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State v. Owens.

Due to the conclusion which we have reached in this case, it will only be necessary to consider the indictment, which, omitting caption and formal parts, was as follows:

"The grand jurors for the State of Missouri, summoned from the body of Howell County, impaneled, sworn and charged to inquire within and for the body of the county of Howell, now here in court, upon their oath present and charge that at the March term, 1915, at and in the county of Howell and State of Missouri, one Ted Owens was then and there duly convicted and found guilty by a jury, of the offense of felonious assault and his punishment fixed at a fine of one hundred dollars, in default and failure to pay which in accordance with said conviction, he, the said Ted Owens, was by the said court duly committed to the county jail of said county, and it was ordered by the court that he, the said Ted Owens, be placed in custody of the street commissioner of the city of West Plains, a city of the third class, and required to work on the streets of the said city, until said fine and costs of said action be paid and he be discharged by due course of law; and that in accordance with the orders of said court the said Ted Owens was so committed to the custody of one N. F. Webster who was then and there duly qualified and acting street commissioner and guard, to be worked as a prisoner on the streets of the city of West Plains, as aforesaid, and that afterwards, to-wit, on the day of May,

1915, at and in the said city of West Plains, in the county of Howell and State of Missouri, the said Ted Owens, while then and there in the custody of the said N. F. Webster, street commissioner and guard aforesaid, did then and there unlawfully, willfully and feloniously break custody, run away and escape from the said N. F. Webster, street commissioner and guard aforesaid, and that the said N. F. Webster was then and there duly authorized and empowered to act and

State v. Owens.

was then and there acting as such officer, street commissioner and guard under and by authority of law; and that the said Ted Owens did then and there unlawfully and feloniously break away, run and escape from the custody of the said N. F. Webster, street commissioner, officer and guard as aforesaid; contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State."

Section 4381, Revised Statutes 1909, upon which this prosecution was based, reads as follows:

"If any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding three years, or in a county jail not less than six months, to commence at the expiration of the original term of imprisonment."

It will be noted that the above section limits the violation to a breaking and escaping from a "county jail" or from "custody going to jail," and the statute in no manner undertakes to prescribe a penalty for escaping from a street commissioner into whose custody he is placed for the purpose of being worked upon the streets, as charged in the present indictment. Our attention has not been called to a statute nor have we been able to find one making the acts charged in the present indictment a criminal offense. As much is virtually conceded by the brief of the learned Attorney-General. This being true, we need not determine whether the information sufficiently charges a lawful custody in said street commissioner.

It is a well established rule that criminal statutes must be strictly construed. Very appropriate to the discussion here is the language used by the Kansas Supreme Court in discussing a section (182) of

Telephone Co. v. St. Louis.

the Kansas Code which appears to be almost an exact duplicate of section 4381, Revised Statutes 1909. The court said:

"Section 182 has reference to persons confined in a county jail or held in custody going to such jail. As a rule, penal statutes must be strictly construed, and they cannot be extended beyond the grammatical and natural meaning of their terms, upon the plea of failure of justice. [Remmington v. State, 1 Ore. 281; State v. Lovell, 23 Iowa, 304; Gibson v. State, 38 Ga. 571.]

"We are not at liberty to interpolate into the statute 'city prison' nor can we judicially determine that a 'city prison' is a 'county jail.' It is therefore our opinion that the matters charged in the information do not constitute any, offense within the statute. The omission is one for which the Legislature is responsible. It is probably a casus omissus, which the Legislature may, but the court cannot, supply." [State v. Chapman, 33 Kan. 134.]

The judgment is reversed and the defendant discharged. Roy, C., concurs.

PER CURIAM.-The foregoing opinion of WILLIAMS, C., is adopted as the opinion of the court. All of the judges concur.

KINLOCH TELEPHONE COMPANY, Appellant, v. CITY OF ST. LOUIS.

Division Two, July 5, 1916.

1. TORTFEASORS:

Several Liability. Section 5431, R. S. 1909, requiring joint tortfeasors to contribute to the redress of a private wrong, applies to cases of personal injuries resulting from a negligent omission of duty.

2.

3.

4.

5.

6.

Telephone Co. v. St. Louis.

: Judgment Conclusive. A judgment against two defendants for damages for personal injuries due to negligence is conclusive as to the liability of each to the judgment plaintiff. After such judgment has become final, neither can be heard to contend that it was not liable to the plaintiff for damages in that action.

City and Telephone Company: Negligence. A telephone company which has erected its poles along a street is liable over to the city for any damages the city may be compelled to pay to a pedestrian who has fallen into a hole caused by the negligence of the telephone company.

-: Contribution: Primary Liability of the Telephone Company. Where the record shows a primary liability of the telephone company as between it and the city for injuries due to the falling of a pedestrian into a hole resulting from the placing of a telephone pole along a public street, the company does not make out against the city a prima-facie case for contribution by alleging and proving that both it and the city were sued by the pedestrian and that he recovered a judgment against both jointly.

:

: Evidence: Sole Liability of One Defendant. There is a wide difference between the primary liability of tortfeasors and the sole liability of one of them. Where both the city and a telephone company were sued for damages for personal injuries due to the falling of a pedestrian into a hole negligently allowed to exist at the side of a public street where a telephone pole had been placed, and judgment was rendered against both, neither can claim in an action for contribution that the other was solely liable to the pedestrian, for the judgment concludes both against such contention; and, therefore, it is not error, in a suit by the telephone company against the city for contribution, to exclude testimony tending to show that the hole was not caused by the telephone company, but by a leaking fire plug. Such testimony would not show that the city was primarily liable, but would show a sole liability on its part.

Estoppel: Must Be Pleaded. Estoppel to be available must be pleaded. The city, when sucd by a telephone company for contribution for one half of the judgment. rendered in a negligence case against both, cannot be heard to contend that an agreement between the attorneys of the two defendants as to the course of defense to be pursued in the negligence case estops the city from asserting the primary liability of the cor.pany, unless it pleads such agreement as estoppel.

7.

8.

Telephone Co. v. St. Louis.

: Agreement Upon a Common Defense. The facts of this case do not show that two tortfeasors, jointly sued, had an agreement, in the interest of a common defense, under which neither would attempt to cast primary liability upon the other; but under the agreement to make a joint defense, each was free to show the other solely liable. In a suit for damages for a tort against two tortfeasors, each may show that the injuries were due to the negligence of the other alone, but neither can show that the oth: was alone primarily liable.

: Telephone Company: Erection of Poles: Bond to City. A bond given by a telephone company, which by the permission of the city has erected telephone 1oles along a public street, obligating the company to save the city harmless from all loss or damage by reason of the exercise of the permission, fixes primary liability upon the company, as the law does without the bond, for damages to a pedestrian falling into a hole near where a pole was placed.

Appeal from St. Louis City Circuit Court.—Hon. W. B. Homer, Judge.

AFFIRMED.

Benjamin H. Charles for appellant.

(1) The defendant is liable to contribution under the statute. R. S. 1909, sec. 5431; Brewster v. Gauss, 37 Mo. 518; Eaton v. Trust Co., 123 Mo. App. 117; Judd v. Walker, 158 Mo. App. 168; Spalding v. Bank, 78 Mo. App. 374; Mulderig v. Railroad, 116 Mo. App. 672. (2) The defendant is liable to contribution at common law. Iron Co. v. Rice, 179 Mo. 494; Mayberry v. Railroad, 100 Minn. 79, 12 L. R. A. (N. S.) 678. The pleadings in the Merritt case show that the judgment there was bottomed on the concurring negligence of both defendants. (3) The issues in this case did not become res adjudicata by the judgment in the Merritt case. Parol evidence is admissible to show the true relations existing between the parties. St. Joseph v. Union Ry. Co., 116 Mo. 636. The question as to which of the two defendants

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