text:
    WILLIAM R. ORTHWEIN, Administrator of DANIEL A. CLAYTON, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    June 30, 1915.
    1. COMPENSATION OF CITY SERVANTS: Fixed by Ordinance: Changed by Contract. The city of St. Louis had power in 1897, under its charter, to fix the compensation to be paid to those persons employed as inspectors of excavations in its streets; , and if it, by ordinance, fixed their compensation at seventy-five dollars per month, the street commissioner had no power by. contract to fix it at a greater or less amount; and if the ordinance fixed their compensation at thirty cents an hour of actual work, they are not entitled to be paid seventy-five dollars a month.
    2. -: Excavation Inspectors: Thirty Cents Per Hour. The compensation of inspectors of excavations in streets of the city of St. Louis prior to July 29, 1897, was not controlled by sections 1834, 664, 1384 or 1336 of the Municipal Code, but by section 1335, which provided that “the pay of said inspector shall be at the rate of thirty cents per hour” and that “the time allowed the inspector shall be computed only for the number of hours he is actually inspecting the work.” Those words do not mean that the city should be allowed thirty cents per hour for the services of the inspector while on the ground, as a recoupment out of the money which a person desiring to make an excavation in the street should deposit with the city treasurer as a special fund to be used by the street commissioner, and that the excavation inspector should be paid out of the city treasury, according to section 1336 which provides for the appointment of general inspectors with the approval of the president of the board of public improvements, or according to section 1384 which provides for sprinkling inspectors to be appointed with the approval of the mayor; on the contrary, said section 1335 fixed the pay which such excavation inspectors should receive at thirty cents per hour.
    3. -: -: Amendatory Ordinance 19036. Ordinance No. 19036, by which the Municipal Assembly of the city of St. Louis in 1897 repealed old sections 1333, 1334 and 1336, did not either by express words repeal section 1335, which prescribed the compensation of excavation inspectors, nor by necessary implication prescribe for them a different compensation or a different method of employment than those prescribed by said section 1335, which fixed their compensation at thirty cents per hour. No such' position as excavation inspector has been created by the Municipal Assembly otherwise than by section 1335, and it alone prescribes their duties and compensation.
    4. -:--: Not Appointed Under Other Sections. It may be that under the broad provisions of sections 1333 and 1336 of the Municipal Code of St. Louis, the inspectors appointed thereunder may be used in inspecting excavation work in streets and be paid the compensation called for by them; but where the inspectors were not appointed to positions contemplated by those sections, they are not- entitled to the compensation which they fix.
    5. ORDINANCES: Construction. Ordinances, like statutes, are primarily to be interpreted according to the ordinary meaning of their words and the proper grammatical effect -of their arrangement. It will be presumed that the municipal legislatures . are conversant with the simple rules of grammar and have . expressed their will in apt terms, unless it is apparent in the ordinance itself that the application of such a presumption would be absurd, extravagant or repugnant to other provisions of law which must stand with it.
    6. -: -: Executive Practice. Sometimes executive practice under an ordinance should be considered in arriving ' at the legislative intention. This rule is applied to those ordinances which are developed from actual experience in the management of complicated-details of municipal administration; for, in such cases, the officer in charge of the work is in better position to arrive at a workable plan of doing such desultory ■ work than is the court, since such ordinances are often the outgrowth of reports that they make to the municipal legislature.
    Appeal from the St. Louis City Circuit Court. — Hon. Moses N. Sale, Judge.
    Affirmed.

      M. B. Levy and Barclay, Orthwein & Wallace for appellant.
    (1) The fact that plaintiff Clayton and his assignors accepted payment, monthly, of a part of'the salary '.due them for public service as inspectors (as fixed by the city ordinance) and gave monthly receipts therefor, does not bar the right to recover the residue of the lawful salary. People v. Police Board, 75 N. Y. 38; Grant v. Rochester, 175 N. Y. 473; Glavey v. United States, 182 U. S. 595; Golding v. New York, 140 N. Y. Supp. 1020. When the- statutes invest a municipal corporation with power to fix compensation for public services, ordinances doing so must be treated as passed by the Legislature itself. Holman v. City, Í55-Mo. App. 398.. (2) It is not competent for one engaged in public service to 'make- a contract to perform the service for a lesser sum than is fixed by law, such contract being against public policy as. fending to impair , efficient service; and such result cannot, be brought about by indirection, in paying tbe inspector less than his lawful. salary and getting his receipt for the same. State v. Collier, 72 Mo. 13; Bowe v. St. Paul, 70 Minn.. .341; Adams v. United States, 20 Ct. Cl. 115; People v. Board, 75 N. T. 38; Trustees v. Walden, 15 Ala. 655; State v. Steele, 57 Tex. 200; Whiting v. United States, •35 Ct. Cl. 291; Kehn v. Board, 93 N. Y. 291; Settle .v. Sterling, 1 Idaho, 259; State v. Purdy, 36 Wis. 213; -Insurance Co. v. Brainard, 72 Iowa, 130; People v. Thornton, 25 Hun, 456. (3) Even if the so-called “settlement” with plaintiff Clayton and his assignors should be treated on the basis of private dealings (apart from public service) part payment of a liquidated debt will not discharge the residue even if so ex: pressed, (a) Acceptance of a less sum for a greater, 'where the real demand is liquidated by agreement of the parties ‘ ‘ or fixed by law, ’ ’ is not a discharge of the ■.demand, for the obvious reason that the supposed discharge or release, in such circumstances, has no coiisideration to support it. Winter v. Railroad, 73 Mo. App. 194; Winter v. Railroad, 160 Mo. 159; Goodson v. Nat. Assn., 91 Mo. App. 352; Ireland v. Spickard, ¡95 Mo. App. 64. (b) The receipts for the money, •month by month, were evidence only of payments t'o plaintiffsym account. They do not even purport to be :in full or in discharge of all liability. They are far from conclusive and constitute no barrier to plaintiff’s recovery on any theory of “account stated.” Ireland ■v. Spickard, 95 Mo. App. 64; Kehn v. New York, 93 N. Y. 291; Heintz v. Pratt, 54 111. App. 616. (c) A new consideration is necessary to support such relinquishment of the debt. Wetmore v. Crouch, 150 Mo. 671; .Riley v. Kershaw, 52 Mo. 224. (4) Salary for public service is not treated on the principles of ordinary contract. Bates v. City, 153 Mo. 18; State v. Walbridge, 153 Mo. 194; State v. Gordon, 245 Mo. 12. (5) The acts of the city in accepting pay (from holders of permits for excavations, etc.) for the services rendered by these very plaintiffs, at the rate fixed for payment of street inspectors, and in directing plaintiffs to perform all the duties of inspectors, estop the city from denying that they were inspectors. Public corporations, as other persons, are governed by the principles of estoppel, within the scope of their lawful powers. Simpson v. Stoddard County, 173 Mo. 421; Roe v. Bank, 167 Mo. 406. But this issue is no longer vital, as the referee has found that plaintiff and his assignors were inspectors.

      William E. Baird, -and Trmnan P. Young for respondent.
    (1) Paintiffs were not employed as inspectors in the street department under ordinance 19036. This will be obvious from a consideration of the terms of the ordinance and an examination of the testimony. (2) The fact that the. referee found that the plaintiffs were employed under section 1335 of the Revised Ordinances of 1892, while the defense contended that they were employed as day laborers at $2 a day, does not help the plaintiffs ’ case. In either event, they were not entitled to recover anything, as there had been no deficiency in their payment. Furthermore, plaintiffs must recover upon the case stated in their petition or not at all. Bagnell v. Railroad, 180 Mo. 463; Hesselbach v. St. Louis, 179 Mo. 524; Yall v. Gillham, 187 Mo. 408. (3) All municipal appointments to office must be in writing. Ordinance 19036 required inspectors appointed under that ordinance to be appointed by the street commissioner with the approval of the mayor. The appointment, as well as the approval of the mayor, must be in writing and preserved in the city records. People v. Murray, 70 N. Y. 521; Railroad v. Waterbury, 55 Conn. 19; Cooner v. Gilmore, 32 Cal. 75; 23 Am. & Eng. Ency. Law (2 Ed.), p. 34; Throop on Public Officers, secs. 86-87. (4) The plaintiffs having aecepted pay at $2 a day, and allowed their names to be carried upon the payrolls as day laborers at $2 a day, are now estopped from claiming more. Galbraith v. Moberly, 80 Mo. 487; Love v. Jersey City, 40 N. J. L. 459; Stag-g v. Ins. Co., 10 Wall. 589; United States v. Garlinger, 169 U. S. 322; Baker v. NacMrieb, 19 How. 126; United States v. Child, 12 Wall. 232; DeArnaud v. United States, 151 U. S. 483; Rau v. Little Rock, 34 Ark. 303; Mclnery v. Galveston, 58 Tex. 339; Cobbs v. Yonkers, 102 N. Y. 13; Byrnes v. St. Paul, 78 Minn. 205.
   BROWN, C.

:This suit was begun September 20, 1902, since which time Daniel A. Clayton, tire original plaintiff, has died, and the cause has been revived and is now proceeding in the name of his administrator.

Mr. Clayton sued for himself and as assignee of twenty-one others of claims which depend substantially upon the same facts. Each is separately stated in the twenty-two counts of the petition, and they amount in all to $23,709, for which, with accrued interest, judgment is asked.

Each count is a fair type of all the others, and alleges, in substance, the appointment of the original claimant as inspector in the street department of the defendant city for the salary and hire of $75 per month prescribed and fixed by ordinance number 19036 of said city, the number of months he served in that capacity, the faithful discharge of his duties as such inspector during that time, his disclm-ge without any fault of his own, the amount that he ^.ul been paid by the city on account of such services and the amount claimed as still due him. The provision of the ordinance upon which the claim is founded, as pleaded, is as follows:

“Section 1834. Additional Employees of Street Department. In addition to the officers hereinbefore specified, the street commissioner shall, with the approval of the mayor, appoint snch additional surveyors, draughtsmen, rodmen, field hands and inspectors, overseers, clerks, mechanics, teams, carts and day laborers as may be required for the efficient working of his department, whose salaries and hire, excepting day laborers, teams and carts, shall be as follows: Surveyors, one hundred dollars per month; draughtsmen, seventy-five dollars per month; rodmen, sixty dollars per month; field hands, fifty dollars per month; inspectors, seventy-five dollars per month; overseers of street repairs and street cleaning, seventy-five dollars per month; clerks, seventy-five dollars per month.”

It also states the assignment to Clayton of each of the twenty-one claims upon which he declares as assignee.

The answer denies generally the allegations of the petition and avers as to each count that the original claimant therein was never appointed inspector by the street commissioner, nor was he appointed to any position with the approval of the mayor; that plaintiff and each of his assignors was employed by the superintendent' of excavations for and in behalf of defendant as a day laborer, at the rate of two dollars per day for each day he worked, and that each month there was an accounting between him and the defendant, which thereupon paid the amount agreed between them to be due for such services, which the plaintiff accepted and received in full satisfaction therefor and receipted to the defendant in full for all sums due him, whereby his claim and demand was fully discharged. A full statement of each day’s service during each month, and the amount paid therefor to each claimant, was filed with the answer.

Issue was joined by replication and the cause was teferred by the court of its own' motion.

. The petition charges for services rendered during the months from April, 1897, to April, 1902, inclusive, .and the several counts cover periods of from five to :fifty-six months each. The answer states the number of days each claimant was actually employed in each month in looking after the work of excavation. .• This .averages all the way from nine days in the case stated in the thirteenth count, to twenty-nine days in the sixteenth count. Eight of the claimants, including the •plaintiff, were employed or appointed before the passage of the ordinance, No. 19036, approved July 29, cl897, oh which the suit is founded, and fourteen oi them afterwards. None of them were reappointed afTter the passage of the ordinance, but kept on under the • original employment. Plaintiff testified that about . July 1, 1897, he went to the mayor, Ziegenhein,. and .asked for a job. The mayor took him to his son, Adam "(then his private secretary), and told him to give him an appointment. Adam wrote out a paper which the ;plaintiff took to the assistant street commissioner, who sent him to the superintendent of excavation, who sent .him out to' inspect excavations, gave him a printed sheet, and ordered him to make a report on it when the ,work was done. He also instructed him as to the derails of the work, and told him to make a daily report. He also told him that he had to be there at eight o ’clock jin the morning ready to go out at any time. This was ^substantially the proceeding in obtaining the appointunent in the other cases.

Mr. Florshein, who was clerk of the excavation department in 1898-9, testified that appointments to the .positions filled by plaintiff and his assignors were made by him when they would.come to him with notes from the private secretary of the mayor, or the street ■commissioner or assistant street commissioner, and .sometimes he would be in the mayor’s office, or be sent for to go there, and would be told to put the man to work by the mayor’s secretary. None of the notes ■were signed by the mayor. The- substance of them was, “Put this man to work.” • .

The referee found that there was never any formal appointment by the street commissioner approved by the mayor.

When an excavation permit was issued the subsequent connection of these men with the work is described by the referee in his general findings as follows :

“At the time this excavation was to be made, this, permit, and also a report sheet, was turned over to-some one who was to act for the defendant, and who was to see that the rules and regulations of the department were complied with. This person was selected from those who were required to report to the office for-this work, by the superintendent or chief clerk of the-excavation department, and were usually selected in rotation, although, from the number of times some of' them seemed to have been sent out, in comparison with others, there is room for a reasonable doubt that this was not always done.

‘ ‘ The one selected, however, and to whom the permit and report sheet were given, would go to the place-where the excavation was to be made and remain on that work until it was completed, whether it was one hour or two, and if it took days and weeks to complete, as in the case of gas and conduit excavations, he would go there daily until it was completed. He would see-that the excavation was not made any larger than the-permit called for, and after it was made would see that the street was properly filled and put back into proper shape as required by the ordinance or rules of the department, and that the dirt was removed and the street, left as clean as before. The party representing defendant would then fill out the report sheet, putting in the-size of the excavations, if one or more, giving the location, the number of permit, the surface material excavated, the number of hours and dates he was there, would sign the report sheet himself and have the party making the excavation, or the party in charge of it, signalso. He would then return this report sheet to the excavation department and deliverit to the proper party.”

Sometimes credentials were given to them, like the following:

Street Department, Commissioner’s Office,
February 5, 1900.
To Whom It May Concern:
The bearer hereof, C. 6. Balmer, is an inspector in the Excavation Division of the Street Department of the City of St. Louis, and is authorized to enforce the provisions of Section 1335 of the Revised Ordinance of 1892.
Charles Varrellmanh, Street Commissioner.

The following is a copy of the pay-roll upon which the plaintiff receipted for his pay for August, 1897. Payments were made to him and his assignors monthly upon similar vouchers at the same rate of two dollars for each day upon which any work was assigned them.

The City of St. Louis. Street Repairs — -Miscellaneous Expenses.
To the following persons, Dr.
For services rendered in Street Department during month ending August 31, 1897. -
Names Occupation Period Amount We, the undersigned, acknowledge to have received from tho Treasurer of the City of St. Louis the sums herein specified opposite our respective names.
D. A. Clayton Laborer 20 2.00 D. A. Clayton. •

They are described in and signed all reports as “Inspector.”

The several ordinances of the city of St. Louis which are presented for construction are before us, and will sufficiently appear in connection with the consideration of the questions raised by counsel in their printed and oral arguments.

I. That the city of St. Louis had power under its charter to fix the compensation to be paid to those employed as inspectors of excavation in its streets is not questioned. Nor is it dis-puted that had it exercised that power and fixed the compensation of the plaintiff and his assignors at seventy-five dollars per month during the period of their employment at that work,it would not have lain in the mouth of its other servant, the street commissioner, to say that they would do the work for less. He could not contract with them to do so, for their right to compensation was fixed by law the same as his own, and did not rest upon contract. [Glavey v. United States, 182 U. S. 595; Bates v. St. Louis, 153 Mo. 18; State ex rel. v. Walbridge, 153 Mo. 194; State ex rel. v. Gordon, 245 Mo. 12; Grant v. Rochester, 79 App. Div. (N. Y.) 460, 175 N. Y. 473; Golding v. New York, 140 N. Y. Supp. 1020; Kehn v. New York, 93 N. Y. 291.] We are thus brought face to. face with the question whether the Municipal Assembly of St. Louis has fixed the compensation of these inspectors as charged in the petition, and there is no better place to look for information on that subject than to the ordinances themselves.

II. At the time of the appointment of plaintiff and a number of his assignors it was provided by section 1332 of the Municipal Code of 1892, then in force, as follows:

“The street commissioner shall be the head of the street department, and shall have under his charge the-., surveying, construction, reconstruction, repairing, cleaning and sprinkling of the public streets, alleys and places, excepting parks, and also the supervision and control of all excavations, and refilling of same, made for the laying of gas and water pipes, sewers or any other purposes whatever.”

It will be noticed that the matter of the control of “all excavations, and refilling the same,” is not only distinctly, but separately, stated.

In the performance of these duties he was author- • ized, with the approval of the mayor, to appoint sprinkling inspectors, .not to exceed twenty-one in number, who should receive for their services $83.33 1-3 per month. It is evident that the intelligent municipal supervision of the important-work of constructing, reconstructing, repairing and cleaning the streets would require a large number of competent inspectors, and (section 1336) he was required to employ with the approval of the president of the board of public improvements, such, inspectors as might be required for the efficient working of his department, whose salaries and hire, excepting day laborers, should be established by ordinance. The “monthly compensation” of these “inspectors” was, by the terms of section 1384 of the same ordinance, fixed at $83.33 1-3 per month, the same as sprinkling inspectors. Special provisions were enacted by the Municipal Assembly for his government in the performance of his duties with reference to street excavation. It was forbidden that any such excavation should be made without written permission from him so to do, and the whole subject of obtaining this permission, and the control, supervision and performance of the work, was treated in section 1335. This provided, in substance, that any person or corporation desiring to make such an excavation should apply to the street commissioner for a permit, which should only be issued after the applicant had deposited with the city treasurer a sum of money as a special fund to be used by the street commissioner as therein provided. It prescribed minutely the manner in which the excavation and refilling should be done and the pavement replaced. It provided that in all cases where such work should be in an improved street or highway other than a macadamized street or paved alley, it should be done under the charge and direction of an inspector appointed by the street commissioner, whose duty it should be to see that the work was properly done in accordance with the rules prescribed by the commissioner. It then proceeded: “The pay of said inspector shall be charged against the deposit hereinbefore provided, and shall be at the rate of thirty cents per hour. The time allowed the inspector shall be computed only for the number of hours he is actually inspecting the work. Whenever a person applies for a street excavation permit he shall state in writing in his application the hour he will commence work, and the inspector’s time shall be allowed from the hour so stated, whether work is commenced or not; provided, the inspector is on the ground prepared to oversee the work. ’

Thus it will be seen that three classes of inspec-' tors were separately and distinctly provided for, and. the Compensation of each as separately and distinctly-provided for: the sprinkling inspectors, to be appointed with the approval of the mayor, and paid monthly-wages; excavation inspectors, who were to be appointed by the street commissioner of his own motion, and paid for services by the hour; and the general or additional inspectors, who were to be appointed with the approval of the president of the board of public improvements, and paid monthly compensation. .

While the appellant in argument, as well as in his petition, plants himself unreservedly upon the amendatory ordinance number 19036 which we will presently notice, he is asking compensation for services performed during a considerable period preceding’ its enactment. For this reason,, as well as for the assistance it gives us in the interpretation of the amendment, we will revert to section 1335 for the purpose of pointing out its provisions more definitely. That it covers the whole subject of street excavation by others than the city is evident, and it is here we must look for the municipal regulation relating to that work. Ordinances, like statutes, are primarily to be interpreted according to the ordinary meaning of their words and the proper grammatical effect of their arrangement. It will be presumed that the municipal legislature, like that of the sovereign State, are conversant with the simple rules of grammar and have expressed their will in apt terms, unless it is apparent in the act itself that the application of such a presumption would be absurd, extravagant, or repugnant to other provisions of the law which must stand with it. It is only in some such case that we may sacrifice the language to construction. Bearing in mind that the street commissioner had charge of many other things connected with the construction, maintenance and care of the streets than excavation, including their sprinkling, and that by a previous section of the same ordinance relating’ especially to that subject (section 664) he had been given authority, with the approval of the mayor, to appoint, not only a superintendent of sprinkling, but twenty-one inspectors who should each receive for their services $83.33 1-3 per month, we come to the consideration of section 1335 providing in like manner for excavation. This section requires that the work of excavation and refilling shall be done under the charge and direction of an inspector appointed by the street commissioner. The Municipal Assembly, for some reason which we must presume was sufficient to themselves, omitted to require the approval of the mayor or president of the board of public improvements, and instead of providing for monthly compensation, as in case of both the sprinkling inspectors and additional inspectors authorized by section 1336, fixed his compensation at thirty cents per hour. It is definite and specific in the choice of words enacting that his compensation related to the pay of the inspector himself, and not to the reimbursement of. the city on account of having, furnished the' services of its own salaried officer of employee. It calls it “the pay of said inspector,” and it is his pay which shall be at the rate of thirty cents per hour. The ordinance says — not the time allowed for the inspector — but “the time allowed the inspector shall be computed only for the number of hours' he is actually inspecting the work.” It then proceeds to state that the inspector’s time shall be allowed from the hour stated in the application, whether work is commenced or not, provided the inspector is on the ground prepared to oversee the work. It is impossible that the Municipal Assembly should have made all these blunders in the use of so few words had they desired to say that the city should be allowed thirty cents per hour for the services of its inspector while on the ground. We can come to no other conclusion than that the object of section 1335 was to prescribe the practice in cases of excavation .with the same or greater detail than that with which they prescribed the supervision of the sprinkling of the streets in section 664.

Another rule occasionally applied to the construction of statutes and ordinances where its use is indicated in the application of the words to the thing sought to be controlled, is that sometimes executive practice under it should be considered in' arriving at the legislative intention. There is nothing more reasonable than this rule in its application to these ordinances which are developed from actual experience in the management of the complicated details of municipal administration, and which result in many cases from reports of administrative officers showing their necessity. The court, even when enlightened by evidence, cannot judge of the cheapest plan to provide supervision in desultory work of this kind, as can the officer in charge of and in touch with it continually, with every opportunity to gain some approach to an equal distribution of the service. We are not even in position to state the problems which confront him and we should not be slow to avail ourselves of his experience and practice in the interpretation of rules in operation under his constant observation and which in many instances result from advice founded upon his daily practice. We do not think it possible by any stretch of interpretation to construe the provision of ■ordinance No. 17188 as requiring the appointment, by the street commissioner with the approval of the mayor, of inspectors entitled to compensation at the rate of $75 per month, to oversee and direct the work •of excavation.

III. It remains to consider -whether this has been changed by ordinance No. 19036. This ordinance repealed sections 1333,1334 and 1336 of the existing ordinance, leaving section 1335, . ’ covering the subject of street excavation, still in force, and, in lieu of the sections so repealed, divided the city into four districts and provided for the appointment by the street commissioner, with the approval of the mayor, of a district superintendent for each of said districts, who should, in their respective districts, supervise and have charge of the repairs, cleaning and sprinkling of the streets, alleys "and public places, and for the appointment in the same manner of forty inspectors, ten of whom were to be assigned to each of the four districts and fixing the “salary” of these inspectors at $75 per month. In addition to all other duties therein provided, and which might be required of them by the street commissioner, they were to perform such duties as should be required by the district superintendent. No duty connected with excavation in streets was assigned to the district superintendent, but these remained in the immediate charge of the street commissioner, who was allowed a clerk, to be appointed with the approval of the mayor, for services in that department alone, for the regulation of which the provisions of section 1335 were left in force, continuing with all its details the same plan in operation before the passage of the amendatory ordinance. "We are now called upon to supplement the work of the legislature by construction so as to engraft upon ordinance 19036 the repeal by implication of all that portion of the continued section relating to the appointment by the street commissioner and pay of inspectors engaged in that work. We see nothing in the amendment to justify such a construction or to indicate an intention on the part of the Municipal Assembly to interfere in any respect with the details of the plan already established with reference to excavation.

The provision of the new section 1336 referring to-the appointment by the street commissioner, with the-approval of the mayor, of inspectors at a salary of seventy-five dollars per month, is simply a continuation in a single section of the provision of the repealed section of the same number, with the Change that the appointments therein authorized are to be made with-the approval of the mayor instead of the president of the board of public improvements, and changing the compensation fixed in the repealed section 1381 to seventy-five dollars per month. No change whatever having been made in section 1335 of the ordinance of 1892, the compensation of inspectors appointed under its provisions remains as therein fixed, and no other authority is given the street commissioner, either with or without the approval of the mayor, to appoint special-inspectors for the superintendence of that work. There-is no such position created by any ordinance in evidence as inspector in the excavation department other than the inspectors appointed under that section.

IV. It may be that under the broad provisions of the new section 1333, the inspectors appointed thereunder and assigned to the districts may be used in excavation work by the street commissioner, if in his judgment it should be necessary and the public interest requires it, and the same may be true of the additional inspectors provided for in section 1336 of the. same amendment; but there is nothing in this record to show that any of these men were ever appointed to a position contemplated by either-of those sections. Section 1333 provides that the inspectors therein authorized shall be assigned to the respective districts, ‘ ‘ and shall, in addition to all other duties herein provided,, and such as may be required by the street commissioner, perform such duties as may be required by the ■district superintendents.” There were hut forty gf these provided for, and accordingly, in section 1336 it was further ordained, as. it had been ordained in sub.stance in the corresponding section of the previous ■ordinance, that he might, with the necessary approval, appoint such additional inspectors as might be required for the efficient working of his department, and no modification was made in respect to their duties. The credentials given some of these men, and we will assume to all of them, that they were “inspectors in the Excavation Division of the Street Department of the City of St. Louis,” truly described their position, but no such position had been created by the Municipal Assembly otherwise than by the terms of section 1335, which prescribed their duties and compensation. They were never called upon by the street commissioner to do any work, or to hold themselves in readiness to do any work other than that provided for in the same section.

Applying the rule so strenuously urged by the appellant that the performance and acceptance of the services with the knowledge of both the appointing and advisory officers was equivalent to a formal appointment, we arrive at the result that they were entitled to the compensation of thirty cents per hour provided for the service. It may have been and probably was the fact that two dollars per-day for each day in which they performed any service was better. They are not, however, complaining on that account, but simply suing because they feel aggrieved that they have not been paid seventy-five dollars per month, and in this we think their position is not well taken.

It follows that the judgment of the circuit court will be and is affirmed. Bailey, G., concurs.

PER CURIAM.

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

All the .judges concur.


source: Caselaw Access Project

author: PARIS, P. J.

license: Public Domain

text:
    MARY E. WILKINSON, Appellant, v. ANDREW J. McGEE.
    Division Two,
    July 6, 1915.
    1. PLEADING: Stating Facts. Whatever may have been the . first view of those jurists who grudgingly gave effect to the simplified code procedure, and by construction held to the ancient lore on pleading, it is now well settled that the clause of the statute which ordains that the petition shall contain, as a matter of substance, as contradistinguished from mere form, “a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition,” means what it says. The requirement is that the facts be stated, not mere conclusions of law.
    2.. -: Malicious Prosecution: Charging “Without Probable Cause.” Because hundreds of cases in this State and elsewhere have ruled it to be sufficient ordinarily in a civil action for malicious prosecution to aver that the prosecution was “without probable cause,” it does not necessarily follow that in all cases and under all circumstances such an averment is sufficient; and for a stronger reason such a bare averment is not sufficient, when other facts are averred which show there was probable cause within the purview of the law.
    3. -: -: -: Indictment by Grand Jury: Malice. The finding of an indictment by a grand jury constitutes primafacie evidence of the existence of probable cause for the prosecution of the accused; and that prima-facie case is not overcome by the simple fact that the indictment upon motion was quashed, and the accused thereby acquitted. Nor is it overcome by the fact that the defendant in the civil action for malicious prosecution was dominated by malice and ill-will, for if probable cause existed, the fact that said defendant was actuated by malice will not avail.
    4. -: -:-:-: No Cause Pleaded. A petition in a suit for malicious prosecution which states that plaintiff was indicted by a grand jury upon evidence “maliciously, wantonly and without probable or reasonable cause” furnished-by defendant, and that said indictment was quashed, does not state a cause of action. On the contrary, it states that there was prima-facie probable cause, namely, an indictment by a grand jury; and stating no fact to overcome the prima-facie case, such as that the indictment was obtained by false or fraudulent testimony furnished by defendant, a demurrer thereto should be sustained.
    Appeal from Cape Girardeau Court of Common Pleas. —lion. R. G. Ranney, Judge.

      Affirmed.

      Oliver & Oliver for appellant.
    (1) To put the criminal law in force, maliciously . and without any reasonable or probable cause, is wrongful, and if thereby another is injured in property or person, there is that conjunction of injury and loss which is the foundation of an action. Pope v. Pollock, 4 L. E. A. 25; Addison on Torts, p. 65; Cooley on Torts, p. 189. (2) The necessary allegations for and gist of every action for. malicious prosecution are the presence of malice and want of probable cause. "Wehymeyer v. Mulvihill, 130 S. "W. 681; Coleman v. Treece, 130 S. "W. 56. (3) The want of probable cause is a negative averment and should be so averred. The onus rests upon the plaintiff, however, to support such allegations at the trial by affirmative proof. "Wheeler v. Nesbit, 65 U. S. 544; Palmer v. Eichardson, 70 111. 544; 14 Am. & Eng. Ency. Law, p. 63. (4) In pleading want of probable cause in malicious prosecution suits, it is only necessary to state that the prosecution was without reasonable or probable canse. "Walser v. Thier, 56 Mo. 92; Moody v. Deutsch, 85 Mo. 242; Boss v. Hixon, 46 Kan. 550, 12 L. E. A. 760; Given v. "Webb, 30 N. Y. 65; Helbert v. Donaldson, 69 Mo. App. 92; Eagleton v. Kalrich & Longley, 66 Mo. App. 231. (5) The established meaning of “probable cause” in this State is that it consists in a belief in the charge and facts alleged based on sufficient circumstances to reasonably induce such belief in a person of ordinary prudence, in the same situation. Boerger v. Laugenberg, 97 Mo. 396; Lindsay v. Bates, 223 Mo. 306. (6) It is generally held that a conviction in a trial court is conclusive of probable cause, but in a case such as the one at bar, where an' indictment was quashed and prisoner discharged such, a rule does not obtain; in such cases there, is only prima-facie probable cause and the same averments and proof are not required in the petition for malicious prosecution as in the former case. In the latter case the plaintiff is only required to ■ allege and prove: First, the institution by defendant of the former suit and its termination in his .(present plaintiff’s) favor; second, malice; third, want of probable cause; fourth, damage. When he has alleged these four things, he has alleged all that he needs to prove, and there can be no denial that this petition specifically alleges all four: McKensie v. Railroad, 24' Mo. App. 392; Kennedy v. Holliday, 25 Mo. App. 503; Stocking v. Howard, 73 Mo. 25; Best v. Hoffber, 39 Mo. App. 682; Leonard v. Transit Co., 115 Mo. App. 349; Ross v. Hixon, 26 Am. St. 123; Graves v.‘ Scott, 2 L. R. A. (N. S.) 934; Hays v. Blizzard, 30 Ind. 457; Lytton v. Baird, 95 Ind. 349; Castro v. DeUriarte, 12 Fed. 250; Jones v.' Gwynn, 10 Mod. 214; Chambers v.'Robinson, 1 Strange, 691; Dennis v. Ryan, 65 1ST. T. 385; Randol v. Henry, 5 Sten. and P. (Ala.) 367; Schatton v. Hollenback, 149 111. 652; Shaell v. Brown, 28 Iowa, 37; Parli v. Reed, 30 Kan. 534; Morris v. Scott, 21 Wend. 281; Stone v. Stevens, 12 Conn. 219; Stancliff v. Palmeter, 18 Ind. 324; Cline v. Schuler, 30 N. C. 484; Vinal v. Cobe, 18 W. Va. 1; Merriman v. Morgan, 7 Ore. 68; 14 Am. & Eng. Ency. Law (1 Ed.), p. 29; Bishop on Non-Contract Laws, secs. 248-9; Cooley on Torts (2 Ed.), p. 215. (7) A petition which contains matter showing a prima-facie case of the existence of probable cause, need not specifically state that the prosecution was obtained by fraud, perjury, falsehood or other unfair means. Stainer v. Mining Co., 166 Fed. 220; Ziegler v. Powell, 54 Ind. 173; Cramer v. Barmon, 136 Mo. App. 673; Ross v. Hixon, 12 L. R. A. (Mo.) 760. (8) The tendency of the courts to-day is against the sustaining of such demurrer as this defendant’s. Gonsuland v. Rosomano, 176 Fed. 481.

      T. I). Hines for respondent.
   PARIS, P. J.

Action for malicious prosecution, brought in the Cape Girardeau Court of Common pleas, wherein a demurrer to the petition was sustained, and plaintiff refusing to further plead, final judgment and this appeal followed.

The case went first to the St. Louis Court of Appeals, but upon the establishment of the Springfield Court of Appeals it was transferred to the latter court, wherein an opinion was written. [153 Mo. App. 343.] Later, the jurisdiction of the Springfield Court of Appeals in such cases being successfully questioned, the case was re-transferred to the St. Louis Court of Appeals, wherein by an opinion by Caulfield, J., in which Nortont, J., concurred, the opinion of the Springfield Court of Appeals was adopted as the opinion of the St. Louis Court of Appeals. [163 Mo. App. 356.] To this action and to the said opinion Reynolds, P. J., dissented in an opinion filed, and deeming the ruling in the carrying opinion contrary to our decisions, asked that the case be certified up to us, which was accordingly done; hence, our jurisdiction.

As foreshadowed, the question is upon the goodness on demurrer of the petition, the pertinent parts of which, caption and signature omitted, read thus:

‘ ‘ Comes now the plaintiff and first having obtained leave of court so to do files this, her amended petition, and for cause of action plaintiff states that on or about the 10th day of January, 1909, at Jackson, in the county of Cape Girardeau, and State of Missouri, the defendant maliciously intending to injure the plaintiff in her good name and reputation and without reasonable or probable cause therefor appeared before the grand jury of Cape Girardeau county, Missouri, summoned for the January term, 1909, of the Cape Girardeau County Circuit Court and did then and there make complaint of and charge this plaintiff with having committed a misdemeanor in this, that he charged her with having unlawfully, wantonly and. without right, broken, cut down, injured and carried away a portion of his, the said Andrew J. McGee’s, fence.

“Plaintiff further states that this defendant, Andrew J. McGee, was instrumental in instigating, instituting, presenting, pressing and continuing this charge against her before the said grand jury, and that he maliciously, wantonly and without probable or reasonable cause therefor produced and furnished the names of witnesses that came before the grand jury and that it was upon the testimony so furnished and produced by him, the said Andrew J. McGee, that the grand jury found and returned to the circuit court of Cape Girardeau county, Missouri, a true bill of indictment against this plaintiff; and that upon said true bill of indictment so found and returned, a warrant or capias for the arrestofthisplaintiffwasissuedbytheclerk of said court.

“That thereafter on the 16th day of March, 1909, this plaintiff was arrested upon said warrant or capias by the sheriff of Cape Girardeau county, Missouri, and was taken in his, the said sheriff’s custody and charge, under arrest, and was compelled to so remain under arrest until she procured and g'ave bail in the sum of two hundred dollars in order to secure her release.

“That afterwards on the 3rd day of May, 1909, it being the first day of. the May term of the Cape Girardeau County Circuit Court, and in compliance with said warrant of arrest, this plaintiff appeared in the circuit court of Cape Girardeau county for trial and answer to make to said criminal charge, and on said day filed a motion to quash said indictment; that she remained in attendance upon said court from day to day until the 8th day of May, 1909.

“Plaintiff further states that on said 8th day of May, 1909, said indictment so found against this plaintiff for said crime so charged against her, was quashed by the circuit court of Cape Girardeau county, Missouri, and this plaintiff was fully acquitted and discharged by said court and that said prosecution was thereby wholly and entirely terminated.

“Plaintiff further states that she is now and was at all the times hereinbefore stated, a single and unmarried woman and a resident of Cape Girardeau county, Missouri; and that the defendant is now and was at all the times hereinbefore stated a resident of Cape Girardeau county, Missouri.

“Plaintiff further states that she has been compelled to retain counsel at much expense to defend said malicious prosecution and that she has lost much valuable time and has been greatly inconvenienced and put to much expense in attending upon the circuit court of Cape Girardeau county, Missouri, and in the preparation for the trial of said cause; that said malicious prosecution has caused her much mental pain and suffering; that she is an unmarried woman and has always enjoyed the reputation of being a peaceable and lawabiding person, having a wide acquaintanceship in the community in which she lives; that by reason of said wanton and malicious prosecution so instituted by defendant without probable or reasonable cause therefor, she has been brought into contempt and ridicule and greatly injured in her good name, fame and reputation, to her damage in the sum of two thousand dollars.

“Plaintiff further states that the action and proceedings of this defendant against her were so grossly vindictive, wanton and maliciously instituted for the purpose of injuring this plaintiff in her good name and reputation that defendant has subjected himsel'f to punitive damages.

“"Wherefore plaintiff prays judgment against this defendant for the sum of two thousand dollars for compensatory damages, and the sum of two thousand dollars for punitive damages, together with her costs in this behalf expended.”

To this defendant interposed both a general and a specific demurrer, which, leaving ont caption and formal parts, reads thus:

“Now comes the defendant in the above entitled cause and demurs to the plaintiff’s amended petition herein and for reasons for this demurrer says:

“1. That said amended petition does not state facts sufficient to constitute a cause of action against defendant.

‘£ 2. That said amended petition shows on its face that plaintiff was regularly indicted by a grand jury, which raises the legal presumption that the indictment was found with and on account of probable cause; and that there are no allegations in the amended petition sufficient to overcome the legal presumption of the existence of probable cause afforded by the indictment by a grand jury.

“3. The legal presumption of probable cause afforded by pleading that plaintiff was indicted, is not overcome by any charge in the amended petition that said indictment was procured through false or fraudulent testimony procured by defendant; or that defendant believed plaintiff innocent of the charge, and that the amended petition shows on its face that the prosecution was with probable cause. ’ ’

OPINION.

There is but one question in the case: Is the petition good on demurrer? This question in the last analysis of the concrete facts and respective contentions of the parties may be further simplified and narrowed by saying that the question is: Whether in a case wherein it is averred that plaintiff was indicted by a grand jury, and that such indictment was quashed, it is sufficient without more to aver that the prosecution of plaintiff was “without probable cause?” In short, must the pleader negative by apt allegations in his petition the prima-facie probable cause connoted by the fact of the indictment by a grand jury, absent a trial and acquittal upon the indictment, and present á mere quashal of the indictment?

Obviously, the point is somewhat novel and the case is to an extent sm generis. Obviously, also, for these reasons the ancient forms and the well-thumbed precedents are of little value, and we are forced back to a consideration of a few first principles of pleading under the code. Time was mayhap when a pleading could be measured upon the bed of Procrustes, but upon a later time the statute came in and ordained that the petition shall contain as a matter of substance as contradistinguished from mere form, “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” [Sec. 1794, E. S. 1909.] Whatever may have been the first view of those jurists who coming to apply the code to pleadings yet held by construction to the ancient lore, and grudgingly and but halfheartedly gave effect to the simplified procedure of the statute, it is now well settled that the excerpt quoted means what it says. [Shohoney v. Railroad, 223 Mo. 649; Sidway v. Missouri L. & L. S. Co., 163 Mo. 342.] In the Shohoney case, supra, at page 671, it was said:

“It is the duty of a plaintiff to state his case with such clearness and definiteness that his adversary may know exactly what the complaint against him is. Our statute says the petition must contain ‘ a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.’ [Sec. 592, E. S. 1899; 1 Ann. Stat. 1906, p. 612.] That duty devolves on the plaintiff and it is one that appeals to our sense of justice and fair play. There are no words in the Code of Civil Procedure more significant of the spirit which actuated its authors than the words just quoted. The requirement is that the facts be stated, not mere conclusions of law.”

"We say so much, largely to point the moral with which we began, that because hundreds of cases in this State and elsewhere have ruled it to be sufficient ordinarily to aver that the prosecution was “without probable cause,” does not necessarily prove that in all cases and under all facts and circumstances, this averment is sufficient; a fortiori, when other facts are averred in the petition which show that there was probable cause within the purview of the law. Since the petition must state facts and not conclusions of law (Bliss on Code Pleading, 210), and since if a fact be shown which as a conclusion of law negatives liability, obviously then other facts should be stated to make clear wherein liability accrues.

There are cases holding, correctly we think, that the quashing of an indictment is an end of the criminal prosecution within the purview of the rule which requires that the criminal prosecution shall be at an end before a civil action for malicious prosecution will lie. [Hays v. Blizzard, 30 Ind. 457; Lytton v. Baird, 95 Ind., 349; McKensie v. Missouri Pacific Ry. Co., 24 Mo. App. 392.] But that is not the question here, in our opinion. For the courts all agree that the gist of an action for malicious prosecution is the existence, vel non, of malice and probable cause. If there was probable cause to believe the plaintiff in the civil action to have been guilty in the criminal prosecution on which the civil action is bottomed, the fact of his innocence is of no legal moment. [Sharpe v. Johnston, 59 Mo. 557; Burris v. North, 64 Mo. 426; Lytton v. Baird, 95 Ind. 349; Brennan v. Tracy, 2 Mo. App. 540.] This rule was stated in Lytton v. Baird, supra, l. c. 352, and is generally stated thus:

“The question of the presence or absence of probable cause does not depend upon the guilt or innocence of the accused, or upon the fact whether or not a crime has been committed. [Hays v. Blizzard, 30 Ind. 457; Carl v. Ayers, 53 N. Y. 14; Baldwin v. Weed, 17 Wend. 224; Bacon v. Towne, 4 Cush. 217; Thompson v. Lumley, 50 How. Pr. 105; Moore v. Sauborin, 42 Mo. 490; Callaway v. Burr, 32 Mich. 332.] Want of probable cause and malice are the issue in the case and it makes no difference as to the innocence of the accused. [Skidmore v. Bricker, 77 Ill. 164.]”

Since, however, malice even in the absence of proof of express malice, will be presumed from the lack of probable cause, and since if there exist probable cause ■it is a defense, though express or actual malice in common acceptation be present, no very strong reason ordinarily exists or is to be found in logic or in the adjudged cases for requiring proof of express malice. This seems to be so for the reason that malice in its legal aspects does not mean the mere spite, dislike or ill-will of one person toward another; such dislike or ill-will must take the. form of, or be shown by, an overt act. And such act may take, and in malicious prosecutions ordinarily (if not always) does take the outward form of beginning and maintaining a prosecution without probable cause for so doing. ■ On this point our Kansas City Court of Appeals, in the very late case of Smith v. Glynn, 144 S. W. l. c. 151, said:

“Earnest discussion has been made of the question of malice as it is said to affect this case. We have stated that whatever malice may have actuated defendant, if he had probable cause for the prosecution, he is not liable, and such is the law. It takes both a lack of probable cause and malice to make out a case. If either be not shown, the case fails. So it is said that, however vile the malice, if there be probable cause, no action can be maintained. [Sharpe v. Johnston, 59 Mo. 557; Warren v. Flood, 72 Mo. App. 199.] ”

Furthermore, we may safely premise that the rule in this State (Sharpe v. Johnston, 76 Mo. 660; Vansickle v. Brown, 68 Mo. l. c. 636; Brant v. Higgins, 10 Mo. 728; Firer v. Lowery, 59 Mo. App. 92) as well as that in practically every other jurisdiction in the Union, is that the finding of an indictment against the accused constitutes prima-facie evidence of the existence of probable cause for his prosecution. [Garrard v. Willet, 27 Ky. 4; Casey v. Dorr, 94 Ark. 433; Lindsey v. Couch, 22 Okla. 4; Barber v. Scott, 92 Iowa, 52; Brown v. Griffin, Cheves (S. C.), 32; Ricord v. Railroad, 15 Nev. 167; 26 Cyc. 40.] In the case of Firer v. Lowery, supra, at page 98, our Brother Bond, then a judge of the St. Louis Court of Appeals, writing the opinion of the court in that case, said:

“Since the prima-facie presumption of probable cause afforded by evidence of the indictment and commitment has not been negatived or rebutted by any substantial evidence in this record, the plaintiff has not discharged the burden of proof resting upon him, and the court erred in refusing defendant’s instruction, at the end of the trial, in the nature of a demurrer to the evidence. For this reason the judgment must be reversed. This case has been twice tried, and we cannot assume that the learned counsel have failed to ascertain all the facts obtainable. As these are wholly insufficient to sustain the verdict, it will not be remanded. ’ ’

The fact that the indictment was quashed has no bearing upon the case further than that it proves for the purposes of the action for malicious prosecution that the criminal prosecution of accused was at an end. [McKensie v. Railroad, 24 Mo. App. 392; Lytton v. Baird, supra.] It does not prove either probable cause or the lack thereof. [26 Cyc. 42; Nolen v. Kaufman, 70 Mo. App. 651.]

How then, in the light of principles which are well settled, stands the case when these principles are applied to the facts here? Plaintiff pleads that she was indicted by a grand jury. This indictment created a prima-facie presumption that probable cause existed for her prosecution. [Firer v. Lowery, supra, and cases cited.]. The want of probable cause and malice (to be presumed from want of probable cause) form tbe very gist of this action. If probable cause to prosecute her existed, then the fact that plaintiff was dominated by spite or ill-will against her, cuts no legal figure in the case (Smith v. Glynn, supra); so her express allegation of malice is swallowed up in our view by the question of the presence vel non of probable cause. Plaintiff expressly says in so many words that defendant “maliciously, wantonly and without probable or reasonable cause” — furnished to the grand jury the names of witnesses upon whose testimony plaintiff was indicted by such grand jury. But plaintiff is not content with the allegation of lack of probable cause; she goes further and expressly avers a fact which is of itself prima-facie proof that there was probable cause. Does not one allegation in a way cancel the other? If the code, as it does, requires us to state “the facts constituting a cause of action” (Sec. 1794, R. S. 1909), is a cause of action stated by a petition which, if every allegation contained in it were admitted, would not allow a recovery? If plaintiff had gone to the jury and had shown upon her part the fact that she had been indicted by a grand jury, but had not shown any fact explanatory of the manner in which such indictment was procured, she could not recover (Firer v. Lowery, supra), and it would have been the duty of the court nisi to sustain a demurrer to the evidence. Will it be contended that to permit recovery the proof must show facts which the petition does not allege? If plaintiff had admitted the facts (as the demurrer in legal effect does) and all of them set forth in the petition, under the doctrine announced in Firer v. Lowery, supra, as also in principle in other cases cited, the judgment should have been for defendant. This view was taken by a case precisely in point in Rhode Island (Giusti v. Del Papa, 19 R. I. 338) and by the Vermont courts. We have found no others directly in point, except may-hap the case of Stainer v. Land & Mining Co., 166 Fed. 220, wherein, however, Phillips, J., filed an able and convincing dissent, to which we are constrained to lend our concurrence.

In the very recent case of Thienes v. Francis, 69 Ore. 165, it was said: “The finding of an indictment by a grand jury, when shown as prima-facie evidence of probable cause, may be overcome by proving that the indictment was procured'by perjured evidence. [26 Cyc. 40; Firer v. Lowery, 59 Mo. App. 92; Flackler v. Novak, 94 Iowa, 634; Putnam v. Stalker, 50 Ore. 210.] ” Which holding emphasizes the thought that if the indictment of the accused by a grand jury be so far prima-facie proof of the existence of that probable cause which, absent proof of perjury and scienter thereof, will be an absolute defense (and of this there is not left even a respectable doubt by the authorities), why put the court to the labor of hearing a case wherein recovery is foreclosed? If facts exist which destroy the prima-facie defense connoted by the fact of indictment, what logical reason exists for not taking the court nisi into the confidence of the pleader, so that in advance of time and labor spent, possibly in doing a vain and futile thing, the court may judge whether there exists a real cause of action?

“The finding of an indictment,” says 26 Cyc. 40, “by the grand jury against an accused person charged with crime, is prima-facie evidence of probable cause in an action for malicious prosecution, but it is not conclusive, and may be rebutted by proof that the indictment was obtained by false or fraudulent testimony, or other improper means.” Indeed, why should this not be so when nine men (at least), standing indifferent between the accused and the prosecutor, upon their oaths and in the line of their solemn duty, say there is probable causef Something in such case beyond the mere averment of a cancelled conclusion of law should be set forth, lest the courts be clogged with the doing of vain things, and the law-abiding man of substance held back from the plain duties of good citizenship through fear of being mulcted in unjust damages, and thereby the peace and order of the community be endangered.

Newell on Malicious Prosecutions, section 13, says: “Actions for malicious prosecution are regarded by law with jealousy. Lord Holt said more than 200 years ago that they Aught not to be favored, but managed with great caution.’ Their tendency is to discourage prosecution for crime, as they expose the prosecutors to civil suits, and the love of justice may not always be strong enough to induce individuals to commence prosecutions, when, if they fail, they may be subjected to the expense of litigation, if they be not mulcted in damages. ’ ’

Therefore^ though confessedly the point is close and troublesome and the analogous cases irreconcilable, these considerations of principles and public policy constrain us to take the view that the learned court nisi was correct in sustaining the demurrer to the petition and that his judgment ought to be affirmed. Let this be done.

All concur.


author: WALKER, J.

text:
    F. M. LOWE, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division Two,
    July 6, 1915.
    1. MASTER AND SERVANT: Safe Tools. Generally a master is required to use ordinary care to furnish a servant with safe tools and appliances and to keep them in a safe condition for the performance of the labor required; and the servant is required to use ordinary care for his own safety.
    2. -: -: Ordinary Care. What constitutes ordinary care in any case depends upon the nature and character of the tools and appliances and the dangers to be encountered in their use.
    3. -: -: Burden to Show Negligence Upon Servant. To recover damages resulting to the servant from the use of tools, the burden uniformly rests upon him to prove negligence on the master’s part. A case is not usually made out by showing the condition of the tools and the resulting injury; he must go further and show that at the time of the injury an ordinarily prudent man occupying the position of the master would have apprehended that the use of the tools would, by reason of their condition, probably result in injury.
    4. -: Dull Pick: Apprehension of Danger. Proof that a pick used by a section hand in removing ties from under the rails of a railroad, was dull, and that a sharp pick would have been safer, does not establish negligence on the master’s part in furnishing an unsafe tool; it cannot be said that a dull pick so used is not reasonably safe; whether dull or sharp, a pick is a simple tool which does not under ordinary circumstances arouse apprehension of danger from its use.
    5. -: -: Danger Not Apprehended by Servant. If an experienced servant, after the continued use of a dull pick in removing old ties from a railroad track, did not apprehend danger from the use of the pick and it did not occur to him that he was liable to injury by its slipping out and his falling backward, the master should not be held to have anticipated its dangerous character and to have kept it sharpened.
    6. -: -: -: Falling Backward. Nor was the master any the more chargeable with the duty of apprehending that if the pick slipped out the servant would fall backwards than was the experienced servant after having used the dull pick several times without falling.
    Appeal from Stone Circuit Court. — Eon. John T. Moore, Judge.
    AEEIRMED.

      Sizer & Kemp for appellant.
    (1) Respondent will insist that as the pick was a simple tool the appellant assumed the risk of using same, and will doubtless, as in the lower court, rely on the case of Mathis v. Stock Yards, 185 Mo. 434, as upholding its contentions. We contend that the Mathis case is not in point in this case for the reason that in the Mathis case there was no objection or complaint made to the use of the plank, as there was in the case at bar to the use of the pick. Where a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance. Meyer v. Mfg. Co'., 67 Mo. App. 393; Conroy v. Iron Works, 62 Mo. 39; Burkhead v. Horse and Mule Co., 221 Mo. 700; Harris v. Railroad, .146 Mo. App. 550. (2) Although the pick was a simple tool yet a review of the cases in Missouri with reference to the pick and maul and claw bar, all simple tools, when being used in and about railroads and tracks, will show that whenever negligence was conceded, admitted or proven, plaintiff has always recovered, when free of contributory negligence. Franklin v. Katy, 97 Mo. App. 473; Browning v. Rock Island, 118 Mo. App. 449; Deckard v. Wabash, 111 Mo. App. 117; Robins v. Mining Co., 105 Mo. App. 78; Blankenship v. Class Co., 154 Mo. App.. 483; Johnson v. Railroad, 96 Mo. 340; Prash v. Railroad, 151 Mo. App. 410; Harris v. Railroad, 146 Mo. App. 524. In the case at bar appellant Lowe was using the pick in the only customary and practical way that such work as he was doing could be done, and hence the method is not his choosing, but is the method of the master prescribed by him and which the servant had to obey.

      W. F. Evans and Mann, Johnson & Todd for respondent.
    (1) The court’s action in sustaining the motion for new trial was proper, because the court ought to have given defendant’s demurrer offered at the conclusion of plaintiff’s case and renewed at the conclusion of all the evidence. Mathis v. Stock Yards Co., 185 Mo. 434; Blundel v. Mfg. Co., 189 Mo. 552; Meyers v. Class Co., 129 Mo. App. '556; Christy v. Railroad, 131 Mo. App. 266; Post v. Railroad, 121 Mo. App. 562; Saversnick v. Schwarzchild & Sulzberger Co., 141 Mo. App. 509; Anderson v. Bos Co., 103 Mo. App. 382. The servant when he enters the employment of his master assumes not only the risks incident to his employment but all dangers which are apparent and obvious as result thereof. The master is no insurer against all accidents that may overtake or befall the servant in his employ. Nugent v. Milling Co., 131 Mo. 245; Mathis v. Stock Yards Co., 185 Mo. 445. (2) The rule is that where a master has promised to repair and has not done so, the servant can recover for an injury caused thereby only when he relied upon the promise, and if he did rely upon the promise only if he was injured within a reasonable time after the promise was made. Stalzer v. Dold Pkg. Co., 84 Mo. App. 576; LiaBatt on Master and Servant, p. 1204, sec. 425, sub-div. “B,” citing Steel Co. v. Mann, 40 L. R. A. 781, and Railroad v. Duffield, 47 Am. St. 310. And see also: Andrecisk v. Tube Co., 4 L. R. A. (N. S.) 918; Holloran v. Iron & Foundry Co., 133 Mo. 479'; Meyers v. Glass Co., 129 Mo. App. 562.
   WALKER, J.

The plaintiff brought this action in the circuit court of Stone county to recover damages for personal injuries alleged to have been received by him while employed as a section hand on defendant’s line of railway. Upon a trial there was a verdict for plaintiff in the sum of $1000, and a motion for a new trial was sustained, from which order plaintiff appealed to the Springfield Court of Appeals, where the action of the trial court was affirmed. From this judgment Nikon, J., dissented, and on the ground of a conflict with our decisions the case was transferred to this court.

Plaintiff when injured was employed in taking old ties from under defendant’s track. In so doing it was necessary to remove the spikes which fastened the ties to the rails, jack np the rails and imbed the point of a pick with which he was working in the tie and pnll it from nnder the rails. In attempting to do this, after one or two nnsnccessfnl efforts, he imbedded the pick in a tie and attempted to pull it out, when the pick suddenly came out of the tie and plaintiff in falling backward received the injuries of which he now complains. The negligence of defendant in failing to have the pick sharpened is relied upon to authorize a recovery, it being contended that if the pick had been properly sharpened it would not have slipped out of the wood and plaintiff would not have fallen.

The evidence shows that at the time of the injury the pick had been in use about two months and had not been sharpened for a week and a half before the injury and was very dull; that it was hard to get a dull pick to stick in the ties; that the boss had promised to have the pick sharpened the morning before the injury, but had not done so. Plaintiff states that he worked practically all the time with a dull pick, as it would grow dull two or three days after sharpening; several times before this the pick had slipped out of the wood but he had not fallen on account thereof; this was the first time that he had fallen by reason of the pick slipping out of the tie. He thought nothing about the pick being dull the morning of the injury. Several witnesses testified that the picks were usually dull, but that the section hands did not quit working on that account.

Was the testimony sufficient to authorize the submission of the ease to the jury?

Generally a master is required to use ordinary care in furnishing a servant with safe tools and appliances and in keeping them in a safe condition to perform the labor required; and a servant is required to use ordinary care for Ms own. safety. ■What constitutes ordinary care in any case depends upon the nature and character of the tools or appliances and the dangers to he encountered in their use. Upon the servant uniformly rests the burden of proving negligence on the part of the master, and a case is not usually made out which will sustain an action for damages by showing the condition of the tool or the appliance and the resultant injury; such a state of facts must be submitted to the jury as will show that at the time of the injury an ordinarily prudent man occupying the position of the master would have apprehended that the tools or appliances used by his servant would by reason of their condition probably result in injury.

There is no testimony in this case tending to show a duty resting upon the defendant to keep plaintiff’s pick, sharpened in order to prevent the latter being hurt by using it as he was at the time of the injury. It is true a conclusion is found in the testimony of some of the witnesses to the effect that a sharp pick would be a little safer than a dull one. This testimony has little probative force, because, while a sharp pick may be a little safer than a dull one, it does not follow that a dull one is not reasonably safe. The simplicity of such a tool as a pick is such that, dull or sharp, it would not under ordinary circumstances arouse- an apprehension of danger from its use. It is not unreasonable to assume that the plaintiff knew all about it, and from his own testimony the conclusion is authorized that he knew it was likely to. slip out of the tie at any time, yet he did not apprehend any danger of being injured in the event tMs occurred. In fact he says, “I never gave it any thought that morning. I never thought about getting hurt.” The pick had sliped out of the ties before and he had not been hurt,' so that the thought of injury at that time naturally did not enter his mind. If it did not occur to him that ho was liable to be injured, defendant should not he held to have anticipated injury in the event of the pick slipping. There is absent from this ease any evidence of a latent defect or a case in which the master had a superior knowledge of the condition of the tool furnished: it is simply a plain case of a man working with an ordinary tool, possessed of all the knowledge that can he acquired in relation to its safety and as a consequence apprehending no danger at the time. These facts constitute a cogent reason why the defendant should not he held responsible for not having apprehended danger and providing against it. The testimony shows that the pick had slipped out several times before and that plaintiff had not fallen. This fact coincides with the common knowledge of everyone that a pick slipping out as this one did is not likely to cause the one using it to fall, and therefore such a result was not to be anticipated by any reasonably prudent man. Consequently there is no basis for a charge of negligence oh the part of the defendant in not sharpening the pick. In the absence of a reason to apprehend danger of injury to plaintiff by his use of the pick while dull, there arose no duty on the part of the defendant to keep it sharp for the plaintiff’s protection. .Under no view of the facts is the conclusion authorized that the sharpening of the picks was for the purpose of protecting the men using them from injury, but to facilitate the work in which they were engaged.

Nor is plaintiff’s case aided appreciably in assuming that defendant should have apprehended the danger of plaintiff’s falling in the event the pick should slip, for under this assumption plaintiff is chargeable with the same apprehension, and as a consequence it would have been his duty to use ordinary care to have prevented the fall. This could easily have been done by assuming such a position in striking the blow that he would not have fallen backwards upon the pick failing to stick in the tie when he attempted to draw it from under the rail. The use of ordinary care to prevent injury is an ever present obligation. If, therefore, plaintiff had any reason to apprehend that he would fall, this apprehension should have moved him to guard against it. In failing to take what in this case was a simple precaution, viz., one of attitude in attempting to draw out thé tie, he was guilty of contributory negligence.

We fail to find any conflict between the majority opinion of the Springfield Court of Appeals in this case and that of this court in Dakan v. Chase & Son Merc. Co., 197 Mo. 238, and in Bowen v. Railroad, 95 Mo. 268, under which claim the case was certified to this court.

It, therefore, follows that the judgment of the Springfield Court of Appeals sustaining the action ©f the court below in granting a new trial should be affirmed, and it is so ordered.

Paris, P. J., concurs; Brown, J., not sitting.