set aside satisfaction of judgment and to order an execution in his favor. The motion was overruled, and Cohick, having been unsuccessful in getting court to set aside order overruling said motion, appeals. Affirmed. Henry H. Denison, of St. Louis, for pellant. ap T. E. Francis and Chauncey H. Clarke, both of St. Louis, for respondent. ALLEN, J. From the abstract filed by appellant herein, it appears that on October 19, 1907, Mary Johnston, by her attorney, this appellant, instituted an action in the circuit court of the city of St. Louis against the defendant, respondent in this court, to recover damages for injuries alleged to have been sustained by her while a passenger up on one of defendant's street cars in the city of St. Louis. The abstract sets forth the pleadings in that action, and it appears that appellant's name was signed to the original petition filed therein, as attorney for Mary made up therein, the suit was dismissed for failure of plaintiff to prosecute it. There after another suit was instituted in the circuit court upon the same cause of action, the petition filed therein being signed by other counsel, appellant's name not appearing thereon. Thereafter appellant entered his appearance in the case as "associate counsel for plaintiff." Upon issue joined, the cause was twice tried in the circuit court, resulting, upon the last trial, in a verdict and judgment for the plaintiff therein in the sum of $3,500. Upon defendant's appeal to this court that judgment was affirmed (183 Mo. App. 403, 166 S. W. 1105), and on May 22, 1914, satisfaction thereof was entered of record. Thereafter, on December 22, 1914, this appellant filed a motion in the cause, in the circuit court, asserting an attorney's lien upon the proceeds of the judgment, and praying the court to set aside the satisfaction of judgment and to order the issuance of execution in his favor in the sum claimed to be due him under contract with the plaintiff in the action, to wit, $1,330.66. It is recited in the abstract before us that thereafter, no answer to this motion having been filed by defendant, a hearing was had thereon, both parties appearing by counsel; that certain evidence was adduced by appellant, including his own testimony, and the court having considered all of the same overruled the motion; that thereafter appellant unsuccessfully moved to set aside the order overruling his said motion, and thereupon appealed to this court. No bill of exceptions, how ever, was ever filed preserving the evidence adduced at the hearing upon the motion in controversy or an exception to the overruling thereof. Johnston; however, after the issues had been [1, 2] In this state of the record, it is altogether clear that we cannot adjudge that the trial court committed error in overruling appellant's motion to set aside the satisfaction of judgment and award him execution. Indeed, in the absence of a bill of is not before us at all. Appellant's theory exceptions the matter sought to be reviewed appears to be that the proceeding, though begun by motion in the main case, is, in effect, an independent action; that the moing an answer thereto; and that defendant's tion is to be regarded as a petition, requirfailure to so answer must be taken as a confession of the truth of the averments of in the motion appellant is entitled to the the motion; and that upon the facts set up relief prayed. This theory, however, is quite untenable, independent of all other considera tions, for the reason that, if any answer to this motion were required of defendant (quite an anomaly in our practice), defendant's failure, if any, in this respect can now tried below as though a denial of the allegaavail appellant nothing, since the cause was tions of the motion had been filed. See McMurray v. McMurray, 258 Mo. 405, 167 S. W. 513, and cases cited; Bader v. Schult & Co., 118 Mo. App. 22, 94 S. W. 834. And since appellant has not brought to this court, through the medium of a bill of exceptions, duly filed and incorporated into this record, the proceedings had at the hearing upon the motion, it is utterly impossible for us to pass upon the propriety of the ruling of the trial court. It follows that the judgment below should be affirmed, and it is so ordered. REYNOLDS, P. J., and BECKER, J., con cur. DAUGHERTY v. NEOSHO GRANBY MINING CO. (No. 2372.) (Springfield Court of Appeals. Missouri. Nov. 24, 1918. Rehearing Denied Jan. 2, 1919.) 1. MASTER AND SERVANT 90 DUTY OF MASTER-INJURIES TO SERVANT. It is the duty of a master to always exercise due care to the end that his servant will not be injured. 2. MASTER AND SERVANT 265(7)—RES IPSA LOQUITUR-MINING HOISTS. The doctrine of res ipsa loquitur applies in an action by a servant for injuries occasioned by the falling of a hoist or bucket in which he was descending into a mine, where the servant had no control, management, or opportunity to know and be informed concerning the hoist. Appeal from Circuit Court, Newton County; Charles L. Henson, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Action by Homer Daugherty, by next | insists that it is incumbent upon plaintiff friend, C. S. Daugherty, against the Neosho to advise it by his pleading what specific Granby Mining Company. Judgment for act or acts of negligence it has committed plaintiff, and defendant appeals. Affirmed. A. E. Spencer, of Joplin, for appellant. Claud B. Kenney, of Joplin, for respondent. BRADLEY, J. Plaintiff sought to recover for personal injury upon a petition, the material parts of which, so far as concerns this cause, are as follows: upon which plaintiff relies for recovery, and, stated facts from which an inference of negon the other hand, plaintiff contends that he ligence arises, and invokes the rule of res ipsa loquitur. Our Supreme Court, in Klebe v. Distilling Co., 207 Mo. loc. cit. 487, 105 S. W. 1057, 13 L. R. A. (N. S.) 140, in discussing the rule of res ipsa, loquitur, in substance says that "That on or about the day of Janu- there is such a rule, and that it is well ary, 1918, plaintiff was employed by the defend- grounded in the jurisprudence of this state, ant, and was working for defendant in the but the difficulty is in the proper application capacity of a 'dummy' or assistant machine man of the rule to the facts of the particular in underground work; that said mine consisted case. It is there observed that much of the in part of certain underground rooms and drifts, reached from the surface by means of a vertical trouble in the application of the rule will shaft; that said men who worked in said un-disappear if we will but bear in mind the readerground rooms and drifts were lowered and raised from and to their work through said vertical shaft, by means of a hoister stationed upon and above ground and with a steel cable which was attached to a large steel tub; that said appliances were used for the purpose of hoisting out the mineral substances and débris which was taken out of said underground rooms and drifts, and said apparatus was used also for the purpose of conveying their men and servants to and from their work as above described; that said hoisting apparatus was operated by one of defendant's servants, and in his control, said servant and agent being stationed in the hoisting room, which was situate directly over the vertical shaft and above the surface of the earth; that on above-mentioned date the plaintiff was in the employ of the defendant as a 'dummy' or assistant machine man, and that his duties compelled him to work in said underground rooms and drifts, and in reaching same to descend in such tub and be hoisted therefrom in the same manner; that the defendant had the exclusive control of the operation of said hoisting apparatus, and the plaintiff had no part in its operation or control; that on said above date the plaintiff in the performance of his duties entered such tub, along with other employés of the defendant, for the purpose of being lowered into such mine; that the defendant by its agents and servants undertook to lower and transport plaintiff into said mine, and so negligently conducted itself in the premises that such tub was permitted to descend the said shaft with great speed through a distance of 100 feet and strike the bottom thereof with great force and violence; and that plaintiff was thrown with great force and violence against the edge of the tub and then upon the ground below." Defendant filed a motion to require plaintiff to make his petition more definite and certain, which motion was treated more in the nature of a demurrer, and this motion was sustained. Plaintiff refused to plead further, and the court rendered judgment for defendant. On timely motion by plaintiff this judgment was set aside, and defendant appealed. The only question here is the sufficiency of the petition. Defendant, as its motion to make more definite would imply, son for the rule, and where the reason for the rule exists, the rule applies, but where that reason does not exist, the rule has no application. The rule has its birth and origin in the law of necessity, and it may be broadly stated thus: "Where the means and instrumentalities employed by the master are peculiarly within his knowledge and under his control, he is ** in a much better position to explain the cause of the accident than the injured party is; then the burden of proof rests upon him to disprove the negligence." 1 Thompson's Commentaries on the Law of Negligence, § 15, states the rule as follows: "Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care." [1, 2] It is no doubt true, as contended by appellant, that the rule of res ipsa loquitur has been more frequently applied to common carriers of passengers than to any other class of persons, but it is held in Klebe v. Distilling Co., supra, that in a proper case the rule may be invoked where the relation of master and servant exists. The reason for the rule as above pointed out arises out of necessity, and that necessity naturally depends on the opportunity the servant has to know and to be informed about the instrumentality or machinery which causes his injury. In the first place, the instrumentality causing his injury must be one about which or over which the servant has no supervision or chance of observation, and no opportunity to be informed concerning the fitness of such instrumentality. Second, the occurrence of which he complains must be one that so seldoms happens that the happening alone is such as to suggest a dereliction of duty on the part of the master, whose duty is to always exercise due care to the end that his 3. CONSPIRACY 18-PETITION-PERTINENT servant will not be injured. ALLEGATIONS. It is charged in the petition, and for the purpose of disposing of this case assumed to be true, that the defendant had the exclusive control of the operation of the hoisting apparatus, and that the plaintiff had no part in its operation or control; and it was such an accident as in the ordinary course of things does not happen. What is called a hoist in the petition is simply an elevator and operated similarly. There are quite a number of elevator cases where general negligence was charged and the rule of res ipsa loquitur invoked as here, and notably among this class of cases is Orcutt v. Century Building et al., 214 Mo. 35, 112 S. W. 532. In that case, however, there was no relation of master and servant existing between the plaintiff and defendants as in the case at bar; but in so far as the plaintiff had no control, no management, and no opportunity to know and be informed of and concerning the elevator, that case is similar to the case here under consideration. The reason for the application of the rule in that case is no greater than in the case at bar. We deem it unnecessary to at length discuss the question here under consideration. Defendant has ably briefed this cause, and a number of authorities in this state and others are cited; but our attention has been called to no case, and we find none, where the application of the rule of res ipsa loquitur has been denied where the facts are as strongly in favor of the reason for the rule as in the present case. The judgment below is affirmed. ALLEN, J. This is an action prosecuted against numerous defendants who are alleged to be members of certain labor organizaPETITION- tions. The case is before us upon the second amended petition filed by plaintiff, which is as follows: A petition seeking to state a cause of action for unlawful conspiracy by defendants, as members of labor organizations, to injure plaintiff in his moving picture business, alleging that their pickets urged plaintiff's patrons not to patronize his theater because he was unfair to union labor, did not attempt to state a cause of action for slander as such. 2. LIBEL AND SLANDER SO-PETITION-LI BEL. The further allegation charging the distribution of circulars, publicly and privately, near theater, stating that plaintiff was unfair to union labor, did not attempt to state a cause of action for libel as such. "Comes now the plaintiff, leave of court being first had and obtained, and files his second amended petition, and for cause of action states that he is now, and at all times hereinafter mentioned was, the owner and proprietor of a moving picture show known as the Eagle Theater, situated and located in the city of St. Louis, Mo., at 1719 South Broadway, and had always as such maintained a good reputation as a moving picture exhibitor, and that his said theater had always been freely patronized by the public at large residing in the city of St. Louis, Mo., as well as persons visiting in said city; that the defendants and others whose For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes names and addresses plaintiff does not know are members of an organization known as the Moving Picture Machine Operators' Union, Local 143, I. A. T. S. E., and Central Trades and Labor Union, labor organizations with their headquarters at the city, of St. Louis, both of which said union organizations are affiliated with the American Federation of Labor, a powerful labor organization. "That on or about the 1st day of September, 1914, and ever since said date, the defendants and each of them, and said Moving Picture Machine Operators' Union, Local 143, I. A. T. S. E., have circulated and distributed, or caused to be circulated and distributed, and still continue to circulate and distribute, publicly and privately, at and near the said Eagle Theater so operated by plaintiff as aforesaid, the following circulars, to wit: "Don't patronize the Eagle Theater, 1719 South Broadway. They have locked out their union operator for refusing to work below the union scale of wages. They have raised their hand against the working man. Tell your friends. Moving Picture Machine Operators' Union, Local 143, I. A. T. S. E., affiliated with the Central Trades and Labor Union and American Federation of Labor.' "Don't patronize the unfair Eagle Theater Locked out their union operator. Tell your friends. Stay away! Bleibt weg!' "Plaintiff further states that the facts stated in said circular are false, defamatory, and scandalous, in that plaintiff did not lock out a union operator for refusing to work below the union scale of wages, and further that plaintiff did not raise his hand against the working man, and further that plaintiff did not lock out his union operator for refusing to work below the union scale of wages. "Plaintiff further states that, in addition to the circulars and distribution of said false and libelous circulars aforesaid, the defendants and each of them, conspiring together for the purpose of depriving plaintiff of his right to work in his own theater and for pure spite, and for no other purpose, willfully, maliciously, and wickedly caused, and still cause, pretended sympathizers of union labor to picket and stand near the entrance of plaintiff's said theater and urge upon customers of plaintiff and other persons about to attend the plaintiff's theater to refrain from so doing, stating to said customers and intended customers of plaintiff that the plaintiff was employing scab labor, was and is unfair to union labor, and had locked out the union operator, and urged, and still urges, said customers and intended customers of plaintiff to refrain from going into said theater by rea son thereof. "Plaintiff states that said circulars have been printed and distributed among the public at large, and particularly among the customers of plaintiff in both the English and German languages by the defendants and each of them and at their instance and request, for the sole purpose of injuring the plaintiff's business, without right or authority so to do, and for no reason other than the plaintiff has insisted upon doing work and has operated his own picture machine in his own theater, as he has the right to do. "Plaintiff further states that said written and spoken words of and concerning the plaintiff aforesaid and his said business were false, defamatory, and scandalous, as a direct result of the speaking and publishing of which said words the plaintiff's business has been seriously crippled, and he has lost over 150 customers who had theretofore been customers and accustomed to deal with plaintiff and to purchase tickets in order to observe the exhibition given by plaintiff as aforesaid, thereby depriving the plaintiff of said customers and of the profits and advantages which he otherwise would have derived from a continuance of such dealings. "Plaintiff further states that the acts of the defendants and each of them aforesaid were malicious, and were by the defendants and each of them known to be malicious, wrongful, and wicked, by reason of all of which plaintiff has suffered actual damages in the sum of $1,200. "Plaintiff further states that the acts of the defendants and each of them is a continuing wrong. "Wherefore plaintiff prays judgment against the defendants and each of them in the sum of $1,200 actual damages, and inasmuch as the acts of the defendants and each of them are intentionally wrongful and wicked and malicious, plaintiff asks $3,000 exemplary damages or smart money, and for which aggregate sum of $4,200 plaintiff prays judgment against the defendants and each of them." The defendants interposed a demurrer upon the ground that this petition does not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, and plaintiff declined to plead further, whereupon final judgment was entered upon the demurrer, dismissing plaintiff's suit. From this judgment the plaintiff prosecutes the appeal before us. [1, 2] It does not appear that by this petition the plaintiff attempts to state a cause of action for libel or slander as such, though the petition combines allegations as to written publications alleged to have been circulated and distributed or caused to have been circu lated and distributed, "publicly and privatey," by defendants, on or about September 1, 1914, and "ever since said date," and said to have been false and defamatory, with allegations as to alleged slanderous words said to have been uttered, upon indefinite occasions, and to divers and unnamed persons, by others whom defendants caused "to picket and stand near the entrance of plaintiff's theater." In this connection see Darrow v. Briggs, 261 Mo. 244, 169 S. W. 118. It is entirely clear that no effort is made to state a cause of action as for slander. Nor, for various reasons, do we think that the petition could be regarded as stating a cause of action for libel in respect to the statements contained in the alleged circulars, which are said to have been false. Whether such statements, purporting to be statements of fact, contained in these circulars, are such as to afford the basis for an action for libel prosecuted with allegations appropriate to such an action, we need not say. Obviously this petition seeks to state a cause of ac tion as for unlawful conspiracy on the part of the defendants to injure plaintiff in his business, consummated by means of the various and divers acts set up in the pleadings. The petition is so treated in appellant's brief and sought to be upheld on this theory. In Darrow v. Briggs, supra, 261 Mo. loc. cit. 276, 277, 169 S. W. 125, the following from the opinion in Hunt v. Simonds, 19 Mo. loc. cit. 588, is quoted approvingly, viz.: [4, 5] It will be observed that the petition does not charge that the defendants, or any of them, resorted in any way to violence, threats, or intimidation in order to compel or induce persons to refrain from dealing with the plaintiff as customers. In this respect the averments of the petition go nɔ farther than to charge that these defendants, acting in concert, sought by means of persuasion merely to induce persons not to "As it is the settled law that, in an action patronize plaintiff's theater. "Picketing," in on the case in the nature of a writ of conspira- the sense in which that word is used under cy, the plaintiff may have judgment against one such circumstances, for the purpose alone of defendant, although he may have no cause of peaceful persuasion, argument, or entreaty, action against the others, we are assisted in is not unlawful or actionable. See St. Louis determining the character of the case which | v. Gloner, 210 Mo. 502, 109 S. W. 30, 124 Am. will support such action; and the conclusion St. Rep. 750; In re Heffron, 179 Mo. App. would seem to be unavoidable that the action 639, 162 S. W. 652, and cases there discussed. can only be sustained against several, where the In the instant case there is no attempt made acts complained of would sustain an action against one of the defendants; in other words, to state a cause of action as for the doing that the number of the defendants sued and the of any act whereby to compel or induce perallegation that they conspired together do not sons against their will to refrain from havanthorize the plaintiff to maintain his action, ing business relations with this plaintiff; on when he could not maintain it against one de- the contrary, the entire tenor of the petifendant, if sued alone. In Wellington v. Small, tion is to the effect that the acts complained 3 Cush. [Mass.] 150 [50 Am. Dec. 719], it is of amounted to nothing more than mere said by the Supreme Court of Massachusetts: matter of argument and persuasion whereby 'As to the first of these averments [that there it was sought to convince persons in the vicinwas a conspiracy], it may be remarked that, if an act is done by one alone which is no cause ity of defendant's theater that they ought of action, a like act is not rendered actionable not in fairness to patronize him. Such being by being done in pursuance of a conspiracy. the nature of the acts complained of as conIn an action on the case in the nature of a stituting, when done or caused to be done conspiracy, the gist of the action is not the con- by defendants acting in concert, an unlawful spiracy (as it is in an indictment, and was in conspiracy, we think that the demurrer was the old writ of conspiracy), but the damage done well ruled. to the plaintiff. The only use in charging the conspiracy is to make the defendants responsible for the acts of each other done in pursuance of the common design." And in the Darrow Case it is said that this Is "apparently in line with the holdings of all jurisdictions" (citing cases), and that the reason for the rule that "a conspiracy of itself furnishes no cause of action, because from the mere forming of it, no possible damage can accrue, is not far to see." [3] In passing upon the question of the sufficiency of the petition, the pertinent allegations are those which state "the acts of the defendants which were intended to effect their object." Hunt v. Simonds, supra, 19 Mo. loc. cit. 589. The gravamen of the charge against defendants is that they wrongfully and unlawfully sought to injure plaintiff in his business by inducing "customers and intended customers" of plaintiff to refrain from patronizing his theater. 207 S.W.-17 [6] It is said by appellants that the trial court evidently fell into error in maintaining the demurrer by reason of a failure to distinguish between a petition such as this, seeking a recovery of money damages, and a bill in equity seeking injunctive relief under like circumstances. It is quite true that acts which cannot be restrained in equity may afford abundant ground for an action for damages (see Wolf v. Harris, 267 Mo. 405, 184 S. W. 1139; Flint v. Hutchinson Smoke Burner Co., 110 Mo. 492, loc. cit. 502, 19 S. W. 804, 16 L. R. A. 243, 33 Am. St. Rep. 476), but we are of the opinion that the court committed no error in sustaining the demurrer to this petition as for a failure to state facts sufficient to warrant a recovery of damages. The judgment is accordingly affirmed. REYNOLDS, P. J., and BECKER, J., con cur. |