all. It is quite evident, when all facts are
considered, that were it a case between man
and man, and not a case of an old lady
against a railway company, the verdict of
any average jury would have been just as
this verdict was-for the defendant. It may
be that plaintiff's evidence spells a case for
a jury, but, as the case must be tried, I re-
serve my further views for such time as it
may be necessary to more closely scrutinize ent.

BLAIR, C. This action was instituted in were to see to it, generally, that no accithe circuit court of Jackson county by Ru- dents happened at the crossing, and that pert Winn, by next friend, against the Kan- he did whatever in his judgment would "prosas City Belt Railway Company and the tect the situation better." Appellant's suKansas City Terminal Railway Company to perintendent testified it was the flagman's recover damages for the loss of an arm and duty to "warn and prevent boys getting on other injuries alleged to have resulted from trains, if he could," and that the same indefendants' negligence. At the close of his structions were given all flagmen. For reevidence, plaintiff dismissed as to the Kan-spondent one of appellant's former flagmen, sas City Terminal Railway Company, and in service in 1906, had testified the instrucsubsequent proceedings resulted in a judg- tions were not to permit persons to get on ment against the Kansas City Belt Railway trains at crossings. Company, from which judgment this appeal is prosecuted.

*

[1] 1. It is said no negligence is charged. In view of the failure to demur and the statutory provision (section 2119, R. S. 1909) that after verdict the judgment thereon shall not be reversed "for the want of any allegation or averment on account of which omission a demurrer could have been maintained," nor "for omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict," the objection comes too late. In the circumstances, appellant cannot now complain of a defective statement of the cause of action.

The count of the petition on which recovery was had charges, among other things, that "defendants and some other railway company were operating a moving train on the tracks and road of the defendants under and by virtue of a license, permit, lease, or running arrangement, with or from said defendants," and "while plaintiff was riding on said moving train, which was running on the tracks and road of the defendants, * and, while he was standing in a position of safety on said train, the defendants and said lessee railway company caused [2] 2. The petition charges joint neglithe plaintiff to be removed therefrom in such gence, but the evidence has no tendency to a manner that plaintiff fell or was thrown connect any save appellant with the injury, under said moving train and his right arm, and appellant's counsel earnestly insist this * Plaintiff says that the con- constitutes a total failure of proof. The arduct of the defendants and said lessee rail-gument is, in substance, that, under a petiway company in removing and causing to be removed the plaintiff from said train under the circumstances was negligent. Wherefore," etc. Appellant's answer was a general denial.

etc.

The injury occurred at Twentieth and Campbell streets in Kansas City, at which point appellant's road crosses Campbell street, where a flagman or watchman was and long had been stationed. A freight train was proceeding westward along appellant's tracks and across Campbell street when respondent, a 13 year old boy, in the flagman's presence, got upon the ladder at the side and near the end of one of the cars, and took a position with his feet in the stirrup and his hands grasping one of the rounds of the ladder. As this car passed over the crossing, the evidence tends to show the flagman stepped up behind respondent, seized hold of the belt of his trousers at the back, and pulled him from the car. At this juncture the flagman released his hold on respondent and the latter fell between the cars and upon or beside the rail, and his right arm was caught and crushed beneath the wheels. The evidence tends to show the flagman was old and weak. The evidence showed it was the flagman's duty to keep boys from getting on trains at his crossing, and that for years and in many instances he had exercised this authority. His own testimony is to this effect and is clearly susceptible of the

tion charging a joint tort, proof of a tort committed by one alone is insufficient to authorize judgment against even the guilty defendant.

In Winslow et al. v. Newlan et al., 45 Ill. loc. cit. 148, it was said that in actions of tort "it is a rule of practice, coeval with our system of jurisprudence, that a plaintiff may recover against as many, and only such, defendants as he proves to be guilty," and in Railway v. Laird, 164 U. S. loc. cit. 400, 17 Sup. Ct. 123, 41 L. Ed. 485, it was said that, since "in an action against joint tort-feasors recovery may be had against one, it follows that allegations alleging a joint relationship and the doing of negligent acts jointly are divisible, and that a recovery may be had where the proof establishes the connection of but one defendant with the acts averred." At common law, "in actions ex delicto a joint liability need not be proved, and consequently a misjoinder of defendants will not defeat a recovery." Volume 15, Ency. Pl. & Prac. p. 583, and cases cited. To these authorities may be added: Tompkins v. Railway, 66 Cal. 163, 4 Pac. 1165; Rome R. R. v. Thompson, 101 Ga. 26, 28 S. E. 429; Railway v. Duvall, 40 Ind. 246; Matthews v. Railway, 56 N. J. Law, 34, 27 Atl. 919, 22 L. R. A. 261; Railway v. Treadway, 143 Ind. loc. cit. 703, 40 N. E. 807, 41 N. E. 794; Krebs Hop Co. v. Taylor, 52 Or. 627, 97 Pac. 44, 98 Pac. 494; Railway v. Sheftall et al., 133 Fed. 722, 66 C. C. A. 552; Linquist

[3] 3. In the case of Brill v. Eddy, 115 Mo. 596, 22 S. W. 488, this court had before it, so far as concerns the negligence involved, facts strikingly like those in the present case. It is unnecessary to say more than that, under the rule then announced the question of negligence was for the jury. The cases cited in support of the contrary contention (Lillis v. Railway, 64 Mo. 464, 27 Am. Rep. 255; Randolph v. Railroad, 129 Mo. App. 1, 107 S. W. 1029; Bolin, Adm'r, v. Railway, 108 Wis. 333, 84 N. W. 446, 81 Am. St. Rep. 911) are beside the question. The first two were actions to recover for injuries alleged to have been inflicted by the use of excessive force in ejecting from passenger trains persons who refused to pay fare, and the last discusses the rule applicable when a trespasser is ordered off a slowly moving train and, while in the possession of all his faculties and in control of his own movements, is injured by his own negligence.

Firor v. Taylor, 116 Md. 69, 81 Atl. 389; | legations of joint wrong, on proof of separate Railway v. Laird, 58 Fed. 760, 7 C. C. A. unconnected torts by the several defend789; Black on Judgments, § 207; Dicey on ants, as well as those in cases in which conParties to Actions, pp. 431, 432; Cooley on cert of action is necessary to the existence Torts, 227 (156); Pomeroy's Code Remedies, of any cause of action, are not applicable. p. 278 (section 192, p. 291). That this rule The authorities are practically unanimous, has always been accepted in this state is evi- and the point is ruled against appellant. denced by many decisions. Noble v. Kansas City, 95 Mo. App. loc. cit. 172, 68 S. W. 969; Hunt v. Railway, 89 Mo. 607, 1 S. W. 127; Klieber v. Railway et al., 107 Mo. 240, 17 S. W. 946, 14 L. R. A. 613; Wahl v. Transit Co., 203 Mo. 261, 101 S. W. 1; Wiggin v. St. Louis, 135 Mo. 558, 37 S. W. 528; Moudy v. Provision Co., 149 Mo. App. 413, 130 S. W. 476; Wills v. Railway et al., 133 Mo. App. 625, 113 S. W. 713; Stotler v. Railway, 200 Mo. loc. cit. 149, 150, 98 S. W. 509. Certainly the statutes have not affected the principle, and section 1734, R. S. 1909, which is relied upon, relates to actions in which a joint liability exists, not to actions in which joint liability is merely charged and does not exist. Besides, its provisions are enabling and not restrictive. The cases announcing the rule in actions on joint contracts are not in point; the common law in such cases being wholly different from that applicable in actions of torts. Further those cases have been overruled. Bagnell Tie & Timber Co. v. Railway, 145 S. W. 469. In the other Missouri cases cited (Otrich v. Railways, 154 Mo. App. 420, 134 S. W. 665, and Barton v. Barton, 119 Mo. App. 507, 94 S. W. 574) there had been a joint recovery, and the courts merely held that proof of a joint wrong was necessary to uphold the joint judgment.

In the case at bar the flagman forcibly jerked respondent from the ladder which supported him. He did not order respondent off the car and permit him to exercise his judgment and control his own movements in dismounting, but took the matter into his own hands. Having undertaken this and deprived respondent of the power of protecting himself, he permitted him to fall, dropped him upon or near the rail, and the injury followed. What was said in Brill v. Eddy, supra, as to the resistance offered by the boy when grasped is applicable here and is supported by authority elsewhere. In that case it appeared the boy had no warning; in this it cannot, as a matter of law, be said the boy knew he was suddenly to be grasped and pulled from the car. The difference, if any, can no more than affect the weight, not the legal effect, of the circumstance. It may be added there was no plea of contributory negligence, but the jury was instructed that, if respondent's resistance, if any, to the flagman, materially contributed to the injury, the verdict should be for defendant.

It has been pointed out (Cooley on Torts, supra) that the rule in Pennsylvania is or was in some respects somewhat different from that commonly accepted, and it may be added that a like observation would seem to apply to certain decisions of the courts of Illinois. It appears now to be held, however, that if two or more are joined, and the proof shows but one to be guilty, a dismissal as to those not involved, ipso facto, no point being made at the trial, ordinarily amounts to an amendment eliminating all allegations save as to the remaining defendant, and a judgment against him alone will be sustained. Sturzebecker v. Inland Co., 211 Pa. 156, 60 Atl. 583; Linquist v. Hodges, 248 Ill. 491, 94 N. E. 94. It is true there might arise a case in which the admission of evidence against a defendant not liable on the facts might be harmful to the defendant found guilty, but no such question is in this case. The sole question is whether, under a general charge of the common negligence of three, recovery may be had against the one defendant guilty. The decisions ord. He was at his appointed station on in cases in which separate concurring acts, all necessary to constitute a cause of action, were charged, and those merely holding that

[4] 4. The flagman or watchman's act was clearly one for the results of which appellant is liable. His authority to prevent boys from getting on trains at his crossing was established by the superintendent, whose duty it was to promulgate instructions to flagmen. It is an established fact on this rec

the crossing engaged in the performance of his duty when respondent got upon the car ladder in his very presence and almost im

from the car. There is no hint in the evi- | mon-law origin; and, as a general rule, equitadence that the flagman was actuated by ble rules are not applicable to them. any possible motive other than the perform[Ed. Note.-For other cases, see Quo Warance of his duty as the servant of appellant. ranto, Cent. Dig. §§ 1, 3, 23, 28; Dec. Dig. § 1.*] In this state of things the fact that the 7. ELECTION OF REMEDIES (§ 3*)-EXCLUSIVEinstructions on this phase of the case are not so clear as they might have been is not sufficient ground for reversal. Haehl Railway, 119 Mo. 325, 24 S. W. 737; Railway v. Hunter, 74 Miss. 444, 21 South. 304. The judgment is affirmed.

ROY, C., concurs.

V.

PER CURIAM. The foregoing opinion of BLAIR, C., is adopted as the opinion of the court. All the Judges concur.

STATE ex rel. KIMBRELL, Pros. Atty., v.
PEOPLE'S ICE, STORAGE &
FUEL CO. et al.

(Supreme Court of Missouri, Division No. 1.
June 29, 1912. Rehearing Denied
Nov. 30, 1912.)

1. EXCEPTIONS, BILL OF (§ 38*)-TIME FOR
MAKING AND FILING-TERM OF Court.

The referability of a proceeding was not open to review on appeal, where no bill of exceptions was filed at the term at which the referee was appointed, nor leave taken at that term to file such bill; the point not being saved by recital in a bill filed by leave given at a later

term.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 49--53; Dec. Dig. 8 38.*1 2. REFERENCE (§ 34*)-ORDER OF REFERENCE -OBJECTIONS-EXCEPTIONS.

Objections to the reference of a proceeding should be made at the time the referee is appointed, and to the court itself; and hence objections on this point before the referee, and motions to set aside the appointment and strike out the testimony because the case was not referable, filed after the report was made, were properly overruled.

[Ed. Note. For other cases, see Reference, Cent. Dig. §§ 61, 62; Dec. Dig. § 34.*]

3. REFERENCE (§ 41*) — AUTHORITY OF REF

EREE.

A referee has no power to set aside his own appointment, on the ground that the cause is not referable.

[Ed. Note.-For other cases, see Reference, Cent. Dig. § 67; Dec. Dig. § 41.*]

4. JURY (8 25*)-TRIAL BY JURY-DEMANDTIME FOR MAKING.

A motion for a trial by jury after a referee has filed his report is too late.

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 154-173; Dec. Dig. § 25.*] 5. VENUE (§ 77*) — CHANGE-TIME FOR AP

PLICATION.

--

Where, after an application for a change of venue was verified, the moving party filed several other motions and gave no notice of the intended presentation of the application for the change until such other motions were overruled, the change of venue was properly refused. [Ed. Note.-For other cases, see Venue, Cent. Dig. 59, 134, 138; Dec. Dig. § 77.*] 6. QUO WARRANTO (§ 1*)-FORM OF REMEDY. Proceedings in the nature of quo warranto, not instituted under the statute, are of com

NESS OF REMEDY.

If any remedy by injunction to restrain unlawful combinations in restraint of trade by corporations exists, it is wholly inconsistent with the remedy by quo warranto; and the two cannot be prosecuted at the same time, even separately, since quo warranto goes to the life of the corporation informed against, while the injunction proceeding is necessarily predicated upon the continuance of its existence.

[Ed. Note. For other cases, see Election of Remedies, Cent. Dig. §§ 3, 4; Dec. Dig. § 3.*] 8. APPEAL AND ERROR (§ 171*) - REVIEW SCOPE AND THEORY OF CASE.

Where a proceeding was tried below and heard in the Supreme Court on the theory that it was a proceeding in the nature of quo warranto, it will be decided by the Supreme Court on the same theory.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165; Dec. Dig. & 171.*]

9. REFERENCE (§ 102*)-Report-OperaTION AND EFFECT.

Rev. St. 1909, § 2013, giving a referee's report, when confirmed by the court, the same effect as a special verdict, does not apply where the court does not confirm the report, but sustains exceptions thereto and makes independent findings.

[Ed. Note.-For other cases, see Reference, Cent. Dig. 88 181-187; Dec. Dig. § 102.*] 10. APPEAL AND ERROR (§ 924*)-REVIEW

FINDINGS OF FACT.

In case of a compulsory reference, the trial court may act upon the referee's report and find therefrom different conclusions from those reported by the referee.

[Ed. Note. For other cases, see Reference, Cent. Dig. §§ 148-156; Dec. Dig. § 99.*] 12. APPEAL AND ERROR (§ 1013*)-REVIEWFINDINGS OF FACT.

A finding of fact, based on a mere mathematical computation, is reviewable on appeal, since any incorrect finding is without evidence to support it.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3993-3995; Dec. Dig. 8 1013.*]

13. APPEAL AND ERROR (§ 1008*)-REVIEWFINDINGS OF FACT.

The rule as to the conclusiveness of the trial court's findings is not inapplicable because the testimony was wholly by deposition, or because one judge heard the evidence and another decided the case on the transcript thereof.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3955-3960, 3963-3969; Dec. Dig. § 1008.*]

14. REFERENCE (8 99*)-REPORT-OPERATION AND EFFECT.

In the case of a compulsory reference, the referee's power is limited to recommending

judgment; and the reference can aid, but not | competition and organized the P. Company to bind, the trial judge, upon whom rests the duty and responsibility as to the judgment. [Ed. Note. For other cases, see Reference, Cent. Dig. 88 148-156; Dec. Dig. § 99.*] 15. APPEAL AND_ERROR (§ 1022*)-REVIEWFINDINGS OF FACT.

The findings of the trial court, after setting aside those made by the referee, are no more open for review on the mere weight of the evidence than any other findings, since the referee's findings are not judicially made until approved; and where they are set aside the only findings which are judicially made are those of the court.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4015-4018; Dec. Dig. 1022.*]

16. QUO WARRANTO (8 48*)-PLEADING-IN

FORMATION.

An information in the nature of quo warranto, alleging that prior to a certain date certain companies and copartnerships were engaged in the manufacture and sale of ice in competition, and that on that date a new corporation was organized by them for the purpose of restricting competition, should not be construed after judgment as alleging that competitive conditions existed at all times prior to the specified date, so as to overthrow findings based in part on evidence of unlawful acts prior to such date.

[Ed. Note.-For other cases, see Quo Warranto, Cent. Dig. 88 49-52, 59, 60; Dec. Dig. 8 48.*]

17. MONOPOLIES (§ 24*) PROCEEDINGS TO PREVENT UNLAWFUL COMBINATIONS — EviDENCE.

In a proceeding against persons claimed to have formed an unlawful combination in restraint of trade, evidence of the preliminary steps in the formation of such combination, prior to the date on which the combination is alleged to exist, is admissible.

[Ed. Note.-For other case, see Monopolies, Cent. Dig. & 17; Dec. Dig. § 24.*]

18. MONOPOLIES (§ 20*) — PROCEEDINGS TO PREVENT UNLAWFUL COMBINATIONS-DEFENSES.

carry out the purposes of the combination. The
assets of the H. Company, one of the parties to
the combination, and whose president partici-
pated in the organization and knew the purposes
Brewery Company thereafter organized, and
of the P. Company, were purchased by the K.
president of the K. Company.
the president of the H. Company became the
Held, that it
could not be said, as a matter of law, that the
K. Company did not have knowledge of the un-
lawful character of the P. Company; and hence
a judgment against defendant for violating the
anti-trust act would not be disturbed.

[Ed. Note.-For other cases, see Monopolies, Cent. Dig. 17; Dec. Dig. § 24.*]

21. EVIDENCE (§ 253*)-ACTS AND DECLARATIONS OF CO-CONSPIRATORS.

Where there was other evidence that a corporation entered into an agreement with another company to fix prices, the declarations of its president and active manager in furtheradmissible as declarations of a co-conspirator. ance of the purpose of the combination were [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 994-1802; Dec. Dig. § 253.*] 22. CRIMINAL LAW (§ 422*)—EVIDENCE-ACTS

AND DECLARATIONS OF CO-CONSPIRATORS.

indicted and tried together, in order to render It is not necessary that co-conspirators be

the acts and declarations of one admissible against the others.

Law, Cent. Dig. 88 984-988; Dec. Dig. § 422.*] [Ed. Note. For other cases, see Criminal | 23. MONOPOLIES ( 17*)-EVIDENCE-WEIGHT AND SUFFICIENCY.

The fact that parties charged with effecting an unlawful combination to restrict competition in the sale of ice, by forming a corporation to handle their output, sold small quantities of ice to others than such corporation during the spring and summer months, when the demand for ice was small, did not refute the charge, especially where such ice was sold in such quarters as to have no tendency to affect the rate made by such corporation.

[Ed. Note.-For other case, see Monopolies, Cent. Dig. § 13; Dec. Dig. § 17.*] 24. MONOPOLIES (§ 12*)-COMBINATIONS IN RESTRAINT OF TRADE-COMBINATIONS PROHIBITED.

The anti-trust law, in plain and unambiguous language, condemns every direct restraint of trade, great or small, without regard to what the courts may think as to the extent of the effect of the combination.

Competitors in the business of manufacturing and selling ice combined to restrict competition and, to carry out this purpose, organized a distributing company, with which they all contracted to sell their output of ice. Subsequently the distributing company was reorganized for the purpose of increasing its powers, and the reorganized company succeeded to the property, contracts, assets, and liabilities of the old company, and to its identity in the unlawful combination. Held, that the existence of the unlawful combination prior to the incorporation of such new company was not available to it as a defense against a charge of vio-its lating the anti-trust act.

[Ed. Note.-For other case, see Monopolies, Dec. Dig. § 20.*]

19. CONSPIRACY (§ 13*)-PERSONS LIABLEACTS OF CO-CONSPIRATORS.

As a general rule, if a conspiracy exists and another joins with the conspirators, he is deemed a party to all acts done by any of the conspirators, before or afterwards, in furtherance of the common design.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. § 14; Dec. Dig. § 13.*]

[Ed. Note.-For other cases, see Monopolies, Cent. Dig. § 10; Dec. Dig. § 12.*] 25. CONSTITUTIONAL LAW (§ 70*)—JUDICIAL POWERS ENCROACHMENT ON LEGISLATURE. constitutional powers, is final; and the wisThe judgment of the Legislature, within the courts. dom of its enactments cannot be questioned by

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*]

26. APPEAL AND ERROR (§ 843*)-REVIEW— MOOT QUESTIONS.

The question whether the court, in a proceeding to dissolve an unlawful combination in cellation of certain contracts will not be deterrestraint of trade, erred in ordering the canmined where, by the expiration of the contracts by their own terms, the question has become a moot one. [Ed. Note.-For other cases, see Appeal and Certain corporations and copartnerships Error, Cent. Dig. §§ 3331-3341; Dec. Dig. § formed an unlawful combination to restrict 843.*]

20. MONOPOLIES (§ 24*) - PROCEEDINGS TO PREVENT UNLAWFUL COMBINATIONS-EVI

DENCE.