author: FARIS, J.

text:
    WILLIAM T. McGINNIS, Appellant, v. HYDRAULIC PRESS BRICK COMPANY.
    Division Two,
    July 14, 1914.
    1. NEGLIGENCE: Master and Servant: Insurer of Safety. An employer is not an insurer of the safety of an employee while on his premises. Nor is the conduct of the master’s business to be subjected to the shifting rules of alleged safety arbitrarily devised and set up to fit the actionable necessities of of every casualty.
    2. -: .-: Mud Scraper. In front of defendant’s office was a mud scraper, intended to be used by persons entering the building in scraping mud from their shoes. To a board ■ten inches wide, driven into the ground, was attached at the top with bolts a piece of sheet iron, which had been bent over until it was only about four inches above the pavement, and extending outwardly from the board about three inches. Plaintiff, an employee, 'who had been at the office only a few times in the course of four months, went to the office for instructions as to his work, and as he came down the steps and turned towards one of defendant’s wagons his right foot caught under the projecting iron of the mud scraper, and he was thereby thrown to the ground, and his wrists badly injured. The time was 7:30 in the morning, early in October, and the day was bright. He did not see the scraper, nor did he look for 'it. Held, that he was guilty of contributory negligence, as a matter of law, and cannot recover damages.
    3. -:--: -: Rule of Care. The same rule of care applies to an employee who goes to his master’s office for instructions about his work as would- apply if he were actually at work there. All the duties the master owes hini while on the premises attach at the moment of his injury; and that duty is to provide' him a reasonably safe way of ingress and egress; and it is likewise the reciprocal duty of the servant to use his senses to see án appliance plainly in sight which the master had the right to install; and if, in broad daylight, he fails to see a permanent appliance, in plain view, located where the master had a right to place it, he is guilty of contributory negligence.
    Appeal from St. Louis City Circuit Court. — Hon. Leo 8. Rassieur, Judge. -

      Affirmed.

      Kinealy <& Kinealy for appellant.
    (1) The mud scraper, by reason of its character, location and condition, was an obstruction dangerous to persons leaving defendant’s building, and the duty of the master to exercise ordinary care to furnish his servant a reasonably safe place to work extends to exits and ingresses and to all places where he properly resorts on the premises in connection with his employment. Schumacher v. Breweries Co., 247 Mo. 141; Strohel v. Manufacturing Co., 148 Mo. App. "22; Dressers on Employers’ Liability, sec. 13, pp. 75-6; 4 Labatt’s Master & Servant, sec. 1558, note 2; Alexander v. St. Joseph, 170’ Mo. App. 376. (2) Plaintiff did not know of the obstruction, but even if he did he could not be held guilty of contributory negligence as a matter of law merely because his foot caught under the bent-over scraper. Graney v. St. Louis, 141 Mo. 180 ; O’Donnell v. Hammond, 144 Mo. App. 155. (3) A peremptory instruction such as was given in this case is never proper where the facts are in dispute or where the facts being undisputed, they are such as to be susceptible of two inferences, one consistent with ordinary care and the other tending to show negligence, thus leaving ground for difference between fair-minded men as to whether or not negligence or contributory negligence exists. Clubb v. Scullin, 235 Mo. 585; "Williamson v. Transit Co., 202 Mo. 345; Hegberg v. Railroad, 164 Mo. App. 514.

      Garner W. Penney and Percy Werner for respondent,
    (1) The servant is chargeable with knowledge of all conditions surrounding his employment, and of risks created by these conditions, according as it may reasonably be inferred that those conditions or those risks would have been comprehended by a person of ordinary prudence whose mental and physical capacities, both natural and acquired, and opportunities for observing the facts indicative of danger, were the same. 1 Lábatt’s Master & Servant, sec. 391, p. 1028. If the risk is such as to be perfectly obvious to the sense of any man, whether master or servant, then even in the case of defective machinery, the servant assumes the risk. Keegan v. Kavanaugh, 63 Mo. 230; Soller v. Shoe Co., 130 Mo. App. 721; Jones v. Cooperage Co., 134 Mo. App. 330; Pohlman v. Car & Foundry Co., 123 Mo. App. 228. (2) Plaintiff, as servant of the defendant, was bound to inform himself as to his surroundings and is held, as a matter of law, to have known and accepted all the risks- of the premises which were open and obvious to the sense of any man. (a) This has been applied to overhead dangers, as where a railroad brakeman ran into an overhead bridge, or a driver drove under a low gateway. Devitt v. Eailroad, 50 Mo. 302; Baker v. Asphalt Pav. Co., 92 Fed. 117; Carroll v. Boston Coal Co., 81 N. E. 296. (b) The same is true as to dangers underfoot, such as risers between a hallway and a room. Ware v. Evangelical Baptist, etc., Assn., 63 N. E. 885. (3) There is no question for a jury here. No jury would have a right to set up a standard which would, in effect, dictate the customs of a community. The matter of what kind of mudscrapers, and where to place them, is a matter' for the judgment and discretion and good taste of the owner of the premises. One jury might thoroughly approve of the arrangement; another disapprove. Juries might differ as might individuals. But that would not affect the right of the owner of the premises to use his own judgment and discretion. It is not pretended that the owner set a trap. Questions which are legitimately engineering or architectural questions cannot be submitted to tbe jury as legal questions. Railroad v. Driscoll, 176 111. 334; Railroad v. Riley, 145 Fed. 137; Gilbert v. Railroad, 128 Fed. 531; Morris v. Railroad, 108 Fed. 748; Minnier v. Railroad, 167 Mo. 120; Boyd v. Harris, 176 Pa. 484; Marshall Field & Co. v. Leo Gosky, 133 111. App. 316; Larkin v. O’Neill, 119 N. Y. 221; Mclntire v. White, 171 Mass. 170. The master is always presumed to have done his duty, and he is furthermore within the protection of the rule that “the extent of his legal obligation is merely to provide instrumentalities that can be used without any abnormal danger by a servant who uses ordinary care.” 1 Labatt, Master & Servant, p. 73; Wheat v. St. Louis, 179 Mo. 572; Coffey v. Carthage, 186 Mo. 585; Strutt v. Railroad, 18 App. Div. (N. Y.) 134. (4) The charge of negligence, that the mud scraper was allowed to become bent over, should be disregarded, because the stumbling over the mud guard is itself a sufficient, certain and operating cause of the fall, and no other explanation is needed. Taylor v. Yonkers, 105 N. Y. 202; Wharton’s Negligence, sec. 85.
   FARIS, J.

Action for personal injuries, tried in the circuit court of the city of St. Louis. At the close of the plaintiff’s evidence the court nisi instructed the jury that upon the proof adduced plaintiff was not entitled to recover. Thereupon plaintiff took an involuntary nonsuit with leave to move to set same aside. Thereafter, his motion to set aside this nonsuit being by the court overruled, he appealed.

The negligence pleaded is that which the courts, for convenience, have denominated common-law negligence as distinguished from negligence bottomed upon the violation of a statute or an ordinance. The injuries accrued to plaintiff from his having tripped upon a mud scraper, and having been thereby thrown with considerable violence to the brick pavement, sustaining in his fall injuries to the wrists of both hands. TMs mud scraper was maintained outside of the entrance to the office of defendant. The specific elements of the negligence alleged by plaintiff and on which he bottoms his right to recover, are thus succinctly stated by him in his petition:

“1. In placing and maintaining the mud scraper, by which plaintiff was caused to fall, of the size and character and in the location above stated.

“2. In permitting the iron portion of said scraper to become bent over as stated and in permitting same to remain in that condition.

“3. In failing to furnish plaintiff a reasonably safe place to pass in and out of said building in the course of his employment, because of the presence of said mud scraper as then and there maintained by defendant.”

The answer was (1) a general denial; (2) a plea of assumption of risk, and (3) contributory negligence of the plaintiff.

The locus in quo is graphically shown by the picture on the following page.

EXHIBIT NO. 2

Plaintiff asked for $15,000’ as damages; hence onr jurisdiction. The salient substantive facts as shown by the evidence of the plaintiff (defendant, of course, put in none) are fairly set out by plaintiff, who, in fairness to himself, we permit to speak for himself; adopting as ours his statement of the facts, with minor emendations:

Defendant’s office building was situated on defendant’s premises on the west side of Kingshighway between the tracks of the Missouri Pacific and the Frisco railroads. Kingshighway ran north and south and at the time of the injury to plaintiff, October 7, 1910, a viaduct was being constructed along Kingshighway, across the railroad tracks, and in front of defendant’s premises. The office building in question was of brick and the main line of it was eight feet west of and parallel with the west line of Kingshighway. In other words, the building sat eight feet back from the property line. In front of defendant’s building all the way out to where the construction work was going on, about twenty-six feet, there was a uniform pavement of brick, without any curbing or breaks. This building was constructed with rooms on either side of a central hall. The entrance' to the building was. by three or four steps, and on either side of the approach to these steps there was a mud scraper, intended for use of persons entering the building in scraping the mud from their shoes. These mud scrapers, one upon the north and one upon the south of the entrance, were about seven feet apart and were about ten inches long and stood at right angles to the line of the lowest step and about two feet in front of, that is, east of it, and were entirely surrounded by the brick-paved space. Each scraper consisted of an oak plank ten inches wide by one and five-eighths inches thick inserted in the ground with its width funning east and west, the eastern edge of the scraper being three feet, eight and one-half inches west of the western line of Kingshighway. The top of the wooden post stood five inches above the ground and to this post there was bolted a piece of sheet iron ten inches long and three-sixteenths of an inch thick, which stood, when in its upright position, about two and one-fourth inches above the wood. For some two weeks or more prior to the 7th of October, 1910, the iron .portion of the northernmost scraper had been bent down towards the south so that it stood horizontally about four inches above the pavement and extending three-eighths inches southwardly from the wooden post to which it was fastened. Plaintiff was an employee of the defendant, whose duties, amongst other things, it was to go to different localities in the city where defendant was delivering brick for paving purposes ánd to there receipt for the brick as it was delivered by the wagons. On the day before his injury, he had been receiving brick at a locality on Penrose street, and had been instructed by his immediate superior to call up the office to ascertain what job he was to go to the next day. This the plaintiff tried to do, but did not succeed in getting connection with the office by ’phone, and so on the next morning, having plenty of time, he went down to the office building in question to see Mr. Pleasant, the shipping clerk, from whom he was to receive the instructions as to where to go to work. This was a new building', about four or five months old, and Mr. McGinnis had been in it about three or four times-prior to the occasion in question. He went into the building about seven o’clock in the morning and got his instructions from Mr. Pleasant and then went out of the building to go to the locality where he was to work. As he came out the door at about 7:30 o ’clock, on what plaintiff says he ‘ ‘ supposes was a bright morning, maybe a little cloudy,” he noticed that between the building and a hole in the street where the viaduct work was going on, a distance of about twenty-six feet, a wagon was standing from which lumber was being unloaded, and driving north just in front of the building and within about two feet and a half of the lowest step was one of defendant’s loaded brick wagons. Mr. McGinnis’s destination from the building was toward the north along Kingshighway, and as he came out of the building and down the steps he saw that there was room for him to pass between the steps and the wagon driving north, but as he started northwardly his right foot caught under the horizontally projecting iron portion of the northernmost mud scraper, causing him to fall forward to the street, whereby his wrists were badly hurt and he suffered the injuries for which he here sues. He was unable to arise, but was helped up by some men who saw him fall, and was sent by defendant to a doctor and thence to his home. As stated, plaintiff had been in this building three or four times before, but had not, he swears, noticed these mud scrapers. One witness testified that about two weeks before the plaintiff’s injury witness had heard defendant’s superintendent tell one of its employees to straighten up this bent-over mud scraper.

The sole point to be ruled is the correctness of the trial court’s action in instructing the jury to find for defendant at the close of plaintiff’s evidence. In other words, upon the facts shown, should the case have gone to the jury? If a case was made by plaintiff, we should reverse; if not, we must affirm.

Plaintiff had been employed by defendant some several years. But the office building of defendant had been in use by it only some four or five months prior to the casualty by which plaintiff was injured. He had been in this building only some two or three or four times before this — he tells us he does not remember definitely the number of times. He was hurt about 7:3Q o ’clock in the morning, in the early part of October, in broad daylight, and on a bright day, plaintiff “supposes, though it may have been a little cloudy;” of this he is not sure.

The mud scraper which caused plaintiff’s hurt was ten inches long, eight and one-half inches.high originally, but bent down to five inches when plaintiff was hurt. It was on a board- set into the brick pavement, with which this part of defendant’s premises was paved. This board was originally one and five-eighths inches thick, but since the iron scraping part was bent down, the whole scraper when plaintiff got his hurt, looked at from above, was nearly five inches wide, on top. It was placed on the premises of defendant, inferably as an appliance of cleanliness. To be of use in the intended behalf, it must then- needs be about, or near, the entrance to defendant’s office; a foot or mud scraper for the feet of entrants to the office would obviously subserve no scintilla of its intended office if located at a window, or in the rear yard, or upon the fire escape.

' Obviously, regard being had to the testimony of plaintiff, that he never saw either of the mud scrapers till he tripped and fell over the north one, it can make no difference whether the iron part of this scraper was bent down or not. Its condition in this behalf had nothing to do with the injury to plaintiff, so far as the finite mind can see. If he had known it was there, from having theretofore observed it and so knowing its location assumed its being1 in repair, and had, so assuming, been injured from its being out of repair, there would be something in this contention. As the facts are we drop out of our discussion the physical condition of disrepair of the scraper, and come to look to the only remaining debatably tenable contention that the maintenance of it at all, in the place it was set, was a negligent act.

It is said in 3 Labatt’s Master and Servant, sec. 935, that: “An employer has a right to arrange his own premises in any way which suits his convenience. ’ ’ [Anthony v. Leeret, 105 N. Y. 591.]

It is reasonably plain that any other rule would in actual practice have the effect of making an employer an insurer of the safety of an employee. This for the reason, that the conduct of the master’s business would otherwise be subjected to shifting rules of alleged safety arbitrarily devised and set' up to fit the actionable necessities of every casualty and such shifting, arbitrary methods, however incongruous, would be urged as being the only safe method and only sane way of arranging and conducting the master’s business.

We do not .understand counsel for defendant to contravene the rule contended for by' plaintiff that the same rule of law applied to plaintiff in going to and returning from the premises of defendant as protected him while on such premises and just as if plaintiff had actually been engaged there at work. Upon the facts before us no other view is tenable. All the duties which the master owed to plaintiff while the latter was npon the premises attached at the moment plaintiff was injured. [Jackson v. Butler, 249 Mo. 342; Lewis v. Railroad, 59 Mo. 495; Porter v. Railroad, 71 Mo. 66; Huhn v. Railroad, 92 Mo. 440; Alcorn v. Railroad, 108 Mo. 81; Williams v. Railroad, 119 Mo. 316.] At this precise moment it was incumbent on the defendant to furnish to plaintiff, who was on the premises in the line of duty, a reasonably safe way of ingress and egress. Reciprocally it was the duty of appellant to use his senses as to an appliance plainly in sight, which appliance respondent had the right to install and touching which, as we have seen, no duty lay upon the master to place at any location other than that which was convenient to, and suited the master.

We think upon the facts here the plaintiff'was guilty of contributory negligence as a matter of law in failing to see in the light he had and under the circumstances here, the mud scraper by which he was injured. For it was the duty of the plaintiff himself to exercise ordinary care for his own safety; to use his eyes, which he says were reasonably good, and to avoid running into permanent, erections and appliances, plainly visible and open, upon his employer’s premises.

It is true that plaintiff denies absolutely that he ever saw the scrapers, or either of them until he was hurt. But does it materially aid his case that in broad daylight, in an open and otherwise clear space, he failed to observe a fixed and permanent appliance, which was in plain view and was practically as big in bulk and presented to the vision an, object as large as one of the volumes of the Revised Statutes'? We think not. Negligence, and likewise contributory negligence, may and oftentimes does, consist as well in failing to know as in failing to do. For says Labatt: “The juridical theory of imputed knowledge, which is applied in actions by a servant against his employer, is simply this: that he is or is not chargeable with a comprehension of the conditions which caused his injury and of the risks created by those conditions, according as it may reasonably be inferred that those conditions or those risks would or would not have been comprehended by a person of ordinary prudence, whose mental and physical capacities, both natural and acquired, and opportunities for observing the facts indicative of danger, were the same as those of the servant himself.” [4 Labatt’s M. & S., sec. 1310; Porter v. Hannibal & St. Joe Railroad Co., 71 Mo. l. c. 77; Hollenbeck v. Railroad, 141 Mo. 97; Nicholds v. Plate Glass Co., 126 Mo. l. c. 64.]

In the case of Porter v. Railroad, supra, at page 77, it was said:

“If, however, the defect is patent, open to observation, or such as the ordinary use of the machine in the business the servant is engaged in would disclose to an ordinarily observant man operating it, and the servant had ample opportunity, by operating it, before being injured, to observe the defect, his opportunity to know would be held as knowledge, whether in fact he knew of the defect or not. [Keegan v. Kavanaugh, 62 Mo. 230; Hulett v. St. L., K. C. & N. Ry. Co., 67 Mo. 239.]”

Commenting upon the entire trend and scope of the hundreds of cases cited by him on this point, the above distinguished author says:

“It will be seen that the general effect of these cases is that an adult servant of ordinary intelligence is presumed to have been capable of ascertaining every fact which could have been apprehended by the senses of a person having the same opportunities as he had for exercising those senses in relation to the dangerous conditions which caused the injury. ’ ’ [4 Labatt’s Master & Servant, sec. 1313, and numerous cases cited.] .

No case holding to the contrary has been called to our attention. The cases of Alexander v. St. Joseph, 170 Mo. App. 376; Graney v. St. Louis, 141 Mo. 180, and O ’Donnell v. Hannibal, 144 Mo. App. 155, are all sidewalk cases, wherein injuries occurred to pedestrians upon public streets and sidewalks. We need scarcely pause to say that there is a difference between the actual degree of care reciprocally enjoined by law upon a city as to its sidewalks and pedestrians thereon, as compared to that required of a master and his servants while the latter are at work upon the master’s premises. In the former case there is an implied assurance that the sidewalks are clear and unencumbered and reasonably safe and free from danerous obstructions, and reasonably safe for the use of pedestrians, for which use alone they are maintained ; while on the other hand obviously, no business could ordinarily be carried on, for neither machinery, machines, materials and appliances could be installed or used upon the master’s premises, if an assurance of absolute freedom from obstructions and smoothness of way were warranted to the servant by the master. Such cases are not so in point here as to be decisive, however much in point upon a different state of facts, and however similarly we may loosely define generally the degrees of care respectively enjoined.

The case of Strobel v. Mfg. Co., 148 Mo. App. 22, cited by appellant, while superficially seeming to be controlling as to the facts, is yet not so. Por the reason, that in the Strobel case, supra, the obstruction was abnormal or unusual, was in a dark ■ passageway used by the employees as a means of exit, and was composed of material loosely and carelessly, but temporarily, piled therein. It was an obstruction which lacked the feature of permanence; it was therefore abnormal, i. e., “not conforming to system” (Webster’s Dictionary), and rendered the passageway dangerous beyond the ordinary at the time of the injury to Strobel, and an injury occurring therefrom was therefore actionable.

It results from what has been said that the judgment should be affirmed. Let this be done.

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


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    THE STATE v. EMPIRE BOTTLING COMPANY, Appellant.
    Division Two,
    July 14, 1914.
    NONALCOHOLIC DRINKS: Adulteration: Saccharin: Constitutional Question. Tlie statute (Laws 1911, p. 261) prohibiting the making or selling of nonalcoholic drinks adulterated with saccharin is unconstitutional. Whether saccharin is deleterious to health or not, it is an arbitrary discrimination to prohibit its use in nonalcoholic drinks and not in other foods and drinks. If the Legislature intended to prevent the use of saccharin in nonalcoholic drinks, not because it is deleterious, but because it sweetens, then there is an arbitrary discrimination in favor of those who sweeten such drinks with sugar. If the Legislature regarded saccharin as deleterious to health, it should have excluded it from all foods and drinks, and not merely from nonalcoholic drinks. If the purpose was merely to prevent the sweetening of nonalcoholic drinks, it should have prohibited the use of any kind of sweetening in such drinks.
    Appeal from St. Louis Court of Criminal Correction.— Ron. Galvin N. Miller, Judge.
    Reversed.

      Sch/mrmacher S Rassieur for appellant.
    (1) The act is a special law, although a general law might have been made applicable, and it therefore violates subdivision 32 of section 35' of article 4 of the Constitution of Missouri. In so far as the said act prohibits the use of saccharin in non-alcoholic drinks, without at the same time prohibiting the use of saccharin in alcoholic and other drinks and foods, the act is class legislation and violates subdivision 26 of section 53 of article 4 of the Constitution of Missouri, in that it grants a special or exclusive right, privilege or immunity to other corporations, associations or individuals, and unlawfully discriminates against the defendant. And the said act also violates section 1 of the Fourteenth Amendment to the Constitution of the United States, in that it unlawfully abridges the privileges and immunities of this defendant and denies to this defendant the equal protection of the laws. State v. Miksicek, 225 Mo. 572; Woolley v. Mears, 226 Mo. 41; State ex rel. v. Ashbrook, 154 Mo. 375; State v. Walsh, 136 Mo. 405; State v. Thomas, 138 Mo. 100’. (2) Even if the act be held constitutional in every respect, yet, in no event can there be a conviction of defendant without proof that saccharin is injurious to health and therefore that" the soda water was adulterated.

      John T. Barker, Attorney-General, and W. T. Rutherford, Assistant Attorney-General, for the State.
    (1) The act applies to all manufacturers and persons offering for sale soda water containing saccharin, and is, therefore, not open to the objection of being class legislation. State ex inf. v. Oil Co., 218 Mo. 368; State v. Webber, 214 Mo. 277; State v. Grossman, 214 Mo. 240; State v. Railroad, 239 Mo. 233;'Railroad v. Arkansas, 2191 U. S. 466. (2) It was within the legislative function in the enactment of this statute for the preservation of health to insist that nonalcoholic drinks should not have saccharin as an ingredient. St. Louis v. Schuler, 190 Mo. 531; St. Louis v. Polinsky, 190 Mo. 520. (3) All questions concerning the justice, reasonableness, wisdom or policy of statutes must be left to the Legislature, and therewith the courts are in nowise concerned. 1 Lewis’s Sutherland, Stat. Constr., secs. 85, 366; Tel. Co. v. Manning, 186. U. S. 238; Hannibal v. Marion Co., '69 Mo. 571; People v. Railroad, 23 Barb. 138; Railroad v. Little, 45 Ga. 388; Burlington y. Dey, 82 Iowa, 312; Plank Road v. Harrison, 16 111. 81; Jamison v. Gas Co., 128 Ind. 555; Ins. Co. v. Commonwealth, 133 Mass. 161; State v. Swaggerty, 203 Mo. 527; Railroad v. United States, 220 U. S. 575; Thornley v. U. S., 113 U. S. 313; U. S. v. Chase, 135 U. S. 262; Plessy v. Ferguson, 163 U. S. 558; Hawaii, Mankichi, 190 U. S. 247; Bank v. Parker, 192 U. S. 80; New Jersey v. Anderson, 203 U. S. 490; Railroad v. Cotton Oil Co., 204 U. S. 447; Railroad v. Arkansas, 219 U. S. 465-.
   ROY, C.

This is a prosecution under the Act of April 7, 1911 (Laws 1911, page 261), prohibiting the adulteration of non-alcoholic drinks by the use of saccharin and other substances therein named. Defendant was convicted and has appealed. It is charged in- the information that defendant sold ‘ ‘ an article of food, ready for consumption, being a non-alcoholic drink, to-wit, soda water, which was then and there filled into a bottle containing about one pint, and which was then and there adulterated in this, to-wit, by having a foreign substance added thereto, to-wit, saccharin.”

Defendant moved to quash the indictment because that part of the act prohibiting the use of saccharin is not within the title of the act, and is, therefore, contrary to section 28 of article 4 of our State Constitution, and also because the act is class legislation contrary to subdivision 26 of section 52 of article 4 of that Constitution, and also because it abridges the privileges and Immunities of this defendant and denies to this defendant the equal protection of the laws, contrary to section 1 of the Fourteenth Amendment to the Constitution of the United States. The motion was overruled.

At the trial defendant admitted that it sold to one Frank Mantz for fifteen cents a bottle of soda water containing one pint, said soda water being a non-alcoholic drink, an article of food ready for consumption. H. E. Wiedemann, a chemist, witness for the State, testified that he analyzed the soda water furnished him by Mantz and found that the soda water in the bottle contained 0.0229 of one gram of saccharin.

At the close of the State’s case, defendant’s counsel asked for its discharge on the State’s testimony, which motion was overruled. Defendant then proceeded to introduce its evidence, and the following occurred :

“Mr. Rassieur: I desire to introduce a copy of the report of the Remsen Referee Board, which I have with me here, as published by the Government. It was transmitted March 6, 1911, to the Secretary of Agriculture by Ira Remsen, Chairman of the Board. I offer only the report and not all the exhibits that go with the report; I also offer the supplementary report of January 13, 1912; and also the opinion of Frank MeVeagh, Secretary of the Treasury and a member of the Pure Food Board of the United States.

“Mr. Leahy: I object to the offer of these documents in evidence for the reason that they are incompetent, irrelevant and immaterial, because the law of this State absolutely prohibits the use of saccharin in non-alcoholic drinks. I might also object on the ground that these documents are merely opinions of persons, not sworn and not before the court, but I do not want to put defendant to the expense of bringing these witnesses, therefore I do not object to the evidence on that ground.

“The Court: Upon what theory do you offer that evidence, Mr. Rassieur?

“Mr. Rassieur: On the theory that if the court finds that saccharin, when used in quantities such as the witness testified to as used in this case, the court will say that saccharin used in such a quantity is not and cannot be regarded as injurious, and that therefore there was no adulteration, and a statute which undertakes to make that illegal and forbids the use of that which is harmless is unconstitutional.

“The Court: The objection to the evidence offered by the defendant will be sustained. ■

‘ ‘ To which ruling of the court defendant then and • there by counsel duly excepted and still excepts.”

Said report contained the following: “The conclusions reached as a result of the investigations are given in detail in the separate reports herewith presented, together with all of the data upon which these conclusions are based. The main general conclusions reached by the referee board are as follows:

“ (1). Saccharin in small quantities (0.3: gram per day or less) added to the food is without deleterious or poisonous action and is not injurious to. the health of normal adnlts, so far as is ascertainable by available methods of study.

“ (2). Saccharin in large quantities (over 0.3 gram per day and especially above 1 gram daily) added to the food, if taken for considerable periods of time, especially after months, is liable to induce disturbances of digestion.”

And also the following: “As a result Messrs. Hamilton and Hough have submitted briefs; these hriefs have been submitted to Dr. H. W. Wiley, Dr. W. G. Bigelow and Dr. Kebler, of the Bureau of Chemistry, Department of Agriculture, and to Solicitor Mc-Cabe and Assistant Solicitor W. P. Jones, of that department; and these five gentlemen have submitted statements — all favoring the prohibition of saccharin —and Messrs. Hamilton and Hough have replied. And the full discussion is now before us in the printed record. The three secretaries, at the hearing on November 22d, asked the attorneys to incorporate in their briefs the proposal of a method to admit the use of saccharin in foods under conditions and restrictions that would limit its possible daily consumption within the limits of positive harmlessness indicated by the referee board, to-wit: 0.3 gram per day; and this proposal has been submitted in definite form. And it seems to he plain — or at least most probable — that the limit of one one-hundredth of one per cent of saccharin in foods would bring the use of saccharin within the limits of positive harmlessness indicated by the referee board. But the calculation on which this is based should he further tested before adoption.”

According to the proffered evidence one .would need to drink about thirteen pints of the defendant’s soda water in twenty-four, hours before he would get to the danger point in the use of saccharin. If such is the case, the amount of saccharin in defendant’s soda water is not deleterious to health, for we cannot imagine one so addicted to its nse as to consume that much. But, independent of the question as to whether such use of saccharin is deleterious, we think that the statute is an arbitrary discrimination against the makers of soda water. It may be taken for granted that saccharin is or may be used in foods and drinks which are non-alcoholic. Whether it is deleterious to health or not, it is certainly an arbitrary distinction to prohibit the use of saccharin in non-alcoholic drinks and not prohibit its use in other foods and drinks. If it is deleterious to health in one case, it would be so in the other. If it was the purpose of the Legislature to prevent the use of saccharin in soda water, not because saccharin is deleterious, but because it sweetens the soda water, then it is an arbitrary discrimination in favor of those who sweeten soda water with sugar. If the Legislature regarded saccharin as deleterious to health, it should have excluded it from all foods and drinks and not merely from non-alcoholic drinks. If the purpose was merely to prevent the sweetening of non-alcoholic drinks, it should have prohibited the use of any kind of sweetening in such drinks.

We regard this as too plain a case for a long citation of authorities. It falls clearly within the principles enunciated in State v. Miksicek, 225 Mo. 561, l. c. 572.

The judgment is reversed and the defendant discharged.

Williams, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


author: WILLIAMS, C.

text:
    DALE E. BARTHEL et al., Appellants, v. JESSE D. ENGLE.
    Division Two,
    July 14, 1914.
    SPECIFIC PERFORMANCE: Sale by Heirs: One Heir Willing to Sell. Evidence showing merely that one of several heirs was conducting negotiations looking to a sale of land held in common, and was willing that it should be sold if the others agreed, does not warrant a decree of specific performance for his share.
    Appeal from Dallas Circuit Court. — Hon. G. H. Skinker, Judge.
    Reversed and remanded (with directions).

      James H. Richardson, W. N. Finley and Fyke ds Snider for appellants.
    The court erred in rendering judgment in favor of defendant for a one-fifth interest in the land because there was no evidence to support such judgment and because it is outside the issues raised by the pleadings. Ford v. Gebhardt, 114 Mo. 298; Hill v. Mining Co., 1Í9 Mo. 27; Blaine v. Knapp, 140 Mo. 251; Gibson v. Cranage, 39 Mich. 49; Zaliski v. Clark, 44 Conn. 218; Printing Co. v. Thorpe, 36 Fed. 414; Walker v. Auto Co., 124 Mo. App. 636; 36 Cyc. 789.

      John S. Haymes, O. H. Scott and Levi Engle for respondent.
    The court properly rendered judgment for defendant for one-fifth of the land; for where a party contracts to sell more than he has, the purchaser is entitled to the performance to the extent of the interest of the party contracting. Lucket v. Williamson, 31 Mo. 58; McGhee v. Bell, 170’ Mo. 132; Lamyon v. Chesney, 186 Mo.. 556; Bales v. Roberts, 189 Mo. 66.
   WILLIAMS, C.

This is an action in ejectment to recover possession of one hundred and sixty acres of land in Dallas county, Missouri. One Harmon Barthel, grandfather of plaintiffs, died about 1892, seized of the fee simple title to the land in question and left surviving him as his sole and only heirs his widow, four sons and three grandchildren. The widow died in 1907. The three grandchildren are the plaintiffs in this suit and are the only children of one of the sons of said Harmon Barthel, said son having died a short time before the death of said Harmon Barthel. The four sons of Harmon Barthel who survived him were Alvin W., Herman J. C., Julius H., and Oscar H., none of whom are parties to this suit. On April 12, 19'10, the above-named grandchildren obtained, by quitclaim deed, all the right, title and interest of the other above-named heirs in and to this land. The evidence on the part of plaintiffs further tended to show that in August, 1910, one of the plaintiffs, then living in Illinois, made a trip to Dallas county, Missouri, on behalf of himself and his sisters, to see the land, and found the defendant in possession of the same. The witness asked defendant why he was in possession of the land and the defendant replied that he had the right of possession by reason of a contract to purchase. Defendant refused the request to show said contract. Demand for peaceable possession was thereupon made but defendant refused to give up possession and thereafter this suit was instituted.

The petition in this case was in the usual form. The answer, after admitting possession in the defendant, pleaded a general denial. The answer further alleged that defendant entered- into a contract with the plaintiffs and the other above-named heirs by which they agreed to sell said land for a consideration of $1600 and that defendant was in possession of said land under and by virtue of said contract of purchase; that defendant ever since the making of said contract was ready and willing to pay said purchase price upon the delivery to him of proper deeds, conveying the legal title of said property to him; the answer further alleged that Alvin "W., Herman J. C., Julius H., and Oscar H. Barthel undertook, by a quitclaim deed dated April 12, 1910, to convey their interest in said land to plaintiffs, and that plaintiffs, at and prior to said date, knew of defendant’s aforesaid contract for the purchase of said land. The prayer was for specific performance of said contract.

The evidence on the part of defendant was to the following effect: On July 18,1909, Herman J. 0. Barthel, residing in Illinois, then the owner of an interest in said land, by reason of being one of the heirs of said Harmon Barthel, deceased, wrote a letter to Mr. N. Finley, of Cloverdale, Missouri, in which he stated: “The place is for sale. Do you think you could find a buyer for it1? If there is any one that wants to buy the place let me know and I will see that I or one of the heirs will be there to sell it.” Mr. Finley thereupon saw the defendant and defendant made an offer of $1500 for the land. Finley wrote to Herman Barthel concerning defendant’s offer. In replying to this letter, Herman Barthel wrote Finley, under date of November 29, 1909, in part as follows: “Deceived your letter a few days ago and was glad to hear from you. In regard to the farm you said the man offered $1500 —Fifteen Hundred Dollars for the place, but you think you can get $1800 or $1850; well then I had better put the price $2000 and if you can’t get that you can shade it $100 to $150 to make it the $1850, which you say you think you can get.”

After this Finley again saw the defendant and defendant made an offer of $1600 for the place and Finley submitted this offer by letter to the said Herman Barthel. In this last letter Finley enclosed a blank deed containing a correct description of the land. On December 27,1900, Herman again wrote Finley, in part as follows: ‘ ‘ Received your letter a few days ago and was glad to hear from you. Must have been delayed some as it has sometime since it was wrote. Will hear from the other heirs in a week or ten days and can tell if the offer is all O. K. to them, if so, will have the papers drawn up but think ought to have $1700 anyway to leave us out.” On January 17, 1910, Herman again wrote to said Finley, in part as follows:

“Mr. Finley if that offer is good yet on the farm let me know by return mail. It takes quite a while to get mail this winter as the R. R. are blocked so much. The heirs are all willing to sell I think; there is one that I haven’t heard from yet; he is in Minn, some place and can’t get him located as yet but hope to in a few days and as soon as we or I do I will turn the matter over to my brother Alvin S. Barthel, at Milledgeville, Ill., and he can tend to it better and quicker than I can as I am quite a ways from the P. O. and when you write me again I will let him know right away what you said in your letter and I will send the papers to him today what you sent to me.”

Finley thereupon wrote Herman that the offer was still good. Witness Finley further testified that after that time he received another letter from Herman Barthel but that the letter had become lost or destroyed. Upon proper showing the court permitted the witness to testify to what was said in this lost letter and Mr. Finley testified that Herman Barthel in his letter said: “Us four are willing to take the bid,” or “Us four are will to take the $1600' for the land.” The witness testified further concerning the contents of this lost letter as follows: “He said his brother in Minnesota wrote and it was all O. K. and they would take the $1600' for the farm. He said he had heard from his brother in Minnesota; that he had wrote to him; and they was all willing to sell and they would accept the proposition.” And further: “He was hunting' the heirs up and he said that four of them was willing to sell for that.”

The defendant testified that he saw this letter which was afterwards lost and that in that letter Herman wrote: “I got a letter from my brother in Minnesota and he is willing to accept the offer of $1600 for the land.” Defendant further testified in this regard: “He said he would hurry the matter up as fast as he could as the heirs were scattered around. He said he would hurry the matter up as fast as he could and get them to sign the deed. ’ ’

The defendant further testified that after seeing this letter he “supposed they was going to send the deed” and that in March thereafter he took possession of the land. There was evidence tending to show that the rental value of the farm was about $40; per year. The court found in favor of plaintiffs for a four-fifths interest in the land and for $35 damages, finding that the rental value of their interest in the land was three dollars per month. The remainder of the decree is somewhat indefinite and uncertain in meaning, but it undertakes to decree the title of a one-fifth interest, being the interest formerly owned by Herman J. C. Barthel, out of plaintiffs and to vest the same in defendant and that defendant be required to pay into court $320' for said interest. Plaintiffs duly perfected an appeal to this court.

Appellants contend that the court erred in rendering judgment in favor of defendant for a one-fifth interest in the land, because there was no evidence to support the same.

The law with reference to the rights of a vendor to have a contract for the sale of the land specifically performed is that he must have all the title he contracts to sell before he can insist upon the enforcement of the same, or in other words, it must be enforced as an “entirety,” if at all, and not by “piecemeal.” [Luckett v. Williamson, 31 Mo. 54, l. c. 58; Hill v. Rich Hill Coal Mining Company, 119 Mo. 9, l. c. 27, and .authorities therein cited.] But with reference to the purchaser the situation appears to be different and the general rule is that • where the vendor does not have title to all the land which he contracts to sell, the purchaser, if he so desires, 1 ‘ can insist on having all the vendor can convey with a compensation (or abatement of the purchase price) for the difference.” (Parentheses ours.) [Luckett v. Williamson, supra, l. c. 58; McGhee v. Bell, 170 Mo. 121; Bales v. Roberts, 189 Mo. 49, l. c. 66; 2 Story, Eq. Juris. (13 Ed.), sec. 779.]

Respondent, relying upon the line of cases last above cited, contends that while the evidence fails to show that Herman J. C. Barthel had authority to contract for the sale of the interest of the other heirs in said land, yet the contract was valid as to his one-fifth interest and that therefore the defendant was properly allowed to have the contract enforced with reference to said one-fifth interest. The defect in this contention is that it assumes, as existing, that which did not exist, to-wit, proof of an unequivocal agreement upon the part of said Herman J. G. Barthel to convey all or any part of said land. The evidence does show that he, as one of the heirs, was -willing to sell the land for the price offered, and that he was corresponding with some of the other heirs trying to get their consent to the sale. In one of the letters he said, “I think” all the heirs are willing to sell. Later he wrote that four of the heirs were willing to sell. It appears from tffie evidence that at that time there were seven heirs, each owning an interest in the land. It clearly appears from the correspondence that his consent to sell was conditional upon all the heirs agreeing to the sale. In one of the letters he says: “Will hear from the other heirs in a week or ten clays and can tell if the offer is all O. K. to them, if so, will have the papers drawn.” At most the correspondence shows nothing more than negotiations upon his part attempting to bring about a sale by getting the consent of the other heirs and nowhere does it appear in the correspondence that he agrees, or undertakes to obligate himself, either individually, or jointly with the other heirs, to sell the land. The evidence therefore shows the absence of a concluded agreement to sell and hence the absence of the right of specific performance. Discussing a very analogous situation, Judge Brace, in the case of Ford v. Grebhardt, 114 Mo. 298, l. c. 306, said:

“In order to entitle the plaintiff to the relief sought in this case it devolved upon him to show a contract actually concluded between him and Grebhardt and Somerville for the purchase of the land in question. ‘If what passed between them was but treaty or negotiation, or an expectation of contract, . . . no specific performance can be had. ’ [Fry on Specific Performance of Contracts, sec. 264.] And if it be doubtful whether the contract was concluded or the negotiation still remained open, specific performance will be refused. [Fry on Specific Performance of Contracts, sec. 269.] As was said by Foster, J., in Lyman v. Robinson, 14 Allen, 254: ‘Care should always be taken not -to construe as an agreement letters which the parties intended only as a preliminary negotiation. The question in such cases always is, did they mean to contract by their correspondence, or were they only settling the terms of an agreement into which they proposed to enter after all its particulars were' adjusted, which was then to be formally drawn up and by which alone they designed to be bound.’ ”

It follows that the court erred in decreeing that the title to one-fifth of said land be divested out of plaintiffs and vested in the defendant. Other questions are presented by the record but the above point is decisive of the case and renders unnecessary further discussion.

The judgment is reversed and the cause remanded with directions to the circuit court to have such further proceedings in the cause as shall become necessary to ascertain and determine the outstanding matter of rents and profits for the whole of the tract and upon the determination of that matter to enter judgment against the defendant and in favor of plaintiffs for the possession of the entire tract of land described in the petition and for such amount of damages as the court may find.

Roy, G., concurs.

PER CURIAM. — The foregoing-opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


author: EOT, C.

text:
    THE STATE, Appellant, v. W. A. LONG.
    Division Two,
    July 14, 1914.
    1. DEALING IN OPTIONS: Sec. 4781, R. S. 1909: Repeal of Statutes. Section 4781, R. S. 1909, a part of the law against option dealing enacted in 1889, was not repealed by the enactment in 1907 of Sec. 4776, a part of the bucket-shop law. The sections have distinct offices to perform, and the enactment of the one had no effect upon the other.
    2. -: Sec. 4782, R. S. 1909: Repeal of Statutes. Section 4782, R. S. 1909, prohibiting the keeping of a place for option dealing, being practically the same as Sec. 3 of the bucket-shop law of 1887, the former superseded the latter, and the express repeal of Sec. 3 in 1903 did not operate as a repeal of Sec. 4782.
    3. -: Statutes: Constitutional. Sections 4780, 4781 and 4782, R. S. 1909, prohibiting dealing in options or the keeping of a place for that purpose, are constitutional.
    Appeal from Randolph Circuit Court. — Hon'. James D. Barnett, Judge.

      BeVEBSED and remanded.

      John T. Barker, Attorney-General, Ernest A. Green, Assistant Attorney-General, and Jerry M. Jeffries for the State.
    Bepeals by implication are not favored and both sections are permitted to stand if it can be done on-any reasonable construction, and it is the duty of the court to harmonize them if possible. State ex rel. v. Amick, 247 Mo. 271; State ex rel. v. Brodie, 161 Mo. App. 538; Decker v. Diemer, 229 Mo. 296 ; St. Louis v. Kellman, 235 Mo. 687; State v. Bratzer, 245 Mo. 499.

      Walter B'achrach, E. M. Barber and Whitecotton <& Wight for respondent.
    (1) The statute under which the indictment is drawn was repealed by the passage of the Act of 1907 relating to bucketshops. A subsequent statute revising the whole subject of a former one, and evidently intended as a substitute for it, operates to repeal the former, although it contains no express words to that effect. State v. Shields, 230 Mo. 91; Meriwether v. Love, 167 Mo. 514; Manker v. Faulhauber, 94 Mo. 430; State v. Boiler, 77 Mo. 120; State v. Summers, 142 Mo. 595; State v. Patterson, 207 Mo. 145; State v. Crane, 202 Mo. 54; U. S. v. Tynen, 11 Wall. 88; Murdock v. Memphis, 20 Wall. 590; U. S. v. Claflin, 7 Otto, 546; Tracy v. Tuffly, 134 U. S. 206; Murphy v. Utter, 186 U. S. 95; Soby v. People, 134 111. 66. (2) Where the subsequent statute makes the doing of an act a felony, which by the prior act was made a misdemeanor, such subsequent act impliedly operates to repeal the former. State v. Taylor, 186 Mo. 616; State v. Bobertson, 159 S. W. 713; Sullivan v. People,. .15 111. 233; People v. Cleary, 35 N. Y. Supp. 588; 36 Cyc. 1095. (3) A subsequent act necessarily repeals a prior one when there is a conflict and repugnancy between the two, so clear that they cannot stand together. State v. Shields, 230 Mo. 91; State ex rel. v. Macon County, 41 Mo. 458 ; State ex rel. v. McDonald, 38 Mo. 535; State ex reí. v. Dolan, 93 Mo. 647; Manker v. Faulhauber, 94 Mo. 430; State ex rel. v. Wofford, 121 Mo. 61; State ex re], v. Spencer, 164 Mo. 48; State v. Taylor, 186 Mo. 608.
   EOT, C.

Defendant was indicted in twenty-five counts, of which eighteen are based on section 4782, Revised Statutes 1909, forbidding the keeping of an office, store or other place for the purpose of dealing in options. The other seven counts are based on sections 47801 and 4781 prohibiting dealing in options.

The defendant promptly moved to quash the indictment on the grounds that it did not charge any offense, that the statute on which it is based has been repealed, that the indictment and each count thereof are contrary to the Fourteenth Amendment of the Constitution of the United States, and to section 30' of' article 2 of our State Constitution, in that it seeks to deprive defendant of his liberty and property without ■due process of law, that the.indictment is contrary to section 10' of article 1 of the Constitution of the United States, and that different, separate, distinct and inconsistent offenses are alleged in the different counts. The motion to quash was sustained, and the State has appealed.

The bucket-shop law was enacted in 1887 and was amended in 1907. As thus amended it appears as sections 4772 to 4779, inclusive, of the Revised Statutes. The statute against option dealing was enacted in 18891, and, with amendments not important to be discussed at this time, appears as sections 4780 to 4788 of the Revised Statutes.

Respondent seriously contends that section 4776 of the bucket-shop law, enacted in 1907, is almost verbatim the same as 4781 of the option-dealing law, enacted in 18891, and that the former section being later in date of enactment operates as a repeal of the latter. It should suffice to say that on its face section 4776 is a supplement to the four sections immediately pre-. ceding it. Those preceding sections are incorporated into it, and it has no force or effect except as modified by the four sections referred to. On the other hand, section 4781 is supplementary to the next preceding section. .Thus sections 4776 and 4781 have distinct offices to perform and the enactment of one has no effect on the other.

II. Section 3 of the bucket-shop law of 1887 is practically the same as section 4782, Revised Statutes 1909, prohibiting the keeping of a place for option dealing. That section was expressly repealed by the bucket-shop law of 1907. Respondent contends that as those two sections are the same, the repeal of one was a repeal of the other. We think-not and shall state our reasons.

As between section 3 of the bucket-shop law of 1887 and section 4782 of the Revised Statutes of the option dealing law, enacted, in 1889, the latter, being enacted last, would, supersede the former and operate as a repeal thereof. No doubt the only reason for expressly repealing section 3 by the Act of 1907 was the fact that it had been superseded by section 4782 of our present statute.

All rules for the interpretation of statutes are • merely for the purpose of discovering the legislative intent. We cannot believe that it was the legislative purpose to withdraw the ban against the keeping of an office, store or other place for dealing in options. If it was the purpose to repeal section 4782, Revised Statutes 1909, there should have been an amendment of sections 4785 to 4788 inclusive, in which that section is expressly referred to by number.

II. Counsel for respondent have made no attempt to cite authority on the proposition that the law is unconstitutional. It was said in State v. „ , ,. , . Kentner, 178 Mo. l. c. 495, that such a contention is without merit.

The judgment is reversed and the cause remanded for trial.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All concur, except Faris, J., not sitting.


text:
    THE STATE, Appellant, v. W. A. LONG.
    Division Two,
    July 14, 1914.
    Appeal from Randolph Circuit Court. — How. James D. Barnett, Judge.
    Reversed and remanded.
    For attorneys and briefs, see State v.' Long, ante, p. 315.
   ROY, C.

The facts so far as necessary to be stated are the same in this case as in another case just decided against the same defendant, ante, p. 314, and, in accordance with the opinion in that case, the judgment is reversed and the cause remanded for trial.

Williams, G'., concurs.

■ PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All concur, except Faris, J., not sitting.