State v. Eyermann

• Decision Date: 12 December 1905
• Citation: 90 S.W. 1168,115 Mo.App. 660
• Parties: STATE OF MISSOURI, Respondent, v. EYERMANN, JR., Appellant
• Court: Missouri Court of Appeals

90 S.W. 1168

115 Mo.App. 660

STATE OF MISSOURI, Respondent, v. EYERMANN, JR., Appellant

Court of Appeals of Missouri, St. Louis

December 12, 1905

Appeal from St. Louis Court of Criminal Correction.--Hon. Hiram N Moore, Judge.

AFFIRMED.

STATEMENT.--This is an appeal from a conviction under the first section of an act approved March 25, 1901. The statute is as follows:

"The emission or discharge into the open air of dense smoke within the corporate limits of cities of this State which now have or may have hereafter a population of one hundred thousand inhabitants is hereby declared to be a public nuisance. The owners, lessees, occupants, managers or agents of any building, establishments or premises from which dense smoke is so emitted or discharged, shall be deemed guilty of a misdemeanor, and upon conviction thereof, in any court of competent jurisdiction, shall pay a fine of not less than twenty-five dollars, nor more than one hundred dollars. And each and every day whereon such smoke shall be emitted or discharged shall constitute a separate offense; provided however, that in any suit or proceeding under this act, it shall be a good defense if the person charged with a violation thereof shall show to the satisfaction of the court or jury trying the facts, that there is no known practical device, appliance, means or method by application of which to his building, establishment or premises, the emission or discharge of the dense smoke complained of in that proceeding could have been prevented." [Laws 1901, sec. 1, p. 73.]

The material portion of the indictment is as follows:

"That Gottlieb Eyermann, Jr., as manager of G. Eyermann, Jr., & Brother, in the city of St. Louis, on the 28th day of April 1904, a city then and there having a population of one hundred thousand, said Eyermann being then and there the manager of certain buildings or premises for said G Eyermann, Jr., & Brother, situated at No. 1216 South Grand avenue, in said city, did willfully and unlawfully suffer to be emitted and discharged from the smokestack or chimney of said premises, within the corporate limits of said city, dense smoke into the open air contrary," etc.

The evidence shows that defendant and his brother, as co-partners, owned and operated a quarry plant in the city of St. Louis; that dense smoke was emitted therefrom in large quantities on the date mentioned; that the defendant and his brother, as such partners, each had charge of certain departments of the business; that defendant spent several hours each day at and about the plant, opening and answering the mail, looking after the business, and giving the foreman such orders as were necessary when applied to in matters involving discretion about the conduct of the business; that the firm had a foreman in charge at the plant looking after the work; that when any important matter came up for decision, he applied to defendant or his brother for orders, which he received and followed; that neither the defendant nor his brother was known by the title of manager; that the foreman had this title but was subject to the directions of both the members of the firm as indicated above. The defendant was proceeded against as manager of the building, establishment or premises and convicted. He appeals to this court. Other facts essential to an understanding of the case will appear in the opinion.

Judgment affirmed.

Rassieur, Schnurmacher & Rassieur for appellant.

The information charges that defendant as manager of G. Eyermann, Jr., & Brother was guilty of the offense. The proof shows that he was not manager at all, but a partner of the firm which owns the plant. He was tried on one theory and convicted on another. There is no proof from which willfulness on the part of the defendant can be inferred. The most that can be said is, that there was proof that the engineer on that day failed to perform his duty, and he, therefore, violated the law. State v. Baker, 71 Mo. 475; State v. Reiley, 75 Mo. 521; State v. McCance, 110 Mo. 398.

J. D. Dalton for respondent.

OPINION

NORTONI, J. (after stating the facts).

1. The first point made by appellant is that the indictment is insufficient. The principal criticism directed against the indictment is that it charges defendant to be manager for G Eyermann, Jr. & Brother without alleging whether G. Eyermann, Jr. & Brother is a partnership or a corporation. We are not impressed with this objection. The allegation is, "said Eyermann being then and there manager of certain buildings or premises for said G. Eyermann, Jr., & Brother." The clause of the statute which is pertinent, reads: "The owners, managers or agents of any building, establishment or premises from which dense smoke is so emitted," etc. It will be observed that the penalty of the statute is leveled in this instance, and by the indictment invoked against the person having general supervision of the building or premises as manager. It is wholly immaterial whether he be manager for a co-partnership, corporation or other concern. The material point is, is he manager of the "building, establishment or premises from which dense smoke," etc., is emitted? If so, the statute charges him with responsibility for having permitted the nuisance. It was certainly not necessary for the State to prove affirmatively whether the concern of which he was manager was a corporation or co-partnership. It was sufficient to prove that he was manager of the "building, establishment or premises" thus emitting the dense smoke. It being unnecessary...