HIGBEE, C., concurs.

PER CURIAM. The foregoing opinion by DAVIS, C., is adopted as the opinion of the court.

All the Judges concur.

MEYER v. WELLS REALTY & INVESTMENT CO. (No. 25866.)

on said scaffold in such work of repairing without having said scaffold safely supported and of sufficient width and so secured as to insure the safety of plaintiff while working thereon, contrary to the statutes in such cases made and provided."

The plaintiff was assistant to one Mr. Mason employed as janitor by the Wells Realty & Investment Company. The plaintiff, under the direction of Mr. Mason, was put to work April 21, 1923, cleaning the office of Smith-Moore Stock & Bond Company. His work was washing the ceilings. He was provided with two stepladders and a plank to be placed upon the steps reaching from one

March 14, 1927.)

1. Master and servant 286(17) —Evidence as to employee's fall from scaffold held insufficient on demurrer to establish prima facie case (Rev. St. 1919, § 6802).

Under petition alleging violation of Rev. St. 1919, § 6802, providing for employer's liability in furnishing defective scaffold to workman repairing building or failing to secure such scaffold properly, evidence, which does not show either defective scaffold or erroneous instruction upon which plaintiff acted which caused his fall and consequent injury, held insufficient on demurrer to establish prima facie case.

2. Master and servant 116(2) — Workman washing walls and ceilings held not within statute requiring scaffold for "repairing" building (Rev. St. 1919, § 6802).

Workman washing ceilings held not to come within terms of Rev. St. 1919, § 6802, which provides for compensation for workman injured where employer furnishes insecure scaffold "for the erection, repairing or taking down" of a building (citing Words and Phrases, First and Second Series, Repair).

Appeal from St. Louis Circuit Court.

Suit by William Meyer against the Wells Realty & Investment Company. Judgment for defendant, and plaintiff appeals. Affirmed.

two boards nailed together, making one strong plank. It was about 11 or 12 feet The steplong, and about 12 inches wide. ladders were collapsible and each had six steps; the plaintiff supposed they were sixfoot ladders. From among stepladders and planks for the purpose the plaintiff selected the two ladders and the plank, which did not differ from the other ladders and planks. The janitor, Mr. Mason, was not present at any time during the progress of the work. The plaintiff set the ladders along the wall where he had to work, placed the plank upon them, and proceeded with his work. He had two buckets. One bucket contained water and a powder with which he first washed the walls and ceiling; the other bucket contained clear water with which he afterwards rinsed the walls and ceiling. He explained how he fell, by saying:

"While I was washing the ceiling, the ladder slid over, and I fell."

And then explained further:

"The foot of the ladder slid over to one side and overbalanced me, and I fell." "When the ladder slid, that threw you off your balance, did it? A. Yes."

On cross-examination he reiterated that statement in explanation of his fall, and re

Jones, Hocker, Sullivan & Angert, of St. Louis, for respondent.

him to lose his balance.

WHITE, J. The plaintiff, injured by a fall from a scaffold furnished him by his employer, the defendant, sued for damages. The trial court sustained a demurrer to his evidence, and the plaintiff appealed.

"That defendant negligently failed to have said scaffold well and safely supported and of sufficient width and so secured as to insure the safety of plaintiff while working thereon, and that defendant negligently furnished said scaffold for plaintiff's use in making said re

"Q. When you first did that work, who told you to place the ladders in that way and to

place the board across? A. Mr. Mason. "Q. On the 21st day of April did you receive any order from Mr. Mason as to what kind of work you should do? A. Yes, sir.

"Q. What order did he give you, or what did he say to you? A. He told me in the afternoon to wash those ceilings on the second floor."

From this it will be seen that the only instruction his superior gave him was to place the plank along from one ladder to the other -an instruction entirely superfluous, because, if he had not intelligence enough to know that he could not do the work at all. In explaining how Mason demonstrated it, he said: "He would do it, or I would do it." There is nothing in this indicating instruction further than the placing of stepladders and adjusting planks upon them. There was no instruction as to the spread of the stepladders, the distance apart they should be, how far the plank should extend beyond its supports, nor as to how to place the feet of the ladder so as to give them security. All that was left to the plaintiff. He testified that the ladders were placed further apart or closer together as the occasion required. He evidently put them in such position on the floor as he thought best.

The allegations of the petition follow almost exactly the language of the statute. The negligence alleged is that the defendant failed to have the scaffold well and safely supported, of sufficient width and so secured as to insure the safety of plaintiffs while working thereon. There is nothing in the evidence to show that insufficient width of the plank had anything to do with the fall, or that the supports were insufficient. It is not claimed that the planks or the ladders were not strong enough to support the weight of the man and his buckets. We are left entirely in the dark as to why the scaffold was not sufficiently secured. Was there any necessity of fastening the plank to the stepladders, or of securing the feet of the ladders so as to prevent their slipping? The boss gave no direction in regard to that. So far as the evidence shows, it was left entirely to the discretion of plaintiff as to how the plank upon the ladders and the feet of the ladders should be secured. The floor was wet and the ladder slipped. There is nothing in the evidence nor in the allegations of the petition to show that that slipping of the ladder, which caused plaintiff to lose his balance, was due to any defect whatever in the material or construction of the scaffold, nor to the carrying out by the plaintiff of any instruction given him by his boss.

[1] If the master furnishes the servant a scaffold with the construction of which the

In order to

[2] II. The statute, section 6802, requires the furnishing of a secure scaffold "for the erection, repairing or taking down" of any kind of a building. The plaintiff claims he was engaged in repairing the building. As shown above, all he did was to wash the walls and ceilings, which apparently had become discolored by smoke and dust, using some kind of a cleansing powder and clear water. He added nothing to the surface of the walls and repaired no defects in them. A definition of the noun "repair," which has been approved by this court, is:

"A restoration to a sound state of what had gone into partial decay or dilapidation, or a bettering of what had been destroyed in part; restoring to a sound, good or complete state after decay, injury, dilapidation or partial destruction." 34 Cyc. 1336; Barber Asphalt Pav. Co. v. Hezel, 155 Mo. loc. cit. 399, 56 S. W. 449, 48 L. R. A. 285; Verdin v. City of St. Louis, 131 Mo. 87, 33 S. W. 480, 36 S. W. 52; Noel v. Lees Summit, 166 Mo. App. loc. cit. 119, 148 S. W. 194; State ex rel. v. Corrigan Street Ry. Co., 85 Mo. loc. cit. 277, 55 Am. Rep. 361.

The dictionary definitions of "repair" use almost the same language. See, also, Words and Phrases, First and Second Series, Repair -Repairs. Notice that the definition of "repair" does not mean to clean, nor anything of that nature, but to restore to a sound condition, "after decay, injury, dilapidation, or partial destruction." As respondent very well puts it: Washing the inside walls of a building is like ordinary house cleaning. There was no decay, injury, dilapidation, or partial destruction. If there was, it was not the plaintiff's duty to have anything to do with restoration. He was washing the walls as he might mop the floor or wash a window. Of course, if he were painting the walls or placing putty around the window sash, it might be said he was repairing; but his work was nothing like that. He remedied no defect, supplied nothing, mended nothing which was dilapidated or broken.

The appellant cites authorities and argues at length regarding the purpose of the stat

ute. It no doubt had a salutary purpose to protect persons engaged in hazardous employments. The Legislature might very well have extended its meaning so as to include just such employment as that in which the plaintiff was engaged. But the Legislature did not see fit to do so. It expressly limited the application of the statute. The context indicates what was in the legislative mind. It relates to "buildings"; the erection or tearing down of a building, and the "repairing" of a building, replacing worn or defective parts. They did not have in contemplation merely keeping a building clean. We have found only one case, directly in point, showing a judicial construction of the word repair. Woodbury Co. v. Tackaberry Co., 166 Iowa, 642, 148 N. W. 639, involves a covenant to keep in repair premises let to a tenant. The basement of the premises became filled with water, mud, and débris which came in from the street through the cellar windows. It was held that the covenant to repair did not cover removal of such water, mud, and débris. The opinion (loc. cit. 646, 148 N. W. 641) quotes from an English case, as fol

lows:

"Repair always involves renewal; renewal of a part; of a subordinate part. A skylight leaks; repair is effected by hacking out the putties, putting in new ones, and renewing the paint. A roof falls out of repair; the necessary work is to replace the decayed timbers by sound wood; to substitute sound tiles or slates for those which are cracked, broken, or missing; to make good the flashings and the like. Part of a garden wall tumbles down; repair is effected by building it up again with new mortar, and, so far as necessary, new bricks or stone. Repair is restoration by renewal or replacement of subsidiary parts of a whole."

There is no definition of repair, applied to subjects such as we are considering here, which would bring the work the plaintiff was doing within the meaning of that term.

The judgment accordingly is affirmed.
All concur.

STATE v. WILLIAMS. (No. 27523.) (Supreme Court of Missouri, Division No. 2. Jan. 24, 1927.)

I. Criminal law 954(1)-Act providing for detailed statement of grounds in motion for new trial is mandatory (Rev. St. 1919, § 4079, as re-enacted by Laws 1925, p. 198). Rev. St. 1919, § 4079, as re-enacted by Laws 1925, p. 198, providing that motion for new trial must set forth in detail and with particularity in separately numbered paragraphs the specific grounds or causes therefor, is mandatory.

2. Criminal law ~~954(1)—Paragraphs of motion for new trial, alleging error in admitting evidence, giving and refusing instructions, etc., held too general (Rev. St. 1919, § 4079, as re-enacted by Laws 1925, p. 198).

Paragraphs of motion for new trial, allegtent evidence, failing to instruct jury fully, and ing error in admitting irrelevant and incompegiving and refusing instructions, held insufficient as not setting forth specific grounds in detail or with particularity, as required by Rev. St. 1919, § 4079, as re-enacted by Laws 1925, p. 198.

3. Criminal law 954(1)-Allegations of motion for new trial that court lectured defendant's counsel and prejudiced jury by manner of ruling on objections held insufficient (Rev. St. 1919, § 4079, as re-enacted by Laws 1925, p. 198).

Paragraphs of motion for new trial, allegant's counsel and interrupted him when obing that court lectured and instructed defendjecting to questions, thus belittling defendant and his counsel, and that court's manner and actions in receiving and ruling on objections tended to bias jury against defendant, held insufficient as assigning no error and not specifying or calling to trial court's attention any specific matter complained of, as required by Rev. St. 1919, § 4079, as re-enacted by Laws 1925, p. 198. 4. Criminal law

1064 (5)-Contention, not made in motion for new trial, that verdict is unsupported by evidence, cannot be considered on appeal.

In absence of complaint in motion for new trial that verdict is unsupported by evidence, Supreme Court cannot consider such contention in appellant's brief.

5. Robbery 30-Verdict of 20 years in penitentiary for robbery by force and violence held not excessive.

Verdict, approved by trial court, fixing 20 years' imprisonment in penitentiary as punishment for robbing prosecuting witness of $685 automobile by force and violence to his person, held not result of passion or prejudice, nor excessive.

6. Robbery 26-Jury can determine measure of punishment for first degree robbery from person.

It is province of jury to determine measure of punishment for first degree of robbery from the person.

7. Criminal law

1178-Assignment in motion for new trial, unsupported by affidavit, proof, brief, or argument, that juror made statement after discharge indicating bias, held not available on appeal.

Assignment in motion for new trial, unsupported by affidavit or other proof and not referred to in brief, and argument of appellant's counsel, that member of jury, after its discharge, said he had known defendant since he was a boy and that his whole family should be in penitentiary, held not available on appeal.

Appeal from Circuit Court, Buchanan County.

Barney E. Reilly and W. B. Norris, both of St. Joseph, for appellant.

North T. Gentry, Atty. Gen., and Claude Curtis, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C. An information was filed in the circuit court of Buchanan county charging the defendant and Andrew Dumphrey with the crime of robbery in the first degree from the person and in the presence of J. M. Reasoner. A severance was granted, and on a trial to a jury on November 6, 1925, the defendant was found guilty as charged in the information and sentenced to imprisonment in the penitentiary for a term of 20 years in accordance with the verdict, and defendant appealed. In the motion for a new trial it is alleged:

"(1) The court erred in admitting on the part of the state irrelevant, incompetent, and illegal evidence over the objections of the defendant.

"(2) The court failed to instruct the jury fully on the law of the case.

"(3) The court erred in giving each and every instruction it gave.

"(4) The court erred in refusing the instructions asked by the defendant.

"(5) The court assumed to lecture and instruct defendant's counsel, and interrupt him when he sought to address objections to the court because of questions addressed to witness by the state, and thus belittling defendant and his counsel, and putting them in an unfavorable position before the jury.

"(6) The court's manner and actions in receiving and ruling on the objection made by

defendant's counsel tended to bias the jury against defendant.

"(7) The verdict of the jury was the result of passion and prejudice.

"(8) The punishment assessed by the jury is excessive and unreasonable and out of proportion to the crime committed.

"(9) After the jury was discharged, one member thereof said he had known defendant Williams since he was a boy, and his whole family should be in the penitentiary."

[1, 2] Rev. St. 1919, § 4079, as re-enacted by Laws of Missouri 1925, p. 198, provides:

"The motion for a new trial shall be in writing and must set forth in detail and with particularity in separate numbered paragraphs, the specific grounds or causes therefor."

This act is mandatory and may not be evaded. The motion herein is subdivided into paragraphs, but in no respect do the first

They do not set forth in detail or with particularity the specific grounds or causes for a new trial. This amendment has been considered in the recent opinion of Judge Blair in State v. Standifer (Mo. Sup.) 289 S. W. 856, rendered at this session of the court. In accordance with the ruling in that case, we must hold that neither of the first six paragraphs meets the requirements of the statute; they are too general; they fail to indicate what evidence was erroneously admitted or wherein the court failed to instruct the jury, or what error, if any, lurks in the instructions given or wherein the court erred in refusing instructions asked by the defendant.

[3-6] No error is assigned in paragraphs 5 and 6, nor does either of these paragraphs specify or call to the attention or the trial court any specific matter complained of. There is no complaint in the motion that the verdict is unsupported by the evidence; therefore we cannot consider that contention There is no basis for in appellant's brief. the seventh assignment that the verdict was the result of passion and prejudice. The defendant was found guilty of robbing the prosecuting witness, by force and violence to his person, of an automobile of the value of $685. This is one of the most heinous offenses denounced by our statutes. The minimum punishment provided by the statute is five years. It was the province of the jury to determine the measure of the punishment. The verdict was approved by the learned trial court, and we see no reason on this record why the verdict should be deemed excessive as asserted in paragraph 8 of the motion.

[7] The assignment in paragraph 9 is unsupported by affidavit or other proof and does not prove itself. It is not even referred to in the brief and argument of learned counsel for appellant. We do not find, nor is it claimed there is, any error in the record proper. The information is not challenged; clearly and sufficiently charges the crime of robbery in the first degree.

it

For the reasons assigned, the judgment is affirmed.

DAVIS, C., concurs.

PER CURIAM. The foregoing opinion by HIGBEE, C., is hereby adopted as the opinion of the court.

All concur.