text:
    ANDREW J. THOMPSON v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division One,
    February 20, 1917.
    1. NEW TRIAL: Change in Judge. If after a motion for a new trial, charging that the verdict is against the weight of the evidence, is filed, the judge who tried the case is succeeded by another, his successor has power to overrule the motion.
    2. NEGLIGENCE: Methods of Locking Switches: Conflicting Evidence, Where the evidence as to the custom of railroads in locking switches is conflicting, there being no express rule on the subject, it will not be held as a matter of law that the method employed by defendant was that adopted and practiced by railroads generally, but the question is one of fact for the jury to determine.
    3. -: Looking for Lever in Proper Notch: Contributory Negligence. The switchman’s testimony that as the car on which he was riding passed he looked at the switch points and they were in such position against the rails as to show the switch was set for the side track, and that they could not have been in the position in which they were'unless the lever was down in the notch in the switch-stand, is evidence that the switch was set for the side track and that the lever was in the proper notch as the car on which he was riding approached the switch; and it was for the jury to determine whether, in failing to see and know that the lever was set in the proper notch, he was guilty of negligence contributing to the derailment caused by'the car entering upon the wrong track at the switch.
    4. -: Riding on Main-Line Side of Train. Under the circumstances of this case, whether it was contributory negligence for the switchman, riding on a car about to pick up another on a side track, to place himself upon the side of the car next to the main line, on which the train was standing, with which his car collided when the switch broke and it entered upon the main line, was a question for the jury.
    5. -; — : No Switch Lock. Likewise, under the circumstances, whether the railroad company, in view of the evidence tending to prove the likelihood of the lever jolting out of the notch at the switch-stand, was negligent in maintaining the switch without a lock, and in running its cars over it at a rate of ten or twelve miles per hour, was a question for the jury.
    6. -: Instruction: Absolute Safety. An instruction which required the jury to find that the switch-stand where the car left the track was negligently maintained without a lock and that such switch-stand without a lock was not a reasonably safe place —if another instruction defined negligence as “a want of ordinary care” and then properly defined those words — did not require a verdict for the injured switchman unless the switch was absolutely safe.
    7. -: -: No Requirement of Conformity to Custom: Non-Direction. Sufficient proof of usage in the matter of locking a switch and of conformity to custom, may be said to rebut the idea of negligence in a proper case; and an instruction which excludes the idea that the jury should consider the evidence tending to show the railroad company’s practice in leaving the switch unlocked conformed to the usage of well managed lines, would be erroneous; but an instruction which contains no particular direction, but does require a finding of negligence, does not exclude the consideration of such evidence, but amounts only to non-direction, which may be supplied or covered by instructions for defendant.
    8. -: -: Assumption of Risks. If the rules of the railroad company pertain solely to main-line switches and do not require the switch of a cross-over track to be locked, the switchman does not assume the risk of injury resulting from a failure to lock the cross-over switch.

      Appeal from Mississippi Circuit Court. — Hon. G. B. Faris, Judge.
    Affirmed.

      W. F. Evans and W. J. Orr for appellant; Boone & Lee, of counsel.
    (1) There was no proof of any breach of duty on the part of the company, because the plaintiff’s evidence shows that the methods complained of were those adopted and practiced by railroads generally. Chismer v. Tel. Co., 194 Mo. 189; Brand v. Car Co., 213 Mo. 698; Beck-man v. Brewing Co., 98 Mo. App. 555; Railroad v. Walker, 172 Fed. 351; Tuttle v. Railroad, 122 U. S. 189. (2) The master is not required to take precautions against the consequences of the possible negligence of Ms own employees, nor is he required to anticipate such negligence, but may conduct his business upon the assumption that his servants will exercise the proper degree of care, and when he furnishes appliances and places which are reasonably safe as intended to be used when due care is exercised by those using them he has- done his duty. Gfrattis v. Railroad, 153 Mo. 380; Bridge Co. v. Seeds, 144 Fed. 609; Railroad v. Walker, 172 Fed. 351; Pollock on Torts, 36. (3) Instruction “A” is erroneous m that it permits the jury to determine the law instead of the facts. It permits the jury to say what constitutes actionable negligence. And it nowhere furnishes a legal test as to actionable negligence on the facts in the case. (4) It is also erroneous in that it permits the jury to substitute conditions for negligence. It permits the jury to say whether the switch without a lock was not reasonably safe “under the circumstances,” but does not tell them what circumstances may be legally considered, and absolutely ignores the “ordinary usage of the business” as the test. Authorities under point 1; Bennett v. Lumber Co., 116 Mo. App. 699; Dunn v. Nicholson, 117 Mo. 374. (5) The defendant has never had the benefit of the right accorded all litigants to have the weight of the evidence passed upon by the trial court, because he resigned before the motion for a new trial was passed upon. Mill Co. v. Sngg, 142 Mo. 368; McCarty v. Transit Co., 192 Mo. 396. (6) The weight and preponderance of the evidence being clearly against the verdict, defendant is deprived of the right guaranteed to all litigants to have this question determined by the only person permitted to do so, by reason of a circumstance over which it had no control, because no other court under the law is vested with the discretion to grant a new trial except the judge who tried the case. And defendant has never had the benefit of that discretion.in this case. (7) Plaintiff’s instruction “A” attempts to cover the entire case and cannot be aided by correct instructions given for the defendant in conflict with it. Clark v. Hammerle, 27 Mo. 55;- Budd v. Hoffheimer, 52 Mo. 297; State v. Lentz, 184 Mo. 223; Barth v. Loy, 82 Mo. App. 601; Glasscock v. Swofford Bros. Co., 105 Mo. App. 365.

      David W. Hill and Ernest A. Green for respondent; Russell & Joslyn, of counsel.
    (1) The trial court did not err in overruling the defendant’s demurrer to the evidence. There was such a showing of negligence on the part of the defendant as required the submission of the case to a jury. Withers v. Railroad, 151 Mo. App. 488; St. Clair v. Railroad, 122 Mo. App. 519; Kremer v. Eagle Mfg. Co., 120 Mo. App. 247; Lee v. Railroad, 112 Mo. App. 372; Dutro v. St. Ry. Co., Ill Mo. App. 258; Charlton v. Railroad, 200 Mo. 413; Koerner v. St. Louis Car Co., 209 Mo. 157; Berry v. Railroad, 214 Mo. 593. (2) Instruction “A” given to the jury at the request of the plaintiff was a correct statement of the law, and required the jury to find every essential element in the plaintiff’s case before it authorized a verdict for the plaintiff. Crane v. Railroad, 87 Mo. 595; Campbell v. Stave & Lbr. Co.,. 146 Mo. App. 689; Johnson v. Railroad, 96 Mo. 340; Deschner v. Railroad, 200 Mo. 310. (3) Instruction “A” is not in conflict with any correct instruction given to the jury at the request of the defendant. Bliesner v. Distilling Co., 174 Mo. App. 139; Craig v. United Rys. Co., 175 Mo. App. 616; Farmer v. Railway Co., 178 Mo.'App. 579; Johnson v. Traction Co., 176 Mo. App. 174; Spaulding v. Lumber & Mining Co., 183 Mo. App. 656; Budd v. Hoffheimer, 52 Mo. 303; Wood v. Kelly, 82 Mo. App. 601; Pendegrass v. St. Louis & S. F. Ry. Co., 179 Mo. App. 517; Sager v. ¡Mining Co., 178 Mo. App. 503. (4) Judge Finch, .the successor in office to Judge Faris, who tried the case, was expressly authorized by law to pass upon the motion for a -new trial. There was- no error in his so doing, even if this assignment of error could be reviewed. Sec. 2032, R. S. 1909; State ex rel. v. Perkins, 139 Mo. 117; Feh hauer v. City, 178 Mo. 635; Bailey v. Coe, 106 Mo. App. 653; Glavis v. Wood, 78 Mo. App. 35; Richardson v. Mercantile Assn., 156 Mo. 407. (5) Defendant’s motion for a new trial does not assign as a ground thereof that the verdict was ag’ainst the weight of the evidence. Consequently, . that matter could not have been reviewed by the trial court. But in any event, the verdict is fully supported -by the great weight of the evidence. Kansas City v. Forsee, 168 Mo. App. 213; Bohn v. Lucks, 165 Mo. App. 701; Compressed Air Co. v. Fulton, 166 Mo. App. 11; Loftus v. St. Ry. Co., 220 Mo. 479; Honea v. Railroad, 245 Mo. 621.
   BLAIR, J.

— Respondent was a brakeman employed by appellant and was injured in a derailment. He recovered judgment in the Mississippi Circuit Court, and this appeal followed.

Appellant’s tracks at Delta run east and west. ‘ On the north side of the main line is a side track about one-third of a mile in length and a little nearer the main line track than in the usual construction. At each end it connects with the main line by switches provided with locks. Nearly two hundred feet from the west end of this sidetrack is what is called a cross-over or intermediate track. It leads from the main line to the side track. Its west end connects with the side track and its east end with the main line. At the time respondent was injured an east-bound train on which he was acting as brakeman had stopped at Delta. One car near the rear of the train was “'spotted” at the station, which was just west of the west end of the side track. The train, nearly as long as the side track, extended east along the main line to a point several hundred feet beyond the east or main line switch of the cross-over. An order was received to “pick up” a car standing upon the side track, and respondent uncoupled the engine and proceeded with it to the switch at the' east end of the side track. This switch he unlocked and opened, and the engine moved westward upon the side track. On this track there were three bunk cars, left for employees, and farther west was the car sought. There is evidence this car was standing west of the side track connection with the cross-over, and other evidence that it stood about opposite the side track cross-over switch. The engine backed westward along the side track and was coupled to the first of the bunk cars and then propelled the three westward until the car sought was reached, respondent riding upon the south side of the bunk car fartherest from the engine and upon the side next to the main line. The side track cross-over switch-stand was on the north side of the side track. The rear bunk car was coupled to the ear ordered to be “picked up” and the coupling made by impact. Respondent testified the first attempt failed, and that the car was driven west “into the main line train.” There was evidence tending to show this ear was, when the coupling was finally made, considerably over a hundred feet west of the cross-over switch-stand on the side track. There was evidence to the contrary. The engine, drawing the four cars, then started eastward for the main line, and respondent began to climb the ladder upon the south side of the rear car, that being on the side next the main line and nearest the cars in the train standing on the main - line track. When the ear on which respondent was riding reached the cross-over switch, instead of continuing^ along the side track,' along which the engine was proceeding, it started down the cross-over, and struck a car in the train on the main line, catching respondent between the tops of the colliding cars and severely injuring him. There was evidence tending to show that the engine hacked some of the cars past the switch connecting the crossover track with the side track, and that that switch was uninjured, hut that it could not have been so had cars been backed over it while it was set for the cross-over track; also to show that some of the cars had, after the engine started east, passed over the switch points and continued eastwardly upon the side track; that, at the time the car on which respondent was riding reached the cross-over switch it was moving ten or twelve miles per hour; there was evidence that unless the lever used to turn the cross-over switch was in the notch provided to hold it, the jolting of cars passing over the switch might throw the switch, and evidence that the lever on this particular switch would be jolted out of such notch by cars passing over the switch; that this was its condition after the injury to respondent, and that the switch was then in the condition it was in at the time of the accident and in which it had been long prior thereto. It was shown the switch-stand had a place for a lock and that a lock could have been supplied for forty cents, and would, if in use and in place, have prevented the injury; but that such lock was not in use and had never been used on that switch. There was in evidence a company rule requiring main line switches to be locked, but no rule was offered which had any reference to cross-over switches at the end connecting with a side track. There was evidence both ways on the question whether well managed railroads customarily maintained locks on such switches.

The switch-stand targets were rusty and their colors nearly obliterated, but differences in shape were designed to indicate whether the switch was set for the cross-over or the side track. Respondent testified he rode upon the side of the car nest the main line, because the engineer was upon the right hand side of the engine and signals could be given him directly only on that side; that this was in conformity to the rule or, at least, regular custom, hi backing, when the track was so the engine could be «een from the right hand side of the car; he said he did uot look at the switch, as the engine backed down, but. did look, as was kis duty, at the switch points and they were lined for the side track; and that they could not have been as he saw they were unless the switch lever was in the notch.

Respondent’s position is that the switch was thrown by the jolting of the cars ahead of the one he was riding on and that it resulted from the negligent speed of the train and the absence of a lock on the switch; Appellant contends there was no negligence; that respondent assumed the risk, and that his injury resulted from his contributory negligence. Other facts may be stated in the course of the opinion.

I. This case was tried before Judge. C. B. Paris, now of this court. While the motion for new trial was pending, he was succeeded by Judge Pinch. Judge Pinch overruled the motion. Appellant now urges he had no power to do so. The substance of the argument advanced is that the motion assailed the verdict as against the weight of the evidence; that this question called for an exercisel of discretion by the judge, and that the trial judge, alone, was in position to exercise such discretion in ruling upon it. Both divisions of this court have held the contrary. [State ex rel. v. Perkins, 139 Mo. l. c. 117, 118; Fehlhauer v. St. Louis, 178 Mo. l. c. 653; Richardson v. Agr. & Mec. Assn., 156 Mo. l. c. 412, 413; also Glaves v. Wood, 78 Mo. App. 351.] Appellant relies on St. Francis Mill Co. v. Sugg, 142 Mo. 364. That case applied the rule in force prior to the amendment of the statute discussed in State ex rel. v. Perkins, supra. The motion considered was one filed prior to the amendment. The third paragraph of the syllabus indicates the ruling actually made. Defendant’s right, in that case, under the rule in force, accrued prior to the amendment. It was not a mere matter of procedure. It was then a right to a new trial. That case is no authority in this.

II. Appellant contends the case should not have gone to the jury.

(a) The first ground advanced is “that the methods complained of were those adopted and practiced by railroads generally.” The record does not show this to be true as a matter of law. When such usage is relied on it must be proved. The evidence in this case on Ibis issue was conflicting, and it was for the jury to determine the fact. [Yost v. Rairoad, 245 Mo. l. c. 244, 245.] In Trebbe v. American Steel Foundries, 185 S. W. l. c. 182, this court, considering this' question in connection with Chrismer v. Bell Tel. Co., 194 Mo. l. c. 208, 209 (a case upon which appellant relies), said: “Neither that case nor any cited in it, however, is authority for any rule that a court can assume the existence of a common usage, in the face of a conflict of evidence on the question running through all the evidence offered in that connection.” A question of fact as to whether an asserted common usage actually existed is to be submitted to the jury like any other.

(b) Another ground. upon which it is urged the casé should have been taken from the jury is this: there was evidence tending to show the accident might have happened as it did if the switch lever on the side track cross-over switch-stand had not been placed in the notch prepared in the stand to hold it and was not in the notch when the cars were moving over the switch; that this condition would have rendered the switch so insecure that when the engine started west the switch might have been jolted around or. the switch points pressed over by the flanges on the wheels, so that the switch would have been thus set for the cross-over and the accident would have resulted; that it was respondent’s duty to see that the switch lever was set in the proper notch and that he did not do so; therefore, that there was a showing of a probable cause for the injury for which respondent’s contributory negligence was responsible and, it is argued, we must apply the rule that when there is evidence tending to prove two causes of injury, for one of which defendant is liable and for one of which it is not, plaintiff must fail in the absence of a showing that his injury came from the former; and that this rule requires judgment for appellant in this case.

Respondent does admit he did not look at the lever, hut he testifies, in substance, he looked at the switch points and they were in such position against the rails as to show the switch was set for the side track, and that they could not have been in the position they were in unless the lever was down in the notch. On cross-examination he gave his reasons. This was evidence the switch was set for the side track respondent wks using, and that the lever was in the proper notch as the ear on which respondent was riding approached the switch. There was evidence the switch was not set for the crossover, as well as evidence to the contrary. There was evidence some of the cars were backed over the switch in order to reach the car to be picked up; that these cars would have broken the switch had they been backed over it while it was set for the cross-over; and that the switch was not broken. It was for the jury to say whether they would believe respondent’s testimony as to the lever being in the notch when the switch points were in the position he testified they were and it was for them to determine, under proper instructions, whether the’ cause of injury was proved for which appellant was responsible, i. e. whether the preponderance of the evidence pointed to such cause.

(c) Whether, in the circumstances, it was contributory negligence for respondent to place himself upon the side of the car next the main line on which the train was standing was a question for the jury, at most.

(d) In the circumstances it was a question for the jury whether appellant was negligent, in view of the evidence tending to prove the likelihood of the lever jolting out of the notch, in maintaining the switch without a lock and running its cars over it at ten or 'twelve miles per hour.

(e') It is quite clear the evidence did not establish as a matter of law that respondent assumed the risk of using the switch.

III. It is most earnestly contended instruction “A,” given for respondent, was erroneous. That instruction reads thus:

“The court instructs the jury that if you believe and find from the evidence in this cause that on, and for some time prior to, the 6th day of May, 1909, the defendant carelesslv and negligently furnished and maintained a switch-stand without a lock therefor, at a point on its passing track, at the town of Delta, where its cross-over track connected said passing side track with defendant’s main line at that point, and that such switch-stand, without a lock, was not a reasonably safe appliance at said place and under the facts and circumstances, and that on the 6th day of May, 1909, the defendant, by its engineer, carelessly and negligently ran a train of cars along and upon said passing track at a rate of speed that was not reasonably safe to defendant’s other empoyees working on and around said train, under the existing conditions; and that as a result of such speed of the-train and as a result of the.carelessness and negligence of the defendant in failing to provide and maintain a lock for such switch-stand at the west end of said cross-over track, and if you find that such act was under the circumstances negligent, one of defendant’s cars, then being drawn by defendant’s locomotive, engine, then being operated by defendant, its servants and employees, was thereby and thus caused to suddenly leave said passing track and to go upon said cross-over track and to suddenly and violently collide with defendant’s train of cars upon the main line, thereby and thus catching and crushing plaintiff between the car upon which he was riding and a car upon the main line aforesaid, while he was in the line of his duty as a brakeman for the defendant, thereby and thus wounding his left hip, back, bladder, testicle and urethra, and depriving him of any portion of his earnings; and .that the danger incident to the operation of an engine and train of cars upon said passing track by said switch-stand without a lock was not so apparent or obvious as to cause a reasonably prudent person to not'operate them; and that tbe plaintiff, when injured was exercising sucb care as a person of ordinary prudence would bave exercised under tbe same or similar circumstances, then and in that event your verdict in this cause must be for tbe plaintiff, Andrew J. Thompson.”

(a) It is insisted that the instruction required a verdict for respondent unless appellant’s switch was absolutely safe, whereas, it is said, the rule is that it is the master’s duty to use ordinary care to provide reasonably safe places and appliances. The instruction, in this connection, required the jury to find (1) that the switch-stand was negligently maintained without a lock, and (2) that such switch-stand, without a lock, was not a reasonably safe appliance. Instruction “D”’ given for respondent, defined negligence as “a want of ordinary care,” and then defined ordinary care. No objection is made to these definitions. Substituting for the word “negligently,” where it first appears in Instruction “A,” the definition in Instruction “U,” it appears the meaning of this part of the instruction is the legal equivalent of the formula appellant urges should have been used.

(b) It is said the legal test of negligence in the use of a given switch is the usage in tbe railroad business and that the instruction excludes this and leaves it to conjecture. “It is true . . . conformity to custom” in the business “is not evidence of negligence, but departure from it is” (Yost v. Railroad, supra, l. c. 245), and let it be conceded that had Instruction “A” excluded the idea that the jury should consider the evidence tending to show appellant’s practice in leaving this switch unlocked, in all the circumstances, conformed to the usage on well managed lines, it would have been erroneous. Sufficient proof of such usage may be said to rebut the idea of negligence in a proper case. Instruction “A” did not exclude the consideration of that .evidence. With respect to it the instruction contains no particular direction. It does, generally, require a finding of negligence. This non-direction was fully covered by appellant’s instructions which were strong and clear. Had they failed to cover the matter fully, appellant could not complain. Upon a like question, this court in Trebbe v. American Steel Foundries Co., 185 S. W. l. c. 183, said:

“The instruction concerning the omission of the safety block or safety appliance of some kind required the jury, before finding for respondent, to find the facts of the occurrence in accordance with the tendency of the evidence supporting respondent’s view, and then to find that there was a failure to place a safety device upon the appliance, and then to find that such omission constituted negligence, want of ordinary care. Other instructions defined ordinary care in a manner not objected to, and, at appellant’s instance, also directed the jury that if it was not customary to equip air hoist beams with safety blocks, and if appellant had no reason, in the exercise of ordinary care, to anticipate that the lack of a safety block was dangerous, and if, 'the accident in question here brought to defendant’s attention for the first time the desirability of such a safety device,’ then there was no negligence in failing to supply the safety block. This meets substantially the objection that respondent’s instruction permitted a finding for him though safety blocks were previously unknown. ’ ’

The same principle answers the contention in this case.

(c) The insistence that the instruction requires the master to anticipate and provide against the negligence of the servant is not tenable. It assumes respondent’s contributory negligence. That was an issue for the jury, and the instruction even required a finding of respondent’s freedom from contributory negligence before a verdict for him could he rendered.

(d) The criticism of Instruction “A” based upon the idea that the rules of the company “did not require the switch to he locked” and that Thompson agreed to familiarize himself with the rules and, therefore, so continuing in service must he held to have assumed the risk, is untenable. No rule was offered relating to cross-over switches so far as concerned those at the side track end. Rule 104 pertained solely to main line switches. Instruction “A” left open, sufficiently, the question of assumption of risk, and appellant’s instruction given secured for it the full benefit of the principle for which it contends, covering specifically the idea now advanced in criticism of the instruction.

(e) With respect to respondent's contributory neg~ ligence, if any, appellant secured an instruction which gave it, at least, the benefit of every principle which it was entitled to ~have placed before the jury.

(f) There is no' conflict of instructions of which appellant can complain. Instruction “A” is the only instruction assailed. The grounds upon which it is argued conflict appears are, generally, the same put forward in support of the contention that the demurrer to the evidence should have been sustained. Also they depend, to some extent, upon a construction of the evidence we do not think the record sustains..

The judgment is affirmed. All concur, Bond, P. J., in result.


source: Caselaw Access Project

author: RAILEY, C. PER CURIAM:

license: Public Domain

text:
    THE STATE ex rel. GLEN G. WEATHERBY, Prosecuting Attorney, v. DICK & BROS. QUINCY BREWING COMPANY, Appellant.
    Division One,
    February 20, 1917.
    1. INJUNCTION: Public Nuisance: Selling Liquors. Injunction cannot be used to, restrain tbe sale of beer in a county wbicb has adopted the Local Option Law unless the seller has been guilty of aiding and abetting the commission of a public nuisance.

      2. -: -: -: Pleading. The petition for an injunction to restrain the selling of intoxicating liquors must specifically set out the facts constituting the public nuisance. The mere statement of legal conclusions is not sufficient.
    3. -: -: -: Statement of Cause of Action. A petition for an injunction charging that defendant from its brewery in Illinois daily sells and ships into a Missouri county in which the Local Option Law is in force, to divers persons, large quantities of beer; that it has been so selling and shipping for a long time, and will continue to do so unless restrained therefrom, does not state the semblance of a cause of action, because (1) the statute (See. 7228, R. S. 1909) authorizes any person in such county to order liquor for his own and his family’s use where it is sent directly to him, (2) the brewer is authorized to sell beer in Illinois to such a person, and (3) in the absence of any charge to the contrary it cannot be presumed that the brewer was violating any law in shipping beer to persons in said county. ;
    4. -:-:-: Public Nuisance: Aiding Sales. And a petition which further charges that by reason of such shipments divers persons are enabled to sell, barter and give away said beer in said county, contrary to the Local Option Law; that by reason thereof said Illinois brewer is assisting and enabling such persons to sell beer in said county by retail and thereby maintaining a public nuisance, fails to state any facts which even remotely tend to show that the defendant brewer violated any law in selling said beer in Illinois, or assisted by such sale in establishing a nuisance ■ in said county.
    5. -: -: -: -: Turbulent Crowds: Scienter. And averments in said petition that by reason of the sale of beer in said local-option county large crowds of idle and turbulent people assemble at the places where such beers are kept and sold, to the great injury of society and the general welfare of the people of the county, without naming the vendors or the places where the beers are sold, and without charging that the defendant or any of his agents knew or knows of the congregation of said idle and turbulent persons, does not charge facts sufficient to show that the defendant brewer in Illinois i$ maintaining a public nuisance in said county.
    6. -: -: Crime. The congregation of divers idle and turbulent persons in secret places where intoxicating liquors are sold and drunk may constitute a crime; but a brewer, who is not charged with knowledge of their turbulent character or of their assembling and drinking in such secret places, is not maintaining a public nuisance by the mere fact that the beer sold at his Illinois brewery enables divers persons to sell it in such. Missouri town.
    Appeal from Adair Circuit Court. — Hon. Charles D. Stewart, Judge.

      Reversed and remanded (with directions).

      Chas. E. Murrell for appellant.
    (1) The State could not have resorted to a court of equity to restrain consignees from selling intoxicating liquors, including beer, and conducting their places and carrying on their business as- stipulation states they did. They were violating the criminal laws of the State and should have been prosecuted under such laws. State ex rel. v. Urig, 14 Mo. App. 413. (2) Even though consignees could have been restrained from selling intoxicating liquors and maintaining nuisances, it does not follow that appellant could be restrained from filling orders for beer and consigning the same to them. State ex rel. v. Moffett, 188 S. W. 930; 29 Oye. 1202; State v. Rankin, 3 S. O. 438. (3) Appellant was engaged in interstate commerce' and neither the county nor the circuit court could regulate or restrain that commerce. U. S. Constitution, art 1, sec. 8. (4) Respondent’s bill shows on its face that the State has an adequate remedy at law by resorting to criminal prosecution against consignees. (5) The court had no jurisdiction of the subject-matter of the suit, and is without authority to regulate appellant’s acts and conduct in a foreign State.

      Glen C. Weatherly pro se.

    (1) If the evidence in the case shows that the defendant is selling and causing to'be delivered intoxicating liquor to a person or persons, in a local-option county, knowing that the person or persons to whom such liquor is sold and delivered, are selling said liquor in contravention of law, and that the sale thereof by such person or persons, is habitual, and results in drawing together at the place where said liquor is sold, numbers of idle, dissolute and vicious people, addicted to the use of intoxicants, then and in that event, plaintiff contends, that the defendant is aiding and abetting the. maintenance of a public nuisance and is subject to the police regulation of the State to be administered through and by a court of equity and subject to be enjoined on a proper procedure therefor. State ex rel. Thrash v. Lamb, 237 Mo. 437; State v. Intoxicating Liquors, 106 Me. 138; 29 Cyc. 1201. (2) It is argued by the defendant, that the shipments of liquor, involved in this case, were interstate, and hence, protected by the Interstate Commerce Act, and that a State cannot by injunctive process, restrain interstate shipments of liquor. Against this contention plaintiff presents the Webb-Kenyon Law, which has been held constitutional in the following cases: United States v. Oregon Nav. Co., 210 Fed. 378; State v. Grier, 88 Atl. 579; State v. Van Winkle, 88 Atl. 807; State v. Express Co., 145 N. W. 451.'
   RAILEY, C.

— Respondent, as prosecuting attorney of Adair County, Missouri, filed in the circuit clerk’s office a petition to restrain defendant from shipping beer into said county, in violation of the Local Option Law, in force in said county. The petition alleges, that the Local Option Law of this 'State is and has been in force in said county; that defendant daily.sells and ships into Adair County aforesaid, to divers persons, large quantities of intoxicating liquors, to-wit, beer; that defendant has been so selling and shipping for a long time, and will continue so to do, unless restrained therefrom. The petition alleges:

“That by reason of the defendant selling and shipping beer, as hereinbefore alleged, into said Adair County, Missouri, divers persons are enabled to sell, barter and give away said intoxicating liquors, to-wit, beer, in said county, contrary to the Local Option Law, and by reason thereof said defendant is assisting and enabling such persons to sell by retail in said Adair County, Missouri, such intoxicating liquors, and thereby maintaining public nuisances throughout said county.
“That by reason of the sale of such intoxicating liquors in said county large crowds of idle and turbulent people addicted to the use of intoxicating liquors assemble at the places where such intoxicating liquors are kept and sold, to the great injury to society and the general welfare of the people of said county; that unless said defendant is restrained from selling and shipping said liquors into said Adair County, Missouri, such nuisances will continue to he maintained in said county, and the interest of the people and the general .welfare of the public thereby and by reason thereof, jeopardized. ’ ’

The petition states that there is no adequate remedy at law.

The prayer covers the allegations of petition, and the latter is duly verified, etc.

The answer of defendant admits that it is a corporation, organized under the laws of Illinois, with its place of business at Quincy, in said State; that it is now, and has been for many months prior hereto, engaged in the manufacture and sale of intoxicating liquors, to-wit, beer; that it has been engaged in the business of manufacturing and selling beer at said city of Quincy in the State of Illinois. The answer denies each and every other allegation contained in plaintiff’s petition.

The answer further charges that the acts and matters complained of in petition, are matters of interstate commerce; that if a restraining order is issued herein it will he in violation of section 8, article 1, of thó Constitution of the United States, in that it attempts to restrain and regulate commerce between the citizens of the State of Illinois, and citizens of the State of Missouri; that such restraining orders are and would he in violation of the Fourteenth Amendment of the Constitution of the United States of America, in this, that it abridges the privileges and immunities of citizens of the United States and deprives the defendant of its property and rights without due process of law, and denies to the defendant the equal protection of law; that said restraining orders prevent defendant from exercising its rights and privileges granted it by virtue of section 7228, Revised Statutes 1909 of Missouri, in this, that it prohibits and prevents the defendant from selling and delivering to any person or persons in Adair County, Missouri, intoxicating liquors for their own, or family use, where such liquors are sent direct to the person using same; that said restraining orders deprive defendant of its property without due process of law in violation of section 30, article 2,. of the Constitution of Missouri, and section 4, article 2, of the Constitution of Missouri; that the plaintiff has an adequate remedy at law.

The case was submitted to the trial court upon the following stipulation:

“(1) That the defendant is a corporation organized under the laws of the State of Illinois, with its place of business at Quincy, in the State of Illinois, and that said defendant has been, at all times mentioned in the plaintiff’s petition, engaged in the manufacture and sale of what is known as ‘Dick Brothers’ Beer,’ an intoxicating liquor, at Quincy, Illinois.
“(2) That at the times mentioned in the petition the Local Option Law was in full force and effect within the corporate limits of the city of Kirksville, and within the limits of Adair County outside of the city of Kirksville.
“ (3) That at all the times mentioned in the petition in this cause, the persons specifically named in said petition, as well as divers other persons in said Adair County, and in said city of Kirksville, were, and had been .for several months prior to the filing of said petition, engaged in the habitual sale of intoxicating liquors, including beer, both within the corporate limits of said city of Kirksville, Missouri, and in Adair County, Missouri, outside of the corporate limits of said city of Kirksville; and that said parties sold said intoxicating liquors, including beer, to any and all persons who might apply therefor, indiscriminately, and on every, day of the week, including Sunday; and that by reason of such sales of intoxicating liquors, large crowds of idle and turbulent people addicted to the use of intoxicants assembled at said places of business for the purpose of buying and drinking intoxicating liquors.
“(4) That the defendant did frequently, at short intervals, up to the time of filing' the petition in this cause, sell and cause to be delivered as herein below stated to the parties engaged in the habitual sale of intoxicating liquors, as aforedescribed, quantities of beer ranging from one case upwards; that these shipments of beer were on the written order of the party buying the same taken by one Jess Jamison on a form as hereto attached and marked ‘.Exhibit A;’ that sometimes the money was sent in with the order with which to pay for said beer, and sometimes collection was made therefor after delivery, either by remittance by mail from the purchaser direct to defendant or by payment to the said Jamison in Adair County.
“(5) That the said Jess Jamison was at all times mentioned in the petition the agent of the defendant for the purpose of receiving and sending to defendant written orders of the purchasers for such beer as shown by said Exhibit A; said orders being accepted or rejected by defendant at its option*, at Quincy, Illinois.
“(6) That the orders for beer shipment, herein referred to, were ordered in writing in the name of the party buying the same, and delivered to railroad or express company at Quincy, Illinois, consigned to the party named in the written order.
“(7) That the said Jess Jamison is a resident of the city of Kirksville, Missouri, and has been for many years last past, continuously, and is personally acquainted with the parties named in said petition, and knew that sucb parties bore the general reputation of being constant violators of the Local Option Law.”
“Exhibit A
“Mail Order Department ,
Date......................191....
“Dick & Bros. Quincy Brewing Co., Quincy, 111.
Gentlemen: Please ship direct to the undersigned' at ..................... the goods mentioned below by express.
freight. Ship in the name of ........................
................Casks 10 Doz., Small size ..........
......•..........Cases 3 Doz., Small size..........
................Cases 3 Doz., Small size..........
................Casks 6 Doz., Large size ..........
......'..........Oases 2 Doz., Large size ..........
................Boxes 2 Doz., Large size ..........
Enclosed please find ( ) for $..................in payment of the above goods.
Respectfully,
Name ......................................
Address ........................................
J ?

This was all the evidence.

The court found the issues for plaintiff, and concluded its judgment as follows:

“Wherefore it is ordered, adjudged, and decreed by the court that the defendant be and is hereby restrained and enjoined from selling and delivering to any person or persons, firm or corporation in Adair County, Missouri, intoxicating liquors, to-wit, beer, and that defendant be perpetually restrained and enjoined from causing said beer to be shipped to or delivered to anv such person or persons, firm or corporation in Adair County, Missouri, except that defendant may sell and ship beer to any person or persons in said county where the same is in good faith ordered and bought by such person or persons for his own or family use, in which said case defendant shall ship and deliver said beer direct to the person ordering same.”

Defendant filed its motions for new trial and in arrest of judgment, both of which were overruled and the cause duly appealed to this court by defendant.

I. The prosecuting attorney of Adair County, Missouri, commenced this action by injunction, in the circuit court aforesaid, to restrain defendant from shipping beer said county, where local option is in force, under the circumstances disclosed in the petition and agreed statement of facts, heretofore set out. The different sections of our statute relating to this subject, will be found in the Revision of 1909, as follows:

Section 7227: “No person shall keep, store or deliver for or to another person, in any county that has adopted or may hereafter adopt the Local Option Law, any intoxicating liquors of any kind whatsoever.”

Section 7228: “Nothing in the two next preceding sections shall be construed to prohibit any person from ordering liquor for his own or family use, where" such liquor is sent direct to the person using same.”

Section 7243 provides that in local option counties, it shall not be lawful, for any person within the limits of such county, “to directly or indirectly sell, give away or barter in any manner whatever, any kind of intoxicating liquors or beverage containing alcohol, in any quantity whatever, under the penalties hereinafter prescribed.” Any person found violating the provisions of sections 7227 and 7228 shall be deemed guilty of a misdemeanor and fined not less than $300, nor more than $1,000 or imprisoned in the county jail for not less than three months nor more than one year, or by both such fine and imprisonment (Section 7229). Any person violating section 7243, supra, shall be deemed guilty of a misdemeanor and punished by a fine of not less than $300, nor more than $1,000, or by imprisonment in the county jail not less than six months nor more than twelve months, or by both such fine and imprisonment.

There is no provision in our statute relating to injunctions, nor in the Local Option Law of this State, specifically authorizing the issuance of an injunction under the circumstances of this case. If any right of action exists, it must be predicated upon the idea that defendant has been guilty of aiding and abetting the commission of a public nuisance; and that a court of equity has the inherent right to abate the same. The petition for injunction, in order to pass muster, must specifically set out the facts necessary to establish a public nuisance; and the mere statement of legal'conclusions does'not-meet this requirement. [State ex rel. v. Railroad, 240 Mo. l. c. 50; Gibson v. Railroad, 225 Mo. l. c. 482.]

, Considered in the light of above authorities, does the petition state facts sufficient to constitute a cause of action against appellant? The latter is chartered under the laws of Illinois, and so far as the record shows was legally authorized t<r manufacture and sell beer in said State.

In State v. Rosenberger, 212 Mo. 648 et seq., Morton, a resident of Webster County, Missouri, in which local option was in force, ordered a gallon of whisky from the above defendant at Kansas City, Missouri. It was sent in a package C. O. D., and Morton .paid the express, agent the price therefor at the time it was delivered to him, and the agent sent the money to' said defendant at Kansas City. Our Court in Banc held, that Kansas City was the place of sale; that the sale was complete when the liquor was shipped there and 'that defendant did not violate the Local Option Law of Webster County.

Turning to the charging part of the present petition, we find that it is averred: (1) That defendant daily sells and ships into Adair County, Missouri, where local option exists, to divers persons, large quantities of beer, which is intoxicating; that it has been so selling and shipping for a long time and will continue to do so unless restrained therefrom. This paragraph taken by itself,, does not state the semblance of a cause of action for several reasons: (a) Because, section 7228, Eevised Statutes 1909, authorized any person in Adair County to order liquor for his own use, or that of his family where it is sent directly to him; (b) the defendant was authorized. to sell beer at Quincy, Illinois, to any of the last named persons, without violating any law; (c) in the absence of. any charge to the contrary, it cannot be presumed, that defendant was violating any law in shipping beer to persons in said county.

(2) It is charged in the petition that by reason of the above shipping of beer into said county, divers persons are enabled to sell, barter and give away said beer, in said county, contrary to said Local Option Law; that by reason thereof, said defendant is assisting and enabling such persons to sell, by retail, in said county, such intoxicating liquors and thereby maintaining public nuisances throughout said county. This paragraph signally fails to state any facts, which even remotely, tend to show that defendant violated any law when it sold beer to said parties at Quincy; or that the purchasers thereof were not lawfully entitled thereto when received. When the defendant delivered the beer on board the car at Quincy, directed to the person who had ordered the same, the sale was complete, and if any one assisted in establishing a nuisance by reason of the delivery of said beer in Adair County, it was the carrier, which transported the same, and not the defendant. Our court in Bane, speaking through Judge Bond, in which all the members of the court concurred, handed, down an opinion a few days since, in State ex rel. C. B. & Q. Railroad Co. v. Woolfolk, 269 Mo. 389, in which it was held, that an injunction would not lie against the carrier for delivering intoxicating liquors to individuals, in a local option county; and that the injunctive process could not be legally issued out of a court of chancery to enforce the provisions of a criminal statute, etc. If the act of the railroad company in delivering beer in a local option county is not the proximate cause of a nuisance thereafter created by the purchaser of such liquor, neither' is the act of defendant, in making a valid sale to a legitimate purchaser, even if the latter, in conjunction with others, should thereafter create a public nuisance by drinking and raising a disturbance. This charge, like the preceding one, fails to state any facts which could sustain a recovery in this action.

(3) The petition avers, that by reason of the sale of such intoxicating liquors in said county, large crowds of idle and turbulent people, addicted to the use of intoxicating liquors assemble at the places where such intoxicating liquors are kept and sold, to the great injury to society and the general welfare of the people of said county; that unless defendant is restrained from selling and shipping said liquors in said county, such nuisances will continue to be maintained in said county and the interest of the people and the general welfare of the public jeopardized thereby.

The names of the vendors of said liquor, and the places where they are supposed to have sold the same, are not mentioned. It is not averred that defendant, or any of its agents, kneiv anything about the congregation of said idle and turbulent citizens aforesaid, at the places where the alleged public nuisances were created. It is not alleged, that when said public nuisances were committed, any of these idle and turbulent citizens, were under the influence of liquor, or using any of that alleged to have been sold by defendant, or any one else. We are of the opinion, that the mere assembling of idle and turbulent citizens at a given place where liquor is sold, does not constitute a public or private nuisance, unless it appears that they have been guilty of some misbehavior which is. sufficient under the law to produce such result. But even if idle and turbulent men of. said county had met, at a place where liquor was sold in contravention of law; and even if they had used a portion of said liquor; had become intoxicated and created a disturbance by reason thereof, this does not militate against the right of defendant to sell its beer at Quincy, to legitimate customers, and especially when it does not appear from the petition, that any of these alleged idle and turbulent men, or the vendors of intoxicating liquors, had bought beer from the defendant.

If the divers persons who are selling intoxicating liquors illegally in Adair County, have a public place for doing this kind of business, then we are at a loss to understand why they have not been prosecuted and said business suppressed ■ through the criminal laws of the State. It is fair to assume, in the absence of. any allegation upon the subject, that these divers persons and vendors of liquor, must have been engaged in this disreputable business in secret places, and in this manner were evading criminal prosecutions. In either event, it was necessary for the petition to contain by way of scienter, that defendant had notice that these divers persons were engaged in such illegal practices, and aided or assisted them in carrying on such business. But even this would constitute no grounds for calling upon a court of chancery for relief, when just as adequate a remedy was afforded at law. In order to invoke the aid of the chancellor, in the issuance of injunctive process, it is alleged that idle and turbulent people addicted to the use of intoxicating liquors, assemble at the above places, where the liquor is illegally sold or given away, to the injury of the public, but unless they are alleged to have been drinhmg beer or other intoxicating liquor, and put into execution their turbulent dispositions, to the detriment of the public, we do not understand how their mere presence, in connection with the illegal disposition of intoxicating liquors, without taking any part in the proceeding, can be considered, in contemplation of law, a public nuisance, so as to justify a court of equity, in superseding the criminal law and abating same.

The petition therefor, taken as a whole, undertakes to restrain defendant from engaging in its legitimate business, in selling to persons authorized by law to purchase its goods, for the alleged reason that it enables divers persons, who have no connection with defendant, to sell intoxicating liquors in violation of the Local Option Law, with those present, who are idle and addicted to the use of intoxicating liquors. It is not averred, that defendant sold its beer to any of these divers persons who are idle and addicted to the use of intoxicating liquors, nor that it sold to any of those persons who ivere selling intoxicating liquors in violation of law.

In discussing this subject, Judge Bond, in State ex rel. C. B. & Q. Railroad Co. v. Woolfolk, 269 Mo. l. c. 396, very clearly and forcefully stated the law applicable to the present controversy, as follows:

“In order to connect the relator with the public nuisance, alleged in the petition to have resulted from the drunkenness and disorder referred to, it was indispensable that the plaintiff should show that these were caused directly by the mere act of the defendant in transporting and delivering such commodities in Pike County, or that it participated in bringing about this condition. The subsequent happening of such a state of intoxication did not establish that it was caused by the act of the relator, there being no allegations that it was concerned either in the sale or distribution of intoxicating liquors to or among the people of this portion of Pike County, or that it did any act which necessarily created a state of general drunkenness and disorder at the places referred to in the petition.”

In the same opinion, it is said:

“It will be seen from this language of the petition that the petitioner wholly fails to set forth any facts showing that the things done by relator were the proxi-. mate and efficient cause of the creation of a public nuisance. No court of equity can enjoin any transaction however violative of the criminal law on the part of the defendant, which does not bear such a causal relation to the public nuisance averred in the petition.”

In view of the above clear exposition of the law, in respect to the matter under consideration, we do not deem it necessary to pursue this discussion further. We therefore hold that the petition fails to state a cause of action for injunction and that this court can determine its sufficiency although no attack was made thereon in the trial court. [Titus v. Development Co., 264 Mo, l. c. 240, 174 S. W. l. c. 435, and cases cited; Carpenter v. St. Joseph, 263 Mo. l. c. 711; Chandler v. Railroad, 251 Mo. l. c. 599-600; Hudson v. Cahoon, 193 Mo. 547.]

II. Even if the petition had stated a cause of action, yet, under the agreed statement of facts heretofore set out, in view of what we have held in the preceding proposition, no recovery can be had.

We therefore reverse and remand the cause, with' directions to the lower court to set aside its judgment heretofore rendered, and to dismiss the plaintiff’s bill.

Brown, C., concurs.

PER CURIAM:

— The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


author: GRAVES, J.

text:
    SHERMAN HANDLIN, Appellant, v. EDWIN BURCHETT.
    Division One,
    February 20, 1917.
    1. LIMITATION: Cause Originating in Other State. A cause of action originating in another State if barred in that State when instituted in this State, is by our statute (Sec. 1895, R. S. 1909) barred in this State.
    2. -: -: Tolling Statute: Commencement of Action. Where the Iowa statute provides that the limitation for actions shall be extended in favor of minors, “so that they shall have one year from and after the termination of such disability within which to commence said action,” the right to institute a suit cannot be confined to commence one suit only, but the minor may institute and dismiss and reinstitute his suit as many times as he sees fit within the limitation fixed by the tolling statute, which declares that “if, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall be held a continuation of the first.” The second action is declared to be continuation of the first in order to extend the limitation statute by which it would otherwise be barred.
    3. -: -: Minor’s Suit: Case Stated. The cause of action originated in Iowa, where both plaintiff and defendant resided. On June 5, 1908, plaintiff’s leg was broken and defendant treated him for the injury. Plaintiff became of age August 14, 1911, and in May, 1912, sued defendant in Iowa for malpractice, and that action was voluntarily dismissed on December 19, 1912. On August 12, 1912, he began this suit in the circuit court of Putnam County, Missouri. The Iowa statute says that such actions shall be brought within two years; that, if plaintiff fails in the first action begun, he may bring a new one within six months thereafter, and “the second shall be held a continuation of the first;” and that “the times limited for actions herein shall be extended in favor of minors, so that they shall have one year from and after the termination of such disability within which to commence said action.” Held, that this action is not barred.
    Appeal from Putnam Circuit Court. — Eon. George W. Wcmamaker, Judge.
    Reversed and remanded.

      Platt Hubbell, Geo. H. Hubbell and John C. McKinley for appellant.
    (1) Two years is the period of limitations in Iowa for malpractice- — except for plaintiff’s minority. Code of Iowa, secs. 3447, 3453; Eadden v. Satterlee, 43 Fed. 568. Plaintiff has one year after attaining his majority— one year after August 14, 1911 — within which to .file this suit. Since plaintiff filed his suit on August 12,1912, he has brought his suit within the legal time and has a right to maintain his action in Missouri. Two days before the expiration of the one year, is just as good in law as two months. Tucker v. Stewart, 147 Iowa, 294. (2) An action for malpractice is transitory and may be prosecuted any where the defendant can be found. 22 Am. & Eng. Ency. Law, p. 1378; Steed v. Harvey, 18 Utah, 367; Bryant v. McClure, 44 Mo. App. 554; R. S. 1909, sec. 1754. The Iowa statute of limitations governs. R. S. 1909, sec. 1895. (3) Filing of the petition, alone, avoids the bar of limitation. McGrath v. Railroad, 128 Mo. 1; McCormick v. Clopton, 150 Mo. App. 129; Mound City v. Castleman, 187 Fed. 925; R. S. 1909, sec. 1756; State ex rel. Brown v. Wilson, 216 Mo. 292.

      Wade, Dutcher & Davis, N. A. Franklin and E. M. Harber for respondent.
    A cause of action for personal injury is barred in two years. Code of Iowa (1897), sec. 3447. The plaintiff by voluntarily dismissing his action in Iowa, where the court had jurisdiction, could not recommence it there, and said cause of action ceased to exist anywhere. Code of Iowa (1897), see. 3455; McCoy v. Railway, 134 Mo. App. 622. The voluntary dismissal of the plaintiff’s cause of action in Iowa was negligent within the meaning of Sec. 3455, Code of Iowa (1897); Archer v. Railway Co., 65 Iowa, 611. If the plaintiff had the right to commence his suit in Missouri at the time he did by negligently thereafter dismissing his cause of action in Iowa, he destroyed his cause of action and he cannot have judgment on a destroyed cause of action in the State of Missouri. Sec. 1895, R. S. 1909.
   GRAVES, J.

— Plaintiff sues the defendant, a physician, for malpractice. The suit was brought in the Putnam Circuit Court by the filing of a petition on August 12, 1912. For the determination of the single question involved here, a very short statement will suffice. Both plaintiff and defendant are residents of Iowa. On June 5, 1908, when seventeen years old, the plaintiff suffered an injury by way of a fracture of the femur in his right leg. Defendant treated him for that injury. Plaintiff became of age August 14, 1911. In May, 1912, the plaintiff sued the defendant on the same cause of action in the district court of Wayne County, Iowa. By answer the defendant avers, among other things:

‘‘ That said cause was continued in said district court of Wayne County, from time to time, until the 19th day of December, 1912, when plaintiff voluntarily and negligently dismissed and failed and refused to prosecute same.”

The defendant duly plead the several statutes of Iowa as to limitations for bringing actions in that State and paragraph 3 of section 3447, Statutes of Iowa, 1897, reads:

“Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years; and those brought to set aside a will, within five years from the time the same is filed in the clerk’s office for probate and notice thereof is given. ’ ’

Defendant urges that the only modification of this paragraph 3 of section 3447, is found in section 3455 of said statutes, which reads:

“If, after the commencement of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first.”

The defendant urges that by reason of the dismissal of the suit in Iowa, that fact alone finally terminated plaintiff’s cause of action, and says that by reason of our statute, section 1895, Revised Statutes 1909, he cannot maintain a suit in this State. Said section 1895, reads':

“Whenever a cause-of action has. been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this' State.”

By reply plaintiff averred that said section 3455, supra, of the Iowa Code, had no application to his case, because he was a minor, and had one full .year after reaching his majority to bring his action, and had this right, irrespective of such section. Plaintiff plead specifically section 3453 of the Iowa Code, reading thus:

• “The times limited for actions herein, except those brought for penalties and forfeitures, shall be extended in favor of minors and insane persons, so that they shall have one year .from and after the termination of such disability within which to commence said action.”

Defendant filed motion for judgment oh the pleadings and this motion was sustained and judgment entered for defendant. Prom such judgment the plaintiff brings this appeal.

I. The cause of action having originated in the State of Iowa, if it was barred in that (State, when instituted in this State, there can be no recovery by the plaintiff. Óur statute, section 1895, Revised g^^gg q9Q9, quoted in the statement of facts, settles this question, and it is not contended otherwise by distinguished counsel for plaintiff. We start our consideration of the case with this question out of the way. Other questions must abide the construction of the Iowa laws.

II. This whole matter turns upon the question as to whether or not under the Iowa laws the plaintiff had a live cause of action, and one which could have been enforced in Iowa, at the time he instituted his suit in Missouri. If under the Iowa laws he had lost the right of action, in Iowa, prior to August 12,1912 (the date of filing his suit in Missouri), he has no right of action here.

By the third clause of section 3447, Code of Iowa, 1897, an action for malpractice as to adults is barred in two years. [Fadden v. Satterlee (Iowa case), 43 Fed. l. c. 569.]

It. is not seriously contended, however, that this statute is not tolled by the provisions of section 3453, in so far as minors and insane persons are concerned. The clear reading of the law shows that the minor has one full year in which to bring his action after attaining his majority. This matter does not seem to be seriously disputed by able counsel for the defendant. They state their position thus:

“Our theory of this statute is that the only right it conferred upon the plaintiff during the year next following his majority was the right to commence his action, and when he commenced his action in Iowa he exhausted every right which the laws of Iowa gave him except the right to prosecute said action so commenced to final determination. This statute did not confer upon him the right to commence and dismiss his action as many times as he saw fit during the year following his majority.”

We regret that we have no express ruling from the Supreme Court of Iowa upon the point urged. In the absence of such we will have to give our own construction to the statutes. We do not agree with defendant, that the only right- conferred by section 3453 of the Iowa Code is the mere right of once instituting the suit. We have statutes in this State tolling our statutes of limitations. We have one as to minors, and no one ever thought otherwise than' that the minor had the right to institute and reinstitute his suit as many times as he saw fit, provided of course the suits were within the time granted by the tolling statute. "We see no reason why the Iowa statute, section 3453, should not be so construed. The minor might institute his suit the first day after reaching his majority, and afterward voluntarily dismiss it, but he might again bring his suit the last week of the year, and not be barred. Such has been our conception of our own statute, and such is the reasonable construction of the Iowa law. But it is urged that section 3455 of the Iowa Code precluded this construction. That we may have the language before us, we quote again this section. It reads:

“If, after the commencement, of an action, the plaintiff, for any cause except negligence in its prosecution, fails therein, and a new one is brought within six months thereafter, the second shall, for the purposes herein contemplated, be held a continuation of the first.”

This section is found in the second chapter of the Code of Civil Procedure, and the chapter is entitled, “Of Limitation of Actions.” In the chapter are sections prescribing limitations of actions and sections tolling such limitation’s in given cases.

To our mind this section 3455 is a section further tolling the statute of limitations under certain circumstances, rather than one limiting the time to bring suits. Note its language “the second shall, for the purposes herein contemplated, be held a continuation of the first” suit. Why declare the second suit a continuation of the first, except to make it obviate the statute of limitations, and such tolling as may have been engrafted by other sections ?

Let us make it clear by illustration. Suppose A sues B on the last day permissible under the statute of limitations. Then suppose after the full time has run he tries his ease, and without negligence on his part, he, to use the language of the statute, “fails therein,” then within six months he can reinstitute his suit, and such second suit shall “for the purpose herein contemplated be held a continuation of the first.” Why shall it be so held, save and except to toll or obviate the Statute of Limitations ?

■If the general Statute of Limitations is tolled for given reasons (in the case at bar on account of minority) the period prescribed in the tolling statute is just as much the time in which actions (of the stated class) may be instituted, as is the period named in the general Statute of Limitations. To make plain. our views we further illustrate. Under the general statute of limitations actions for malpractice in Iowa are. barred in two years. Minors,. however, by the tolling statute, have one year from reaching their majority in which to bring their actions. Now, A, a minor, sues B for malpractice within ten days of the expiration of his 22hd year. The action is tried, and without negligence 'on his part, he fails of judgment, then section 3455 would step in and give him the right to reinstitute his suit within six months and such reinstituted suit should be deemed as a continuation of the former suit, brought within the time of limitations. In other words, that statute would further toll the statute giving the right to sue within one year after reaching majority. In other words this statute confers additional rights upon those who have not been guilty of negligence in the trial of their cases. If he has been negligent in the prosecution, this further tolling is not granted. It is clear to us that this section 3455 never was intended to preclude the minor’s right to bring his action at any time within the year, nor preclude him from dismissing his action, and reinstituting it, provided’the new suit was brought within the year. From these views it follows that- the judgment nisi should he reversed and the cause remanded to be proceeded with in conformity to this opinion. It is so ordered.

All concur.