*1 AND DETERMINED CASES ARGUED BY THE SUPREME COURT

OF THE STATE OF MISSOURI

AX THE APRIL TERM, 1923.

THE STATE ex rel. INTER-RIVER DRAINAGE DIS

TRICT v. ALMON ING, Judge. Circuit Banc, May 22,

In 1923. Policy. 1. judicial policy APPEAL: Judicial right maintaining although purely case, a civil statutory, always liberal; right has been but the exercise of the litigants should be so controlled be not used embarass by unnecessary pursuit delay costs in the interminable judicial relief. Judgment. 2. Upon sustaining general DEMURRER: Final aof plaintiff’s petition, request demurrer unmixed with for other implied name, than is relief in its the court should not sustaining judgment render final for defendant. general having sustained, plaintiff right, demurrer been has a course, petition, a matter of to file an amended and the court it, should allow him a reasonable time in which to exercise protest deprive right by should not his him of that ren- dering part sustaining as a of the order the de- murrer. If not does announce his intention to stand petition, right does exercise his to file an amended time, within a reasonable defendant has in due course ask for of dismissal and costs. Judgment: APPEAL: General Demurrer: Final Motion for New Trial. sustaining From an order a motion for a new trial in a case

(1) OF SUPREME COURT MISSOURI, District v. Drain. rel.'Inter-river n which a final rendered, authorizes statute has been petition, plaintiff's appeal; where implies, request than name with a relief unmixed for other *2 judgment sustained, part sustaining it final and as a of the order trial, coupled rendered, with for defendant is motion for a new a pleading, proper aside, request judgment is a a that the be set although trial, is, a it sense a for new no true it sustaining may form, defendant from it an order take that appeal. to an not entitled Mandamus. -: -: Motion Sustained: 4. -: -: demurrer, plaintiff’s petition filed a defendant To implies. request demurrer than its name no other included incorporated sustaining sustained, a it was the order was Thereupon judgment filed what the for defendant. final recited, among trial, purported be motion for a new to a party, wrong things, the for the that that was other holding petition a did not state cause that court erred plain- action, action favor of that created a cause of the statute against defendant, prayer aside. tiff be set and a trial,” sustained, for “the cause set down This motion was sustaining it the an defendant filed and from the order thereupon denied, brought appeal, suit an which was grant compel judge ap- trial mandamus this court considering Held, peal. not the whether or stated without action, that, appropriate plead- an the motion was a while cause prayer judg- ing, unauthorized final since contained a proper aside, sense was a motion a set in no ment be proceedings up trial, time was since wholly interlocutory, and the words statute were rendered litigant 1469,. 1919) giving (Sec. an “from an order R. S. not, Code, granting of other do in view sections of the new trial” trial, defining apply, especially and defendant the statute appeal, and the writ of mandamus is denied. entitled Mandamus. Peremptory denied. writ relator. Oliver &

Oliver “any party provides that (1) statute Our any by any judgment aggrieved circuit court in suit which, prohibited by appeal is not any from civibcause APRIL 1923. TERM, rel. Drain. District State ex Inter-river having take his to a Constitution, appellate jurisdiction granting from order a new (2) fully trial.” Sec. R. S. The relator com- 1469, plied requirements Secs. 1471 R. 1472, with the S. during in that the term which the .it at filed, required’ appealed from was affidavit, and rendered, dollars, (3) deposited required fee of ten Our judicial “a trial is the exami- statute defines a they parties, between the whether nation of the issues of fact.” of law or Sec. R. 1919. It issues S. by this court. rel. Rail- has also been defined way (4) 149 Mo. 109. A trial as defined Co., had the circuit court. defendant statute there, sufficiency plain- challenged legal here, by filing general petition in that court tiff’s petition. judicial an issue of law. A This raised *3 legal made of the issue tendered the examination was hearing, that it should be a found, trial court day, the defendant. On same decided favor of the was judg- plaintiff his motion to set said below filed the aside plaintiff grant trial in the a new said cause. to ment and a new trial court sustained, motion was This plaintiff. that action Prom the was awarded sustaining plaintiff’s a new trial, court, filed his here, below, the defendant respondent appeal court. The to this affidavit for appeal. grant The should have refused to 1919; State R. ex rel. granted. 1469, Secs. S. been Coatney Ry. v. 109; Mo. Co., Railroad, 149 Pac. v. Mo. judicial policy (5) of this with State, “The Mo. 39. 151 appeals, always has been a lib- reference 297; 238 Mo. Nol- Shelton, ex rel. v. State eral one.” express by terms “Indeed, Mo. 436. 108 Jones, an v. every is allowed case statute an unless prohibited by appeal in that cases is class of Con- Maynard Co. v. Co., Doe Run Lead 283 Mo. stitution.” compel (6) granting will lie to Mandamus 672. Ency. Ed.) appeal. (1 570; Plead. Prac. 13 & State ex 4 COURT MISSOURI, SUPREME OE1

State rel. Inter-river Drain. ex District v. Mo. rel. Mo. 20; Collier, State 62 rel. v. App. 92 ex v. Allen, App. ex rel. v. Mo. 1. 38; Arnold, 197 Phillips respondent. Sam M.

(1) granted, There has been new never a trial a the reason that there never has been trial the case.' All that ever is that has the defendant filed occurred, plaintiff’s petition demurrer sustained. which filed motion to set aside sus- plaintiff’s improp- taining counsel demurrer, erly a “motion for a trial,” denominated merely motion in effect to set aside order sus- was taining There, plaintiff’s petition. never of fact of or character whatever, was an issue kind jury only submitted either court. thing court for determination submitted to the was petition. sufficiency plaintiff’s Under such no Admire, there trial. Crossland v. circumstances Badger Lumber v. 180 Mo. Boswell, Co. 118 Mo. 87; App. App. 91; Mo. v. v. 185 Breed 180; Hanna, Stanton Sayman, 181 Mo. v. W. Hobart, 145; Faster S. 187 Mont. Cossett Lbr. 11; 10 v. Patterson, Froman v. 1190; Rucker, v. 17 Hart Lumber Co. Wash. 618; 28 Wash. Co., Light 135 284; Ala. Shock Hansen, Mobile Co. v. 602; (2) Ry. Birmingham “A new Ala. Co., v. issue of fact, of an same is a re-examination trial” by jury or court or decision after a Harper Pierte, Leath 270; Hildreth, Cal. referee. *4 People 100; Blanchard, 106 Ga. Zastellaw v. 619; 93 Cal. 21 George, 9; Ranch Mont. Co., Beach v. Idaho, 111; 3 v. v. Paul 11.; Cossett St. 10 Mont. Patterson, Froman v. Rucker, v. 17 Hart Lumber Co. Co., 624; Wash. Lbr. 28 284; Light 135 Hansen, Co. v. Ala. Mobile 602; Wash. Birmingham Ry. 316; Ala. McDermott 96 Co., v. Shock Paving Asphalt 403; v. Barber Co. Kan. Iialleck, v. 65 24 App. 407; Neb. Gibson, Topeka, Gibson v. 133; Kan. 6 States Tra- Norledge, United v. 143; 5 v. Okla. Blevins stated Wyo. order of court ving, that the fact 148. The 3 5 1923. APRIL TERM, State ex rel. Drain. District v. Inter-river granted it when it set aside the order sus- taining surplusage. demurrer, is mere Crossland (3) plaintiff’s petition 118 Mo. v. 92. Does Admire, against Drainage of action cause state Inter-River Relator District? will that it not, contend for does drainage for,negli- is reason that gence. district not liable point This is the that relator seeks to have sub- remedy adequate mitted to this if it has an pointed ample by at ifor there method law, is out law, rights, then can enforce its not is entitled extraordinary writ of out mandamus herein. sued Cape 150 McKee, 233; v. Mo. State v. Girardeau State Fleming, Co. Mo. 2 Court, 148; 109 Sheridan v. S. W. Megown, v. 89 Mo. 85 838; 156; Lubke, State State v. 83 Court, State v. Clarli Co. Mo. v. 338; 359; Mo. State 68 Mo. Blecker v. Louis Court, Macon Co. Law 29; St. Judge Cooper Ill; 30 Mo. Williams v. Co. Court Com., App. Mo. v. 85 Mo. Pleas, 225; Walker, Common State v. State Hill, 206; McCune, 272 Mo. 247; App. (4) App. 150 Mo. 325. Homer, State v. 511; Mo. trying question this which relator is Besides all this, seeking to enforce in the that it is this raise plaintiff’s say, does state that is to case, action, cause can be to constitute facts sufficient Supreme any place, even time or at raised never McPeak the first is waived. for time, Court Co., 128 Mo. Pac. Railroad the writ is an BROWN, C. This directing judge Court Circuit mandamus County a case this Butler allow pending in wherein W. Waters is that court J. lately instituted defendant,, this relator January 1922. As term, to its and returnable that court Company brought originally Construction Callahan joined as to it it was' dismissed co-defendant, as a purpose against alone. Its proceeded relator damages $10,000 in the amount was to recover personal injuries him received while *5 OF MISSOURI, SUPREME COURT Ing. Inter-river Drain. District v. ex rel. alleged employment, by its and to have been caused negligence such-employment. in matters connected with January in 20,1922,' On filed said cause a January up by on demurrer, was, taken 23rd, plaintiff duly court and to which the sustained, then ex- cepted. following exception,

The court, said entered fol- lowing judgment: parties by attorneys

“Now come the hereto, their separate submit to the and record, demurrer of Drainage corpo- Inter-River District of Missouri, plaintiff’s petition heretofore ration, filed on the January, day having 20th and the court now seen having and examined demurrer, said and heard the ar- gument being fully counsel, advised in now premises, singular, all and doth sustain the same. sustaining

“To action of the court de- plaintiff objects excepts. murrer aforesaid, adjudged ordered and “Wherefore, considered, plaintiff nothing the court that take ac- against Drainage tion herein the defendant, Inter-River go Missouri; District of discharged and that said defendant hence plain- have recover of and from said expended, tiff all costs of this herein laid out and suit therefor.” and that execution issue day plaintiff on the Waters, Afterward and same alleging for a in that his “motion new trial” suit, filed following errors: wrong- “First. The of the court is for the party.

“Second. of the court on defendant’s have been favor of the demurrer should against defendant. sustaining

“Third. The court erred defendant’s plaintiff’s petition. demurrer to plaintiff’s holding “Fourth. court erred not does state a cause of action the de- Drainage fendant Inter-River District Missouri. holding drainage “Fifth. The court that a erred district is liable a tort. APRIL TERM, rel. Inter-river Drain. District holding The court the de-

“Sixth. erred *6 drainage negligence.” not liable for fendant district is April following term that on court, At the of and day entry following April, of the by made 8th the court in same cause: at time motion of

“Now this in the is taken trial heretofore filed above-entitled cause up having the court seen court, and and submitted being fully said advised motion, and examined and in singular, premises, same.” all and doth sustain the day month relator 24th same filed On the his appeal application for an to this which affidavit and deposited questioned in It is form ór substance. also not required by statute. docket The court the thereupon fee $10' following order: made having ap- now and examined “The court said seen plication appeal being fully and and an ad- affidavit singular, premises, things in in all doth all vised and thereupon,' by and it is ordered same; overrule appeal and the be, same here- is, court that defendant’s by jects to which action of the court defendant ob- denied, by excepts, is the court set down and said cause Monday, May 1922.” for trial appli- thereupon given by relator of his

Notice was cation for this writ. only presented by parties question law in Court as shown the Butler Circuit said suit not this been whether or to have

record seems drainage responsible capacity district was as a damages employee an received reason of its employment. negligence in the course of right purely cases I. civil is While always policy judicial this has statutory the Maynard, [Doe it. Run Lead Co. toward been liberal only judicious not Its 283 Mo. l. c. 672.] litigants the administration of exact to insure tends particular pro impartial justice but to in each case, certainty uniformity preserve those mote and SUPREME COURT OF MISSOURI, State ex rel. Inter-river Drain. District legal required rules to which all are to conform in their dealings right with each other. On the other hand, should be so controlled its exercise that it litigants by unnecessary be used to embarrass costs and expense delay pursuit judicial in the interminable principles relief. proceed It is with these mind we should only question to the examination of the before provisions us, under the our whether, stat- stage proceeding utes, lies at this sought. it is frequently as has been is, This said, extraordi- legal nary remedy affecting of the trial court place upon controversy, the facts of record so they may appeal, single us in come before *7 ought carefully to administered with reference the to particular facts each case. We will, therefore, exam- right ine the statute under which the relator the claims stage remedy proceeding. to in the at this by expressly II. The on statute relied relator au- appeal any granting thorizes an from order a new trial. judgment In this case the court had entered final upon petition, the defendant the a demurrer to and had, plaintiff on motion at the same term, made set it aside set the case down for trial. That it had upon right, proper showing, to do this is not denied. only respect The relator that its action in contends subject respondent this court review before permitted try upon will be the case its merits. The theory suggests statement of this that vexatious and un- delay may application, great- necessary result from its ly prosecution just embarrassing suitors their questions legislative demands. These, are however, solution. upon by (Sec.

The statute relied 1919) litigants gives appeal following R. S. an in the trial, only: any granting cases “From order or in judgment, refusing modify arrest of revoke, or order change interlocutory appointing or a receiver APRIL TERM,

State ex rel. Inter-river Drain. District v. dissolving or injunction, any receivers, or from judgments interlocutory partition in actions of rights parties, any determine the of the or from final judgment special any case, in the or from order after judgment provides final in the cause;” and further any “a failure to from action or decision of the prejudice right court final before shall not party failing of the so to have the action of the trial judg- court reviewed on an taken from the final per- ment in the case.” It is statutory evident that this mission is final .cases which confined has except interlocutory judgment been rendered, where an may preservation prop- have been entered for the erty during pendency or the involved, upon litigation. This was entered upon any demurrer to and not a trial of is- sue of fact. first to which sustained, plaintiff thereupon exception, took court against- protest any proceeding further without immediately plaintiff, judgment, entered excepted. proceedings From these also theory we infer that the was that the parties say both demurrer, which founded proposition negligence that no action for lies drainage corporation under state facts whatever, upon any no that, therefore, amendment founded put liability such could life into the facts. The conceded *8 corporate in which the defendant was sued, character immunity gave according theory, to this it absolute from liability no amendment could effect, that, and logically judgment the sus- final followed order therefore, taining demurrer. the any general, with re-

The demurrer was unmixed quest implied by for other name. It relief than may properly judgment have en- be that could been pleading, upon prayer effect in same tered a prayer. the court had sus- tliere such When nowas performed duty it had the demurrer tained pleasure imposed might of the await the further it MISSOURI, OF COURT SUPREME 10 v. Drain. District rel. Inter-river put parties. might plaintiff desire his views as perfectly alleged before the action more of cause petition, frequently as is court in the form of an amended right appeal. anticipation he had of an This done R. [Sec. 1229, 1919.] course. S. 'to of do as matter might an immediate desire defendant right to ask He had the costs. dismissal asking course. Instead his due statutory pleasure of his to the exercise as pleasure waiting to learn the de- without amend its own motion fendant, - protest plaintiff, its final of dis- entered for costs. missal and respondent promptly ihis filed

To this by the court. which was sustained aside, motion to set a motion for a the relator motion is called new This designated court thereunder is action of trial and the by bring granting it within new trial order as 1919, Revised 1469, of Section Statutes from the terms support quoted. already To this nomen have which we Revised clature it refers us Section Statutes judicial defining “the exami “trial” the word as parties, they between whether nation of the issues inference is that fact.” The law of issues of ultimate.-rights parties upon which the decision motion to that a set “trial,” rest involves meaning trial within for a a motion new it aside is appeals. allowing relator also refers, -The of the section support to the fact that inference, of this judgpient asks terms for new trial to set aside designates-it a motion the court and that tendency expressions have no to char That these trial. pre setting aside of the court in acterize the following in cases: been determined vious order has Admire, Crossland v. 140; Mo. Hobart, 187 Breed App. Christophel, Mo. 81. The Schwoerer 87;Mo. interesting discussion contains an Case Crossland meaning illustrated num- “trial” as word *9 TERM, APRIL 11 rel. Inter-river Drain. District v. importance which of little authorities, is, erous however, question. determining suggest It is sufficient to code, general pre into that our is divided each articles, scribing practice appropriate heading, under own its treating subject and that after of demurrers and the practice particularity, with thereon much enters, upon procedure Article Section trials, that issues law shall be first provides tried unless provides court shall otherwise direct, and Section 1424 may “the court award new trial of issue.” provisions per That these are not intended to direct or proposition that the decision mit each or issue enters into law and. fact'which the cause of action pleaded may separately appealed goes defense be from, saying. evidently, without It when taken in connection entirety, the code its is, with ling we have said Bart 44 Mo. restrictive in Jamison, nature prevent par intended endless vacillation over each point. It be ticular would absurd to attribute to the Legislature the intention to enable court to di vide each cause of action into all its constituent elements subject sepa of law and and to make each the fact, of a appeal. rate trial and by petition,

III. The cause instituted interposed. Applying the di- demurrer was disposed that issues of law be rection of code should the trial of the issues of fact, of before by the court taken considered sustained and up taking thereon. Instead entered was, plaintiff, while it still from this the set the aside, moved to breast of power unquestionable to do under had down for trial. and set case That circumstances, proper pleading or this motion was purpose is evident. Whatever for that respects, it its words in other contained have been prayer which was aside, suffi- that the set purpose. as we have cient for that seen MISSOURI, OP COURT SUPREME *10 Belting v.

Albrecht Shultz Co. a motion for a new trial, in no sense there had was provision meaning trial within the of been no judgment sustaining ap- making such a motion a code pealable. whatever It have been was, effect, upon of the motion which it or the words was words, only judgment sustaining a a demurrer under entered, subject relating provisions the code to that .the ap- to for new not plicable. supra; [Crossland Admire, Breed Hobart, supra.] peremptory writ

Under these circumstances Ragland, is denied. must be and Small mandamus concur. CC., opinion foregoing of Brown,

PER CURIAM: The opinion adopted in Banc. All of Court as is0., except judges J., Graves, C. J. concur, Woodson, BELTING v. SHULTZ J. ALBRECHT EDWARD Appellant. COMPANY, May Banc, 22, 1923. In Employer. negligence Liability It is MACHINERY: 1. GUARDING machinery faring guard employer within the fail to for an to employee liability damages statute, within results when employer’s injured by protection of the is reason statute practicable guard do. so to it when is failure to “ordinary Ordinary Duties. duties” -: -: The words (Sec. 6786, 1919) requiring factory R. S. in the statute used placed dangerous guarded machinery to “when so be engaged employed persons while or thereabout their therein solely apply ordinary with which work the em- duties” do customary continuously occupied, ployee but embrace and usual dangerous appliance unguarded performed near under acts employed employer. plaintiff was Where in a direction working factory; change belting from street clothes was clothing hung prepared necessary; street shelf company hang there; purpose, directed and he was