233 Mo. 666 | Mo. | 1911
Plaintiff is the widow of Ellis T. High, and as such, in the name of Anna High, brought suit against defendant in the circuit court of Jackson county for the alleged negligent killing of her husband, the said Ellis T. High. After the institution of the suit, she intermarried with one Williams, and took the necessary steps to further prosecute the suit in the name she thus assumed by the intermarriage.
By her petition she charges that the death of her said husband was occasioned by reason of the fact that defendant had negligently constructed an unloading platform too close to the track upon which the freight cars were switched to be unloaded. The petition is long but the alleged negligence of defendant can be gathered from the following language contained therein:
“That.said platform and the said arrangements in and around such railroad yard and freight house were so located, placed and arranged as to endanger the safety of employees in this, that- said platform was as aforesaid so located and placed, with reference to said track and cars operated thereon, as to leave only about eight inches of space between said platform and the corners and sides of said cars, whereas said platform should have been so located, placed and arranged in order to insure so far as possible the safety of employees from injury or accident as to leave between said platform and said cars a space sufficient for the safe passage of employees between the edge of said platform and such cars, when such platform was necessary for the safety of employees in the performance of their duties as was at times necessary, and as was at the time and place of the injury aforesaid; that there were no conditions preventing the
The amount sought to be recovered was $5000'.
Defendant’s answer is, (1) a general denial, (2) a plea of contributory negligence, (3) a plea of assumption of risks, and (4) a plea charging that the cause of action, if any, had vested in two minor children of the deceased by a former wife.
Reply was a general denial.
The trial, nisi, resulted in a. verdict, by the concurrence of ten jurors, for plaintiff in the sum of $3000. Defendant thereupon filed its motion for new trial and in arrest of judgment. The court sustained such motion for new trial for the reason, as assigned, that plaintiff was not entitled to recover. From this order sustaining the motion for new trial plaintiff has appealed.
The evidence, so far as required, will be detailed and reviewed in connection with the points made.
I. At first impression we were doubtful as to the jurisdiction of this court. Upon no theory, does the “amount in dispute” give us jurisdiction. The petition and the amount claimed therein, if such were to govern, would not give us jurisdiction under the Act of 1909 increasing the jurisdiction of the Courts of Appeals. In this case and the facts thereof the amount in dispute, as contemplated by the Constitution, is the amount of the verdict which was set aside by the trial court. Even in cases where the amount claimed by plaintiff in the petition is such as to eon-
In Culbertson v. Young, 156 Mo. 261, this court said: “This court has no jurisdiction of this appeal. The utmost that is ' involved in this appeal is the amount of the verdict rendered in the circuit court. Appellant in his brief asks ‘that the judgment of the circuit court in setting aside the verdict of the jury and granting a new trial be reversed and the cause remanded with directions to enter up a judgment on the verdict.’ Plaintiff sought no new trial in the circuit court and his claim for.the original amount sued for is not here at this time. He seeks only to have a judgment entered on his verdict for $783.25. If he should succeed that would end the case. The propriety of setting aside that verdict is the only matter involved in this his special appeal, and this court has no jurisdiction, as it is less than twenty-five hundred dollars. On the other hand if the circuit court did not err in granting the new trial, no final judgment has been rendered in that court from which an appeal can be taken. Roselle v. Farmers’ Bank, 119 Mo. 84, is not authority for the claim that this court has jurisdiction. This cause is ordered re-transferred to the Kansas City Court of Appeals.”.
In that case the amount sued for was $7180, of which sum we then had jurisdiction. The- verdict was for only $783.25, which verdict was set aside upon motion of the- defendant. Appeal was granted to the Kansas City Court of Appeals, but that court trans
Our jurisdiction, however, hinges upon a constitutional question lodged for the first time in the motion for new trial. We were first impressed with the idea that the question was not timely raised, but upon a more thorough reading of the petition, and the instructions given, we are satisfied that the point as to the unconstitutionality of the statute involved was made at the earliest practical time, and hence will proceed to the determination of the merits of the case.
II. At the close of all the evidence the defendant asked a peremptory instruction to find for defendant. This was refused, and defendant requested no further instruction. ■ This demurrer to all the testimony we will discuss later.
Reverting to the constitutional question mentioned in our first paragraph, it should be noted that the first and principal instruction for the plaintiff invoked that part of the Factory Act of April 20, 1891, Laws 1891, l. c. 162, now section 7844, Revised Statutes 1909. This section of the present statute was section 20 of the said Act of 1891. In the Revised Statutes of 1899, said section 20 of said act was section 6448. No change has been- made therein since its first enactment. It thus reads: “All platforms, passageways, steps, flag offices and other structures or arrangements in and around all railroad yards, switches, roundhouses, switch offices, freight houses and passenger depots, shall be located, placed 'and arranged so as to insure, as far as possible, the safety of employees from injury or accident.”
Plaintiff’s first and principal instruction thus reads: “The statute law of this State requires that
It therefore appears that whatever may be the terms of her petition, the plaintiff by this instruction planted her recovery squarely upon this statute. This is the only instruction which outlines her theory of her right to recover. Other instructions given go to subsidiary matters, such as the definition of “ ordinary care,” contributory negligence, measure of damages and presumptions to be indulged.
Defendant challenges the constitutionality of this law, for the reason, among others, that the subject-matter thereof is not within the purview of the title of the act, and not clearly expressed in such title. The title of the original act thus reads:/“An act relating to manufacturing, mechanical, mercantile and other establishments and places, and the employment, safety, health and work hours of employees.’V
Counsel further urge that more than one subject is covered by the Act of 1891, and that for this as well as the previously stated reason, this section of the statute is unconstitutional and void under the provisions of section 28 of article 4 of the Constitution of the State. This contention we think well founded. The subject-matter of section 20 of the original act is not clearly expressed in the title to such act. Not only so, but there is more than one subject embodied in the act.
Going to the first matter above mentioned, no one reading the title to the original act would for a moment think or even imagine that railroads or railroad properties or railroad employees were being considered or legislated upon in the act. The constitutional provision, excluding the excepted classes of legislation, reads: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title.”
The requirement that the subject of a bill “shall be clearly expressed in the title” is just as mandatory and just as binding upon the courts, as that portion of the section which says that “no bill . . . shall contain moré than one subject. . . .”
So, too, in State v. Great Western Coffee and Tea Co., 171 Mo. l. c. 643, Fox, J., after quoting the above from the Burgdoerfer case, adds: “And it is elsewhere said very aptly ‘that to be clearly expressed’ certainly does not mean something that is dubious and therefore is not clearly expressed.”
In Kansas City v. Payne, 71 Mo. l. c. 162, the following language from Judge Cooley is quoted with approval by this court: “The Constitution has made the title the conclusive index to the legislative intent. It is no answer to say that the title might have been more comprehensive if, in fact, the Legislature has not seen fit to so make it.”
The test of a sufficient title to a bill is well expressed by Sherwood, J., in St. Louis v. Weitzel, 130 Mo. l. c. 616, whereat he says: “The evident object of the provision of the organic law relative to the title of an act was to have the title, like a guide board, indicate the general contents of the bill, and contain but one general subject which might be expressed in a few or a greater number of words. If those words only constitute one general subject; if they do not mislead as to what the bill contains; if they are not designed as a cover to vicious and incongruous legislation, then the title can stand on its own merits, is an honest title and does not impinge on constitutional prohibitions.”
There is no clear expression in this title to the bill under consideration indicating that in the body of the act might be expected language concerning rail- ■ roads, railroad property or railroad employees. No veiled language in a title meets the constitutional requirement. The language should be clear, and as an
Throughout the history of this State, railroads, railroad property and railroad employees have been treated as separate subjects. Legislatively speaking, they have been assigned to classes of their own. Manufacturing, mechanical and mercantile establishments have not been associated with such classes by the lawmaking power. The relation of master and servant as to liability for negligence is different in railroad corporations from the liability in case of negligence committed by manufacturing, mechanical and mercantile establishments. Inspection laws are different as pertaining to the two classes. In such laws railroads have been treated as a class to itself, and inspections made thereof by a board having peculiar authority for that purpose. It is useless to go over the line of statutes in this State which clearly show that matters pertaining to railroads and their employees, have been treated as subjects within and of themselves.
Nor do the words “and other establishments and places” found in the title aid the law in question, as seems to be contended by the plaintiff. To these words in the title, the doctrine of “ejusdem generis” is the most that can be applied.
These words at best can only be held to cover “establishments and places” of a similar kind to those named./ The rule as to such expressions is well summarized in 26 Am and Eng. Ency. Law, p. 584, thus: “The words ‘and for other purposes’ frequently suffixed to the title of a statute imply purposes not named in the title, and therefore are generally rejected as being without force or effect, and insufficient to indicate matters not otherwise indicated by the title. But the phrase may be given meaning when employed, not to indicate other subjects than that expressed in the
Even if we apply the rule ejusdem generis, it cannot be said that section 20 of the original Act of 1891 covers a subject-matter similar to the three specific classes named in the title. And if these words are to stand and are not to be construed by the rule ejusdem generis then more than one subject is contained in the title.
Touching in a way the question here involved, in the early case of St. Louis v. Tiefel, 42 Mo. l. c. 592, Wagner, J., said: “It is very plain, however, that the use of the words ‘other purposes,’ which have been extensively used in the title to acts to cover any and every thing, whether connected with the main purpose indicated by the title or not, can no longer be of any avail. [Town of Fishkill v. Plank Road Co., 22 Barb. 642; Ryerson v. Utley, 16 Mich. 269.]”
Along the same line is St. Louis v. Laughlin, 49 Mo. l. c. 564, whereat it is said: “In the present case, the charter specifically enumerates the classes of persons intended to be taxed, and the sweeping words ‘all other business, trades, avocations or professions,’ we do not think can be made to include persons not of the same generic character or class. In specifying and enumerating the trades and professions to be taxed, it was intended to limit the taxation to them or to persons engaged in similar trades or occupations. If it had been designed to tax lawyers, which, as the agreed case finds, number over three hundred in this city, it
In Shepherd v. Helmers, 23 Kas. 504, the Kansas court says: “The words ‘for other purposes,’ it is conceded, do not add anything to the expression of the title and may be considered as surplusage and as nugatory.”
The Colorado Court of Appeals takes the same view. In County Commissioners v. Smelting Company, 3 Colo. App. 225, that court said: “The. act is entitled ‘An act to amend section 29, . . . and to repeal sections 30, 31, 32 and 33 thereof, and for other , purposes.’ The last clause, ‘and for other purposes,’ may first be disposed of. It is, in such connection, 'meaningless, of no legal significance, conveys no idea of any legislative intention whatever. It is said by Judge Cooley in his excellent work on Constitutional Limitations (5 Ed.), p. 175: ‘The words, “and for other purposes,” must be laid out of consideration. They express nothing and amount to nothing as a compliance with this constitutional requirement. Nothing which the act could not embrace without them can be brought in by their aid.’ [See Ryerson v. Utley, 16 Mich. 269; Town of Fishkill v. Plank Road Co., 22 Barb. 634; St. Louis v. Tiefel, 42 Mo. 578.]”
So viewing this section 20 of the original act from all standpoints, the least which could be said is that such section does not fall within the. purview of the title and is therefore void and in violation of the constitutional provision mentioned.
Plaintiff by the instruction quoted planted her case squarely upon the statute. If there be no such statute, then the instruction was error, and such error is sufficient to sustain the order granting a new trial. Even if the trial court assign a bad reason for granting a new trial, yet if there be a good reason for such action, the order will not be disturbed by this court. The giving of this instruction was assigned as error in the motion for new trial. We will discuss next the reason assigned by the court, nisi, for the action taken in granting the new trial.
III. Should the trial court have held that the plaintiff failed to make a case? We think so. The question may be approached from several standpoints. In the first place, if the petition is one charging statutory negligence, as plaintiff has construed it by the instructions asked and given, then the action of the trial court in granting the new trial and the reason assigned by the' court for such action are proper on the theory that there is no such law. An unconstitutional act is no law at all. So that if the action is founded upon statutory negligence, and the statute fails, the trial court was right in saying that plaintiff was not entitled to recover. A reading of the petition discloses that no statute is mentioned therein, but facts are pleaded (with one possible exception as to notice to be noted later) which would authorize a recovery under the statute. It is not necessary for a petition to state the statute violated. All that is necessary is to state facts sufficient to bring the cause within the terms of the statute. Such has been the ruling of this court in several recent cases. [Taylor
So also has the Kansas City Court of Appeals so ruled. [Walker Bros. v. Railroad, 68 Mo. App. l. c. 474.]
In the case at bar the plaintiff treated her case as one brought under the statute. The trial below was upon that theory and such theory can not now be abandoned. So that if the law is unconstitutional the circuit court was right in declaring that plaintiff had shown no right to recover.
IV. But the court’s reason assigned was right from another and further standpoint. Let it be granted that the statute was .constitutional, and yet the evidence fails to disclose an actionable violation thereof by defendant. There is no evidence in this record that any notice was given the defendant to make alterations or changes in its platform.
Section 16-of the Act of 1891, in so far as applicable, reads: “Whenever the commissioner of labor, or assistant inspector, finds that . . . the platforms, passageways, and other arrangements around, in and about any railroad yard or switch be such as to probably. lead to injury or accident to those employed in, around or about any such establishment or place, the inspector or assistant inspector shall at once notify the person or persons in charge of such establishment or place to make the alterations or additions necessary "within thirty days; and if such alterations or additions be not made within thirty days .from the date of such notice, .or within such time as said alterations could be made with proper diligence, then such failure to make such alterations shall be deemed a violation of this act. ’ ’
This section must be construed with the provisions of section 20, supra. Section 20 is indefinite as to just how these platforms must be erected or placed.,
The question is a new one in this State, but practically the same point has been decided by the Supreme Court of Massachusetts, in the case of Foley v. Pettee Machine Works, 149 Mass. l. c. 297. That court there says: “The plaintiff claims that the defendant is liable under the Pub. Stats., c. 104, sec. 22. But by the just construction of this chapter a person or corporation .cannot be said to be guilty of a violation of section 13, so as to be liable to a criminal prosecution, or to an action by an employee, until notice has been given to him by an inspector, as required in section 22.”
The language of that court, supra, was used with reference to the laws of that State concerning the inspection of buildings. Section 13, mentioned by the court, reads: “The belting, shafting, gearing, and drums of all factories, when so placed as to be, in the opinion of the inspectors mentioned in section nine of
Section 22, also mentioned by the court, reads: “Any person, firm, or corporation, being the owner, lessee, or occupant of any manufacturing establishment, or owning or controlling the use of any building or room mentioned in section 20, shall, for the violation of any provision of section thirteen, fourteen, fifteen, nineteen, twenty or twenty-one, forfeit to the use of the Commonwealth not less than fifty nor more than five hundred dollars';' and 'shall also be liable for all damages suffered by any employee by reason of such violation; but no prosecution shall be made by such violation until four weeks after notice in writing by an inspector has been sent by mail to such person, firm, or corporation, of any changes necessary to be made to comply with the provisions of said sections; nor then, if in the meantime such changes have been made in accordance with such notification. •Nothing in this section shall be so construed as to prohibit a person injured from bringing an action to recover damages for said injuries.”
In the Foley case the plaintiff sought to recover damages because certain gearing of a machine had not been securely guarded. Under the statutes aforesaid the court held that there was no civil liability until after notice. Our statute points more clearly to notice than does the statute of Massachusetts.
Going to our statute, had the act pointed out definitely how platforms should be constructed, then it might be urged with force that it was not necessary to read the two sections 16 and 20 together. It might be urged that there was a violation of law when the
Suppose in a given case, an inspector should direct that the platform be placed eight inches from the side of the car, as it was m the case at bar, and a switchman was injured by Reason of that fact, can it be questioned that the direction of the inspector would not be a valid and absolute defense to an action for damages'? We think not. On the other hand, suppose further an inspector directed the platform to be placed five feet from the sides of the car, and by reason of that fact, a car unloader was injured, can it be ques-. tioned that the direction of the inspector would not be a valid and absolute defense to a suit for that injury? We think not. To our mind the act contemplates that platforms are to be left in statu quo until in the judgment of the inspector a change is ordered. This change must be made only after notice. A failure to make the change after notice is a violation of the statute which is actionable. What is here said does not apply to many of the provisions of this lengthy act, because there are many things therein not covered by section 16, supra. Platforms of railway freight depots are covered, however.
With these views, it becomes unnecessary to discuss the case from the viewpoint of the evidence. Nor shall we discuss the fact as to whether or not plaintiff’s petition states a cause of action at common law.
