author: FARIS, J.

text:
    KANSAS CITY v. RICHARD H. FIELD, Appellant.
    Division Two,
    March 30, 1917.
    1. JUDGMENT: Execution After Ten Years. Execution cannot issue in any case after the expiration of ten years from the date the unrevived judgment was rendered.
    2. -: -: Special Tax Bill: City Charter: Paramount Statute. And though the judgment was based upon a benefit assessed against a lot as its share of the cost of a public improvement and the city charter says such judgment shall be a lien until the assessment is paid, such charter provision must yield to the paramount authority of the State statute, and execution cannot issue after the period of ten years mentioned in the statute has expired.
    3. -: -: Matter of General Policy. Whether an execution can be issued upon an unrevived judgment after ten years is a matter pertaining to the general laws and policy of the State, and not one relating strictly to municipal affairs or coming under municipal control. And although the judgment grows out of an assessment of the costs of a public park against lots within the benefit district, and the city charter prescribes as the method of enforcing such assessment the judgment of a court of general jurisdiction, yet that judgment, like any other of such a court, is controlled by the statute, and an execution based on it must follow the course of other executions issuing out of such courts.

      4. -: -: Effect of Appeal. A judgment expires by limitation in ten years after it is rendered in tbe circuit court, whether appealed from or not. The statute (Sec. 1912, R. S. 1909) says that the period of ten years is to. be counted “from the date of the. original rendition” of such judgment.
    b. - :-: -: Supersedeas. •' An appeal does not stay a judgment, or stay the issuance of execution thereon. It is the supersedeas statute which, upon condition, stays a judgment pending an appeal upon the appellant’s making and filing the requisite bond; and if a judgment be not suspended or stayed by a supersedeas bond, it continues, pending an appeal, in full force and vigor, and execution may issue.
    6. -: -: -: Ten Years After Affirmation. Where the judgment was affirmed on appeal on June 30, 1903, the mandate issued out of the appellate court on July 11, 1903, and was filed in the circuit court on July 12, 1903, an execution issued on July 12, 1913, was issued ten years and twelve days after the judgment was affirmed, and even if it be admitted that the statute was tolled by the appeal, and in any view of the case, the execution should be quashed.
    Appeal from Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge.
    Reversed and remanded (with directions).

      Gage, Ladd & Small and R. H. Field for appellant.
    (1) The execution was unauthorized and void because not issued within ten years from June 19, 1900, the date of the original rendition of the judgment. E. S. 1909, sec. 2133; George v. Midaugh, 62 Mo. 549; Goddard to use v. Delaney, 181 Mo. 571; E. S. 1909, sec. 1912; Martin v. St. Louis, 139 Mo. 260; Eysell v. St. Louis, 168 Mo. 607; St. Louis v.' Eealty Co., 175 Mo. 63; Dreyer v. Diekman, 131 Mo. App. 660; Dorland v. Smith, 93 Cal. 120; New York v. Colgate, 12 N. Y. 140. (2) The judgment or order for the recovery of the benefit assessment in this- proceeding, against appellant’s lands, was conclusively presumed to be paid and satisfied, when the execution was issued, because more than ten years had elapsed, “after the date of the original rendition thereof,” with no revival of the judgment nor any payment thereon within ten years before the issue of the execution. R. S. 1909, sec. 1912. And see, on the presumption of payment, prescribed in section 1912: Davis v. Oarp, 258 Mo. 687; Cobb v. Houston, 117 Mo. App. 645; Chiles v. School District, 103 Mo. App. 240. See also: Gaines v. Miller, 111 U. S. 399. The presumption of payment of judgments, created by the provision in section 1912 of the Revised Statutes, is a rule of evidence, in legal effect, the full equivalent of proof of actual payment of a judgment. It is more. It is a presumption that cannot be rebutted by counter proof, that the judgment has not been paid; not even by proof of a solemn admission of the judgment debtor that the same has not been paid. This was said by this court of a like statute. Baker v. Stonebraker’s Adm., 36 Mo. 349. And the like presumption of payment has elsewhere been applied to judgments, in rem and for taxes, which were made a lien until paid. Fisher v. Meyer, 67 N. Y. 74; In re Asher’s Estate, 202 Pa. St. 422, 90 Am. St. 658; Carter v. Turnpike Co., 208 Pa. St. 565; Hayes Appeal, 113 Pa. St. 380; Brian v. Tims, 10 Ark. 597. (3) The fact that the city has received payment from other persons on other pieces of property, within ten years before the date of the execution, is immaterial to the issue here on the assessment against appellant’s property on which the city claims no payment: Because (a) as said by this court in Kansas City v. Block, 175 Mo. 443, “the judgment is not an entirety, the interests of the parties are independent of each other;” and (b) because no payment is “entered upon the record” of the judgment. A payment on the judgment, unless “duly entered on the record thereof,” does not save the judgment from the statute. R. S. 1909, sec. 1912. (4) The general statute cited applies to the adjudication, for the recovery of the special benefits in this proceeding, whether it be considered a judgment or only an order of the court, because said section 1912 expressly includes “every judgment, order or decree of any eonrt of record.” Plum v. Kansas City, 101 Mo. 532; Shickle v. Watts,'94 Mo. 411, 420; Lafayette Company v. Wonderly, 92 Fed. 316. (5) The circuit court proceeding, in this action, as provided for in the Kansas City charter, is a judicial proceeding from start to finish. Kansas City Charter, Annotated 1898, art. 10, secs. 11 to 17. (6) Section 17, article 10, of said city charter expressly names the adjudication for the recovery of the benefits assessed in this proceeding a “judgment,” and provides for its enforcement by “execution” and not otherwise. Being made enforcible by execution, the adjudication is, in substance and effect, indisputably a judgment. St. Louis v. Realty Co., 259 Mo. 126; Kansas City v. Ward, 134 Mo. 183; Plum v. Kansas City,. 101 Mo. 532. (7) And such adjudication is fortified against attack, both collaterally and on appeal, because it is a judgment in a judicial proceeding. Kansas City v. Plum, 101 Mo. 531; Leonard v. Sparks, 117 Mo. 115; Kansas City v. Burk, 118 Mo. 309, 327; Kansas City v. Duncan, 135 Mo. 517; Kansas City v. Bacon, 147 Mo. 275; Martin v. St. Louis, 139 Mo. 260; Connors v. St. Joseph, 237 Mo. 613; Kansas City v. Mastín, 169 Mo. 88; Robinson v. Levy, 217 Mo. 513; SkiUman v. Clardy, 256 Mo. 321; Kansas City v. Block, 175 Mo. 443; Brunn v. Kansas City, 216 Mo, 115. (8) And this judgment for benefit assessments is subject to the general statutes of limitation. Dorland v. Smith, 93 Cal. 120; Colgate v. New York, 12 N. Y. 140; Donnelly v. Brooklyn, 121 N. Y. 18; Dousman v. St. Paul, 23 Minn. 394; Duncan v. Ry. Co., 22 Mo. App. 614; Martin v. St. Louis, 139 Mo. 260. And is subject to the same presumption of payment as ordinary judgments. Fisher v. Meyer, 67 N. Y. 74; In re Asher’s Estate, 202 Pa. St. 422; Carter v. Turnpike Co., 208 Pa. St. 565. (9). The fact that the city charter might have made this proceeding administrative by its own officers, wholly outside of the State agency of the circuit court, does not render the circuit court proceeding provided, any the less a judicial proceeding, nor any the less subject to the State statutes concerning judgments and executions. Skillman v. Clardy, 256 Mo. 320; Haag v. Ward, 186 Mo. 326-344; Robinson v. Levy, 217 Mo. 513. (10) The general statutes concerning judgments and executions apply to special judgments and special executions. R. S. 1909, sec. 2172; Smith ex rel. v. Rogers, 191 Mo. 344; Skillman v. Clardy, 256 Mo. 320; Kansas City v. Woerishoeffer, 249 Mo. 26; Plum v. Kansas City, 101 Mo. 530; Groner v. Smith, 49 Mo. 323; Eyssell v. St. Louis, 168 Mo. 607; Duncan v. Railroad, 22 Mo. App. 614; Haag v. Ward, 186 Mo. 326-344; Kansas City v. Smith, 238 Mo. 338; Railroad v. Swan, 120 Mo. 35; Crittenden v. Leitensdorfer, 35 Mo. 243; Green v. Dougherty, 55 Mo. App. 217. (11) This court has been uniformly against inferring any exception to such comprehensive general statutes. Bolton v. Landsdown, 21 Mo. 400; Crittenden v. Leitensdorfer, 35 Mo. 243; Lafeyette Co. v. Wonderly, 92 Fed. 313; Plum v. Kansas City, 101 Mo. 530; State ex rel. v. Dirckx, 211 Mo. 581; Skillman v. Clardy, 256 Mo. 320. (12) The city could have had the execution issued in 1904, for all of the benefits assessed, on and after default upon the first installment of the benefits assessed. Last clause Sec. 21, art. 10, City Charter, Annotated 1898, p. 182; Jaicks v. Murrill, 201 Mo. 101. (13) The general statute ran on the judgment “from the date of the original rendition thereof,” notwithstanding the judgment for special benefits was payable in successive annual in stall merits. In point: Dreyer v. Dickman, 131 Mo. App. 660. See also: George v.. Midaugh, 62 Mo. 549; Cobb v. Houston, 117 Mo. App. 645. (14) The Mulkey appeal did not suspend nor interrupt the running of the general Statute of Limitations on the judgment “from the date of the original rendition thereof;” and the time of the pendency of that appeal is not to be deducted in computing' the ten-year limitation against execution on the judgment. Christy v. Flanagan, 87 Mo. 670; Green v. Dougherty, 55 Mo. App. 217; E'ysell v. St, Lotus, 168 Mo. 620; Deposit Co, v, Sehuchman, 189 Mo. 472-; Ins. Co. v. Hill, 17 Mo. App. 590; Eichardson v. Harrison, 36 Mo. '96; Dorland v. Smith, 93 Cal. 120. And this is plainly so, because the only thing the statute permits to extend the life of the judgment, ‘ ‘ after ten years from the date of the original rendition thereof,” is a revival of the judgment or a payment thereon. E. S. 1909, sec. 1912. (15) The Kansas City charter, not having prescribed any time or condition after which, the judgment should be presumed paid, nor any limit of time within which execution should issue thereon, the cited general Statutes of Limitation and presumption of payment apply to such judgments and executions Pleadwell v. Glass Co., 151 Mo. App. 63; Plum v. Kansas City, 101 Mo. 530; Eailroad v. Swan, 120 Mo. 35; Const. Co. v. St. Louis, 231 Mo. 591; Kansas City v. Smith, 238 Mo. 338; SMllman v. Clardy, 256 Mo. 319. (16) And a fortiori, this proceeding is subject to the general Statute of Limitation, because the State Constitution, under which Kansas City framed and adopted its charter, in terms made Kansas City and its charter-making “subject to the Constitution and laws of the State.” Constitution, art.-9, sec. 16; Mullins v. Kansas City, 188 S. W. 193; Haag v. Y^ard, 186 Mo. 326.

      J. A. Harzfeld, Jay M. Lee, Delbert J. Haff, Edwin C. Meservey and Charles W. German for respondent; William C. Michaels of counsel.
    (1) The Kansas City charter provisions control the issuance of execution to enforce the collection of assessments involved in this case. Murnane v. St. Louis,. 123 Mo. 479; Kansas City v. Scarritt, • 127' Mo. 642; St. •Louis v. Gleason, 15 Mo. App. 25, 93 Mo. 33; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Oil Co., 140 Mo. 458; St. Louis v. Dorr, 145 Mo. 466; Stevens v. Kansas City, 146 Mo. 460; Kansas City v. Bacon, 147 Mo. 259; Meier v. St. Louis, 180 Mo. 391; Morrow v. Kansas City, 186 Mo. 675; St. Louis v. Liessing, 190 Mo. 464; St. Louis v. DeLassus, 205 Mo. 578; Paving Co. v. Meservey, 103 Mo.- App. 186; Construction Co. v. Coal Co., 205 Mo. 63; Brunn v. Kansas City, 216 Mo. 108; Sec. 3707, R. S. 1899; Stanton v. Thompson, 234. Mo. 11; State ex rel. v. Seehorn, 246 Mo. 556; Paving Co. v. Harvard, 248 Mo. 280; Sec. 7181, R. S. 1909; Kansas City v. "Woerishoeffer, 249 Mo. 1; Paving Co. v. Field, 134 Mo. App. 668; Charter of Kansas City 1898, sec. 8 to 28, art 10; Charter of Kansas City 1909, sec. 8 to. 28, art. 13; Smith v. Mitchell, 33 Am. Dec. 119; 5 Words and Phrases, p. 4165; Riddlesbarger v. Ins. Co., 74 U. S. 386; Sec. 4944, R. S. 1909; St Louis v. Realty Co., 259 Mo. 126; Kansas City v. Land Co., 260 Mo. 395; 23 Cyc. 1467; Mo'ore v. Williams, 129 Ala. 329; Van Rensslaer v. Wright, 25 N. E. 3; Sheldon v. Mirick, 39 N. E. 647. (2) Ten years had not elapsed between the rendition of the judgment and the issuance of the execution. State ex rel. v. Grill, 84 Mo. 248; Kansas City v. Hennegan, 152 Fed. 249; Paving Co. v. Meservey, 103 Mo. App. 186.
   FARIS, J.

— This is an appeal from the circuit court of Jackson County, wherein upon motion to that end, the court refused to quash an execution which had been levied upon the land of movant, who is appellant here.

On the 19th day of June, 1900, as the result of a certain proceeding to condemn lands for a park to be known as West Terrace Park, and to assess benefits to produce a fund to recoup the city for its outlay in payment for the condemned lands, judgment was rendered, among others against the lands of movant. Movant did not appeal from the latter judgment, but one Catherine Mulkey appealed on her part from the judgment assessing benefits against her land, which appeal was decided against her by this court on the 30th day of June, 1903. [See Kansas City v. Mulkey, 176 Mo. 229.] Mandate was issued by this court in the last-mentioned appeal on the 11th day of July, 1903. The execution herein sought to be quashed was issued on the 12th day of July, 1913. The mandate from this court was filed in the circuit court of Jackson County on the 13th day of July, 1903. The motion to quash the execution filed by movant, so far as .it is pertinent, is, caption and signature of counsel omitted, as follows:

“Now, on this 30th day of July, 1913, comes Eichard H. Field, and states and shows to the court:

1. That he is and was at .the times hereinafter named, the owner of the following described real estate in Kansas City, Jackson County, Missouri, to-wit:

“The west fifty-two feet of the south sixteen feet of Lot No. Thirteen and the west fifty-two feet of Lot No. Fourteen, Coffman’s Addition.
“2. That, on July 12, 1913, the clerk of the circuit court of Jackson County, Missouri, issued and delivered to the sheriff of said county an execution of. that date on a judgment of said circuit court at Kansas City, in the above entitled cause, dated and rendered June 19, 1900, for $92.83, against the above described real estate, and also for other sums against other lots and parcels' of real estate in said city described in said execution in which said Eichard H. Field was and is in no wise interested or concerned. .
“3. That said execution or the record in the case does not show that said execution was issued on a live judgment, or- that'the clerk of said court had any right or authority to issue said execution against the said real estate of the maker of this motion.
“4. That said execution was issued after the expiration of ten years from June 19, 1900, the date of the original rendition of said judgment'; and said judgment had not been revived, and no payment had been made on said judgment against the above described real estate at any time within ten years before July 12, 1913, the date of said execution.
“Wherefore, the said Eichard H: Field moves the court to quash said execution as to his said real estate above described, and for judgment for costs hereon.”

In passing upon this motion the learned court 'nisi made a special finding of facts which will serve to make clear the ruling facts of the case. This special finding of facts is as follows:

“1. That Richard IT. Field is and was the owner of the land described in his motion filed in this canse to’ quash the execution issued herein.
“2. That on July 12, 1913, the clerk of the circuit court of Jackson. County, Missouri, issued and delivered to the sheriff of said county an execution of that date on the judgment of this court in this case, dated and rendered June 19, 1900, for $92.83, against the said described real estate, and also for other sums against other lots and parcels of real estate in said city, described in said execution, in which said Richard H. Field was and is in no wise interested or concerned.
“3. That said execution was issued after the expiration of ten years from June 19, 1900, the date of the original rendition of said judgment, and that said judg.ment had not been revived, and that no payment had been made on said judgment against the said described real estate of Richard IT. Field at any time within ten years before July 12, 1913, the date of said execution.
" 4. The court further finds that this cause was appealed by certain parties to the Supreme Court of Missouri, which court affirmed the judgment of the circuit court on June 30, 1903, and the mandate of the said Supreme Court, dated July 11, 1903, was filed with the clerk of the circuit court of Jackson County, Missouri, at Kansas City, Missouri, on July 13, 1903.
“Thereupon, the court being fully advised in the premises, overrules the said motion of Richard H. Field, to which ruling of the court the said Richard H. Field excepts.”

If facts in additipn to the above are found necessary to make clear what we find It necessary to say, we ■will set them out in the opinion, infra.

I. The briefs are able and extremely voluminous, covering not only the points which seem to control the case, but also many interesting points afield. However, the two points, decision of which seems se^e the case, are these: (a) Does the general Statute of Limitations so far bar a judgment such as that here as to forbid after ten years the issuance of an execution thereon, and (b) did the appeal of Catherine Mulkey have the effect to extend the time, or toll the statute for the period that such appeal was pending here? For convenience we sometimes refer to section 1912, infra, as a Statute of Limitations. Whether it be so, or merely the concrete statement of a rule of evidence, we do not decide.

That an execution may not issue upon an ordinary judgment after ten years, is well-settled. For the following statute so ordains, to-wit:

“Every judgment, order or decree of any court of record of the United States, or of this or any other State, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from .the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.” [Sec. 1912, R. S. 1909.]

Another general statute cited and urged by movant as apposite, reads thus:

“Executions may issue upon a judgment at any time within ten years after the rendition of such judgment.” [Sec. 2133, R. S. 1909.]

It is urged by respondent, however, that neither of the above statutes is applicable, but that the matter is controlled by an alleged applicable provision of the charter of Kansas City, which in full reads thus:

“After the judgment of confirmation of such verdict and proceedings, the clerk of said court shall certify under the seal of said court, to two copies of said verdict, one of which copies he shall deliver to the city treasurer and one to the city auditor, and said assessments for benefits, if any, against private property shall be a lien from the date of the taking effect of the ordinance in pursuance of which said assessments are made and said proceedings instituted, and shall attach to' the several lots or parcels of land so assessed with benefits as aforesaid; and said lien shall continue against each lot or parcel assessed until the assessment against such lot or parcel has been paid or collected in full, both principal and interest. No assessment shall be defeated or affected by any irregularity affecting any other assessment -or from the rendering of any other assessment invalid in whole or in part.” [Sec. 20, art. 10, Charter 1898, Kansas City.] (We have italicised the particular part of the section supra upon which respondent relies.)

Does this charter provision so far control as that execution may issue after ten years'? Passing for the present the obvious query whether the language of the charter quoted supra carries, inevitably, the meaning which respondent puts on it, we do not think the provision even as construed by respondent has the effect claimed for it. It is self-evident that since Kansas City is in Jackson County and t-herefore an integral component of the State of Missouri, the general laws of the State run there and will control unless the Constitution, or other laws passed pursuant thereto, have abdicated this right of control. If this right of control has been delegated it comes from the below quoted pertinent provisions of pur statutes. Appositely pertinent parts of section 9703, following the Gonstitutioñ itself (Constitution, sec. 16, art. 9.), provide:

“Any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State, by causing a board of thirteen free-holders, who shall have been for at least five years qualified voters thereof, to be elected by the qualified voters of such city at any general or special election, which board shall, within ninety days after such election, return to the chief magistrate of such city a draft of such charter signed by the members of such board, or a majority of them; . , . but such charter shall always be in harmony with and subject to the Constitution and laws of the State.”

By the next following section it is provided that after the adoption and ratification thereof such charter “shall be and constitute the entire organic law of such city and shall supersede all laws of this State then in force in terms governing or appertaining to cities having one hundred thousand inhabitants or more.” [Sec. 9704, R. S. 1909.]

It will be noted that the Legislature exercised a large degree of care and caution in providing precisely what laws should be superseded upon the adoption of a charter by a city authorized to do so. Such super-session is expressly limited to such laws as “in terms,” that is, specifically, “govern and appertain to cities having one hundred thousand inhabitants or more.” But we have had in many cases to construe how far this provision of the statute superseded laws of the State or municipality which would otherwise govern and control. [McGhee v. Walsh, 249 Mo. l. c. 280; Mullins v. Kansas City, 268 Mo. 444.] In the case of McGhee v. Walsh, supra, this Court in Banc said,:

“The city, of Kansas City is organized under a special charter pursuant to the provisions contained in the organic law (Sec. 16, art. 9, Constitution), and the statutory authority conferred by an act of the General Assembly, approved March 10, 1887 (Laws 1887, pp. 42-51), . and divers amendments thereto, subsequently passed. The charter under which this city is now working, was adopted and went into effect September 4, 1908. By the statute such charter when it went into effect automatically superseded the statutory provisions for the government of cities of the class into which by its population the Legislature had placed Kansas City (Sec. 6360, R. S. 1899); subject, however, to the limitation, that the provisions of such charter should be in harmony with the Constitution and laws of the State. [See. 6359, R. S. 1899.] That such is the legal effect of the adoption of such a charter, aside from the statute (which is lucid and clear), has been judicially determined by this court in several cases which came before us. [Kansas City v. Marsh Oil Co., 140 Mo. l. c. 471; St. Louis v. DeLassus, 205 Mo. l. c. 585; St. Louis v. Liessing, 190 Mo. l. c. 480.]”

Likewise in the Mullins case, supra, this division said: “It will be noted that the latter section does not say that such charter shall supersede all laws of this State. and stop there, but it modifies and limits the laws so superseded thereby as laws then in force in terms governing cities having 100,000 inhabitants or more. In short, the limitation of said section is as to a particular sort of laws, not general, but such as govern and appertain to cities having 100,000 inhabitants or more. But that is not all of the indicia which point to the meaning and proper construction of said section 9704. The latter section limits the laws which the charter supersedes to the entire organic law of such city. We know that, under our system and manner of speaking in this State, we apply the term ‘organic law’ of the cities of the several classes to the articles and chapters of the statutory laws which govern and regulate the several classes of cities, towns and villages; -that in a way such articles and chapters delimit and fix the powers of such cities, towns, and villages in a manner similar to that in which the Constitution of the State sets bounds to the powers of the three co-ordinate branches of State g'overnment. Nor is this all; there is, as we view it and construe it, an express exception to the pow*u conferred on such cities to frame a charter. This exception is that the provisions of such charter shall be ‘subject to the Constitution and laws of this State,’ and consistent therewith. [See. 9703, R. S. 1909.] This provision and limitation refers to all laws of the State, except those then in force in terms governing and appertaining to cities having 100,000 inhabitants or more.”

In the light of the provisions of our statute, which permits the issuance of an execution at any time within ten years after the rendition of a judgment (Sec. 2133), and of that which forbids the issuance after ten years of any execution upon any judgment, order or decree of any court of record (Sec. 1912, supra), we do not think there can be any doubt that the execution issued below in the instant case ought to have been quashed. [Eyssell v. St. Louis, 168 Mo. 607; St. Louis v. Annex Realty Co., 175 Mo. 63.]

Many cases are cited to us why this view should not be taken, but these cases but follow the fairly ancient ease of State ex rel v. Field, 99 Mo. l. c. 356, wherein it was ruled that the “matter of assessing damaged and benefits for grading and regrading streets náturally falls within the domain of municipal government,” and that a general law relating to municipal affairs may be in effect repealed by the adoption of a charter. To this aggregate of charter powers which fall naturally into the domain of municipal government may be added the method of “collecting the cost of street improvements.” [Murnane v. St. Louis, 123 Mo. 479; Kansas City v. Marsh Oil Co., 140 Mo. 458; Kansas City ex rel. v. Scarritt, 127 Mo. 642; Kansas City v. Ward, 134 Mo. 172; St. Louis v. Dorr, 145 Mo. 466; Kansas City v. Bacon, 147 Mo. 259.] In the case of Kansas City v. Marsh Oil Co., supra, at page 471, the general rule by which we may distinguish matters of purely municipal control from matters affecting the fixed general policy of the State, is thus laid down:

“So long as Kansas City, under its special charter, does not invade the province of general legislation, or attempt to change the policy of the State as declared in her laws for the people at large, it will not be held to be out of harmony with such laws, notwithstanding the provisions of the special charter may be different from the general statutes prescribed for the government of other cities in their local affairs.”

"We think it is so clear as to render exposition unnecessary, beyond the mere statement of the proposition,-that the question whether an execution can be issued upon an unrevived judgment after ten years, is one pertaining to the general laws and policy of the State, and not a question relating strictly to municipal affairs. It may be that some other method of collecting ah assessment of the character here confronting u§ (St. Louis v. Brinkwirth, 204 Mo. 280) could have been devised, and thus have rendered a judgment upon the real property unnecessary. With that question we are not here concerned. Appellant does not question the -inherent validity of the judgment; neither will we do so.' The city saw fit to provide for a judgment of a court of record of general jurisdiction. That judgment became, so far as the point before us is concerned, like any other judgment, and execution thereon must follow the course of any other execution. If the issuance of an execution can be delayed for thirteen years, it can be delayed for thirty years, or three hundred years, which would be onerous in the case of the instant judgment which bears interest at thé rate of fifteen per cent per annum. Granting for argument’s sake the point which we do not meet here, and do not decide, that a necessity, rationally explainable, exists for the continuance of a lien beyond the general statutory limit, no reason can be seen for delaying the issuance of an execution for more than ten years. With such a rule differing so vitally and radically from the rule elsewhere in the State, and elsewhere in Jackson County even, no man could buy or sell real estate, nor could any lawyer pass upon title to real estate, with either satisfaction or certainty. Such a holding would result in the digging of pits for the feet of the unwary. The laws of the State announcing the general policy of the State create a conclusive presumption of payment of a judgment after the expiration of ten years, and forbid the issuance of an execution upon such an ancient judgment after that period has elapsed (Sec. 1912, supra) and since such a matter is not necessarily one of strictly municipal concern, no city has the right to adopt a charter or pass an ordinance in contravention of a plain statute announcing that policy.

The provision that fifteen per cent, interest may be charged upon such a judgment as a penalty — by analogy upheld for reasons that arguendo seem sufficient (Brunn v. Kansas City, 216 Mo. 108) — would or easily might, in a case like this, prove confiscatory. The judgment in the instant ease' has trebled, and -is fast quadrupling.

We have approached the question from the point of view of respondent, contradicted by appellant most strenuously, that the quoted italicised part of section 20 of article 10 of the Kansas City Charter is in fact in contravention of the general statutes of the State. Counsel for appellant, as we understand them, urge that it is not opposed to, but in harmony with, the general laws. If it is not there is not and has not been any question before us, and the execution ought to be quashed for that reason, in addition to the one we have found ample to this end.

II. Which conclusion brings us to a consideration whether section 1912 is tolled by the fact of hn appeal, wherein, and in final result, the judgment appealed from is affirmed. The language of the statute under discussion is that the period of ten years is to be counted “from the date of the original rendition” of such judgment, and that’ from and after the expiration of such period no execution may issue thereon. If the word “original” had not been used, there might be some doubt about the matter. For without this word a debatable question can be mooted as to time of the rendition of ■ a judgment when such judgment is appealed from, but from the use of the word original we have no great difficulty in concluding that no execution may issue upon an unrevived judgment, if ten years has elapsed from the date of the rendition of such judgment by the circuit court, regardless of whether such judgment was appealed from or not. [George v. Middough,. 62 Mo. 549; Smith v. Steel, 81 Mo. 455; Mullen v. Hewitt, 103 Mo. 639.] This view is not only according to the letter of the statute, but follows the reason of the thing as illuminated by analogy. For an appeal does not stay a judgment, or stay the issuance of an execution thereon. It is the supersedeas statute which, upon condition, stays a judgment pending an appeal upon the appellant’s making and filing bond of the requisite sort and sum. If a judgment be not suspended or stayed by a supersedeas bond, it continues, pending an appeal, in full force and vigor. If it be not in fact rendered till an appeal is finally determined, it would be difficult to explain satisfactorily why execution pending appeal can be bottomed on a judgment which has never been rendered. Moreover, such a view, the indefinite delays incident for one or another reason upon an appeal regarded, would have the effect upon respondent’s view being taken, to make some judgments continue in force without being revived, for eleven years; while others would be good for fifteen years or more. We conclude that a judgment expires by limitation, caeteris paribus, in ten years after it is rendered in the circuit court, whether such judgment be appealed from or not.

In passing- we may say that upon no view can it be maintained in the instant case that the statute had not so far run as to forbid the issuing of an execution here. For the judgment nisi in the instant case was affirmed here on the 30th day of June, 1903, but the execution here sought to be quashed did not issue till July 12, 1913, ten years and twelve days thereafter. So- upon any view, the contention of respondent that ten years had not. elapsed between the rendition of the judgment and the issuance of the execution under fire, must be overruled.

It results that this case must be reversed and remanded with directions to the circuit, court to sustain the motion to quash the execution. Let this be done.

All concur.


source: Caselaw Access Project

author: ROY, C. PER CURIAM:

license: Public Domain

text:
    CATHERINE GUNN v. UNITED RAILWAYS COMPANY, Appellant.
    Division Two,
    March 30, 1917.
    1. NEGLIGENCE: Boarding Moving Car: Contributory Negligence Per Se. There is no cause of action against the carrier in favor of one who is injured as a result of his attempt to board a moving car if the carrier is guilty of no act of negligence beyond the mere fact that the car is moving at the time. In such case the person who attempts to board a car while- it is in motion assumes the risk of injury from the ordinary movements of the car, but is not chargeable with negligence per se.

    2. -: -: After Slowing Down: Premature Start: Mental Excitement. If a person, desiring to board a street car which merely slows down without stopping at the proper place or starts prematurely after having stopped, is laboring under great mental excitement, caused by facts which make it especially desirable and necessary to board the car at that place and such excitement is great enough to deprive him of the power to safely judge the dangers of the situation, and if the agents of the carrier know or under the circumstances are bound to be aware of such conditions of excitement, the carrier’s failure to stop the car or to hold it a reasonable length of time is negligence, and the risk of injury from boarding the moving car is not assumed by such person; but .if ■ he is not laboring under such excitement, and is not directed by the carrier’s agent to enter, he cannot recover for injuries caused by ordinary movements of the car.

      3. -: -: When Plaintiff May Recover. A person seeking to recover damages for injuries received while boarding or leaving a moving street car, must show that the carrier caused him to be put in a dilemma, such as to cause excitement of mind rendering him for the moment unable to properly choose between two courses of action, or that the carrier’s agents made some order, request or direction that he board or leave the car, or that there was some sudden shock or acceleration of speed of the car while he was getting on or off; or some defect in the car which increased the danger, or some other facts showing negligence of the carrier other than the mere fact that the car was in motion when he made the attempt to board or leave it.
    4. -: -: -: No Contributory Negligence. A person not under unusual excitement who attempts without invitation to board a moving street car after it has started in ordinary movement, cannot recover for injuries so received, regardless of the question of whether he was himself guilty of negligence, even though the car after having been stopped was started without giving him'reasonable time to board it.
    5. -: —--: Act of Entering: When a Passenger: Instruction. One who has hold of the rail or has a foot on the step for the purpose of entering is in the act of entering the car. Nor is it the law that in all cases a person must have hold of the rail or have a foot on the step in order to be in the act of entering. If he intends to take passage on a street car and has hailed it for that purpose, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to step upon the platform. So the carrier is not entitled to an instruction telling the jury that if when plaintiff took hold of the hand rail the car was moving, he cannot recover.
    Appeal from St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge.
    Reversed and remanded.

      Boyle & Priest, R. E. Blodgett and Elmer C. Adkins for appellant.

      Vincent McShane, John J. O’Brien and John M. Goodwin for respondent.
   ROY, C.

— Plaintiff recovered judgment for $3500 as damages for personal injuries. The defendant appealed to the St. Louis Court of Appeals where the judgment was affirmed. Reynolds, P. J., filed a dis-seating opinion in which, he held that the majority opinion was contrary to the decision of this court in Peck v. St. Louis Transit Company, 178 Mo. 617, and the appeal was accordingly certified to this court. The opinions filed in the St. Louis Court of Appeals are reported in 177 Mo. App. 512, and in 160 S. W. 540.

The petition charges the defendant’s negligence and the infliction of injuries thus:

“That on or about May 16, 1910, the plaintiff signaled the motorman in charge of one of defendant’s cars, running north on Seventh Street, to stop said car at the north side of Morgan Street, where said Morgan Street intersects with Seventh Street, for the purpose of enabling her to board said car and become a passenger thereon, and that said motorman did stop said ear at said point. That while said car was so stopped, plaintiff, with due care and caution on her part, started to get on the same, and that while the plaintiff was so engaged, defendant through its agents and servants did, before plaintiff had a reasonable time in which to get safely on said ear, negligently and carelessly start said car, thereby hurling and throwing plaintiff backwards, with great force and violence, and dragging her, causing the injuries herein complained of.
“And for further allegation of negligence, plaintiff says that defendant, through its agents and servants, negligently and carelessly failed to allow plaintiff a reasonable time to get safely on said car, before starting it, and said defendant through its agents and servants, negligently and recklessly started said car, while plaintiff was with due care and caution on her part in the act of getting on same, thereby violently throwing her backward and dragging her, causing the injures hereinafter set out.”

The answer contains a general denial, and the following :

“Further answering, this defendant says that whatever injuries, if any, plaintiff may have sustained were caused by her own carelessness and negligence.”

The reply is a general denial.

The plaintiff testified that she lived with her husband and five children; that on the day of the injury she was within two months of her confinement; that she had'been shopping and was going home a quarter after one o’clock with her purchases in a basket; that the car stopped in response to her signal; that she had hold of the rail with her left hand, and had her right foot on the step, when the car started before she could get aboard; that she was dragged, and that some men held her on the car. ■ She testified to serious injuries which she received, and which need not be here stated.

John C. Heman, a witness for plaintiff, testified:

“Q. You 'were on that car? A. Yes, sir.
“Q. Just tell the court and jury what you saw, Mr. Heman? A. Why, I was standing on the back platform leaning up against the back end of the car, and the conductor was up in the front end of the car, and this car started off with a rush, and this lady, she was just about to step on the car, but the car had started,. and she held it and run along with the car, and with that somebody pulled the signal rope and stopped the car. The car run probably about twenty feet, and she kind of fell back in on the step of the car, and there was another gentleman standing beside of me jumped over and reached with his arm and caught her before she fell. With that the car stopped and she straightened up and walked over to the sidewalk and stood there.
“Q. During the time this car started forward with a rush one of her feet was on the ground? A. I think that both of her feet was on the. ground and she was run along with the car, that is the best of my recollection.
Cross Examination.
“Q. You say you were on the back platform? A. Yes, sir.
“Q. You saw this woman when she came to walk 'out and take this car? A. Yes, sir.
“Q. When she got hold of the upright rod the car was already in motion? A. I think the car was in motion, I am almost positive it was in motion, when she grabbed for it, she had a bundle, she swung around the rail, and she stepped back just before the car stopped, a gentleman grabbed her and helped her on.
“Q. The car stopped within fifteen or twenty feet, and after that she walked over to the sidewalk? A. Yes, sir.
“Q. Was she dragged? ’ A. No, she was not.
“By Mr. Groodwin:
“Q. Did the car stop at the corner to take on passengers? A. Yes, sir.
“Q. While it stopped there she came up and started to get on? A. Yes, sir.
“By the court:
“Q. Had any other passenger got on the car there? A. No, I think she was the only passenger.
“Q. And the car stopped there?. A. The ■ ear. stopped, yes, and it started off with a sudden jerk, just about the time she reached for the rail, but she grabbed it, held on to it, and the car started off with a rush, and probably went some fifteen or twenty feet and the conductor was inside and somebody pulled the bell cord and it stopped very sudden.” Paul Werner was on the car at the time. He testified for the defendant thus:
“Q. Where were you standing on that car? A. On the rear end of the rear platform.
“Q. Will you state just what happened there? A. The car down at Seventh and Morgan, if I am not mistaken, the car came to a • stop, there was a lady, she was on the sidewalk, and the car came to, she was already stopped, and I don’t know ’ exactly if there was anybody got off or on, but the car, I seen her coming over to the ear, but then I heard the bell going, I thought the way she. tried to go ou the car, of course she 'couldn’t go nowhere else, I thought by her expression, I thought she was coming to the car, I thought something would happen, I reached over with rgy hand, at that time the car already commenced to start, then she tried to put her foot on, I seen she couldn’t hold herself on account she had so many bundles, I reached over and held her, the car stopped right there, if it was 20 or 50 or 100 feet I don’t know.
“Q. Was this car in motion or stopped when she caught hold of the car? A. She was in motion.
“Q. The car was in motion, A. Yes, sir.
“Q. She didn’t fall? A. No, she didn’t fall, she could not fall, I held her.”

On cross-examination the following occurred:

“Q. She was, in your judgment, at the time you first saw her, closer to the edge of- the sidewalk than she was to the car? A. Yes, sir.
“Q. And she walked up and the car started out and she ran and grabbed the car while it was moving, is that it? A. She was pretty close to the car, the bell had already rung, but he did’nt start right off when I heard the bell ring, when I seen her she had a little quicker march on her than when she came towards the car, and I thought right away something would happen, the car had already moved and then she grabbed and I grabbed her with my arm and she could’nt fall then.
“Q. The reason-she couldn’t fall was she had one foot on the running board, on the first step, when you grabbed hold of her? A. No, she grabbed to step on and at the same minute she stepped on I grabbed her.
“Q. Then as she put her foot on the lower step you grabbed her? A. I grabbed her.
“By Mr. Goodwin:
“Q. Now, when you saw her reach for the car you knew a bell had been given and that there would likely be danger? A. Yes, sir.
“By the Court:
“Q. Did you say anything? A. No, sir; I never spoke to her.
“Q: Didn’t speak to her at all? A. Except to holler to her to look out, when she came, when 1 seen her grab for the-rail.
“Q. Then you did holler to her? A. Yes, sir.; yes, sir; and at the same time I grabbed her, she had bundles in her arms and she couldn’t—
“Q. You yelled “ Look out” after she had hold of the car? A. Yes, sir.
“Q. You yelled “ Look out” after she had hold of the car? A. No, no, when she tried to reach for it,. I seen her reaching for it, but the car just started, and then the car went, and then she must have stepped on with one foot, I lifted her right clean up, I knew she would have fallen if I did not hold her.
“Q. How far did the car run? A. I don’t know, maybe twenty, maybe thirty, maybe forty feet.
“Q. Maybe thirty feet? A. Yes, sir.
“Q. "Was she dragged, was her other foot on the ground? A. No, she couldn’t be dragging, because I was holding her, it was impossible, I would have been dragging too.”

No instructions were asked ■ by plaintiff and no fault is found with those given by the court of its own motion. The court refused Instruction No. 5 asked by defendant, but gave it with modifications. That instruction, with the modifications shown in italics, reads thus:

“The court instructs the jury that if you find and believe from the evidence that the plaintiff attempted to board a car while said car was in motion, and that such act of plaintiff was negligence, and that the same contributed to her injury, then she cannot recover and your verdict must be for the defendant.”

Defendant’s Instruction No. 1 was refused. It reads:

“The court instructs the jury that if you find and believe from the evidence that at the time the plaintiff took hold of the rail of the car, said car was moving, then plaintiff cannot recover and your verdict must be for the defendant.”

I. There is a,consensus of opinion of the courts of the country in support of the general rule that there is no cause of action against the carrier in favor of one who is injured as a result of his boarding or leaving a moving car where no act of negligence of the carrier is shown beyond the mere fact that the car was so moving at the time. gGme- Gf the courts hold that such an act is negligence per se, while others hold that

though getting on or off a slowly moving car is not negligence per §e, yet the passenger assumes all risk in so doing. They all agree that there can be no recovery. We cite Haldan v. Great Western Ry. Co., 30 U. C. C. P. (Canada) 89; Browne v. Railroad, 108 N. C. 34; Hunter v. Railroad, 126 N. Y. 18; Tobin v. Railroad, 211 Pa. St. 457; Damont v. Railroad, 9 La. Ann. 441; Gavett v. Railroad, 82 Mass. 501; Lauterer v. Manhattan Ry. Co., 63 C. C. A. 38; Murphy v. Railroad, 71 N. J. L. 5; Ricks v. Railway Co., 118 Ga. 259; Denver, S. P. & P. R. R. Co. v. Pickard, 8 Colo. 163; Weber v. Railroad, 104 La. 367; Kelly v. Railroad, 70 Mo. l. c. 609; Schepers v. Railroad, 126 Mo. l. c. 676.

1 Nellis on Street Railways (2 Ed.), sec. 301, says:

“It is not sufficient proof of the carrier’s negligence merely to show that one attempting to board a street railroad car while barely moving as it reached the street crossing was thrown to the ground and injured. If, however, the car was started with a sudden jerk while the passenger was in the act of boarding, such added circumstances would.be sufficient to take the case to the jury.”

Booth on Street Railways, sec. 336, says:’

“Although the act of hoarding a car while in motion is always attended with some risks, the rules applicable to persons entering cars operated by steam are not ijsually applied with the same strictness to street railways. It is the general rule, established by numerous decisions, that if a person, who has the free use of his faculties and limbs, has given proper. notice of his desire to he taken on, and the speed of the car has been slackened in the usual manner, it is not negligence per se to attempt to get on while it is moving slowly, and that if a passenger is injured under such circumstances the question of his contributory negligence is ordinarily one of fact for the jury. So when a car has been derailed and passengers, who have alighted, attempt to hoard while it is starting slowly, and are thrown off by a sudden jerk, or where the driver fails to stop for a boy who hails him, but tells him to jump on, and in attempting to do so the hoy falls and is injured. But one who attempts to hoard a car while it is in motion does so at his own risk as to all ordinary movements of the ear* and as to the presence of dangerous obstacles near the track.”

This court in Schepers v. Union Depot Railroad Co., 126 Mo. 665, cited the last above mentioned authority, and said: “The person making the attempt could only be held to assume the risk of injury from the ordinary movements of the car.”

In Neville v. Railway Co., 158 Mo. 293, l. c. 316, it was said, “he would take the risk of alighting if the train was in motion.”

II. The question arises as to what are the rights of the person desiring to get on or off the car if such ear merely slows down without stopping at the proper place, or starts prematurely after having stopped. If such person is laboring under some great and unusual mental excitement caused by facts which make it especially desirable or necessary to board or leave such car at that time and place, and such excitement is great enough to deprive such person of the power to safely judge the dangers of the situation, and if the agents of the carrier know, or, under the circumstances are bound to he aware of such condition of excitement, then the failure of the carrier to stop the car or to hold it a reasonable length of' time is negligence, and the risk is not assumed by the person who may be injured. The first case in this court involving this general subjéct is Loyd v. Railroad, 53 Mo. 509, where it was said:

“Whilst it may be the law, that a passenger, who jumps from a train when in motion, takes the risk of injury to life or limb, it does not follow that the plaintiff in this case could be expected, whilst standing on the steps of the car, and after her child three years old had been lifted out, to have the presence of mind to deliberate on the propriety of following her child although the train immediately commenced to move, nor had she time to reflect on the danger of a straightforward movement at right angles to the train, instead of inclining in the direction the train was moving.
“The fact appears in evidence, that the train was behind time and that it did not stop a minute. All the witnesses compute the time by seconds.”

In Solomon v. Manhattan Ry. Co., 103 N. Y. 437, it was said:

“It "is, we think, the general rule of law, established by the decisions in this and other states, as claimed by the learned counsel for the respondent, that the boarding or alighting from a moving train is presumably and generally a negligent act per se, and that in order to rebut this presumption and justify a recovery for an injury sustained in getting on or off a moving train, it must appear that the passenger was, by the act of the defendant, put to an election between alternative dangers, or that something was done or said, or that some direction was given to the passenger by those in charge of the train, or some situation created, which interfered to some extent with his free agency, and was calculated to divert his attention from the danger, and create a confidence that the attempt could he made in safety.”

It was there also said:

“In boarding a moving train there is generally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens in the former case. He may be compelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard.”

It will be noticed that the courts of New York proceed on the theory that getting on or off a moving car is negligence per se, which is contrary to the rule followed by this court; yet we say that the person so doing assumes the risk of the ordinary movements of the car. In both cases an exception is made in favor of the person who is under temporary excitement as above mentioned. [See also Newmark v. Railroad, 111 N. Y. Supp. 379; Johnson v. Railroad, 70 Pa. 357; Gavett v. Railroad, 82 Mass. 501, l. c. 507; Cousins v. Railroad, 96 Mich. 386.]

III. Sometimes the order, direction or request of persons in charge of the car for persons to enter or leave the ear will absolve such persons 'from the charge of negligence or assumption of risk. [3 Michie on Carriers, sec. 2821; Newmark v. Railroad, 111 N. Y. Supp. 379; Railroad v. Gore, 96 Ill. App. 553; Pence v. Wabash Ry. Co., 116 Iowa, 279; Wyatt v. Railway Co., 62 Mo. 408; Kelly v. Railroad, 70 Mo. 604; Fulks v. Railroad, 111 Mo. 335.]

IY. When a car fails to stop, or, having done so, starts prematurely, a person desiring to board or leave the car may refrain from doing so and sue for damages for the inconvenience and loss thus suffered; but if he chooses to get on or off such moving car, and is not laboring under such excitement as above mentioned, and is not directed by the carrier’s agent to so act, he cannot recover for injuries which he may receive caused by the- ordinary movement of the car. [Railroad v. Aspell, 23 Pa. St. 147; Ginnon v. Railroad, 3 Rob. (N. Y. Superior) 25; Kelly v. Railroad, 70 Mo. 604.] In South Chicago City Ry. Co. v. Dufresne, 200 Ill. 456, it was said:

“There were three counts, in the declaration. The supposed negligence alleged in the first count was, that the defendant did not stop the car after the plaintiff had given notice of his intention to take passage, in consequence of which, while he was attempting to take passage, he was thrown to the .ground. The second count alleged that defendant brought the car to a partial stop to allow plaintiff to take passage, and while he was attempting to secure a seat on the car increased the speed of the car with a sudden start or jerk, throwing him off. The third count alleged that the defendant stopped the car, and while plaintiff was attempting to secure a seat started it in a violent and sudden manner, by which he was thrown down. The first count did not state a cause of action for plaintiff’s injury. If a refusal to stop cars on notice would give rise to a cause of action, it would necessarily be for damages resulting from the refusal to stop, which might consist of delay or loss of time, but the refusal to stop and accept him as a passenger would not be the proximate cause of the injury alleged.”

That is the only case we have been able to find in which counsel for plaintiff ventured to state his case as in the first count of that petition. The. ruling of the court that such count did not state a cause of action was in accordance with the general rule of non-liability stated in the beginning of this opinion.

We make bold to assert, after a rather diligent search of the authorities, that we have found no case denying that general rule, though we háve found cases where it was involved but overlooked. It necessarily follows that a person seeking to recover damages for injuries received while boarding or leaving a moving car, must show that the defendant caused the plaintiff to be put in a dilemma, such as to cause excitement of mind rendering him for the moment unable to properly choose between two courses of action, or there must be some order, request or direction by defendant’s agents that the person shall board or leave the car, or some sudden shock or acceleration of the speed of the car while the person is getting off or on, or some defect in the car, or some other facts showing negligence of the defendant other than the mere fact that the car was in motion when the attempt was made.

If the petition in this case had merely alleged that the car stopped in response to plaintiff’s signal, that it was then negligently started by defendant before plaintiff had reasonable time to get on it, and that plaintiff after it had started, attempted to get aboard the moving car and was injured by reason of the fact that the car was so moving, it would fail to state a cause of action. The general rule above stated would make it bad on demurrer. It is true that in such case there would be no presumption of negligence per se on the part of plaintiff, but it is also true that plaintiff must be held to have assumed the risk of danger in such a case. The mere absence of contributory negligence on plaintiff’s part will not supply the lack of evidence of liability on the part of 'the defendant.

It will be noticed that, for the purposes of this case, we make no difference between an injury received in getting off a car and one received in getting on it. Such being the ease, the petition in Ridenhour v. Railway Co., 102 Mo. 270, was exactly like this. It charged that the injury was caused by putting in motion a ear which was “stopped.” So does the petition now in hand. But the similarity of the two' cases ends with the pleadings. The evidence in the former casé is radically different from what it is here. It showed in that case that the injury occurred from the sudden jerk or acceleration of the speed of a slowly moving car from which the plaintiff was alighting as it was moving. While the opinion in that case does not state it in so many words the plain meaning of it is, that if the motion of the slowly moving car from which the plaintiff was alighting was suddenly accelerated, thereby causing the injury, the variance between the allegation that the car was stopped and the proof that it was slowly' moving was not a fatal variance. The “jerk” of the car caused the injury regardless of whether the car was stopped or slowly moving at the time the jerk occurred. But it is not so here. The evidence of plaintiff supported the charge of the petition that the car was stopped, and that as she was boarding it it was started again without'giving her time to get on safely. That evidence was properly submitted to. the jury. But that was all the evidence there is of any actionable negligence on the part of defendant. There is no evidence that the car started and while plaintiff was boarding it as it moved there was a sudden jerk or acceleration of speed. There is no evidence that plaintiff was laboring under unusual excitement as above mentioned, nor that she was directed by defendant’s agents to board the moving car, nor that there was any defect in the car. Though the defendant may have negligently started the car without giving plaintiff reasonable time to board it, if such starting was before plaintiff was in the act of attempting to get on the car without giving plaintiff reasonable time to board it, she, by attempting to get on such moving car, assumed all risk from the ordinary movement of it.

It must follow from what has been said that the defendant’s Instruction Number Five should have been given as asked. If she attempted to board the car after it started she can not recover, regardless of the question whether she was guilty of negligence'. The mere absence- of- contributory negligence on her part does not give her a cause of action against the defendant in the absence of evidence showing liability on its part.

The cases of Peck v. Transit Co., 178 Mo. 617, and Northam v. United Rys. Co., 176 S. W. Rep. 227, are like this case as to the pleadings and evidence. In both those cases an instruction the same in substance as instruction 5 as asked by the defendant herein before its modification by the trial court, was approved. That instruction in both those- cases simply said that if the plaintiff attempted to board (or leave, in the Peck case) the car after the ear had started, the plaintiff could not recover. We will not review or discuss those, cases, except to say that they were both properly decided. . They overlook the general rule stated in the beginning of this opinion, but they do not oppose it and reach the same result as that required by such rules.

Y. We concur in that part of the majority opinion of the Court of Appeals herein which holds that Instruction Number 1 asked by defendant was properly refused. There are many cases which bold -¿bat one ^bo bas hold of the rail or has a foot on the step for the purpose of entering the car is in the act of entering. But we know of no case holding that in all cases a person must have hold of the rail or have a foot on the step. Booth on Street Railways, page 530, says:

“Where a person intends to take passage on a street car and has hailed it for that purpose, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to step upon the platform. ’ ’

In support of the text the author there cites Smith v. St. Paul City Ry. Co., 32 Minn. 1, where an instruction was approved which said:

“If the plaintiff was not actually on the platform, but had hailed the car, and the car had stopped for the purpose of enabling him to take passage, and he was in the act of carefully and prudently attempting to step upon the platform, he is to be regarded as a passenger. ’ ’

Undoubtedly the would-be passenger must be in the act of boarding or attempting to board the car as distinguished from merely approaching it for the purpose of making such attempt. Under all the facts shown in evidence the defendant was not entitled to that instruction.

The judgment is reversed and the cause is remanded for a new trial.

White, C., not sitting.

PER CURIAM:

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

All the judges concur.


author: WOODSON, J.

text:
    THE STATE ex rel. AMERICAN MANUFACTURING COMPANY v. THOMAS L. ANDERSON, Judge.
    In Banc,
    April 9, 1917.
    1. CIRCUIT COURT: Power to Order Examination of Premises for Evidence. The circuit courts of Missouri are cour.ts of original and general jurisdiction, possessing practically the same powers as nisi prius courts in England, among which.was the power to permit plaintiff and his counsel, in a civil suit against a corporation, to visit defendant’s manufacturing plant, and enter upon its premises, with experts and photographers, for the purpose of inspecting and measuring the same, and making drawings and taking photographs to be used as evidence in the trial of said action; and such power was not taken away by the constitutional provisions against unreasonable .search and seizure, nor is a legislative statute necessary to the exercise of such power by the court.
    2. -: -: Invasion of Property Eights: Similar to Examination by Physicians. The power of the court to permit plaintiff, in a personal injury action based on a charge of an unsafe place in which to work or unsafe tools, to visit the factory of the company causing the injury, with proper p.ersons and on a pro'per occasion, for the purpose of obtaining photographs or drawings to be used in the trial of the case, is based on the power of the court to know the facts which determine the plaintiff’s right to recover and defendant’s liability, and if reasonably exercised is not an invasion of property rights, but is similar to the power of the court to cpmpel the plaintiff suing for personal injuries to submit to an examina-. . tion by physicians appointed by the court, and for a stronger reason should be upheld, since personal rights are superior to property rights, and their violation a more serious matter.
    3. -: -: Based Upon Inherent Relationship of Employment. Since the law requires the employer to furnish his employees a reasonably safe place in which and reasonably safe appliances with which to work, and a violation of either duty is a basis for a legal action for damages for personal injury to the employee, the law must either impose an implied agreement upon the employer, arising out of the contractual relation, that the employee, in case of injuries due to failure to provide such' safety, shall have the right, at a proper time, in a reasonable manner and in company with prop- . er persons, to visit and inspect such place and appliances, in order that they may testify as to-their condition, or the law should expressly impose upon the employer the duty to expose to the injured employee and his experts, at a proper time and in a reasonable manner, the place where and the tools by which he was injured.
    Prohibition.
    Writ denied.

      Percy Werner for relator.
    (1) The only provision in our Code of Procedure, conferring any authority upon our circuit courts similar to that attempted to be exercised here, is Sec. 1944, R. S. 1909, which reads: “Every' court or judge thereof shall have power to compel any party to a suit, pending therein to produce any books, papers and documents in his possession or power, relating to the merits of any such suit, or of any defense therein.” If the order of the court in the instant case g’oes further than this provision of our code, it is inconsistent with the code and the court exceeded its powers in making it. Expressio unius, exclusio yMerius. Cook v. Mfg., 29 Hun, 641; Ansen v. Tuska, 24 N. Y. Sup. Ct. 663; Kennedy v. Nichols, 68 N. Y. S. 1053; Auerbach v. Railroad, 73 N. Y. S. 118; Sutter v. City of New York, 85 N. Y. S. 990'; Pina Mayo-Sisal Co. v. Mfg. Co., 105 N. Y. S. 482; Wilson v. Collins, 109 N. T. S. 660; Danahy v. Kellogg, 126 N. Y. S. 444; Beyer v. Transit Co., 124 N. Y. S. 463; Martin v. Elliott, 106'Mich. 130; Newberry v. Carpenter, 31 L. E. A. 163; Eogers v. Hansen, 35 Iowa, 283; State v. Hancock, 148 Mo. 488.

      John C. Robertson for respondent.
    (1) The order made by the circuit judge was a lawful one and he had full authority, therefor under the laws of this State and the decisions of the appellate courts of this and other States. Clark v. Dredging Co., 14 Cal. App. 414; Haynes v. Themlow, 123 Mo. 336; Paul v. Eailroad, 82 Mo. App. 504; Marler. v. Springfield, 65 Mo. App. 302; 3 "Wigmore on Evidence, secs. 2162, 2194, 2221; 3 Jones on Evidence, sec. 406; Crosby v. Potts, 8 Ga. App. 463; Eeynolds v. Burgess, 71 N. H. 332; Granger v. Ins. Co., 57 Miss. 308; Commonwealth v. Twichel, 1 Brewster (Pa.), 551; Sullivan v. Nicoulin, 113 Iowa, 76; Earl of Macclesfield v. Davis, 3 Ves. 16; Hensley v. Langton, 80 Fed. 178; Insurance Co. v. Grieson, 156 Fed. 398. (2) The old equity bill of discovery has been abolished in this State. Larimore v. Bobb, 114 Mo. 453; Carr v. Danes, 46 Mo. App. 356; Tyson v. Farm Home S. Co., 156 Mo. 594; Strode v. Frommeyer, 115 Mo. App. 220; Ex parte Brockman, 233 Mo. 135; -Bacon on Mo. Practice, sec. 135. (3) Prohibition will not be granted as a substitute for an appeal or writ of error. State v. Evans, 184 Mo. 642; Schubach v. McDonald, 179 Mo. 182; State v. Hirzel, 137 Mo. 435; State ex rel. v. Scarritt, 128 Mo. 331; State ex rel. v. Klein, 116 Mo. 259; State ex rel. v. Smith, 104 Mo. 419.
   WOODSON, J.

— This is an original proceeding brought in this court by the relator, seeking to prohibit Hon. Thomas L. Anderson, judge of the circuit court of the city of St. Louis, from enforcing an order theretofore made by him in the case of Kalenik Zasemowich v. American Manufacturing Company, a corporation, the relator here, requiring defendant to permit plaintiff and his counsel to visit its.'plant, to enter upon its premises with experts and photographers to inspect, measure, make drawings and take photographs of certain portions of its plant and machinery, for the purpose of being used as evidence in said case.

Thq preliminary writ was issued, and upon the incoming of the return the relator asked for judgment of the pleadings.

There is'no question made as to the order having been properly made by the court, after due notice having been given to the defendant, or that the order is .not a reasonable one, provided the court had the power and authority to make it.

I. A foreword may not be out of place here: Under the common law and statutes of England, the person, property and premises of the individual were subject, practically unlimited, to search and seizure, which became so oppressive and intolerable that when the people of this country founded the various states and nation, sooner or later they provided in the Constitutions thereof, that the people should be secure in their persons, houses, papers and effects, against unreasonable search and seizure, etc. [Fourth Amendment of the Constitution of the United States; Sec. 11, art. 2, Constitution of Missouri.]

There is but a single question presented by this record for discussion, and that is, has the circuit court the inherent power to make and enforce the order mentioned, unaided by statutory enactments?

Counsel for relator states his position in this language :

“We desire the court to understand at the outset that we make this application solely and only upon the ground that we believe that, under the law of this State as it exists at present, a circuit court is without power or authority to require compliance with any such order. We say this that our position may not he misunderstood. We are free to admit that enlightened procedure may demand statutory provision touching the matter in dispute. We submit, however, that until the Legislature chooses to act, the trial courts are without legal power or authority to make or enforce such order as is attempted in this case.”

It should be remembered that the circuit courts of this State are courts of original and general jurisdiction, practically the same as the nisi prius courts of England; and it goes without saying that those courts possessed and exercised that power and authority with practically no limitations. In fact, as previously suggested, it was the abuse of that judicial authority that lead the people of this country to adopt the constitutional provisions limiting the legislative and judicial authority in the regard stated; and if it was not for said constitutional limitations upon the circuit courts of this State, they would to-day possess the same untrammeled authority in that regard that the nisi prius of England possessed in earlier days.

Counsel for relator does not seem to question the soundness of this line of thought, but seems to be laboring under the impression that the constitutional limitations before mentioned completely shear the courts of the country of all authority to make and enforce orders of the character involved in this controversy, and that all the power they possess is created by statute, enacted after the adoption of said constitutional provisions.

There are some cases in this country which seem to lend support to that theory of the law but they are not based upon principle nor supported by the weight of authority. The eases so holding and cited by counsel for relator are the following: Cooke v. Manufacturing Co., 29 Hun, 641; Ansen v. Tuska, 19 Abb. Pr. 391; Kennedy v. Nichols, 68 N. Y. S. 1053; Auerbach v. Railway, 73 N. Y. S. 118; Sutter v. City of New York, 85 N. Y. S. 989; Pina Maya-Sisal Co. v. Mfg. Co., 105 N. Y. S. 482; Wilson v. Collins, 109 N. Y. S. 660; Danahy v. Kellogg, 126 N. Y. S. 444; Beyer v. Transit Development Co., 124 N. Y. S. 463; Newberry v. Carpenter, 31 L. R. A. (Mich.) 163; Rogers v. Hanson & Co., 35 Iowa, 283. The New York cases are directly in point, but none of them is from a court of last resort, and consequently have but little weight.

The case of Newberry v. Carpenter, Circuit Judge, 31 L. R. A. 163, was a mandamus proceeding in which the relator asked to have the circuit judge required to vacate an order depriving the complainant of the possession and power of control over a certain boiler and some machinery owned by her, but in possession of the public authorities, for the purpose of use in connection with the criminal prosecution. There had been an explosion in the building owned by Miss Newberry, and one Johnson, the engineer, had been arrested and charged with manslaughter on account of alleged criminal carelessness in managing the boilers, by which the explosión occurred and thirty-seven people were killed and others were injured. The police took charge of the premises, and the boiler and premises and engine were by the circuit court ordered into the custody of the police department of the city of Detroit. The relator, Helen H. Newberry, who was not a party to the criminal prosecution, thereupon brought a suit in the Supreme Court in which she sought to mandamus the circuit judge to vacate the above mentioned order. Her counsel set forth in his brief. that she was threatened with civil ■ suits for damages on account of the accident. The Supreme Court reviewed the matter carefully and arrived at the conclusion that the circuit judge had no authority or power to make such an' order, and therefore awarded the writ of mandamus requiring the circuit judge to set his order aside.

• In Eogers v. Hanson & Co., 35 Iowa, 283, the court said, page 284:

“Before answering, the defendants moved the court for permission to use the attached machine [threshing machine] for the purpose of trying its capacity to do such work as it was warranted to do. This motion was supported by an affidavit that the sheriff was willing to have the machine so used and that the attorney of plaintiff would not consent. The court overruled the motion and the defendants excepted. They now assign this ruling as error. There is no principle pf law which renders the granting of defendants’ request obligatory upon the court ... It seems too clear for argument that the court did not err in refusing to take it from the custody of the law and place it under that of the defendants.”

In State v. Hancock, 148 Mo. 488, this court said (p. 492):

“After the evidence. was closed, but before, the case was submitted to the jury, defendant moved the court that the jury be taken to the room where the homicide is alleged to have been committed, to make a personal inspection of it, which was denied, and this also is one of the grounds assigned in the motion for new trial. In the absence of statutory enactment providing for such a course there is no authority in the trial of a criminal case for a view of the premises where the crime is alleged to have been committed (12 Am. & Eng. Ency. Law, 368), and even when the view is authorized by statute it > rests altogether in the sound discretion of the court.”

The last three cases considered are. of doubtful application, but if authority for the contention of counsel for relator they bear so remotely upon the question here under consideration that they are by no means convincing.

Upon the other hand counsel for respondent cite and rely upon the following authorities in support of his position: Clark v. Tulare Lake Dredging Co., 14 Cal. App. 414; Haynes v. Trenton, 123 Mo. l. c. 336; Paul v. Ry. Co., 82 Mo. App. l. c. 504; Marler v. Springfield, 65 Mo. App. l. c. 302; 2 Wigmore on Evidence, sec. 1162; 3 Wigmore on Evidence, secs. 2194 and 2221; 3 Jones on Evidence, sec. 406; Crosby v. Potts, 8 Ga. App. 463; Reynolds v. Fibre Co., 71 N. H. 332; Grangers’ Ins. Co. v. Brown, 57 Miss. 308; Commonwealth v. Twitchell, 1 Brewster (Pa.), 551; Sullivan v. Nicoulin, 113 Iowa, 76; Earl of Macclesfield v. Davis, 3 Ves. & B. 16, 35 Eng. Rep. 385; Henszey v. Coal Min. Co., 80 Fed. 178; Mutual Life Ins. Co. v. Griesa, 156 Fed. 398.

In the case of Clark v. Tulare Lake Dredging Co., supra, the Supreme Court of California, in discussing this question, said: tion of either the letter or spirit of subdivision 5 of that section of our code.

“Exception No. 16 involves the action of the court in making an order that a witness for plaintiff be allowed to inspect or examine the machinery. It is contended that the court acted in excess of its authority in making this order and thus committed error which was damaging to the defendant’s rights.
“There is, so far as we know, no express provision of law authorizing the course adopted by the court, but every court has certain inherent power— power which, exercised within reasonable "and proper limits, authorizes it to go beyond its express powers, where the interest of justice imperatively demands such a course. Moreover, by section 128, subdivision 5, of the Code of Civil Procedure, every court is in general language clothed with full control and power over every person connected with a judicial proceeding before it, in so far as said proceeding is concerned, and we fail to see in the action of a court compelling the production of any relevant and competent testimony which will make clear or tend to make clear the truth as to a disputed question of fact anything in contraven-
“We perceive no distinction between the proposition here and the one presented and discussed in the case of Johnston v. Southern Pacific Co., 150 Cal. 535, 540, where in an action for personal injuries the trial court was appealed to by- the defendant for an order allowing the plaintiff to be examined as to her injuries and the effect thereof by- physicians of the defendant’s own choosing, testimony bearing upon that subject having been given by physicians who had been employed by and were introduced as. witnesses for plaintiff. The court denied this application upon the ground'that it had no power to make the order, and on appeal the Supreme Court held that the ruling was erroneous; that the court was authorized to make said order by virtue of the provisions ... of the Code of "Civil Procedure, and quotes approvingly from the case of Wanek v. City of Winona, 78 Minn. 98. . . .
“As stated, we see no difference in principle between the action of the court in the case at bar in ordering defendant to permit an expert witness for plaintiff to examine its machinery, and the order which .the Supreme Court declares it was prejudicial error to refuse to make in Johnston v. Southern Pacific Co., supra.
“Our conclusion is that the court in no manner or degree transcended its power or authority in ordering defendant to allow plaintiff’s expert to examine the machinery.”

While it is true the California Statutes, sections 128-129, provided that “the court shall have power to control in furtherance of justice the conduct of its ministeral officers and of all persons in any manner connected with any judicial proceeding before it in every manner appertaining thereto,” yet the court will see that the power conferred is merely declaratory of the power which our own circuit courts inherently have.

The inherent right of courts to make such an order was presented to the Supreme Court of the United States in the case of Montana Co. v. St. Louis Mining Co., 152 U. S. 160, a ease in which an order was made to inspect a mine. The court in holding that an order 'to allow such an inspection was proper, quoted the following with approval from Thornburgh v. Savage Mining Co., 7 Morrison’s Min. Rep. 667:

“That a court of equity, having jurisdiction of the subject-matter of the action, has the power to enforce an order of this kind will not be denied; and the propriety of exercising that power would seem to be clear, indeed, in a case where, without it, the trial would be a silly farce. Take as an illustration the case at bar. It is notorious that the facts by which this controversy must be determined cannot be discovered except by an inspection of works in the possession of the defendant, accessible only by means of a deep shaft and machinery operated by it. It would be a denial of justice, and utterly subversive of the objects for which courts were created for them to refuse to exert their power for the' elucidation of the very truth — the issue between the parties. Can a court justly decide a cause without knowing the facts? And can it refuse to learn the facts?”

In the case of Little Rock Gas & Fuel Co. v. Coppedge, 172 S. W. (Ark.) 885, the court held that it was discretionary with the trial cohrt whether it should require the defendant, injured by escaping gas, to allow the gas company to experiment in'the house as to the effect of the escaping gas.

In the case of Byrd. Irr. Co. v. Smythe, 146 S. W. (Tex. Civ. App.) 1064, it was held that a court of equity, by virtue of its ancillary powers, may grant orders for the inspection of property, where it is shown to be necessary for the proper exercise of judicial functions, or for the attainment of justice.

The question of trespass incident to carry out such an order is very ably discussed in the case of Reynolds v. Fibre Co., 71 N. H. 332, where the court speaks 'as follows:

“The slight infringement of the- right of property that is involved in an inspection of it under an order of a court of equity is justified by ‘due process of law,’ or ‘the law of the land’ and is in no sense a violation of the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.
■ “A consideration of the origin of the equitable remedy for discovery and of its nature and purpose leads to the conclusion that it may be employed to compel the production of personal chattels as well as books, deeds, letters and other documents for inspection and examination ■ in aid of an action at law and the foregoing cases confirm this conclusion. . . : ■ Justice requires that the plaintiff shall also have an opportunity to have the strap examined by persons in whose skill and scientific knowledge she has confidence. There cannot be a fair trial of the case unless such opportunity is given to the plaintiff. Indeed, it may be that she cannot establish her right — if she have one — without having the opportunitv.” [See also, Bovill v. Moore, 2 Coop. O. C. 56.]

The principle was also recognized in the case of Henszey v. Coal Min. Co., 80 Fed. 178, and Mutual Life Ins. Co. v. Griesa, 156 Fed. 398.

This subject is throughly discussed by 3 Jones, on Evidence, section 406.

In the case of Mutual Ins. Co. v. Griesa, supra, which was a bill in equity to cancel a policy of life insurance, the deceased was killed by falling from the roof of his house. The issue was whether he had taken morphine just previously, with intent to suicide thereby, and had deliberately thrown himself from the roof to conceal the suicide. The insurer applied for an order to exhume the body of the deceased. The order was granted by Judge McPherson, in an able and sensible opinion. The order directed the appointment of a pathologist to examine for the effects of the fall and a chemist to examine for morphine. The opinion repudiates. a privilege protecting from such disclosure.

The last-named case was a suit in equity to cancel the policy. A previous suit was brought at law on the policy where the executors were plaintiffs and the widow was not a party. The insurance company made application for an order to exhume the body. The court held there was an insurmountable objection to making the order in the law action because the widow was not before the court — she not being a party to the' action cannot be made a party to the law action ; she is a defendant to the action in equity; and that the widow has a control of the body of her deceased husband the executors do not have. In 3 Wigmore on Evidence, p. 2972, sec. 2194, and sec. 2221, will be found a discussion of the question here under consideration. He attempts to get at the undérlying principles of the law, and the following conclusion is stated, after a consideration of the different decisions on this point:

“The courts can as well command a witness to let the jury, or qualified experts, inspect his premises, his chattels or his person as to produce his documents. It is not to be supposed that our courts will finally commit themselves to the denial of such a plain dictate of principle and of common sense.”

In section 2221, the following will be found:

“The testimonial duty of witnesses in general requires the disclosure of facts in any and every feasible form, including such evidence as is available through inspection of the witness’s premises and chattels, either by the tribunal itself, or by other witnesses under order of the court. There is no reason why a party should be privileged more than uther persons in this respect. Not only as in the case of corporal exhibition is the absence of such a privilege deducible by implication from the statute making parties compellable generally, but also it may be maintained that no privilege in this respect was ever established at common law.”

From an early day this cqurt has uniformly held that in personal injury cases the circuit court has the power, not absolute, but in its discretion, to have the plaintiff’s injuries examined by physicians, so that they may testify as to their character and extent, and that such discretion will not be interfered with unless manifestly abused. [Shepard v. Mo. Pac. Ry. Co., 85 Mo. 629; Sidekum v. W., St. L. & P. Ry. Co., 93 Mo. 400; Owens v. K. C., St. J. & C. B. Ry. Co., 95 Mo. 169.]

From the foregoing authorities the following legal deductions may be properly drawn. /

First: That the nisi prius courts of England having possessed the inherent authority to make and enforce orders similar in character to the one here involved, and our circuit courts being courts of original and general jurisdiction, fashioned, as to jurisdiction and procedure, by the adoption of the common law, after the English courts, they likewise must have the same inherent authority to make and enforce such orders.

Second: That neither the Constitution of the United States nor that of this State was designed to destroy that inherent power of said courts, but was intended to limit and regulate that authority to reasonable search and seizures and thereby abolish' the power of the courts to exercise their jurisdiction as instruments of injustice and oppression of the people of the State and Nation.

Third: That said constitutional provisions likewise limited the authority' of the lawmaking powers of the country to enact laws providing for reasonable search and seizure of persons and property, which may • also regulate the authority of the courts in that regard, but cannot abolish that authority.

Fourth: That under the common law and the constitutional provisions mentioned, said power of the courts equally applies to persons and property.

■ Fifth: That in this State it is no longer an open question that the circuit courts have the power to order the person of a plaintiff examined, to enable experts to testify as to the character aqd extent of his injuries.

Bearing these legal propositions in mind and recalling the fact that the law requires the employer to furnish the employee a reasonably safe place in which to work and reasonably safe appliances with which to labor, the violation of either of which results in his injury, the law, in order to do justice between the parties, must either impose an implied agreement on the part of the employer, arising out of the contract of the employment, that in case the former should be injured by the failure of the latter to famish him with such a place or instrumentalities, the plaintiff might have the right, at a proper time, and in a reasonable manner, in company with proper persons, to visit and inspect said place and appliances, in order to enable them to testify as to their character and condition; or the law should, upon the other hand, in such a case, in the first instance, impose the duty upon the master to expose to plaintiff, and his experts, at a proper time and in a reasonable manner, the place where and the instruments with which he was injured, as a legal corollary to the duty the employee owes to the employer, in a suit for personal injuries, to expose his injuries to the inspection of physicians or other experts selected by the defendant or court, as previously stated.

Both of these powers are inherent in the courts, and are recognized by the State and Federal Constitution, limited, however, to reasonable search, inspection and seizure. No one at this late day questions the the power of the circuit court to order the injuries of a plaintiff complained of, in a damage suit, to be examined by physicians so that they may testify to the character and extent of those injuries, and for stronger reasons the power of the court to make and enforce an order of the character here complained of, should go unchallenged, because one’s person and his personal rights have under all laws, human and divine, been held more sacred, in higher esteem, better shielded and protected than mere property and property rights; so if the defendant in this case is entitled to have the plaintiff’s injuries examined by experts, as previously stated, then a fortiori the plaintiff should be entitled to have experts examine the premises and machinery mentioned in this case.

We aré therefore of the opinion that the circuit court had the power to make and enforce the order complained of, and that the same is just and reasonable, and in no manner injures or oppresses the relator.

The temporary writ heretofore issued from this court is quashed, and this proceeding is dismissed.

All concur, Bond, J., in result only.