MISSOURI SUPREME COURT.

without any protection from the sun, and hav-
ing on the top of each a cupola top with a
manhole in it, and by means of such holes the
cars are filled.

Humpert, who did business for Peters at French Market, across the street from Fuchs' place, testified: That on the 26th of July he went down in the afternoon, with a lighted candle, to put some watermelons away in an ice chest in the cellar, when a cloud of fire came right in his face and knocked him on his knees, etc. His place is about 150 feet from Fuchs' place. And that there was a sewer in the cellar which connected with that one in the alley. That there was a manhole in the alley, over the sewer, which is covered by a grate. This was just back of Peters' building.

Kern next testified that he was in front of Peters' place when the explosion happened; that he saw Humpert, who had just come from the cellar with his clothing on fire; that witness took Humpert's shirt off, the fire from his clothes; and in about the time a person could count ten, a loud report was heard, and the front of Fuchs' building came out.

At the conclusion of the testimony the court, at the instance of defendants, gave instructions in the nature of demurrers to the evidence, whereupon plaintiff took a nonsuit,

etc.

1. It will have been inferred from the foregoing quotations from the pleadings and the evidence that this cause requires consideration from two points of view; one relative to the pleadings, the other to the evidence.

MAY,

exhibition and profert of that evidence somewhat at large. In cases of this sort, as must be obvious, facts are indispensable factors in the trial court in nonsuiting the plaintiff since determining the correctness of the action of those facts must constitute the OGT of plaintiff's action and of the defendant's defense.

minating oil that is sold as kerosene (coal oil) From the facts in evidence it appears illuwill not give off vapor nor produce gas under ordinary temperature; that it only explodes or burns by contact; that crude petroleum, if placed in a large, open vessel in a closed room, would after a short time, if subjected to a temperature of about 60° Fahrenheit, give off sufficient vapor-not gas-to cause an explosion was no evidence, however, as to what the temif the room were entered with a light. There perature of the sewer was, nor as to what the effect would be in the way of generating gas or vapor in the sewer, where, according to the testimony, the proportion of the crude petroleum, etc., must have been exceedingly small when contrasted with the vast quantities of high, and from 5 to 6, 7 and 8, feet deep, even water contained in a sewer 16 feet wide, 12 feet if we adopt the bare conjecture that there was as much as 3,000 or 4,000 gallons of oil turned into the sewer. It is true that the tesoff vapor at a much lower temperature than timony shows that naphtha, etc., would give crude petroleum, but there is no testimony showing what the temperature of the sewer was nor that any naphtha, etc., was turned into the the testimony, we must put out of view as sewer on the day of the fire. So, that, under constituents of the litigated injury naphtha and gasoline, because not shown to have escaped from the tanks, nor to have been conducted into the trenches leading into the sewer; and besides, conceding such escape and such conducting of those fluids, no temperature testimony, kerosene or coal oil and crude petroof the sewer was shown. So that, under the leum must also be excluded from consideration 2. And it is patent of record that the other former does not generate either gas or vapor as injury producing ingredients, because the 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-not 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 & P. M. R. Co. v. Stark, 38 Mich. 714; Cole v. Mc Key, 66 Wis. 500, 57 Am. Rep. 293; 1 Shearm. & Redf. Neg. 4th ed. § 8; Hallihan v. Hannibal & St. J. R. Co. 71 Mo. 113. petition therefore states no facts sufficient to The constitute a cause of action,which may be noticed in this court for the first -a fatal defect, time (Smith v. Burrus, 106 Mo. loc. cit. 97, 13 L. R. A. 59, and cases cited), or on which account objection could have been taken in the lower court to the introduction of any evidence (Butler v. Lawson, 72 Mo. 227). Other matters in regard to the petition will receive comment in a subsequent paragraph.

In the first place there is no evidence to show that the city contracted with the grantors and their assigns or Fuchs to "keep and maintain said sewer in good order, and to care for the said sewer, so that said lot and any improvements which might be put thereon would be free from danger of injury from or on account of said sewer and the use thereof." being the case, there is no right arising out of This contract which could hold the city liable in the premises.

3. Inasmuch as the trial court granted in structions in the nature of a demurrer to the evidence, it has been thought proper to make 1 L. R. A.

complained of.

the facts in evidence already related, which, if 4. But other inferences are to be drawn from possible, even more strongly tend to support not be known with any plausible degree of the conclusion reached by that court. It candence what was the cause of the explosion. probability from the facts developed in eviNo one can carefully read the testimony, and, after due deliberation upon it, be enabled to say what gas or combination or commingling of gases produced the unfortunate result which gave origin to this action. The conditions were favorable, as the evidence shows, to the marsh gas; or carbureted hydrogen, formed by generation of several gases, viz.: Methane, or the decomposition of vegetable matter under 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 coal mines, and is given off when the mud in stagnant pools and marshes is stirred; and the indications are of the possibility of making this gas from the elements, since its constituents may be thus formed (Remsen, Organic' Chem. 23 et seq.), and which constitutes the most abundant ingredient of coal-gas (Flownes, Elem. Chem. 229). Sulphureted hydrogen, or hydrogen sulphide, also a colorless gas, but by no means inodorous, having the odor of putrid eggs, and being the frequent product of the putrefaction of organic matter, both animal and vegetable. Id. 173. Now, if we say nothing of a gas or gases which might result | from an admixture of those aforesaid, and if we admit that the conditions were also favor able to the generation of gas in the sewer from the oils introduced therein, as one of the incidents of the fire, still we are confronted by the rule which declares that where an action is brought for damages which are occasioned by one of two causes, for one of which defendant is responsible and for the other not, the plaintiff is fated to failure if his evidence fails to show that the damages were produced by the former, or if, from the evidence, the probabil ities are equally strong that the damages were caused by the one as by the other. Searles v. Manhattan R. Co. 101 N. Y. 661. This prin ciple finds recognition in Priest v. Nichols, 116 Mass. 401, and Smith v. First Nat. Bank, 99 Mass. 605, 47 Am. Dec. 59.

5. Recurring for a moment to the petition, preparatory to a further discussion of the evi-, dence from other points of view, we find that it charges that "said sewer was provided with openings especially designed to carry off any gases which might arise in said sewer, and be liable to combustion and explosion, etc.. yet said city, its agents and servants, knowing that said defendant the Waters Pierce Oil Company had flooded said sewer with oil, neglected to open said vents [and carelessly and negligently to take measures and precautions to prevent gases arising in said sewer so as to endanger the same"], etc. The words not included in the brackets are those which allege plaintiff's cause of action, because, where a particular act of negligence is specified as a cause of action, there evidence will not be received to support a general allegation of negligence, but the plaintiff will be confined to the act of negligence specifically assigned (Schneider v. Mis souri P. R. Co. 75 Mo. 295; Waldhier v. Hannibal & St. J. R. Co. 71 Mo. 514); from which, premise it results that no evidence was prop erly admissible in regard to the words in brackets. Besides, those words were but the statement of a legal conclusion, something not | traversable. No issue of fact could be raised upon them. Bliss, Code Pl. 3d ed. §§ 212, 213, 413. Under our Code, the facts in pleading are constitutive, and in order to be proved, must be distinctly alleged. Pier v. Heinrichof fen, 52 Mo, 333; First Not. Bank v. Hatch, 78 Mo. 13; Me Kinzie v. Mathews, 59 Mo. 99; Nichols v. Larkin, 79 Mo 264; Lanitz v. King, 93 Mo. 513. Taking, then, the facts specific ally assigned as negligence, and contrasting them with those offered in evidence in their support, we find that within a radius of 250

four openings through which the gases in the
sewer could escape, saying nothing of the sewer
connections at Peters' store, and at Follenius'
marble works; and so the only thing that re-
mains of plaintiff's claim of the city's negli-
gence in this regard is as to the manhole in the
center of the street where Fourth and Fifth
streets intersect each other, and that at the
sidewalk on the west side of Fifth street. Re-
specting the first one, Dr. Fuchs' testimony
shows that it was constructed with a goose
neck, so as to prevent the escape of gases, hav-
ing been changed from a straight pipe, because
the people in the locality complained of the
odors formerly coming from it; so that, even
if the covering had been removed from this
manhole, no gases could have escaped, and it
will not be presumed that plaintiff intended to
include in her petition this manhole, but only
those whose covers, if removed, would have
given ventilation to the sewer,-that is to say,
egress for the gases therein. As to the second
manhole cover, it was the only one which
could have been removed that was not re-
moved. But did the nonremoval of this one
so retard or prevent the escape of gases as to
cause the accident? If it did, then the burden
is on plaintiff to show that it did. It devolved
upon her to "prove facts and circumstances,
from which it can be ascertained with reason-
able certainty what particular precaution the
defendant ought to have taken but did not
take" (1 Shearm. & Redf. Neg. 4th ed.
which of course would include, as a legitimate
corollary therefrom, that, had such particular
precaution been taken, the reasonable prob-
ability is that the accident would not have oc-
curred. Thus, in Daniel v. Metropolitan R.
Co. L. R. 3 C. P. 216, 591, Willes, J., said:
"It is necessary for the plaintiff to establish by
evidence circumstances from which it may
fairly be inferred that there is reasonable prob-
ability that the accident resulted from the want
of some precaution which the defendants
might and ought to have resorted to; and I go
further, and say that the plaintiff should also
show with reasonable certainty what particular
precaution should have been taken." Though
the judgment in this case was reversed on an-
other ground, this doctrine was distinctly af-
firmed in the same volume (page 591) and in
the house of lords (L. R. 5 H. L. Cas. 45); and
the language employed by Willes, J., has been
frequently cited and quoted with approval.
Hayes v. Michigan C. R. Co. 111 U. S. 228, 28
L. ed. 410; Philadelphia, W. & B. R. Co. v.
Stebbing, 62 Md. 504; Williams v. Great West-
ern R. Co. L. R. 9 Exch. 157; Sioux City & P.
R. Co. v. Stout, 84 C. S. 17 Wall. 657, 24 L.
ed. 745; Randall v. Baltimore & O. R. Co. 109
U. S. 478, 27 L. ed. 1003; Lovegrove v. Lon-
don, B. & S. C. R. Co. 16 C. B. N. S. 669.

57),

In the case at bar there was no attempt to make the proof here indicated as necessary; in short, to connect the neglect to remove the cover of the single manhole with the accident. In illustration of this principle it has been ruled, where the jury are told that, if all the evidence satisfied them that there had been negligence on the part of the defendant, although they might not be able to satisfy themselves 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 ground upon which to impute negligence to defendant, they should give a verdict in its favor. McCaig v. Erie R. Co. 8 Hun, 599; Searles v. Manhattan R. Co. supra.

6. Again, if the city is to be held responsible for failing to keep open the vents to the sewers within its jurisdiction, is it to be held liable also if some person passing while the vents are open casts a lighted match into one of them, or the gas from it rises and catches fire from a street lamp, thereby causing an explosion? Is it possible that the city can be thus held responsible whether it does or does not open vents? And yet, if the position taken by plaintiff as ground for recovery in this action be correct.-that the city is responsible for the gases which breed in its sewers,-then the spectacle will soon be presented of actions for damages against the city because-First, it does not open its sewers, and thereby allow the gases therefrom to escape, thereby causing an explosion; because, second, it does open its sewers, and thereby an explosion is caused; because, third, it opens its sewers to allow the gases to escape, and thereby becomes liable for disease and death scattered by reason of the es cape of such gases; because, fourth, it does not pump out the sewage from the sewers, or at least does not use a liberal quantity of disinfectants so as to deodorize the contents of the sewer and thus render them, if not sweet, at least innocuous. Such are the possibilities of municipal liability which present themselves if the present action can be maintained. And if it can, it might be well to suggest that, if the city is thus to be made an insurer, it ought, at least, as some compensation, to be allowed to issue accident policies, and take premiums on the multitudinous risks it is thus compelled to assume. Hitherto it bad been supposed that it was the peculiar and exclusive purpose and function of sewers, and that they were adapted, devised, and designed, to conceal and carry off the foulness which accumulates where great bodies of people congregate, and not to disseminate mephitic odors and gases, thus poisoning the atmosphere throughout the city.

So,

The

of the same height, and coming down upon stanchions in the center of the gangway, leaving the space beneath open. This deck was not designed for passengers, but they were permitted to come upon it with knowledge of defendant's employees. D. came out thereon. His hat blew off. He sprang to recover it, slipped under the gangway rail, fell overboard, and was drowned. It appeared that all the boats upon the lake were constructed in the same manner; that they had been so run for many years; and there was no proof tending to show that any one had ever before gone overboard in this way, or that such danger had been apprehended. Held, that the evidence failed to show negligence on the part of defendant, and that plaintiff was properly nonsuited. too, in Hubbell v. Yonkers, plaintiff was riding along one of defendant's streets, the roadbed of which was 30 feet wide, macadamized, and in good condition. On one side, where the street was graded up about 12 feet, there was a sidewalk 10 feet wide, separated from the roadbed by a curbstone 8 inches high. There was no fence, wall, or other obstruction to guard the outer edge of the sidewalk. horse attached to the wagon in which plaintiff was riding became frightened and commenced to shy, and, spite of the efforts of the driver, went over the curbstone and sidewalk, and down the embankment, carrying the wagon and plaintiff with him. In an action to recover damages for injuries received by plaintiff it appeared that the street had been in the same condition since its opening, over ter years before, and, so far as appeared, no similar accident had occurred. Held, that defendant was not liable, that the accident was oneof a class so rare, unexpected, and unforeseen, defendant could not be charged with negligence for a failure to guard against it. 104 N. Y. 434, 58 Am. Rep. 522. A mule caught its foot in a hole in a railroad track so small that no one could have foreseen such result. Held, no liability. Nelson v. Chicago, M. & St. P. R. Co. 30 Minn. 74. Similar nonliability was announced where a workman was painting by lamplight the inside of a tank with an approved and long used paint, bought ready for 7. Furthermore, Mill Creek sewer, as was use, and the benzine in the 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 nature 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- near 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 which, no one being negligent, no one is responsible. Thus in Dougan v. Champiain Transp. Co. 56 N. Y. 1, D., plaintiff's intestate, was a passenger upon de fendant's boat on Lake Champlain. The for ward deck was surrounded by bulwarks 3

been announced where accidents have happened from machinery, where their liability to happen is proved only by their actual happening. Richards v. Rough, 53 Mich. 212; Sjogren v. Hall, Id. 274. In O'Malley v. Missouri P. R. Co. 113 Mo. 319, the tunnel had

gious and infectious gases and emanations. When a city has, as in this instance, built a sewer in a most admirable manner, and has kept such health-preserving conduit free from obstructions, its complete duty, whether considered a public or a corporate one, has been entirely discharged.

9. It only remains to say that there is nothing in the facts in evidence which by any possibility casts any blame or liability on defendant oil company. It cannot be considered as having permitted the oils to escape and run into the sewer, merely because it did not forbid the oils which ran from its premises into the streets and on the railroad tracks from being turned, by means of trenches dug, into the sewer, nor because it did not use force to prevent this from being done. For the foregoing reasons the judgment should be affirmed; and for which reasons I dissent from the majority opinion.

been used for thirteen years, and in an action | contaminated by foul odors and other contabrought for the death of the plaintiff's husband, employed in the defendant's tunnel, through which it operated locomotives and cars, the petition charged that the tunnel, because the fan that ventilated it was out of repair, was in a dangerous condition, being filled with steam, smoke, and poisonous gases; and that defendant, well knowing this fact, which was unknown to the deceased, negligently ordered him to go into the tunnel, whereby he was choked, strangled, and killed. Held that as there was total failure of the evidence to show that the smoke in the tunnel, when dece lent entered, was dangerous to human life, or to show that defendant could have anticipated a condition of the tunnel dangerous to human life, plaintiff could not recover. To the like effect, see Cooley, Torts, 91 et seq.; Withers v. North Kent R. Co. 27 L. J. Exch. 417; Loftus v. Union Ferry Co. 84 N. Y. 455, 38 Am. Rep. 533; Cleveland v. New Jersey S. B. Co. 68 N. Y. 306: Sutton v. New York C. & H. R. R. Co. 66 N. Y. 243; Bishop, Non-Cont. L. § 182, 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, where the city was held not liable to a person for injuries inflicted by the fall of a market house, caused by a wind storm of unprecedented force and violence. It is unneces sary to say here whether the case might not have rested on another ground. It is certainly opposed, in any event, to a recovery by plaintiff.

8. Moreover, the defendant city, in the construction of Mill Creek sewer and in its maintenance, was and is engaged as a governmental agency in the performance of a public, sanitary duty for the public good, and not for its own private advantage or emolument. In such circumstances it is well settled in this state, as well as in many other jurisdictions, that a municipality is not liable in damages for the wrongful or negligent acts of its officers and servants, unless made thus liable by positive law or by inevitable implication. Murtaugh 7. St. Louis, 44 Mo. 479; Heller v. Sedalia, 53 Mo. 159, 14 Am. Rep. 444; McKenna v St. Louis, 6 Mo. App. 320; Armstrong v. Brunsrick, 79 Mo. 319; Carrington v. St. Louis, 89 Mo. 212, 58 Am. Rep. 108; Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450;

2 Dill. Mun. Corp 4th ed. § 965, 965 975

977, 980, and cases cited. Carrington v. St. Louis, supra, while it correctly states the principle applicable to this class of cases, yet its application in that instance suggests an interrogation point, as to which see $ 58, 60, 210, 974, 975. Dill. Mun. Corp. 4th ed. Besides, if the theory contended for by plaintiff is to prevail, it would result in casting on defendant city a task impossible of performance, as already indicated, and one which, if it could be performed, would subject the city to fresh liabilities by reason of such performance, and, in addition thereto, would defeat and destroy the very purpose and function which a sewer is obviously designed to accomplish, to wit, to prevent the air of the municipality from being

Burgess and Robinson, JJ.,

(Division 2).

concur.

STATE of Missouri, Appt.,

v.

Alexander MCCABE et al., Respts.
Mo.........)

(......

1. The name and signature of a claimant agency subscribed to threatening letters and circulars which are sent in violation of Rev. Stat. 1889, § 3782, is entirely immaterial to the offense of the persons who sent them.

2. The constitutional rights of property do not include the right to send letters or circulars to a debtor, threatening to advertise a claim against him for sale, which constitutes an offense under Rev. Stat. 1889, § 3782, as a threat to injure his credit or reputation.

3. The constitutional guaranty of the right to speak, write, or publish on any subject, does not extend to the sending of letters. "or circulars to a debtor, threatening to advertise a claim against him for sale, which is a threat to injure his credit or reputation, in violation of Rev. Stat. 1889, § 3782.

This is an unlawful threat and was made for | Wait, Act. & Def. 35, 36; Cooley, Torts,! 2d ed. the purpose of extorting money through fear 832. that could not be collected by legal process. But if the threat were even ambiguous the state is entitled to introduce parol evidence to explain its contents or meaning, and whether it contained the alleged threat as charged is a question for the jury.

This is an appeal by the state from a judgment of the St. Louis court of criminal cor rection, quashing an information against the respondents. On January 17, 1896, an information was filed in said court charging defendants with the offense of sending a threatening letter. It was quashed on motion of Bishop, Crim. L. § 1162; Reg. v. Hemmings, information was filed by the assistant prosedefendants. On January 28th an amended 4 Fost. & F. 50; Reg. v. Johnson, 14 U. C. Qcuting attorney, in words and figures as fol