author: FARIS, P. J.

text:
    CITY OF MACON, Appellant, v. JOHN M. ATKINSON et al., Constituting PUBLIC SERVICE COMMISSION, and CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY.
    Division Two,
    January 4, 1916.
    1. PUBLIC SERVICE COMMISSION. The Public Service Commission is not a court.
    2. -: Appeal. On appeal from the rulings of the circuit court, requiring the Public Service Commission to receive evidence which it had refused to receive, it is the rulings or errors of the court that are for review, and not those of the commission.
    3. -: -: No Evidence. In the absence from the record of the evidence adduced before the circuit court there can, on appeal, be no review of its rulings: (a) where the circuit court, upon certiorari, had affirmed the action of the Public Service Commission and approved its admission of evidence; or (b) where the circuit court had reversed and remanded the case to the commission for errors in refusing to admit relevant and competent evidence; or (c) where, upon the facts adduced in evidence, the finding of the commission was erroneous as a matter of right and equity and good conscience:
    4.--:--: -: No Motion for New Trial: No Bill of Exceptions. The statute makes the appellate procedure pertaining to appeals in civil cases applicable to appeals from the rulings of the circuit court affirming, upon certiorari, the action of the Public Service Commission; and unless the evidence before the circuit court is preserved in a bill of exceptions, and kept alive by a motion for a new trial, there is nothing for review on appeal to the Supreme Court except the bare record of the proceedings in the circuit court. Even though the case be denominated one in equity, there can be no review of the evidence, unless there is both a motion for a new trial and a bill of exceptions.
    Appeal from Cole Circuit Court.- — Hon. J. G. Slate, Judge.
    Affirmed.

      W. G. Busby, O. M. Spencer and M. G. Roberts for respondents.
    The Public Service Commission Act provides that causes of action taken by writ of certiorari to the circuit court from the Pubh a Service Commission shall be tried as suits in equity. It is further provided that such causes shall be appealed as in other cases. There is nothing for this court to review in this case, as the appellant did not file a motion for a new trial or a motion in arrest of judgment. The Public Service Commission Act does not dispense -with the necessity of such motions required in all other civil cases.

      George N. Davis, D. L. Dempsey and Andrew-Field for appellant.
    There was no provision nor place in appeals from the Public Service Commission for motion for new trial in the circuit court.- The motion for rehearing before the commission takes the place of the motion for new trial. Section 110 of the Commission Act provides: “After an order or decision has been made by the commission any corporation or person or public utility interested therein shall have the right to apply for a rehearing in respect to any matter determined therein, and the commission -shall grant and hold such rehearing, if in its judgment sufficient reason therefor be made to appear; if a rehearing shall be granted the same -shall be determined by the commission' within thirty days after the same shall be finally submitted. No cause or action arising out of any order or decision of the commission shall accrue in any court to any corporation or person or public utility unless such corporation or person or public utility shall have made, before the effective date of such order or decision, application to the commission for a rehearing. Such application shall set forth specifically the ground or grounds on which the applicant considers said order or decision to be unlawful, unjust or unreasonable. No corporation or person or public utility shall in any court urge or rely on any ground not so set forth in said application.” Section 111 provides for writ of certiorari or review for the purpose of having the reasonableness or lawfulness of the original order or decision or the order or decision on rehearing inquired into or determined, and further provides “No new or additional evidence may be introduced upon the hearing in the circuit court but the cause shall be heard by the court without the intervention of a jury on the evidence and exhibits introduced before the commission and certified to by it. The commission and each party to the action or proceedings before the commission shall have the right to appear in the review proceedings. Upon such hearing the circuit court shall enter judgment either affirming or setting aside the order of the commission under review. Section 114 provides for appeal to the Supreme Court. ‘ ‘ Such appeal shall be prosecuted as appeals from judgment of the circuit court in civil cases except as otherwise provided in this act. The original transcript of the record and testimony and exhibits, certified to by the commission and filed in the circuit court in any action to review an order or decision of the commission, together with a transcript of the proceedings in the circuit court, shall constitute the record on appeal to the Supreme Court.. . . . No appeal shall be effective when taken by a corporation, person or public utility unless a cost bond of appeal in the sum of five hundred dollars shall be filed within ten days after the entry of judgment in the circuit court appealed from.” Accordingly under the statute, this whole record is here for review by this court. And no point is made upon any' action other than as it appears in this record.
   FARIS, P. J.

Appeal from the judgment of the circuit court of Cole county affirming the action of the Public Service Commission of the State of Missouri in a proceeding by appellant to compel defendant railroad company to repair certain overhead crossings of the streets of plaintiff city over the railroad track of defendant railroad.

Since, in the view we are compelled to take of the case, it does not turn here upon the facts, a brief statement of such facts will suffice. Concisely they run thus: At a former time, to-wit, in the year 1901, defendant railroad company was desirous of lowering the grade of its track where the samé ran through plaintiff city and where it crossed, over Wentz street and Ruby street therein. In order to lower this grade defendant railroad (hereinafter for brevity referred to simply as the railroad) made a contract with the city of Macon (hereinafter designated for brevity as the city), whereby it was agreed that the railroad should construct and keep in repair, bridges over its said tracks where the same crossed said above-named streets. This contract further provided that the railroad should pay to the city as part consideration, at least, for the right of lowering such tracks and the grade through said city the sum of $8,500. It was further agreed that the city should assume the burden of keeping in repair the approaches to and the • floors on said bridges, which approaches and floors constituted the streets, or passagways on Wentz and Ruby streets where the latter crossed the railroad tracks. This contract took the form of an ordinance, which ordinance was duly accepted by the railroad and tho said sum of $8,500 paid to and accepted by the city.

In the course of time the flooring over the two bridges in question became rotten and out of repair, which necessitated the reflooring of same and the construction of new approaches on said streets to these two bridges. Thereupon the city took the position that it was not its duty to maintain and repair these floors and approaches, but that it was the duty of the railroad so to do, its legislative contract with the railroad notwithstanding. It thereupon proceeded to repudiate this contract on the theory that the same is ultra vires, and that it was and is the duty of the railroad under section 3049, Revised Statutes 1909, to repair and maintain both the approaches to these bridges and the floors thereon.

Upon a hearing before the Public Service Commission the complaint of the city was dismissed for the reason, among others, that the evidence in the case did not warrant the granting of the relief prayed for. From this order and ruling of the Public Service Commission appellant herein brought certiorari, or a writ of review, in the circuit court of Cole county to bring up the record of the case from the Public Service Commission. Upon a hearing in said circuit court the ruling of the Public Service Commission was in all things affirmed. Prom this judgment of the circuit court the city, which is appellant here, took an appeal to this court. In taking this appeal no motion for a new trial, or motion in arrest, or any other motion was filed, nor was any bill of exceptions filed in the case; nor was any time taken in the court nisi within which to file such bill of exceptions. A plain, bare appeal from the circuit court was taken merely by making the statutory affidavit and giving’ a supersedeas bond as in ordinary appeals in civil cases.

Such further facts as shall become necessary to make the points clear will be set forth in the subjoined discussion.

OPINION.

Many contentions are urged by the appellant, but we are met upon -the threshold with respondent’s insistence that there is nothing before us but the bare record of the proceedings in the circuit court. This contention is bottomed upon the admitted failure of the appellant to file in the circuit court any motion for a new trial. Appellant took a bare appeal from the decision below, which was adverse to it. We need not cite authorities to prove that such a failure would have the effect in any ordinary civil case to preclude any review here in any wise based upon the evidence. Unless then there be some valid statute which prescribes, or permits a special and different procedure in a case coming up to us on appeal from a circuit court from a ruling’ made by the Public Service Commission, we must affirm this case out of hand, absent error in the record proper.

Turning to the statutory provisions which govern cases coming up from the Public Service Commission, we find it recited that in all cases of appeals to this court “such appeal shall he prosecuted as appeals from judgment of the circuit court in civil cases, except as otherwise provided in this act. The original transcript of the record and testimony and exhibits certified to by the commission and filed in the circuit court in any action to review an order or decision of the commission, together with a transcript of the proceedings in the circuit court, shall constitute the record on appeal to the Supreme Court.” [Sec. 114, Laws 1913, p. 644.] Elsewhere it is provided in this act that matters shall be brought up to the circuit courts by writs of certiorari, or writs of review, and that upon reaching the circuit courts the cases so brought up “shall be tried and determined as suits in equity.” [Sec. 111 p. 641, Laws 1913.] If upon the hearing in the circuit court such court shall find that the commission failed “to receive testimony properly proffered, the court shall remand the cause to the commission, with instructions to receive the testimony so proffered and rejected, and enter a new order based upon the evidence theretofore taken and such as it is directed to receive.” [Ibid] From such action of the circuit court an appeal lies to this court — at least it is so nominated in the act — on behalf of whomsoever, being a party to the case, may be injured by the ruling of the circuit court. On such appeal, whether the error urged upon us be that of a wrong interpretation of the evidence, or a wrong finding upon the weight thereof, or an erroneous ruling upon the reception of evidence offered, it is plain we can look only to the error of the circuit court. We can not in a strictly legal sense weigh the alleged judicial errors of a non-judicial and merely administrative body. We can only so weigh the acts of courts. The Public Service Commission is not a court. If it were a court then its organization as such would be in the very teeth of the Constitution. [Sec. 1, art. 6, Constitution of Missouri; Constitution of Missouri, secs. 2 and 3, Amendment 1884.] If then the circuit court shall require the commission to receive evidence which such commission theretofore refused to receive, and if from the action of the circuit court an appeal be brought here (as may be done) on the theory that the commission was right and the circuit court was wrong, the inquiry is pertinent as to whose- error is being reviewed here. Clearly, if error be present, it is strictly speaking the error of the circuit court. Such is the fundamental and underlying principle of appellate procedure. [Hall v. Harris, 145 Mo. 614.]

These conditions are presented then: (a) There may be an appeal in a case affirmed, where there would of necessity be no errors of the circuit court in ordering the admission of evidence; (b) there may be an appeal in a case wherein the circuit court for errors in refusing to admit relevant and competent evidence, reversed and remanded the case to the commission, and where the sole error committed would be that committed by the circuit court; and (c) we suggest arguendo, an appeal in a case wherein upon the facts adduced in evidence, the finding of the commission was erroneous as a matter of right and equity and good conscience.

In each of these three classes we would be unable to. review the action of the trial court absent the evidence in the case. Under the rule in the appeal of civil cases, to which the plain letter of this statute relegates us for the appellate procedure which is to govern us, the evidence is not preserved for review unless through a bill of exceptions, kept alive by a motion for a new trial. [Thompson v. Child, 6 Mo. 162; St. Louis v. Lawton, 189 Mo. 474; Watson v. Pierce, 11 Mo. 358; Woodson v. McClelland, 4 Mo. 495; Keaton v. Keaton, 74 Mo. App. 174; Berry v. Bood, 209 Mo. 662; 29 Cyc. 739, 740.] And such motion is just as much a requisite to an appellate review of the evidence in an equity case as it is in one at law. [Berry v. Rood, supra; Keaton v. Keaton, supra; Woodson v. McClelland, supra.] Absent a motion for a new trial, absent the bill of exceptions, and absent a bill of exceptions, no appellate review here can be had, which is based upon the evidence in die case, or upon errors in admitting or in refusing to admit evidence. However, in the instant case there is neither a motion for a new trial nor a bill of exceptions.

It is perhaps regrettable (if the desirability of uniformity referred to infra does not outweigh the regret), that an attempted simplification of the appellate procedure should thus come to naught. The trouble lies in the plain letter of the statute, which recognizing that appeals and appellate procedure “live and move and have their being’ ’ solely by virtue of statutes and not otherwise, yet plainly ordains that appeals in cases from the Public Service Commission “shall he prosecuted as appeals from judgment of the circuit court in civil cases except as otherwise provided in this act,” and then signally fails to provide any modification of the procedure, even by. fair implication.

Pxetermitting the question whether it is wise to have one sort of appellate practice in one kind of civil cases and another sort in all other kinds of civil cases, as likewise the question whether such a special practice would or would not contravene the provisions of section 53 of article 4 of the Constitution, we are yet compelled to say that absent a motion for a new trial, as in the instant case, we can review nothing but the record proper. Finding no error therein, we affirm the .case.

Walker, J., concurs; Revelle, J., not sitting.


source: Caselaw Access Project

author: REVELLE, J.

license: Public Domain

text:
    THE STATE v. ALBERT KATZ, Appellant.
    Division Two,
    January 4, 1916.
    1. CRIME AGAINST NATURE: Embraced by Statute. The statute (Laws 1911, p. 198) declaring that “every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished,” etc., makes criminal the act of a man in wickedly and feloniously inserting his sexual organ into the mouth of a woman. Whether or not such act was at common law included in the general terms “crime against nature” is beside the question in view of the words “with the sexual organs or with the mouth” added to the statute in 1911, which were intended to include. certain acts » which the general common-law terms did not embrace, among others the said act.
    2. EVIDENCE: Of Collateral Crime. Evidence of a collateral crime which has a logical connection with the crime directly involved and is so linked with it as to constitute it a part of the continuous accomplishment of a fixed and common design, is admissible. So that where defendant is charged with the abominable crime against nature and the evidence shows that, while prosecutrix and a man were seated in a park near midnight they were accosted by defendant and two accomplices, who falsely represented themselves as private detectives, and while the accomplices, under the guise of an arrest, took the man to one end of the park, the defendant forcibly took her to. another part and there ravished her and after forcibly detaining her for sometime inserted his sexual organ in her mouth, evidence that, after the accomplices had returned and they had outraged her in the same way, the three took her to the rear of an abandoned saloon, an hour and a half or two hours after they had first accosted her in the park, and there again assaulted her in the same way, was admissible, to establish a conspiracy and to prove that all that was done was but a part of a fixed, single and common design.
    3. -: -: Motion to Elect. Nor was it error on the part of the trial court to refuse to compel the State, after the evidence of the second assault was in, to elect upon which assault it would go to the jury.
    4. C'RIME AGAINST NATURE: Consent as Defense: Instruction. Consent on the part of the woman to the insertion by defendant of his sexual organ in her month is no defense to a charge of the detestable and abominable crime against nature; nor can an instruction which tells the jury that it was immaterial whether the person so used or abused consented thereto or not, be condemned as unnecessary, or as erroneous, on the ground that, if prosecutrix consented, she was an accomplice, in which event corroboration of her testimony was necessary, in a case in which there is no evidence tending to show consent, and corroboration therefore was unnecessary, and the motion for a new trial contains no specific assignment on the subject.
    5. -; Incredible Evidence. Although' the facts of a case reveal such a state of degradation and indecency as to challenge credulity, they will not be held to be incredible and opposed to human experience, if prosecutrix’s testimony is corroborated and the punishment imposed by the verdict is so moderate as to relieve the jury of every imputation of passion and prejudice; for legislative enactments against crimes against nature and the transcripts of courts attest the fact that such crimes are within human experience.
    Appeal from St. Louis City Circuit Court. — Hon. Kent K. Koerner, Judge.
    Affirmed.

      John A. Gernes for appellant.
    (1) Sec. 4726, R. S. 1909, as repealed and reenacted, Laws 1911, p. 198, does not make the acts alleged in the information or testified to in the evidence a criminal offense. It was not an offense at common, law, nor under this- statute, nor is there any other statute applicable, (a) In determining the meaning of the words “the abominable, and detestable crime against nature,” we must have recourse to the common law. In interpreting the criminal statutes, which fail to define the denounced offense, common law definitions of crimes must guide us. State v. Rader, 262 Mo. 129; Potter’s Dwarris on Statutes, p. 186; 8 Am. & Eing. Ency. Law, 276; Brandon v. Carter, 119 Mo. 572; United States v. Miss. Freight Assn., 58 Fed. 58; Ex parte Vincent, 26 Ala. 145; Comm. v. Chapman, 13 Mete. (Mass.) -68; State v. Hartley, 185 Mo. 669; State v. Cowley, 67 Vt. 322; Sec. 8047, R. S. 1909. (b) At common law “the detestable and abominable crime against nature” was clearly and distinctly defined. It was either sodomy or buggery. The act complained of in the information or proved by the testimony is not included in the term “the detestable and abominable crime against nature.” It is neither of these offenses. 1 East’s P. C. c. 14, sec. 1; 1 Russell on Crimes, 976-978 ; 1 Wharton, Cr. Law, sec. 575; 2 Bishop, Cr. Law, 1194; Rex v. Jacobson, Russ, and Ry. 133; People v. Boyle, 116 Cal. 658; State v. Prindle, 31 Tex. Cr. 551; State v. Harvey, 55 Tex. Cr. 199; State v. Tondexter, 133 Ky. 720; State v. Kennan, 86 Neb. 234; Terr. v. Weaves, 127 Pac. 724; State v. Mitchell, 49 Tex. Cr. 535; McClain, Crim. Law, sec. 1153. (2) Each act of so-called sodomy, testified to by the prosecutrix, constituted a separate, distinct and substantive offense. State v. Palmberg, 199 Mo. 240; State v. Schenk, 238 Mo. 457; State v. Prewitt, 202 Mo. 51; State v. Wilkins, 221 Mo. 444. (a) If the defendant was being tried for the first affair at Benton Park, then all evidence of the second affair at the Cherokee Brewery was inadmissible. State v. Palmberg, 199 Mo. 240; People v. Molineux, 62 L. R. A. 332; People v. Clark, 33 Mich. 112. (b) If the defendant was being tried for the second alleged affair, then probably evidence of the first offense was admissible but it was the duty of the court to properly instruct the jury as to the admissibility and purpose of such testimony. Instruction 7 did not accomplish this and on defendant’s special exception to this instruction, a proper one should have been given, (c) Motion of the defendant for an election upon the part of the State was timely and would have remedied many of the errors complained of. Indeed a motion to elect was unnecessary. The State was presumed to proceed on the first case. State v. Prewitt, 202 Mo. 51; State v. Palmberg, 199 Mo. 248; State v. Castro, 113 Cal. 11; People, v. Baker, 105 111. 452; People v. Jcnness, 5 Mich. 457; State v. Acheson, 91 Me. 240; State v. Richardson, 63 Ind. 192; State v. Schenk, 238 Mo. 457; People v. Williams, 133 Cal. 168; People v. Clark, 133 Mich. 112; People v. Mitchell, 24' Colo. 532. (d) It was error for the court, even if no motion for an election had been made, to submit to the jury two separate and distinct offenses. We cannot tell from the verdict of which of these offenses he was convicted. Cases just above cited and also State v. Washington, 242 Mo. 409. (3) The verdict was not sup p or ted by the evidence. “And in proportion as the crime is most detestable, so ought • the proof of guilt to be clearest and most undoubted.” 1 East’s Pleas, chap. 141, sec. 1; 4 Black. Comm., 215; Honselman v. People, 168 111. 172. (4) Instruction number 1 is erroneous in the use of the language, “It is not material whether the person so used or abused consented or not.” It was unnecessary, to give this instruction but as given it is erroneous for it is most important if the victim is a consenting party. If she consented, then she became an accomplice, whose testimony must be corroborated. State v. Wilkins, 221 Mo. 444; Madis v. State, 27 Tes. App. 1.94; Regina v. Jelly-man, 8 C. and P. 604; People v. Miller, 66 Cal. 468; Comm. v. Snow, 111 Mass. 411; People v. Dechessiere, 69 N. Y. App. Div. 217.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for the State.
    (1) The information charges a felony under the statute, Laws 1911, p. 198, and is sufficient. State v. Wellman, 253 Mo. 311; State v. Kelly, 192 111. 119; State v. Honselman, 168 111. 172; State v.- Means, 125 Wis. 650. (2) The court did not err in refusing to compel the State to elect, nor in its instructions numbered 3,4,5 and 6. State v. McDonald, 67 Mo. 13; State v. Balch, 136 Mo. 109; State v. Sykes, 191 Mo. 62; State . v. Mathews, 98 Mo. 127; State v. Schnettler, 181 Mo. 189; State v. Greenwade, 72 Mo. 299. (3) The evidence was ample to sustain the verdict. State v. Sechrist, 226 Mo. 574; State v. McKinney, 254 Mo. 697. (4) There was no error in the failure of the court to require the State to elect as’ to the particular offense. There was but one effense. The whole was one transaction. It is clear that appellant and his companions, Gausman and Long, entered into a conspiracy to represent to the prosecutrix and Schonberg that they were detectives, and go through the form of arresting the girl and her companion, and thereby separate them, and then assault the prosecutrix. The conduct of appellant and his companions will admit of no other explanation. In pursuance of this conspiracy, they did pretend to arrest prosecutrix and Schonberg and the latter was taken away by Long and Gausman while Katz assaulted the girl. Then the trio succeeded in getting rid of Schonberg entirely and Long and Gausman each then attacked the girl. Clearly these transactions constituted but one offense. True, each of the men might have been informed against separately and separately tried; but all might also have been convicted for the act of any one of them. State v. Sykes, 191 Mo. 62; State v. Greenwade, 72 Mo. 299. Within a few minutes of the close of the transaction in the park, prosecutrix was then taken by the three men to the saloon at Cherokee and Jefferson streets, two blocks away, and from there to the old Cherokee brewery, at Cherokee and Iowa streets, three blocks further on. During all that time prosecutrix was in the power of appellant and his companions. They either had hold of her, or she was surrounded by them and under their will and control. If appellant and his companion had remained with prosecutrix in the park, and again committed the acts testified to by her in 20 to 30 minutes after the first assaults, clearly it would have been but one continuing offense, notwithstanding there were many criminal bestial acts. Does it in anywise alter the case, that instead of again committing the acts near the lake in the park, they took the girl five blocks away to another place before committing them? It was all done in pursuance of a formed purpose. The parties were never separated. The interval was but a few minutes. The whole was but one continuing transaction. The facts are so related as to constitute but one offense. To hold otherwise would be to apply the linear three-foot rule as the standard by which to determine the propriety of a motion to elect or to distinguish between different offenses. The question then becomes, How many yards apart were the different transactions? It is no longer a question of whether or not the accused has been informed of the charge against him. State v. Matthews, 98 Mo. 127; State v. McDonald, 67 Mo. 13; State v. Sykes, 191 Mo. 62; State V.' Balcli, 136 Mo. 109; State v. Schnettler, 181 Mo 189; State v. Greenwade, 72 Mo. 299.
   REVELLE, J.

By information filed in the circuit court of the city of St. Louis it is charged that the defendant “did wickedly, feloniously, and against the order of nature, commit the detestable and abominable crime against nature with one Mary Emmenger, a female person, by then and there wickedly and feloniously insei'ting and thrusting the sexual organ of him, the said Albert Katz, into the mouth of her, the said Mary Emnienger; the said Albert Katz being then and there a male'person.”

Defendant was tried and convicted and his punishment assessed at imprisonment in the penitentiary for a term of two and one-half years.

The State’s evidence, in substance, is that about 11 or 11:30 .on the night of August 5, 1913, the prosecutrix and one Harry Schonberg, who had been acquaintances for years, were seated in Benton Park, where they were accosted by defendant and two companions, Harry Long and Richard Gausman, who falsely represented themselves to be private detectives. Long and Gausman seized Schonberg, and, under the' guise of arrest, took him to one end of the park, while defendant forcibly and against her resistance took prosecutrix to the other side of the park, near a lake, and there ravished her. After the act of sexual intercourse was completed he forcibly detained her for sometime and then committed the unnatural crime alleged in the information. He then turned her over and inserted his private parts in her rectum. These transactions consumed about forty-five minutes, and just about the time they were finished Long and Gausman appeared and, in turn, and with the assistance of defendant, assaulted and mistreated the girl in the same manner as had the defendant. Their acts occupied about thirty or forty minutes. After this they took the girl to. a saloon about two blocks from the scene of the first assault and there purchased for her a glass of soda. It was then about one o’clock, and from this saloon they proceeded to the rear of an abandoned brewery, about three blocks distant, and there again assaulted her as they had in the park. The evidence • discloses that but a very short time elapsed between the occurrences in the park and those at the brewery, in fact Only the time required to travel from point to point and stop at the saloon to purchase the soda. After the last assault prosecutrix went to the corner of Cherokee and Jefferson streets and there met an offifeer to whom she made complaint concerning her mistreatment. While in his company she met another police officer who' took her to the police station, and from there to the city dispensary where a physical examination was made. . In the presence of the police captain, certain other officers, and the defendant himself, prosecutrix, immediately after arriving at the police station, recited her story, as heretofore detailed, which was then and there denied by defendant.

The evidence further discloses that when the prosecutrix met the police officers her clothing was soiled and torn. The physician who made the examination testified that “the vagina was excorciated or reddened and irritated inside and around the edges and greatly relaxed; that her rectum was similarly affected, and that her clothing was soiled from vaginal discharge. ’ ’

On the part of defendant the testimony tends to prove thait the defendant was not with the prosecutrix on the occasion testified to, nor was he with her at all in the park or at the brewery. He denied all the statements of the prosecutrix, and offered evidence tending to establish that he was engaged in the performance of his regular duties as a bartender until 12:45 that night. He admitted that immediately after quitting work he saw the prosecutrix and walked with her to a saloon and there got a glass of soda, but denied entirely that he had committed any assault, or that any had been committed upon prosecutrix in his presence.

The judgment should be reversed, so asserts -defendant, because (1) the information charges no offense; the court (2) admitted improper evidence, (3) erred in its instructions to -the jury, (4) should have required the State to elect upon which charge of alleged assault it would stand; and (5) that the evidence is wholly insufficient to sustain the verdict.

It is strongly urged and adroitly argued that the-laws of this State- do not make criminal the acts charged in the information, but we think otherwise and have heretofore so held. [State v. Wellman, 253 Mo. 302.] It would serve no useful purpose to go into the conflicting holdings of other jurisdictions as to whether the act here-charged was at common law included in the general terms ‘ ‘ crime against nature; ’ ’ because, even were the negative of this proposition conceded, it would avail defendant nothing in view of our amended statute. In the statutes of this State it is written:. “Every person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organ or with the mouth, shall be punished,” etc.; the words in italics having been added by amendment in 1911. [Laws 1911, p. 198.] The Legislature surely meant something by this amendment, and, if so, it evidently was to include certain acts against nature which the general common law terms did not embrace, and the acts it had in mind, it designated. The method denounced by the amendment, and employed in this case, is as much against nature, in the sense of being unnatural and against the order of nature, as sodomy, buggery, or any other unnatural copulation. The original statute ¿ave no definition of the crime against nature, and it was unnecessary for the amendment, in order to embrace the act here charged, to more definitely define the act in contemplation than it did. As said in Honselman v. People, 168 Ill. l. c. 174, “The statute gives no definition of the crime, which the law, with due regard to the sentiments of decent humanity, has always treated as one not fit to be named,” and so with the amendment. Without lengthening the discussion of this loathsome subject, it is sufficient to say that the act here charged is within the statute, and that the information fully and sufficiently advised the defendant of the crime with which he was charged. [State v. Wellman, 253 Mo. 302; Means v. State, 125 Wis. 650; Honselman v. People, 168 Ill. 172; Kelly v. People, 192 Ill. 119.]

/TL Defendant complains that, after the State had offered its evidence relative to the assault which

took place in Benton Park, it was not proper -¿o prove the second assault committed at the brewery, and that, after the introduction of the evidence of both assaults, the State should have been required to elect as to the one upon which it would plant itself. The authorities all agree that, as a general rule, evidence of other crimes is inadmissible upon trial of the one charged, but to this there are exceptions, and among these is the one of a collateral crime which has a logical connection with the crime directly involved, or is so linked with it as to show that it is a part of the continuous accomplishment of a fixed and common design. In the cases of State v. Schnettler, 181 Mo. 173, and State v. Spray, 174 Mo. 569, the authorities upon this subject are ably and exhaustively reviewed, and from them it is readily deducible that where two or more offenses are connected under such circumstances as together constitute but a single and continuous accomplishment of a common design, evidence of all is admissible, notwithstanding that in each case the party could be separately indicted and convicted. In the case of State v. Mathews, 98 Mo. l. c. 128, the facts disclosed that after the perpetration of the homicide, and after-' the accused had left the scene some two hundred yards he shot at another person, and, in holding’ evidence of the second assault competent, the court said: • “The evidence was admissible. The defendant and his companions were going directly from the scene of the homicide, just perpetrated. Greene was going toward it. The defendant’s halting him was an'act, the character of which not only illustrated the character of the principal act in the tragedy, as part of a system of criminal acts, but so intimately connected with it, as to make it a part of that very transaction, and to identify the defendant as an actor therein.” To the same effect is State v. McDonald, 67 Mo. 13; State v. Balch, 136 Mo. l. c. 109; State v. Myers, 82 Mo. 558. This is in no degree in conflict with what is said in State v. Palmberg, 199 Mo. 233, and cases in line therewith. In those cases the proof of other and subsequent assaults was clearly inadmissible as having no logical connection with the crime under trial, 'and were not a part of a continuous and single accomplishment. The evidence in this case is sufficient to establish a conspiracy on the part of the defendant and his two companions (State v. Sykes, 191 Mo. 62), and clearly discloses that all that was done both at the park and the brewery was but parts of a fixed, single and common design. It was one continuous transaction, and from the moment that prosecutrix was seized by defendant and her companion taken away by his confederates the girl was within the power and control of defendant, and he was continuously using her in the accomplishment of a single design. These various acts were committed, one after the other, .in almost immediate succession, and, no doubt, in pursuance of a common scheme and understanding on the part of defendant and his accomplices. It is our opinion that they were so closely connected and committed under such circumstances as to make evidence of the whole transaction competent, and that it was not error on the part of the court to overrule defendant’s motion to require the State to elect. '•

What is said in the preceding paragraph disposes of defendant’s objections to certain instructions which were given on the theory that the different acts testified to constituted but one continuous transaction.

Instruction numbered 1 defined the crime with which defendant was charged, and, among other things, told the jury that “it- is immaterial whether the persons so used or abused consented thereto or not.” We do not understand counsel to contend that the consent of the person so used would constitute any defense, and, of course, it would not; but he insists that this portion of the instruction was unnecessary, and, as given, erroneous, because, if the other person consented, she was an accomplice, in which event corroboration of her testimony was necessary. This assignment is ruled adversely to defendant, because (first) there is not in all this record any evidence tending to establish that the prosecutrix consented thereto, and corroboration was, therefore, unnecessary, and an instruction requiring it would have been improper; and (second) the motion for a new trial contains no specific assignment on this subject. [State v. Conway, 241 Mo. 271; State v. Horton, 247 Mo. l. c. 663; State v. Wellman, 253 Mo. l. c. 316.] (Third) This instruction merely defined the offense for which defendant was on trial, and while perhaps it was unnecessary in this case to instruct the jury that consent was no defense, it cannot be said that the instruction was erroneous, or that it could have resulted in prejudice to the defendant.

It is finally insisted that the evidence upon which this conviction rests is “so incredible, improbable and contradictory, and so opposed to all human experience” that the verdict should not be permitted to stand. As said by this court in State v. Sechrist, 226 Mo. l. c. 582, “That the transcript presents a state of degradation that challenges credulity must be conceded, and yet our statutes on incest and rape attest that these crimes are within the experience of our courts and legislatures.” If the facts testified to by the prosecutrix are true, and in many respects she is corroborated by the testimony of disinterested persons, it cannot be said that the evidence is insufficient. The lawful triers of this issue have certified to us the truthfulness of her statements, and their verdict assessing punishment at only two and one-half years’ imprisonment, instead of showing passion and prejudice, evinces that mercy has tempered justice.

The judgment should he affirmed, and it is so ordered.

Paris, P. J., and Walker, J., concur.


text:
    KARL DEINER v. CHARLES O. SUTERMEISTER et al., Appellants.
    Division Two,
    July 17, 1915.

    1. PARTIES TO ACTION: Insanity After Suit Brought. Even though the gist of the action is damages for insanity super-induced hy negligent injuries, and the fact of insanity and the demand for damages therefor are brought into the ease hy an amended petition, plaintiff may maintain in his own name, without a guardian or next friend, a suit begun while he was sane.
    2. CONSTITUTIONALITY OF STATUTE: Not Timely Raised. The Supreme Court on appeal will not consider the constitutionality of a statute upon which plaintiff has bottomed his case, where defendant did not raise the question of its invalidity until he had lost his case and came to file his motion for a new trial. Ordinarily a constitutional question must be lodged in a case as soon as is procedurally possible after the statute, order, judgment or thing alleged to be unconstitutional appears in the case.
    3. STRUCTURE: As Used in Statute: Does Not Include Hoist. A hoist used in lifting stones to the top of a fire wall which is being, constructed, is not either a structure or a scaffold within the meaning of those words as used in the statute (See. 7843, R S. 1909) declaring that “all scaffolds or structures used in or for the erection, repairing or taking down of - any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon;” and a demurrer should be sustained to a civil action for damages bottomed upon a violation of said statute, brought by a workman, who, while riding on a hoist carrying a stone, was injured when it suddenly broke and fell to the ground.

      4. -: Ejusdem Generis As Scaffold, The “structure” used in said statute is ejusdem generis as “scaffold,” and both words are to be construed as meaning scaffolds, or contrivances and appliances of similar use and nature to scaffolds, such as platforms, staging, trestles of whatever kind, and ladders supporting planks.
    5. TESTIMONY: Expert: Insanity: Cause. Where the issue is whether plaintiff’s insanity was congenital or was caused by a fall of the stone-earrying hoist on which he was riding, it is error to permit a medical expert, who did not see the fall nor examine plaintiff for nearly a year afterwards, to testify that “a blow of that character could have caused insanity.” He cannot substitute his conclusions for the conclusions to be found by the jury. He cannot say that a conceded condition is the result of the proven injury, where the producing cause thereof is the whole issue.
    Appeal from Jackson Circuit Court. — Eon. Joseph A. Guthrie, Judge.-
    Reversed and remanded.

      Pierre R. Porter and Cyrus Crane for appellants. (1) The court erred in overruling defendants’ demurrer to the evidence and in refusing the request for a peremptory instruction at the close of all the evidence. The plaintiff failed to prove a violation of the statute, (a) A “hoist” is not a “scaffold or structure” within the contemplation of the statute, (h) The statute cannot he invoked against a master who did not construct or own or operate or control the hoist. Klebe v. Distillery, 207 Mo. 480. (c) A plaintiff who pleads specific negligence must prove it, and cannot rely on res ipsa loquitur. Cooper v. Realty Co., 224 Mo. 724; Gardener v. St. Ry. Co., 223 Mo. 419; Kirkpatrick v. Met. St. Ry. Co., 211 Mo. 85; Beave v. Transit Co., 212 Mo. 352; Feary v. Met. St. Ry. Co., 162 Mo. 96; Ely.v. Railroad, 77 Mo. 36. (d) Res ipsa loquitur will not lie where it is as probable that the accident was due to a cause for which the master was not liable as to a cause for which he was liable. Cothron v. Packing Co., 98 Mo. App. 343; McGrath v. Transit Co., 197 Mo. 104; State ex -rel. v. Shelton, 249 Mo. 697; Moriarty v. Co., 132 Mo. App. 653; Scott v. Nauss Co., 126 N. Y. Supp.-17. (d-l) The evidence failed to disclose whether the cause of the accident was due to negligent construction or operation, and for the latter Flanagan Brothers would be wholly responsible. (d-2) If the fall was due to negligent operation there would be no violation of the statute, (e) The section of the act under which this case was submitted to the jury is unconstitutional. Williams v. Railroad, 223 Mo. 666. (2) The court committed prejudicial error in permitting plaintiff’s physician, Dr. Murphy, to state a conclusion which invaded the province of the jury. Taylor v. Railroad, 185 Mo. 257; Roscoe v. Railroad, 202 Mo. 594. (3) There is a defect of parties plaintiff. The court should not have permitted plaintiff to maintain the suit in his own name after the discovery of his insanity. A guardian should have been appointed by the probate court. 22 Cyc. 1222.

      Ernest A. Seholer and Gage, Ladd S Small for respondent.
    (1) The statute is a general law, and it was not necessary to specially mention it in the petition. It is sufficient if the facts alleged in the petition bring it within the statute, and we submit that they do. Lore v. Am. Mfg. Co.; 160 Mo. 621; Strode v. Box Co., 250 Mo. 705; Lohmeyer v. Cordage Co., 214 Mo. 685. (2) This statute is highly remedial and is to he liberally construed. Koepp v. National Co., 151 Wis. 302; Kosidowsld v. Milwaukee, 152 Wis. 233; Bohnhoff v. Fisher, 210 N. Y. 172; Johnson v. Railroad, 196 U.'S. 17; Simpson v. Iron Works Co., 249 Mo. 376; Turner v. Land & Timber Co., 259 Mo. 15; Lore v. Am. Mfg. Co., 160 Mo. 608. (3) The rule of episdem generis does not apply, and the word “structure” must he construed as if it stood independently of the word “scaffold.” Caddy v-Interborough R. T. Co., 195 N. Y. 415, 30 L. R. A. (N. S.) 30; Kosidowski v. Milwaukee, 152 Wis. 223; Koepp v. National Co., 151 Wis. 302. (4) The framework which supported the hoist, and even the hoist itself, were a structure within the meaning of 'this remedial statute. The board which broke and let the hoist fall was the top board of this framework on which rested the headpiece which supported the pulley, through which the hoist was operated. It was the breaking and falling of this board (which was part of this structure) which caused the injury to the plaintiff, (a) “Any artificial creation is a structure.” Kosidowski v. Milwaukee, 152 Wis. 223. (b) “Any production or piece of work artificially put together in some definite manner is a structure. ’ ’ Fuvro v. State, 46 S. W. Téx. 932. (5) The duty of the master, created by the statute, is absolute and he is required to insure the safety of the structure used in the erection of a building -against falling’. The fact that the timber broke and fell shows that the structure was unsafe and insecure and the statute was violated. Stewart v. Ferguson, 164 N. Y. 553; Caddy v. Inter-borough R. T. Co., 195 N. Y. 415; G-ombert v. McKay, 201 N. Y. 27; Smith v. Iron & Steel Co., 130 N. Y. Supp. 277; Bohnhoff v. Fisher, 210 N. Y. 172; Koepp v. National Co., 151 Wis. 302; Kosidowski v. Milwaukee, 152 Wis. 223; Railroad v. Enderle, 170 S. W. Tex. 276; Railway v. Kurtz, 147 S. W. .658; Delk v. Railroad, 220 U. S. 580; Railroad v. United States, 220 U. S. 559; Railroad v. Taylor, 210 U. S. 281. The duties of master are absolute and violation of this statute constitutes negligence per se. Simpson v. Iron Works, 249 Mo. 376. (6) The many authorities cited by the appellant, to the effect that the doctrine of res ipsa loquitur does not apply in this case, are not in point. (7) Our statute prohibits the use of any such unsafe or insecure structure, whether it was constructed or owned by the defendants, or hired, or borrowed, or procured by them in any other manner from others. Having hired the hoist from Flanagan Bros, and having hired Flanagan Bros.’ engineer to operate it, they were, in all respects, as fully responsible as if they had constructed, owned and operated it themselves. This has been expressly decided. Bohnhoff v. Fisher, 210 N. Y. 172; Campbell v. McNulty, 148 N. Y. Supp. 73. (8) There was no error in admitting medical testimony for the plaintiff. The testimony objected to was at most but cumulative. Taylor v. Met. St. Ry. Co., 256 Mo. 210; Bragg v. Met. St. Ry. Co., 192 Mo. 334. (9) There is no defect of parties plaintiff. The plaintiff had a right to continue the suit in his own name, although he was insane. The suit was started while the plaintiff was sane, and he had never been adjudged insane. Allen v. Ranson, 44 Mo. 263;. Koenig v. Depot Co., 194 Mo. 571.

      Note. — Opinion filed July 6, 1915. Motion for rehearing overruled July 17, 1915. Certified to Reporter March 11, 1916.

   FARIS, P. J.

Plaintiff sued defendants in the Jackson Circuit Court for personal injuries alleged to have been sustained by him while in defendants’ employment and recovered judgment for $10,000. Defendants, after the usual motions, have appealed.

Defendants are partners engaged in business under the firm name of A. Sutermeister Stone Company, and were engaged at the time of the happening of the casualty on which this action is bottomed, in furnishing and putting in place the cut stone on a building in Kansas City, which was being constructed by Flanagan Brothers. Plaintiff, a young man about twenty-four years old, was in the employ of defendants as a common laborer, and at the immediate moment of the casualty was engaged in raising stone coping to the roof of said building by means of a hoist and in setting this stone in place upon the fire walls of the building. Two other men were employed in this work with plaintiff, namely, one Fischer, who seems to have been in charge of the work for defendants, and a negro by the name of Giles. The hoist which was being used belonged to Flanagan Brothers, who had leased it temporarily to defendants, to be used by the latter in lifting the stone from the ground to the roof of said building. For the use of this hoist and the engine which operated it, and for the services of the engineer who ran the engine, defendants paid Flanagan Brothers one dollar per hour. This hoist consisted, it seems, of two rectangular shaped wooden platforms which ran up and down in a wooden framework and were raised and lowered by cables which ran over pulleys, which pulleys were operated by a steam engine, called in the vernacular of the trade a “hoisting engine.”

After the work of hoisting this stone had proceeded for some several hours it became necessary to lift to the roof by means of this hoist an irregularly .shaped stone, slightly shorter than the others and not long enough to lean against the cage so as to prevent it from falling. Thereupon Fischer, who as stated, was in charge of this work, asked in the presence of Giles and plaintiff, “Wouldn’t it be wise for one of you fellows to go along with this stone?” At once, before Giles replied, plaintiff, without responding to the question except by his action, stepped upon the platform of the hoist and immediately thereafter the engine began to lift the hoist with plaintiff thereon. While the hoist was in motion and some considerable distance up, it suddenly broke and fell to the ground, carrying plaintiff with it. By this fall plaintiff received a severe laceration of the scalp and other injuries to his head, which some of the medical witnesses in the case diagnose as a fracture of the skull. He was taken up unconscious and removed to the emergency hospital, whence after temporary treatment he was sent to the city hospital, where he remained for a period of nine weeks, and was discharged, apparently cured. After his discharge from the hospital he obtained light employment in one of the packing houses for some months, when he suddenly developed insanity, which necessitated his confinement in a sanitarium, where he yet was when the trial was had. . •

At a time left dark in the record, but as is conceded before plaintiff became insane, he filed this suit for damages against defendants. - Subsequently, and after the suit had been pending for some time, an amended petition was filed herein, wherein plaintiff’s insanity was set forth as one of the results of the injuries which he had suffered and for which damages were asked. In brief, this amended petition alleged that defendants had borrowed or rented the hoist from Flanagan Brothers and that one, said Fischer, defendants’ foreman, had directed plaintiff to go upon the platform of the hoist and steady and support the stone which was being lifted by it, and that as said hoist was being lifted the timbers which supported it broke and the hoist and platform fell and hurt plaintiff. The specific negligence complained of in 'the petition was (a) an allegation of common-law negligence, for that defendants negligently required plaintiff to go upon a hoist which they knew, or which they might have known by the exercise of ordinary care, was defective in that the timbers therein were old and rotten and knotty and of insufficient size and not strong enough to sustain both the stone and plaintiff; (b) that the hoist which broke was a structure within the purview of section 7843, Revised Statutes 1909, and that it was not secured as said section supra, requires, so as to insure plaintiff against the falling thereof; and (c) that an ordinance of Kansas City requires elevators to be inspected and approved by the city-elevator inspector and that this ordinance had been violated, in that no inspection of the hoist had ever been made. Defendants moved to strike from the petition the allegations of statutory negligence and of violation of the ordinance, which motion was by the court overruled. Defendants thereupon filed an answer which consisted of (1) a general denial; (2) a plea of contributory negligence; (3) a plea that the injury-alleged was caused by a fellow-servant, and (4) the defense of assumption of risk.

Upon the trial plaintiff abandoned his allegations of common-law negligence and violation of the ordinance, and elected to go to the jury solely upon the alleged violation of the statute supra.

The chief, if not the only controversy of fact in the case, was as to the caus-e of the insanity, from which appellants admit in their brief plaintiff was suffering. Much expert testimony was offered pro and con. It was strenuously contended by plaintiff’s - counsel that his insanity was due to a depression whereby the bony parts of the skull pressed upon the brain, which depression, it was claimed, was superinduced by the fracture of plaintiff’s skull in his fall with the hoist. Toward the question of whether this depression, and therefore the insanity of plaintiff, was congenital or inflicted by the fall he concededly sustained, most of the testimony in the case was directed.

At the close both of plaintiff’s case and of all the testimony in the case defendants offered demurrers'to the evidence which were by the court overruled.

If other facts shall be necessary we shall add them in the opinion when we come to discuss the points mooted.

Passing over for the present the alleged unconstitutionality ' of section 7843, Revised Statutes 1909, for that it was not timely raised, we three alleged errors lodged in the case: (a) that plaintiff may not maintain a suit in Ms own name without a guardian or next friend, though begun while he was sane, when the gist of the case is damages for insanity superinduced by the negligent infliction of the hurt alleged; (b) that the facts here do not bring the case within the purview of section 7843 supra; and (c) that it was error to allow the medical experts to express an opimon as to the causal connection between the injury and the insanity of-plaintiff.

It is fundamental .that an insane person under guardianship cannot sue (i. e., begin a suit) in his own name. Neither we opine should an insane person be allowed to bring an action, though not under guardianship, when as here, the very gravamen of the case is the assessment of damages for a condition of insanity which plaintiff not only concedes, but urges. In such case a demurrer would lie, we think. But these suggested conditions do not cover this case. Here the plaintiff is not under guardianship. When ho brought this suit he was not insane. Pending the suit he became insane, and thereupon by an amended petition he set up in augmentation of damages the fact of insanity. When the suit was filed he was sui juris. This question has been ruled adversely to the contentions of defendant. [Allen v. Ranson, 44 Mo. 263; Koenig v. Union Depot Ry. Co., 194 Mo. l. c. 571.] It is true, as defendant urges, that in both the cases supra the fact of insanity was not the gist of the case, but merely incidental. In short, here the suit is for damages for injuries negligently inflicted, which it is alleged, brought about the insanity of plaintiff. But why should there be a distinction made? The guardianship of plaintiff would affect hut two aspects of the case: (1) Matter of costs which is already covered and provided for by the order of the court permitting plaintiff to sue herein as a poor person, and (2) the disposal of the proceeds of the litigation, should there be any, in such wise as to protect both the insane plaintiff and the defendants. These conditions and none others are to be met here, and they were likewise present and confronting this court in the two cases cited supra. So, since the conditions which might vex are the same precisely, the applicatory principles should be similar and no reason can be observed for changing the ruling. We follow Koenig v. Union Depot Ry. Co., supra, and disallow this contention.

As above forecasted, we do not consider the suggested constitutional invalidity of section 7843, Revised Statutes 1909, formerly section 19 of “an Act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees” (Laws 1891, pp. 159 et seq.), for the reason that such unconstitutionality was not raised by defendants anywhere in the case until they had lost it, and came to file their motion for a new trial herein.

No reason is urged, or known to exist, why such allegation was -not lodged in the answer of defendants. They recognized that this statute was being invoked by plaintiff, because, more than a year before the trial, they filed a motion to strike from plaintiff’s petition the parts thereof which were bottomed upon this statute. Our practice is settled that ordinarily a constitutional question must be lodged in a case as soon as is procedurally possible after the statute, order, judgment, matter or thing alleged to be unconstitutional appears in the case. [Barber Asphalt Paving Co. v. Ridge, 160 Mo. l. c. 387; Lohmeyer v. Cordage Co., 214-Mo. 685; Miller v. Connor, 250 Mo. 677.] A party may p.ot wait till he has lost the case and then in contravention of a statute and the Constitution itself and to the cluttering up and confusion of the-courts, pick and choose his appellate forum by a belated constitutional question dragged by its very heels into the case.

It is strenuously urged by defendants that section 7843 does not apply to the facts in this case so as to allow a recovery thereon. contends that he sued both under the statute and at common law. He did, and we might add, that be also sued under an ordinance of Kansas City. But he put in no evidence of this ordinance, so it falls out of the case. He did not go to the jury upon common-law negligence, so for the present discussion it falls out of the case. He relied upon section 7843' and elected tacitly at least to go to the jury thereon, since he offered no instructions and put in no evidence of common-law negligence unless (and upon the facts here and the view we take of the case we do not need to discuss this phase) the rule of res ipsa loquitur applies and bridges the break in the case made by lack of evidence of any specific omission of duty on defendants’ part.

Section 7843, the applicability of which is so seriously questioned, is as follows:

“All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or near by.”

It is apparent if not conceded that the thing which broke and fell here was a hoist, which is defined to be an “apparatus for lifting goods” (Webster’s Dictionary), and that it was not a scaffold. Plaintiff seemingly concedes that it is not a scaffold, but while so conceding contends that it is a “structure,” and such a one as is embraced within the language of the above section. Defendants just as earnestly contend that the mechanism which broke and fell and hurt plaintiff is not within the intendment of the above statute. The frank concession of plaintiff’s counsel and our own views, based on the respective definitions of these two words, considered (Webster’s Dictionary; 35 Cyc. 797), we think we may safely eliminate any question of whether a hoist or “an apparatus for lifting goods” is a scaffold within the contemplation of said section 7843. [5 Labatt, Master & Servant, sec. 1843.] But is it a “structure” within the meaning of this section? If it is, other things being equal, we ought to affirm the case.

Our Missouri act passed in 1891 was almost the pioneer essay into this field of so-called safety-of-labor-legislation. It is apparent that our Legislature had in mind such structures as those upon which men stood and worked — the context, we think, shows this. .Later statutes passed by other States, for the most part specifically mention hoists. [Cf. Wisconsin, Laws 1901, chap. 257; Illinois, Laws 1907, p. 312; Indiana, Laws 1903, p. 151; Kansas, sec. 4684, R. S. 1909; Nebraska, Comp. Stat. 1911, sec. 37930; New York, Laws 1911, chap. 693; Ohio Gen. Code, sec. 12593; Oklahoma, Laws 1907-8, p. 519.] The fact that the legislatures of the above States and others, saw fit specifically to write into their statutes the word hoists, is at least persuasive toward the view that there existed likewise in the legislative mind the thought that the designation “scaffold or structure” did not include hoists, lifts and elevators. The language of the New York statute is a fair type of all the others mentioned. The language used in the New York statute is, so far as here pertinent, as follows:

“A person employing or directing another to perform labor of any kind in the erection, repairing, altering, or painting of a house, building, or structure, shall not furnish or erect, or cause to be furnished or erected, for the performance of such labor, scaffolding, hoist, stays, ladders, or other mechanical contrivances which are unsafe, unsuitable, or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.”

Much difficulty seems to have been encountered in determining what is a “structure” within the purview of that part of the N'ew York statute, which applies the provisions thereof to buildings and structures, but ob-' viously no difficulties have arisen therein touching any distinction as between a scaffold and a hoist. In this sense in New York and elsewhere the word structure has been broadly construed, so that a “waterworks system” (Kosidowski v. Milwaukee, 152 Wis. 223); “a street railroad car” (Caddy v. Interborough R. T. Co., 195 N. Y. 415); a “canal” (Pacific Rolling Mill Co. v. Bear Valley Co., 120 Cal. 94); a “fence” (Karasek v. Peier, 22 Wash. 419); a “mine” (Helm v. Chapman, 66 Cal. 291); a “ship” (Chaffee v. Union Dry Dock Co., 73 N. Y. Supp. 908); a “telephone line” (Forbes v. Electric Co., 19 Ore. 61); a “railway” (Powder Co. v. Railroad, 42 Fed. 470); an “aqueduct” (Nash v. Commonwealth, 174 Mass. 335); a “bay-window” (State v. Kean, 69 N. H. 122) and many other artificially constructed contrivances have respectively been adjudged to be “structures” to which the duty of providing safe “scaffolds, hoists,” etc., applied under these statutes.

We have been cited to no case and our own researches have found for us none, wherein a structure has been ruled to include a hoist. It is plain that it does include by the use of the words “scaffolds or structures” all stationary platforms, staging, trestles and other similar false work used in erecting, or in tearing down, buildings of any kind, in addition to the contrivance connoted by the use of the general word scaffold. [Convey v. Finn, 114 N. Y. Supp. 864; Nixon v. Thompson-Starrett Co., 115 N. Y. Supp. 130; Chaffee v. Union Dry Dock Co., 73 N. Y. Supp. 908; Swenson v. Mfg. Co., 186 N. Y. 555; McLaughlin v. Eidlitz, 64 N. Y. Supp. 193; Anderson v. Milliken Bros., 194 N. Y. 521; Madden v. Hughes, 185 N. Y. 466; 5 Labatt, Master & Servant, p. 5866.]

Moreover, as stated above, we think it is obvious from the very context of said section 7843 that in the clause “scaffolds or structures,” the last word is ejusdem generis, and said clause is to be construed as meaning scaffolds, or contrivances and appliances of similar use and nature to scaffolds, viz., platforms, staging, trestles of whatever kind and ladders supporting planks. [See cases supra.] This view by the very clearest, analogous reasoning was taken in the St. Louis Court of Appeals in the case of Loehring v. Construction Co., 118 Mo. App. 163. This was a case wherein (to quote the language of the opinion-itself) “the appellant stepped on a board or plank twelve inches wide and two inches thick, laid on the topmost end of four-by-four-inch supports, standing perpendicular, the bottoms of which rested upon ‘outriggers’ projecting from the building. This plate on top of the four-by-four-inch uprights, was wedged between the top of the uprights and the under surface of the floor girders of the fifth floor, was adjacent to the partition framework of said fifth floor, and furnished a convenient place for workmen to step upon when moving about in proximity thereto. He had gone to the fifth story in the performance of a task and had occasion to pass from 'one part of that story to another. The floor was not laid and he had the choice of walking on an iron beam three inches wide, five stories above the ground, or on a board twelve inches wide. He chose the latter. It slipped from its position and he was injured.”

Upon this state of facts the learned judge who wrote the opinion, after quoting said section 7843 supra, nevertheless at page 182 of his opinion said:

“It will be noted that the requirements of said section in so far as material here, are: ‘Scaffolds . . . used in the erection ... of any building, shall be . safely supported and of sufficient width, and so secured as to insure the safety of persons walking thereon or passing under or about the same against the falling thereof.’ The statute means what it says. Its purpose is to secure the safety of ‘persons walking thereon’ or ‘passing under or about the same against the falling thereof.’ It is sufficient to say that the appellant was not ‘walking thereon,’ nor was he ‘passing under or about the same’ within the meaning of the statute. The scaffold was on the outside of the building and for him to have been ‘walking thereon’ within the meaning of the statute, he should have been on the scaffold, not on a mere contrivance serving as a support, in no sense intended to be walked upon, and to bring himself within the pale of its provisions, and recover for injuries received while ‘passing under or about the same’ on the theory of negligence per se, he should show that he was ‘passing under or about the same’ and was injured by reason of causes other than his own fault in subjecting such portion of it to an improper use and for which use it was not intended. He was inside the building, walking on a contrivance as much as twelve feet from the scaffold, which contrivance was parcel of its support and was constructed not as a scaffold, as plaintiff well knew, but for no other purpose than as a support thereto. It would be preposterous to say that by this enactment pertaining to the sufficiency of the scaffold as a scaffold, that the Legislature intended that every part and parcel of it, far removed from the contemplated structure, should be made so secure as to sustain a man’s weight when using it for a purpose wholly foreign to its erection.”

It fairly follows we think that a hoist is neither a scaffold nor a structure within the meaning of section 7843, and under the facts here. If this is not true, then the broad construction which plaintiff’s learned counsel contend should be put upon the word “structures,” as it is used in said section 7843, would require the roof, walls, partitions, window-frames and door jambs and every other component part of a building under construction, destruction or repair, wherever such part is composed of as many as two bricks, two stones, or two planks “artificially put together in some definite manner” (Favro v. State, 46 S. W. 932), to be “so secured as to insure the safety of persons working thereon, or passing .under or about the same, against the falling thereof, or the falling of such materials or articles [e. g., bricks, planks, spikes, bolts and tools] as may be used, placed or deposited thereon.” In short, so broad a construction would serve to make this section applicable to practically every conceivable or possible casualty, which could occur in any building or re-building operation of whatever sort.

Conceding that it has been said touching some of the provisions of this same act, that such laws are highly .remedial (Simpson v. Witte Iron Works Co., 249 Mo. 376), yet we are not permitted to legislate judicially. To hold that a hoist is a structure would be to trespass upon the function of the lawmakers. If there is any liability in the ease it must arise from the violation of what is commonly called a common-law duty, and be bottomed upon a negligent performance of that duty. Therefore the demurrer to the evidence ought to have been sustained, upon the case made, bottomed upon the statute.

As the case for the error noted must be reversed, we take occasion to discuss briefly whether it was error to permit the expert medical witness, Dr. Murphy, to testify that “a blow of that character could have caused insanity. ’ ’ The witness never saw the wound and did not see or examine the plaintiff till' long subsequent to the happening of the injury to his head. He was testifying upon the basis of an examination made nearly a year later and upon a hypothetical question. The issue for the jury was not the insanity of plaintiff, for that we understand both sides to concede; nor was it the depression in his head, for there is no serious dispute as to the existence of that depression; but the issue was whether the depression, which the experts had the right to say might bring about insanity, was congenital, or whether it was caused by the injury. This was the chief bone of contention and the main issue for the jury. Let us look to the analytical sources of the rule to see if this was error.

This phase of the case presents no peculiar or mountainous difficulty. The general rule is that a medical expert will not be allowed to invade the province of the jury and substitute his reasoning and conclusions for the reasoning and conclusions of the jury upon the issue or issues before the triers of fact. [Castanie v. Railroad, 249 Mo. 192; DeMaet v. Storage Co., 231 Mo. 615; Glasgow v. Railroad, 191 Mo. 347; Roscoe v. Railroad, 202 Mo. 576.] For example, the medical expert in a will case may tell the jury whether certain symptoms betoken insanity, but he may not tell the jury whether a person having such symptoms and ergo presumably having such insanity is or is not too insane to be capable of making a will; for in such case the issue is: Did the testator have sufficient mental capacity to make a will? Neither will a medical -expert in a criminal prosecution be allowed to state whether the subject of the inquiry had mental capacity sufficient to know right from wrong, or to form a specific criminal intent to an extent rendering him amenable for his crimes. He may tell the jury his opinion of whether a scar upon flesh or bone is congenital or inflicted, but clearly he may not tell the jury from a hypothetical question long after the healing of the wound, which he never saw, what specific hurt caused the scar when that is the issue. In short, he may not say whether a conceded condition is the result of the injury proven, where the producing cause thereof is alone in issue. He undoubtedly may say, however, that a given cause might bring about a given effect, but not that it will do so, or that in a given case then at issue before the triers of fact, it did bring it about. So, the witness could say whether in his opinion the depression was congenital or inflicted; so also whether if inflicted by a fall or a blow it was possible for it to cause insanity. He could not say that insanity inevitably would follow or that it did follow the very blow in issue, or that the identical fall or blow sharply in issue caused it. This rule is true generally, we think. If it is not, then the facts which to an extent make this case sui generis, make it true here.

It results that this case must be reversed and remanded to be retried, if plaintiff is so advised, in conformity with the views expressed herein. Let this be done.

All concur.


text:
    CITY OF ST. LOUIS, Plaintiff in Error, v. NICHOLAS NASH.
    Division Two,
    January 6, 1916.
    1. FIRE LIMITS: Definition of Structures. Within properly defined limits a municipal legislative body may define the objects designed to be affected by its fire-limit ordinances and a court in construing such ordinances is ordinarily bound to follow the city’s definitions of buildings and other structures so affected.
    2. -: Tent: Lacking Portability: Building. A structure lacking the element of portability, and being canvas stretched and held in place by a wire cable attached to two large telegraph poles set firmly in the ground and by guy cables run laterally from this main cable to other posts also set firmly in the ground, with a stage, dressing rooms, ticket office and benches built of wood, the whole used as a moving-picture theatre, is not a tent, as that word is ordinarily understood; but under the ordinances of St. Louis declaring that the word “building” shall be taken to mean “any structure for the support, shelter or enclosure of persons, animals or chattels” is a building within the purpose and intent of the fire-limit restrictions.
    3. -: Reasonable Regulation. And an ordinance which prevents the carrying on of a permanent business in such a building is a reasonable police regulation.
    Error to St. Louis City Court of Criminal Correction. —Hon. Benjamin F. Ciarle, Judge.
    Reversed and remanded (ivith directions).

      William E. Baird and Truman P. Young for plaintiff in error.
    The structure erected by the defendant is a building within the definition of the Building Code of the city of St. Louis and within the general .legal interpretation placed upon the word “building.” Revised Code of St. Louis, sec. 336; Blakemore v. Stanley, 33 N. E. 689; Nowell v. Boston Academy, 130 Mass. 209; Killman v. State, 28 Am. Rep. 432; Favre v. State, 73 Am. St. 953; Williams v. State, 70 Am. St. 82; Kansas v. Poole, 65 Kan. 713; People v. Steckman, 34 Cal. 242.

      Taylor R. Young and Edward W. Forristel for defendant in error.
    (1) Sections 341 and 505, R. O. City of St. Louis 1912, were never intended to prevent the erection and maintenance- of a tent, such as the evidence in this case shows the defendant was erecting at the time he was charged with violating said sections. Childress Seashore v. Atlantic City, 59 L. R. A. (N. J.) 947; Coddington v. Beebe, 31 N. J. L. 477; Allen v. Ayre, 3 Dow & R.-96; Trust Co. v. Cameron I. & C. Co., 47 Fed. 136; Callahan v. State, 41 Tex. 43; State v. Bari-, 39 Conn. 44; Rouse v. Catskill, 13 N. T. Supp. 123-127; Tuesdell v. Cray, 79 Mass. 311; Hawaii v. Manchiki, 190 U. S. 197; Century Dictionary, pp. 712, 6234; Bouvier’s Law Dictionary, p. 268; 1 Oxford’s Dictionary, p. 1162; Anderson’s Law Dictionary, p. 139; 6 Cyc. 115 (2) Even though said sections were intended to apply, they are so unreasonable as to be void under the decisions of this court. Kelley v. Meeks,' 87 Mo. 396; Corrigan v. Cage, 68 Mo. 541; St. Louis v. Weber, 44 Mo. 547; Tarkio v. Cook, 120 Mo. 1. (3) Th.e Municipal Assembly of the city of St. Louis, has no power to prevent by ordinance the use of property so as to prevent a tent of the character in question here from being constructed upon and operated in connection with the use of such property. Clause 12, sec. 26, art. 3, Charter, City of St. Louis.
   FARIS, P. J.

This is a case growing out of the prosecution of, defendant in error for an alleged violation of an ordinance of the city of St. Louis. Being cast in the police court and likewise in the Court of Criminal Correction to which it appealed, the city brings the case here by writ of error. Since, throughout, no change has occurred in the parties, we will for clarity’s sake refer to them as the plaintiff and the defendant, respectively.

The section of the city ordinances which the complaint alleges that defendant violated, reads thus:

“See. 341. No fourth-class buildings shall hereafter be built within the district known as the fire limits, as hereafter defined, except such buildings as are provided for in sections 342 and 343 of this article.” (Here follows a description of the fire limits.)

When the case reached the Court of Criminal Correction a motion to quash the complaint was filed by defendant, but action thereon was deferred by the learned judge nisi till he had heard the case on the merits. Thereupon the case was presented below upon agreed facts, which the court heard and thereafter entered an order quashipg the complaint. Therefore, though we follow the language of the court nisi in stating that the motion to quash was sustained, it is plain that the case was actually heard and decided on the merits.

The agreed facts are lengthy; but since in the view we take of the controversy, alone, the method of the construction and physical nature of the structure erected and used by defendant is important, we will not burden the statement of the case with more of the facts than will but suffice to illuminate this single point. Specifically, defendant was prosecuted for erecting and using as a moving-picture theatre, a certain structure which plaintiff contends violated the provisions of the section of the city ordinances which we quote above. The erection and use of the structure within the fire-limits were admitted. It is therefore manifest that the whole case turns on the nature of the structure so erected by defendant. The agreed facts thus describe the materials of which it was constructed, the manner of construction thereof and the purposes for which it was used, viz.:

“Said shelter or structure is ninety-seven feet in length and fifty-eight feet in width, and has a height along the center of thirty feet, and a height along the sides, between the ground and the eaves, of eight feet. It is supported by two telegraph .poles fourteen inches in diameter firmly set in the ground, one at the front end, facing Jefferson Avenue, on the inside, about ten feet west of the entrance, and in the center thereof. The other on the outside and west of the west end thereof. Said telegraph poles are. thirty-five feet high, and between them is stretched a wire cable an inch and a half or two inches in diameter. To said cable are attached ropes which extend down to the top of the canvas cover and support the same. Also at intervals of eight feet, ropes extend down from the center of the top of the cover of said shelter or structure to the sides and bottom thereof, and most of them are connected with wooden posts securely driven in the ground and which are located about ten feet outside of the canvas cover, which keeps the covering taut. There are thirty of said poles upon each side of said shelter or structure', one-half of which are eight feet in height and the remainder twelve feet in height. Said poles are about three and one-half inches in diameter, and in the center of the top thereof is an iron peg securely driven therein, about one-half inch in diameter and eight inches in length and which projects above the top of the said pole about five inches. The canvas covering is composed of 12-ounce Army Duck Canvas. At the front end of said shelter or structure two wire cables or guy cables extend from the top of the front telegraph pole, one to the northeast comer of-the lot upon which said shelter stands, and the other to the southeast corner. Said cables are attached to posts firmly embedded in the ground fifteen feet outside of said shelter. At the rear end of said structure or shelter are three guy cables which extend from the top of the telegraph pole at the rear of said structure to posts firmly embedded in the ground, one of them at the northwest corner of the lot upon which said shelter or structure is located, another at the southwest comer and another at the west and near the center of the west end of said lot. The* front and rear ends of said shelter or structure are supported by two poles, eighteen feet high, at each end thereof, which support the canvas cover at a point fifteen feet from the top of the cover on each side and at the end thereof. At the rear end of said shelter or structure is located a stage or platform, built of wood, upon each side of which are wings or dressing rooms composed partly of wood and partly of canvas. Inside of said structure or shelter are rows or tiers of seats in bench form. Between said rows of seats there is one aisle down the center six feet wide, and on each side of said shelter or structure there is also an aisle eight feet wide. There aré sixty-four benches, each of which will seat ten people, so that said shelter or structure has a seating capacity of six hundred and forty persons. The said shelter or structure is equipped with electric lights set in iron conduit for lighting in the evening, and the stage or platform is also equipped with electric footlights set in conduit. Said shelter or structure is constructed in such a way that the sides can be raised up in the summer time and lowered in the winter time, and in the winter time the- said sides are lowered, and at all places, except exits, when the sides are lowered, are banked along the outside with earth sufficient to shut out drafts. Said shelter or structure is equipped with four so-called cannon, or heavy cylindrical, stoves for heating, one stove being placed in each corner thereof, and the stovepipe goes out through a hole in the side, which is fortified with asbestos and tin, and projects ten feet outside of the canvas cover. The floor of said structure or shelter is of earth and cinders, except that in front of each seat there is a board plank eight inches wide upon which the audience rest their feet. And in each aisle there is a board walk eight feet wide composed of one by two boards laid flat on the ground and nailed to cross pieces sunk in the ground. And between the ticket office and the east side of said shelter or structure are also similar boards laid in like manner. The seats are built of wood, in the form of benches. Along the street line or entrance to the lot upon which said shelter or structure stands is a series of door panels, composed of wood and glass, and consisting of eight such door panels. Six of said panels swing on hinges, and may he opened for the admission or exit of persons. Immediately inside of said outside entrance is an open space of ten feet where there exist two brick columns with wood jambs upon which two swinging doors are hung, composed of wood with glass windows, about seven feet in width and eight feet high.' Between the' two entrances there is a booth made of wood seven feet high and in the shape of a half moon, and is located outside of the shelter or structure. After passing through said inside entrance doors the audience are admitted into a small corridor or chamber, with a canvas cover, with canvas sides, which leads through a canvas curtain directly into the main auditorium. In the summer time these doors and the corridor are done away with, and the audience simply pass from the ticket office into the main auditorium. There they are seated for the purpose of witnessing exhibitions of moving pictures, etc. One exhibition is held every evening, and further, there is an exhibition every Sunday afternoon. Such, in general, is the description of the structure or shelter in question.”

It is clear that if the erection and nse of the structure above-described violate the provisions of section 341 of the ordinances, the court nisi erred; if it does not, he was right. Let us look to this point.

Confining the case to yet narrower limits, it is obvious that the question turns on whether the described structure is or is not a “building” within the .purview, of the section of the fire limits ordinance set forth, supra, and which plaintiff alleges defendant violated. If it is a building it is conceded to be such a one as is by the city ordinances designated, “of the fourth-class,” the erection of which, at the place where defendant built and maintained the structure in controversy, is absolutely forbidden by said section 341. Plaintiff urges that the structure is a building; defendant just as strenuously contends that it is a tent. This, in a nutshell, is the concrete point confronting us.

The city ordinances define buildings of the several classes thus:
“ ‘Building of the First Class’ shall be taken to mean a building of fire-proof construction throughout, the structural parts of which are wholly of brick, stone, or tile, concrete, iron or steel, or other equally substantial and incombustible materials. ‘Building of the Second Class’ shall be taken to mean a building of mill or slow combustion construction, wherein all floors and roofs are constructed of heavy dressed timber, exposed beams, girders and planking and supported upon masonry walls, or on wooden or fireproofed iron or steel columns. ‘Building of the Third Class’ shall be taken to mean any building not of the first or second class, the external and party or division walls of which are wholly of brick, stone or other .equally substantial and incombustible materials. ‘ Building of the Fourth Class ’ shall be taken to mean any building- not of tbe first, second or third classes.” [Sec. 336, R. C. St. Louis.]

There is but little doubt we opine that within limits not necessary here to discuss (since obviously the boundaries are wide enough to include the facts here), a legislative body may define the-objects affected or designed so to be by its own. enactments, and that we are bound ordinarily in construing its acts or ordinances to follow its own definitions., [State ex rel. v. Allison, 155 Mo. 325.] Therefore we note that a “building” is thus defined by the ordinances of plaintiff city:

“ ‘Building’ shall be taken to mean any structure for the support, shelter, or enclosure of persons, animals or chattels; and when separated by division walls without openings, then -each portion of such building shall be deemed a separate building.” [Sec. 336, R. C. St. Louis.]

So again narrowing the limits of the question and the scope of the instant inquiry, we n-eed only to ascertain whether the structure in question was a building within the purview of the above definition.

Defendant strenuously insists that the structure in controversy is a tent, and that a tent is not a building. Quod era-t demonstrandum. We may question this position from two angles: (a) Can it be maintained upon the facts, and (b) if it can be so maintained will the legislative definition nevertheless include it and make of it a building when, absent the definition, it was before but a tent?

The lexicons, under the statutory admonition that words found in statutes are to be.regarded ordinarily as being used in their plain, usual and everyday meaning- (Sec. 8057, R. S. 1909), define the word “tent” thus: “A pavilion, or.portable lodge consisting of skins, canvas or some strong- cloth stretched and sustained by poles, used for sheltering persons from the weather, specially soldiers in camp.” [Webster’s Int. Dic.]

The above definition of the lexicographers, is in line with that of the courts, as witness the Texas Court of Criminal Appeals which defines a tent thus: “A ‘tent,’ in the ordinary acceptation of the word, is a pavilion, portable lodge, or canvas house, inclosed with walls of cloth and covered with the same material.” [Killman v. State, 2 Tex. App. 222.] Likewise pertinent to the question whether a tent is a house, and therefore a building, the curious may consult the cases of Nowell v. Boston Academy; 130 Mass. 209; Blakemore v. Stanley, 150 Mass. 6; Favro v. State, 73 Am. St. 950; Williams v. State, 70 Am. St. 82; State v. Poole, 65 Kan. 713; People v. Stickman, 34 Cal. 242.

Analyzing the facts of construction in the light of the, definitions, supra, but leaving out of view the dimensions of this structure, which are ninety-seven by fifty-eight by thirty feet, we observe that it seems to lack portability, ■ in that it is supported by telegraph poles fourteen inches in diameter “set firmly in the ground.” These telegraph poles are bound together by a two-inch wire cable, which serves as, and in lieu of, a ridge-pole. From these telegraph poles other wire cables, five in all, called guy-cables, run down to an attachment to other posts “firmly em; bedded in the ground.” Likewise a departure touching the sort of materials used in construction is noted. For at the rear of the structure there is “a stage built of wood, upon each side of which are wings or dressing rooms composed partly of %uood and partly of canvas.” This stage and the whole structure for that, matter, is equipped with electric lights, and at the front of the stage there are footlights set in a conduit. Practically the whole of the floor, in fact all space, except that on which the seats sit, is covered with boards. Such floor is constructed for the most part of one by two boards laid flat and nailed to crosspieces sunk in the ground. The front of the structure which abuts on the street, is made of eight door panels, which swing on hinges and which are made of wood and glass. Just inside of the outside entrance there are two brick columns with jambs of wood, to which are hung doors of wood and glass, seven feet wide and eight feet high. Between the row of eight wood panels and the row made up of the brick columns and swinging doors there is a crescent shaped booth made of ■wood, which apparently serves as a place for selling tickets. But this should suffice for an iteration of points of dissimilarity between this structure and a tent. The others may be picked out of the description which we print in our statement. It will be seen that the element of portability is sadly lacking, and that other materials, to-wit, wood and glass and brick, have been added to the skin and canvas-covering of the genus tent, connoted by the definitions of the cases and of the lexicographers. Clearly this structure cannot be made a tent merely by calling it a tent, even though touching a matter to an extent analogous, one Squeers of Dotheboys Hall sapiently observed that “there is no law to prevent a man from calling his house a hall if he wants to do so.” [Nicholas Nickleby, reported by Charles Dickens.]

So, examined by the touchstone of similarity of earmarks, we must conclude that the structure in controversy is not a tent, as the latter word is generally understood. In passing we may say that the word ‘tent” as used in our statutes, numerously cited to us by defendant, means “tent” as the word is ordinarily understood, and therefore the language of those statutes is in no way pertinent to contradict what we say above.

We turn to the definition then to determine if we can, whether within the purview of the ordinances of the plaintiff city, it is a building. nee(j consider only the first part of the definition, to-wit: “ ‘Building’ shall be taken to mean any structure for the support, shelter, or enclosure of persons, animals, or chattels,” and leave off the last, to-wit: “and when separated by division walls without openings, then each portion of such building shall be deemed a separate building; ’ ’ for obviously if we conclude that it is a building we are not called on to proceed further and rule that it is two buildings, even though the facts that there is a wooden stage at one end and a wood and glass ticket office and entrance at .the other, seem pertinent to this view.

Looking at the legislative definition and measuring the structure here thereby, there is no escape from the conclusion that it is a building within the purpose and mtent of the fire-limits ordinance, and so we rule.

Neither do we think that the ordinance is void for that it is unreasonable. Defendant urges this, saying, if we understand his contentions, which are somewhat vague, that should we hold that the ordinance includes a structure of the sort here in question, then such a construction renders the ordinance void because it is unreasonable and unduly burdensome. Such ordinances are referable to the police power, through an invocation of which alone are they sustainable. We are not advised wherein the alleged unreasonableness lies; neither do the cases cited by defendant throw any light upon the point. Speaking generally we may say that if such structures as that here under discussion are not to be regulated and their erection either forbidden, or at least controlled, by ordinance, there seems to be nothing in this case at least which would prevent the construction of inflammable and unsightly conglomerate sheds of the same sort anywhere and everywhere in the city, and the carrying on therein of permanent businesses of whatever sort indefinitely., Such a condition is unthinkable. We need not take up space considering this phase of the case, but disallow it out of hand. '

Let the case be reversed and remanded, with directions to the court nisi to overrule the motion to quash the complaint and to retry the case in such wise as is not inconsistent with the views herein expressed.

All concur.