author: BLAIR, P. J. GRAVES, J.

text:
    MISSOURI SOUTHERN RAILROAD COMPANY, Appellant, v. PUBLIC SERVICE COMMISSION.
    Division One,
    July 9, 1919.
    1. PUBLIC SERVICE COMMISSION: Excessive Rates: Judicial Question. The statute expressly gives the Public Service Commission authority to fix railroad rates, and in determining whether a proposed rate is lawful for the future the Commission does not act judicially, but simply ascertains what are the existing law and facts and applies to the particular utility the previously declared will of the Legislature.
    2. RAILROAD: Spur Tracks: Regulation of Rates by Commission. As long as a railroad company operates spur or tram tracks in the public service it must do so subject to the regulatory powers of the Public Service Commission; and the fact that it operated them under tariff rates filed with the Commission is sufficient to warrant a finding by the Commission that it was using the two industrial spur or tram tracks, four or five miles long and connecting with its main line, in the puDlic service; and that subjects them to regulation by the Commission.
    3. -: -: Included in Charter: Operation. Whether the tariff rates to be charged by a railroad company for the carriage of freight over its spur or tram tracks are subject to regulation by the Public Service Commission is not to be made to depend on whether such tracks are included in its charter. The power of the Commission to regulate the freight charges of a railroad company is to be determined by what it does rather than by what its charter says. The Commission’s supervision is not limited to lines constructed or owned by a railroad company, but is- expressly by statute (Sec. 43, p. 580, Laws 1913) extended to lines operated by it; and the railroad company cannot escape lawful regulation by denying its right to operate a line which it in fact is operating in the public service under regularly published tariffs.
    4. -: Short-Haul Rates: Reasonable Variation. A freight-rate unlawful because in conflict with a valid constitutional inhibition is unreasonable. The short-haul clause of the statute is constitutional and a freight rate violative of it cannot be upheld on the ground that it is reasonable.
    5. -: Regulation of Rates: Estoppel: Agreement Upon Rates Charged. A railroad company cannot rely upon estoppel under a contract void because in direct conflict with an express constitutional prohibition. Complainants are not estopped to ask the Public Service Commission to reduce within the maximum statutory charges the freight rates to be charged by a railroad company over its tram or spur lines, by the fact that, when the company was about to cease to operate the spur tracks, they entered into an agreement with it to pay charges in excess of the statutory maximum rates, and the company, in pursuance to the agreement, bought a special engine and expended five thousand dollars in putting the tracks in condition for hauling cars thereon.
    Appeal from Jefferson Circuit Court. — Eon. E. M. Bearing, Judge.
    Affirmed,.

      J. B. Daniel for appellant.
    (1) The trams in question are not- railroads within the meaning of the Public Service Commission Act, and the Commission has no authority to regulate or control the operation thereof or to prescribe rates to be charged for the transportation of freight over them. Palm v. Railroad Co., 17. N. Y. Supp. 471. (2) The complaint herein in effect alleges that appellant is refusing to transport freight which by law it was bound to transport, and that for freight it did transport over the trams it charged more than warranted by law. Whether or not these allegations are true are strictly judicial questions which the Commission, not being a court, had no authority to decide. City of Macon v. Pub. Serv. Com. 266 Mo. 490 ; State ex rel. Mo. Southern Ry. Co. v. Pub. Serv. Com., 259 Mo. 704, 727. (3) The operation of the trams by appellant was an ultra vires activity which the State might require it to stop, but it has no power to require appellant to continue such operation or to extend it as ordered by the Commission herein. Palm v. Railroad, 17 N. Y. Supp. 473. (4) If the Public Service Commission had power to regulate appellant’s operation, such power only extended to reasonable regulation. It did not have power to destroy under the pretense of regulation, and its order herein cannot be upheld. North. Pac. Ry. Co. v. North Dakota, 236 U. S. 585; Railroad v. Pub. Util. Com., 95 Kan. 604; Norfolk & Western Ry. Co. v. Conley, 236 U. S. 605; Missouri v. Railroad Co., 247 U. S. 533; Kansas City & St. J. Ry. Co. v. Barker, 242 Fed. 310. (5) The complainant having filed with respondent a complaint to prevent the abandonment of service by appellant over the trams in question, and having thereafter, with other shippers and represented by counsel, agreed to the charge herein complained of, and having thereby caused appellant to expend large sums of money under said contract, was estopped to complain of said charges, and should on that account have been denied any relief under his' complaint herein.

      A. Z. Patterson, General Counsel, and J. D. Lindsay, Assistant Counsel, for Public Service Commission.
    (1) Under the “Short Haul Clause” of the Missouri Constitution, and the construction thereof by this court, railroad companies are required to charge the same rates for transportation over branch lines as they charge on main lines, where the haul is of equal distance. Sec. 12, Art. 12, Mo. Constitution; McGrew v. Mo. Pac. Ry. Co., 230 Mo. 501. (2) The Public Service Commission has the power of regulation over all railroads operating as common carriers In determining whether a railroad is a common carrier, the important thing is what it actually does, not what its charter says it may do. Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252; State v. Atlantic Coast Line Ry. Co., 56 Fla. 617, 32 L. R. A. (N. S.) 639; 4 R. C. L. p. 533; 33 Cyc. 651; Avingle v. S. O. Railroad Co., 29 S. C. 265. (3) The order of the Public Service Commission under review is not an unlawful exercise of judicial functions. Though merely an administrative agency, the Commission does, and of necessity must, take cognizance of the law, whether it appears in the form of Constitution, statute or judicial decision. State ex rel. v. Roach, 190 S. W. 279; State ex rel. v. Le Sueur, 103 Mo. 262; State ex rel. v. Adcock, 206 Mo. 557.
   BLAIR, P. J.

This is an. appeal from a judgment of the Jefferson Circuit Court affirming an order of the Public Service Commission entered in the Matter of the Complaint of James M. Mooney v. Missouri Southern Railroad Company, 5 Mo. P. S. C. Rep. 250, which order, in so far as it is affirmed, required appellant to “refrain from charging or collecting for the transportation of carload shipments on the tram or spur tracks which connect with” appellant’s main line and points on appellant’s main line, “or between points on said trams, rates in excess of those in effect between other points on its main line, for the same distance.” The trial court also accepted a suspending bond and suspended the operation of the order until the final determination of the case in this court.

Appellant owns and operates a line of railroad fifty-four miles long, which runs from Bunker in Reynolds County to Deeper in Wayne County. Connected with this line, appellant also operated two industrial spur tracks. Industrial Spur No. 1 is four and one-half miles long and joins the main line -at Dairyville. Industrial Spur No. 2 is five miles in length and connects with the main line at Corridon. The evidence before the Commission and the Circuit Court showed appellant was imposing a switching charge of $7.50 for each loaded car switched between main line stations and points on either spur. This charge was in accord with tariffs filed by appellant, but never approved by the Commission, and seems to have originated out of an agreement between appellant on the one part and Complainant Mooney and other shippers on the other. The agreement was made at a conference between appellant and interested shippers, which conference resulted from a notice appellant gave in December, 1916, that it purposed to abandon Spur Track No. 1 and take up the'rails. By the agreement appellant contracted to repair Spur Track No. 1 and operate it for two years, upon condition that the $7.50 switching charge be allowed appellant, provided the Public Service Commission would approve such charge. The shippers agreed not to oppose ábandonment' of the spur after two years, and that they would request the Commission to approve the switching charge. After this agreement was made, appellant expended about $5000 in repairing the spur tracks, and rendering serviceable a geared or “Shay” engine, which, because of heavy grades, it was necessary to use on the spurs. The evidence showed that the switching charge of $7.50 yielded $2910 per annum. Other facts appear in the opinion.

Appellant contends, in order, that (1) the spur tracks are not subject to regulation by the Commission; (2) the questions whether (a) appellant is charging more than a lawful rate, and (b) whether it can be compelled to operate the spurs, are purely judicial and the Commission has no jurisdiction to decide them; (3) the operation of the spurs was an ultra vires activity which the State might prevent, but which it could not compel, appellant to continue; (4) the Commission’s power to regulate is a power to regulate reasonably and not to destroy; and (5) complainant, by his agreement, was estopped to question the validity of the switching charge.

I. The question whether appellant could be compelled to continue the operation of the spur tracks is directly presented and decided in State ex rel. Public Service Commission v. Missouri South- .. ^ ern Railroad Company, a companion case. Whether that question is presented by this record need not, therefore, be decided.

II. It is contended the question whether the rate charged was excessive is a judicial question and one, therefore, which the Commission has no power to decide. The statute (Sec. 47, Laws 1913, p. 583) expressly gives the Commission authority to fix rates, and this court has held valid that delegation of administrative power. [State ex rel. v. Public Service Commission, 259 Mo. l. c. 728.] It is true the Public Service Commission is not a court (City of Macon v. Commission, 266 Mo. l. c. 490; Rhodes-Burford H. F. Co. v. Union Elec. L. & P. Co., 2 P. S. C. 656); nevertheless, though it cannot exercise judicial functions, it must take cognizance of existing facts and the law. The act establishing it expressly requires it to do so. [Section 47, supra.] It is an “administrative arm” of the Legislature. Neither it, nor the Legislature, can ignore the Constitution, nor can the Commission proceed otherwise than in accordance with valid statutory provisions. In determining whether a proposed rate or change of rate is reasonable, i.e., whether it is the lawfully applicable rate for the future, the Commission does so in view of existing facts and controlling law. To do this it is necessary for it to ascertain what that law is, nd in performing its legitimate function,-i. e., putting to effect in respect to a particular utility the previous-declared will of the Legislature (Michigan Central Railroad v. Michigan R. R. Com., 160 Mich. 355), it must Lscertain the existing facts, since these, under the law, d termine the applicable rate. Such inquiries by the Commission are not judicial. [Prentis v. Atlantic Coast Line, 211 U. S. 210; State ex rel. v. Harty, 278 Mo. 685.] The fixing of rates for future business is legislative in-character. The Commission’s inquiry resulted not in a judgment respecting existing or past rates or rights, but in an order respecting rates to be charged in the future. That final act was the test of the character of the inquiry before the Commission (Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298) and was not judicial. The point is ruled against appellant.

III. It is insisted the spur or trams are “not railroads within the meaning of the Public Service Commission Act” and not subject to regulation by the Commission. The Commission found, on the evidenoe, that the spurs were parts of the appellant’s railroad. They were being operated by appellant. Appellant had. filed “tariffs, naming rates for the movement of all freight over the spur tracks in car loads, except live stock and perishable freight.” Appellant’s contentions are that (1) the spurs are not included in the charter; (2) only the track material'is owned by appellant; (3) appellant has never operated them as a part of its railroad.

That appellant was operating these spurs is proved beyond doubt. That it operated them by means of an engine different from those on the main line is of no consequence on this question. The fact that it operated them under rates filed with the Commission is sufficient to warrant' the finding that it was using them in the public service, and this subjects .them to regulation. [Laws 1913, p. 557, et seq.; Secs. 2, 26, 27, 28, 29, 31, 35, 43, 47, 48.] As long as a carrier operates a line or spur it must do so subject to the regulatory power of the Commission. The charter is not in the record. Waiving that, the question whether a carrier must submit to regulation is settled rather by “what it does, not what its charter says.” [Terminal Taxi Co. v. Dist. of Columbia, 241 U. S. 252.] The Commission’s supervision is not limited to lines constructed by a railroad company nor to those oioned by it; it is expressly extended (See. 43, Laws 1913, p. 580 and other sections, supra,) to “lines and property owned, leased, controlled or operated” by such company. In the circumstances it was of no importance, so far as rate regulation is concerned, who owed the fee or held the lease of the land over which the spurs extended. Appellant was conclusively shown to be operating the spurs in the public service under rates on file and was amenable to all lawful regulatory orders the Commission might make respecting rates on such spurs. It is in no position, as a reason for escaping regulation, to deny its right to operate a line which it is in fact operating in the public service under regularly published tariffs. The Public Service Commission Act (Sec. 26, Laws 1913, p. 570) in express terms is made to apply to any common carrier transporting freight or passengers within this State, and in terms requires such carriers to file tariffs including every “route leased, controlled or operated by it.” [Sec. 29.] The decision in Palm. v. Railroad, 17 N. Y. Supp. 471, involved a different question. Certain things, not done, were necessary in that case to make the spur there involved one constructed under the incorporating act, and the fare limitation of the act applied to roads constructed under the act. The act applicable in that case Avas penal in character and subject to strict construction. That case is not in point on the question before us.

Rates'haUl

IV. The Commission found that the rate being charged by appellant was violative of Section 12, Article 12, of the State Constitution, and Section 3173, Revised Statutes 1909, as construed in McGrew v. Railroad, 230. Mo. 496, 177 Mo. 533; State v. Railroad, 238 Mo. 23, 178 S. W. 1179, affirmed 244 U. S. 191. This is the short-haul clause or rule. There is no doubt the rate was violative thereof. It is argued there was no proof the charge complained of Avas unreasonable .and, therefore, no basis for the order abrogating it. We think that the people in adopting Section 12, Article 12, of the Constitution conclusively determined the unreasonableness of any rate out of harmony with its provisions. If a rate violative of it can be held valid because a court or commission may conclude it Avas a reasonable rate, as the term ordinarily is used, then the constitutional provision is of -no force of itself. In our opinion a rate unlawful because of conflict with a valid constitutional provision is unreasonable.

V. It is said complainant is estopped by agreement and appellant’s expenditures made thereafter. No cases are cited and the point is not argued. Appellant cannot rely VP011 estoppel under a contract void because of direct conflict with an express constitutional prohibition. [10 R. C. L. sec. 112, p. 801; Southern Ry. v. Prescott, 240 U. S. l. c. 638; Melody v. Great Northern Ry. Co., 25 S. D. 606; Shorman v. Eakin, 47 Ark. 351; Railroad Co. v. Mottley, 219 U. S. l. c. 479.]

The judgment is affirmed.

Bond, J., concurs in paragraph IV and the result; Graves, Jconcurs in separate opinion; Woodson, J., absent.

GRAVES, J.

(concurring). — Our learned brother says that the Public Service Commission based its finding upon the fact-that the rate charged violated Section 12 of Article 1.2 of the State Constitution, as said provision of the Constitution has been construed by this court in the several McGrew cases. As a judge I have never sat in any of the McGrew cases. I was at one time of counsel in the second of those cases, although on this bench when it came here. For that reason I have never participated in any of those cases. As a lawyer I was never able to bring my mind to the court’s logic or law in those cases. Nor do I agree to them now. However, the last of the line of McGrew cases decided here was taken to the Supreme Court of the United States, and that court has placed its stamp of approval on the judgment of my brothers, and I feel constrained now to yield to the construction given in those cases.

I am not convinced of the logic of those eases, but the rule is now settled by the highest arbiter, and I yield. With this explanation, I concur in the opinion.


source: Caselaw Access Project

author: BLAIR, P. J

license: Public Domain

text:
    THE STATE ex rel. PELLIGREEN CONSTRUCTION COMPANY v. GEORGE D. REYNOLDS et al., Judges of St. Louis Court of Appeals.
    Division One,
    July 18, 1919.
    1. MOTION FOR NEW TRIAL: General Assignment. A general assignment of error in the giving and refusing of instructions, in the motion for a new trial in a civil case, is sufficient to authorize a review of such instructions on appeal. [Following State ex rel. United Rys. Co. v. Reynolds, 278 Mo. 554.] And a refusal by a court of appeals to rule on assigned errors in the instructions, on the ground that the assignments were general, is error, and necessitates the quashing of its opinion on certiorari.

    2. PLEADING: General Allegations: Common-law Negligence. A ruling by the Court of Appeals that a petition charging that defendant was in exclusive control of the erection of a certain building and that plaintiff, in the employ of defendant, while doing carpenter work on the third floor, was, “by reason of the negligence of defendant, struck by a piece of building material, which fell from a floor above the third floor, by reason whereof plaintiff fell with great force and violence a distance of forty feet, and by reason of such falling, which was due to the negligence of defendant, plaintiff was injured,” etc., charged general negligence at common law and stated a cause of action for damages, is not in conflict with any decision of the Supreme Court cited by relator.
    3. -: -: -: Ordinance As Evidence. If the petition states a cause of action of negligence at common law, an ordinance making the act of defendant negligence is evidentiary, and though not pleaded is competent evidence; and a decision of the Court of Appeals so ruling, is not in conflict with prior decisions of the Supreme Court, but in harmony therewith.
    4. CONFLICTING OPINIONS: Cases from Other Jurisdictions. In deciding whether the rulings of a court of appeals conflict with the last previous decision of the Supreme Court, cases from other jurisdictions are not of much value.
    5. COMMON-LAW NEGLIGENCE: Liability Based on Ordinance. A ruling by the Court of Appeals that, since the ordinance did not expressly give a cause of action for damages, but merely prescribed a duty to be performed, a common-law action of negligence would lie for a violation of the ordinance duty,. is not in ' conflict with prior decisions of the Supreme Court.

      Certiorari.

    Record quashed.

      B. J. Batch and John P. McCammon for relator.
    (1) The assignments of error in relator’s motion for new trial were sufficient. Wampler v. Railway Company, 269 Mo. 464; Stid v. Railway Company, 236 Mo. 397; Collier v. Lead Company, 208 Mo. 256. It has been so held in criminal cases under a more exacting statute. State v. Noland, 111 Mo. 492. (2) The petition does not state a cause of action under the res ipsa loquitur doctrine. McGrath v. Transit Co., 197 Mo. 97. The petition showed a case of master and servant, did not allege any failure of defendant to use ordinary care to furnish plaintiff a reasonably safe place to work, and did affirmatively show “the injury arose from' an event in its nature not so obviously destructive of safety or so tortious in its quality as in the first instance to permit no inference save that of negligence on the part of the person in control.” Wall v. Jones, 18 N. T. Supp. 674. In the case above, except as to the extent of the injury, the facts are identical. (3) Failure to lay scaffold boards over the joists and girders of the building was not common-law negligence, and testimony as to the ordinance or its violation should have been rejected. The peremptory instruction asked by defendant was proper. To admit such testimony it was necessary to plead it. Lore v. Manufacturing Co., 160 Mo. 608; Lohmeyer v. Cordage Co., 214 Mo. 685; Hogan v. Railway Company, 150 Mo. 48; Bohn v. Railway Company, 106 Mo. 433; Sutherland v. Lumber Co., 149 Mo. App. 338; Shrinprs v. Mullins, 136 Mo. App. 298; Smith v. Box Co., 196 Mo. 715; Barron v. Lead & Zinc Co., 172 Mo. 234; Box Company v. Saucier, 213 Fed. 312.

      Claude D. Hall for respondents.
    (1) It was proper to show under, the petition that the defendant did not cover the joists or girders of the 'building on which plaintiff was working. (a) The plaintiff could prove any facts or circumstances which fairly tended to establish the negligence of the primary fact (the falling material and plaintiff being struck and falling) complained of. Fisher v. Golladay, 38 Mo. App. 537; Calvert v. Railroad, 38 Mo. 467; Goodwin v. Rock Isl. Ry. Co., 75 Mo. 75; Schneider v. Railroad, 75 Mo. 295-6; Edwards v. Chicago, Rock Isl. & Pac. Ry. Co., 76 Mo. 399. (b) It was defendant’s duty to make plaintiff’s place of work reasonably safe. By covering the joists and girders with scaffold boards, as is customary in buildings of that kind, this would have been done and the injuries to the plaintiff would have been averted. Usage or custom is relevant to show what constitutes negligence or as bearing on negligence in a given case. Jones on Evidence (2 Ed.), sec. 163, p. 184; Schiller v. K. C. Breweries Co., 156 Mo. App. 569; Gordon v. Railroad, 222 Mo. 536; Minier v. Railroad, 167 Mo. 99; Chrismer v. Tel. Co., 194 Mo. 189; Sec. 7843, R. S. 1909.' (c) Under a general allegation of negligence plaintiff may properly offer evidence tending to show specific acts of negligence. Wolven v. Springfield Traction Co., 143 Mo. App. 643; Hall v. Wabash, 165 Mo. App. 115. (d) Defendant did not raise the question of variance, by filing an affidavit as required by Sec. 1846, R. S. 1909. Waldheir v. Ry. Co., 71 Mo. 514; Fisher v. Realty Co., 159 Mo. 562; Harrison v. Lakeman, 189 Mo. 589. (2) The court did not err in admitting the ordinance in evidence. Bailey v. Kansas City, 189 Mo. 514; Bragg v. Met. St. Ry., 192 Mo. 350; Robertson v. Railroad, 84 Mo. 121; Brannoek v. Elmore, 114 Mo. 59. (3) The defendant’s motion for a new trial does not contain a sufficient ground upon which an assignment of error as to this instruction can be based. The fifth ground of the motion for a new trial is too general and it does not state the instruction is erroneous. R. S. 1909,. s.ec. 1841; State v. Norman, 159 Mo. 531; Wampler v¡ S. F. Ry. Co., 269 Mo. 464; Mfg. Co. v. Bates Co., 201 S. W. 92.
   BLAIR, P. J

Certiorari. The record brought here for review is that of the St. Louis Court of Appeals in Seitz v. Pelligreen Construction & Investment Company, 199 Mo. App. 388.

I. The ruling that the grounds of the motion for new trial respecting the giving and refusing of instructions were too general to authorize a review of such instructions is in conflict with the decisi°ns of this court. State ex rel. United Railways Co. v. Reynolds et al., 278 Mo. 554, is in point and controlling.

II. “The petition alleges that defendant was in charge and in exclusive control of the erection of a building on Fourth near Vine Street, in the City of St. Louis, and that on or about November 30, 1917, while plaintiff was in the employ of defendant and doing carpenter work on the third floor 0f the building, plaintiff was ‘by reason of the negligence of the defendant, struck by a piece of . building, or other material, with great force and violence, which fell from a floor above the third floor, on which plaintiff was working, by reason whereof, by reason of the negligence of defendant, the plaintiff fell with great force and violence a distance of about forty feet, from the third . . .* to the first floor of said building, and that by reason of being struck as aforesaid, and by reason of falling said distance . . . which was due to the negligence of defendant,’ ” plaintiff was injured, etc. The Court of Appeals ruled that this petition was sufficient after judgment.' The objection made on the trial was, according to the Court of Appeals, that the petition did not allege “any acts which constituted negligence.” It is insisted this ruling conflicts with decisions of this court. The Court' of Appeals held the petition charged general negligence and, on the trial, justified evidence of specific acts of negligence. Relator contends there is no charge of common-law negligence, that the petition is not based on the statute (Sec. 7843, R. S. 1909) and that no ordinance is pleaded. Several decisions of this court are cited.

(a) There is no conflict with McGrath v. Transit Co., 197 Mo. 97, since the Court of Appeals did not uphold the petition on the ground that the doctrine of res ipsa loquitur applied, (b) The Court of Appeals ruled that the petition counted on common-law neglience; that a motion to make more definite and certain might have been pertinent, but that a cause of action was stated. Relator cites no decisions of this court which conflict with that ruling. Its contention in this connection is more relevant to the question whether there was evidence to support the verdict.

III. An ordinance of the City of St. Louis was admitted in evidence, and the Court of Appéals upheld that ruling. The ordinance provides, in substance, that it is the duty of persons in charge of the construction of buildings to cover joists or girders above the second floor with scaffold boards or other suitable material, as the building progresses, so as sufficiently to protect workmen from falling between the joists and girders and to protect workmen on lower floors from injury from falling bricks, tools, “or other substances.” The ordinance was not pleaded. ■ The Court of Appeals applied the rule that when a cause of action is based upon a violation of duty imposed solely by ordinance, the ordinance must be pleaded; but if an ordinance is used merely as a matter of evidence it need not be pleaded any more than any other evidence. The ruling of the Court of Appeals that the petition charges a cause of action must stand, so far as this proceeding is concerned, no conflict being shown. It must be conceded the petition is not based upon a violation of the ordinance. In these circumstances the ruling of the Court of Appeals on the admission of the ordinance is not in conflict with, bnt is supported by, the decisions of this court. [Bragg v. Met. St. Ry. Co., 192 Mo. l. c. 350; Bailey v. Kansas City, 189 Mo. 503; Robertson v. Railroad, 84 Mo. l. c. 121.] If the petition stated a cause of action at common law, then the ordinance was competent.

IV. It is contended the Court of Appeals conflicted decisions of this court in ruling there was evidencé justifying the submission of the Seitz case to the jury. It is not necessary to set out all the evidence detailed in the opinion of the Court of Appeals. That court states there was evidence tending to show Seitz, under his foreman’s directions, was working on the third floor; that others were working on a floor or floors above him; that these upper floors were not covered in any way, either by permanent or temporary floors or otherwise, except over a hoisting engine in another part of the building; that it ivas customary in such circumstances to install covering of some kind for the protection of workmen; that Seitz was struck and injured by a piece of board or wood which fell from a floor above him. (a) Cases from other jurisdictions are not of much value. We are limited to the question of conflict. (b) The Court of Appeals seems to have held that since the ordinance did not expressly give a cause of action but merely prescribed a duty to be performed, a common-law action would lie for the violation of the ordinance duty. It is said this ruling conflicts with numerous decisions of this court.

In Lore v. Mfg. Co., 160 Mo. 1. c. 621, 622, this court held that the design of the statute requiring the master to safeguard dangerous machinery was “to modify the common-laAV doctrine that in the absence of a statute the master was not required to fence his dangerous machinery.” If, as the Court of Appeals held, the petition states a cause of action at common law, and a cause of action for general negligence may he sustained by evidence of the violation of a duty imposed by an ordinance not giving expressly a cause of action (which we must concede to be correct, since no conflict is shown), then there is no ground for saying the ruling on the sufficiency of the evidence violates the Lore case, if there was evidence the ordinance was violated — and there can be no doubt there was. The holding that the common law was modified by the machinery-guarding act or by the ordinance in this case has no bearing on the question whether a cause of action for general negligence is supported by proof of violation of such ordinance. For the same reason the ruling does not conflict with Lohmeyer v. Cordage Co., 214 Mo. l. c. 687. The decisions in Bohn v. Railway, 106 Mo. l. c. 433, 434, and Hogan v. Railway, 150 Mo. l. c. 48, 49, announce the principle that in an ordinary common-law action for the infraction of a non-statutory duty ordinary care in providing reasonably safe appliances is all that is required. This principle has no relevance to the question whether 'the ruling of the Court of Appeals, above stated, was right or wrong. In Barron v. Lead & Zinc Co., 172 Mo. 228, it was held that in a case in which a cause of action was given by statute to surviving dependents and plaintiffs’ right to sue depended solely upon the statute, a petition stating any cause of action other than one under the statute was demurrable. It is obvious this decision was not conflicted by the Court of Appeals in its ruling on the sufficiency of the evidence in the Seitz case. The statement of the principle applied by the Court of Appeals, made above, discloses it is quite dissimilar to that announced in the Barron case. The case of Smith v. Box Co., 193 Mo. 715, holds that a statute relied upon has no application to the facts alleged or proved. We find ho conflict on this point with any of our decisions cited.

Y. It is said the ruling of the Court of Appeals on instructions was wrong. The only instructions ruled were those asked by plaintiff in the case, ¿ec^s^ong 0f this court thought to confliet with that ruling are cited. The question is not argued. No case has.come to our attention which conflicts. The point is ruled against relator.

VI. The Court of Appeals did not rule on the assignment concerning the refusal of instructions asked by defendant in the case before it. ^-° ^ese, a^ leas^ it applied the doctrine condemmed by the authorities cited in Paragraph I, supra. For this reason the record must be quashed.

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


author: BROWN, C. PER CURIAM:

text:
    ST. LOUIS & TENNESSEE RIVER PACKET COMPANY, Appellant, v. EDWARD NOWLAND, JR., and UNITED STATES FIDELITY & GUARANTY COMPANY.
    Division One,
    September 27, 1919.
    1. STEAMBOAT: Rented: Losses Covered by Insurance. The owner of a boat, having rented it to defendant and having assumed in the charter-party all losses covered by the insurance policies, can recover from the lessee, or from the surety' on his bond, which included the charter-party, for no loss which was not covered by the insurance; and consequently the only question in a suit to recover from the lessee and his surety the value of the boat which sank is whether the losses were covered by the insurance.
    2. INSTRUCTION: No Exception. A failure of appellant to mention in its motion for a new trial an instruction .given by the court of its own motion precludes a consideration of any error therein on appeal.
    3. -: Loss of Steamboat: Cause. If the owner of a steamboat assumed all losses covered by insurance thereon except losses due to negligence or wilful conduct of the master, officers or crew or from overloading, it was not error to instruct the jury that such owner and surety were “not required to show definitely and certainly what caused the sinking of the steamer;” for if they showed that the vessel was handled with care and skill and was not overladen, it became the duty of the owner, in suing for the value of the boat which sank, to show what the cause of the loss was to be found in some one of the exceptions mentioned in the contract.
    4. EVIDENCE: Loss of Boat: Competent Employees. Where the owner of the leased steamboat assumed all losses covered by insurance policies except those caused by the gross negligence, recklessness, or wilful misconduct of the master, officers or crew of the vessel, testimony of the lessee that the officers and crew selected by him as captain of the vessel were competent and careful and of good reputation in their nautical calling was competent for the purpose of meeting the issue of “wilful misconduct,” although it might not have been competent in defense of a specific act of negligence.
    5. -: Marine Protest: Used by Protestants to Establish Defense: Self-Serving Evidence. In a suit by the owner of a steamboat, prosecuted by insurance companies for themselves and said owner in the name of the owner, against the lessee and his surety for the value of the boat which sank and was lost, a marine protest, made by the master and other officers and members of the crew at the time of the accident, and made for the benefit of the owner and those interested in the cargo and of the officers and crew as well, and containing a statement under oath of all the circumstances of the voyage leading up to the accident and of the particular accident itself, and containing a statement of the notary that he protests in behalf of all persons interested against the winds, waves and perils of rivers as the cause of the disaster, and used by the insurance companies as a basis of settlement with the owner in whose behalf the insurance was made, is competent evidence on behalf of defendants, for what it is worth, as evidence of its truth against the owner, who, having used it to obtain a settlement from the insurance companies, nevertheless seeks to recover from the lessee and his surety by disputing the facts stated in it whose truth he asserted when he obtained the settlement.
    6. REMARKS OF COUNSEL: Interest of Unnamed Party. Where insurance companies are not only interested in the result of the suit but are substantially parties to its prosecution, though not nominal parties, remarks of counsel indicating their interest in the issue of the trial, in keeping with the facts before the jury, are not unwarranted argument.
    7. EVIDENCE: Opinion Growing Out of Experience. An expression of an opinion by witnesses who have by actual experience obtained knowledge of the matters concerning which they testify is not incompetent or prejudicial.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koerner, Judge.

      Affirmed;.

      Jour dan, Rassieur S Pierce for appellant.
    (1) Where the answer admits the allegations of the petition and seeks to avoid same by pleading affirmative defenses, as in this case, the burden of proof is on defendants. Richardson v. George, 34 Mo. 104; St. Louis Tow Co. v. Orphans’ Benefit Ins. Co., 52 Mo. 529; Glover v. Henderson, 120 Mo. 367; Knoche v. Whiteman, 86 Mo. App. 568; Schutter v. Adams Express Co., 5 Mo. App. 316; Kent v. Miltenberger, 13 Mo. App. 503; Gray’s Harbor Comm. Co. v. Cont. Nat. Bank, 74 Mo. App. 633; Bunker v. Hibler, 49 Mo. App. 536. (2) It is error to place the burden of proof where it does not legally rest, and it was therefore error to give Instruction 10. . Sidway v. Mo. Land & Live Stock Co., 103 Mo. 342; Aylward v. Briggs, 145 Mo. 604; Knoche v. Whiteman, 86 Mo. App. 570; Aimes v. Conway, 78 Mo. App. 490. (3) Instructions to the jury should not be misleading and calculated to divert the jury’s attention from the main issue in the case. Such was the effect of giving Instruction 9, and the court erred in giving said instruction. Sidway v. Mo. Land & Live Stock Co., 163 Mo. 342; Price v. Breckenridge, 92 Mo. 378. (4) In instructing juries it is the duty of the court to determine question of law, and to give to the jury the legal effect of contracts, and it is error to submit to them such questions of law. It was therefore error to give Instruction 5. St. L., K. C. & N. Rv. Co. v. Cleary, 77 Mo. 634, 638; Turney v. St. L. & S. F. Ry. Co., 76 Mo. 261; Brannock v. Elmore, 114 Mo. 63; Plenry v. Bassett, 75 Mo. 89; Albert v. Besel, 88 Mo. 150; Morgan v. Durfee, 69 Mo. 469. (5) The marine protest made by defendant Nowland as master of the steamer Shiloh was a self-serving statement and was not admissible in evidence in favor of the defendants merely because plaintiff, as owner of the steamer,, in its proofs of loss against the insurance companies made reference to sncli protest; and the court erred in admitting the protest over plaintiff’s objection. Such documents, when so referred to, would be admissible against the plaintiff owner, in an action against an insurance company; or they may become admissible to contradict the person making them, but not otherwise. Richelieu Co. v. Boston Marine Ins. Co., 136 U. S. 408; Cudworth v. S. C. Ins. Co., 4 Rich. L. (S. C.) 416, 55 Am. Dec. 692. (6) It was error to permit the witness Nowland to state that in his opinion the officers and crew of the steamer were competent, careful and capable. Boggs v. Lynch, 22 Mo. 563; Langston v. South. Elec. Ry. Co., 147 Mo. 457; Boettger v. Iron Co., 136 Mo. 531. (7) It was error to permit the witness Nowland to state that the wharfage charge at a great many points is based upon her registered tonnage and not upon the tonnage she actually did carry, because such statement was immaterial and prejudicial. (8) It was error to permit the witness Wyckoff, in a case where the question of overloading was an important issue, to state that if the steamer had been overloaded she would have sunk at Scanlon, and that it would have been impossible for her to run between Scanlon and Memphis, because that is a conclusion of the witness and is an invasion of the province of the jury. G-utridge v. Mo. Pac. Ry. Co., 94 Mo. 472; Boettger v. Iron Co., 136 Mo. 536. (9) The court erred in not sustaining plaintiff’s motion for a new trial, on account of misconduct of counsel in their opening and closing argument to the jury, (a) It is reversible error for counsel in their argument, to persist, in arguing matters to the jury, that the court has ruled Avere' improper, and which the court has repeatedly withdrawn. McClendon v. Bank of Advance, 188 Mo. App. 428; Haake v. Milling Co., 168 Mo. App. 180; State v. Whitworth, 126. Mo. 584; Kentucky Wagon Mfg. Co. v. Duganics, 113 S. W. (Ky.) 130. (b) The withdrawal of remarks of counsel in their argument by the court does not repair the damage done. O’Hara v. Lamb Const. Co., 197 S. W. (Mo. App.) 165.

      John M. Wood and McGehee, Livingston & Farahough for respondents.
    (1) The action of the court in giving, of its own motion, Instruction 10, not having been assigned as error, or called to the attention of that court, in the motion for a new trial, is not subject to review by this court. State v. Crites, 215 Mo. 91; Almond v. Modern Woodmen, 133 Mo. App. 382. (2) The court correctly instructed the jury that the burden of proof was upon the plaintiff to establish by the preponderance of the evidence the facts necessary to a verdict .in its favor: (a) The pleadings did not present a case where the answer admitted the allegations of the petition, and then set up new matter in confession and avoidance. (b) Under the bond and charter-party the mere non-return of the boat did not constitute a breach of the bond. To show a breach the plaintiff had to show that she sank in such manner as not to be covered by the insurance upon her. For Rowland was not liable unless she sank in that manner, (c) The insurance was collectible unless the Shiloh sank through “gross negligence, recklessness, or wilful misconduct of the owner, master, officers or crew,” or through being “unduly laden.” The presumption is against these, and they must be affirmatively shown. 7 Ency. Ev. pp. 547, 548; Tidmarsh v. Washington Fire & Marine Ins. Co., 4 Mason, 439; Am. Ins. Co. v. Bryan & Maitland, 26 Wend. (N. Y.) 582-; Schultz v. Pac. Ins. Co., 14 Fla. 73; Union Ins. Co. v. Smith, 124 U. S. 405; 26 Cyc. 667. (3) The court correctly charged that the defendants were not required to show definitely and certainly the exact cause of the sinking of the Shiloh. The defendants were not liable unless gross negligence, recklessness, wilful misconduct or overloading was shown. (4) The marine-protest was admissible in evidence against the plaintiff, because the plaintiff had adopted and used it-as a part of its proofs of loss, sworn to and presented to the insurance companies. Plaintiff could not thereafter repudiate the protest. Navigation Go. v. Boston .Marine Ins. Co., 136 TJ. S. 408, 34 Law Ed. 398; Natl. Steamship Co. v. Tugman, 143 U. S. 28, 36 L. Ed. 63. Under these circumstances the protest was admissible against the plaintiff at the instance of parties other than the insurance companies to which it was presented. Atkins v. Elwell, 45 N. Y. 745. (5) The testimony of the defendant Nowland that, so far as his observation was concerned, the officers and crew of the Shiloh were competent and careful, was admissible; if not as tending to show the exercise of care by them on the occasion of the accident, this testimony was clearly competent as bearing upon the question of Nowland’s care in selecting and retaining said employees. Kenney v. Railroad Co., 70 Mo. 243; Patton v. Ry. Co., 87 Mo. 117; 8 Ene. Ev., pp. 22, 535, 538, 956; 26 Cyc. 733. (6) The argument of counsel for defendants was not misconduct entitling appellant to a new trial. Counsel stated no fact outside of the record; indulged in no abuse or vituperation; did not. intentionally violate the ruling of the court. The only argument complained of consists of reference to the interest of the insurance companies in the litigation. Their interest was shown by documents on file, and the court stated that counsel might comment thereon so far as the record showed the facts. Haake v. Dulle Milling Co., 168 Mo. App. 177; Diggs v. United States, 136 C. C. A. 158; 29 Cyc. 1010.
   BROWN, C.

This cause was instituted in the Circuit Court for the City of St. Louis, March 10, 1914. The petition, after alleging the corporate character of the plaintiff and defendant surety company, proceeds as follow^:

“And plaintiff for cause of action states that heretofore, to-wit, on the 27th day of October, 1913, defendant Edward Nowland, Jr., as principal, and defendant United States Fidelity & Guaranty Company, as surety, made, executed and delivered to plaintiff their certain bond or writing obligatory of that date, herewith filed, marked Exhibit A, and thereby acknowledged themselves indebted, and held and bound, unto plaintiff in the just and full sum of $10,000, to the payment whereof, well and truly to be made, said defendants did bind themselves and their and each of their heirs, executors, administrators, successors and assigns.

“That said bond or writing obligatory was, however, subject to certain conditions thereunder written, to the effect that whereas contemporaneously with the execution and delivery thereof, said Edward Nowland, Jr., the principal, had entered into a contract and charter-party with plaintiff, the obligee in said bond, for the use said obligee’s steamer, Shiloh (a copy of which contract and charter-party was and is annexed to said bond or writing obligatory and by reference made a part thereof as fully and effectually as if therein set forth in words and figures), therefore if said principal, defendant Nowland, should and would from time to time and at all times fully do, keep, observe and perform all of the things, stipulations, agreements, provisions, undertakings and conditions by him in the said contract and charter-party agreed to be done, observed, kept and performed, and should and would pay all of the rentals in said contract and charter-party mentioned and referred to, as and when the same should become due and payable, and should and would keep and protect the said steamer Shiloh, and plaintiff as its owner, from all claims and demands of every kind, character and description, whether for repairs made, supplies furnished, wages earned or other demands upon or against said steamer or plaintiff as her owner, and should and would keep, save harmless and protect said steamer and plaintiff, as owner thereof, of and from all attorneys’ fees and other expenses, and should and would at his, said defendant Nowland’s expense, protect and defend said steamer, and plaintiff against all claims, judgments or suits that might be successfully made, brought or recovered against said boat or plaintiff as owner by reason of anything done or omitted to be done by said Nowland, and should and would return said steamer to plaintiff at the time or times and at the place and in the manner in said contract or charter party mentioned, free and clear of all liens, claims, demands or encumbrances whatsoever, and would in each and every other respect fully and faithfully carry out the said contract or charter-party, then said bond or obligation should be void, otherwise to remain in full force and effect.

“And plaintiff states that there have been breaches of said bond or writing obligatory, and as such breaches thereof this plaintiff assigns the following, to-wit:

“First. That upon the execution of said bond or writing, to-wit, on the 29th day of October, 1913, plaintiff delivered to said defendant Nowland, at Paducah, Kentucky, the said steamer Shiloh, and defendant received the same from plaintiff on said day and at said place, and the rent agreed to he paid by said defendant for the use of said steamer began to accrue on said day at the rate of $22.50 per day, payable to plaintiff, in accordance with the terms of the contract or charter-party aforesaid, on the first and fifteenth days of each month thereafter. That said defendant has failed and refused to pay unto this plaintiff the rent accruing, from and including December 1, 1913', to and including December 15, 1913, fifteen days, at $22.50 per day, amounting to $337.50, although payment thereof has been frequently demanded.

“Second. That the said defendant Nowland, being-in charge of said steamer Shiloh on, to-wit, December 15, 1913, under the contract and charter-party hereinbefore mentioned, sank and lost said steamer or boat and has disabled himself from returning her to this plaintiff and has so announced to this plaintiff. That said defendant therefore has made it impossible for himself to comply with, said contract or charter-party and return said steamer to the plaintiff at Paducah, Kentucky, in as good order and condition as when the same was received by said defendant Nowland, excepting only such usual wear as is incident to the trade or use of said steamer.

“And plaintiff states that the said steamer Shiloh, at the time she was so sunk and lost by defendant Now-land, was reasonably worth the sum and value of $12,000, and is fully lost to this plaintiff.

“Wherefore, plaintiff prays judgment against defendants for $10,000, the penalty of the bond or writing obligatory aforesaid, together -with interest and costs.”

The answer, omitting introduction and prayer, is as follows:

“Defendants admit that plaintiff is, and was at the times mentioned in the petition, a corporation organized and existing under the laws of the State of Missouri; that defendant United States Fidelity & Guaranty Company is, and was at the times mentioned in the petition, a corporation organized and existing under the laws of the State of Maryland and doing business and maintaining an office in said City of St. Louis; that defendant Edward Nowland, Jr., is indebted to plaintiff in the sum of $367.50 on account of rental for the steamer Shiloh up to and including December 15, 1913, but defendants say that long before the institution of this suit, and when said rental became due, defendant Nowland tendered to plaintiff said sum of $337.50 and now tenders in court said sum in discharge of the rental due under the charter-party or contract mentioned in the petition.

“For other and further answer, defendants deny each and every allegation in said petition and in each count thereof contained, except such as are herein-before expressly admitted.

“For other and further answer to said petition, and especially to the second county thereof, defendants state that said steamer Shiloh, which was rented by plaintiff under the terms of the charter-party or contract mentioned in the petition, without any fault on the part of defendant Edward Nowland, Jr., or the crew of said steamer, sank and was lost on the 15th day of December, 1913; that under the terms of said charter-party, it was made the duty of plaintiff, during the term for which the said steamer Shiloh was rented to defendant Nowland, to keep the same insured against loss from sinking, as well as from loss resulting from other causes; that defendant Nowland, under the terms of said charter-party, became liable only for the rental of said steamer Shiloh for the term mentioned in said contract, and the plaintiff assumed the liability for loss or damage to said steamer resulting from any cause, and said contract provides that the insurance on said steamer against such loss should be carried by the plaintiff in the sum of $9,000, which was the value at which said steamer was estimated by the parties, and which, less rent paid, wag the price which defendant Nowland was to have for said steamer in case he exercised the option to purchase, provided for in said charter-party; that when said steamer sank defendant Nowland, under the terms of said lease, was relieved of obligation to return the same to plaintiff; that plaintiff did insure said steamer against loss resulting from or on account of its sinking and has been paid the amount of said insurance, which is more than the actual value of said steamer at the time that it sank.”

The plaintiff replied by general denial. When the trial was called the defendant, having theretofore tendered $337.50 to plaintiff, deposited it in court. The plaintiff then introduced the bond sued on and the contract or charter-party therein mentioned and proved the total loss of the vessel by sinking at the dock at Memphis, Tennessee, at midnight December 14-15, 1913, and rested. It offered no evidence of the cause of the disaster.

The defendants thereupon asked the court to instruct the jury to find for them, which was refused by the court and defendants excepted. The charter-party mentioned in the hond and introduced by plaintiff, by its terms chartered to the defendant Nowland the steamboat Shiloh mentioned in the petition for the term of five months from the 29th day of October, 1913, when it was delivered to him at Paducah, Kentucky, for a rental of $22.50 per day to be paid semi-monthly. It contained, among many other provisions not pertinent to these issues, the following:

“Said party of the first part agrees to pay the cost of marine insurance on said steamer during said period of five months, or during the continuance of this charter-party, if, by reason of ice, as hereinafter mentioned, the same shall continue longer than five months, which marine insurance shall be to the amount of nine thousand dollars.”

That “upon the expiration of said period, the party of the second part shall return said steamer to the party of the first part, at Paducah,'aforesaid, in as good order and condition, as when received by him, excepting only such usual wear as is incident to the trade.

“The party of the second part agrees that said steamer shall be operated by him as a freight and passenger packet in regular trade between Memphis, Tennessee, and Henrico, Arkansas; but said party of the second part may, if he shall so desire, extend such trade as far up the river as Cairo, or as far down the river as New Orleans, providing such steamer shall be covered by proper and adequate insurance.”

It was also provided that the steamboat should be operated with a full crew of competent men and that the lessee should comply with all the laws of the United States relating to said steamer and her certificates of inspection and command her at all times when possible, and give his personal skill and judgment towards seeing-' that she was well and properly cared for, to the same extent as if she were his own property, and give bond with good security for the fulfilment of the said charter-party in all particulars and respects; and pay all obligation and claims for which the steamer or its owner should be liable, “and that he will, in short, return said steamer to said party of the first part at Paducah, Kentucky, free and clear of all debts, claims, demands, liens or encumbrances of any kind whatsoever, made, created or resulting during the period of time the said steamer was in the possession of said party of the second part.

“Said party of the first part assumes all risks and liability to said steamer which is covered by marine and fire insurance policies upon her; also any extraordinary breakage of shafts, cylinders or machinery; also the consequences of accidental explosion or burning; but in case of loss by sinking or burning, whether such loss be total or partial, but sufficient, if partial, to render said steamer unfit for service at the time, said party of the second part shall remain with and protect said steamer to the fullest extent possible, immediately notifying said party of the first part and giving said party of the first part, or its agents or representatives, sufficient and ample time to reach the steamer and to take possession of her. In the event' of any damages to said boat, rendering it unfit for service, for which party of the first part would be responsible, such as partial loss or damage by fire or sinking, the amount to be paid under this contract is to cease with the closing of the day of such accident or loss and is to continue during the period for making repairs, which repairs, party of the first part agrees to make as promptly as possible. ... In the event of the total loss of the steamer, the charter money, or rental, shall cease on the day of such loss.”

The next paragraph provides in substance that the party of the second part shall keep the steamer in as good order and condition as when received by him, ordinary wear of the trade only excepted, subject to conditions in the preceding paragraph.

An option is given in the instrument to purchase the property at $9000, with a credit of all rentals paid and accrued. The defendant offered and introduced three policies of insurance on the steamer Shiloh in favor of plaintiff, as follows: One for $2000 issued by the Aetna Insurance Company, one for $3500 issued by the Manheim Insurance Company and one issued by the St. Paul Fire & Marine Insurance Company for $3500. In each of them was a provision that the perils which the underwriter assumed were the unavoidable danger of rivers that should cause loss or damage to the vessel .or any part thereof excepting all perils, losses or misfortunes arising from or caused by gross negligence, recklessness or willful misconduct of the owner, master, officers or crew of the vessel of any loss or damage arising from or occasioned by • said vessel being unduly ladened. All these policies were in force at the time of the loss.

It was also shown and admitted that about January 21, 1914, the plaintiff made to these three insurance companies the following offer in writing:

“We are willing to borrow from you the sum of $7500 and to give you our written obligation that in compliance with the provisions of the policy subrogating you to any security which we may have for the loss of the boat outside of the insurance, we will institute in our name an appropriate suit or action at law against Ed Nowland, Jr., and the United States Fidelity & Guaranty Company, surety on his bond, to recover thereon for the amount due us from Nowland for the hire of the boat, any amounts for which we may be liable for supplies furnished it and for the value of the boat itself. Should we succeed in recovering judgment and collecting thereon, we will, after first retaining the amount due us for hire and the amount for which we may be liable for supplies, repay to you the said sum of $7500, without interest, or such proportion thereof as the recovery will warrant, but in the event there should be no recovery and collection, then we shall not be liable to return any of the $7500 borrowed nor be liable for its repayment. . . .

“It is furthermore understood that the expense of the suit against Nowland and the surety company shall be borne between us in the proportion of seventy-five per cent by you and twenty-five per cent by us. You may select such counsel as you may deem proper for the institution and prosecution of the suit or, if you wish it, we will direct our counsel to look after this matter, together with such counsel as you may desire.

“Please advise us whether this settlement and method of compromising your liability is satisfactory. If it is, the $7500 must be paid within two weeks from this date; otherwise the adjustment is off.”

This offer was accepted and the $7500 paid plaintiff on the terms expressed.

Defendants introduced the protest of the master (Nowland) and other officers and members of the crew of the Shiloh, made at the time of the accident, against objection and exception duly made by the plaintiff. They also introduced evidence tending to show that the steamer sank at the Memphis wharf at the time of the completion of a trip from the South, without fault of the defendant or the other officers, or the crew, and that it had not been overladen. On the other hand plaintiff introduced testimony that the sinking was due to carelessness and overloading.

At the close of all the evidence the defenants again asked’an instruction in the nature of a demurrer to the evidence, which was refused. The court then gave a number of instructions at the request of plaintiff and defendants respectively. Among those given for the defendants are the following, upon which error is assigned in this appeal:

“5. If you find from the evidence that the Shiloh sank through one of the perils covered by the insurance upon her so that plaintiff was entitled to collect said insurance of the insurance companies, and if you find that the amount of said insurance was equal to or greater than the value of said steamer, then the plaintiff is not entitled to recover for the sinking of said steamer, even though the plaintiff has not in fact collected said 'insurance.

“9. In order to avoid liability for the sinking of the steamer Shiloh, the defendants are not required to show definitely and certainly what caused the sinking of said steamer. •

“To the giving of which instructions for defendants, and each of them, plaintiff then and there duly excepted at the time and still excepts.”

The court then of its own motion gave the following instruction, to the giving of which plaintiff duly excepted at the time.

“10. The court instructs the jury that the burden of proof is on the plaintiff to establish by the preponderance or greater weight of the evidence the facts necessary to.a verdict in his favor under these instructions.

“By the terms ‘burden of proof’ and ‘preponderance of the evidence,’ the court intends no reference to the number of witnesses testifying concerning any fact, or upon any issue in the, case, but simply uses those terms by way of briefly expressing the rule of law, which is that unless the evidence (as to such issue) appears in your judgment to preponderate, in respect to its credibility, in favor of the party to this action on whom the burden of proof (as to such issue) rests, then you should find against such party on said issue.”

The motion for a new trial does not mention this instruction. The cause was submitted to the juryy, which returned a verdict for plaintiff for $337.50, the amount of rental due and unpaid, upon which judgment was entered. After an unsuccessful motion on the part of plaintiff for new trial it took this appeal.

There are certain .questions relating to the admission of evidence to which reference will be made in the opinion.

I. This' is a suit to recover $10,000, the amount of the penalty of a bond executed by the defendants to the plaintiff, conditioned for the performance of the terms of a contract technically called a charter-party, by which the Mississippi River steamer Shiloh was chartered by plaintiff to deféndant Nowland for ^ months, to be returned to the plaintiff upon certain conditions and subject to- certain contingencies to which we will presently refer. The condition of the bond was set out in the petition, and by its terms referred to the charter-party, which was thereto annexed and made a part thereof. By it the plaintiff expressly assumed'all risks and liability covered by marine and fire insurance polices upon her. At that time three policies of insurance were in force insuring the plaintiff against loss of the steamer by sinking unless “caused by gross negligence, recklessness, or willful misconduct of the owner, master, officers or crew,” or from “being unduly ladened.” While said policies were all in force, and on the 15th day of December, 1913, the steamer was lost by sinking at the dock in Memphis, Tennessee.

A proof of said loss, which we shall have further occasion to notice, was thereupon made by the plaintiff against the respective underwriters in the three insurance policies, and thereafter the plaintiff made a proposition in writing to each of them to the effect that they should loan plaintiff $7500, for which it would subrogate them to any security plaintiff might have for the loss of the boat outside the insurance and that it would institute in its name a suit against the defendants on this bond for the value of the boat with unpaid rentals. If successful it would repay the said $7500 without interest, otherwise it would retain the same, the said underwriters to pay seventy-five per cent of the expenses of the suit. The underwriters were also authorized to select such counsel as they might deem proper for the institution and prosecution of the suit or if they desired it would direct its own counsel to look after the matter, together with such counsel as they might desire. This proposition was accepted by the three underwriters. The $7500 was advanced to plaintiff; and this suit was brought. The insurance companies involved in this transaction are the Mannheim Insurance Company of Mannheim, Germany; the St. Paul Fire '& Marine Insurance Company of St. Paul, Minnesota, and the Aetna Insurance Company of Hartford, Connecticut.

We have made this condensed statement of the pleadings and undisputed facts involved in this appeal that we may have well in mind the parties interested in and to be bound by the result of the suit, as well as the narrow issues involved.

It will be seen from the preceding paragraph that this suit was instituted, and is prosecuted and maintained, by the plaintiff, for the use and benefit of the three insurance companies, as well as for itself. They are interested in its result to the extent of $7500. If the plaintiff recovers for the loss of the boat, they get it back to the extent of the loan and plaintiff gets the remainder. The amount sued for being ten thousand dollars, the penalty of the bond, they divide the expense exactly in proportion to the interest of each.

To the extent of the interest of the underwriters the issue is clearly defined. It is whether or not the loss of the Shiloh comes within the terms of the policies by which they have obligated themselves to pay for the loss of the boat by sinking, unless such loss was caused by gross negligence, recklessness, or willful misconduct of the owner, master, officers or crew of the vessel or from its being overladened. In the absence of tnese excepted causes they can be entitled to nothing. The plaintiff, having expressly assumed in the charter-party all losses covered by the insurance, is also entitled to nothing, so that the issue as to all is precisely the same; that is to say, whether the loss is covered by the policies. Being reduced to still narrower limits by the terms of the bond, including the charter-party which is a part and parcel of it, and the insurance policies which furnished, as we have seen the measure of the rights of all, the issue is reduced to the simple question whether the loss was caused by gross negligence, recklessness or willful misconduct of the master, officers or crew of the vessel or hy its having been unduly ladened. It is admitted by appellant in his statement that there was evidence on both sides of this proposition. The jury were the judges of its character and weight, and the verdict and judgment thereon must stand unless something occurred in the trial either in the introduction of evidence, the instructions upon which it was submitted or the argument of counsel which might unlawfully influence them, in this determination.

II. The first error of which the appellant complains is the giving to the jury by the court of its own motion, of instruction number ten. Whatever diffixnight attend the determination of this question has been obviated in the failure of the appellant to notice it in the motion for a new trial. This precludes its examination here.

III. The plaintiff also complains because the court gave at the request of defendant an instruction numbered nine which told the jury that “in order to avoid liability for the sinking of the steamer Shiloh, the defendants are not required to show definitely and certainly what caused the sinking of said steamer.” It says that this was equivalent to instructing the jury that the burden was upon the plaintiff tó show that the sinking of the vessel was caused hy gross negligence of the officers or crew or over-lading. Without expressing any opinion upon the question whether this construction, if couched in plain, simple and unmistakable words, would or would not be error, we are of the opinion that it is suceptible of no such construction. If the evidence showed to the entire satisfaction of the jury that the vessel was, at and previous to the time of the sinking, handled with skill and care and that it was not overladened, it was their duty to find that the loss was covered by the insurance. The real cause might have been- unknown. It might have been the opening of a seam in her bottom or collision with a concealed obstruction which had fallen from the cargo of another ship or from the dock. The cause of the disaster was immaterial except in so far as it might tend to prove that the sinking was negligent or not. If there was no negligence in the handling of the vessel at the time, then the sinking was without negligence of the officers or crew. If the disclosure of the real cause would have shown negligence, the burden was upon plaintiff to show it. That is peculiarly true in this case where the charter-party required the lessee and master to immediately notify the plaintiff of the disaster and to remain with the vessel only until the owner could take possession.

IV. The appellant predicates error upon the action of the court in permitting Captain Nowland to testify, in substance, that the officers and crew selected by him as captain of the Shiloh to assist in the navigation of the vessel were careful and competent and S°°d reputation in their .nautical calling. This objection seems to be founded oh a misapprehension as to the real office of this testimony under the pleadings in this case. Nowland was not only the owner of the vessel for the time being for all purposes connected with its navigation, but was its master charged with the employment of officers and crew. He was charged with gross negligence and mismanagement with respect to these duties. In short, the appellant vigorously insists that the burden is upon him to exonerate himself from this charge. Had he knowingly placed his vessel at the mercy of incompetent or reckless officers or crew without professional character or reputation and its loss had resulted therefrom, it is evident that the insurance companies could have availed themselves of this condition of the policy to avoid liability on the ground of willful “misconduct”' of the master, although it might have been only ignorance on the part of the crew. The enumeration contained in the policy of those whose negligence or misconduct would exonerate the underwriters is carefully expressed disjunctively, and defendants had the right to prove specifically that each particular person so enumerated had done his duty. The point here involved bears no analogy to an attempt to disprove negligence by proving the good reputation of the party charged. In such case, except in certain instances depending upon the nature of the act charged, the evidence is inadmissible. Here it is clearly admissible in its relation to the conduct of Nowland alone.

Y. Perhaps the most important question in this case is raised upon assignment of error in the admission in evidence on behalf of the defendants of the protest of the master and crew of the Shiloh.

The marine protest is ancient in its origin and stands upon solid ground with respect to its useful purpose. It is made for the benefit of the owners of the ship and those interested in its cargo as as ^s °fficers and crew, and contains a statement under oath of master officers and men alike of all the circumstances of the voyage leading up to the particular accident, as well as of the accident itself, and gets its name from a statement of the notary that he protests in behalf of all against the winds, waves and perils of seas and rivers as the cause of the disaster. It will be seen that this statement, with its wealth of detail, is an important element in determining the cause of the disaster, especially to insurance companies, so that its incorporation into the proof of loss has become a universal caution if not a rule of law.

In this case the protest was incorporated in the proof of loss furnished by plaintiff to the three insuranee companies, and of course became the basis of the claim against them. This claim thus supported resulted in the arrangement by which the plaintiff received $7500 from the underwriting companies and undertook the prosecution, with their help, of this suit, in which the sole issue between plaintiff and defendant, raised between plaintiff and the underwriters by the proof of loss supported by the protest; that is to say, whether the circumstances of that loss, so minutely and vividly related in the protest, entitled the plaintiff to recover upon the policies the amount of its loss. It now seeks, with the $7500 in hand, to dispute the facts stated in the protest upon which it obtained it. We think that having used this instrument for its benefit in that transaction, it is now admissible for what a jury might consider it worth as evidence of its truth against plaintiff. [Richelieu Co. v. Boston Insurance Co., 136 U. S. 408, 435; Atkins v. Elwell, 45 N. Y. 753, 757.] It is no less its admission than if it had written it for the purpose for which it used it.

VI. The appellant complains that counsel for respondent were permitted to make improper statements to the jury in argument. We have searched for these in the record, and find that objections were made and exceptions saved to statements indicating the interest of the insurance companies in the issue on trial. We have already referred to that interest for the purpose of showing that these companies are not only interested in the result of this case, but are substantially parties to its prosecution. This being true and the facts being fully before the jury we see no reason why they should not be referred to by counsel. We do not think the remarks of counsel as shown in the record are reversible error.

VII. We do not think the testimony of Captain Nowland in explanation of the difference between registered tonnage, cargo space and displacement was either immaterial or prejudicial, nor was tlie statement of r*ver steamboat men to the effect that had the steamer been so heavily ladened as to sink at the dock in Memphis it could not have passed with the same load safely up the stream to that point, and-other testimony of the same character, either immaterial or prejudicial. Such things are matters of knowledge depending largely upon the experience of the witness in his calling, which alone entitled him to speak on the subject.

Finding no reversible error in the record we affirm the judgment of the circuit court.

Bailey, C., concurs.

PER CURIAM:

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

all of the judges concur; Bond, J., in the result.


text:
    FRANCES M. RIPKEY, Appellant, v. JOHN GRESHAM et al.
    Division One,
    September 27, 1919.
    1. APPELLATE JURISDICTION: Proceeding to Open Road: Injunction. The Supreme Court has jurisdiction of an appeal from a judgment of the circuit court dismissing the petition of a wife to enjoin the county court and highway engineer from establishing, by a proceeding to which she was not a party, a public road through lands in which she and her husband owned an estate by the entirety.
    2 PUBLIC ROAD: Estate by Entirety: Wife Not Party. A proceeding to establish a public road through lands owned by a wife and her husband as cotenants by the entirety, is void as to the wife who was not notified of the proceeding and did not appeal, although her husband was made a party and contested the establishment of the road.
    Appeal from St. Clair Circuit Court. — Eon. Charles A. Calvird, Judge.

      Reversed and remanded (with directions).

      Waldo P. Johnson for appellant.
    (1) In a proceeding to establish a public road the petition must be accompanied by the names of all resident landowners. R. S. 1909, Sec. 10435; R. S. 1899, sec 9414; Spurlock v. Dornan, 182 Mo. 242; Bennett •v. Hall, 184 Mo. 407. (2) The word “owner”'in statutes of eminent domain is used in a comprehensive sense and includes all persons having any interest in the land. 15 Cyc. 844, 845; Ry. Co. v. Baker, 102 Mo. 553; McShane v. Moberly, 79 Mo. 41; Mantz ,v. St. Paul, 52 Minn. 409; Gerrard v. Railroad Co., 14 Neb. 370; McCotter v. New Shoreham, 21 R. I. 43. (3) In proceedings of eminent domain, the wife, holding estate'by the entirety, is a necessary party. Holmes v. Kansas City, 209 Mo. 513; Lumber Co. v. Bradfield, 153 Mo. App. 527, 532. (4) The husband cannot bind his wife as agent or otherwise in a road proceeding. Spurlock v. Dorman, 182 Mo. 242. (5) The utmost strictness is required to give proceedings of eminent domain validity. Every essential requirement of the statute must be complied with or such proceedings will be void. Anderson v. Pemberton, 89 Mo. 61; Spurlock v. Dornan, 182 Mo. 242; Nishabotna Drain. Dist. v. Campbell, 154 Mo. 151; Taylor v. Todd, 48 Mo. App. 550; Cunningham v. Railroad, 61-Mo. 33; Rousey v. Wood, 57 Mo. App. 650.
   BROWN, C.

This action was instituted in the St. Clair County Circuit Court on May 15, 1915. The plaintiff is the wife of one Joseph G. Ripkey. She and her husband, as tenants by the entirety, own a tract of land in Road District Number Two of St. Clair County, Missouri, upon which they reside. The defendant John Gresham is the road overseer of said road district. The other defendants are the highway engineer and judges of the county court of said county, and the petitioners in a certain proceeding to establish a public road through said land. The object of the suit is to enjoin the defendants from entering upon said land and opening a public road in pursuance of an order of the county court made upon said petition.

Upon a trial had at the November term, 1915, of said circuit court, there was a finding for the defendants and judgment dismissing the plaintiff’s petition, from which, after a motion for a new trial overruled, this appeal was allowed to the Springfield Court of Appeals, where the appellant filed his statement and brief. In the statement the facts relied on are tersely set forth as follow:

“The plaintiff herein was in no manner a party to the proceedings for the establishment of the road. Her name was not listed as an owner of the land, no assessment of her damages was made and she did not appear in such proceeding. Her husband, Joseph U. Ripkey, was listed as the owner of the land, made a party to the proceeding and contested the establishment of the road.

“The trial court dismissed plaintiff’s bill, apparently on the ground that plaintiff was estopped by her husband’s conduct.”

The respondent filed no statement or brief. The Court of Appeals of its own motion certified the cause to this court on the ground that it involved the title to real estate. At the October term, 1916, of this court, Hargus and Johnson, the attorneys of record for respondents in the trial court, appeared and by leave of this court, first had and obtained Avithdrew from the cause as such attorneys.

There is no question of our jurisdiction in this cause. [Monroe v. Crawford, 163 Mo. 178; Baubie v. Ossman, 142 Mo. 499; Baker v. Squire, 143 Mo. l. c. 99.]

That upon the record as it stands in this court the plaintiff is entitled to the injunctive relief asked in the petition has been settled by this court in the following cases: Holmes v. Kansas City, 209 Mo. 513; Spurlock v. Dornan, 182 Mo. 242. The precise question received full consideration in each of those cases, and in each of them we held that the proceeding was void as to the wife who was entitled as cotenant by the entirety with her husband and who was not notified of the proceeding to appropriate the land and did not appear. We accordingly reverse the judgment of the Circuit Court for St. Clair County, and remand the cause with direction to that court to grant the injunctive relief asked in the petition.

Ragland and Small, GO., concur.

PER CURIAM:

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

all of the judges concur.