« ForrigeFortsett »
- coal oil was so strong in his house that they | matter of how gases originate that are formed had to close the windows. That his sewer in a sewer. That gases arise by evaporation. connects with the Mill Creek se wer. That They are not made ihat way, but are produced each succeeding night it was the same way, that way by simple evaporation. That some and they could not stand it in the rear of the of the constituents of the oil would evaporate. house, and had to go to the front, because of That this was the case with all kinds of oil this smell of coal oil. There was always some from crude petroleum down to naphtha, -gasoodor coming from the sewer, but not so strong lipe. That illuminating oil tha
is sold as as at the time mentioned. That the odor was kerosene would not give off any vapor under much stronger after the fire than before. ordinary temperature, por would it produce That since the manholes on Fourth and Fifth any gas. I have tried tbat may times.” That streets had covered tops they did not suffer so if you poured such oil on the floor, with a much from the odor. That the branch sewers lighted candle in the room, the oil would not affording connection from his house with the take fire. That it only explodes or burns by Mill Creek sewer had no self-acting safety contact. That crude petroleum gives off a cocks to shut off odors from the sewer in the vapor under ordinary temperature; that is, any yard.
temperature over 60° Fabrenbeit, which is in. Kuntz, a plumber, testified that seven or flammable by coming in contact with fire. eight years ago be connected the premises of That it cannot be called a gas, but is a vapor. the Waters-Pierce Oil Company with the Mill That if you filled a large vessel with crude Creek sewer at a point on Gratiot street op- petroleum, and put it in a closed room, after a posite Thirteenth, to drain their yard; that there time, depending in the atmosphere, there was a grating at the junction of Fourth and would be gas enough in the room to make it Fifth streets over the main sewer, to let the dangerous to go in there with a light. That water flow in.
there would have to be a great deal of ventilaHartung, reporter, testified: That he was tion in a room to prevent it being danger present at the time the fire of the oil company's ous. “I would be afraid of it even in any works occurred, and was there some three case.” That he had given the question of the hours. That he saw men who wore overalls, construction of sewers in a city no attention. and were laborers, who were acting under the That naphtha is one of the first products of command of Lindsay, chief of the fire depart. distillation of petroleum, and is a very light ment, digging trenches in among the railroad oil, and vapors form from it much quicker tracks, and thus conducting the oil and water than they would from petroleum alone. (which was in large quantities in the ground. That gasoline is the same as naphtha only a from 5 to 12 inches deep) to the public sewers. little lighter grade. Asked whether sewer gas That these men at work were about 15 feet or marsh gas would not ignite or burn spon. north of the oil company's plant. That it was taneously, witness said that the former would impossible to tell the proportions of the flow- not, and that ordinary gas would not, to his ing water and oil. That the men were not knowledge. That it would take a very large firemen. That while the works of the oil com- quantity of crude petroleum to generate enough pany were furiously burning, the oil from the vapor to cause Mill Creek sewer to explode. works ran out on the ground and among the That when he spoke of oil evaporating at a railroad tracks on which the cars were stand temperature of 60°, he referred to oil in an ing. That he asked Chief Lindsay “whether open vessel; such a one as would admit of air. there was any danger from that oil that was That from his general reading he knew that scattered among the tracks catching fire and there was a constant generation of gases from damaging the railroad property, and he said, animal and vegetable matter, and was called No,' he thought not; that the men were lead. i "sewer gas,” wbich is a mixture of gases. ing it into those inlets; and I heard him say, That there is a mixture of sulphureted bydroMove along,' 'Is it hot?' and questions of that gen, and maybe some marsh gas. Tbat marsh sort.” That there was no way to prevent the gas emanates frem decaying vegetable matter. oil, etc., from escaping and going northward That witness believed that it was common in into the Union Depot yards, where there were sewers. That the conditions were favorable to cars standing, except by turning it into the it, and that the conditions were more favorable sewers. That the fire department was playing to sulphureted hydrogen being in sewer gas, on the fire at the time the works were burning. and more so than ordinary marsh gas. That That one of the officers of defendant company gas is generated in sewers from human excrestated to him that there was naphtha in some ments, rotting vegetables, and animal matter. of the company's tanks. This witness also That explosions from sulphureted hydrogen or testified that there were 300 or 400 gallons of marsh gas would be about the same in their oil flowed into the sewers, and then, after that, violence as gas from petroleum vapors. That 3,000 or 4,000 gallons; and then said he could in the opinion of witness, if the explosion bad not estimate the quantity, as he could not tell resulted from crude petroleum or other cause, how thick the oil was on the surface of the such sudden ignition would have raised the water.
temperature to about 2.200’, and the heat Wilson, a policeman, testified that just as he would have ignited and burned any petroleum passed the Fuchs place the explosion occurred; in the sewer at the time, and would have igthat a dense smoke came out of the building; nited the petroleum more readily on the surwhich resembled the scent which arises after face of the water than if lying on a dry surthe extinguishment of a gaosline stove.
face. This witness could not state what the Enger, a gas engineer, who had twenty-one temperature of the sewer was. That tank cars years' experience in making gas from petro containing hundreds of barrels of oil are conleum and its products, had not studied the stantly being transported all over the country without any protection from the sun, and hav- exhibition and profert of that evidence someing on the top of each a cupola top with a what at large. In cases of this sort, as must manbole in it, and by means of such holes the be obvious, facts are indispensable factors in cars are filled.
determining the correctness of the action of Humpert, who did business for Peters at the trial court in popsuiting the plaintiff since French Market, across the street from Fuchs' those facts must constitute the TO VOTW of place, testified: Tbat on the 26th of July be plaintiff's action and of the defendant's defense. went down in the afternoon, with a lighted From the facts in evidence it appears illucandle, to put some watermelons away in an minating oil that is sold as kerosene (coal oil) ice chest in the cellar, when a cloud of fire will not give off vapor por produce gas under came right in his face and knocked bim on his ordinary temperature; that it only explodes or knees, etc. Ilis place is about 150 feet from burns by contact; that crude petroleum, if Fuchs' place. And that there was a sewer in placed in a large, open vessel in a closed room, the cellar which connected with that one in the would after a short time, if subjected to a temalley. That there was a manhole in the alley, perature of about 60' Fahrenheit, give off sufover the sewer, which is covered by a grate. ficient vapor-not gas-to cause an explosion This was just back of Peters' building. if the room were entered with a light. There
Kern vext testified that he was in front of was no evidence, however, as to what the temPeters' place when the explosion happened; perature of the sewer was, nor as to what the that he saw Humpert, who had just come from effect would be in the way of generating gas. the cellar with his clothing on fire; that wit- or vapor in the sewer, where, according to the ness took Humpert's shirt off, the fire from his testimony, the proportion of the crude petroclothes; and in about the time a person could leum, etc., must have been exceedingly small count ten, a loud report was heard, and the when contrasted with the vast quantities of front of Fuchs' building came out.
water contained in a sewer 16 feet wide, 12 feet At the conclusion of the testimony the court, high, and from 5 to 6, 7 and 8, feet deep, even at the instance of defendants, gave instruc- if we adopt the bare conjecture that there tions in the nature of demurrers to the evi. was as much as 3,000 or 4,000 gallons of oil dence, whereupon plaintiff took a nonsuit, turned into the sewer. It is true that the tes. etc.
timony shows that naphtba, etc., would give 1. It will have been inferred from the fore-off vapor at a much lower temperature tban going quotations from the pleadings and ihe crude petroleum, but there is no testimony evidence that this cause requires consideration showing what the temperature of the sewer was from two points of view; one relative to the nor that any naphtha, etc., was turned into the pleadings, the other to the evidence.
sewer on the day of the fire. So, that, under In the first place there is no evidence to the testimony, we must put out of view as show that the city contracted with the grantors constituents of the litigated injury napbtba and their assigns or Fuchs to “keep and main- and gasoline, because not shown to have tain said sewer in good order, and to care for escaped from the tanks, nor to have been the said sewer, so that said lot and any improve conducted into the trenches leading into the ments which might be put thereon would be sewer; and besides, conceding such escape and free from danger of injury from or on account such conducting of those fluids, no temperąture of said sewer and the use thereof." This of the sewer was shown. So that, under the being the case, there is no right arising out of testimony, kerosene or coal oil and crude petrocontract which could hold the city liable in leum must also be excluded from consideration the premises.
as injury-producing ingredients, because the 2. And it is patent of record that the other former does not generate either gas or vapor portions of the petition do not state that it was under ordinary temperature, 60°, nor the latter the duty of the city to keep Mill Creek sewer free generate anything but vapor-pot gas—under from noxious or dangerous gases, or free from that temperature; and no testimony as to what fluids and substances which would generate degree of heat or cold existed in the sewer, and such gases. Unless the duty of the city to do gases-not vapors--are alleged in the petition this is alleged in the petition, it states no negli- as the cause of the explosion. These things gence: for duty unperformed is the sole predi- alone would certainly seem to warrant the rulcate of negligence, and without it the latter caning of the trial court in giving the instructions not exist. Cooley. Torts, 2d ed. 791, 792; Flint complaived of. & P. M. R. Co. v. Stark. 38 Mich. 714; Cole v. 4. But other inferences are to be drawn from Mckey, 66 Wis. 500, 57 Am. Rep. 293; 1 the facts in evidence already related, which, if Shearm. & Redf. Neg. 4th ed. S 8; Hallihan possible, even more strongly tend to support v. Hannibal & St. J. R. Co. 71 Mo. 113. The the conclusion reached by that court. It canpetition therefore states no facts sufficient to not be known with any plausible degree of constitute a cause of action,-a fatal defect, probability from the facts developed in eviwhich may be noticed in this court for the first dence what was the cause of the explosion. time (Smith v. Burrus, 106 Mo. loc. cit. 97, 13 No one can carefully read the testimony, and, L. R. A. 59, and cases cited), or on which ac- after due deliberation upon it, be enabled to count objection could have been taken in the say what gas or combination or commingling lower court to the introduction of any evidence of gases produced the unfortunate result which (Butler v. Lauson, 72 Mo. 227). Other matters gave origin to this action. The conditions in regard to the petition will receive comment were favorable, as the evidence shows, to the in a subsequent paragraph.
generation of several gases, riz.: Methane, or 3. Ipasmuch as the trial court granted in- marsh gas; or carbureted hydrogen, formed by structions in the nature of a demurrer to the the decomposition of vegetable matter under evidence, it has been thought proper to make l water, also known as fire damp, colorless and inodorous, which is the cause of the ex. feet from Fuchs' place of business there were plosions which so frequently take place in four openings through which the gases in the coal mines, and is given off when the mud in sewer could escape, saying nothing of the sewer stagnant pools and marshes is stirred; aud the connections at Peters' store, and at Follenius' indications are of the possibility of making marble works; and so the only thing that rethis gas from the elements, since its constitu- ! mains of plaintiff's claim of the city's neglients may be thus formed (Remsen, Organic gence in this regard is as to the manhole in the Chem. 23 et seq.), and which constitutes the center of the street where Fourth and Fifth most abundant ingredient of coal-gas (Flownes, streets intersect each other, and that at the Elem. Chem. 229). Sulpbureted hydrogen, or sidewalk on the west side of Fifth street. Rehydrogen sulphide, also a colorless gas, but by specting the first one, Dr. Fuchs' testimony no means inodorous, having the odor of putrid shows that it was constructed with a goose eggs, and being the frequent product of the neck, so as to prevent the escape of gases, hav. putrefaction of organic matter, both animal ing been changed from a straight pipe, because and vegetable. Id. 173. Now, if we say the people in the locality complained of the nothing of a gas or gases wbich might result odors formerly coming from it; so that, even from an admixture of those aforesaid, and if if the covering had been removed from this we admit that the conditions were also favor manhole, no gases could have escaped, and it able to the generation of gas in the sewer from will not be presumed that plaintiff intended to the oils introduced therein, as one of the inci. include in her petition this manhole, but only dents of the fire, still we are confronted by the those whose covers, if removed, would have rule which declares that where an action is given ventilation to the sewer,—that is to say, brought for damages which are occasioned by egress for the gases therein. As to the second one of two causes, for one of wbich defendant manhole cover, it was the only one which is responsible and for the other not, the plain- could have been removed that was not retiff is fated to failure if his evidence fails to moved. But did the nonremoval of this one show that the damages were produced by the so retard or prevent the escape of gases as to former, or if, from the evidence, the probabil cause the accident? If it did, then the burden ities are equally strong that the damages were is on plaintiff to show that it did. It devolved caused by the one as by the other. Searles v. upon her to “prove facts and circumstances, Manhattan R. Co. 101 N. Y. 661. This prin from which it can be ascertained with reasonciple finds recognition in Priest v. Nichols. 116 able certainty what particular precaution the Mass. 401, and Smith v. First Nat. Bank, 99 defendant ought to have taken but did not Mass. 605, 47 Am. Dec. 59.
take” (1 Shearm. & Redf. Neg. 4th ed. $ 57), 5. Recurring for a moment to the petition, which of course would include, as a legitimate preparatory to a further discussion of the evi- corollary therefrom, that, had such particular dence from other points of view, we find that precaution been taken, the reasonable probit charges that “said sewer was provided with ability is that the accident would not have ocopenings especially designed to carry off any curred. Thus, in Daniel v. Metropolitan R. gases which might arise in said sewer, and be Co. L. R. 3 C. P. 216, 591, Willes, J., said: liable to combustion and explosion, etc., yet “It is necessary for the plaintiff to establish by said city, its agents and servants, knowing that evidence circumstances from which it may said defendant the Waters Pierce Oil Company fairly be inferred that there is reasonable probhad flooded said sewer with oil, neglected to ability that the accident resulted from the want open said vents [and carelessly and negligently of some precaution which the defendants to take measures and precautions to prevent might and ought to have resorted to; and I go gases arising io said sewer so as to endanger further, and say that the plaintiff should also the same”], etc. The words not included in show with reasonable certainty what particular the brackets are those which allege plaintiff's precaution should have been taken." Though cause of action, because, where a particular act ihe judgment in this case was reversed on anof negligence is specified as a cause of action, other ground, this doctrine was distinctly afthere evidence will not be received to support firmed in the same volume (page 591) and in a general allegation of negligence, but the the bouse of lords (L. R. 5 H. L. Cas. 45); and plaintiff will be confined to the act of negli- the language employed by Willes, J., has been gence specifically assigned (Schneider v. Mis frequently cited and quoted with approval. souri P. R. Co. 75 Mo. 295; Waldhier v. Han- Hayes v. Michigan C. R. Co. 111 U. S. 228, 28 nibal & St. J. R. Co. 71 Mo. 514); from which L. ed. 410; Philadelphia, W. & B. R. Co. v. premise it results that no evidence was prop. Stebbing, 62 Md. 504; Williams v. Great Westerly admissible in regard to the words in ern R. Co. L. R. 9 Exch. 157; Sioux City & P. brackets. Besides, those words were but the R. Co. v. Stout, 84 C. S. 17 Wall. 657, 24 L. statement of a legal conclusion, something not ed. 745; Randall v. Baltimore & 0. R. Co. 109 traversable. No issue of fact could be raised U. S. 478, 27 L. ed. 1003; Lovegrove v. Lonupon them. Bliss, Code Pl. 3d ed. $$ 212, don, B. & S. C. R. Co. 16 C. B. N. S. 669. 213, 413. Under our Code, the facts in plead- In the case at bar there was no attempt to ing are constitutive, and in order to be proved, make the proof here indicated as necessary; in must be distinctly alleged. Pier v. Heinrichof short, to connect the neglect to remove the fen, 52 Mo. 333; First Nat. Bank v. Hatch, 78 cover of the single manhole with the accident. Mo. 13; McKinzie y. Matheus, 59 Mo. 99; In illustration of this principle it bas been Nichols v. Larkin, 79 Mo 264; Lanitz v. King, ruled, where the jury are told that, if all the 93 Mo. 513. Taking, then, the facts specific evidence satisfied them that there had been ally assigned as negligence, and contrasting negligence on the part of the defendant, althem with those offered in evidence in tbeir though they might not be able to satisfy themsupport, we find that within a radius of 250 selves in what that negligence consisted, they
uld be authorized to find a verdict for or 4 feet high, with gangways upon each plaintiff, that such a charge was erroneous; side, closed by rails hinged to the bulwarks, and that, if the jury could not find any rational of the same height, and coming down upon stanground upon which to impute negligence to chions in the center of the gangway, leaving the defendant, they should give a verdict in its space bepeath open. This deck was not defavor. McCaig v. Erie R. Co. 8 Hun, 599; signed for passengers, but they were permitted Searles v. Manhattan R. Co. supra.
to come upon it with knowledge of defendant's 6. Again, if the city is to be held responsi- employees. D. came out thereon. His bat blew ble for failing to keep open the vents to the off. He sprang to recover it, slipped under sewers witbin its jurisdiction, is it to be held tbe gangway rail, fell overboard, and was liable also if some person passing while the drowned. It appeared that all the boats upon vents are open casts a lighted match into one the lake were constructed in the same manner; of them, or tbe gas from it rises and catches that they had been so run for many years; and fire from a street lamp, thereby causing an ex- there was no proof tending to show that any plosion? Is it possible that the city can be tbus one had ever before gone overboard in this held responsible whether it does or does not way, or that such danger bad been appreopen vents? And yet, if the position taken by bended. Held, that the evidence failed to plaintiff as ground for recovery in this action show negligence on the part of defendant, be correct.-tbat the city is resjionsible for the and that plaintiff was properly nonsuited. So, gases wbich breed in its sewers,—then the too, in Hubbell v. Yonkers, plaintiff was riding spectacle will soon be presented of actions for along one of defendant's streets, the road bed damages against the city because–First, it does of which was 30 feet wide, macadamized, and not open its sewers, and thereby allow the in good condition. On one side, where ibe gases iherefrom to escape, thereby causing an street was graded up about 12 feet, there was explosion; because, second, it does open its a sidewalk 10 feet wide, separated from the sewers, and thereby an explosion is caused; roadbed by a curbstone 8 inches high. There because, third, it opens its sewers to allow the was no fence, wall, or other obstruction to gases to escape, and thereby becomes liable for guard the outer edge of the sidewalk. The disease and death scaitered by reason of the es borse attached to the wagon in which plaintiff cape of such gases; because, fourth, it does was riding became frigbiened and commenced not pump out the sewage from the sewers, or to shy, and, spite of the efforts of the driver, at least does not use a liberal quantity of dis- went over the curbstone and sidewalk, and infectants so as to deodorize ihe contents of down the embankment, carrying the wagon the sewer and ibus render them, if not sweet, and plaintiff with him. In an action to at least innocuous. Such are the possibilities of recover damages for injuries received by municipal liability which present themselves plaintiff it appeared that the street had been if the present action can be maintained. And in the same condition since its opening, over ter if it can, it migbt be well to suggest that, if years before, and, so far as appeared, no simithe city is thus to be made an insurer, it ought, Iar accident bad occurred. Held, that defendat leasi, as some compensation, to be allowed ant was not liable, that the accident was oneto issue accident policies, and take premiums of a class so rare, unexpected, and unforeseen, on the multitudinous risks it is thus compelled defendant could not be charged with neglito assume. Hitherto it bad been supposed that gence for a failure to guard against it. 104 N. it was the peculiar and exclusive purpose and Y. 434, 58 Am. Rep. 522. A mule caught its function of sewers, and that they were foot in a hole in a railroad track so small that adapted, devised, and designed, to conceal and no one could have foreseen such result. Held, carry off the foulness wbich accumulates no liability. Nelson v. Chicago, M. & St. P. where great bodies of people congregate, and R. Co. 30 Minn. 74. Similar nooliability was not to disseminate mephitic odors and gases, announced where a workman was painting by thus poisoning the atmosphere throughout the lamplight the inside of a tank with an apcity.
proved and long.used paint, bougbt ready for 7. Furtbermore, Mill Creek sewer, as was use, and the benzine in tbe paint caused an conceded at the trial, was constructed in a explosion. Allison Mfg. Co. v. McCormick, manner that left nothing to be desired. It had 118 Pa. 519. From some unexplained cause a been built some thirty-four years, and no acci- telegraph wire across a track sagged, and, hitdent of the pature now presented had ever oc- ting a brakeman on top of a car, broke, at the curred in it. Indeed, it does not appear that same time becoming fastened to the car brake. an occurrence of such sort had ever before the end caught a man engaged in business happened. Now, it is settled by abundant au- pear the depot, and, the wire being drawn thorities, and by numerous and frequent ad-along by the moving train, the man was killed. judications, that it is not negligence to omit a Held to be an accident. “Negligence," says precaution which, if taken, would have pre- Mitchell, Ch. J., “is not to be presumed from vented the injury, when the injury could not the fact of an occurrence like that involved in reasonably have been anticipated, and would the present case, the statement of which sugnot, unless in exceptional circumstances, have gests its anomalous, exceptional, and extraordihappened because of the omission. Such in nary character.” Wabash, St. L. & P. R. Co. stances are assigned to the domain of inevita v. \Locke, 112 Ind. 404. Like rulings have ble accident, for wbich, no one being negli- been announced where accidents have bapgent, no one is responsible. Thus in Dougan pened from machinery, where their liability to v. Champiain Transp. Co. 56 N. Y. 1, D., bappen is proved only by their actual happen. plaintiff's intestate, was a passenger upon de ing. Richards v. Rough, 53 Mich. 212; fendant's boat on Lake Champlain. The forSjogren v. Hall, Id. 274. In O'Malley v. Misward deck was surrounded by bulwarks 3 l souri P. R. Co. 113 Mo. 319, the tunnel had
been used for thirteen years, and in an action contaminated by foul odors and other contabrought for the death of the plaintiff's husband, gious and infectious gases and emanations. employed in the defendant's tunnel, through When a city bas, as in this instánce, built a which it operated locomotives and cars, the sewer in a most admirable manner, and bas petition charged that tbe tunnel, because the kept such health-preserving conduit free from fan that ventilated it was out of repair, was in obstructions, its complete duty, whether cona dangerous condition,, being filled with steam, sidered a public or a corporate one, has been sm and poisonous gases; and that defend entirely discharged. ant, well knowing this fact, which was un- 9. It only remains to say that there is nothknown to the deceased, negligently ordered ing in the facts in evidence which by any poshim to go into the tunnel, whereby he was sibility casts any blame or liability on defendchoked, strangled, and killed. Held that as ant oil company. It cannot be considered as there was total failure of the evidence to sbow having permitted the oils to escape and run that the smoke in the tunnel, wben dece lent into the sewer, merely because it did not forbid entered, was dangerous to human life, or to the oils which ran from its premises into the show that defendant could have anticipated a streets and on the railroad tracks from being condition of the tunnel dangerous to human turned, by means of trenches dug, into the life, plaintiff could not recover. To the like sewer, por because it did not use force to preeffect, see Cooley, Torts, 91 et seq.; Withers v. vent this from being done. For the foregoing North Kent R. Co. 27 L. J. Exch. 417; Loftus reasons the judgment should be affirmed; and v. Union Ferry Co. 84 N. Y. 455, 38 Am. Rep. for which reasons I dissent from the majority 533; Cleveland v. New Jersey S. B. ('o. 68 N. opinion. Y. 306; Sutton v. New York C. & H. R. R. Co. 66 N. Y. 243; Bishop, Non-Cont. L. SS 182, Burgess and Robinson, JJ., concur. 447; Bishop v. •Union R. Co. 14 R. I. 314, 51 Am. Rep. 386; Wright v. Wilmington, 92 N. C. 156. The same principle is recognized in Flori v. St. Louis, 69 Mo. 341, 33 Am. Rep. 504, wbere the city was held not liable to a
(Division 2). person for injuries ipflicted by the fall of a
STATE of Missouri, Appt., market house, caused by a wind storm of unprecedented force and violence. It is unnecessary to say here whetber the case might not
Alexander McCABE et al., Respts. bave rested on another ground. It is certainly opposed, in any event, to a recovery by plain.
(........Mo.........) tiff. 8. Moreover, the defendant city, in the con
1. The name and signature of a claim. struction of Mill Creek sewer and in its main.
ant agency subscribed to threatening letters
and circulars which are sent in violation of Rey. tenance, was and is engaged as a governmental
Stat. 1859, $ 3782, is entirely immaterial to the agency in the performance of a public, sanitary
offense of the persons who sent them. duty for the public good, and not for its own 2. The constitutional rights of property private advantage or emolument. In such circumstances it is well settled in this state, as
do not include the rigbt to send letters
or circulars to a debtor, threatening to advertise well as in many other jurisdictions, that a mu
a claim against him for sale, wbich constitutes nicipality is not liable in damages for the
an offense under Rev. Stat. 1889, $ 3782, as a threat wrongful or negligent acts of its officers and
to injure bis credit or reputation. servants, unless made thus liable by positive 3. The constitutional guaranty of the law or by inevitable implication. Murtaugh
right to speak, write, or publish on any v. St. Louis, 44 Mo. 479; Heller v. Sedalia, 53 subject, does not extend to the sending of letters Mo. 159, 14 Am. Rep. 444; McKenna v St. *or circulars to a debtor, tbreatening to advertise Louis, 6 Mo. App. 320; Armstrong v. Bruns- a claim against him for sale, which is a threat to wick, 79 Mo. 319; Carrington v. St. Louis, 89 injure his credit or reputation, in violation of Mo. 212, 58 Am. Rep. 108; Moxmilian v. Nero Rev. Stat. 1889, 8 3782. York, 62 N. Y. 160, 20 Am. Rep. 468; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; De.
(October 7, 1896.) troit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450; 2 Dil, Mun. Corp 4th ed. s$ 965, 9658. 975- | A PREAL by the state from a judgment of Louis, supra, wbile il correctly states the prin quasbing an indictment for sending threatening ciple applicable to this class of cases, yet its letters contrary to the provisions of the statute.
Reversed. application in that instance suggesis an interrogation point, as to which see = 58, 60, 210,
The facts are stated in the opinion. 974, 975, Dill. Mun. Corp. 4th ed. Besides, if
Messrs. Thomas E. Mulvihill, James the theory contended for by plaintiff is to pre
L. Hopkins, and Howe & Howe, for apvail, it would result in casting on defendant pellant: city a task impossible of performance, as
The information is drawn under $ 3782, Rev.. already indicated, and one which, if it could Stat. 1889, and is in proper and approved
form. be performed, would subject the city to fresh liabilities by reason of such performance, and,
Kelley, Crim. Law & Pr. $ 919; State v. in addition thereto, would defeat and destroy Barr, 28 Mo. App. 84. the very purpose and function wbich a sewer
NOTE.-For libel by bad-debt collection agency, is obviously designed to accomplish, to wit, to see also State v. Armstrong (Mo.) 13 L. R. A. 419; . prevent the air of the municipality from being Muetze v. Tuteur (Wis.) 9 L. R. A. 86.