author: WALKER, P. J.

text:
    CHRISTINE CLAUDY, Appellant, v. THE ROYAL LEAGUE, Appellant.
    Division Two,
    June 23, 1914.
    1. FRATERNAL BENEFICIARY ASSOCIATION: Suicide Clause: Special Law. The statutes concerning fraternal -beneficiary associations being creative and regulatory of such associations and insurance by them, and being found in a separate article of the chapter concerning insurance, complete within itself and whose provisions are applicable to such associations as a class, are not inimical to the constitutional provisions concerning class legislation, and the section which exempts such associations from the provisions of the insurance laws of this State is not void as an attempt to confer a special grant or privilege on this class of corporations.
    2. -: Vested Rights: Change in By-Laws. No vested rights are conferred upon a member by a certificate issued by a fraternal beneficiary association. The amount the member may recover, or whether he may recover at all, can be made to depend upon conditions named in the contract, such as subsequent changes in the by-laws.
    3. -: -: Subject to Future Regulations: Suicide. At the time the certificate was issued by defendant fraternal beneficiary association one of its by-laws provided that in case the member committed suicide his beneficiary should “receive only one-half of the face value of his benefit certificate.” After-wards this by-law *was amended so as to read that death by the member’s own hand “shall forfeit all the rights and claims to the amount agreed to be paid on his death and specified in the benefit certificate of such member, and hie beneficiary shall receive and be paid in lieu thereof such a proportion of ,the sum named in his benefit certificate as the total amount he has paid into the Widows’ and Orphans’ Fund bears to the amount he would have paid had he lived out his entire life expectancy at his age of entering.” The certificate declared: “If accepted as a member, I agree to comply with and that my membership and all interests of the persons entitled to such benefits shall be subject to all the laws, rules and regulations now in force in the order or which may hereafter be adopted by it.” Another provision of the certificate recited that “the member expressly agrees to comply with all the rules and regulations now governing or that may hereafter be enacted” by the properly constituted authority of said association; and the plaintiff’s husband accepted the conditions by signing his name to this acceptance: “I accept this certificate on the condition therein named.” Held, that the association had a right to change the by-law, and that the member had no vested right in the $2000 named in the certificate as the amount of his insurance in case he did not commit suicide, nor to one-half of its face value in case he took his own life, but the subsequent change in the by-law fixing the amount his beneficiary should receive, in case of his suicide, at a proportionate part of the named fund, was valid, and all she could recover was that proportionate part. [Distinguishing Pearson v. Knight Templars, 114 Mo. App. 283, and Richmond v. Supreme Lodge, 100 Mo. App. 8.]
    4. -: Constitution and By-Laws Part of Contract: Subsequent Change. The constitution and by-laws of a fraternal beneficiary association are an integral part of the contract of insurance issued by it and accepted by the member, and are to be read into it, and- neither the member nor the beneficiary has any vested interest in the certificate; and, therefore, in the absence of such vested interest, it is permissible for the association and the member to contract in advance that the terms of the certificate may be subsequently changed, provided the change is reasonable.

      5.--: -: Reasonable Change in By-Law. Where the certificate provided that in case the member committed suicide his beneficiary should be paid one-half of the maximum amount of insurance named therein, and also provided, as a condition of the contract, that the amount to be paid should be subject to future changes in the by-laws, a subsequent change in the by-law, by which, in case of the member’s suicide, his beneficiary was to be paid “such a proportion of the sum named in his benefit certificate as the total amount which he has paid into the Widows’ and Orphans’ Benefit Fund bears to the amount he would have paid had he lived out his entire life expectancy at his age of entering,” is reasonable, since it is in consonance with the purposes of the association, and in proper regard for the rights of other members.
    Appeal from St. Louis City Circuit Court. — Son. G. G. Allen, Judge.
    Reversed and remanded (with directions).

      Warren D. Isenberg and F. S. Bacon for plaintiff-appellant.
    (1) The contract sued on in this case is a policy of insurance upon life. State v. Merchants Exchange, 72 Mo. 146; Toomey v. Knights of Pythias, 147 Mo. 129; Kern v. Supreme Council, 167 Mo. 471; Smail v. Court of Honor, 136 Mo. App. 434; National Union v. Marlow, 74 Fed. 775. (2) The contract being a policy of insurance on life, the suicide statute of this State applies. Logan v. Fidelity Co., 146 Mo. 115; Aloe v. Life Ass’n, 164 Mo. 675; Toomey v. Supreme Lodge, 147 Mo. 139; Trenton t. Humel, 134 Mo. App. 595; Herzberg v. Brotherhood, 110 Mo. App’. 328; Wilson v. Benefit Ass’n, 125 Mo. App. 597; Westerman v. Supreme Lodge, 196 Mo. 670; Head Camp v. Schloss, 112 Pac. 49. (3) The Act of 1897 exempting fraternal beneficiary societies from the general insurance laws of the State, and particularly from R. S. 1899, sec. 7896, was unconstitutional, being in violation of paragraph 26 of Sec. 53, art. 4, of the Constitution, because it split life insurance contracts issued by mutual life insurance organizations into two classes and arbitrarily applied.one rule to one class and another rule to another class, enacting different rules for the government of each. There was no reason for this arbitrary classification and no reason of public policy growing out of the condition of the business of each class requiring the application of different rules. Ordelheide v. Modern Brotherhood, 158 Mo. App. 677; State ex rel. v. Vandiver, 213 Mo. 187; Armstrong v. Modem Brotherhood, 245 Mo. 153; State v. Julow, 129 Mo. 154; State ex rel. v. Railroad, 246 Mo. 512; Williams v. Donough, 65 Ohio St. 499. (4) The enactment by the defendant,- after the Clandy policy was issued, of an amendment of the original by-law, intended as a substitute for it, operated as a repeal or abandonment of the original by-law. Smith v. State, 14 Mo. 147; Schrick v. Building Co., 34 Mo. 423; State éx rel. v. Shields, 230 Mo. 91; State ex rel. v. Brode, 161 Mo. App. 538; Insurance Co. v. Anthony, 68 Mo. App. 424; Maccabees v. Altmann, 134 Mo. App. 371. (5) The amendments of the suicide by-law pleaded in defendant’s answer were invalid as to Claudy because they operated as a reduction of the amount promised to be paid in event of death and could not therefore affect the contract of Claudy without his express consent. The society has no power to inject a new condition into the contract. Mathews v. Modern Woodmen, 236 Mo. 326; Hysinger v. Supreme Lodge, 42 Mo. App. 635; Smith v. Supreme Lodge, 83 Mo. App. 512; Grand Lodge v. Sater, 46 Mo. App. 452; Indemnity Co. v. Jarman, 44 C. C. A. 93, 104 Fed. 638; Lewine v. Supreme Lodge, 122 Mo. App. 547; Zimmermann v. Sup. Tent, 122 Mo. App. 591; Morton v. Supreme Council, 100 Mo. App. 76; Smail v. Court of Honor, 136 Mo. App. 434; Wilcox v. Court of Honor, 134 Mo. App. 547; Sisson v. Court of Honor, 104 Mo. App. 283; Pearson v. Knights Templar, 114 Mo. App. 283; Kavanaugh v. Supreme Council, 158 Mo. App. 234; Edwards v. American Patriots, 162 Mo. App. 231; Yonng v. Railroad, 126 Mo. App. 325; Weber v. Supreme Tent, 172 N. Y. 490; Dowdall v. Supreme Council, 196 N. Y. 405; Wright v. Knights of Maccabees, 196 N. Y. 391; Green v. Supreme Council, 206 N. Y. 591; Newhall v. Legion of• Honor, 181 Mass. Ill; Olson v. Court of Honor, 100 Minn. 117; Grant v. Independent Order, 97 Miss. 182; Sautter v. Supreme Conclave, 96 N. J. L. 763; Carnes v. I. T. M. A., 106 Iowa, 281; Pokrefky v. Detroit, etc., Ass’n, 121 Mich. 456; Hobbs v. Benefit Ass’n,-82 Iowa, 107.

      George W. Miller and B. P. & G. B. Williams, for defendant-appellant.
    (1) The Royal League is not an insurance company, but is a fraternal beneficiary association, organized under the laws of the State of Illinois, authorized to do business in this State, and is by statute exempt from the operation of the insurance laws of this State and is exempt from the suicide statute applying to insurance companies. Westerman v. Supreme Lodge, 196 Mo. 738; Tice v. Supreme Lodge, 204 Mo. 349; Scorr v. Royal League, 223 111. 32; Cavanaugh v. Royal League, 158 Mo. App. 234. (2) There is no law or public policy prohibiting a member of a benefit society from contracting in advance that future laws may be passed by societies changing and modifying the indemnity in the original certificate, and if such stipulation is made, the by-law will be enforced. Ship-man v. Home Circle, 174 N. Y. 398; Richmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Royal Tribe, 93 .Mo. App. 78; Lewine v. Supreme Lodge, 122 Mo. App. 547; Westerman v. Supreme Lodge, 196 Mo. 738; Ellerbe v. Faust, 119 Mo. 653. (3) The certificate, application, and by-laws of a mutual benefit society constitute the contract with the member and all must be read together in order to' see all the terms and conditions of the contract. Westerman v. Supreme Lodge, 196 Mo. 738; Eichmond v. Supreme Lodge, 100 Mo. App. 8; Slater v. Supreme Lodge, 76 Mo. App. 387; Laker v. Eoyal Union, 95 Mo. App. 353; Shipman v. Home Circle, 174 N. Y. 398. (4) A by-law restrict^ ing and entirely excluding liability for death by suicide is reasonable. Tice v. Supreme Lodge, 204 Mo. 349; Morton v. Eoyal Tribe, 93 Mo. App. 78; Supreme Commandery v. Ainsworth, 71 Ala. 436; Fraternal Union v. Ziegler, 145 Ala. 286; Knights of Pythias v. Kirtchmar, 179 HI. 341; Scow v. Eoyal League, 223 111. 342; Knights of Maccabees v. Hammers, 81 111. App. 560; Knights of Maccabees v. Steinland, 206 111. 124; Knights of Maccabees v. Nelson, 77 Kan. 629; Daugherty v. Knights of Pythias, 48 La. Ann. 1203;, Dorns v. Knights of Pythias, 75 Miss. 466; Lang v. Eoyal Highlanders, 75 Neb. 188; Shipman v. Protected Home Circle, 174 N. Y. 398; Tiesch v. Protected Home Circle, 72 Ohio St. 233; Chambers v. Knights of Maccabees, 200 Pa. St. 244; Knights of Pythias v. Lamalta, 95 Tenn. 157; Eversburg v. Knights of Maccabees, 33 Tex. Civ. App. 549; Hughes v. Wisconsin Odd Fellows, 98 Wis. 292. (5) There is no vested interest in a benefit certificate issued by a fraternal beneficiary association, and therefore its subsequent bylaws changing the contract or reducing its obligations does not disturb any vested rights. Westerman v. Supreme Lodge, 196 Mo. 737; Masonic Benefit Assn. v. Bunch, 109 Mo. 560; Wells v. Mutual Benefit Assn., 126 Mo. 630; Eichmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Eoyal Tribe, 93 Mo. App. 78; Ship-man v. Home Circle, 174 N. Y. 368; Casualty Co. v. Kucer, 169 Mo. 314; Grand Lodge v. McFadden, 213 Mo. 284; Hofman v. Grand Lodge, 73 Mo. App. 47; Grand Lodge v. Eeman, 75 Mo. App. 402; Golden Star Fraternity v. Martin, 59 N. J. L. 207; Abies v. Ackley, 133 Mo. App. 603. (6) The Act of 1897 providing for the creation of fraternal beneficiary associations, authorizing the issuance of benefit certificates and exempting such certificates and associations from the operation of the insurance laws of this State is the creation of a class authorized by the Constitution and is not repugnant to paragraph 26 of section 53, article 4, of the Constitution. State v. Bishop, 128 Mo. 385; State ex rel. v. Herman, 75 Mo. 340; State ex rel. v. Tolle, 71 Mo. 645; Lynch v. Murphy, 119 Mo. 163; Haynie v. Knight Templars, 139 Mo. 416; Association v. Waddell, 138 Mo. 628; Fidelity Casualty v. Freeman, 109 Fed. 849; 1 Lewis’s Sutherland Stat. Construction (2 Ed.), sec. 221; Fire Ins. Co. v. Whit-taker, 112 Tenn. 151; Spencer v. Court of Honor, 120 Minn. 422; People v. Life Ins. Co., 247 111. 92; Ins. Co. v. Clay, 197 Fed. 435; Mut. Life Assn. v. Mettler, 185 U. S. 308; Heath & Millegan v. Worst, 207 U. S. 338; Lumber Co. v. Bank, 207 U. S. 251. (7) Where the member either in the application or certificate, agrees to be bound by after-enacted by-laws or the obligation of the society to pay is made subject to or liable to forfeiture, if the member shall not comply-with laws, rules and regulations that may be subsequently adopted, as well as those in force at the time he joined, such after-enacted by-laws are valid and binding. Westerman v. Supreme Lodge, 196 Mo. 738; Ellerbe v. Faust, 119 Mo. 653; Shriek v. St. Louis Mut. Co., 34 Mo. 423; Allen v. Life Ins. Co., 8 Mo. App. 52; State ex rel. v. Grand Lodge, 70 Mo. App. 456; Richmond v. Supreme Lodge, 100 Mo. App. 8; Morton v. Royal Tribe, 93 Mo. App. 78; Supreme Com. v. Ainsworth, 71 Ala. 436; Fraternal Union v. Zeigler, 145 Ala. 287; Grand Lodge v. Burns, 84 Conn. 356; Masonic Benefit Assn. v. Severson, 71 Conn. 719; Gilmore v. Knights of Columbus, 77 Conn. 58; Bowie v. Grand Lodge, 99 Cal. 392; Stohr v. Musical Society, 82 Cal. 557; Brown v. Knights, 43 Colo. 286; Union Frat. League v. Johnson, 124 Ga. 902; Supreme Tent v. Hammers, 81 111. App. 560; Supreme Lodge v. Krutscher, 179 111. 340; Supreme Lodge v. Trebbe, 179 111. 348; Scow v. Royal League, 223 111.. 32; Supreme Tent v. Steinhons, 206 111. 124; Royal Arcanum v. MeKnight, 238 Id. 349; Baldwin v. Bigley, 185 111. 180.
   WALKER, P. J.

There are cross appeals in this case.

Plaintiff brought suit in the circuit court of the city of St. Louis against defendant, a fraternal beneficiary association, on a. benefit certificate of life insurance of $2000, issued by defendant on the life of the husband of plaintiff who, several years subsequent to the issuance of the certificate died by his own hand. The defendant was incorporated under the laws of the State of Illinois as a fraternal beneficiary association, and at the time of the issuance of the certificate herein and at all times intervening between that date and the death of the husband of the plaintiff, it was authorized to do busines in this State, under article 9 of chapter 61, Revised Statutes 1909, entitled, “Fraternal Beneficiary Associations.”

At the time of the issuance of the benefit certificate the following by-law of the association was in force, to-wit: “If any member, whether admitted heretofore or hereafter, shall die by his own hand, sane or insane, his beneficiary or beneficiaries shall receive only one-half of the face value of his benefit certificate.”

Subsequently this by-law was changed several times and at the time of the death of the member in this case the following was in force: “No member, whether admitted heretofore or hereafter, shall die by his own act or hand, sane or insane, and if any member, whether admitted heretofore or hereafter, shall die by his own act or hand, sane or insane, such death shall forfeit all the rights and claims to the amount agreed to be paid on his death and specified in the benefit certificate of sncb member, and Ms beneficiary or beneficiaries shall receive and be paid in lien thereof, snch a proportion of the sum named in his benefit certificate as the total amount which he has paid into the "Widows’ and Orphans’ Benefit Fund bears to the amount he would have paid had he lived out his entire life expectancy at his age .of entering.”

Following this is a table of life expectancy, from which the amount is to be calculated due a member subject to the foregoing conditions.

The benefit certificate contains the following condition: “Upon condition that the said member complies in future with the laws, rules and regulations now governing the said council and fund, or that may hereafter be enacted by the Supreme Council and to govern said council and fund, all of which are also made a part of said contract. These conditions being expressly assented to and complied with, the Supreme Council of the Royal League hereby promises and binds itself to pay out of its Widows’ and Orphans’ Fund to Christine Claudy, wife, a sum not exceeding two thousand dollars in accordance with and under the provisions of the laws governing such fund. ’ ’

The certificate of which this condition was a part was issued and delivered to the member, and thereon was endorsed the following: “I accept this certificate on the condition therein named. Christian Claudy. ’ ’

The petition after admitting the corporate character of defendant as a fraternal beneficiary association, and its authority to do business in tMs State at all of the times mentioned, contains the formal allegations requisite to state a cause of action in a proceeding based upon a certificate of this character, and asks judgment for the full amount of same, to-wit, $2000.

The answer among 'other tMngs pleads the condition under wMch the certificate was issued, the acceptance of same by the member, that he thereafter died by bis own hand, tbe by-law of tbe society in force in regard to tbe forfeiture of rights of a member who thus died, and that under such by-law bis beneficiary is entitled to tbe sum of $764.39, which has been tendered her and refused, and that tbe defendant now tenders and is ready and willing to pay same.

Plaintiff filed a motion for a judgment on the pleadings, the material parts of which motion are as follows:

“First: ’The amendment of the original by-law in force at the time Christian Claudy became a member of defendant corporation operated as a repeal of such original by-law, and said amended by-law was inoperative so far as the contract of said Christian Claudy with defendant was concerned, being an after-enacted by-law;
“Second: The fact that Christian Claudy committed suicide is irrelevant to any issue in this case, and the fact of suicide constitutes no defense to plaintiff’s cause of action, because said defendant is subject to the statute of this State providing that in suits on life insurance policies, suicide shall be no defense unless it is shown that the deceased contemplated suicide at the time be took out the policy, and in said answer it not being alleged that the deceased contemplated suicide when the policy or certificate sued on was issued, and because the Act of 1897, exempting fraternal beneficiary societies from the insurance laws of this State, and particularly the suicide statute, is in violation of the constitutional provision of this State which forbids the Legislature from passing any law granting to any corporation, association or individual any special or exclusive right, privilege, or immunity.”

Tbe trial court sustained tbe foregoing motion in part, and rendered judgment in favor of plaintiff in tbe sum of one thousand dollars, basing same on tbe by-law of tlie society in force at the time of the issuance of the certificate.

Plaintiff appealed therefrom on the ground that judgment should have been rendered in her favor for $2000, the full amount of the benefit certificate.

Defendant appealed on the ground that judgment should have been rendered in plaintiff’s favor for only $764.39, the amount found to be due on the certificate under the by-law of the society in force at the time of the death of the member, calculated upon the table of expectancy forming a part of said by-law.

The regularity of the proceeding is in no wise questioned, and the only point made by either party is as to the extent of defendant’s liability.

Plaintiff’s contentions specifically stated are (1) that the Act of 1897, now section 7109, Revised Statutes 1909, is void in so far as it attempts to exempt fraternal beneficiary associations from the general insurance laws of the State as being in violation of that provision of the State Constitution which prohibits the granting to any corporation, association or individual any special or exclusive right, privilege or immunity (Par. 26, sec. 53, art. 4, Constitution of Missouri)-the special grant or privilege complained of being the exemption, under said statute, of associations of the character of the defendant, from the general provisions of the insurance law in regard to liability on account of deaths of the insured from suicide; (2) that the by-law in force at the time of the issuance of the benefit certificate herein, having been repealed and the enactment of subsequent by-laws being invalid, there is no by-law in existence exempting the association from liability in the event of the suicide of a member — the contention as to the invalidity of the subsequently enacted by-laws being that they interfere with the vested rights of members and beneficiaries and thereby violate the obligations of contracts.

I. The corporate character of the defendant is admitted by the plaintiff to be that of “a fraternal beneficiary corporation organized under the laws Of the State of Illinois, and- duly authorized and licensed to do business in the State of Missouri as such.” An analysis, therefore, of the defendant’s articles of association is not necessary, as it was in Westerman v. Supreme Lodge, 196 Mo. 670, to enable it to be determined whether the business done by defendant was old-line or fraternal beneficiary insurance.

Plaintiff contends, however, that the statute (Art. 9, chap. 61, supra) which classifies corporations of the character of the defendant as “fraternal beneficiary associations” and provides among other things that they shall be exempt from the provisions of the insurance laws of this State, is void as attempting to confer a special grant or privilege on this class of corporations. The burden of plaintiff’s complaint is, in other words, that the statute under review is a local or special law.

The insurance statutes of this State are subdivided into articles, each by their terms applicable to certain classes of companies or associations. If, upon examination, these articles are found to be complete in themselves and they apply to the companies or associations therein designated as a class, then they are not inimical to the organic law as special legislation. We find that the article (Art. 9, chap. 61) under consideration is creative and regulatory of fraternal beneficiary associations, that it is complete in itself and applicable to the associations named as a class; this being true it may well be the subject of particular legislation without violating the Constitution prohibiting the granting of special privileges to corporations.

In State ex inf. v. Aetna Ins. Co., 150 Mo. 113, the provision of the Constitution here in question was under review as applicable to fire insurance companies, and it was held that a statute particularly applicable to this class of corporations was not objectionable as a special law, because it had reference to such insurance companies as a distinctive class, and was equally applicable to all of that class, that the class was a natural one which the Legislature was authorized to create. So in the case at bar, the statute under which the defendant was authorized to do business, and under which it transacted same, while, pertaining to a designated class of insurance companies, is general in its terms in regard to that class, and hence not subject to objection as to its constitutional validity.

The statute in question has been held valid in Tice v. Supreme Lodge, 204 Mo. 349, in which the court, in construing a benefit certificate containing a clause limiting liability in the event of suicide, similar to the one in the case at bar, held that at the date of the issuance of the beneficiary certificate the defendant was exempted under the statute from the provisions of the general insurance law (Sec. 6945, supra) in regard to suicide and, therefore, the plaintiff was not entitled to recovery.

In Schmidt v. Supreme Lodge Foresters, 228 Mo. 675, a like rule was announced, and the Tice case, supra, was approvingly cited, but it was held in the Schmidt case, because the defendant had not complied with the law authorizing it to do business in this State as a foreign fraternal beneficiary association, that it could not plead the statute otherwise applicable to its class.

In Armstrong v. Modern Brotherhood, 245 Mo. 153, the dividing line between fraternal beneficiary associations and old-line insurance companies was clearly defined, and, while the question as to the constitutionality of the statute was not discussed, the validity of the same was impliedly, at least, sustained.

In discussing the constitutionality of statutes of the character of the one under consideration, this court announced the general rule in State v. Webber, 214 Mo. 272, to be that where such statutes are uniform in their operation upon the classes included therein that the classification made by the statute cannot be construed as arbitrary or the law special.

The Westerman case, supra, may not inappropriately be held to sustain the conclusion we have reached here in regard to the validity of the statute (Sec. 7109, R. S. 1909); in that case the vexed question was as to whether the non-forfeitable statute, now section 6946, Revised Statutes 1909, as it appears in the article in regard to life and accident insurance, was applicable to a benefit certificate issued by a fraternal beneficiary association; the court held that it was not, because of the provisions of what is now section 7109, Revised Statutes 1909, the same statute which we are now considering, which provides that the class of associations therein named are exempt from the provisions of the general insurance law of this State. If exempt from the non-forfeitable clause of the general insurance law, by parity of reasoning they are also exempt from the provisions of the general statute in regard to suicide.

We find in the cases referred to that the statute has been considered from almost every point of view except that of its direct constitutionality; this, in our opinion, has also been determined in the cases cited, if not, in the absence of precedents, the strong current of reasoning is in favor of its validity and we so hold.

II. Although the statute is, as we hold, not violative of the Constitution, and, therefore, the certificate issued therein is valid, we are confronted with the further contention on the part of the plaintiff that the by-laws limiting the right of recovery in the event of suicide, under which the certificate was issued, were changed after the issuance of the certificate, in violation of the member’s contract rights, and that as a consequence such amended by-law in force at the time of the member’s death was inoperative so far as the beneficiary’s right of recovery was concerned.

It is well established that no vested rights are conferred by a certificate of the character of the one under consideration. [Grand Lodge v. McFadden, 213 Mo. 269, 284, and cases; Westerman v. Supreme Lodge, 196 Mo. l. c. 738.]

At the time of the application of the member for the certificate, in compliance with one of the conditions of its issuance under the laws of the association, he made the following declaration: “If accepted as a member, I agree to comply with and that my membership and all interests of the persons entitled to such benefits shall be subject to all the laws, rules and regulations now in force in the order or which may hereafter be adopted by it.”

In addition to the foregoing, one of the recitals of the certificate, set forth in full in the statement, is that the member expressly agrees to comply with all of the rules and regulations then governing or that might thereafter be enacted by the properly constituted authority of said association.. Not only was the certificate issued under this condition, but it was accepted by the member in this language: “I accept this certificate on the condition named therein. Christian Claudy.” The certificate issued and accepted under the above conditions provides if same are complied with that the association “promises and binds itself” not to pay a fixed amount but “a sum not exceeding $2000 in accordance with and under the provisions of the law governing said fund.”

This contract, therefore, contemplated that the association might change its by-laws, rules .and regulations so as to affect the amount of insurance to be paid, especially in the event of the member’s death by suicide, and the member agreed to be bound by such changes.

While it has repeatedly been held by our courts of appeals that a contract of insurance made with a fraternal beneficiary association cannot be materially modified or changed so as to affect the amount of insurance to be paid the beneficiary in the event of the death of the member (Pearson v. Knight Templars, etc., Co., 114 Mo. App. 283, 288, and other cases), it will be found upon an examination of this class of cases that the amount contracted to be paid was in each instance a fixed and definite sum and that the member did not, as in the case at bar, apply for the certificate on the condition that it was subject to changes, or expressly assent to changes thereafter made, as was the case in Richmond v. Supreme Lodge, 100 Mo. App. 8, which is not foreign in its facts to those in the case at bar, and announces the rule as to the right of a beneficiary association, under the conditions therein stated, to change its by-laws subsequent to the issuance of certificates — which rule we are of the opinion may properly be invoked in this case for the following reasons : the constitution and by-laws of a fraternal beneciary association are an integral part of the contract of insurance created by the issuance and acceptance of the certificate and should be read into same in construing it 5 neither the member nor the beneficiary has any vested interest in said certificate; in the absence of such vested interest it is permissible for the association and the member to contract in advance that the terms of the certificate may be changed, provided such change is reasonable, and (as was said by Bland, J., in the Richmond case, supra) “is in harmony with the benevolent purpose for which the association was formed.”

Taking into consideration the general character of the association in question and the particular purpose for which it was created, náfrnely, by co-operation without profit to provide a fupd. to be paid to those named as beneficiaries upon the death of the member, the changes here made are not unreasonable, especially in regard to suicides. Although it was provided in the by-laws at the time the certificate in question was issued that if a member died by his own hand, his beneficiaries should receive one-half of the face value of his benefit certificate, the presumption is not reasonable that it was contemplated in the organization of the association that it should provide a fund primarily to be paid to the beneficiaries of suicides; as an evidence that this was not the purpose, the by-laws were from, time to time changed in this regard, until, at the time of the member’s death, the by-law in force provided that the beneficiary or beneficiaries of members so dying should be paid in lieu of one-half of the maximum amount agreed upon in the certificate, such proportion of said sum as the total amount such member had paid into the Widows’ and Orphans’ Benefit Fund bore to the amount he would have paid had he lived out his entire life expectancy at the age of his entering, calculated upon the table therein agreed upon. It cannot be contended that the last amended by-law is not more reasonable and more in consonance with the purpose of the association than the first; not only is the last more reasonable, but, with a proper regard for the rights of the other members it is just and fair to the beneficiaries of members who die by their own hands, and is calculated in thus frugally conserving the entire beneficiary fund to better effectuate the purpose for which the association was created. No contractual relation between the member or the beneficiary and the association having been violated by the change in the by-laws and the same being reasonable and for the best interests of the association, we hold that its action in this regard should be sustained, and so holding it follows that the judgment below should be reversed and remanded, and the trial court directed to enter up judgment in favor of plaintiff in the sum of $764.39, the amount found to be due upon the basis of calculation fixed by the by-law in force at the time of the death of the member, and it is so ordered.

Brown, J., concurs; Faris, J., not sitting.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    PAUL U. PATRUM et al. v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division Two,
    June 23, 1914.
    1. NEGLIGENCE: Coupling Cars: In Customary Way: Assumption of Risk. While deceased was on a car, which he had mounted for the purpose of setting the brakes, defendant’s other servants were attempting to effect a coupling with a stock car which was six or eight feet from the one he was on, and in doing so jammed another car against the stock car with such force as to cause it to reach and start the car on which deceased was, and it to roll along the down grade, and him to fall. Held, that if the coupling was done in the usual, customary and ordinary way, defendant was not guilty of negligence, and the doctrine of the assumption by a servant of the usual and ordinary risks of his employment precludes recovery; but if the coupling was made in an unusual and unnecessary way, by an impact, bump or jolt out of all proportion to the necessities of the situation and circumstances, then there was no ordinary care such as defendant was required to exercise and ' and defendant is liable.
    2. -: Assumption of Risk. The servant does not assume the negligence of the master or that of a vice-principal. The term “assumption of risk” is used in this jurisdiction to express the mere hazards which appertain to a dangerous avocation unaffected by the negligence of the master. But when the servant enters into or remains in the master’s service with actual or constructive knowledge of defects or dangers arising from the master’s negligence and without a promise of remedy, that, in this jurisdiction, is spoken of as contributory negligence, but in others as true assumption of risks.

      3. -: -: Accident. The master is not liable for an injury to his servant which resulted from an accident pure and simple and without the fault of anyone, especially where such accident is one incident to the dangerous and hazardous work in which the servant is engaged. In such case the servant is held to have assumed the risks ordinarily incident to his occupation.
    4. -: -: Coupling Car: Insufficient Evidence. Where the only evidence that the attempted coupling of a stock car which was caused to strike the one on which the deceased brakeman was standing, with another car, was not done in the usual, customary and ordinary way, is the testimony of a non-expert who had shipped a good deal of stock, to the effect that he “considered it a hard jolt,” that he “considered it too hard” and that after two or three unsuccessful attempted couplings, the one that caused the stock car to roll against the one on which the brakeman was and caused him to fall “was a good deal harder,” and the immediate cause of the brakeman’s fall • is dark, a- verdict for his children cannot stand.
    Appeal from Christian Circuit Court. — Hon. John T. Moore, Judge. •
    Reversed.

      W. F. Evans and John H. Lucas for appellant.
    (1) The defendant insists that neither in pleading, nor in proof can the plaintiffs recover, hence the court committed error in submitting the cause to the jury. Harrington v. Railroad, 104 Mo. App. 671; Shields v. Railroad, 100 Mo. App. 517; Williams v. Railroad, 119 Mo. 316; Hager v. Railroad, 207 Mo. 302; McIntosh v. Railroad, 58' Mo. App. 285; Jackson v. Railroad, 104 Mo. 448; Bradley v. Railroad, 138 Mo. 302; Saxton v. Railroad, 98 Mo. App. 494; Ryan v. McCully, 123. Mo. 636; Yamal v. Railroad, 75 Mo. 575; Keown v. Railroad, 141 Mo. 86; Maher v. Railroad, 64 Mo. 267. (2) Instmction A, given by the court of its own motion tells the jury that plaintiffs can recover notwithstanding the exercise of ordinary care by defendant. Porter v. Railroad, 199> Mo. 82; Vermillion v. Parsons, 118 Mo. App. 260; Pirn v. Transit Co., 108 Mo. App. 713; Beben v. Transit Co., 186 Mo. 430. (3) If tbe cars were bandied in tbe ordinary and usual manner, then there was no negligence. Peck v. Transit Co., 178 Mo. 617. There was no evidence that tbe ears were negligently bandied and tbe court should have so declared. Reno v. Railroad, 180 Mo. 469; Henselman v. Railroad, 88 Mo. App. 123. If tbe death was tbe result of an accident, there could be no recovery, and tbe court should have so declared. Peck v. Transit Co., 178 Mo. 617.

      Patterson & Patterson, G. A. Watson and G. D. Kirby for respondents.
    (1) Tbe petition is substantially sufficient, (a) Tbe charge of negligence is sufficiently specific — especially after verdict. Even a general averment of negligence is good after verdict. Tachner v. Express Co., 72 Mo. App. 13; Clem v. Railroad, 119 Mo. App. 245; Howell v. Mode, 111 S. W. 641. (b) Even if it were proper to charge that tbe car was struck with unusual or extraordinary force this allegation is necessarily implied and tbe defect is cured by tbe verdict in plaintiff’s favor. Dodge v. Coal & Coke Co., 115 Mo. App. 501. (2) Tbe question of negligence was one for tbe jury — where reasoiiable men may differ upon a given state of facts tbe question of negligence is one for tbe jury. Nagel v. Railroad, 75 Mo. 653; Manerman v. Siemerts, 71 Mo. 101; Hulin v. Railroad, 92 Mo. 440'; O’Mellia v. Railroad, 115 Mo. 205. There being substantial evidence to support tbe verdict, tbe appellate court should not disturb the finding and tbe evidence should be viewed in its most favorable aspect in support of tbe verdict. Cimliff v. Hansman, 97 Mo. App. 467; Land & Lumber Co. v. Tie Co., 79 Mo. App. 543; Sinclair v. Railroad, 70 Mo. App. 588; Winters y. Railroad, 99 Mo. 509.; Memphis v. Mathews, 28 Mo. 248; Lyman v. Harvester Co., 68 Mo. App. 637; Phippin v. Railroad, 196 Mo. 321; Cohn v. Kansas City, 108 Mo. 387; Stoddard v. Railroad, 65 Mo. 514; Parsons v. Mayfield, 73 Mo. App. 300'; Huth v. Dohle, 76 Mo. App. 671; Choquette v. Railroad, 152 Mo. 257; Dowling v. Wheeler, 117 Mo. App. 169 ; Shoe Co. v. Sally, 114 Mo. App. 222; Levels v. Railroad, 196 Mo. 606; Little v. Pump Co., 122 Mo. App. 620; Smoot V. Kansas City, 194 Mo. 573; Treffinger v. Railroad, 110' Mo. App. 453. The question of the weight of the evidence was for the jury and the trial court. Conrad v. Railroad, 116 Mo. App. 517; Hurley v. Railroad, 120 Mo. App. 262; Bretzfelder v. Waddle, 122 Mo. App. 262; Gorton v. Ins. Co., 115 Mo. App. 69. It is only when the appellate court is convinced that the verdict is the result of prejudice or passion that it will interfere. Franklin v. Railroad, 188 Mo. 533. The fact that the preponderance of the evidence is against the verdict furnishes no foundation for the charge that the verdict is the result of prejudice or passion. Hirsh v. Grand Lodge, 78 Mo. App. 358; Harrison v. Lakenan, 189 Mo. 581; Investment Co. v. St. Joseph, 191 Mo. 459. The jury are at liberty to disregard the testimony of several witnesses even when uncontradicted. Roos v. Clark, 14 Mo. App. 594; Gregory v. Chambers, 7 Mo. App. 557; Clark v. Skrimski, 77 Mo. App. 172; Tower v. Panley, 76 Mo. App. 287; Wolff v. Campbell, 110 Mo. 114. Where the testimony of witnesses conflicts with the physical facts and the common observation of men, the testimony must yield and need not be accepted as the basis of a verdict. Phippin v. Railroad, 196 Mo. 321; Hayden v. Railroad, 124 Mo. 566; Kelsey v. Railroad, 129' Mo. 362. (3) The charge of negligence was supported by the evidence. The defendant owed to plaintiff the exercise of due care and the failure to use such care constituted negligence. Negligence is the absence of due care and due care is care adjusting itself to the circumstances of the case.. Dean v. Railroad, 199 Mo. 386; Wharton on Negligence (2 Ed.), sec. 3; McMahon v. Express Co., 132 Mo. 641; Wilkinson v. Railroad, 101 Mo. 9'3; Webb’s Pollock on Torts (En. Am. Ed.), p. 112 et seq. There is an implied agreement on the part of the master when it employs the servant and puts him at a dangerous place to work, that it will use reasonable care to protect him. Brady v. Railroad, 135 Mo. 393. (4) The servant never assumes the risk of his master’s negligence. Phippin v. Railroad, 196 Mo. 321. If ordinary care would have prevented the injury the risk is not assumed. Blanton v. Dold, 109 Mo. 64. The only risks which the servant assumes are those which remain after the master has exercised ordinary care. Charlton v. Railroad, 200 Mo. 413. Nor does the servant assume the risk of dangers arising from the negligence of the master in furnishing defective appliances by continuing the service after he is advised of it. Pauck v. Beef & Provisions Co., 159 Mo. 477; Settle v. Railroad, 127 Mo. 336. When the work requires men to do it then the men are classed as appliances. Thorpe v. Railroad, 89 Mo. 663; Haviland v. Railroad, 172 Mo. 112. The servant assumes the risk of every danger arising from the work itself, but if the master’s negligence aggravates the danger the servant may recover. Nash v. Dowling, 93 Mo. App. 156; Parsons v. Packing Co., 96 Mo. App. 381.
   FARIS, J.

Plaintiffs, as the minor children of Henry A. Patrum, a brakeman on a freight train, employed and killed by defendant while in the line of duty, sue for his death.

Deceased, a widower, 43 years old, long in service as a railroad man and experienced in the work and duties of a brakeman, was killed at Mansfield, Missouri, on the tenth day of August, 1906. Plaintiffs had a verdict for $5000 damages, but thereof entered a remittitur for $500* and had judgment for $4500, from which the defendant in the usual way appealed to the St. Louis Court of "Appeals. Territorial jurisdiction being shifted by legislative enactment, the case in the course of time came to the Springfield Court of Appeals, wherein Judge Cox, having disqualified himself for that he had sat therein -nisi, and Judges Gray and Nixon being unable to agree, the Hon. V. O. Coltrane, a well-known and able member of the Springfield bar, was agreed on by stipulation as special judge and as such rendered an opinion herein affirming the case. In this opinion of affirmance Judge Gray concurred, but Judge Nixon dissented, and deeming the views expressed in conflict with the holdings of this court and of the other courts of appeals, requested that the case be sent here, which was accordingly done.

The specific allegation of negligence as pleaded in the case, coupled with a general statement of the facts, is thus stated in the petition:

“That said Patrum in the performance of his duty, and while in the line of his work as such brakeman, climbed upon said rear car for the purpose of setting the brake thereon and'stopping said car; that while he was so engaged, and while he was on the top of said car setting said brake, the agents, servants and employees of defendant engaged with him in handling said engine and cars, they then knowing that the said- Patrum was in such position and so engaged, negligently and carelessly drove said engine against the other of said cars which were between the engine and the car on which the said Patrum then was as above stated, with such force as to drive said car against the car on which the said P'atrum was engaged in setting the brake; that the impact of said cars so driven together was so sudden, forceful and violent that as a result thereof the said Patrum was thrown from said car to the track, one of said cars passing over his body, so injuring him that as a result thereof, he died.”

The answer.was a general denial; the defense was the assumption of risk; of which more anon.

The facts in brief as developed by the testimony offered by plaintiffs (the defendant offered none, merely contenting itself with demurring to that offered by plaintiffs), are about as follows: There are at Mansfield on defendant’s line of railroad, three tracks, called in the record the “main track,” “passing track” and “stock track.” The train on which Henry A. Patrum (hereafter for brevity called the deceased), was employed as a brakeman, stopped on the day that he was killed, on the passing track, for 'the purpose, among others, perhaps, not here pertinent, of picking up a stock car loaded with hogs belonging to one W. J. Tripp. The engine was cut off from its train and run over to the north end of the stock track for the purpose of doing the switching made necessary in coupling on to and in picking up the carload of hogs. There was upon the stock track, besides the carload of hogs, at least one other car which was empty. By large inference other cars were thereon, but whether there were or not, such other cars cut but little figure in the case. This stock track was on a grade, the south end being lower than the north end, on which the engine came in, but what per cent the grade was nowhere appears in the record. In picking up the stock car it became necessary, as the witness Yosbury (who was conductor on another freight train which had halted on the main line), says in his testimony, to make three couplings. In this work Yosbury, who desired to use the same tracks for switching, was assisting Young, the head-brakeman, and the deceased. They were attempting to make at least two of these three couplings at once. At the first attempt one coupling was made by the head-brakeman Young, but Yosbury failed to make his, thus necessitating the backing up of the engine and the cars attached thereto by the first coupling, and a second attempt was made. By reason of the striking of the engine against the cars, the stock car with the hogs therein, which had failed to couple on the first attempt, was pushed up and struck against an empty car to the southward standing on the stock track and on a down grade. This empty car began rolling off down grade toward the south and toward the switch leading to the main line. Deceased, as it was his duty to do, climbed up on the empty car to stop it and to this end commenced setting the brake. Whether he had concluded this work prior to falling, as hereinafter stated, the record does not show. While deceased was setting the brake and while he had hold of the brake wheel and was facing toward the north and toward the oncoming engine, the second attempt to couple was made. The stock car was thrust by the impact back against the empty car upon which deceased was, and he was thrown or fell between the empty car and the stock car and was run over by the latter and received the injuries which shortly caused his death. When deceased fell, Vosbury, who was standing near, caught hold of him and attempted to pull him from between the cars, but before he was able to do so the first wheel caught him, ran over one leg and a second wheel ran almost straight down the other leg, badly crushing and mangling him. The signal to the engineer to back up at the time he did back up and when the empty car was struck and deceased was thrown therefrom and" injured, was given by Young, the head-brakeman, who gave what is called among trainmen a “heavy signal,” which seems to be a signal used when a coupling is attempted after one or more efforts to couple have failed. At the time this signal was given the stock car and the empty car, which deceased was on and attempting to stop by braking it, were some six or eight feet apart.

The defendant as stated put in no testimony whatever but merely interposed a demurrer to that offered by plaintiffs. The bone of contention in the case is as to whether the trainmen, the fellow-servants of deceased, used ordinary care in making* the coupling in which they were engaged when deceased lost his life. There is no very serious contention lodged in the case upon any other point. If this work was done in the usual, customary and ordinary way, in which freight trains are coupled and switching done thereon, as defendant contends, then defendant was not guilty of negligence, and the doctrine of the, assumption by deceased of the usual and ordinary risks of his employment, precludes recovery. But if this coupling was made in an unusual, unnecessary way by an impact, bump or jolt, out of all proportion to the necessity of the situation and circumstances, then there was not ordinary care, such as defendant was required to exercise so as not to injure deceased, and plaintiffs should recover.

Some questions are raised as to the introduction of testimony, as also of the giving of instructions and of the sufficiency of the charge of negligence in the petition, but these we shall discuss in the opinion, if we shall reach them.

The serious question in the case, the one most strenuously urged upon us by defendant and the one upon which this case split in the Court of Appeals, is whether there was testimony enough to take this case to the jury.

Upon this point plaintiffs offered four witnesses, one of whom was F. C. Yosbury, the conductor on the waiting freight train; another was W. M. Young, the head-brakeman upon deceased’s train, both of whom were assisting deceased in doing the switching about which he was killed. We need not refer to the testimony of these witnesses, except to say that they both testified that in making the coupling by which the stock car was thrust against the empty car and deceased was caused to fall, there was nothing out of the ordinary; that this work was done just as it is ordinarily done; that there was no nnnsnal force, and no more force than was necessary under the circumstances, and that there was no difference in the handling of that engine and those cars as compared to the usual and customary manner of doing this work on freight trains ordinarily used a hundred times a day. It is true that witness Young says that the car was “struck a little bit hard; not harder than any other time.” This qualification, if it be such, which may be said to be doubtful, the witness explained by saying that the engine was new and a little hard to handle, which characteristic appertains, this witness tells us, to all new engines. If this is so, and it must be so for this case, since plaintiffs’ witness swears it and nobody denies it, danger accruing from such characteristic of new engines, being a usual and ordinary condition, is among the risks which deceased assumed. In other words, the testimony of both Vosbury and Young without any question shows that there was nothing unusual in the manner in which the work was done on this unfortunate occasion, and if their testimony stood alone in the case, it makes out for defendant a complete defense.

The witness Tripp, the owner of the hogs which were in the car that ran over deceased, was riding in the engine at the the time of the impact. He only says as to the nature of this collision that he “considered it a hard jolt.” ' On cross-examination he says that there had been already made two or three attempted couplings, and that the concussion in question which caused the falling of deceased, was a good deal harder. But being asked as to whether it was harder than necessary or not, he answered that he would not say, but that he considered it too hard, and that he thought defendant was handling his hogs hard. This witness also admitted that he had had no experience as, a railroad man, but that he had been around the yards a good deal and had shipped a good deal of stock. Some serious contradiction of this witness appears in the record in that it is shown that in a statement formerly made by him, he stated that the engine was handled in the usual and ordinary way as carefully as could he done. He, however, denied making this statement, and while it may well be that the triers of fact would have been abundantly justified in finding that he did make it, yet it was a question for them and we have no right to consider it here in the condition of the case before us.

One J. A. Johnson, an experienced freight conductor, employed .by defendant company, who was not immediately present at the time the deceased was killed, was called by plaintiffs, apparently as an expert witness, and who testified that in his opinion it would be necessary to drive a car eight or ten feet in order to make such a coupling as was. made on the occasion in question; that such coupling could be done closer, but that that was the ordinary distance used. The appositeness of this statement arises from the fact that other evidence in the case showed that the empty car after being hit in the first attempt to couple ran some fifty feet (down grade) and the stock car some ■ six or eight feet less. Being further asked as to the amount of care usual and customary in making couplings and switching while brakemen are engaged in setting brakes and in known positions of danger on freight trains, he answered that the usual custom was to “slam into them and make the coupling as quick as one can; we never look to see where the brakeman is or what position he is in. ’ ’

This is the whole of the pertinent testimony upon the identical point in issue, as this record discloses it to us. The testimony of Johnson, in our view, does not aid the plaintiffs. Its pertinency to the facts and conditions is difficult to see. While it may be true and be conceded for the purposes of this case as true that ordinarily it will be necessary only to drive a car eight or ten feet, in order to conple thereto, yet it is reasonably clear/even to a wayfaring man, that much will depend on the number of cars in the lot to which the car sought to be coupled is situated; much also will depend upon the grade; since it is apparent that if a car, as the empty one in question here is shown to have been, is rolling down grade, it will ordinarily continue to roll down grade until it is stopped by braking or by an obstacle, and that the distance which it rolls and therefore the distance that the engine and cars attached thereto must run, or back up before a coupling is made, will depend on how far the empty car has rolled before the brakes are applied. "We are utterly unable to see any pertinency under the facts in this case to the testimony of Johnson on this phase of the case.

The witness Tripp admits his lack of experience, and inability to qualify as an expert. Is his expressed opinion that it was a hard jolt, or to use his own words, that “he considered it a hard jolt,” of sufficient weight to prove want of the ordinary care required here? It has been often said that it is not (Ray v. Railroad, 147 Mo. App. 332; Wait v. Railroad, 165 Mo. 612; Hedrick v. Railroad, 195 Mo. 104; Hawk v. Railroad, 130 Mo. App. 658); and when we have reference to the fact that he refused to say that this impact was harder than necessary, but merely contented himself by saying that he ‘ ‘ considered it too hard, ” it is fairly clear that his testimony can have but little if any weight. It is but the opinion or conclusion of a non-expert witness, which is ordinarily not even admissible.

There is no difficulty about the law of this case. As the learned special judge says in his opinion, which is before us, the chief difficulty lies with the facts and in applying them to the law. Under the doctrine found in the Missouri cases dealing with so-called assumption of risk the employee “does not assume the negligence of the master or that of a vice-principal.” The moment negligence comes in at the door it may well he said that the doctrine of assumption of risk goes out at the window. [Curtis v. McNair, 173 Mo. 270; Brady v. Railroad, 206 Mo. 509; Tinkle v. Railroad, 212 Mo. 445; Huston v. Railroad, 129 Mo. App. 576.] We have here in Missouri, whether logically or illogically we need not here pause to discuss, come to use the term “assumption of risk” to express the mere hazards which appertain to a dangerous avocation when unaffected by the negligence of the ¿master. When, however, the servant enters into or remains in the service of the master with actual or constructive knowledge of defects arising from the master’s negligence and without a promise of remedy, we speak of this in our Missouri courts as contributory negligence. Other jurisdictions for the most part, call it true assumption of risk. [Duffey v. Consolidated Block Coal Co., 147 Iowa, 225; Martin v. Light Co., 131 Iowa, 724; Arnold v. Harrington Cutlery Co., 189 Mass. 547; Denver & R. G. R. R. Co. v. Burchard, 35 Colo. 539; Choctow O. & G. Ry. Co. v. Jones, 77 Ark. 367; Union Pacific Ry. Co. v. O’Brien, 161 U. S. 451; Higgins v. Williams, 114 Cal. 176; Fort Wayne v. Christie, 156 Ind. 172; Moylon v. McDonald Co., 188 Mass. 499; Hickey v. Taaffe, 105 N. Y. 26, and numerous cases cited in note appended to Scheurer v. Banner Rubber Co., 28 L. R. A. (N. S.) 1223.] In the case of Mumford v. Chicago, etc., Ry. Co., 128 Iowa, 685, l. c. 689, the court said in defining the latter phase of assumption of risk or actual assumption of .risk, that “the entire doctrine of waiver or assumption of risk is based upon knowledge, actual or implied, and consent, or the equivalent thereof; that is to say, if the injured party in the exercise of ordinary care should have known of the defect, he in law is held to have knowledge thereof. If with knowledge, actual or implied, he continues in his master’s employ without protest and promise of repair, he is held to have acquiesced in, consented to, and assumed the risk. But without this knowledge, actual or implied, there can be no waiver.”

Our Court of Appeals has ably and comprehensively defined, but without carefully distinguishing assumption of risk from so-called assumption of risk, in the case of Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, l. c. 307, thus: “The servant, upon entering the service of the master, impliedly assumes by his contract of hire, for the same compensation, the hazards which result from such risks as are ordinarily incident to the employment in which he engages, and in addition to these risks, ordinarily incident, etc., he also either by entering or continuing in the service and using, without complaint, defective machinery or appliances, or without complaint, continuing to labor in an unsafe or dangerous place, assumes the risks of such defective machinery or appliances or unsafe or dangerous place, provided he knew not only that the machinery or appliances were defective or the place unsafe, but also knew and understood and appreciated the dangers which were liable to result therefrom.”

Likewise it was said in the case of Duffey v. Consolidated Block Coal Co., 147 Iowa, l. c. 228, as follows: “The term ‘assumption of risk’ has come to be used in a twofold sense. It is often said that an employee assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of risk in its true sense has reference to those risks arising out of the negligence of the master when such negligence is known to the employee, and the danger therefrom appreciated by him. In the first form herein indicated a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in a legal sense. In the second form herein in-cheated it is an affirmative defense, and must be specifically pleaded as such.”

In the case of Martin v. Light Co., 131 Iowa, 724, l. c. 735, it was said: “The very common use of this phrase with reference to two widely different legal propositions is doubtless responsible for the confusion here existing. "When a servant enters the employment of a master he is presumed to have taken into consideration such danger and exposure to injury as is naturally incident to or connected with such service, even when the master has exercised all reasonable care for his servant’s safety. . . . This so-called ‘assumption of risk’ inheres in the contract of employment ór in the .relation of master and servant and need never be pleaded as a defense. A simple denial of the charge of negligence raises the question of this assumption sufficiently for all purposes of the case.”

In a very learned and comprehensive note appended to the case of Scheurer v. Banner Rubber Co., 28 L. R. A. (N. S.) 1221 and 1217, apposite to both points here under present discussion, it is said: “Assumption of risk, as applied to the ordinary risks of the service, is merely a rhetorical phrase used to connote the idea that the master is not an insurer against injuries resulting from dangers' which cannot be removed by the exercise of due care upon his part. In the second sense, assumption of risk has a vastly different significance; it implies negligence on the part of the master and a prima-facie liability, but it also implies a waiver of the effects of that negligence if it injures the servant. It is an affirmative defense to rebut that prima-facie liability due to proof of the master’s negligence. Assumption of risk in the first sense is not a distinct proposition of law, but merely a'mode of expression which adds nothing distinctive. In the second sense it is one of the fundamental principles of the law of master and servant, and is relied upon by the master to relieve himself from the primafacie liability arising from Ms negligence more than is any other defense which is open to him.”

And on said page 1217 preceding this the same learned author of tMs note, said: “But in many cases tMs becomes an important question as a matter of pleading. The rule is universal that the servant must allege and prove that his injury was not due to one of the ordinary risks of the service, or, in other words, that the master had been negligent. On the other hand, the weight of authority is to the effect that assumption of risk, as used with reference to risks created by the master’s negligence, is an affirmative defense and consequently must be pleaded and proven by the defendant. ’ ’

So much we have said here in no desire either to presently change the Missouri view of these questions or to unduly criticise it, but merely to explain our consideration of assumption of risk upon a general denial wMch, unless we note that by the use of this expression in this case, we refer to the ordinary hazards of a dangerous vocation absent negligence of the master, might appear both illogical and' erroneous. The facts of this case do not require any criticism of the Missouri rule, for the defendant offered no evidence whatever, relying upon its demurrer to that offered by the plaintiffs. If plaintiffs’ evidence discloses negligence, tMs judgment should of course be affirmed; if it does not we must reverse it.

Granting for the sake of argument (because what we say is not intended to be a close, careful statement of the rule), that the doing of this coupling by which deceased lost his life in an unusual way by the striking of one car with another in a manner unnecessarily hard, or harder than the circumstances and conditions presented reqmred — the dangerous position of deceased being kept in mind and known to the servants of defendant — constitutes such negligence as to be actionable; we are yet from this record unable to say that it was not an accident pure and simple (Young v. Mo. Pac. Ry., 93 Mo. App. l. c. 275); that it was not such an accident as occurs without the fault of anyone, the immediate cause of which is dark, and that it was not one incident to the dangerous and hazardous occupation of deceased, and one as to which he will be held to have assumed all risks thereto ordinarily incident. This doctrine of assumption of risk is almost universal. It has been applied many times in all jurisdictions wherever the common law prevails. It has been applied in this State in many cases and is a living part of the law. The circumstances under which the doctrine arises and to which it has been applied are so well settled that we need no more than refer to the cases wherein the matter is discussed. [Williams v. St. L. & S. F. Ry. Co., 119 Mo. l. c. 323; Jackson v. Railroad, 104 Mo. 448; Bradley v. Railroad, 138 Mo. 293; Beasley v. Linehan Transfer Co., 148 Mo. 413; Haviland v. K. C., P. & G. Ry. Co., 172 Mo. 106; Winkler v. St. Louis Basket & Box Co., 137 Mo. 394; Czernicke v. Ehrlich, 212 Mo. 386.]

We must take the law as we find it, not as we would wish it to be. The matter of compensation to the minor children of a father killed while engaged in hazardous employment for the benefit of the public 'at large, in an unfortunate case such as this, is a matter presenting crying equities to the Legislature, which body can alone afford relief.

We are unable to see anything under the facts of this case as we read them in the record and as we have tried to present them here, which distinguish it from the cases which we cite and which forbid recovery upon the doctrine of assumption of risk, and it therefore follows that this case should be reversed, and it is so ordered.

Walker, P. J., and Brown, J., concur.


author: BROWN, J.

text:
    CITY OF ST. LOUIS v. BELL PLACE REALTY COMPANY et al., Appellants.
    Division Two,
    June 23, 1914.
    1. HIGHWAY: Public: Preclusion of Boulevard. The word “public” adds nothing to the meaning of the word “highway.” The terms “public highway” are most general in their meaning, and include all kinds of thoroughfares in which the public has a right of way or passage; and when used in their proper sense they include all public traveled ways, whether in town or country. When used in an ordinance they are not sufficient to preclude the idea of a boulevard, or to justify a holding that only a street was meant.
    2. BOULEVARD: No Regulation of Traffic or Exclusion of Business Houses. A highway cannot, under the charter of St. Louis, be held to be a street rather than a boulevard simply because the ordinance establishing it makes no provision for regulating traffic thereon, or for excluding business houses, or for the planting of trees and shrubbery, or for a building line. Those things may be done, but the charter does not require every ordinance establishing a boulevard to make provision for them.
    3. -; Benefit Assessments. If the ordinance does not clearly authorize the establishment of a street, then the power to assess special taxes against the lands which do not front thereon to pay for same, does not exist.
    4. -: -: Doubtful Power to Levy. When a law which purports to levy or to authorize the levying of taxes is of doubtful meaning, such doubt must be resolved in favor of the taxpayer. and against the governmental authority attempting to levy them. The power of a municipality to take or tax private property must be conferred by unambiguous law or else that power cannot be exercised.
    5. —-: -: -: Void for Uncertainty. A municipal law may be constitutional and yet be void for uncertainty. To hold that an ordinance does not in unambiguous terms authorize the construction of a street does'not militate against the well-known rule that the constitutionality of a law is presumed until the contrary is shown.
    6. -: Considered a Street: Special Taxes. Where the city charter provides that the costs of establishing a boulevard are to be taxed against the lands fronting or bordering thereon, and that a substantial portion of the costs of establishing a street may be taxed against lands benefited by the improvement but not fronting or bordering therein, an ordinance which throughout names the “public highway” as a “boulevard” will not, as against the protest of an owner of land not bordering on the street, when sued on a special tax levied against his land, be held to authorize the establishment of a street — since the ordinance either authorizes the construction of a boulevard or is void for uncertainty.
    7. PUBLIC IMPROVEMENT: Notice to Landowners: Substituted Service. Statutes authorizing substituted service are always strictly construed. A notice as good as, or equivalent to, the one required by the statute will not do. The very notice which the statute requires must be given.
    8. -: Benefits Assessed By Court: Power of Taxation. Under the provisions of the charter of the city of St. Louis, the circuit court may acquire jurisdiction to render final judgment against a landowner for the alleged benefits assessed against his lands by commissioners and approved, without exceptions filed, by the court, and may issue execution therefor. Such a judgment is final, and ^ authorizes execution. [Distinguishing City of St. Louis v. Brinckwirth, 204 Mo. 280.]
    9. -: -: Notice to Landowner: Five Days: Due Process. Under the organic law a notice to persons whose lands are included in the benefit district that their property is or will be assessed to pay the costs of condemning lands for a public street, is imperative; and while a notice of five days is short, it is nevertheless due process of law, and is sufficient to give jurisdiction of the persons against whose lands benefits will be assessed, and to authorize the court to approve the report of the commissioners assessing benefits, where no exceptions thereto are filed. •
    10.-: -: Discontinuance: Renewal Within Ten Years. Holding invalid certain special tax bills, on the ground that the ordinance providing for the establishment of a boulevard did not authorize the establishment, of a street, is not equivalent to ■ a voluntary dismissal of the proceedings, and does not require the city to wait ten years, as in the case of its withdrawal or discontinuance of the proceedings, before instituting another suit. ’
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Reversed.

      Lewis S Bice and G. B. Skiriker for appellants.
    (1) The separate judgments for benefit assessments and order for issuance of executions thereon were void. St. Louis v. Brinckwirth, 204 Mo. 280’. This invalidity of these constituent elements of the judgment nullifies the whole record entry which is an entirety. State ex rel. v. Grill, 84 Mo. 248'. (2) Ordinance 24,085 either provides for a boulevard, in which case appellants’ lands cannot be assessed because not within the benefit district fixed by charter (Charter, sec. 1, art. 6); or is so ambiguous that the doubt as to its meaning must be resolved in favor of appellants’ exemption from assessment. Chillicothe v. Henry, 136 Mo. App. 474; St. Louis v. Brinckwirth, 204 Mo. 304; United States v. Wigglesworth, 2 Story, 373; Powers v. Barney, 5 Blatchford, 202; United States v. Watts, 1 Bond, 583; Land Co. v. Banbury, 106 Cal. 134; Brown v. Commonwealth, 98 Va. 366; Supervisors v. Tallant, 96 Va. 723; Smith v. Waters, 25 Ind. 397; Be Enston’s Will, 113 N. T. 174. The ordinance being void, the remedy is dismissal of the case. Kansas City v. Hyde, 196 Mo. 498. (3) Jurisdiction to assess appellants’ property never attached because the publication of notice required by Ordinance 878 was only for three days before the day of hearing was actually held, while the ordinance required five days. 1 Cooley on Taxation (3 Ed.), pp. 485-6; Re Bledsoe Hill, 200' Mo. 643; Leavitt v. Eastman, 77 Me. 117; Young v. Downey, 145 Mo. 256; Young v. Downey, 150 Mo. 328; Bird v. Norquist, 46 Minn. 318; Brownfield v. Dyer, 7 Bush. 505; Bank v. Bank, 89' N. Y. 397. (4) The notice given by the “acting and associate city counselor” does not comply with Ordinance 878, which requires the notice to be given by the “city counselor.” Stifel v. Cooperage Co., 38 Mo. App. 340; McQuiddy v. Vineyard, 60 Mo. App. 610.

      William E. Baird and Elmer E. Pearcy for respondent.
    (1) Special judgments for benefits assessed and order for issuance of execution thereon as a method of collecting the same are valid in a ease of this sort, if supported by proper charter and ordinance provisions. Kansas City v. Ward, 134 Mo. 180'; Kansas City v. Mastin, 169 Mo. 89; Kansas City v. Duncan, 135 Mo. 571; Eyssell v. St. Louis, 168 Mo. 607, overruled by St. Louis v. Brinckwirth, 204 Mo. 280; Kansas City v. Bacon, 147 Mo. 259, 157 Mio. 450; Kansas City v. Oil Co., 140 Mo. 458; State ex rel. v. Field, 99 Mo. 356; St. Louis v. Realty Co., 175 Mo. 63; St. Louis v. Ranken, 96 Mo. 497; Shaffner v. St. Louis, 31 Mo. 264; Charter of Kansas City (1909), sec. 17, art. 13; Charter of St. Louis, art. 6, secs. 5, 11; Revised Code of St. Louis (1907, Woerner), secs. 877, 878, 879, 880, 881, and 1373; Revised Code of St. Louis, 1912 (Rombauer), secs. 1068, 1069, 1070', 1071, 1072, and sec. 1833:; R. S. 1909, secs.-8702, 8735, 8738 and 8739; Stid v. Railroad, 211 Mo. 411. (2) The public highway authorized to be condemned by this action is not a boulevard in the sense that that term is used in section 1 of article 6 of the charter, and benefits, therefore, could be assessed against property not fronting upon the highway to be opened. Elliott on Roads and Streets (2 Ed.), secs. 1 and 3; Dillon on Municipal Corporations (5 Ed.), secs. 1121, 695; Park Comrs. v. Farber, 171 111. 160; Howe v. Lowell, 171 Mass. 575; St. Louis v. Handlan, 242 Mo. 88; St. Louis v. Hill, 116 Mo. 527; St. Louis v. Dorr, 145 Mo. 466. (a) The ordinance does not impose any limitation or restriction upon the property fronting upon the highway to be opened, nor upon the use of the highway; and these restrictions are the reasons for limiting the benefit district, (b)A boulevard is not a public highway in the sense that it is open to the public for all the uses known to the law for a highway. It is a public highway only in a restricted and limited sense, certain rights of user to the public being denied. If these limitations and restrictions do not appear in the ordinance, they, cannot be condemned. St. Louis v. Handlan, 242 Mo. 88. (c) The mere fact that for convenience in terminology the street to be opened in this case was called a boulevard does not make it such in fact, (d) In order to limit the taxing district, in accordance with section 1 of article 6, for the opening of a boulevard, restrictions must be imposed which are of advantage to the property holders fronting upon the boulevard to be opened, (e) If at any later date, the city desires to make a boulevard in fact out of this highway, it will be necessary to bring a condemnation suit to change this street into a boulevard.' Sec! 1, art. 6', Charter. (3) The notice given by Mr. Charles, who was acting city counselor at the time, as shown by the record, was proper. The commissioners fixed the time of- their first meeting and the boundaries of the benefit district. He simply’ put the notice in proper legal form and caused it to be published. Ordinance 878 (Municipal Code, 1907); Throop on Public Officers, sec. 570', p. 539.
   BROWN, J.

This is an action to condemn lands for a street in the city of St. Louis, and to assess benefits against other lands to cover the" damages arising from such condemnation.

The appellants own lands against which benefits have been assessed, but their lands do not front or border upon the proposed street. Appellants did not enter their appearance in the action wherein alleged benefits were assessed against their lands until final judgment had been entered against them. Within four days after the entry of judgment they filed a motion to arrest said judgment, because:

(1) The ordinance of the city of St. Lonis upon which this snit is based directs the establishment of a boulevard, whereas the suit is for the establishment of a street.

(2) Five days’ notice was not given to the appellants of the time and place fixed by the commissioners for hearing landowners and assessing benefits against their property.

(3) The notice to landowners of the time and place set for assessing benefits was issued by the acting and associate city counselor, instead of the city counselor as required by the ordinance of said city.

(4) ' The court was without jurisdiction to enter the judgment assessing benefits.

For an understanding of the law upon which this cause must be decided, it will be necessary to examine some of the provisions of the charter of St. Louis. It is conceded by all of the parties that said charter authorizes the Municipal Assembly, by ordinance, to cause to be established both boulevards and streets; also that the cost of establishing boulevards must be taxed against the lands fronting or bordering on said boulevard, while a substantial portion of the cost of establishing streets may be assessed against lands which are benefited by the construction of such streets, but which do not front or border thereon. The ordinance upon which this proceeding is based designates the highway sought to be established as a “boulevard.” The body of the petition follows the language of the ordinance and does not use the word street, or indicate that a street is to be established, except by the prayer thereof, wherein it demands the appointment of commissioners to ascertain what lands will be benefited by the proposed highway, and to assess benefits against such lands.

As the cause turns upon the sufficiency of the petition and the ordinance recited therein, we will insert the same here. Omitting style of case, the petition reads as follows:

“That on or about the 21st day of December, 1908, an ordinance of the city of St. Louis, State of Missouri, numbered 24,085, went into force and effect, having been duly enacted by the Municipal Assembly .of said city, upon the recommendation of the Board of Public Improvements of said city, in writing, and approved by the Mayor of said city, on December. 11, 1908-, the purpose whereof is to establish and open Kingsbury boulevard from De Baliviere avenue eastwardly for a distance of about 630 feet, as a public highway 100 feet wide, the lines thereof to run as follows: From De Baliviere avenue .eastwardly to the prolongation southward of the west line of property now or formerly owned by Henry H. Wellman, in United States survey No. 378, a distance of about 630 feet; the center line to run 50 feet north of and parallel to the north line of property now or formerly owned by Samuel, Margaret P. and Sarah E. Simmons, in city block 3875, recorded in deed book 1612, page 1, all in the city of St. Louis, State of Missouri, pursuant to the provisions of ordinance of the city of St. Louis, State of Missouri, numbered 24085, which ordinance is in words and figures as follows:
“ ‘An ordinance to establish and open Kingsbury boulevard from De Baliviere avenue eastwardly for a distance of about six hundred and thirty feet.
“ ‘Be it ordained by the Municipal Assembly of the city of St. Louis as follows:
“ ‘Section One — Kingsbury boulevard from De Baliviere avenue eastwardly to the prolongation southward of the west line of property now or formerly owned by Henry H. Wellman, in United States survey number 378, a distance of about six hundred and thirty feet, is hereby established as a public highway one-hundred feet wide, the center line thereof to run fifty feet north of and parallel to the north line of property now or formerly owned by Samnel, Margaret P. and Sarah E. Simmons in city block number 3875 (recorded in deed book 1612, page one).
“ ‘Section Two — The city counselor is hereby authorized and instructed to cause said Kingsbury boulevard to be opened according to law.
“ ‘Approved Dec. 11, 1908.’
“That for the purpose of establishing and opening Kingsbury boulevard as a public highway, as thus ordained, it is necessary to appropriate, condemn and take or damage private property for public use as such public highway; that the defendants named in the caption to this petition are the owners respectively of the several lots or parcels of land included in the property hereinbefore described and sought to be condemned, appropriated, taken or damaged for said boulevard purposes, or claim some interest therein.”

Then follows a prayer that three commissioners be appointed to assess damages in favor of persons whose lands will be taken or injured by the aforesaid “public highway,” and to assess benefits against such lands as in the opinion of the commissioners will be benefited by the proposed Kingsbury boulevard; and that judgment be entered in conformity with the report of such commissioners when such report shall have been filed. The word street is not found in the entire petition, although respondent contends that the establishment of a street was the purpose of the suit.

I. Is the ordinance hereinbefore set out as a part of the petition sufficient to authorize the opening of a street, and the assessment of benefits therefor? The respondent asserts that the words “public highway” in the ordinance in judgment preclude the idea of a boulevard —that a boulevard is not a public highway, because the travel thereon may be limited or restricted. The charter and ordinances of St. Lonis do not contain a definition of the words “public highway,” so far as we have been able to ascertain; and we are unable to concur in respondent’s contention. The phrase “public highway,” as used in this ordinance is a mere tautological expression — the word “public” adds nothing to the meaning of the word “highway.” [Walton v. Railroad, 67 Mo. 56.] “The terms ‘public highway’ are most general in their meaning, and include all kinds of thoroughfares in which the public have a right of way or passage.” [Parsons v. City and County of San Francisco, 23 Cal. 462, l. c. 463.] When used in its proper sense it includes all public traveled ways, whether in county or town. [Harding v. Medway, 51 Mass. 465, l. c. 469.] The word “highway” sometimes embraces a private road. [Walton v. Railroad, 67 Mo. 56; Jenkins v. Railroad, 27 Mo. App. 578.]

If a vacant piece of ground graded and prepared for travel is only open to use by certain designated individuals — for instance, by persons owning property adjoining' or fronting on such vacant ground — it would not be a highway; but if open to all travelers of a certain class, such, for instance, as all footmen, all horsemen or all persons with vehicles, it would be none the less a highway because one or more of such classes of travelers were excluded therefrom.

But respondent contends that the ordinance in judgment must be construed as authorizing only the establishment of a street, because it makes no provision for regulating traffic thereon, no provision for excluding business houses, no provision respecting a building line, and no provision for the planting of trees or shrubbery, all of which are claimed to be necessary incidents of a boulevard.

This contention seeks a construction of that part of the charter which authorizes the establishment of boulevards, which, in so far as it pertains to the question in issue, reads as follows:

“The Municipal Assembly may, by ordinance recommended by the Board of Public Improvements, establish and open boulevards, or change existing streets into boulevards, and fix the width thereof, and the manner of laying out and improving the same; and may regulate the traffic thereon, and may exclude heavy driving thereon or any kind of vehicle therefrom, and may exclude and prohibit the erection or establishment or maintenance of any business house, or the carrying on of any business vocation on the property fronting on such boulevard, and may establish a building line to which all buildings, fences, or other structures thereon shall conform. And may provide for grading, improving, constructing, reconstructing, maintaining, cleaning, sprinkling, the planting of trees, shrubbery and other things of that description and nature thereon, and the entire cost connected with all of said work on such boulevards shall be levied, assessed and collected as a special tax on the property fronting or bordering on such boulevard in the proportion that the linear feet of each lot fronting or bordering on the boulevard bears to the total number of linear feet of all property fronting or bordering on the same. ’ ’ [Revised Code of St. Louis, 1912 (Rombauer), p. 352. All italics are ours.]

A mere glance at the quoted provision of respondent’s charter demonstrates that, while many things may be required in constructing a boulevard which would tend to make it physically unlike a street, those requirements are only directory, and may also be omitted, if the Municipal Assembly deems it wise to do so. The true purpose of laws is usually ascertained by their contents, not by the thing they do not contain.

In this case we have an ordinance which directs the establishment of Kingsbury boulevard, and a petition which repeats the word “boulevard” three times, but does not once use the word “street;” yet under this ordinance and petition a judgment has been entered for the establishment of a street. Can such a judgment stand?

The benefits which have been assessed against the property of appellants are nothing more nor less than special taxes levied under the alleged authority of the ordinance and charter provisions hereinbefore quoted. If the ordinance does not clearly authorize the establishment of a street, then the power to assess said special taxes against the lands of appellants does not exist, for it is a well-settled rule that when a law which purports to levy or authorize the levying of taxes is of doubtful meaning, such doubt must be resolved in favor of the taxpayer and against the party or sovereignty attempting to levy such tax. This rule has been applied to import duties imposed by the Government: United States v. Wigglesworth, 2 Story, 369, l. c. 373; Powers v. Barney, 5 Blatchford, 202; United States v. Watts, 1 Bond, 580, l. c. 583; to license taxes: Brown v. Commonwealth, 98 Va. 366; to taxes levied by a State: Supervisors v. Tallant, 96 Va. 723; to a law levying an internal revenue tax: Smith v. Waters, 25 Ind. 397; to an inheritance tax: Matter of Enston, 113 N. Y. 174. Such rule is undoubtedly applicable to laws and ordinances purporting to authorize the assessment of special taxes or benefits for public improvements.

The general rule is that the power of a municipality to take or place a burden upon the property of a citizen must be conferred by an unambiguous statute before that power can be exercised — -if there be a fair and reasonable doubt as to the existence of such power such doubt must be resolved in favor of the taxpayer and against the municipality. [Chillicothe ex rel. v. Henry, 136 Mo. App. 468, l. c. 474; City of St. Louis v. Telephone Co., 96 Mo. 623; City of St. Louis v. Kaime & Brother Real Estate Co., 180 Mo. 309, l. c. 322; City of St. Louis v. King, 226 Mo. 334, l. c. 345; and City of St. Louis v. Dreisoerner, 243 Mo. 217, l. c. 223.]

This rule, applied in determining what a law means, or what power it grants, does not militate against another well-known rule that the constitutionality of a law is presumed until the contrary is shown. A municipal law may he constitutional and yet void for uncertainty.

While there can he no doubt that the city of St. Louis, under its charter, possesses the power to open streets and assess benefits upon lands adjacent thereto to defray the expense of establishing such streets, the issue confronting us is: Has the city enacted an ordinance sufficient for that purpose? The ordinance does ordain that a “public highway” shall be established at a stated place, but, as we have seen, the words “public highway” embrace a boulevard, as well as a street. This leaves a substantial doubt as to whether the Municipal Assembly intended, by the ordinance hereinbefore set out, to establish a street— this doubt is augmented by the use of the word “boulevard” in the ordinance itself, so that we are forced to the conclusion that the ordinance did not, either expressly or by necessary implication, empower the city to establish a street and assess benefits against the lands of appellants to defray the expense thereof; consequently, the appellants ’ motion to arrest the judgment should have been sustained, and the failure to do so constituted reversible error.

The petition contains a plat showing that at or near the eastern terminus of the proposed highway is a private place misnamed “Kingsbury boulevard,” and respondent contends that the thoroughfare sought to be established by this action is an extension of said misnamed boulevard. That private place from which the public is or may be excluded, may have been the cause of designating the intended thoroughfare as a boulevard, but we are unable to see how this helps the respondent. The ordinance as' enacted either authorizes the construction of a boulevard, or is void for uncertainty. It is unnecessary to determine whether the ordinance is sufficient to warrant the establishment of a boulevard in fact, because respondent concedes that the purpose of this action is to establish a street, and further concedes that the establishment of a boulevard would not warrant the assessment of benefits for which judgment was given in this case.

II. Whether the notice to landowners of the time and place fixed by the commissioners to hear objections to the awarding of damages and assessment of benefits was published for a sufficient length of time before said hearings were had; whether said notice was issued by the proper officer, and whether the appellants are in a position to raise that issue in this appeal, we need not decide, because a different notice may be given in the next action of this character which comes before us; but we shall take the liberty to admonish respondent of the oft-repeated rule that statutes authorizing substituted service are always strictly construed. A notice as good as, or equivalent to, the one required by the statutes will not do. The very notice which the law prescribes must be given. [Young v. Downey, 150 Mo. 317, l. c. 328.]

III. In view of the fact that other proceedings may be instituted to establish streets in St. Louis, it *s aPProPr*a^e f°r 118 pass upon the jurisdictional questions tendered by appellants, who assert that, under the rule of law announced by this court in the case of City of St. Louis v. Brinckwirth, 204 Mo. 280, the circuit court could not acquire jurisdiction to render final judgment against defendants for the alleged benefits assessed against their lands, and that execution cannot issue for such benefits. The Brinckwirth case is quite unlike the one now before us.

Section 2, article 6, of the charter of St. Louis, provides that lands may be condemned for the construction of streets by suits in the circuit court against the owners of lands thus sought to be taken or injured. [Revised Code of St. Louis, 1912 (Rombauer), p. 356.]

Section 3, article 6, of said charter also provides that the defendants in said action shall be served with process.

Section 4, article 6, further provides for the appointment, by the circuit court, of three commissioners with power to award damages for property taken or injured.

Section 5, article 6, of said charter authorizes the commissioners before named to fix the boundaries of a district within which all lands shall be assessed with benefits to pay the damages awarded to persons whose lands will be taken or injured for the construction of the proposed street. Said section also provides that said commissioners shall file in the circuit court by which they were appointed a report showing the benefits assessed against lands which in their opinion will be benefited by the opening of such street, and that the amounts so assessed shall, “when the report of the commissioners shall be confirmed by the court, as hereinafter provided, be prima-facie evidence of the liability of the property charged therewith to the extent and amount therein specified, and shall be and remain until paid, a lien from the date of final judgment of the circuit court on the property so charged, and shall be collected as provided by ordinance.” [Revised Code of St. Louis, 1912 (Rombauer), p. 359.]

Said charter seems to make no provision for notifying persons whose lands are included in the benefit district that their property has been or will be assessed to pay the costs for condemning lands for streets, but under our organic law it is clear that sucb a notice is imperative. [George v. Middough, 62 Mo. 549; State ex rel. v. Walbridge, 119 Mo. 383, l. c. 395; State ex rel. v. Holtcamp, 245 Mo. 655, l. c. 670.]

The aforesaid charter provides that persons against whose lands benefits have been assessed may except to the report of the commissioners and thereby secure in such circuit court á review of such assessments.

By section 1069 of the Ordinances of St. Louis, 1912, (Bombauer, p. 759), it is made the duty of the city counselor to give five days’ notice by publication of the time and place where the commissioners before mentioned will sit to hear landowners whose property will be affected by the assessment of benefits, as designated in the charter, which notice must, moreover, specify the boundaries of the district or territory within which such benefits will be assessed.

While five days is a short time in which to give notice of a proceeding to fix liens on real estate, we are convinced that such notice is due process of law, and is sufficient to give jurisdiction of the persons against whose lands benefits will be assessed, and to authorize the circuit court to approve the report of the commissioners if no exceptions thereto be filed. [State ex rel. Coleman v. Blair, 245 Mo. 680, l. c. 695-6, and cases there cited.]

This class of notice was expressly held to confer jurisdiction in cases of this character in the able opinion by Graves, J., in St. Louis v. Calhoun, 222 Mo. 44, l. c. 53. This opinion was written by the same learned jurist who wrote the Brinckwirth case, and settles, adversely to the contention of appellants, the sufficiency of the five days’ notice required by the ordinance of St. Louis.

Thus finding that the publication of the five days’ notice prescribed by section 1069, Ordinances of St. Louis, would give the commissioners jurisdiction to assess benefits and confer upon the circuit court jurisdiction to approve their report and render judgment thereon, it follows that such judgment when entered is final,and not subject to collateral attack.

The aforesaid charter specifically provides that the circuit court upon the filing of the report of the commissioners, and the hearing of exceptions thereto, if any be filed, may render final judgment for such benefits. The specific power granted by the charter to the circuit court to enter final judgments for benefits implies the power to make such benefits effective by the issue of execution thereon, there being no constitutional inhibition against the issue of such execution, so that the contention of appellants that no final judgment can be rendered in this class of cases, and that no execution can be issued thereon, is entirely untenable.

However, section 5, article 6, of the aforesaid charter, provides that the judgment for benefits may be collected as provided by ordinance. Under such a charter provision it seems that it would have been possible for the Municipal Assembly to have prohibited the collection, by execution, of benefits for opening streets, but instead of doing so it has enacted an ordinance which contains the following provisions:

“Section 880. The benefits against property as adjudged by the final action of said circuit court in such condemnation proceeding shall be paid into the city treasury; such benefits if paid within sixty days after the ordinance appropriating the money to pay the damages assessed by said final action shall take effect may be paid without interest, but if not paid within sixty days, interest at the rate of six per cent per annum from the taking effect of such ordinance shall be added to the amount of such judgment. If the benefits assessed are not paid or satisfied as provided by charter or ordinance, they shall be collected by either execution or suit upon snch final judgment confirming the same. ’ ’

Under the charter provisions and ordinance before quoted there exists no substantial ground for appellants’ contention that final judgment cannot be rendered for benefits in this class of cases, nor is there any ground for contending that execution cannot issue on such a judgment.

In the recent case of State ex rel. v. Seehorn, Judge, 246 Mo. 568, the power of the State to delegate to a municipal assembly through its charter the right to enact ordinances regulating the procedure in suits respecting municipal business was approved.

Section 9, article 6', of the Charter of St. Louis (Revised Code of St. Louis, 1912, Rombauer, p. 362) provides that when the city shall “withdraw” (discontinue) proceedings instituted to open streets, such proceedings shall not again be instituted for a period of ten years. While the present action must result in a failure to establish a street, such failure is not equivalent to a voluntary dismissal of the proceedings.

Therefore, for the reasons designated in the first paragraph of this opinion, the judgment of the circuit court in this cause will be reversed, without prejudice to respondent to institute another suit without waiting ten years, if it be so advised. It is so ordered.

Walker, P. J., and Paris, J., concur.