackson Circuit Court. — lion. Joseph A. Guthrie, Judge.
    Reversed and remanded.

      Charles B. Pence, Claude Hardwicke and Frank Yeoman for appellants.
    (1) It was the duty of the defendant, as owner of the premises, to provide his building with fire escapes, and he is liable for injuries to a lodger due to a failure to construct such fire escapes. Yall v. Snow, 201 Mo. 511; Johnson v. Snow, 201 Mo. 4501. (2) The plaintiffs could not justly be required to prove their case by direct and positive, evidence or beyond a reasonable doubt. It was enough to prove facts from which an inference might fairly and reasonably be drawn, that the mother’s life would have been saved, had the means, which the law ^required, been provided for her escape from the building. It was enough to show a reasonable probability that she might have escaped, had there been a fire escape constructed according to law. Buesching v. Gas Co., 73 Mo. 219; Soeder v. Railroad, 100 Mo. 680; Settle v. Railroad, 127 Mo. 336; Meadows v. Ins. Co., 129 Mo. 93; Cambrón v. Railroad, 165 Mo. 558; Yongue v. Railroad, 133 Mo. App. 152; Johnston v. Railroad, 150 Mo. App. 318; Lawrence v. Ice Co., 119 Mo. App. 316; 1 Greenleaf Ev. (14 Ed.), p. 22; Daniels v. Railroad, L. R. 3 C. P. 216, L. R. 5 H. of L. 45; Thayer’s Cases on Ev., pp. 137, 142; 2 Ency. Ev. 956. (3) The question of the proximate cause of an injury is ordinarily one for the jury; and this is true “even when the facts are undisputed if they are of such a character that different minds might draw different conclusions from them.” Lamb v. Railroad, 147 Mo. 186; Johnston v. Railroad, 150 Mo. App. 319; Railroad v. Kellogg, 94 U. S. 469; Shearman & Redfield on Negligence (5 Ed.), sec. 55. (4) The defendant was guilty of negligence per se, in violating the statute, which was enacted for the protection of those who were in the situation of plaintiffs’ mother, and the evidence that such negligence was the proximate cause of her death was sufficient to submit the case to the jury. Murray v. Railroad, 101 Mo. 242; Brannoch v. Elmore, 114 Mo. 59; Lamb v. Railroad, 147 Mo. 185; Johnston v. Railroad, 150 Mo. App. 318; Turner v. Railroad, 78 Mo. 578; Hayes v. Railroad, 111 U. S. 228; Railroad v. McDonald, 152 U. S. 262; Railroad v. Stout, 17 Wall. (U. S.) 657; Schlereth'V. Railroad, 115 Mo. 104; Pennsylvania v. Troop, 19 Wall. (U. S.) 125; Williams v. Railroad, L. R. 9 Exch. 157; Couch v. Steele, 3 Ellis and Black, 402. And the following cases, all of which are fire escape cases, some of them having been decided since the decision of this case in the lower court: Wiley v. Mulledy, 78 N. Y. 310’; Landgraf v. Kuh, 188 111. 484; Carrigan v. Stillwell, 97 Me. 247; Arms v. Ayer, 192 HI. 601; Rose v. King, 49 Ohio St. 213; Gorman v. McArdle, 22 N. Y. Supp. 479; Arnold v. Starch Co., 194 N. Y. 42; Adams v. Iron Co., 117 Tenn. 470; Cittadino v. Schackter, 85 Atl. (N. J.) 174’; Kohn v. Clark, 84 Atl. (Pa.) 692. (5) In the absence of any evidence that the plaintiffs’ mother was unwilling or unable to have availed herself of the use of the fire escape, had there been one, and thereby to have saved her life, the facts that the building had no fire escape, as required by the statute, and that she was a lodger in the building and lost her life in the fire, were sufficient, had there been no other evidence (as there was in this case) to prove that the violation of the statute was the proximate cause of her death. Her death was one of the consequences against which the statute was intended to provide. Her injury and death was one of the results which it was the purpose of the statute to prevent. 21 Am. & Eng. Ency. Law (2 Ed.), pp. 480, 481-482; Turner v. Railroád, 78 Mo. 580; Notes to Gilson v. Canal Co., 36 Am. St. 815; Pennsylvania v. Troop, 19 Wall. (U. S.) 125; Williams v. Railroad, L. R. 9 Exch. 157.

      E. D. Ellison and Sebree, Conrad S Wendorff for respondent.
    The burden of proof was upon the plaintiffs not only to prove negligence or the violation of a statutory duty by the defendant, but also that such negligence was the proximate cause of the death of Jennie Burt Hoffmaister. The case rests upon the law of negligence generally, the statute relating to fire escapes having no such provision as the railroad law, shifting the burden of proof from the plaintiff to the defendant. It is said in Shearman & Redfield on Neg., sec. 27, that the doctrine relied upon in some earlier cases, and by plaintiffs’ counsel here, that a breach of statutory duty was evidence not only of negligence, but also that such negligence caused the injury complained of, is now abandoned. And in the notes to the case of Gilson v. Canal Co., 36 Am. St. 802, 817, cited by appellants, the law is now stated to be that “the question of natural consequence does- not, it would seem, arise in this class of cases, the only condition of recovery being proof that the breach of the statute was the efficient cause of the injury.” 21 Am. & Eng. Ency. Law, 480; Byerly v. Light Co., 130 Mo. App. 603; Goransson v. Riter-Connelly Co.,'186 Mo. 307; Dunphy v. Stock Yards, 118 Mo. App. 506; Warner v. Railroad,' 178 Mo. 125; Smart v. Kansas City, 91 Mo. App. 586; Smith v. Bank, 99 Mass. 605; Smillie v. Dollar Store, 47 Mo. App. 406 ; McGrath v. Transit Co., 197 Mo. 97; Harper v. Terminal Co., 187 Mo. 575; Breen v.- Cooperage Co., 50 Mo. App. 202.
   PARIS, P. J.

This is an action by plaintiffs, who are the infant children of Jennie Bnrt Hoffmaister, for damages accruing by reason of the latter’s death in the burning in Kansas City of a building used as a lodging house. The negligence complained of was the failure of defendant to equip the burned building with a fire escape and other safety appliances, as required by the statutes of Missouri and the ordinances of Kansas City.

The building in question was a three-story brick building, or to be a little more exact, a two-story building with a mansard roof constituting a third-story and consisting of four small rooms in said third, or mansard roof, story. Prom the second-story window to the ground was sixteen feet and eight inches. There was a stairway in the middle of the house leading from the first floor to the second floor, the foot of which stairway was distant five feet from the front door. On the south side of this stairway there were three rooms on the second floor, the middle one of which was occupied by deceased. The stairway led up into a hallway on the second floor, which hallway was five feet and ten inches wide. This hallway was not continuous to the east or front end, but led into a small bedroom, which we may call a hall bedroom. This hall bedroom had a window opening out upon a front porch, which porch was about eleven feet from the ground, some ten feet wide and practically as long as the house was wide. To. the rear, through the hall. of the second floor from which the down-going stairs led, there was a small window about a foot and a half wide and fonr feet and a half long and some twenty-nine inches from the floor. This window led to a porch on the rear of the building, which porch was about thirteen feet from the ground.

The room occupied by the deceased woman'had an outside window, which, as stated, was a little over sixteen feet from the ground. There was a door leading from this room to the second story hall, which hall we have already described. Just west and to the rear of the room of deceased was the bath room, connecting on the south side with the rear part of said hall. There was also a door between the room of deceased and the front room, which said front room had a window opening on to the flat roof of the long front porch; but there is no showing as to whether this door was locked, nor is there any showing as to whether the door to the hall bedroom was locked. As to the latter it is said there was a cot therein and that no one was in this room when the firemen got to it, but there is not a syllable in the record, showing whether or not the door to the hall bedroom was opened,' or closed, or whether it was occupied, or unoccupied when the fire broke out.

The fire seems to have commenced in the basement and to have broken through the ground floor, near the foot of the stairs, into the hall at an early stage and to have raged there more fiercely than at any other point. It was discovered shortly after five o’clock on the morning of February 1,1908. The fire department reached the scene of it only about one minute after the giving of the alarm. The front doors were broken down and the body of the deceased was found lying near the foot of the stairs in front of the double-doors on the first floor and in the vicinity of the fiercest fire in the building. The body was entirely naked and-bare-footed, and so badly burned as to be unrecognizable. Identification thereof is shown largely by certain rings which were found tightly clasped in the dead woman’s hand. These rings were identified by one Paul McDonald, to whom one of the rings belonged, and who had seen the rings in the woman’s possession the night preceding the fire, and only about four hours before her death.

When the firemen reached the house smoke was coming from every window in the building. At the time of the burning of this building there were some nineteen or twenty persons rooming, or lodging in it. Of these, some 'seven or more were in the third story. Besides Mrs. Hoffmaister four others were burned to death. These four were occupants of the small rooms in the third story. All of the persons occupying rooms on both the first,.and second floors, except Mrs. Hoffmaister, escaped, either by jumping out of windows, or by climbing through the windows onto the porches, which latter were not injured by the fire.

The evidence is undisputed that there was no outside metal stairway or fire escape, nor' any scuttles leading to the roof and connecting with the iron stairway, nor any signs upon any doors or windows indicating a fire escape or indicating a means of exit in case of fire. It was likewise undisputed that the proper place for a fire escape, had the building been equipped with such, was at, or near, either the east or west end of said second story hall at the front or the rear.

It was admitted that defendant was the owner of the house at the time of its destruction. It was leased by a woman by the name of Higgins and used, as stated, as a rooming or lodging house. For how long a period it has been so used does not definitely appear, but it does appear that deceased had roomed in this house for about six months.

There was no evidence in the case as to when deceased first learned of the fire or that she knew the location thereof. No one saw her after the witness Me-Donald left her at about one o’clock, until she was found by the firemen. No one heard her, so as to identify her voice or her cries, except that the witness Kingery, who occupied a room on the first floor near the stairs, and who states that he heard something or someone coming down the stairs after the fire had burnt through his door from the hall.

Both the statutes and the city ordinances were relied on. Two sections of the ordinance will become pertinent. They are as follows:

“When sufficient. Any building provided with outside stairways or fire escapes approved by the chief of the fire department and constructed of wrought iron or steel and having balconies with suitable metal railings at each floor or landing, and firmly secured to the outer walls, shall be deemed to be provided with sufficient facilities for escape in case of fire as required. The owner of any building which is provided with stairs or ladders on the outside shall construct such stairs or ladders with railed landings at each story above the first, and connect them with each story by doors or windows. No person shall place, permit or allow any obstruction on any outside stairway or ladder or fire escape. All fire escapes shall be accessible from halls, or in buildings now erected, by passing through one glass door marked ‘Fire Escape.’ ”

“Scuttle, Row Made and Where. All brick buildings more than twenty feet in height shall have scuttle frames not less than two by three feet in size; and covers, or bulk heads and doors on the roof, made of or covered with some incombustible material; and every scuttle shall have a stationary stepladder, and every bulkhead shall have stairs furnished with sufficient guard or hand rail ready for use at all times, and in a tenement house such scuttle or bulkhead shall never be locked, but may be fastened with a hook on the inside.”

Deceased was employed as a waitress in a restaurant. She had been twice married; the plaintiffs here are the children of the first marriage, their father being dead. Her second husband, Hoffmaister, was living at the time of her death, but he and she were separated and she had a divorce suit pending against him. Hoffmaister failing to sue for six months, plaintiffs brought this action. A trial was had herein once before, but a demurrer to the evidence therein being sustained, plaintiffs took a nonsuit. Afterward, and within one year this suit was begun. A trial was had herein, but at the close of the evidence for the plaintiffs the trial court instructed the jury to find for defendant. Thereupon plaintiffs again took an involuntary nonsuit herein, with leave to move to set the same aside. This motion to set said nonsuit aside was duly filed, and being overruled plaintiffs have duly perfected this ap-' peal. The question before us is then solely whether or not there was enough evidence to go to the jury. To this point we shall direct our attention in the subjoined opinion.

OPINION.

We do not understand it to be seriously contended by defendant that any other phase of sufficiency to make out a case is lacking, except that of evidence of causal connection, or proximate cause. In short, defendant sustains the action of the court below in taking this case from the jury upon the theory that there is nothing in the evidence to show that defendant’s failure to equip the burned building with a fire escape and other safety appurtenances called for by statute and the city ordinance was causa causans of the death of plaintiffs’ mother. But lest we err in this we will notice other points briefly.

I. We do not need to find aught except that there was on all points necessary to be proved by plaintiffs to make out their ease, sufficient evidence, or inferenees to be deduced circumstantially from the evidence, to make out a prima-facie case. We think this condition is met so as to take the case to the jury on the question of the identity of the body found naked, bare-footed and burned near the foot of the stairs on the first floor, with that of plaintiffs’ mother. For the witness Davis, her employer, says he saw her body on the porch, and the witness McDonald identified the rings found in the dead woman’s hand as belonging to him and to the woman, and he swears that he last saw deceased with these rings some four hours before. This, we think, made a case for the jury on identity.

II. Upon the question of the use of the burned building as a lodging house, so as to bring it within the purview of the statute and the city ordinances, there can likewise be left no debatable basis for a contrary contention. The own-J ership of the building was admitted to be in defendant; but it is urged, not seriously, however, we apprehend, that the burden was on plaintiffs to show how long defendant had owned the house, and also that defendant knew the house was being used as a lodging house. The proof was that deceased had been rooming at this house for more than six months; that the house was usually full, and that some eighteen or nineteen other persons lodged therein. The prima-facie presumption which the triers of fact were entitled to draw from this was that the owner would in this time have learned, and did in fact know, of such use. Upon the other phase, that plaintiffs were compelled to show how long prior to the fire defendant had been the owner of the building, we are likewise not impressed. The prima-facie fact of ownership at the time of the fire being shown, it became a matter of defense if defendant, and not some one else —his predecessor in title — was liable. Whether the sixty days of grace originally provided when this act was first passed (Sec. 5, p. 220, Laws 1901) applies in a civil action, we do not decide, for it cuts no figure, here, because the proof shows that deceased had been rooming at this house for over six months and so if it had been converted from a dwelling into a lodging house only six months before, the sixty days of grace had long passed.

III. Neither are we impressed with the insistence of defendant that the deceased by becoming a lodger in this house and by remaining therein as such for more than six months, thereby waived compliance on defendant’s part with our statutes and with the city ordinances. Such a defense seems very similar to that which is elsewhere in other jurisdictions called assumption of risk. Usually, if not universally, this doctrine is bottomed on contract, express or implied, and connotes a relation of privity between him who invokes the doctrine and the one against whom it is invoked. The dead woman was a lodger of Mrs. ITiggins. She had a contract no doubt with Mrs. Higgins and the latter had one also no doubt with defendant; but no contractual relation or privity is shown to have subsisted between defendant and deceased which would serve as a basis for the assumption of risk doctrine. Neither do we think deceased waived - the compliance by defendant with the law or the city ordinances. We do not believe that a waiver of such compliance could ever arise against one injured or killed by default in complying with a plain statute. If waiver can be bottomed upon the fact of occupancy of a building which is not equipped, but which both an ordinance and a statute require to be equipped with fire safety appliances, from the mere fact of occupancy for a few hours, or days, or weeks, or months, then the statute is, emasculated and utterly worthless. This same defense has been urged in practically every case in every jurisdiction in which actions of this sort have been brought, but we have not been able to find one case in which the defense has been held to be absolutely good. [Adams v. Inn Co., 117 Tenn. 470; Cittadino v. Schackter, 85 Atl. 174; Willy v. Mulledy, 78 N. Y. 310.] Recovery was refused pursuant to so-called waiver, but which was, on the facts, a mixed matter of waiver and contributory negligence, in the ease of Armaindo v. Ferguson, 55 N. Y. Supp. 769, wherein plaintiff, for six months a guest in a hotel, knowing her room was not equipped with a rope for descending, as the statute required, but likewise knowing that there was an exterior metal fire escape just outside the window of her room, nevertheless jumped to the street and was hurt.

In the case of Adams v. Inn Co., supra, at page 481, the Supreme Court of Tennessee, refusing to lend its concurrence to such defense, said:

“The plaintiff did not waive the duty which the defendant owed to him under the ordinance as an occupant of the hotel, nor assume the risks incident to its occupation in its then condition. The duty of the defendant to place the fire escape upon its hotel was not a contractual obligation, and the doctrine of assumed risks has no application to this case. The ordinance is a police regulation, made for the protection of human life, and in the interest of that portion of the public occupying hotels and lodging houses. Public policy requires that duties of this kind be discharged, and that all consequences of a failure to do so shall follow. The individuals who are affected cannot suspend the law by waiver or express contract. The plaintiff had the right to presume that the defendant would obey the law and would provide the fire escapes,' and to continue to occupy his room upon the faith of such presumption.”

In this latter view we are constrained to concur.

IY. It was urged in argument and is likewise touched upon slightly in the brief, that the physical facts in the instant case, show such an arrangement of the halls and Pack and front porches, the windows leading thereto and the heights of these porches and windows from the ground, as 'to constitute substantial compliance with the statute, so far as equivalent fácilities for escape are concerned. The facts shown are not so nearly similar to- the statutory requirements as to permit ns to hold out of hand as a matter of law that the approximate compliance shown was an absolute defense. The most that can be said of this contention is that whenever substantial or approximate compliance is relied on, the question whether the compliance shown reasonably met the statutory requirements, becomes a jury question. [Gorman v. McArdle, 22 N. Y. Supp. 479; Kohn v. Clark, 236 Pa. St. 18.] The courts cannot weigh such matters. The. statute requires the outside iron stairs to reach within nine feet of the ground, and the city ordinances required that certain signs, indicating the location of the fire escape, be put upon doors leading thereto; also other requirements are specified in the statute. [Sec. 1, p. 251, Laws 1903.] The facts we set out show both how near and how far defendant came from meeting these requirements by the adventitious presence of so-called equivalents. Since so evident a noncompliance is present upon a literal view, the question of substantial compliance is for the jury, and is not a matter to be resolved by the court.

V. But the difficult point in the case and the point most seriously urged, is whether upon the facts shown, regard being had to the statute violated, it appears as a matter of law that the defendant’s failure to equip the building with a fire escape and the required fire safety appliances, was the proximate cause of the woman’s death.

As a major premise it must be conceded that it was negligence per se in defendant to neglect and fail to comply with the statute and ordinances of Kansas Oity requiring the building to be equipped with fire safety appliances. Yet this fact alone does not inevitably fix liability. Such may be escaped by the proof of either contributory negligence, or of lack of proximate cause. Since contributory negligence is an affirmative defense, where it is not shown by plaintiffs ’ own evidence, it very clearly cannot be invoked to aid defendant, in a ease like this, which was taken from the jury. So there is left for defense on defendant’s side of the case but'the one point of proximate cause.

Ordinarily it is well-settled, if not almost fundamental, that negligence will not be presumed, but that it must be proven. In some cases, however, the burden •or degree of care enjoined is such that the bare showing of an injury and the immediate producing cause thereof, throws the burden of disproving negligence upon the defendant. [Partello v. Railroad, 240 Mo. 122; Nagel v. Railroad, 169 Mo. App. 284.] But here in the instant case negligence is present beyond cavil. Likewise the fact of injury is shown in such wise as to take the case to the jury.

We can readily appreciate a case wherein the facts themselves would show lack of proximate cause. [Radley v. Knepfly, 104 Tex. 130; Armaindo v. Ferguson, 55 N. Y. Supp. 769.] But we think that such condition ought ordinarily to appear from facts shown affirmatively, and not be deduced as inferences favorable to defendant only from a state of nonspeaking facts from which contrary inferences can just as well be drawn. Here a state of negligence on defendant’s part is •shown; a woman is found burned to death. No witness saw her or heard her when she died, and none speaks .a syllable as to the manner in which she met her appalling and horrible fate. Was it possible for her to have reached the little window in the rear of the hall and to have passed through the same to safety? Were the nature and place of the fire such as to have permitted her to do this? Was it possible for her to have thrown herself from the side window of her room sixteen feet and more to the earth and to safety? Could she have passed through the adjoining room east of hers to the porch and to safety? Could she have passed through the little hall bedroom to this porch? To all these doubtful things and to all these questions and two-sided inferences, do the facts and defendant’s negligence drive us. The answer to most of them would seem to be that the police regulations set down in the statute and the ordinances were made and designed to save panic-stricken persons, in a moment of deadly peril, from the errors of a judgment dethroned by terror. It may be said that if there had been a fire escape there she might not have been able to get to it. Conceded, and likewise conceded that such an affirmative showing would have relieved defendant from liability. [Radley v. Knepfly, supra.] Other possible theories of escape for her may be conjured up> now from hind-sight when coldly conned over years after, which did not occur to her frightened, frenzied senses, dulled by slumber and awakened to confront instantly the skeleton specter in his grisliest and most horrible aspect. The presumption is that she did not wantonly throw away her life; that she tried to save herself, rather than that she committed suicide. In truth, the showing that she died with'all her little jewelry clutched in her hand, shows that her thought was to escape and live and not to die. Considering all these things and all these diverse inferences, were they to be resolved by the court as matters of law or were they for the jury? Besides, where logically does the burden of proof fall? If negligence be admitted, and suicide be eliminated, as they both must be here upon the facts, what caused this woman to lose her life? We think the answer must be that she lost it either on account of the negligence of the defendant, or by reason of her own contributory negligence. If she lost it by the negligence of defendant, the case should have gone to the jury; if she lost it by her own negligence then the facts thereof were matters of affirmative defense. And where such facts do not so clearly appear from the plaintiffs’ own proof as that no reasonable person can draw two inferences'touching them, the case is for the jury. [White v. Railroad, 250 Mo. 476; Linderman v. Carmin, 255 Mo. 62.] We have pointed out some of the contrary inferences which we think reasonable men might well deduce from the circumstances in evidence.

Por these reasons and others which occur to us, but which we will not take up space to discuss, we are not able to concur with a view of the law (in those cases where defendant, by actual criminal negligence in failing to comply with simple police regulations devised in consonance with the spirit of humanity, has brought about a holocaust which snuffed o.ut many lives) which, in effect, holds it possible for those only to sue who are crippled, but which so seals up the facts and the law when the lips of the dead are sealed, that no action may be brought for their death. Such a view penalizes the innocent for the benefit of the guilty. The law ought not to allow the guilty defendant to be the sole financial beneficiary of this woman’s horrible death. Those regulations are intended to protect the lives of humble lodgers and homeless roomers, ill able from comparative friendlessness and poverty to protect themselves.

The provision in the city ordinance that a sign with the words “fire escape” thereon should be provided to indicate the way leading to such appliance, was designed to so habituate occupants to the location of the means of exit provided that the use thereof should become, as we say in the vernacular, ‘ ‘ second nature,” and so guard against the dangers arising from excitement and panic. The physical facts here bear sad and silent but eloquent witness to this mental process ‘ ‘ strong in death. ’ ’ For this woman in her panic, soug’ht and used the only means of egress, to-wit, the central wooden stair, that she had ever seen or known ■or. used in her six months’ occupancy of this fire-trap.

The rule of res ipsa loquitur has been invoked in cases which upon analogy are similar in all material aspects to the conditions found here. For example, it was held to apply to an injury received by a clerk of a •shipper upon a railroad who went to the railroad yards to inspect a shipment of goods consigned to his employer. [Tateman v. Railroad, 96 Mo. App. 448.] There, as here, no contractual relation or privity by contract subsisted between the plaintiff and the defendant. Plaintiff, there as here, was merely upon the premises as an implied licensee. [Tateman v. Railroad, supra; Blanton v. Dold, 109 Mo. 64; Gallagher v. Edison Co., 72 Mo. App. 576; Houston v. Brush & Curtis, 66 Vt. 331.] We think these reasons suffice to uphold the rule; but if they do not, and if to hold thus makes necessary the creation of a new precedent, then we ought, in a case of such crying necessity, to •create it. Neither the day for the making of new precedents is past, nor is the field thereof already occupied to exclusion. Therefore, we hold that where, as here, these fire safety-appliance laws are violated and death, unexplained except by the physical facts, occurs by fire’ in the burning of a building not equipped with the required appliances but which is by law'required so to be, the rule of res ipsa loquitur should be invoked to take the case to the jury, where all inferences pro and ■con and all matters of contributory negligence can be resolved under proper instructions by the triers of fact.

Let the case he reversed and remanded to be retried in accordance with these views. It is so ordered.

Walker and Brown, JJ., concur.
      Note. — Decided January 4, 1915. Motion for rehearing filed; motion overruled February 23, 1915.