Specialty Co. v. Glass Co. WESTMORELAND SPECIALTY COMPANY, Appellant, v. MISSOURI GLASS COMPANY. Division One, May 31, 1912. 1. CONSTITUTIONAL LAW: Validity of Federal Statutes. The Supreme Court has no jurisdiction of a case involving merely the construction and application of a Federal statute, but only takes jurisdiction when the validity, legality or constitutionality of that statute has been raised in the trial court. 2. Appeal: Point Not Saved. When the trial court has ruled that a statute does not apply to the cause on trial, and no exception or appeal has brought up that ruling for review, the constitutionality of that statute is not presented on this appeal from the judgment rendered in the cause upon another ground. Appeal from St. Louis City Circuit Court.-Hon. Hugo Muench, Judge. TRANSFERRED TO ST. LOUIS COURT OF APPEALS. E. T. Allen and C. B. Allen for appellant. George W. Lubke and G. W. Lubke, Jr. for respondent. The trial court, having ruled that plaintiff was entitled to sue in the State court and that the statute forbidding pools, trusts, conspiracies and discriminations, did not apply to this case, but that plaintiff was not entitled to recover under the act of Congress; this was not a ruling whereby there was drawn in question the validity of the act of Congress. The jurisdiction of the Supreme Court of the State in such cases and where the amount involved therein is less than seventy-five hundred dollars applies only where the "validity" of the "statute or authority exercised under the United States is drawn in question." Sec. 12, Art. 6, Constitution. Compliance or non-compliance with an act of Congress does not involve the validity of it Specialty Co. v. Glass Co. so as to give the Supreme Court jurisdiction. Vaughn v. Railroad, 145 Mo. 57. Nor has the Supreme Court jurisdiction simply because the case involves the construction of a Federal statute but only where the validity of a Federal statute is drawn in question. Comm. Co. v. Railroad, 157 Mo. 518; Lail v. Express Co., 81 Mo. App. 232. And the question of the validity of the Federal statute must have been raised in the State court. Railroad v. Smith, 154 Mo. 300; Carlisle v. Railroad, 168 Mo. 652. BOND, C.-Plaintiff, a foreign corporation, sued defendant, a home corporation, before a justice of the peace for the price of goods. The amount claimed to be due was $346.31. Defendant filed a formal answer containing a general denial and the further defense that the plaintiff was a corporation under the laws of Pennsylvania and was not authorized to transact business in this State at the time of sale and delivery of the goods to defendant, and hence could not maintain this suit; and for further defense alleged that at the time of the sale of said goods plaintiff was a member of an illegal pool, trust or combine formed to restrain trade or competition in the manufacture, purchase or sale of such products in the State of Missouri or elsewhere, setting out the members of the alleged combine; and alleged further that the aforesaid combine was in violation of the Anti-Trust Statutes of the United States, known as the Sherman Act. This last defense the court sustained and rendered judgment in favor of defendant, from which this appeal has been duly taken. OPINION. I. The amount involved is far below the pecuniary limit of $7500 of the jurisdiction of the St. Louis Court of Appeals, to which the case would normally go on appeal unless its determination involved some ques Specialty Co. v. Glass Co. tion which that court is precluded from passing upon by the Constitution of the State. The only theory upon which the right of appeal to this court could be sustained is that the validity of the Federal Anti-trust Act, known as the Sherman law, was drawn in question. The case involves, according to the issues presented and the finding of the lower court, the construction and application of a Federal statute in so far as the facts of the case bring it within the meaning and intent of the act, but the validity, legality or constitutionality of that statute is not questioned and was not raised in the lower court nor in the argument and brief of the appellant in this court. Under this state of the record we do not see any ground for the taking of the appeal to this court. [Comm. Co. v. Railroad, 157 Mo. 518; Vaughn v. Railroad, 145 Mo. 57; Lail & Hull v. Express Co., 81 Mo. App. 232; Carlisle v. Railroad, 168 Mo. 652.] II. The other defense in the answer is, that the plaintiff corporation, not having taken out a license in this State, is disentitled to bring this action under our statutes. [R. S. 1909, sec. 3040.] The trial court found that statute did not apply since it was not shown that the sale of the goods was made in this State. [Machinery Co. v. Ramlose, 231 Mo. 539; Book Co. v. Gillespie, 229 Mo. 397.] No exception nor appeal has brought up that ruling for review. Hence, if the constitutionality of the statute requiring foreign corporations to take out such a license was now questionable, it is not presented on this appeal. This case must be transferred to the St. Louis Court of Appeals. [R. S. 1909, sec. 2937.] It is so ordered. Brown, C., concurs. PER CURIAM.-The foregoing opinion of BOND, C., is adopted as the opinion of the court. All the judges concur; Lamm, J., in result. Trainer v. Mining Co. LEE TRAINER, Appellant, v. SPHALERITE Division One, May 31, 1912. 1. NO CASE FOR PLAINTIFF: Error in Instructions: In Admission of Testimony. Error to be reversible in a civil action must affect the substantial rights of the losing party. Where there is no case made for plaintiff, there is no error affecting his substantial rights or the merits; and error in the instructions for defendant and in the admission of incompetent testimony will not work a reversal. GRAVES, J., concurs, not because the statutes (Secs. 1850 and 2082, R. S. 1909) prohibit a reversal unless there has been error materially affecting the merits and affecting the substantial rights of the adverse party, but only because those statutes express the rule of conduct fixed by the courts themselves, which had been established long before those statutes were enacted. Said statutes are not binding upon the courts, nor are any others of like tendency. The Legislature cannot stifle the conscience of courts in their decision of cases. The Constitutión prevents one magistracy from interfering with the duties of another. 2. NEGLIGENCE: Master and Servant: Miner: Premature Explosion. Where plaintiff charged the premature explosion of the powder in a drill-hole and his consequent injury to the master's negligence in changing, without notice to him, the powder from a giant powder of forty per cent nitroglycerine, which he had been using, to a giant powder of fifty per cent nitroglycerine, which was more explosive, and to the negligent preparation of the "shot" which caused the explosion; and there is no substantial evidence that any change in the powder was made, and he knew of the defective wrapper of the shot, and knew more of the particular hazard from such defect than the master, he cannot recover. 3. EVIDENCE: Change in Powder: Supposition of Witness. Testimony by one witness that he thought the company had substituted one kind of powder for another, is not substantial proof of a change in the powder theretofore used by plaintiff. 4. NEGLIGENCE: Miner: Superior Knowledge: Defective Tool. The powder was furnished in sticks about eight inches long and one in diameter. A stick equipped with a fulminating cap attached to a fuse was called a "shot," and to attach a cap a hole was punched sideways in the shot wrapper. The sticks Trainer v. Mining Co. were put into a deep drill-hole one at a time by a tamping bar, which was a gas pipe with a wooden plug in one end ten or twelve inches long, in the end of which was a nail. Plaintiff had put in three sticks, and when ready to insert the shot he found the cap lying near by, and out of the cap hole, which was too big to hold the cap in place, and that the paper wrapping was torn at the cap hole. He put in the cap, but it came out; he had no knife to make a new cap hole, but remembering that he had used a shot of that kind three or four times in his years of mining experience, he thought he could use it safely, and accordingly put the cap back in the hole, and pushed the shot four or five feet down the drill-hole with the tamping bar, and while engaged in ramming it the powder was touched off in some mysterious way. The defendant's foreman did not know that the cap would not stay in the hole, though there is some evidence that he knew there was a rent in the wrapper, nor did he know that the drill-hole was in flint formation. Held, that plaintiff, knowing better than his master the increased hazard due to the defective shot and that he could have had a perfect one for the asking, cannot recover on the theory that the master was guilty of a negligent preparation of the shot. 5. — : Master's Care of Servant. The master need not, either actually or constructively, hover over every transaction to keep the servant from hurting himself at his work, who has the means at hand to avoid injury, knows the danger of using the instrument whose defective condition he has discovered, and with a contempt for peril persists in courting danger and injury. 6. : Danger Imminent. Where danger is glaring, imminent and such as no reasonably prudent man would take at his own risk, the master is not liable, absent a command from him to the servant. Appeal from Lawrence Circuit Court.-Hon. F. C. Johnston, Judge. AFFIRMED. I. V. McPherson and John L. McNatt for appellant. (1) The court erred in admitting incompetent and illegal evidence offered by the defendant. Mr. Waterman, defendant's manager and superintendent testified, he was mining engineer; belonged to the "Asso |