*1 APPEAL MISSOURI REPORTS. Athletic v. Dillon. Coliseum jury warrant the submission of case to the though theory. may In that it be noted this connection expert could these testified that the witnesses automobile repaired operate they properly, not be so as admitted, injured every de cross-examination, each stroyed (which parts aggre part in fact of the automobile gated portion automobile) abut small whole of the repaired replaced. have been could appellant’s assignments We do not discuss other they likely, error in that are another event of again. to occur trial,
It follows that the should be and the same hereby Reynolds, reversed and the cause remanded. Allen, J., concur J.,P. Corpora ASSOCIATION,
COLLISEUM ATHLETIC Appellant, ion, v. JOHN DILLON, SAM MUR Respondents. and ROBERT STOLKIN, BARGER Appeals. Opinion July 15, St. Louis Court of Filed 1920. Challenging Sufficiency Objecting PLEADINGS: of: to Introduction of Evidence: Method Not Favored. questioning The method of sufficiency pleadings by objecting any to thе introduction evi- dence is not a court favorite. thereunder j-: -- — : -: Searching Demurrer Ore Tenus: Not so as objection Written Demurrer. The to the introduction of evi and, dence tenus, under constitutes a demurrer ore such, alleged nearly does not reach defects therein to nearly purpose extent and for same same as the more formal pleading; written demurrer authorized our nor does code uncertainty reach averment, mere or indefiniteness of or the legal pleading defect of conclusions. 3. -:-:-: —--: Favorably Petition Construed Most tenus, allegations to Plaintiff. On ore pleading demurrer will be construed most every favorable fair infer- ence drawn therefrom in favor. TERM,
MARCH Coliseum Athletic Assn. v. Incorporated Through En- Decree: Pro Forma
4. CORPORATIONS: Body Corporate. avers titled to Sue as a Where duly incorporated un,der the laws of is a association court, through Missouri, pro the circuit state of decree of *2 forma body allegation as a institute suit to it to a entitle sufficient th^ 3433, corporate politic, Revised Statutes in view section of 33, 10, chapter perview 1909,coming Revised of within article of the by 1909, although pro took the decree it Statutes of forma incorporated club, would of an nevertheless it the form social corporation laws, person meaning appear of the to a within the be rights contract, sue, to be sued. the attendant 5. - — : -: Defеnse of Ultra be Peaded. As Vires Must avail,* general rule, pleaded to the defense be of ultra must be viA'Gs able. Illegality: Specially Pleaded. The
6. CONTRACTS:Defense of Must be specially plead- illegality defense of of a sued on must be contract disclosing anything petition the such the absence of in ed in invalidity. May by be Raised De- 7.. CORPORATIONS: of Ultra Vires: Defense murrer Petition Act or Contract Void. tule Where Shows does the ultra vires cannot raised demurrer defense of apрly act or contract when the that the shows on its face merely is void and not voidable. Illegal Boxing: At Not at Common Law. 8. PRIZE FIGHTING: illegal boxing sparring exhibi- law was not to hold common tions. Boxing Private Exhibition: Not CONTRACTS: Contract Give
9. incorporated association Void Its Face. The an of managers against performer of contract breach give private boxing the members of the before to association, exhibition eight performance consist of rounds of whiсh was to boxing, each, of skillful held to state three scientific and minutes action, appearing to be the on its face cause of 4681, 1909, void, notwithstanding Revised Statutes of section boxing. public prohibits Upon the in- New Bond. ATTACHMENTS: Bond Insufficient: required suit, plaintiff by section stitution of an attachment 1909, 2300, double in least of a bond at Revised Statutes attachment, for the writ sworn to the affidavit of the amount required insufficient, proved a new could bond if such bond and by defendants, bringing plaintiff provisions of under the section Appeal Operates Supersedeas: Appeals: Attachment -: appeal taken Force. An in an attachment suit in Full Preserved APPEAL MISSOURI REPORTS'. Athletic v. Dillon. Coliseum judgment, operates supersedeas the the aas appeal preserves force so in full taken attachment until court, appellate appeal determination of such final a retrial the trial» court. case Discretionary: Appeal Bond: 12. -: -: Nonsuit: Without by grant- court, Moneys The trial Order on Sheriff to Void. Deliver requiring ing plaintiff appeal without an attachment suit an necessity giving bond, appeal relieved the trial bond under section Revised(cid:127) Statutes require appeal having or not as court an bond discretion appeal dictates, failure to held that the pay sheriff to authorize bond did not the court to order attorneys moneys held virtue or their record the defendants of the writ attachment. . City
Appeal Louis— St. Court Circuit Judge. Benjamin Klene, Hon. J. *3 directions). (with Reversed and remanded George appel and D. O’Keefe, W. J. Wellman, lant.
(1) upon being' a contract entered This an action pro appellant, corporation organized a into city Louis', of the circuit decree of St. court forma chapter 1909, article X, 33, under Revised Statutes appellant engaged wherein the services one of the private sparring exhibition before defendants рlaintiff, having paid it defendants members price performance, having the contract for such in respects performed part fully all other its of the con right to maintain this action for has a a breach tract, defendants, part (a) the contract on It was sparring law not unlawful common to hold exhibi at any statutory pro is there in nor law this tions, State corporation organized hibiting as fur from nishing members instructions in all its kinds of athletics, sparring boxing, giving including or entertainments mеmbers, its bona-fide kind this set out upon plaintiff’s petition. contract relied Sec, 4683, Cyc., p. 396'; 312 1909; v. R. S. Commonwealth Mack 507 TERM, MARCH v. Coliseum Athletic Assn. Olympic Mass., 4.7 La. Club,
et State -v. al., 187 441; (b) Vermont; 445, 56 Burham, State v. 1096; petition, said cannot in the From facts stated performed the defendant to be services a, to be his contract Dillon, under boxing) therefore sparring public exhibition, peculiar being question fact unlawful, this jury province under to determine ly within R. appropriate from the Court. S'ee. instructions Oye., p. ah, v. Mack et Commonwealth 396; S. 1909; Olympic La. Ann. Club, 441,; 187 Mass. State v. (2) Vermont, 445, Barham, v. 1095; State by pro corporation organized decree Plaintiff, a forma chapter X, article court under circuit right to make the relied had a contract petition; out in but had this and set its corporation, this vmuld defense ultra been vires case. available to defendants. appearing had facts fully part, it's the contract the contract on executed parties, longer executory being on behalf both no question of in this' case raise the defendants cannot right corporate make charter to under Corpora question. Elliott Private the contract Taylor Ed.), (31 on Private 219; tions secs. 218 Corporations (3 Ed.), see. Chenowerth v. Pacific -276; Express c. Insurance 185,1. Com Co., 197; pany 261, 1. c. Inhabitants Mo., 289; Smith, *4 Mooney, Dairy 41 84 Mo. Boilman. v. Mo. Fox, 59; Co. Company, App. 187 494; Bank Trust Mo. Cass 665 v. ; County al. Town Mutual Insurance et v. Mercantile (3) Defendants’objectiоn, Company, 188 .Mo., 1. petition state a cause should action, have failed by objection may demurrer; while that, been this raised judgment, time either before or after at raised objection practice interposing this for first during the trial of the cause not sanctioned time practice, and un correct the court should, the court as circumstance, the broadest effect der this to the 508 204 MISSOURI APPEAL REPORTS.
Coliseum Athletic
v. Dillon.
petition,
facts stated in
allegations
construing", thе
favorably
therein
every
most
to the
fair
plaintiff’s
inference
the facts
be drawn in
should
'
favor. Haseltine v. S'mith, 154 Mo. 404,
State
413;
ex
inf. v.
Hays
283;
Arkansas Lumber
260
Co., Mo. 212,
App.
v.
(4)
Miller’s
180
Estate,
Mo.
72, 77.
trial
¡final
The
having
plaintiff’s appeal
court
allowed
from its
order
oyerruling plaintiff’s
in
motion to-
involuntary
set aside -the
nonsuit without requiring it
a bond
could
therein,
not thereafter, and es
subsequent
pecially
a term court
at
to that in which
appeal
was allowed,
in
make
order
case
this
requiring" the
sheriff
turn over
in
funds
his hands
taken
held
him
under the
writ
attachment is
jurisdiction
casie,
sued
this
as that court had then no
to make such order. Sec. 2335, R. S. 1909; State ex rel.
App.
G-ates,
Bartley Douglass Mayfield respond & and W. C. ents.
(1) Appellant’s briefs not contain in. statement do points numerical order relied and such briefs disregarded should be argument this court and no attempted assigned heard on errors to be therein for the comply reason that paragraphs brief does (2) 2 and of3 rule this court. The trial court objection did sustaining not еrr in defendants’ to. evidence, (a) introduction of The does not state facts sufficient to constitute a cause of action or recover, (b) alleged entitle to tract The con up plaintiff’s petition, for the breach of set recovery seeks action, this was an ultra vires contract so far is concerned and could be made basis action. Secs. State 1909; ex rel. Men’s App. Club, Mo. c. State ex 564; inf. v. Rod (3) & Club, Gun 3164, c. 366. de pleaded fense *5 1920. MARCH TERM, Athletic Coliseum Dairy Bowman ultra vires is available to defendants. judgment (4) Mooney, App. Tbe
Co. v. Mo. 065. on tbe merits final trial court was a tbe ' attach- automatically tbe tbe dissolved writ case and trial court tbe ment no error and committed was property ordering' delivery defend tbe attached attachment. State ants after of tbe tbe dissolution G-runer, App. 56 Mo. Bockhoff Beldsmeier, 22'6; use v. 68. Roberts, 22; Schafer v. insti- was suit BARNES, C. This attachment city on Loui's court of tbe of St. in tbe circuit tuted amended filed A second October was general and denial Tbe was a October answer pending. put plea reply in is- Tbe of another suit pen- allegations pertaining tbe tbe of tbe answer sue dency of another suit. court and a
Tbe came on trial before tbe cause jury soon as first wit- on June As objection sworn, was was made ness called and tbe each tbe introduction of defendants, ground behalf of tbe failed to evidence on the against any of them. This ob- state a cause аction jection involuntary An was sustained. nonsuit aside, leave to move to set tbe same entered, which appeal duly overruled, motion was filed and taken preserved. exceptions properly upon succeeding At term of court, defendants’ tbe pay tbe court ordered tbe sheriff to motion, to tbe de- moneys attorneys record, tbe held fendants their upon of tbe of attachment. Tbe basis virtue writ obtained, order was that tbe bad any appеal appealed giving case bond. tbe without Plain- excepted overruling iff to this likewise order, to tbe ap- filed to set it, a motion aside tbe order, pealed overruling order and tbe motion. transcript. appeals pending are here Both one petition, Tbe second reads: amended APPEAL REPORTS. 204 MISSOURI *6 Dillon. Athletic Coliseum Assn.
‘‘Comes) plaintiff leave of court with first and, now petition, states, and had, files second amended this, its n incorporated duly under the laws it is a association that thrоugh pro of the decree Missouri, State forma city court Louis. circuit St. “Plaintiff states and its cause of ac- further against the named that on tion above defendants avers day about 13th October, entered into a contract defendant, Dillon, with' the John wherein plaintiff employed private give said Dillon to John boxing- before 14, 1914, exhibition or about October Association, the members of the Coliseum Athletic plaintiff city of St. herein, Louis, Missouri, performance eight was tо of three consist of rounds boxing minutes of scientific and skillful and for each agreed pay which seiwice to said Dillon the sum (cid:127) fifty and and dollars. of seven hundred 00/100 represent states said Dillon “Plaintiff further that per a scientific and ed himself to be and was skillful former defense, and contracted with of self art give boxing to exhibi scientific skillful and tion before the members of and at to all times performance; give high-class use his best efforts to agreed further that in the defendant, Dillon, whеn that' opinion authorized referee of said exhibition, rendering honestly performing said Dillon was not would, boxing" that said exhibition, said referee be -au stop thorized said under said contract exhibition, to compensation paid which event no was due or to the said Dillon. to evening further states on the
“Plaintiff day time October, 1914, the said 14th when said give boxing- Dillon, defendant, exhibition, said to plaintiff’s members and after all of were assembled to boxing; the said defendant, exhibition, witness said carry begin out refused to his contract or then Dillon, deposit plaintiff' performance until would the sum his fifty and and dollars, hundred seven 00/100 agents, Murbárger Dillon ’’s Sam and' defendant, TERM, MARCH Athletic Dillon. Coliseum obliged thereupon plaintiff to Robert Stolkin, and pay, pay and seven hundred and did the said sum of fifty Murbarger defendants, and said dollars, to 00/100 That there- defendant, for said Stolkin, N. Brown start- Dillon, and one O. defendant, after said boxing give pretended exhibition, ed but refused to to give as he skillful exhibition had scientific any boxing- give give agreed contracted represented be able himself exhibition of which he plaintiff’s members. would before failure defendant “Thatbecause said Dillon’s *7 give boxing accordance and refusal exhibition to in. charge of the with his referee get performance being defend- said unable to said boxing ex- skillful a scientific and ant Dillon to boxing’ any said the exhibition, referee hibition or and round, then there declared beginning third the of performing honеstly to said Dillon that he pretended of said defendant that the and efforts pretended the not a exhibition and declared defendant no and exhibition Dillon, of said efforts boxing exhibition. Dillon refused it then demanded of states, “Plaintiff further Murbarger, Stolkin, a re Dillon and defendants, said fifty and and seven hundred sum of turn of the said said paid for the as aforesaid, them dollars, 00/100 re and defendants, failed Dillon, but said defendant any'part plaintiff sum thereof. pay said fused against prays judgment plaintiff the “Wherefore, fifty and hundred- of said sum seven defendants for action.’’ costs of this and dollars 00/100 sufficiency questioning of method While any objecting of pleadings to the introduction evi [Hays v. The a court thereunder, is not favorite. dence we 1096], S. W. Miller, Mo. Estate find to such method our criticism to add no occasion petition had suit which the attachment an case, lapse of second one after' amended, the twice been 204 MISSOURI APPEAL REPORTS. Coliseum Athletic years. two and half methоd does Criticism dispose question of the before uls. objection The to the introduction of evidence under the second amended a de constitutes murrer ore terms, such, and as does not reach al leged nearly defects therein to the same extent, nearly purpose more formal same written pleading. demurrer our code does authorized It uncertainty not reach mere of aver indeflniteness legal pleading (State ment, or the defect conclusions inf. v. ex Arkansas Lumber Co., 212, 283, 145), hllegations pleading S. W. of the will be plaintiff favorably every most construed in fair [State ference drawn therefrom in favor. Hays supra; rel. ex Arkansas Lumber Co., v. The supra. ] Estate of Miller, gather from the briefs that
We the demurrer ore theory terms was sustained on the the contract pleaded could not bie made the basis and was action, beyond scope powers granted charter. incorporat duly avers that is a laws
еd association under the
of the State Missouri,
city
through pro>
decree
circuit court
*8
forma
allegation appears
of St. Louis. This
sufficient to
coaporate
body
entitle it
institute this suit as “a
coming
politic,” (Sec.
R. Si
within the
3433;
1909],
purview
chapter
10;
of article
Revised
33;
Statutes 1909.
may
pro
by
It
be that
it took
form
decree
forma
incorporated
ap
anof
social
club, nevertheless would
pear
person
meaning
corpora
to be a
within the
rights
the attendant
to contract,
tion
'with
sue and
laws,
used,
inf.
[State ex
v. Missouri Athletic and
Louis
St.
general
904.] As a
576, 170
261 Mo.
W.
Clubs,
S.
rule,
pleaded
must be
ultra vires
to be
of
v.
available.
defense
App.
[Hough
Co.,
Louis Car
182
St.
Mo.
718,
S.
165
App.
v. Bank, 187Mo.
1161;
230, 173
W.
Miles
S. W. 713;
Valley
Millinery
Mississippi
Hanlon
Co. v.
Richard
MARCH TERM, 1920. y. Coliseum Athletic C. A. City of Kansas v. Dubach, 82 Glendale 475; Lumber Co. v. Beckman App. Lumber 386, 152 Mo. Co., adopted 133 S. by W. App. 384, this court, 623, 160 Mo. 1194.] 140 S. W. And the defense illegality con of a tract especially pleaded, sued on must be in the absence petition anything disclоsing invalidity. in the such Agricultural [The St. Louis & Mechanical v. De Ass’n lano, 1101.] 108 Mo. 217, S. But the rule W. that the defense of ultra vires cannot demurrer does be raised apply act when the shows on its that the face (State or merely rel contract is void ex and not voidable, 669.) v. Bankers Co., Trust 138 S. W. 557, pleaded appears Unless, therefore, contract void sufficiently illegal, face, stated because cause of action. pleaded private boxing ex is for a eight plaintiff’s membеrs,
hibition before to consist of skillful each scientific three minutes rounds of contemplates presence boxing. an authorized It judge made of whether or not defend referee, who is “honestly performing.” ant Dillon Unless con such would statute, it tract interdicted some Missouri illegal appear legal; law it was not because, at common sparring boxing [Commonwealth to hold or exhibitions. Olympic 441; Club, Mass. v. al., Mack et State 447.] Burham, Ann. 56 Vermont 1095; La. State period but in effeсt at obsolete, A now statute it a contract, made misdemeanor covered permit keeper sparring boxing dramshop or exhibi dramshop, 7224, Revised in his tion or contest section appears Nothing pleading make Statutes applicable. Another section statute, this section felony. prize fighting a makes engage any public sparring person “any who shall And ini abet aid, who shall or assist exhibition, or any room oth exhibition, or shall who furnish *9 guilty a shall be deemеd exhibition, place for such er 1909’. The section misdemeanor,” A—33 204 M. REPORTS. APPEAL 204 MISSOURI Athletic Assn.
Coliseum. distinguished private a pleaded as for a contract is. public boxing contract does The the exhibition. letter of on nor one the section, terms of said fall the not within ap prize not fighting. contract does follows that the It only void pear found void; and could face on its to stage underlying purpose was to and intent if the able, public boxing de prize fight, exhibition; a aor and pеrforming” “properly under Dillon was not fendant not take did decision, the referee’s because the exhibition accompanying prize fight on the character of with brutality. employs pro- and terms, some of the usages usually the involved at these some of
vides-for commonly fights, prize ring as called encounters supervision eight provision rounds, the for under the fighter prize the the other hand, referee. On and public monopoly boxing exhibitor not have a their do аnd use. The science conforming skill is best attained game, chief with rules In function the referee is them. this case enforce judging duty not had the added he of whether or honestly performing- skill- Dillon was as scientific duty ex- ful boxer. It as much that the his to see deg-enerate private, boxing, into a hibition of if did being plaintiff fiaht, as determine the orize imposed upon by part lack science and skill perhaps, of Dillon. one one, His task was a diMcult danger fraught prosecution with commis- felony umpire there- sion of a under said section quo of, and its charter loss of unon proceedings, prosecution same tvarranto under statute..
We therefore hold that the states cause action, was reversible error not set upon plaintiff’s involuntary nonsuit motion aside therefor. appealed case, had the court
After directing the sheriff order to deliver the nisi, made attorneys moneysi their defendants attached *10 MARCH TERM, 1920.
Coliseum Athletic Assn. v. upоn alleged record. This order was based the failure plaintiff appeal the an of bond.
Upon institution of the this attachment the suit, plaintiff required by section 23.00,Revised 1909, to in bond at least double the amount sworn into for of affidavit attachment. If the writ bond proved required by insufficient, a new bond could plaintiff bringing provisions defendants under of the section 2303, Revised Statutes, provides:
Section 2335, Revised Statutes Upon upon “. . . the the trial- of case the merits party appeal plaintiff may —either from the find- —the plea ing in on the abatement, or on merits, the lie as may or the elect, both; defendant, at on all, if the party giving pur- whole case—either pose such bond for that may require; appeal any as the court such operate supersedeas judgment judg- shall or as a appealed plaintiff, pre- ments the shall from, and, if serve the in full final attachment force until the deter- appeal appellate mination in such the or of court, of upon the retrial in the trial court. . . .” case special pro- extraordinary Attachments! are ' ceedings required given ‘by and the bond the statute suit,
at the institution of the was to cover all dam- sums, ages might defendants be entitled to the re- and costs on of the suit from in- cover the account until the final of the attachment determination stitution provides giving section 2385 the and said suit, the appeal require, may as the court bond such opеrate supersedeas any appeal such shall as jxidgments appealed from. operates super'siedeas appeal It is appeal judgment, and when the is taken preserves appeal “the attachment so taken appeal the ifitnaldetermination such until full force appellate case court, or retrial [State rel. ex Parke-Davis & Co., trial court.’1’ 177 W. Troll, S. Linck v. 1070; Mo. App. 49.] 84 APPEAL REPORTS. 204 MISSOURI Indemnity v. Western Co.
Drucker '-appeal by granting thе without The trial court appeal requiring relieved bond, giving" necessity The discretion a bond. judg- require appeal as its not, bond, court to an contemplated by the statute ment dictates. bond or barrier intended to be as a burden used fully necessary only appeal, required when it is *11 litigation. protect party’s rights in 'We the adverse opinion to the sheriff was void. are of the order foregoing", the Commis- In of the above and view that the be reversed sioner recommends to the circuit court with directions the cause remanded likewise set nonsuit and aside to set aside proceedings upon for further sheriff, order said opinion. inconsistent with this opinion foregoing PER CURIAM: The Barnes, judg- adopted opinion the court. as the C., accordingly reversed' is, ment the circuit court aside the cause remanded directions set upon sheriff, the order nonsuit, likewise opinion. proceedings not inconsistent with the further Reynolds, Becker, JJ., J., cоncur. P. Allen Appellant, IN DRUCKER, WESTERN JULIUS H. DALLAS, TEXAS, OF COMPANY DEMNITY Respondent. Appeals. Opinion July 16, Filed Louis
St. Court Policy: Action on and Health Insurance: Accident 1. INSURANCE: Misrepresentation Defense of Failure to Return Premiums: Regardless accident and of whether a combination Available. provisions policy in fell of section suit within health insurance brought provides in suits upon misrepresentation polices based defense shall life no trial, deposit at or before the the defendant valid shall unless premium, benefit of received on in court for