source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    ANNA HIGH WILLIAMS, Appellant, v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY.
    Division One,
    March 31, 1911.
    1. APPELLATE JURISDICTION: Verdict for $3000: New Trial Granted: Appeal. Where the verdict, in a suit for damages for personal injuries, was for $3000, and the defendant filed a motion for a new trial, which was sustained, and plaintiff appeals, the Supreme Court does not, because of “the amount in dispute,” have jurisdiction of the appeal, either under the Act of 1909 or under the prior acts. The amount in dispute is $3000.
    2. -: Constitutional Question: Raised In Motion for New Trial. If a constitutional question was lodged in the case for the first time in the motion for a new trial, and in the light of the allegations of the petition and the instructions given that was the earliest practical time at which it could have been raised, the Supreme Court has jurisdiction of the appeal.
    3. THEORY OF TRIAL: Indicated by Instruction: On Appeal. Whatever may be the terms of plaintiff’s petition, if by her instruction asked and given she planted her case for negligence upon defendant’s failure to comply with a certain statute, she cannot on appeal depart from that theory of her right to recover; and if the statute is invalid the trial court cannot tie convicted of error for granting to defendant a new trial on the ground that plaintiff was not entitled to recover.
    4. INVALID STATUTE: Insufficient Title: Section 7844, R. S. 1909. No veiled language in the title to an act meets the constitutional requirement that the subject of the act must be clearly expressed in its title. The language should be clear, and as an index finger point to a single subject-matter and matters germane .thereto. The title to the Factory Act of April 20, 1891, now Sec. 7844, R. S. 1909, was, “An Act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees;” and the body of the act provided that “all platforms ... in and around all railroad . . . freight houses . . . shall be so placed and arranged as to insure, as far as possible, the safety of employees from injury.” Held, that the subject-matter of the act is not clearly expressed in the title. There is nothing in the title to indicate that in the body of the act might be expected language concerning railroads, railroad property or railroad employees.
    5. -: -: -: Other Establishments and Places: Ejusdem Generis. Nor do the words “and other establishments and places,” found in the title to said act, aid its failure to refer to railroads. At most those words can be held to refer to only establishments and places of similar kind to those mentioned. They must be altogether ignored and as of no legal significance, or else they must, under the doctrine of ejusdem generis, he held to apply to establishments and places subsidiary to the manufacturing, mechanical and mercantile establishments mentioned.
    6. GRANTING NEW TRIAL: Bad Ground. If the trial court assign a bad reason for granting a new trial, yet if there be .a good reason for such action, the order will not he disturbed on appeal. If the reason granted by the trial court was that plaintiff is not entitled to recover, and on appeal it is clear that by Her instruction plaintiff planted her case solely on an invalid statute, the order granting a new trial will not be disturbed.
    7. NEGLIGENCE: Statutory: Statute Not Pleaded. It Is not necessary for a petition basing plaintiffs right to recover on statutory negligence, to plead the statute violated. All that is necessary is to state facts sufficient to bring the cause within the terms of the statute.
    8. -: Based on Void Statute: No Right to Recover. An unconstitutional act is no law at all. So that if plaintiff bases her action for negligence upon a violation of an invalid statute, and recovers, it is proper for the trial court to sustain a motion for a new trial on the ground that she is not entitled to recover.

      9. -: Notice Required by Statute: No Notice: No Recovery. Even if the statute were valid, yet as it requires a notice to the company to be given by a State inspector, directing the distance from the cars a freight platform must be placed, and only then makes a “failure to make such alterations” within thirty days “a violation of the act,” there can be no recovery, under the statute, for an injury to a switchman on a car passing the platform, unless such notice was given thirty days prior to the injury. The statute does not attempt to fix the distance between a car and the platform, but empowers the inspector to determine that distance, and contemplates that platforms will remain in statu, quo until he gives notice to make the alterations, and without such notice there cannot be said to be any violation of the act.
    Appeal from Jackson Circuit Court. — Hon. John- G. Park, Judge.
    Affirmed.

      A. P. Smith, Boyle & Howell and Guthrie, Gamble & Street for appellant.
    (1) The defendant was guilty of negligence in maintaining its platform dangerously close to the track in question, so as to endanger the safety of employees necessarily and properly working alongside the same, unless it was necessary for defendant to maintain its platform in such proximity. Murphy v. Railroad, 115 Mo. Ill; Charlton v. Railroad, 200 Mo. 437; Railroad v. Davis, 92 Ala. 300; Railroad v. Stevens, 189' 111. 226'; Kerst v. Railroad, 110 la. 32; Railroad v. Michaels, 57 Kas. 476; R. S. 1909, sec. 7844. (2) There was no substantial necessity for maintaining the platform dangerously close to the line of the rail. It is a mere matter of convenience. Convenience does not justify imperiling human life. (3) The servant did not assume this risk. The danger was not necessarily inherent in the business; was due to the master’s careless disregard for the safety of the employees, in the interest of mere convenience, and the servant does not assume the risks of the master’s negligence. P'auck v. D. B. Co., 159 Mo. 477; Phippin v. Railroad, 199 Mo. 347; Charlton v. Railroad, 2001 Mo. 413; Brady v. Railroad, 206 Mo. 509. (4) As far as the acts of the deceased are not established by the evidence, the. jury may presume that his acts were those of a reasonably prudent man under the circumstances. Goff v. Transit Co., 199 Mo. 706; Pliggins v. Railroad, 197 Mo. 317. (5) Contributory negligence is an affirmative defense to be established, in the absence of its disclosure as a matter of law .by proof of the plaintiff, by affirmative proof on the part of the defendant. In the absence of proof in this case affirmatively disclosing negligence on the part of the deceased, this defense must fail. Charlton v. Railroad, 200 Mo. 413. It is not contributory negligence, as a matter of law, to work between cars in motion. Brady v. Railroad, 206 Mo. 509; Hollenbeck v. Railroad, 141 Mo. 110'. It is for the jury to determine how far a prudent man, engrossed with other matters demanding his attention, would bear in mind a danger alongside the track, of which he had more or less previous knowledge. Graney v. St. Louis, 141 Mo. 180; Barr v. City, 105 Mo. 557; Keist v. Railroad, 110 la. 37; Fitzgerald v. Railroad, 88 Hun 360; Railroad v. Cleveland, 92 111. App. 311; Crouch v. Railroad, 23 S. C. 499; Charlton v. Railroad, 200 Mo. 440; Hawley v. Railroad, 133 Fed. 153; Railroad v. Michaels, 57 Kas. 476; Johnson v. Railroad, 43 Minn. 53.

      Thomas B. Morrow, Cyrus Crane, James P. Gilmore, 8. W. Sawyer and John H. Lathrop for respondent.
    (1) Plaintiff is bound by the theory adopted in the trial of this case. Hof v. Railroad, 213 Mo. 470; King v. Railroad, 130 Mo. App. 371; Brick Co. v. Railroad, 213 Mo. 726; Hesselbach v. St. Louis, 179 Mo. 505 ; Hamilton v. Railroad, 123 Mo. App. 619 ; Glaser v. Rothschild, 306 Mo. App. 418; Jones v. Habberman, 94 Mo. App. 1. (2) Section 7844, R. S. 19091, is in part unconstitutional. Witzman v. Railroad, 131 Mo. 612; State v. Persinger, 76 Mo. 347; Board v. Snow, 45 Kas. 332; St; Louis v. Tiefel, 42 Mo. 578; Shepherd v. PTelmers, 23 Kas. 504; St. Louis v. Laughlin, 49 Mo. 559; County Commissioners v. Smelting ■ Co., 32 Pae. 717; State v. Fulks, 207 Mo. 26; State v. Tea Company, 171 Mo. 634; State v. Jackson County, 102 Mo. 531; Cooley on Constitutional Limitations (7 Ed.), p. 207; Fishki'll v. Plank Road Co., 22 Barb. 634; Ryerson v. Utley, 16 Mich. 269. (3) There was no negligence shown on the part of defendant. Coin v. Lounge Co., 222 Mo. 488; Brands y. Car Co., 213 Mo. 698; Chrismer y. Telephone Co., 194 Mo. 189; Minnier v. Railroad, 167 Mo. 112; ■ Steinhauser v. Spraul, 127 Mo. 562; Bohn v. Railroad, 106 Mo. 429 ; Eliot v. Railroad, 204 Mo. 1; Graney v.- Railroad, 157 Mo. 683'; Brewing Assn. v. Talbot, 141 Mo. 683; Hysell y. Swift, 78 Mo. App. 47; Fuchs v. St. Louis, 167 Mo. 620; (4) Deceased was guilty of negligence. Eliot v. Railroad, 204 Mo. 1; Sparks y. Railroad, 31 Mo. App. Ill; Jennings v. Railroad, 7 Wash. 275; Purcell v. Tenant, 187 Mo. 276; Hurst v. Railroad, 163 Mo. 309; Moore v. Railroad, 146 Mo. 572; Pohlmann v. Uar Go., 123 Mo. App. 219; Spiva v. Coal Co., 88 Mo. 68; Huggart v. Railroad, 134 Mo. 673; Hayden v. Railroad, 124 Mo. 566; McGahan y. Transit Co., 201 Mo. 500; Schmidt v. Railroad, 3.91 Mo. 215; Higgins v. Railroad, 197 Mo. 317. (5) The danger, if any, from the platform, was one of the risks ordinarily incident to the operation of railroads and must have been assumed by the deceased. Jackson v. Railroad, 104 Mo. 448; McIntosh v. Railroad, 58 Mo. App. 281; Harrington v. Railroad, 104 Mo. App. 663; Purcell v. Tenant Shoe Co., 187 Mo. 276; Tuttle v. Railroad, 122 U. S-. 189; Randall v. Railroad, 109 IT. S. 478. (6) The court erred in instructing the jury on the measure of damages. Hinds y. Marshall, 22 Mo. App. 208; Gessley v. Railroad, 26 Mo. App. 156.
   GRAVES, P. J.

Plaintiff is the widow of Ellis T. High, and as such, in the name of Anna High, brought suit against defendant in the circuit court of Jackson county for the alleged negligent killing of her husband, the said Ellis T. High. After the institution of the suit, she intermarried with one Williams, and took the necessary steps to further prosecute the suit in the name she thus assumed by the intermarriage.

By her petition she charges that the death of her said husband was occasioned by reason of the fact that defendant had negligently constructed an unloading platform too close to the track upon which the freight cars were switched to be unloaded. The petition is long but the alleged negligence of defendant can be gathered from the following language contained therein:

“That.said platform and the said arrangements in and around such railroad yard and freight house were so located, placed and arranged as to endanger the safety of employees in this, that- said platform was as aforesaid so located and placed, with reference to said track and cars operated thereon, as to leave only about eight inches of space between said platform and the corners and sides of said cars, whereas said platform should have been so located, placed and arranged in order to insure so far as possible the safety of employees from injury or accident as to leave between said platform and said cars a space sufficient for the safe passage of employees between the edge of said platform and such cars, when such platform was necessary for the safety of employees in the performance of their duties as was at times necessary, and as was at the time and place of the injury aforesaid; that there were no conditions preventing the location of said platform so as to be at such sufficient distance from such cars, and it was practicable to so place, arrange and locate said platform; and such platform was so placed, arranged and located as same in fact was, only for the convenience of the defendant in loading and unloading freight at said platform; that such negligent failure of the defendant to properly arrange, place and locate such platform directly contributed to cause the death of said High.”

The amount sought to be recovered was $5000'.

Defendant’s answer is, (1) a general denial, (2) a plea of contributory negligence, (3) a plea of assumption of risks, and (4) a plea charging that the cause of action, if any, had vested in two minor children of the deceased by a former wife.

Reply was a general denial.

The trial, nisi, resulted in a. verdict, by the concurrence of ten jurors, for plaintiff in the sum of $3000. Defendant thereupon filed its motion for new trial and in arrest of judgment. The court sustained such motion for new trial for the reason, as assigned, that plaintiff was not entitled to recover. From this order sustaining the motion for new trial plaintiff has appealed.

The evidence, so far as required, will be detailed and reviewed in connection with the points made.

I. At first impression we were doubtful as to the jurisdiction of this court. Upon no theory, does the “amount in dispute” give us jurisdiction. The petition and the amount claimed therein, if such were to govern, would not give us jurisdiction under the Act of 1909 increasing the jurisdiction of the Courts of Appeals. In this case and the facts thereof the amount in dispute, as contemplated by the Constitution, is the amount of the verdict which was set aside by the trial court. Even in cases where the amount claimed by plaintiff in the petition is such as to eon-fer jurisdiction upon this court when plaintiff has been defeated in the action below, yet if plaintiff recovers below an amount less than the jurisdictional limit for an appeal to this court, and the verdict for such amount is set aside on. the motion of defendant, the appeal must be taken to the Court of Appeals having territorial jurisdiction of the cause; and hot to this court. In other words, the amount of the verdict set aside fixes the jurisdiction.

In Culbertson v. Young, 156 Mo. 261, this court said: “This court has no jurisdiction of this appeal. The utmost that is ' involved in this appeal is the amount of the verdict rendered in the circuit court. Appellant in his brief asks ‘that the judgment of the circuit court in setting aside the verdict of the jury and granting a new trial be reversed and the cause remanded with directions to enter up a judgment on the verdict.’ Plaintiff sought no new trial in the circuit court and his claim for.the original amount sued for is not here at this time. He seeks only to have a judgment entered on his verdict for $783.25. If he should succeed that would end the case. The propriety of setting aside that verdict is the only matter involved in this his special appeal, and this court has no jurisdiction, as it is less than twenty-five hundred dollars. On the other hand if the circuit court did not err in granting the new trial, no final judgment has been rendered in that court from which an appeal can be taken. Roselle v. Farmers’ Bank, 119 Mo. 84, is not authority for the claim that this court has jurisdiction. This cause is ordered re-transferred to the Kansas City Court of Appeals.”.

In that case the amount sued for was $7180, of which sum we then had jurisdiction. The- verdict was for only $783.25, which verdict was set aside upon motion of the- defendant. Appeal was granted to the Kansas City Court of Appeals, but that court transferred it to this court. Our conclusions are indicated by the quotation, supra.. So that in the case at bar, even without the aid of the Act of 1907, we would have to hold that so far as the amount in dispute is concerned, this court would be without jurisdiction.

Our jurisdiction, however, hinges upon a constitutional question lodged for the first time in the motion for new trial. We were first impressed with the idea that the question was not timely raised, but upon a more thorough reading of the petition, and the instructions given, we are satisfied that the point as to the unconstitutionality of the statute involved was made at the earliest practical time, and hence will proceed to the determination of the merits of the case.

II. At the close of all the evidence the defendant asked a peremptory instruction to find for defendant. This was refused, and defendant requested no further instruction. ■ This demurrer to all the testimony we will discuss later.

Reverting to the constitutional question mentioned in our first paragraph, it should be noted that the first and principal instruction for the plaintiff invoked that part of the Factory Act of April 20, 1891, Laws 1891, l. c. 162, now section 7844, Revised Statutes 1909. This section of the present statute was section 20 of the said Act of 1891. In the Revised Statutes of 1899, said section 20 of said act was section 6448. No change has been- made therein since its first enactment. It thus reads: “All platforms, passageways, steps, flag offices and other structures or arrangements in and around all railroad yards, switches, roundhouses, switch offices, freight houses and passenger depots, shall be located, placed 'and arranged so as to insure, as far as possible, the safety of employees from injury or accident.”

Plaintiff’s first and principal instruction thus reads: “The statute law of this State requires that all platforms, passageways, steps, flag offices and other structures or arrangements in and around all railroad yards, switches, roundhouses, switch offices, freight houses and passenger depots shall be located placed and arranged so as to insure, as far as possible, the safety of employees from injury or accident;' and the failure, if any, of a corporation operating a railroad to so locate, place and arrange any platform in and around a railroad yard or freight house, as far as reasonably practicable so to do, would constitute negligence. And if you find that on or before the first and second days of June, 1904, plaintiff was the wife of Ellis T. High, and that said High was fatally injured on or about such time while in the employ of the defendant as a switchman, and that such injury occurred in the State of Missouri as the direct result of the negligent failure (if any) of the defendant to comply with such statute law, in locating, placing and arranging its platform in dangerous proximity to the line of passage of the body of freight cars (if you so find), and that the body of said High, while engaged in the proper course of his duties (if he was) was caused to come out from between the ends of cars against said platform (if you so find) and that negligence (if any) on the part of said- Ellis T. High did not directly contribute to such injury, and that at the time of the death of said Ellis T. High he was contributing to the support of the plaintiff, and might be reasonably expected to continue to do so, then y.our verdict should be for the plaintiff. ’ ’

It therefore appears that whatever may be the terms of her petition, the plaintiff by this instruction planted her recovery squarely upon this statute. This is the only instruction which outlines her theory of her right to recover. Other instructions given go to subsidiary matters, such as the definition of “ ordinary care,” contributory negligence, measure of damages and presumptions to be indulged.

Such, being her theory below, it cannot be departed from upon appeal. [Degonia v. Railroad, 224 Mo. l. c. 588 et seq.; Hof v. Transit Co., 213 Mo. l. c. 470; Taylor & Sons Brick Co. v. Railroad, 213 Mo. l. c. 726 et seq.]

Defendant challenges the constitutionality of this law, for the reason, among others, that the subject-matter thereof is not within the purview of the title of the act, and not clearly expressed in such title. The title of the original act thus reads:/“An act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees.’V

Counsel further urge that more than one subject is covered by the Act of 1891, and that for this as well as the previously stated reason, this section of the statute is unconstitutional and void under the provisions of section 28 of article 4 of the Constitution of the State. This contention we think well founded. The subject-matter of section 20 of the original act is not clearly expressed in the title to such act. Not only so, but there is more than one subject embodied in the act.

Going to the first matter above mentioned, no one reading the title to the original act would for a moment think or even imagine that railroads or railroad properties or railroad employees were being considered or legislated upon in the act. The constitutional provision, excluding the excepted classes of legislation, reads: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title.”

The requirement that the subject of a bill “shall be clearly expressed in the title” is just as mandatory and just as binding upon the courts, as that portion of the section which says that “no bill . . . shall contain moré than one subject. . . .”

In State v. Burgdoerfer, 107 Mo. l. c. 30, it is' said: “The title must express the subject of an act in such terms that the members of the General Assembly and the people may not be left in doubt as to what matter is treated of.”

So, too, in State v. Great Western Coffee and Tea Co., 171 Mo. l. c. 643, Fox, J., after quoting the above from the Burgdoerfer case, adds: “And it is elsewhere said very aptly ‘that to be clearly expressed’ certainly does not mean something that is dubious and therefore is not clearly expressed.”

In Kansas City v. Payne, 71 Mo. l. c. 162, the following language from Judge Cooley is quoted with approval by this court: “The Constitution has made the title the conclusive index to the legislative intent. It is no answer to say that the title might have been more comprehensive if, in fact, the Legislature has not seen fit to so make it.”

The test of a sufficient title to a bill is well expressed by Sherwood, J., in St. Louis v. Weitzel, 130 Mo. l. c. 616, whereat he says: “The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guide board, indicate the general contents of the bill, and contain but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”

There is no clear expression in this title to the bill under consideration indicating that in the body of the act might be expected language concerning rail- ■ roads, railroad property or railroad employees. No veiled language in a title meets the constitutional requirement. The language should be clear, and as an index finger point to a single subject-matter and matters germane thereto. As to the subject-matter contained in section 20 of the original act, the language of the title does not so do.

Throughout the history of this State, railroads, railroad property and railroad employees have been treated as separate subjects. Legislatively speaking, they have been assigned to classes of their own. Manufacturing, mechanical and mercantile establishments have not been associated with such classes by the lawmaking power. The relation of master and servant as to liability for negligence is different in railroad corporations from the liability in case of negligence committed by manufacturing, mechanical and mercantile establishments. Inspection laws are different as pertaining to the two classes. In such laws railroads have been treated as a class to itself, and inspections made thereof by a board having peculiar authority for that purpose. It is useless to go over the line of statutes in this State which clearly show that matters pertaining to railroads and their employees, have been treated as subjects within and of themselves.

Nor do the words “and other establishments and places” found in the title aid the law in question, as seems to be contended by the plaintiff. To these words in the title, the doctrine of “ejusdem generis” is the most that can be applied.

These words at best can only be held to cover “establishments and places” of a similar kind to those named./ The rule as to such expressions is well summarized in 26 Am and Eng. Ency. Law, p. 584, thus: “The words ‘and for other purposes’ frequently suffixed to the title of a statute imply purposes not named in the title, and therefore are generally rejected as being without force or effect, and insufficient to indicate matters not otherwise indicated by the title. But the phrase may be given meaning when employed, not to indicate other subjects than that expressed in the title, but in connection with a subsidiary clause in the title defining the ends sought to be reached. . . . So, also, the words ‘and so forth’ or ‘ et cetera’ will not be given meanings to extend the scope of the title, and nothing which the act might not embrace without them can be brought in with their aid. But the ejusdem generis rule may be applied where the words are merely used in summarizing the details affected by the act, since in such case they do not seek to cover a subject different from that stated in the title.”

Even if we apply the rule ejusdem generis, it cannot be said that section 20 of the original Act of 1891 covers a subject-matter similar to the three specific classes named in the title. And if these words are to stand and are not to be construed by the rule ejusdem generis then more than one subject is contained in the title.

Touching in a way the question here involved, in the early case of St. Louis v. Tiefel, 42 Mo. l. c. 592, Wagner, J., said: “It is very plain, however, that the use of the words ‘other purposes,’ which have been extensively used in the title to acts to cover any and every thing, whether connected with the main purpose indicated by the title or not, can no longer be of any avail. [Town of Fishkill v. Plank Road Co., 22 Barb. 642; Ryerson v. Utley, 16 Mich. 269.]”

Along the same line is St. Louis v. Laughlin, 49 Mo. l. c. 564, whereat it is said: “In the present case, the charter specifically enumerates the classes of persons intended to be taxed, and the sweeping words ‘all other business, trades, avocations or professions,’ we do not think can be made to include persons not of the same generic character or class. In specifying and enumerating the trades and professions to be taxed, it was intended to limit the taxation to them or to persons engaged in similar trades or occupations. If it had been designed to tax lawyers, which, as the agreed case finds, number over three hundred in this city, it is unaccountable that they should have been omitted in the enumeration, whilst other professions comprehending but a few persons are expressly, referred to and selected. To give the words ‘all other business, trades, avocations or professions’ the meaning contended for would give the city the power of taxation by license over nearly every laborer. I am of the opinion that the Legislature had no such intention in view.”

In Shepherd v. Helmers, 23 Kas. 504, the Kansas court says: “The words ‘for other purposes,’ it is conceded, do not add anything to the expression of the title and may be considered as surplusage and as nugatory.”

The Colorado Court of Appeals takes the same view. In County Commissioners v. Smelting Company, 3 Colo. App. 225, that court said: “The. act is entitled ‘An act to amend section 29, . . . and to repeal sections 30, 31, 32 and 33 thereof, and for other , purposes.’ The last clause, ‘and for other purposes,’ may first be disposed of. It is, in such connection, 'meaningless, of no legal significance, conveys no idea of any legislative intention whatever. It is said by Judge Cooley in his excellent work on Constitutional Limitations (5 Ed.), p. 175: ‘The words, “and for other purposes,” must be laid out of consideration. They express nothing and amount to nothing as a compliance with this constitutional requirement. Nothing which the act could not embrace without them can be brought in by their aid.’ [See Ryerson v. Utley, 16 Mich. 269; Town of Fishkill v. Plank Road Co., 22 Barb. 634; St. Louis v. Tiefel, 42 Mo. 578.]”

So viewing this section 20 of the original act from all standpoints, the least which could be said is that such section does not fall within the. purview of the title and is therefore void and in violation of the constitutional provision mentioned.

Plaintiffs appeal must therefore fail for this reason, if not for the reason assigned by the court in granting the new trial, which latter reason we will hereafter discuss.

Plaintiff by the instruction quoted planted her case squarely upon the statute. If there be no such statute, then the instruction was error, and such error is sufficient to sustain the order granting a new trial. Even if the trial court assign a bad reason for granting a new trial, yet if there be a good reason for such action, the order will not be disturbed by this court. The giving of this instruction was assigned as error in the motion for new trial. We will discuss next the reason assigned by the court, nisi, for the action taken in granting the new trial.

III. Should the trial court have held that the plaintiff failed to make a case? We think so. The question may be approached from several standpoints. In the first place, if the petition is one charging statutory negligence, as plaintiff has construed it by the instructions asked and given, then the action of the trial court in granting the new trial and the reason assigned by the' court for such action are proper on the theory that there is no such law. An unconstitutional act is no law at all. So that if the action is founded upon statutory negligence, and the statute fails, the trial court was right in saying that plaintiff was not entitled to recover. A reading of the petition discloses that no statute is mentioned therein, but facts are pleaded (with one possible exception as to notice to be noted later) which would authorize a recovery under the statute. It is not necessary for a petition to state the statute violated. All that is necessary is to state facts sufficient to bring the cause within the terms of the statute. Such has been the ruling of this court in several recent cases. [Taylor v. Railroad, 207 Mo. l. c. 500-501; Campbell v. Railroad, 121 Mo. l. c. 348.]

So also has the Kansas City Court of Appeals so ruled. [Walker Bros. v. Railroad, 68 Mo. App. l. c. 474.]

In the case at bar the plaintiff treated her case as one brought under the statute. The trial below was upon that theory and such theory can not now be abandoned. So that if the law is unconstitutional the circuit court was right in declaring that plaintiff had shown no right to recover.

IV. But the court’s reason assigned was right from another and further standpoint. Let it be granted that the statute was .constitutional, and yet the evidence fails to disclose an actionable violation thereof by defendant. There is no evidence in this record that any notice was given the defendant to make alterations or changes in its platform.

Section 16-of the Act of 1891, in so far as applicable, reads: “Whenever the commissioner of labor, or assistant inspector, finds that . . . the platforms, passageways, and other arrangements around, in and about any railroad yard or switch be such as to probably. lead to injury or accident to those employed in, around or about any such establishment or place, the inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary "within thirty days; and if such alterations or additions be not made within thirty days .from the date of such notice, .or within such time as said alterations could be made with proper diligence, then such failure to make such alterations shall be deemed a violation of this act. ’ ’

This section must be construed with the provisions of section 20, supra. Section 20 is indefinite as to just how these platforms must be erected or placed., but it is made definite when a State inspector looks over the situation and directs just how they shall be erected and located. This direction comes by force of section 16. Platforms located close to the unloading track may add to the dangers of the switchmen in putting in cars to be unloaded, but platforms located at a distance therefrom might add to the dangers of accident of other railroad employees engaged in unloading and loading freight. The railroad company owes a duty to all of its employees, and cannot so construct its platforms to the advantage of one class and to the detriment of another class of its employees. This Act of 1891 leaves the delicate duty of protecting all classes of employees to the supervising eye of an inspector appointed by the State. When the inspector notifies the party and then the party fails to so construct and place its platform in conformity to the direction given, then and only then has there been a violation of this law. Until there has been a violation of the law, there has been no statutory negligence.

The question is a new one in this State, but practically the same point has been decided by the Supreme Court of Massachusetts, in the case of Foley v. Pettee Machine Works, 149 Mass. l. c. 297. That court there says: “The plaintiff claims that the defendant is liable under the Pub. Stats., c. 104, sec. 22. But by the just construction of this chapter a person or corporation .cannot be said to be guilty of a violation of section 13, so as to be liable to a criminal prosecution, or to an action by an employee, until notice has been given to him by an inspector, as required in section 22.”

The language of that court, supra, was used with reference to the laws of that State concerning the inspection of buildings. Section 13, mentioned by the court, reads: “The belting, shafting, gearing, and drums of all factories, when so placed as to be, in the opinion of the inspectors mentioned in section nine of chapter one hundred and three, dangerous to persons employed therein while engaged in their ordinary duties, shall he as far as practicable securely guarded. No machinery, other than steam engines, in a factory, shall be cleaned while running, if objected to in writing by one of said inspectors. All factories shall be well ventilated and kept clean. ’ ’

Section 22, also mentioned by the court, reads: “Any person, firm, or corporation, being the owner, lessee, or occupant of any manufacturing establishment, or owning or controlling the use of any building or room mentioned in section 20, shall, for the violation of any provision of section thirteen, fourteen, fifteen, nineteen, twenty or twenty-one, forfeit to the use of the Commonwealth not less than fifty nor more than five hundred dollars';' and 'shall also be liable for all damages suffered by any employee by reason of such violation; but no prosecution shall be made by such violation until four weeks after notice in writing by an inspector has been sent by mail to such person, firm, or corporation, of any changes necessary to be made to comply with the provisions of said sections; nor then, if in the meantime such changes have been made in accordance with such notification. •Nothing in this section shall be so construed as to prohibit a person injured from bringing an action to recover damages for said injuries.”

In the Foley case the plaintiff sought to recover damages because certain gearing of a machine had not been securely guarded. Under the statutes aforesaid the court held that there was no civil liability until after notice. Our statute points more clearly to notice than does the statute of Massachusetts.

Going to our statute, had the act pointed out definitely how platforms should be constructed, then it might be urged with force that it was not necessary to read the two sections 16 and 20 together. It might be urged that there was a violation of law when the person failed to construct the platform as pointed out by section 20, and another violation of the law when the person failed after notice to reconstruct the same under section 16. But as the statutes now appear, the one being indefinite and uncertain in its terms, the reasonable construction of the two sections is, that there has been no actionable violation of law until after notice is given under section 16, supra. The whole tenor of the act is that what is a' safe platform lies within the judgment of the inspector. So that even if it be conceded that the law is constitutional, the action of the court nisi was right.

Suppose in a given case, an inspector should direct that the platform be placed eight inches from the side of the car, as it was m the case at bar, and a switchman was injured by Reason of that fact, can it be questioned that the direction of the inspector would not be a valid and absolute defense to an action for damages'? We think not. On the other hand, suppose further an inspector directed the platform to be placed five feet from the sides of the car, and by reason of that fact, a car unloader was injured, can it be ques-. tioned that the direction of the inspector would not be a valid and absolute defense to a suit for that injury? We think not. To our mind the act contemplates that platforms are to be left in statu quo until in the judgment of the inspector a change is ordered. This change must be made only after notice. A failure to make the change after notice is a violation of the statute which is actionable. What is here said does not apply to many of the provisions of this lengthy act, because there are many things therein not covered by section 16, supra. Platforms of railway freight depots are covered, however.

With these views, it becomes unnecessary to discuss the case from the viewpoint of the evidence. Nor shall we discuss the fact as to whether or not plaintiff’s petition states a cause of action at common law. The case was not so tried below. Upon the present record, the action of the trial court was right, and its judgment is affirmed.

All concur, except Valliant, J., absent.


author: WOODSON, J.

text:
    PATRICK SCARRY et al. v. BUNKER-CULLER LUMBER COMPANY, Appellant.
    Division One,
    March 31, 1911.
    ORDER OF PUBLICATION: Wrong Name: Carrey for Scarry. In. order to constitute a valid service by publication, tbe notice must be given to tbe defendant by'bis correct name, or by a name that is known to tbe law as idem sonans — that is, such a name as tbe eye and tbe ear of those who know tbe person, would not fail to recognize as that of the person referred to in tbe publication as tbe defendant. An order of publication in- a tax suit against John Scarry which named John Carrey as tbe defendant, was not sufficient to bring John Scarry into court, and a judgment rendered in pursuance thereto and a sale of tbe land upon execution did not carry the title to tbe purchaser. The attentive ear would have no difficulty in distinguishing tbe pronunciation of tbe name Scarry from that of Carrey.
    Appeal from Shannon Circuit Court. — Eon. IT. N. Evans, Judge.
    ApmuvrBD.

      S. A. Cunnvng:ham, Ed J. Shuck and Lincoln dl Lincoln for appellant.

      J. W. Chilton and James Orchard for respondents.
   WOODSON, J.

Counsel for appellant have made a correct statement of the case, with one ex-, ception, which will be presently mentioned. That statement is as follows: “This action was instituted April 6, 1907, in the circuit court of Shannon county, Missouri, under section'650 of the Revised Statutes of 1899, the plaintiffs claiming to be the owners of the land herein involved, same being the west half of section 31, and the north half of the southeast quarter and southwest quarter of southeast quarter of section 31, all in township 31, range 3 west, and alleging, generally, an adverse claim of .title to said property by the defendant.

“The cause was pending in said court until the September term, 1907, at which term, on September 9, defendant filed its answer to plaintiffs’ petition, in which answer defendant sets up a general denial, coupled with a general claim of title to the property in controversy.

“The issues thus made up, the cause proceeded to trial before Hon. W. N. Evans, Judge of the Twentieth Judicial Circuit, without a jury, and on September 14, 1907, at same term of said court, judgment was rendered in favor of plaintiffs, vesting them with title to the land and barring defendant from making further claim thereto. From this judgment the defendant has appealed to this court.

“At the trial it was admitted that John Scarry was the common source of title, and that plaintiffs are his sole heirs; and the plaintiffs are entitled to the judgment rendered in their favor unless the title to said lands was divested out of said John Scarry by a certain sale of said lands for taxes and sheriff’s deed based thereupon. The defendant claimed title to the land by virtue of the tax sale and sheriff’s deed referred to, and it is admitted that defendant has whatever title may have passed to the purchaser at said tax sale.'

“.The contention of the appellant is, that plaintiffs’ ancestor, John Scarry, was divested of any title to the land by said tax sale, and that the sheriff’s deed based thereupon conveyed the title to said land; whereas, the respondents’ contention is that the court rendering* said tax judgment' never acquired jurisdiction of the defendant in said tax suit, and that hence the judgment, the sale and sheriff’s deed are void and conveyed no title. The validity of this sheriff’s sale of said lands for taxes, is the only issue involved in this appeal.

“The sale of said land for taxes took place in the year 1881, in a suit against John Scarry, and John E. Organ was the purchaser at said sale; the sheriff under said sale executed and delivered to said John E. Organ a deed which erroneously described the land, and afterwards, to-wit, on March 12,1907, said sheriff, as former sheriff, made and executed another deed to correct his former deed, naming Ida M. Nash, who had succeeded to the title of said John E. Organ,- as grantee therein, from whom defendant afterwards purchased said land, and under whom it now holds.”

The omitted statement, previously mentioned, is,, that the order of publication was against John S. Carrey, while in fact the name of the owner of the land and the common source of title was John S. Scarry.

The sole question presented by this record for determination is, was the publication against John S. Carrey a sufficient notice to bring John S. Scarry' into court, or does it constitute a valid service upon which a valid judgment against him could be based?

Counsel for appellant maintain the affirmative of this proposition, while counsel for respondents insist upon the negative.

In order to constitute a valid service by publication, the notice must be given to the person by his correct name, or by a name which is known to the law as idem sonrns, that is, such a name as the eye and ear of those who know the person could not fail to recognize that the person referred to in the publication was the person against whom the suit was brought. 'The rule upon this subject is stated as follows:

“The law does not regard the spelling of names so much as their sound. By the doctrine idem- soncms, if two names, although spelled differently, sound alike, they are to be regarded as the same. Great latitude is allowed in the spelling and pronunciation of proper names, and in all legal proceedings, whether civil or criminal, if two names, as commonly pronounced in the English language, are sounded alike, a variance in their spelling is immaterial. Even slight difference in their pronunciation is unimportant; if the attentive ear finds difficulty in distinguishing the two names when pronounced, they are idem soncms. The names will be presumed to be pronounced according to the ordinary rules of pronunciation of the English language, unless it is proved that they belong to another language and are pronounced differently in the language to which they belong, and also in the general usage of the community. Usually the insertion or omission of a ‘t’ before the ending ‘son’ is held immaterial, as is also the omission or addition of a final ‘ e, ’ the two names being considered idem soncms. But the addition or omission of a final ‘s’ is usually held a fatal variance. And many names sounding much alike have been declared by courts or juries not idem sonans.”

The same rule has been announced by this court in the following cases: Robson v. Thomas, 55 Mo. 581; Geer v. Mo. Lumber & Mining Co., 134 Mo. 85; Graton v. Holliday-Klotz Co., 189 Mo. 322; Whelen v. Weaver, 93 Mo. 430; Chamberlain v. Blodgett, 96 Mo. 482; Ohlmann v. Clarkson Saw Mill Co., 222 Mo. 62. Also by the courts of appeals in the following cases: Weber v. Ebling, 2 Mo. App. 15; Burge v. Burge, 94 Mo. App. 15.

If we apply that rule to the facts of this case, it will be seen that the publication does not come up to the standard.' The ordinary pronunciation and sound of the name Scarry, as one would naturally suppose, and as the evidence showed, is Skerry, and not Carrey. The names are entirely dissimilar, both to the eye and ear. No person hearing the one pronounced or seeing it in print would ever suppose that the one was intended for the other. The attentive ear would have no difficulty whatever in distinguishing the pronunciation of the name Scarry from that of Carrey. That being true, they are not idem soncms within the meaning of the books. [Robson v. Thomas, supra.]

In Geer v. Mo. Lumber & Mining Co., supra, this court held that the names' Lane and Leane were not idem soncms, yet it would be more difficult to detect the distinction between their pronunciation than it would be to detect it between the names Scarry and Carrey.

"We are, therefore, of the opinion that the publication was not sufficient to bring the defendant in the tax suit into court.

That being true, it must follow that the judgment and the tax sale thereunder were void and passed no title to appellant or any of its grantors.

The judgment was for the right party, and it should be affirmed; and it is so ordered.

All concur, except Vallicmt, J., absent.


text:
    C. L. KEATON, Appellant, v. ELIZABETH A. WEBER, Respondent.
    Division One,
    March 31, 1911.
    1. ABSTRACT: No Showing of Motion in Record Proper. Unless the abstract of the record proper shows that a motion for a new trial was filed in the circuit court, the appellate court cannot consider the exceptions, though the bill of exceptions shows both such motion and that it was filed.
    2. -: Affidavit for Appeals: Record Matter. The abstract of the record proper should show at what term an affidavit for an appeal was filed in the circuit court, and at what term the appeal was granted.
    3. -: Filing of Bill of Exceptions. The abstract of the record proper should show that the bill of exceptions was signed by the court, and a record entry showing the filing of the same.
    4. -: Commingling Record and Exceptions. Matters of record proper cannot properly appear in the abstract of the bill of exceptions, nor can matters of exception properly appear in the abstract of the record proper. The abstract should distinguish matters of record proper and matters of exception.
    Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.
    Afitbmbd.

      Keaton & Keaton for appellant.

      Wammack S WéWorn for respondent.
   WOODSON, J.

This suit was brought in the circuit court of Stoddard county to have the rights and interests of the parties thereto ascertained and determined to a certain tract of land, under section 650, Revised Statutes. 1899. A trial was had, which resulted in a judgment for the defendant, and, after proper steps were taken, the plaintiff appealed the cause to this court.

At the threshold of the case we are met with the following motion to affirm the judgment, to-wit (formal parts omitted):

“Comes now Elizabeth A. Weber, the respondent in the above cause, and moves the court to affirm the judgment rendered by the circuit court therein, and as grounds for said motion alleges the following:

“ (a). The alleged abstract of the record filed by the appellant in said cause is insufficient because of the following fatal defects:

“1. Said alleged abstract of the record does not show that any motion for a new trial was ever filed by the appellant in the circuit court.

“2, Said alleged abstract of the record does not show that appellant ever filed any affidavit for an appeal.

“3. Said alleged abstract of the record does not show that appellant was ever granted an appeal and does not show that appellant was ever granted leave to file a bill of exceptions.

“4. Said alleged abstract of the record does not show that appellant ever filed a bill of exceptions.

“5. Statements are made in the abstract of the pretended bill of exceptions that the things mentioned in paragraphs 1, 2, 3 and 4 above were done, but this is not sufficient. These are matters of record proper and must be shown in the abstract of the record proper.

“6. Said alleged abstract of the record nowhere shows that there was ever any record entry made of the filing of a motion for a new trial, or that such a motion was filed at the same term of court at which judgment was rendered. . •

“7. Said alleged abstract of the record does not show that there was ever any record entry made of the overruling of any motion for a new trial.

“8. Said alleged abstract of the record does not show at what term of the circuit court appellant filed an affidavit for appeal and does not show that this was done at the same term at which the motion for a trial was overruled.

“9. Said alleged abstract of the record does not show that there was ever any record entry made of the filing of an affidavit for an appeal.

“10. Said alleged abstract of the record does not show that there was ever any record entry made granting an appeal or granting time in which to file a bill of exceptions.

“11. Said alleged abstract of the record does not show when an appeal was granted and does not show that an appeal was- granted at the same term of court at which a motion for a new trial was overruled.

“12. Said alleged abstract of the record does not show that there was ever any record entry made of the filing of a bill of exceptions.

“13. Said alleged abstract of the record nowhere shows that any bill of exceptions was ever either agreed upon, allowed, signed, or in anyway identified, perfected or made to constitute a part of the record in the case.

“(b). By reason of the defects in said alleged abstract of the record, mentioned above, this court, under its rules and decisions, will do nothing but examine the pleadings, and judgment, and if the judgment is one which the court might have rendered under the pleadings, the judgment will be affirmed.

“(c). The judgment rendered in this case is such a judgment as the court could properly render under the pleadings.”

The first ground for an affirmance of the judgment is well taken. The abstract of the record proper does not show that a motion for a new trial was ever filed in the circuit court. That fact, however, does appear from the bill of exceptions; but under the reported rulings of this court, such a showing as that is not sufficient. The filing of the motion must appear from the abstract of the record proper. [Harding v. Bedoll, 202 Mo. 625; Milling Co. v. St. Louis, 222 Mo. l. c. 309; Stark v. Zehnder, 204 Mo. l. c. 449; Pennowfsky v. Coerver, 205 Mo. l. c. 136.]

The abstract of the record proper is also faulty, because it does not show at what term of the court the affidavit for an appeal was filed, or at what term the appeal was granted. The statute of the State requires the affidavit for an appeal to be filed during the term at which the judgment was rendered, and the rules of this court require those matters be abstracted. [Milling Co. v. St. Louis, supra; Harding v. Bedoll, supra; Pennowfsky v. Coerver, supra; Stark v. Zehnder, supra; Barham v. Shelton, 221 Mo. l. c. 70.]

It appears nowhere from the abstract of the record that the bill of exceptions was ever signed by the court, or that there is a record entry showing the filing of the same. Both of those matters should have been shown by the abstract. [Stark v. Zehnder, supra; St. Charles ex rel. v. Deemar, 174 Mo. l. c. 124; Harding v. Bedoll, supra; Reno v. Fitzjarrell, 163 Mo. 411.]

The contention that the abstract of the record is defective because it does not distinguish matters' of exception from matters of record proper is also well taken. Matters of record proper cannot properly appear in the abstract of the bill of exceptions, nor can matters of exception properly appear in the abstract of the record proper. [Stark v. Zehnder, supra; St. Charles ex rel. v. Deemar, supra; Clay v. Publishing Co., 200 Mo. l. c. 672; Barham v. Shelton, supra; Milling Co. v. St. Louis, supra; Kolokas v. Railroad Co., 223 Mo. l. c. 461; Hays v. Foos, 223 Mo. 421; S. M. & A. R. R. v. Wyatt, 223 Mo. l. c. 351; Owen v. Mathews, 226 Mo. 77.]

Upon this state of the abstract, there is nothing properly before the court for consideration, except the petition, answer and reply, also judgment of the court. After an examination of those matters, we find that the judgment is in proper form and is responsive to the pleadings.

Finding no error in the record proper, the judgment is affirmed.

All concur, except V'allicmt, J.,, absent.


author: CRAVES, P. J.

text:
    THENA EWART et al., Appellants, v. R. S. PENISTON et al.
    Division One,
    March 31, 1911.
    1. MOTION FOR NEW TRIAL: Not Filed Within Four Days. A motion to set aside a judgment, filed by a stranger to the record, cannot be sustained as a motion for a new trial if filed more than four calendar days after verdict and judgment, nor should it be considered as a motion for a new trial.
    2. -: Filed by Stranger. A motion for a new trial must be filed by a losing party to the suit, and not by a stranger to the record; and a motion by a stranger to set aside the judgment cannot be sustained as a motion for a new trial.
    3. PETITION FOR REVIEW: Filed by Stranger. A petition to review a judgment must be filed by a defendant in a cause, and a motion filed by a stranger to the record to set aside a judgment cannot be considered as a petition to review the judgment.
    4. SETTING ASIDE JUDGMENT: By Court of its Own Motion: Statute. Sec. 2023, R. S. 1909, providing that “only one new trial shall be allowed to either party, except where the triers of the fact shall have erred in a matter of law, and when the jury shall be guilty of misbehavior,” upon its face shows that it applies only to cases involving the granting of a second motion for a new trial to the same party. It has no application to the authority of the court to set aside a verdict and judgment upon its own motion. Notwithstanding this statute, a court, upon its own motion, in the interest of justice and at the same term at which the judgment was rendered, may set aside the verdict and judgment.

      5. -: -: Upon Motion Filed by Stranger. An action was brought in the circuit court to establish an allege^ will which had years previously been denied probate by the probate court, the plaintiffs being some of the testator’s heirs and the defendants his other heirs, but in fact were not adversaries. The verdict sustained the will and there was some evidence to support the verdict. After judgment rendered, but at the same term, a stranger filed a motion to set the verdict and judgment aside, and grant a new trial, asserting that he and others claim to hold title to valuable lands from said testator, which will be jeopardized if said judgment is permitted to stand, and offering to become a party if said judgment is set aside. Held, that the court had power to set aside the verdict and judgment of its own motion, in the interest of justice, at the same term; and having done so it will not be held, under the circumstances, that the court abused its discretion in doing so. Held, also, that it will not be held .that the paper filed by the stranger, though it cannot be considered a motion for a new trial, was improperly permitted to stand on the record, since the court has the right to dcquire knowledge in some manner as to whether its judgment, still within its control, has done injustice.
    Appeal from St. Louis City Circuit Court. — Hon. Chas. Claflin Allen, Judge.
    Affirmed.

      H. W. Femmer and Barnett é Barnett for appellants.
    (1) The court erred in setting aside the verdict of the jury and granting a new trial on the application of Terry, and erred in .overruling plaintiff’s motion to strike out said Terry’s petition for a new trial for the following reasons: First, because if said application is to be regarded as a motion for a new trial the same was filed too late. All motions for new trial, and in arrest of judgment, shall be filed within four days'after the trial, and this was not filed until about twenty-two days after the trial. R. S. 1909, see. 2025; St. Joseph v. Robinson, 125 Mo. 1; Campbell v. Cassville, 130 Mo. App. 102; Wright v. Fetters, 121 Mo. App. 588; Scullin v. Railroad, 192 Mo. 1; State v. Fawcett, 212 Mo. 729. Second, if said application of Terry is to be construed as a petition for a review, under secs. 2100 and 2104, R. S. 1909, then the said petition could not have been properly considered by the court, because under such sections no one but a defendant in the cause can file any such petition for a review. R. S. 1909, sec. 2101. Section 2104 says that no judgment shall be set aside unless the petition for review shall state the existence of facts set forth in section 2101. (2) The verdict of the jury and the finding and judgment of the court is final, saving to the court the right of granting a new trial as in other cases. R. S. 1909, sec. 556. The above section is conclusive as to the effect of the judgment in this case and the same cannot be attacked or set aside except by granting a new trial as in other cases. There will be no ground for granting a new trial here, as in other cases, because no motion for a new trial was filed within four days or at any other time and no petition for a review has been filed by any party to the suit. Therefore, the verdict of the jury and the judgment must be final, and the court erred in setting aside the verdict and granting a new trial. (3) Even though this application for a new trial had been timely and in proper form it should not have been sustained because Albert T. Terry is not a party to this suit. It is not necessary to make all parties who 'may have an interest in the land formerly owned by Sublette parties to this suit. Such would be impracticable and result in a denial of justice. It is only necessary to make the legatees under the will, or those claiming under them, and the heirs at law of Sublette, parties to the suit. All persons who may be interested in the estate are not necessary parties. Kischman v. Scott, 166 Mo. 224. Here the petition alleges and the evidence sustains the allegation that the parties to the suit are all the heirs and legatees of Sublette. There is no aliegation that Terry is an heir or descendant of Sublette. Pie is a stranger, a volunteer, and the fact that he may have some interest in the property of Sublette by purchase does not make him a necessary party to the suit. (4) If Terry was a necessary party to the suit, he has not sought to make himself a party. In his paper he does not move the court for permission to be made a party and does not offer to file any answer therein. He simply asks that the judgment may be set aside, so that any party who may so desire at the next trial, may appear and be heard. Should the court below be authorized to set aside the verdict of a jury and its own judgment, upon the mere general statement that there are other parties, who are interested in the litigation, without giving their names or without going into court and offering to be made parties to such suit, there could be no final determination of any litigation. (5) There is no law authorizing any person to be made a party defendant upon his own demand, in a suit previously pending, because his interest may be affected by the controversy in some collateral way. He cannot intrude himself or force himself into the case. Kortjohn v. Seimers, 29 Mo. App. 271; Boyer v. Hamilton, 21 Mo. App. 521. The trial court cannot set aside a verdict of a jury and its own judgment for the mere causes that it may deem sufficient, but is bound, in the exercise of its discretion in setting aside such verdict and judgment, to the causes mentioned in Sec. 2023, R. S. 1909; State ex rel. v. Adams, 84 Mo. 316.

      A. <& J. F. Lee and Eliot, Chaplin, Blayney <£ Bedal for petitioner.
    (1) Courts having common law jurisdiction possess the inherent power to set aside their own judgments at any time during the term in which they are rendered, with or without motion, where the judge is of the opinion that for any reason an injustice has been done, or a fair trial was not had. Scott v. Smith, 133 Mo. 618; Rottmann v. Schmucker, 94 Mo. 139; Hesse v. Seyp, 88 Mo. App. 66. (2) The appellate courts will not interfere with such action of the trial court, in setting aside a judgment and granting a new trial, unless the trial judge has acted arbitrarily and oppressively. (3) The statutory provisions pertaining to the granting of a new trial are not the only authority of a court to grant a new trial. The court has a common-law power to make such order, for good reason, on its own motion, or at the suggestion of a party. Fine v. Richards, 15 Mo. 315; Garneau v. Herthel, 15 Mo. 19; Hewitt v. Steele, 118 Mo. 463; Nulton v. Croskey, 111 Mo. App. 18. (4) Under Sec. 556, R. S. 1909, the court, in the matter of probating a will in solemn form, has the right of granting a new trial, as in other cases. (5) The action of the trial court was not only not arbitrary nor oppressive, but was taken to avoid a judgment based upon mistake and not supported by the evidence, and which, if permitted to stand, worked an injustice — since: 1. A proceeding, under See. 555, R. S. 1909, is a proceeding in rem and binding upon all the world. Watson v. Alderson, 144 Mo. 345; Jourden v. Meier, 31 Mo. 40. 2. Where a will has once been probated in solemn form, equity will not set aside nor modify nor avoid the judgment establishing the will. Woerner on Administration (2 Ed.), sec. 497; Stowe v. Stowe, 140 Mo. 594. 3. A judgment probating a will in solemn form is an entirety, and, if valid, binds not only all who were parties to the proceeding, but everyone whose interests are affected by the will. Wells v. Wells, 144 Mo. 198; Rush v. Rush, 19 Mo. 441. (6) One offering a will for probate in solemn form pursuant to Sec. 555, R. S. 1909, must be a party interested in the probate of the will — that is, one who will take under the will. A failure of a proponent to prove that he is such a party is just as fatal as a failure of a plaintiff in any other action to prove that he is a proper party plaintiff. R. S. 1909, sec. 555. (7) The probate of a will in solemn form (R. S. 1909’, sec. 555) requires that an issue be made, and the proceeding is inter partes and requires notice to all parties in interest. Woerner on Administration (2 Ed.), sec. 500; Eddy v. Parke, 31 Mo. 513 ; Rush v. Rush, 19 Mo. 441; Wells v. Wells, 144 Mo. 198'. The parties in interest are: 1, the beneficiaries under the will, other than the proponents; 2, the heirs at law of the decedent. (8) Those who have by attachment, execution, conveyance or otherwise, acquired an interest and title in decedent’s property, through an intestate devolution of decedent’s property — which interest and title would be affected, impaired or destroyed by the probating of decedent’s will — are entitled to be made parties to the probating of a will in solemn form. Alderson v. Watson, 146 Mo. 333 ; In re Langevin, 45 Minn. 429; Smith v. Bradstreet, 16 Pick. 264; Davis v. Leete, 111 Ky. 695; Foster v. .Jordan, 1301 Ky. 445; Brooks v. Paine, 123 Ky. 271. (9) The ten-year Statute of Limitations applies to the probating of a will in common form. Foster v. Jordan, 130’ Ky. 445; Reid’s Administrator v. Benge, 112 Ky. 810; Cleveland Orphan Institution v. Helm, 24 Ky. Law Rep. 2485.
   CRAVES, P. J.

Action in the circuit court of the city of St. Louis to establish the alleged will of Solomon P. Sublette. Plaintiffs and defendants are alleged to be the only 'heirs at law of the said Solomon P. Sublette, as well as the only beneficiaries -under the said will. It appears that there was an attempt to probate the will in the probate court of the city of St. Louis in 1896, but the same was rejected. The petition avers that the plaintiffs a,re and for years had been married women, and thus they sought to obviate the bar of the Statute of Limitations. Upon a trial before a jury in the circuit court plaintiffs had a verdict establishing the paper writing as the last will and testament of Solomon P. Sublette, deceased. Proper judgment followed such verdict December, 13, 1907.

On January 3, 1908, one Albert T. Terry, a stranger to the record, filed a motion in which it is suggested that there are a great number of persons interested in the probate of this said will: “-who claim to own and hold the title to, as heirs and purchasers under said Solomon P. Sublette, large and valuable tracts of land located in the city of St. Louis, Missouri, and elsewhere, which titles are based upon the death of said Solomon P. Sublette without a will and the descent of his property.to his heirs at law.” It is averred that the petitioner is one of such persons and the land he so claims is described. The pleading filed by Terry thus concludes:

“Wherefore your petitioner shows the court that he is in danger, unless the court is willing to exercise its discretion by setting aside said decree, of losing title to the valuable property which he and those under whom he claims have held for over half a century and without having an opportunity to defend his title before this court.

“Wherefore your petitioner respectfully prays that the court set aside the judgment and verdict in this case and order a new trial of the issues herein at which time there may be present and participating such other and further parties as will represent the heirs at law at this time and those who would take by descent and distribution the estate of Solomon P. Sublette and such other and further parties may be heard as claim title to the various parcels of the property embraced in the estate of Solomon P. Sublette, deceased, and that this petitioner and such others of the claimants of title in said property, or persons who are liable undér warranty deeds covering said property, as desire to be made parties herein be allowed to enter their appearance herein as defendants.”

Such motion was verified, but no answer to the plaintiffs’ petition was tendered therewith. As against this motion the plaintiffs filed the affidavit of James T., Roberts, in which it is said:

“Affiant further states that he has been connected with this litigation for two years and in connection with said litigation he has familiarized himself with the genealogy of the Sublette family and particularly the genealogy of the testator, Solomon P‘. Sublette, and affiant verily believes that Thena Ewart and Martha Brass, the plaintiffs in this canse, and Robert S. Peniston, John N. Dalby, Nannie ■ B. Wilburn and Lucy Harris are all of. the béneficiáries under the will of the testator propounded in this cause, either' taking directly under the will or as purchasers from other devisees.

“Affiant further states that the petitioner,, Albert T. Terry, is not one of the heirs at law of Solomon P. Sublette, the testator, nor is his grantor, nor is anyone under whom Terry or his grantor claim one of the heirs at law of the said Solomon P. Sublette, but in truth and fact Albert T. Terry, and those under whom he claims, are strangers to the blood of Solomon T. Sublette and have no rights to be made plaintiffs or defendants in this cause.

“Affiant further states that the plaintiffs and defendants in this cause are not only the only beneficiaries and devisees under said will, but they are also all of the heirs at law of Solomon P. Sublette now interested in said estate. Further affiant saith not.”

Plaintiffs also filed a motion to strike out the said motion of Albert T. Terry, which was overruled by the trial court and the judgment establishing the will was set aside, by the following judgment of the said court:

“Now at this day the petition of Albert T. Terry filed herein January 3, 1908, verified by affidavit, to set aside the decree of this court and for a rehearing, coming on to be heard, comes said petitioner, by his attorney, come also the plaintiffs, by their attorneys, thereupon said parties submit to the court the said petition of Albert T. Terry for a rehearing; also the plaintiffs’ motion, filed herein January 8, 1908, to strike from the files the petition of said Albert T. Terry for a rehearing; also the affidavit of James T. Roberts filed herein January 10, 1908; and the court having heard and fully considered all of said matters and things, and being now fully advised of and concerning the premises, doth order that plaintiffs’ motion to strike from the files the petition of Albert T. Terry for a rehearing and plaintiffs’ objection to said petition for a rehearing, be and the same are hereby overruled. And the court doth further order that the petition and motion of said Albert T. Terry for a rehearing be and the same is hereby sustained, and the court being satisfied that a mistake has been committed by a witness or witnesses concerning the heirs at law and parties interested in the subject-matter of this proceeding, whereby necessary and proper parties .of said proceeding were not made parties thereto, and being also satisfied that an improper verdict and finding was occasioned by such matters, and because of want of evidence to sustain the verdict, doth, upon the petition of said Albert T. Terry and also upon its own motion and in the exercise of the discretion of the court and during the terms of this court, to-wit, the December Term, 1907, at which said verdict and judgment was rendered and entered, order that said verdict and judgment be and the same is hereby set aside, vacated and for naught held and esteemed.”

From such order and judgment the plaintiffs have appealed. Points made will be noted in the course of the opinion.

I. This case presents some peculiar phases. It is evident from the record that both plaintiffs and defendants were anxious to have the will established, and to that end there was no real opposition to plaintiff's. It is also evident that the case made was not extremely strong, because with no opposition in the trial, plaintiffs were only able to secure a verdict from ten jurors. This, where there Is no contest, is rather significant. But this is really adrift. Plaintiffs did secure a verdict and a judgment, which the court later, although at the same term, set aside. Was there error in the action of the court in this regard, conceding there was some evidence to sustain such verdict and judgment?

This action of the court must be viewed in this opinion from two standpoints, (1) whether or not the court could act upon the motion of Terry, a stranger to the. record, and (2) whether the court could act of its own motion. Of these in order.

II. The application of Terry cannot be sustained on the theory of being a motion for new trial for two reasons, (1) because not filed in time, and (2) because filed by a stranger to the record.

This document was filed more than four days after the verdict and judgment, and as a motion for new trial was out of time. As a motion for new trial it should not have been considered. [R. S. 1909, sec. 2025; St. Joseph v. Robison, 125 Mo. 1; Scullin v. Railroad, 192 Mo. 1.] The four days mentioned in the statute, supra, are calendar days, not court days. [Long v. Hawkins, 178 Mo. 103.]

It is true that calendar days have been defined to be and are “working” days, as distinguished from Sunday. [Cattell v. Publishing Co., 88 Mo. 356; National Bank v. Williams, 46 Mo. 17; State v. Harris, 121 Mo. 445.]

As a motion for new trial it cannot be sustained for the further reason that it was filed by a stranger to the record. The law contemplates that motions for new trial must be filed by the losing party and not by a stranger. Persons desiring to be made parties to a suit before trial can file application to that effect, but after trial, the motion for new trial must come from the losing party. Strangers to the record should not be permitted to appear at this point of a proceeding. This is especially true of Terry in this case, who in his application for a new trial of the case does not tender an answer or even ask to be made a party to the suit.

What we here say applies to this instrument filed ' by Terry purely as a motion for new trial. What has thus far been said does not apply to it as a pleading in any other sense than a motion for new trial. Other phases of the question we take later.

Neither is it good under our statute as a petition for review. Such petitions must be filed by a defendant in the cause, and Terry was not a defendant in this cause. [R. S. 1909, sec. 2101, et seq.]

Counsel for Terry who have filed briefs in the cause do not seriously contend that this instrument filed by Terry could be sustained upon the ground of its being either a proper motion for a new trial or a petition for review.

Their contention we take next.

III. It is urged that the court was fully authorized to set aside the verdict and judgment of its own motion. The plaintiffs say, however, that the court is only authorized to set aside a verdict upon its own motion for one or both of the two grounds mentioned in section 2023, Revised Statutes 1909, which reads: “Only one new trial shall be allowed to either,party, except:' First, where the triers of the fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior ; and every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.”

This section in our judgment does not apply to this case. Upon its face it is shown to apply only to cases involving the granting of a second motion for new trial to the same party. In support of their contention counsel for plaintiffs cite us to the case of State ex rel. Brainerd v. Adams, 84 Mo. 310. There is language in that case which lends color to the ’Contention made that the court of its own motion can only set aside a verdict for the reasons specified in’ the statute, but when the whole opinion is considered we hardly think it susceptible to the construction urged. Especially, in a case where no previous motion for new trial had been granted. In that case, Judge Adams of the circuit court had set aside a verdict of his own motion. By mandamus in the St. Louis Court of Appeals the relator sought to compel him to enter judgment upon the verdict. The St. Louis Court of Appeals directed the judgment to be entered, and further directed that after such entry of judgment the trial court permit the filing of a motion for a new trial within four days. There were cross .appeals from this judgment of the Court of Appeals. [State ex rel. v. Adams, 84 Mo. l. c. 314.] The case was finally disposed of here by this langmage in the concluding portion of the opinion: ‘ ‘ The judgment of the Court of Appeals is reversed and the cause remanded to that court, with directions to enter a judgment refusing the peremptory writ.” It therefore appears that this court refused to let the writ go directing a judgment to be entered upon the verdict, although the court had set aside such verdict of its own motion.

The statute invoked has from an early day been construed in this State. It has always been construed as applying to a second motion for new trial urged by the same party. [Boyce’s Admr. v. Smith’s Admr., 16 Mo. l. c. 321.] In that ease it was said: “The object of the law, in restraining .courts from granting the same party two new trials, is to prevent the substitution of the verdict -of the court for that of the jury. When two juries, on the same issue, find the same verdict, the law will not permit the court to interfere with the last finding, as the jurors are the constitutional triers of the facts. . . In specifying the causes for which a second new trial could only be granted to a party, the statute proceeds upon the supposition that the law has been correctly expounded to the jury, and the statute only applies to those cases in which this has been done.” Even at this early day •Judge Scott concedes that it only applies to a second motion for new trial. Not only so, but from the last paragraph quoted above he recognizes that the statute really has reference to the finding of fact made by the jury when such jury, has been properly instructed. So too in the later case, of State ex rel. v. Horner, 86 Mo., l. c. 73: “We. are of the opinion that this statute put no limit to the number of new trials a circuit judge may grant either party when the new trials are granted on account of errors committed by him in giving or refusing instructions, or in admitting or rejecting evidence. Nor does it put any limit on the number of new trials he may grant when the jury err, either in a matter of law, or where they are guilty of misbehavior. From the earliest history of jurisprudence in this State, to the present time, this court has not only recognized the right, but declared it to be the duty of the circuit judge ■ to correct his own errors committed in the conduct of a cause tried, before him, and in recognition of this we have invariably held in numerous, cases that when evidence is received or rejected,, or instructions are given or refused, over the objections of a party made at the time, this court will not, on appeal or writ of error, notice such objéctions, unless the error of the coiart complained of is again brought to the attention of the court, especially, in a motion for new trial, so that the judge may first have the opportunity of correcting his own errors, if any have been committed. We have gone further than this and in a number of cases have held that we will not interefere with a judgment upon the ground that the verdict is against the weight of the evidence, one ground of the ruling being that the circuit judge in whose presence the witnesses testified, was in a better position to pass upon such a question than this court. It is clear, we think, that the said statute invoked by relators ims only intended to interdict the granting of a second new trial to the same, party only in a case where such party has had one neu> trial granted to him on other grou/nds thgn error committed by the court in the progress of the trial, or on other grounds than that the jury erred in a matter of law, or had been guilty of misbehavior. In speaking of said statute, it was observed by Judge Scott in the case of Boyce v. Smith, 16 Mo. 317, that ‘in specifying the causes for which a second new trial could only be granted to a party, the statute proceeds upon the supposition that the law has been correctly expounded to the jury, and the statute only applies to those cases in which this has been done.’ If said statute only applies to those cases in which the law has been properly expounded to the jury, it conclusively follows that it cannot be applied to the first new trial granted defendant in 1877, because the demurrer to respondent’s return admits the fact therein stated that such new trial was granted on the sole ground that the law was not properly expounded by the court to the jury. And from this it also necessarily follows that defendants have never had a new trial granted them within the meaning of the said statute, and that the new trial which respondent proposes to grant defendants on the ground that the damages awarded by the jury in the second verdict were excessive, would be in contemplation of said statute the first new trial granted them.”

Again in Kreis v. Railroad, 131 Mo. l. c. 544, we said: “Our conclusion is that a proper construction of the statute gives the trial court the right to grant to either party one new trial on the ground of the insufficiency of the evidence to support the verdict of the jury, regardless of the number of new trials that may have been granted to such party upon other grounds.”

Those cases outline the conception of this court as to the statute relied upon by the plaintiffs, and urged by them in this case. We are not impressed with its application to the case at bar. We are of opinion that courts, upon their own motion, may, in the interest of justice, and during the same term of the court,' set aside their judgment and the verdict upon which it was entered, notwithstanding this statute. The statute does not preclude the court in the exercise of its common law powers to protect the sanctity and justice of its own judgments, if such power is exercised at the term, and before the court has lost control of such judgment by the lapse of the term.

It has been well said by Bland, P. J., in Head v. Randolph, 83 Mo. App. l. c. 287: “A trial court has ‘the undoubted authority at any time during the term at which a judgment was rendered, if the trial judge believes a fair trial has not been had, or for any cause there has been a failure of justice, to set aside the judgment and grant a new trial, of its own motion, or on a motion for new trial. [Scott v. Smith, 133 Mo. 618; Ensor v. Smith, 57 Mo. App. 585; Wight v. Railroad, 20 Mo. App. 481.] And it may set aside a judgment for cause and grant a new trial, even though the motion was filed out of time, if done before the adjournment of the term at which the judgment was rendered. [Nelson v. Ghiselin, 17 Mo. App. 663; McLaran v. Wilhelm, 50 Mo. App. 658; Anderson v. Perkins, 52 Mo. App. 527; Martin v. Tobacco Company, 53 Mo. App. 655.] But after tbe lapse of tbe term, tbe court loses jurisdiction over tbe cause and bas no authority to set aside the judgment.”’

In Scott v. Smith, 133 Mo. l. c. 622, this court said: “ín the absence of a statutory limitation, a trial court possessing general jurisdiction and proceeding according to the course of the common law. has control of its judgments of the character of this one during the term at which they are rendered, and power to vacate them in its discretion. [Williams v. Circuit Court, 5 Mo. 249; Rottman v. Schmucker, 94 Mo. 143; Nelson v. Ghiselin, 17 Mo. App. 665.] While the discretion is judicial, yet it should not he interfered with by appellate courts unless arbitrarily and oppressively exercised. ’ ’

In Rottman v. Schmucker, 94 Mo. l. c. 144, we further said: “That a court of general jurisdiction, proceeding according to the course of the common law, has unlimited power during the whole of the term over its judgments rendered at such term is a rule of universal application. [Freeman on Judgments, sec. 90.] Until the end of the term its judgments are in the breast of the court, and may be modified, vacated, or set aside, as justice demands, becoming absolute only upon the adjournment of the court for that term, and no good reason is perceived why the same rule should not apply to those judgments of the probate court, whose verity is as unquestionable after they become absolute as those of the circuit court.”

Again in Aull v. St. Louis Trust Co., 149 Mo. 13, we said: “The power of a court over its judgments ' during the entire term at which they are rendered, is one of its .common law powers, of which it can only be deprived by statutory enactment. [1 Freeman on Judgments (1 Ed.), sec. 90.]” On the next page we quote with approval what was said in the Rottman case, supra.

In 29 Cyc. 722, the general rule as to’courts possessing common law powers, is thus stated: "Courts of general common law jurisdiction have inherent power to grant new trials. And statutes conferring on appellate courts authority to grant new trials do not take away or restrict this inherent power of courts of general jurisdiction, unless the intent to do so is clear. Whether the mere enumeration by statute of grounds for new trials restricts the power of courts of general jurisdiction in granting new trials to such grounds is a disputed question.” From our State the author cites the case of Bartling v. Jamison, 44 Mo. 141. In that case, Judge Bliss said: "That courts of general common law jurisdiction have the right to review and set aside the verdict of a jury found in its own court, and grant a new trial, has been maintained’ for some two hundred years, though its exercise was rare in the common law courts, especially in King’s Bench, until the clear and masterly exposition of its’ necessity by Lord Mansfield, in Bright v. Eynon, 1 Burr. 394. Courts of similar jurisdiction in the United States have universally, so far as I am advised, exercised the power, whether given by statute or not.. Section 25', chapter 169, General - Statutes, which provides that the court may award -a new trial of any issue upon good , cause shown, but not more than one new trial of the same issue; shall be granted to one party,’ is rather a limitation upon, than grant of power to, the circuit court. The granted authority varies in no manner from the. pre-existing power, for courts always based their action upon 'good cause shown,’ real or supposed.' Among the causes were misconduct of the jury or of any juryman, disregard of the law as given by the court, newly-discovered evidence, excessive damages, etc. No court would be tolerated in its arbitrary exercise, although it is a power resting in a sound legal discretion and-the reasons are not always stated upon-. the record.” Further discussing the question at page 759 of the same volume-the learned author says: “In some States the statutory enumeration of the grounds for new trials is exclusive. In other States the statutes are construed as not limiting the powers of courts of general jurisdiction to grant- new trials on any .common law grounds. At early common law a new trial might he allowed whenever injustice appeared to have been done by a verdict.” This State is classified by the author as belonging to the list of States whose statutes do not prevent courts from acting in the course of the common law, and granting a new trial for reasons other than those specifically mentioned in the statutes. [See Fine v. Rogers, 15 Mo. l. c. 320.]

Reverting, therefore, to the judgment of the court in the case at bar, we are of opinion that the trial court in the exercise of its discretion had the right to set aside its judgment, as well as the verdict of the jury upon which it was based. Nor. would we say the paper filed by Terry was improperly permitted to stand of record. ■ As a motion for new trial it could not be considered, and in so far as the trial court considered it in that light there was error. But trial courts have permitted motions for new trial filed out of time to remain on file, and the court of its own motion granted a new trial. If trial courts are to ex- - ercise their common law rights in protecting the sanctity and justice of their judgments, such courts must acquire knowledge in some manner as to wherein injustice has been done.

We cannot say in this light that the instrument filed by Terry was improper. It no doubt occasioned the investigation by the court upon its own motion. When this whole record is considered we cannot say that the court did violence to its discretionary powers in setting aside the judgment in this case. Unless we can so say we should not interfere. If plaintiffs have a meritorious cause, it can he fully shown upon a retrial. We stall not discuss the law as to the necessary or proper parties to the suit, hut leave that to the determination of the court nisi, should application be made. The present judgment in so far as the court purports to have acted upon its own motion should not be disturbed, and inasmuch as with this left standing’ the new trial was proper, we affirm the order granting the new trial.

Valliant and Woodson, JJ., concur; Lamm, J., does not sit.