Plaintiff testified positively that on the third, fourth, or fifth floors there was no temporary flooring between the girders, except a plank run, over which to run wheelbarrows, usually three of such runs, one through the center, the others on the sides; nothing else in the rest of the space between the girders, except joists about 16 feet apart, and 8 by 14 inches, the girders about 14 inches square, the space between the joists about 4 feet, 2 joists between each girder. Plaintiff testified that under the direction of his immediate foreman, he was on the third floor using a plumb line, hanging down over the floor above to get measurements for timbers on which he was working; that he was in a stooping position, measuring, when something came down from above and hit him on the back of the head. It was a piece of wood, he thought, about 2 feet long. It knocked m unconscious and off of the girder. Plaintiff was sure that the object which struck him came from the fourth or fifth floor. board 2 feet long. He became unconscious brick layers, which, when they were used by and fell from the third floor, a distance of the brick layers on a floor, were removed about 30 feet, and received the injuries com- from that floor and taken to the next floor plained of. The building in question was above, on which they would place their treswhat is known as a slow combustion build- tles and materials. ing, with its interior frame work made both of steel and wood, that is its joists and girders were steel and wood and with columns about 15 feet apart. The building when completed was to be seven stories high, its exterior walls of brick but at the time of the accident the brick work had only been completed to the fourth floor and the brick masons and hod carriers were working on that floor at the time plaintiff was injured. The girders of the building were laid about 16 feet apart and joists were laid in between the girders, about 4 feet apart, on the respective floors. There was an engine and hoist at the rear or east end of the building, on the first floor, used for conveying material up through the building, and on the second floor there were some boards over the engine to protect the engineer below. There was an open space along the north wall of the building, about 51 feet from the front, left open to be used as an elevator shaft but not inclosed or caged in, and the plaintiff was standing south of this when he was struck, this shaft, On cross-examination plaintiff repeated or space designed for a shaft, being in the that he was positive that when he was hurt same condition as the rest of the floors; that the brick layers were at work on the west is, according to the testimony for plaintiff, all and north walls of the floor above; that open and uncovered, except as to the cover there was no covering over the whole on this for the engine on the second floor, and scaf- floor; that he was not sure what hit him; fold boards on the fourth floor, which, ac- would not say that that made him unconcording to the testimony on behalf of plain-scious at once but was unconscious when tiff, covered only about one-fourth of the he fell, and did not know whether he became space of the fourth floor, or so much only as was needed for the brick 'ayers to put their scaffolds and materials on in the prosecution of the brick work, There also appears to have been runways to run a wheelbarrow over, from one part of these floors to the other when the brick layers were at work. According to the testimony for plaintiff, there had been no permanent floors and no temporary floors laid on either of the floors above, and that evidence tended to show that it was customary in buildings of this kind to either lay a thick permanent floor on each floor as the building progressed, and then lay a thin finished floor over it when the building was nearing completion, or to lay a temporary floor on the respective floors as the building progressed, for the protection of workmen. Neither of these plans, however, according to the testimony for plaintiff, were here pursued. That evidence tended to show that in a building of this kind -a slow combustion building—as it is called, it is not practical to lay the permanent, heavy floor as the building goes up from floor to floor, as often times it would get wet and expand. There was also evidence that there That some temporary flooring laid on the joists and girders outside of the covering over the engine on the second floor, and also the so when he was hit or when he hit the first floor; knew he had become so when he hit the first floor, or between, and was so when he struck the first floor; was sure that the thing that hit him came from above; saw t before he became unconscious; thinks it was a plank a couple of feet long; had had on a heavy woolen cap and the thing which struck him left no scar, just a sore spot. There was some corroborative evidence of plaintiff's testimony, and from even his own witnesses, and from all of defendant's witnesses, contradictory testimony as to the fact of the floors being covered. All this testimony as to the covering of the upper floors was objected to by the defendant throughout the whole trial as a matter not covered by the petition, and objection was specifically made on that ground when plaintiff offered and introduced the city ordinance, section 406, Rombauer's Revised Ordinances of the City of St. Louis 1912, p. 608. That section reads as follows: "It shall be the duty of the person or persons having charge of the construction of any building hereafter erected, to have joists or girders of each floor above the second floor covered with scaffold boards or other suitable material as the building progresses, so as to sufficiently protect joists or girders, or to protect the workmen or the workmen, either from falling through such others who may be under or below each floor whereby accidents happen, injuries occur, and life | and limb are endangered." The assignments of error made by the learned counsel for appellant are, first in admitting testimony as to a cause of action different from that alleged in plaintiff's petition; second, that in this action, based upon common law negligence, in permitting plaintiff to introduce testimony tending to show negligence under an ordinance not pleaded nor referred to in the petition, not in issue in the case, and which evidence tends in nowise nor manner to prove common law negligence, and in permitting plaintiff to recover upon such cause of action without a scintilla of proof of common law negligence; third, in admitting testimony tending to show that the defendant had not covered with scaffold boards each floor above the second floor of the building under construction at the time of plaintiff's injury; and, fourth, in admitting in evidence the ordinance which was the sole basis of plaintiff's right of action. "The defendant railroad company contends that as the petition does not allege that it violated city ordinance 1753, it was error to admit it in evidence for the purpose of proving the company guilty of negligence in failing to have a man stationed on the back end of the The action is not based upon any ordinance or train. The petition alleges negligence, generally. statute but is as at common law. The authori ties in this state are all one way that an ordinance of a city, which forms the basis of an pleaded cannot be introduced in evidence. (Citaction, must be specially pleaded and if not ing cases.) But all of these cases hold that where the action is not based upon an ordinance, but is at common law, and where the but only prescribes a duty to be performed, the ordinance itself does not give a right of action, ordinance is admissible for the purpose of proving negligence. The ordinance offered in evidence furnishes no cause of action; it only prescribes certain duties to be performed by railroads operating trains within the limits of the city. It would be negligence to omit the perauthorities, supra, the ordinance was properly admitted in evidence." These four assignments are practically on formance of these duties and we think, on the the same point. [1] When the taking of testimony was commenced, learned counsel for appellant objected to the introduction of any evidence on the ground that the petition did not state facts sufficient to constitute any cause of action and did not allege any acts which constitute negligence. This was overruled, overruled, plaintiff excepting. We think that objection was properly overruled. A motion to make the petition more specific as to the negligence relied on, might have been proper, but no such motion was made, and after judgment, as here, we think the petition is sufficient. Section 7843, Revised Statutes 1909, provides: "All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or nearby." The city ordinance referred to, and which we have quoted, is but a particularization of this part of the section. In point of fact, this presents a case of negligence in failing to provide a safe place to work-actionable at common law. In Fisher v. Golladay, 38 Mo. App. 531, loc. cit. 537, it is said by Judge Ellison, speaking for the Kansas City Court of Appeals: [2] Learned counsel for appellant argues that there is no common law rule providing for the putting in of floors as the work progresses. Nevertheless, where an injury results from the failure to put in floors, and the statute or ordinance requires them, the omission goes to the establishment of negligence and the ordinance, doing no more than making special, specific provisions, was not improperly admitted, although not pleaded, as tending to show negligence. It is true that when a party alleges specific acts of negligence, he is held to the proof of those acts, but that is very far from holding that when a party alleges negligence, generally, he cannot prove specific acts. In Bailey v. Kansas City, 189 Mo. 503, 514, 87 S. W. 1182, 1186, it is said: violation of a duty imposed alone by a munici"If a cause of action is based directly on a pal ordinance, the pleading should set forth the specific ordinance in hand because courts will not take judicial notice of its existence. (Citing cases.) But if an ordinance of a city is used as a mere matter of evidence, no good reason is perceived why it should be pleaded; for to plead evidential facts is bad, and, on principle, Now, the case under the fourth amended petition the rule applies to ordinances. (Citing cases.) is not based on the violation of a municipal ordinance, but is based on the violation of a duty imposed by general law. Therefore, the objection, in the form made, was properly overruled." In Bragg v. Metropolitan St. Ry. Co., 192 Mo. 331, 91 S. W. 527, practically the same rule is announced as in the Bailey Case, supra. We therefore hold that all of the objections made to the introduction of this testimony and to the ordinance were properly overruled. "The wrongful act complained of the act. which led to the injury-was carelessly selling and delivering to the plaintiff a deadly poison instead of the harmless medicine he called for. The contention of counsel presupposes that no act of negligence can be proved except it be alleged in the petition. This position is untenable. The allegation in a pleading that the party, complained against, negligently committed the particular act which led to the injury, whose redress is sought, furnished the predicate for the proof of all such incidental facts and cirThe fifth assignment is to the rejection of cumstances, both of omission and commission, as fairly tend to establish the negligence of the proper testimony offered by defendant and primary fact complained of. This rule of plead-in refusing to permit proper cross-examinaing is abundantly established by authority." tion of plaintiff's witnesses. As our atten tion is not called to these alleged errors in the argument, it is not necessary to notice this assignment. [3] The sixth assignment is to the refusal to give a peremptory instruction, directing a verdict for defendant. That instruction was properly refused. The testimony, it is true, is contradictory and conflicting but there was substantial evidence in the case entitling the plaintiff to go to the jury and that being so, we cannot interfere. [4] The seventh and eighth assignments are to error in giving instructions 1, 2 and 3, asked by defendant, and in refusing instructions 2 and f, asked by defendant. We might decline to consider these assignments because of the language of the motion for new trial. The only attacks in the motion for a new trial, made upon the action of the court on instructions, are the fifth ground which is to the action of the court "in giving instructions to the jury as asked by plaintiff, duly objected to by defendant," and the sixth, "In refusing proper declarations of law asked by defendant." In Raifeisen v. Young, 183 Mo. App. 508, 167 S. W. 648, it is held that a motion for new trial must set out the reasons therefor so definitely as to direct the attention of the trial court to the precise ground of complaint. In Lampe v. United Railways Co., 202 S. W. 438, a decision by our court handed down April 2nd, 1918, being number 15,823, and not yet officially reported, the motion for new trial set out as its grounds, "Because the court erred in refusing to give and read to the jury legal and proper instructions requested by defendant" and "because the court erred in giving and reading to the jury erroneous, illegal, and misleading instructions on behalf of plaintiff and over defendant's objections thereto." the jury that if they found plaintiff was working for the defendant, and if they further found that while doing this on the third floor of the building "a piece of building material or other substance fell from some floor, or location, above and struck plaintiff, by reason whereof plaintiff was knocked, or fell, from the third floor of said building to the first floor thereof, and was injured; and if you further find and believe from the evidence that at, and immediately preceding, plaintiff's injuries, if any, the defendant failed to exercise ordinary care to have the joists or girders on each floor of said building above the second floor covered with scaffold boards, or other suitable material, as the building progressed, so as to sufficiently protect workmen; that is, to make it reasonably safe for workmen and for the plaintiff from falling through such joists or girders of said building and to protect workmen, or make it reasonably safe for workmen, or plaintiff, who might be under or below the floors of said building from falling bricks, or other substances; and if you further find and believe from the evidence that such failure on defendant's part, if any you find, to have the joists or girders of each floor above the second floor of said building covered with scaffold boards or other suitable material to make it reasonably safe for workmen, or plaintiff, as the building progresses, was negligence; and if you further find and believe from the evidence that such negligence, if any, directly caused the plaintiff's injuries sued for herein, then you will find a verdict for the plaintiff in this case, providing that you further find that the plaintiff at the time of his injuries was exercising ordinary care for his own safety." The court further defined "ordinary care," and rules for the measurement of damages, if there was a verdict for plaintiff. We find no error then in either of these instructions, which were the only ones given at the instance of plaintiff. Finding no reversible error, the judgment of the circuit court is affirmed. ALLEN and BECKER, JJ., concur. (199 Mo. App. 380) [5] We held in that case that the sufficiency of these assignments had been before our Supreme Court in a number of recent cases and had been discussed at length in Wampler v. Atchison, T. & S. F. Ry. Co., 269 Mo. 464, 190 S. W. 908. In the Wampler Case an assignment somewhat similar to the one before us and now present was held sufficient in a civil case, the rule, however, differing in criminal cases. But in the recent case of Kansas City Disinfecting & Manufacturing Co. v. Bates County, not yet officially reported, but see (Sup.) 201 S. W. 92, an assignment in the motion for new trial, that the court refused proper declarations of law offered by plaintiff, was held not to be sufficient as an as- In construing the Bulk Sales Law (Laws signment of error in a civil case. Following 1913, p. 163), a statute penal in its nature, no this and in line with our own decision in the sales are to be included as coming within its Lampe Case, we must hold that these as-in bulk laws, being in derogation of the compurview unless clearly within its terms, as sales signments of error to the giving and refus- mon law, and of a person's right to alienate his ing of instructions is insufficient. It is not property without restriction, must be strictly out of place to say, however, that we have construed. in this case examined the principal instruction given by the court at the instance of plaintiff and we find no error in it. It told BALTER et al. v. CRUM et al. (No. 15077.) 2. FRAUDULENT CONVEYANCES 5 BULK 3. FRAUDULENT CONVEYANCES 47 SALES [ demanded or received from said vendor a IN BULK LAW-LIVERY STABLE KEEPER"STOCK OF MERCHANDISE"-"FIXTURES AND of all the creditors of said vendor, together written statement of the names and addresses EQUIPMENT." The Bulk Sales Law (Laws 1913, p. 163), applying to the sale, delivery, or other disposition of the major part in value or the whole of a stock of merchandise, or merchandise, fixtures, and equipment, or equipment, pertaining to the vendor's business, is without application to sale of the wagons, horses, harness, etc., of one engaged in the business of owning and operating a livery and boarding stable; the words "stock of merchandise" meaning goods or chattels which a merchant has for sale, and the words "fixtures and equipment" meaning fixtures and equipment, or either one, pertaining to the vendor's business of merchandising. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Stock of Merchandise; First and Second Series, Equipment; Fixture.] Appeal from St. Louis Circuit Court: George H. Shields, Judge. Suit by August Balter and Oliver J. Miller, trustee in bankruptcy of the estate of Cyrus N. Crum, against Cyrus N. Crum, Decker, Eckhardt, Kratz, and Jos. S. Caldwell. From judgment for the trustee, the defendants, other than Crum, appeal. Reversed. Seebert G. Jones and Albert E. Hausman, both of St. Louis, for appellants. Henry Obershelp, of St. Louis, for respondents. with the amounts of indebtedness owing by The trustee in bankruptcy, one of the plaintiffs herein, and against each of the several appellants here, defendants below, for various trial and in arrest of judgment the said deamounts. After unavailing motions for new fendants bring this appeal. of the defendants had bought certain specific property from the defendant Crum and that no notice, as required by the Bulk Sales Law of Missouri, had been given. The reply was a general denial. A trial was had and resultBECKER, J. This is a suit predicated up-ed in a finding and judgment in favor of the on the Bulk Sales Law of Missouri (Session Acts of Missouri 1913, p. 163). The amended petition alleges that the defendant Crum conducted a livery and boarding stable under the name of Crum's Boarding Stable, in the city of St. Louis, and owned and used in the said business many horses, mules, buggies, wagons, carriages, harness, and hay, oats, corn, dence in detail; it being sufficient to state It is not necessary that we go into the evifeed, vehicles, goods, merchandise, fixtures, and equipment; that said Crum had been ad- that plaintiffs' testimony makes a case projudged a bankrupt and one Miller duly elect-viding the petition states a cause of action. ed and appointed trustee of said bankrupt In other words, the sole question before us on estate; and that such trustee had been duly appeal is as to whether or not the sales as alauthorized and directed to join in this suit leged in the petition are within the intendas party plaintiff for the benefit of all the ment of the Bulk Sales Law of Missouri. creditors of said Crum in bankruptcy. It was further alleged that in the early part of January, 1915, said Crum was indebted to one Balter, a plaintiff in the case, and to numerous other creditors in large amounts, and that for the purpose of hindering, delaying, and defrauding his, the said Crum's, creditors, he, the said Crum, sold and otherwise disposed of all of his said horses, mules, buggies, wagons, carriages, harness, and hay, oats, corn, feed, vehicles, goods, merchandise, fixtures, and equipment pertaining to his said business to the several defendants at much less than their real value and otherwise than in the ordinary course of trade and otherwise than [2, 3] While bulk sales statutes are now in the regular prosecution of said Crum's common, most of them seem to apply only to business, and all as substantially one transac- sales of a "stock of merchandise" or a "stock tion and proceeding, and occurring substan- of goods, wares, merchandise, or stock of tially at one time; that none of said vendees merchandise and fixtures," but the Missouri [1] If our Bulk Sales Law is broad enough to include a livery and boarding stable within its purview, then this appeal must fail; otherwise the judgment must be reversed. The law in question, while not a criminal statute, is yet penal in its nature, and it needs no citation of authorities that in construing statutes of this character no sales are to be included as coming within its purview unless such sales are clearly within its terms. Sales in bulk laws are in derogation of the common law and of a person's right to alienate his property without restrictions and are to be strictly construed. For other cases see same toric and KEY-NUMBER in all Key-Numbered Digests and Indexes statute applies to the "sale, trade or other disposition of the major part in value, or the whole of a stock of merchandise, or merchandise, fixtures, and equipment, or equipment pertaining to the vendor's business." When our statute is read as a whole, as in fact it should and must be, it is clear that the intent of the lawmakers was to regulate the sale, trade, or disposition of stocks of merchandise, and, in connection with any such stock of merchandise, the fixtures or equipment or both pertaining thereto. The words "stock of merchandise" are here used in the common and ordinary acceptation of those terms, and are intended to mean goods or chattels which a merchant has for sale, such as is often referred to by the phrase "stock in trade," and the words "fixtures and equipment" mean fixtures and equipment, or either one pertaining to the vendor's business of merchandising. In view of the language of the statute itself, we hold that this law has no application to the sale of the wagons, horses, harness, etc., of one whose business is that of owning and operating a livery and boarding stable. In fact in several of the states in which bulk sales laws somewhat similar to the one under discussion have been held unconstitutional, it has been on the ground that the law is special class legislation which is prohibited by the Constitutions of such states, and in the opinions of the courts it has been pointed out that such statutes limit their operation to merchandise and do not include farmers, manufacturers, hotel keepers, mine owners, etc. See Off & Co. v. Morehead, 235 Ill. 40, 85 N. E. 264, 126 Am. St. Rep. 184, 14 Ann. Cas. 434; Block v. Schwartz, 27 Utah, 387, 76 Pac. 22, Law was enacted for the protection of persons who extend credit to merchants relying upon their right to credit as ascertained from a financial report of such merchant's assets and liabilities and his past record with reference to prompt payment or settlement for goods purchased, together with a reliance upon the fact that such merchant is a vendor of merchandise, which of necessity presumes that such merchant keeps on hand a stock of merchandise for sale, and which stock is not sold in bulk but to be kept up and replenished from time to time as the sales made therefrom may require. Credit extended in this manner presupposes a continuance in the business of merchandising on the part of him to whom the credit is extended; but it often happened that merchants who had become involved financially would dispose of their entire stock of goods to one or more persons without notice of any kind to their creditors and perpetrate a fraud upon them, and our Legislature undoubtedly enacted the statute under discussion to prescribe a practical method for sales in bulk which would give due notice and protection to all parties interested and at the same time provide a remedy to defrauded creditors in cases where sales in bulk were made without complying with the requirements of such statute. We hold that plaintiff's petition fails to set up allegations sufficient to state a cause of action under the Bulk Sales Law act. The judgment is reversed. REYNOLDS, P. J., and ALLEN, J., concur. 65 L. R. A. 308, 101 Am. St. Rep. 971, 1 Ann. In re INCORPORATION OF UNIONDALE. Cas. 550; McKinster v. Sager, 163 Ind. 671, 72 N. E. 854, 68 L. R. A. 273, 106 Am. St. Rep. 268; Miller v. Crawford, 70 Ohio, 207, 71 N. E. 631, 1 Ann. Cas. 558; Wright v. Hart, 182 N. Y. 330, 75 N. E. 404, 2 L. R. A. (N. S.) 338, 3 Ann. Cas. 263. And in the case of Wilson v. Edwards, 32 Pa. Super. Ct. 295, and in Spurr v. Travis, 145 Mich. 721, 108 N. W. 1090, 116 Am. St. Rep. 330, 9 Ann. Cas. 250, in sustaining the constitutionality of a bulk sales law it was assumed that it applied only to merchandise and did not include farmers, manufacturers, and others. The Supreme Court of the state of Washington, in construing a bulk sales law which had been enacted in that state, held that the horses, wagons, and harness of a livery stable keeper are not within the provisions of such statute requiring every person who shall purchase "any stock of goods, wares, or merchandise" in bulk to take a statement under oath of the creditors of the seller. See Everett Produce Co. v. Smith et al., 40 Wash. 566, 82 Pac. 905, 2 L. R. A. (N. S.) 331, 111 Am. St. Rep. 979, 5 Ann. Cas. 798. COYNE et al. v. RUGH et al. (St. Louis Court of Appeals. Missouri. 1. MUNICIPAL CORPORATIONS CORPORATION-REVIEW-COURTS. 12(12)-IN In making an order for the incorporation of a city the county court acts judicially, and the order is subject to appeal to the circuit court under Rev. St. 1909, § 3956, providing for appeals from "judgments" of the county court, and section 4091, providing the circuit court true, though the circuit court has no original shall hear such appeals de novo; and this is jurisdiction to incorporate a city. 2. COUNTIES 58-APPEALS FROM COUNTY COURT-CONSTRUCTION OF STATUTE. under Rev. St. 1909, § 3956, appeal lies from The right of appeal is purely statutory, and the county court to the circuit court "in all cases not expressly prohibited by law," and, while there are limitations upon the right in cases of ministerial or administrative acts, the courts may not deny or curtail the right except when clearly without the statute. 3. MUNICIPAL CORPORATIONS 12(12)-INCORPORATION - OBJECTION - PARTIES ENTITLED TO APPEAL. Owners whose property would become subject to the burdens of municipal taxation have We are of the opinion that our Bulk Sales the right to object to the county court's order |