Cohen v. St. Louis Merchants Bridge Terminal Railway Co.

ALLEN, J.

This is an action, instituted against appellant and certain other companies, to recover the value of certain “scrap brass” delivered by plaintiffs to appellant, a common carrier, in the city of St. Louis, on May 1, 1913, to be delivered by appellant to the Chicago & Alton Railroad Company for transporta *73 tion over the latter’s line of railway, and to be delivered to another railway company for transportation to its final destination, to-wit, Michigan City, Indiana. The brasses, packed in barrels, were loaded into a freight car, provided by appellant, bnt while the car remained in appellant’s custody, in the city of St. Louis, appellant permitted representatives of certain railroad companies to enter the same and take therefrom various brasses, consisting of old journal bearings used in railroad cars. The brasses so taken from the car were stamped with certain initials or marks employed by the respective railroad companies to identify brasses of this character used upon their cars, and were claimed to be the property of such railroad companies.

It is conceded that the various railroad companies in question were freely permitted to take from this car the brasses which they claimed to own. And it is asserted as a defense that the property, for the value of which plaintiff sues, was in fact delivered to the true owners thereof. In defense the defendants also set up and relied upon an ordinance of the city of St. Louis, providing that the burden of proof shall be upon a person conducting a junk shop to prove the name and residence of his vendor (Section 2163, Revised Code of the city of St. Louis, Rombauer, 1912), and an ordinance requiring junk dealers to have a license.

Plaintiffs demurred to this answer. The court overruled the demurrer as to that portion of the answer averring that defendants had in fact caused the goods in question to be delivered to the real owners thereof. The demurrer was sustained as to those portions of the answer which set up the above-mentioned ordinances in defense. Exceptions were duly preserved to the action of the court in sustaining the demurrer to said portions of the answer; and upon the *74 trial appellant’s counsel offered the ordinances in evidence, but they were excluded.

The cause was tried before the court and a jury and at the close of plaintiff’s case the court directed a verdict in favor of all of the defendants except this appellant. The cause thereupon proceeded, appellant adducing evidence in support of the one defense which it was permitted to assert, and resulted in a verdict and judgment for plaintiff.

The issue tried was whether plaintiffs were in fact the owners of the property which they delivered to appellant, and which was permitted to be taken from its custody by certain railroad companies, or whether in fact the title to such property was vested in the latter companies. Upon this issue plaintiffs’ evidence went to prove the purchase of the brasses by plaintiffs in the usual course of business; and that they purchased such materials in large quantities from foundries and regular dealers therein, and not in small lots by wagon delivery or from local junk dealers. Most of the car brasses were old, i. e., brasses that had been worn, though there is much conflict in the testimony as to their condition. From the evidence it appears that there were some new brasses in the car, and plaintiffs’ evidence goes to show that certain new brasses were placed therein which plaintiffs had purchased from a manufacturer of such brasses. However, it does not appear that those taken from the car, and here in controversy, were new brasses.

Appellant’s evidence went to show that the brasses taken by the various railroad companies had their respective stamps or marks thereupon. But there is ample evidence from which it may be found that such brasses might well, in the usual course of business, properly come into the hands of dealers in such material. It is unnecessary to review in detail this testimony. Suffice it to say that plaintiffs’ evidence made a *75 prima-facie showing in its favor on this issue, and the question became one for the consideration of the jury, whose verdict concludes' the matter here.

It is argued, however, that the court erred in sustaining the demurrer to so much of the answer as set up the ordinances above mentioned, which error it is said was repeated in the court’s ruling excluding the ordinances, and again in instructing the jury relative to the burden of proof. But we regard the action of the court throughout, in respect to the defense interposed based upon the ordinances, as eminently proper. The reasons given by the learned trial judge for his ruling upon the demurrer to the answer, appearing in a memorandum filed, may appropriately be here reproduced. The court said:

“It seems to the court plain that the city cannot by ordinance in any wise change or alter the ordinary rules of evidence applicable in this court. As is stated in Dillon on Municipal Corporations, section 643:

' “ ‘In prosecutions to enforce ordinances, the ordinary rules of evidence apply, except so far as specifically modified by statute; and it is not competent for a municipal corporation, without express authority, to make or alter the rules of evidence or of law,’ citing Charleston v. Dunn, 1 McCord (S. Car.) 33, and Fitch v. Pinckard, 5 Ill. 76 . In Fitch v. Pinckard the court says:

“ ‘The Legislature alone possesses the power to make, change or alter the rules of evidence.’

“In that case it was held that a town corporation had no power to declare that a collector’s deed should be evidence of a compliance with all the preliminary steps. See, also, in re Wong, 108 Cal. 680 , and McQuillin on Municipal Corporations, par. 34, where he says, ‘without express authority the general rules of evidence cannot be changed by a local corporation.’ ”

*76 To this we may add that, in Badgley v. St. Louis, 149 Mo. 122 , 50 S. W. 817 , our Supreme Court held that while the Constitution conferred upon the city of St. Louis authority to adopt a charter of its own making, it was for the purpose alone of municipal government; that any charter so made and adopted was required to be “in harmony with and subject to the Constitution and laws of Missouri,” and that it could not regulate the pr'actice and procedure in State courts. [See, also, Kilroy v. St. Louis, 242 Mo. 83 , 145 S. W. 769 .] It is altogether clear that the city of St. Louis, as a municipality, has no authority whatsoever to establish, by ordinance, rules of evidence, or prescribe any practice or procedure in our State courts, contary to and out of harmony with the general State laws relating thereto. Nor was it material, in this action, whether plaintiffs had procured a license as junk dealers or otherwise.

Sluder v. Transit Company, 189 Mo. 107 , 88 S. W. 648 , cited by appellant, and cases of like character, are not here in point, for the reason that they deal with ordinances which are not out of harmony with the general laws of the State and hence not invalid on that ground.

In this connection it may be said that respondent makes the point that in any event appellant cannot justify its action in turning over the goods in question to certain railroad companies, even though the latter be shown to be the true owners thereof; that plaintiffs, as bailors, were nevertheless entitled to recover the value-thereof in this action. But this question is, in any event, not a live one here. Plaintiffs acquiesced in the court’s ruling on the demurrer to the answer, and the case was tried below upon the theory that title in the railroad companies mentioned, if shown, would constitute a complete defense.

Appellant also urges that error was committed by the court in giving an instruction on the credibility of *77 the witnesses and the weight to he given to their testimony; which instruction, among other things, told the jury that if they believed that any witness had knowingly sworn falsely to any fact or facts material to the issues in the case, they were at liberty to reject all or any portion of the testimony of such witness. In support of this assignment of error appellant relies upon Keeline v. Sealy, 257 Mo. l. c. 527, 528, 165 S. W. 1088 . But that case is not here authority, for the reason that this record discloses that there was in fact a sufficient conflict in the testimony of certain witnesses to justify the giving of this instruction. This question we have recently had occasion to consider in Schuler v. Insurance Company, 191 Mo. App. 52 , 176 S. W. 274 , and in Price v. Hiram Lloyd Construction Co., 191 Mo. App. 395 , 177 S. W. 700 ; and reference to those cases will make clear the ground for our ruling on the instruction now before us.

It follows that the judgment should be affirmed, and it is so ordered.

Reynolds, P. J., and Norioni, J., concur.