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Full text of "Reports of cases determined by the Supreme Court of the state of ..., Volume 279"

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L 



HARVARD LAW LIBRARY 



Received/.?;-; 1^ 19 91 



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REPORTS 



OF 



CASES DETERMINED 



BY THE 



SUPREME COURT 



OPTHS 



STATE OF MISSOURI 



Between June 26» 1919, and December 1, 1919. 



PERRY S. RADER, 

BBPOBTBB* 



VOL. 279. 



COLUMBIA, MO.: 

B. W. 8TBPHBN8 PUBU8HIN0 Ca 

1919. 



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Entered according to act of Congress in the year 1919 by 
B. W. STEPHENS PUBLISHING CO. 
In the office of the Librarian of Congress at Washington, D. 



APR 19Z1 



(u) [279 Mo. 

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JUDGES OF THE SUPREME COURT 

DURING THE TIME OF THESE EEPOETS, 



Hon-. BCEiirBY W. Bond, Chief Justice/ 

Hon. Bobebt Frankun Walkbb, Chief Justice.* 

Hon. Cttakt.es B. Fakis, Judge.* 

HoK^. Jam:es T. Blaib, Judge. 

Hon. Arch:blaus M. Woodson, Judge. 

Hon. Frbe> li. Williams, Judge. 

Hon. Richabd L. Goode, Judge.* 

Hon. John I. Williamson, Judge.* 



EMBANK ^W. McAllister, Attorney-General. 

J. D. AxxBN, Clerk. 

H. C SdHULT, Marshal. 



*NOTB. — On September 13, 1919, Hon. Henry W. Bond died, and 
on Octol>er 13th Hon. Robert Franklin Walker was elected Chief Ju«. 
tice. Hon. Richard L. Goode of St. Louis was appointed by Goyernor 
Gardner on October 23rd to fill the vacancy caused by the death of 
JuAge Bond, and qualified on November 1st. Judge Charles B. Paris 
resigned to become Judge of the District Court of the United States for 
tlie Eastern District of Missouri, and Hon. John I. Williamson of 
Kansas City was on November 1st appointed by the Governor to fill 
the vacancy and qualified November z, 1919. 

279 Mo.] (iii) 



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JUDGES OF THE SUPREME COURT 



BY DIVISIONS. 



DIVISION ONE. 



Hon. James T. Blaib, Presiding Judge. 
Hon. Henby W. Bond, Judge.* 
Hon. Aboheiaus M. Woodson, Judge. 
Hon. Waller W. Graves, Judge. 
Hon Kichard L. Goode, Judge.* 

Hon. Stephen S. Brown, Commissioner. 

Hon. William T. Raqland, Commissioner. 

Hon. Charles Edwin Small, Commissioner. 



DIVISION TWO. 



Hon. Fred L. Williams, Presiding Judge. 
Hon. Robert Franklin Walker, Judge. 
Hon, Charles B. Faris, Judge.* 
Hon. John I. Williamson, Judge.* 

Hqn. Norman A. Mozley, Commissioner. 

Hon. Robert T. Railey, Commissioner. 

Hon. John Tubnbb White, Commissioner. 



•NOTB.--H011. Henry W. Bond died September 13, 1919, and was 
succeeded by Hon. Richard L. Goode. Hon. Cbarles B. Faris resigned 
and was succeeded November 3rd by Hon. John I. Williamson. 

(iv) [279 Mo. 



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TABLE OF CASES REPORTED 

IN THIS VOLUME 



A. 

American Forest Company v. Hall Administrator of Hall «43 

American Scale Company (Swift, Doing Business Under Namoof) 

V. Central Union Fire Insurance Company 606 

Ammerman t. Linton *39 

B 

Baiker t. Gates, Executor of Gates 630 

Barber v. Hartford Life Insurance Company 316 

Bennett t. City of Nevada 211 

Boatman's Bank, Newell, Administrator of Odegaard, v 663 

Boatman's Bank, Ranus, by Winterman, v 832 

Bond T. Williams 215 

Bowen, Powell v 280 

Byrd. State ex rel. McBride v 481 

C 

CantreU. State v 569 

Carter, State ex rel. McCune v 304 

Central National Bank of Carthage, State ex rel. Johnson ▼ 228 

Central Union Fire Insurance Company, Swift, Doing business 

under name of American Scale Company, v 606 

Chicago Bonding ft Surety Company, State ex rel Elberta Peach 

ft Land Company y 535 

Chicago, Rock Island ft Pacific Railway Company, Orris v. ..... . 1 

City of Nevada, Bennett v 211 

Clark V. Union Electric Light ft Power Company 69 

Collins V. Jaicks Company 404 

Crenshaw, Starr v 344 

Crutcher," In re Twenty-third Street Trafflcway v , 249 

Cummins, State v 192 

D 

Davey, Whitworth v 672 

Dobschutz V. Dobschutz 120 

E 

Edmonds v. Scharff 78 

Elberta Peach ft Land Company (State ex rel.) v. Chicago Bond- 
ing ft Surety Compnay 535 

F. 

Frick V. Millers National Insurance Company 156 

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vi CASES REPORTED. [279 Mo. 

o 

Gates, Baker v 6^ 

Goebel Construction Company. Prapuolenis v 358 

Graves v. Metropolitan life Insurance Company 240 

Gresham, ' Ripkey v 521 

Growney, Maxwell v. 113 

H 

Hagerman (State ex rel.) v. St Louis k Bast St. Louis Electric 

Railway Company 61^ 

Hall, American Forest Company v 643 

Hartford Life Insurance Company, Barber v 316 

Hendren v. Neeper 126 

Hill (State ex rel.) v Pettingill 31 

I 

In re Twenty-third Street Trafficway v. Crutcher 249 

J 

Jaicks Company. Collins v 404 

Johnson (State ex rel.) v. Central National Bank of Carthage .. 228 
Johnson (State ex rel.) y. Merchants k Miners Bank 228 

K , 

Kansas City Railway Company, Smith v 173 

Kansas City, Clinton & Springfield Railway Company, Tannehill 

y, , . 158 

Kansas City, St. Louis & Chicago Railroad Company, Murrell 

V 92 

Krinard v. Westerman 680 

L 

Linton, Ammerman v ' 439 

Mc 

McBride (State ex rel.) v. Byrd 431 

McBride (State ex rel.) v. Sheetz *;fi» 

McClung V. Pulitzer Publishing Company 370 

McCord, Administrator of McCord, v. Schaff 558 

McCune (State ex rel.) v. Carter 304 

M 

113 

Maxwell v. Growney •• .-. 

Meeker v. Union Electric Light k Power Company 574 

Merchants & Miners Bank, State ex rel. Johnson v ^^» 

Metropolitan Life Insurance Company, Graves v ^40 

Millers National Insurance Company, ^rick v. .....^......... 156 

Missouri Southern Railroad Company v. Public Service Com- 

mission , ! ' L! V,'.* * « * * V ' 

Missouri Southern Railroad Company, State ex rel. Public Service 

Commission v •••••• *5a 

Missouri State Life Insurance Company v. Salisbury 40 

Murrell v. Kansas City, St Louis «? Chicago Railroad Company . . 92 



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279 Mo.] CASES REPORTED. vii 

N 

Keeper, Hendren v 125 

Nevada (City of), Bennett v 211 

Newell, Administrator of Odegaard, v. Boatmans Bank 663 

Nowland and United States Fidelity ft Guaranty Company, St 
Louis ft Tennessee River Packet Company v 500 

O 

Odegaard (Newell, Administrator of) ▼. Boatmans Bank 663 

Orris v. Chicago, Rock Island ft Pacific Railway Company 1 

P 

Pelligreen Construction Company (State ex rel.) v. Rejmolds . . 493 

PettingUl, State ex rel. Hill v ;.... 31 

Powell V. Bowen 280 

Prapuolenis v. Goebel Construction Ck>mp8ny 358 

Public Service (Commission, Missouri Southern Railroad Company 

^^▼- 484 

Public Service Commission (State ex rel.) v. Missouri Southern 

Railroad Company 455 

Pulitzer Publishing Company, McCUing v .-. 376 

R 

Ranus, by Winterman, v. Boatmen's Bank 332 

Reynolds, State ex rel. Pelligceen Construction Company v 493 

Ripkey v. Gresham 521 

S 

St Louis ft East St Louis Electric Railway Company, State ex rel. 

Hagerman v 616 

St Louis ft Tennessee River Packet Company v. Nowland and 

United States Fidelity ft Guaranty Company 600 

Salisbury, Missouri State Life Insurance Company v 40 

Schaff, McCoTd v 558 

Scharff, Edmonds v 78 

Sheets, State ex rel. McBride v 429 

Smith ▼. Kansas City Southern Railway Company 173 

Starr v. Crenshaw 344 

State ▼. Cantrell 569 

State ▼. Cummins ^ 192 

State ex rel. Elberta Peach & Land Company v. Chicago Bonding 

ft Surety Company 536 

State ex rel. Hagerman v. St. Louis ft East St Louis Electric Rail- 
way Ompany 616 

State ex rel. Hill v. PettingUl 31 

State ex rel. Johnson v. Central National Bank of Carthage 228 

State ex rel. Johnson v. Merchants ft Miners Bank 228 

State ex rel. McBride v. Byrd 481 

State ex rel. McBride v. Sheetz 429 

State ex rel. McCune v. Carter 304 

State ex reL Pelligreen Construction Company v. Reynolds 493 

State ex rel. Public Service Commission v. Missouri Southern Rail- 
road Company 455 

Stegmann v. Weeke 131 

Stegmann t. Weeke 140 

Svirlft, Doing Business Under Name of American Scale Company v. 
Central Union Fire Insurance (^mpany 606 



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viii CASES REPORTED. [279 Mo. 

T 

Tannebill t. Kansas City, Clinton ft Springfield Railway Company 158 

Thlen v. Wlese 524 

Threadgill v. United Railways Company of St Louis :66 

Twenty-third Street Trafflcway (In* re) v. Cnitcher 249 

U 

Union Electric Light A Power Company, Clark v. 69 

Union Blectric Light A Power Company, Meeker ▼ 574 

United Railways Company of St Louis, Threadgill v. 466 

United States Fidelity ft Guaranty Company (Nowland and), St 
Louis ft Tennessee River Packet Company y 500 

W 

Weeke, Stegmann v 131 

Weeke, Stegmann v. . * 140 

Wells T. Wells 57 

Westerman, Krinard v 680 

Whitworth y. Davey 672 

Wlese V. Thlen 624 

Williams, Bond ▼ 215 



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V 




TA.BLE OF CASES OVERRULi 

DISAPPROVED 



A^vATitf^fi Transfer Co. v. Railroad, 195 S. W. 568 

^^JXf na v-. Sweeney Automobile Sdiool Ck)., 196 S. W. 772 

SJm^iTV. K^lroad,6Mo. App. 481 

WA^er ▼. influence Co., 62 Mo. App. 220 



(ix) 

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TABLE OF CASES CITED 

IN THIS VOLUME. 



Adams y. Cowles, 95 Mo. 501, 8 S. W. 711, 6 Am. St. Rep. 74 68 

Adams Express Co. v. Kentucky, 166 U. S. 171 629 

Adams Express Co. v. Ohio State Auditor, 165 U. S. 194 629 

Alden v. Springfield, 121 Mass. 27 273 

Am. Bond. Co. v. Morrow, 80 Ark. 49 553 

Anderson v. Walker, 49 S. W. 937 550 

Andrews v. Lynch, 27 Mo. 169 613 

Andrus v. Ins. Co., 168 Mo. 165 157 

Armor v. Prey, 253 Mo. 477 294, 295, 296 

Arn V. Am, 264 Mo. 42, 173 S. W. 1062 68 

Ash V. Printing Co., 199 S. W. 994 368 

Association v. Am. Bonding Co., 197 Mo. App. 430 553 

Atkins V. Elwell. 45 N. Y. 753 520 

Atl. Coast Line v. Comm., 206 U. S. 1 466 

B 

Babcock v. Adams, 196 S. W. 1118 296, 298, 299 

Bailey v. Kansas City, 189 Mo. 503 498 

Baker v. Squire, 143 Mo. 99 523 

Baltimore v. Maryland, 92 C. C. A. 335 171 

Bank v. Assur. Co., 33 Ore. 50 22 

Bank v. Kirby, 175 S. W. 926, 190 S. W. 597 . . 444, 445, 446. 447, 449 

Bank r. Richmond, 235 Mo. 542 20 

Banking House v. Rood, 132 Mo. 262 87 

Barber v. Ins. Co., 269 Mo. 42 331, 832 

Barker v. Circle, 60 Mo. 258 292 

Barney v. Winona Ry. Co., 117 U. S. 228 328 

Barr v. Kansas City, 121 Mo. 30 695 

Barron v. Lead ft Zinc Co., 172 Mo. 278 499 

BatUe V. Davis, 66 N. C. 252 548 

Bauble v. Ossman. 142 Mo. 499 523 

Bayless v. Ins. Co., 106 Mo. App. 684 157 

. BeatUe v. Lett, 28 Mo. 596 656 

Bell V. George. 204 S. W. 519 290 

Berryman v. Cox, 73 Mo. App. 74 19 

Biggs V. State. 29 Ga. 723 223 

Bishop V. Inv. Co.. 229 Mo. 723 86 

Black V. Epstein. 221 Mo. 305 20 

Black V. McGonlgle. 103 Mo. 198 235, 236, 238 

Black V. Slate Co.. 93 S. C. 467, 77 S. E. 51 398 

Blanton v. Dold, 109 Mo. 74 12, 27 

Blanton y. Jamison, 3 Mo. 53 65 

Bloomington v. Reeves, 177 111. 168 270, 272 

Bohn V. Railway, 106 Mo. 433 499 

Bone V. Friday. 180 Mo. App. 577 85 

Boppart V. Surety Co.. 140 Mo. App. 683 558 

Bowen v. Ins. Co., 104 N. W. 1040 55 



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279 Mo.] CASES CITED. xi 

Boyd V. Railroad, 236 Mo. 93 226 

Boyden v. Railroad, 72 Vt 89 172 

Bradley v. Goff, 243 Mo. 95, 147 S. W. 1012 294, 296 

Bradley v. McAtee, 7 Bush. (Ky.) 667 425 

Bradley v. Railroad, 91 Mo. 498 294, 296 

Brady v. Chandler, 31 Mo. 29 658, 660 

Brags: v. Street Ry., 192 Mo. 356 498 

Brancli ▼. Knapp ft Co., 222 Mo. 680 399, 402 

Breidenstein v. Bertram, 198 Mo. 344 124 

Brennan v. Church, 192 S. W. 982 427 

Briant v. Garrison, 150 Mo. 667 64 

Brings ▼. Garrett, 111 Pa. St 404 398 

Brosnahan v. Best Brew. Co., 26 Mo. App. 390 228 

Brown v. Railroad, 256 Mo. 533 104, 106 

Browning v. Railroad, 118 Mo. App. 451 19 

Bnrkham v. Manewal. 195 Mo. 600, 94 S. W. 520 295 

Bnrnham v. Rogers, 167 Mo. 21 438 

Burt V Newspaper Co., 154 Mass. 238 398, 399 

Burt V. Nichols, 264 Mo. 18 341, 366, 368, 672 

Bntier v. Imhoff, 238 Mo. 595 448, 460 

Byington v. Railroad, 147 Mo. 673 106, 108 

C 

Campl>ell v. Greer, 197 Mo. 463 573 

Campbell v. Railroad. 175 Mo. 161 167 

Carson ▼. Lumber Co., 270 Mo. 245 293 

Carstens v. Fon du Lac, 137 Wis. 465, 119 N. W. 117 424 

Carter ▼. Butler, 264 Mo. 325 655, 661 

Cent. Nat. Bk. v. Life Ins. Co., 104 U. S. 54 550 

Chandler v. Ins. Co., 180 Mo. App. 394 248 

Chapman ▼. Cooley, 12 Rich. (S. C.) 660 22 

Chapman v. Dougherty, 87 Mo. 617 86 

Chicago V. Schmidinger, 243 111. 167 150 

Chicago V. Stockyards Co., 164 111. 224 139 

Chicago Herald Co. v. Bryan, 195 Mo. 587 76 

Chichester v. Voss. 1 Call. 71 613 

Chicora Co. v. Dunnn, 91 Md. 144 354 

Chilton V. Nickey. 261 Mo. 243 290 

Cnilanda v. Transit Co., 213 Mo. 260 69 

City to use v. Eddy, 123 Mo. 646 215 

Clark ▼. Thias, 173 Mo. 628 85 

aeary v. GenL Contr. Co., 101 Pac. 888 367 

Cloud V. Pierce City, 86 Mo. 367 68 

Coal Co. ▼. St. Louis, 130 Mo. 327 149, 151 

Cockrill ▼. Hutchinson, 135 Mo. 67 293 

Cohfos V. Virginia, 6 Wheat 264 327 

Collier ▼- Le«d Co., 208 Mo. 261 89 

Collins V. Todd, 17 Mo. 637 222 

Colter ▼. Luke. 129 Mo. App. 702 67 

Conner v. Railro-'d, 181 Mo. 397 30 

Cook ▼. Clary, 48 Mo. App. 169 228 

Cook ▼. Neely, 143 Mo. App. 632 224 

Cook ▼. Pulitzer Pub. Co., 241 Mo. 326 399, 400, 401. 403 

Cook V. Walling, 2 L. R. A. (Ind.) 769 292 

Corbett v. Cronkhite, 239 111. 9 354 

C^rley v. Railroad. 90 Kan. 70 171 

Cotting V. Stockyards Co.. 183 U. S.-^9 390 

Coxe V. Whitney, 9 Mo. 531 221 

Crenshaw v. Creek, 52 Mo. 98 292 

Crenshaw v. Julian, 26 S. C. 283 291 



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xii CASES CITED. [279 Mo. 

Crow V. Meyersieck. 88 Mo. 411 68 

Cumberledge y. Banks, 236 111. 249 357 

D 

Dailey v. Houston, 58 Mo. 361 227 

Dale V. Denver Tramway Co., 97 C. C. A. 511 171 

Davidson v. Pulitzer Pub. Co., 178 S. W. 68 888 

Dean v. Railroad. 199 Mo. 390 105, 698 

De Hatre v. Edmonds, 200 Mo. 246, 98 S. W. 744, 10 L. R. A. (N. S.) 

86 294, 295, 296 

Deiner v. Sutermeister, 266 Mo. 505 365, 368 

Delmar Inv. Co. v. Lewis, 271 Mo. 317 551 

Deschner v. Railroad, 200 Mo. 333 27 

Dezell V. Casualty Co., 176 Mo. 253 248 

Dickey v. Porter, 203 Mo. 23 654, 655, 657. 662 

Diener v. Star-Chronicle Co.. 230 Mo. 613, 232 Mo. 416 398, 399 

Dircks v. Ins. Co., 34 Mo. App. 41 56 

Disinfecting & Mfg. Co. v. Bates Co., 273 Mo. 304 228 

Dobyns v. Bay State Ben. Assn.. 144 Mo. 95 55 

Dolan V. Fagan, 63 Barb. (N. Y.) 73 223 

Donnelly v. Brooklyn Ry. Co., 109 N. Y. 16 171 

Dorris v. Warford. 9 U R. A. (N. S.) 1090 691 

Dougherty v. Ringo. 7 Ky. L. 360 572 

Dowd V. Air Brake Co., 132 Mo. 579 227 

Downing v. Corcoran. 112 Mo. App. 645 278 

Drain. Dist v. Bates Co.. 269 Mo. 91 439 

Drain. Dist v. Railroad. 216 Mo. 715 483 

Duckett V. Mechanics' Bank. 86 Md. 400 550 

Dudley v. McCluer, 65 Mo. 243 20 

Dugan V. United States, 3 Wheat 172 655 

Dulaney v. Buffum, 173 Mo. 14 76. 78 

Dunbauld v. Thompson. 109 Iowa. 199 691 

Duncan v. Jaudon. 21 L. Ed. 142 550 

Dupee V. Lentine. 147 Mass. 580 , 222 

Dutcher v. Railroad, 241 Mo. 137 112 

Dutro V. Street Ry.. Ill Mo. App. 258 602 

Dyer v. Brannock. 66 Mo. 391 294, 296 

Dyer v. Wittier. 89 Mo. 81 296 

E 

Eastman v. Miller. 113 Iowa, 404 854 

Eaton V. Kegan. 114 Mass. 433 151 

BlectHc L. ft P. Co. v. St Louis, 253 Mo. 603 137 

Elrod V. Carroll, 202 S. W. 5 69 

England v. Railroad. 180 S. W. 34 477, 478 

Eppstein v. Railroad. 197 Mo. 720 112 

Eswin V. Railroad, 96 Mo. 294 ' 108 

Euneau v. Rieger. 105 Mo. 680 ^ 297 

Bustis V. Bolles. 150 U. S. 361 327 

Evans v. Trenton, 112 Mo. 404 565 

Ex parte Bedard. 106 Mo. 627 89 

Ex parte House v. Mayes. 227 Mo. 636 149 

Ex parte Union Steamboat Co., 178 U. S. 317 328 

P 

Farls V. Moore, 256 Mo. 128 294 

Fargo V. Hart. 193 U. S. 490 629 

Farrar v. St Louis. 80 Mo. 379 414 

Feary v. Street Ry. Co., 162 Mo. 75 80 



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279 Mo.] CASES CITED. xiii 

Fellheimer v. Eagle, 79 Ark. 201 672, 678 

Pink V. Railroad, 161 Mo. App. 327 29 

Fish V. Dodge, 4 Denio, 311 641 

Fisher ▼. Patton, 134 Mo. 32 664 

Pltzjohn ▼. Transit Co., 183 Mo. 74 639 

Fleming v. Railroad, 263 Mo. 186 104 

Freeman t. Maxwell, 262 Mo. 24 118 

French y. Barber Asphalt Co., 181 U. S. 324 416 . 

FTick V. MlUers NaU. Ins. Co., 184 S. W. 1161 167 

G 

OaUoway v. RaUroad, 168 Mich. 343 171 

Gamasche y. Smythe, 60 Mo. App. 166 66 

Qandla ▼. Pettingill, 222 U. 8. 452 399 

Gannon t. Gas Light Co., 146 Mo. 511 602 

Garard t. Coal ft Coke Co.. 207 Mo. 267 698 

Garrison v. Taff, 197 S. W. 274 290 

Gennng ▼. Baldwin, 79 N. Y. S. 669 223 

Ghere v. Zey, 128 Mo. App. 366 694 

Gibson ▼, Herriott, 55 Ark. 86 291 

GUes V. Railroad, 169 Mo. App. 24 80 

GiUiland v. Railroad. 19 Mo. App. 411 640 

Glaessner v. Brewing Assn., 100 Mo. 608 277 

Click T. Railroad, 57 Mo. App. 97 30 

Globe PrlnUng Co. v. Stahl, 23 Mo. App. 461 604 

Glue Co. V. Glue Co., 187 U. 8. 611 , 328 

Goodale y. Evans, 263 Mo. 228 86 

Gordon v. Railroad, 222 Mo. 616 183, 184, 190, 191 

Gorham t. Railroad, 112 Mo. App. 208 227 

Gorman t. Railroad, 256 Mo. 483 280 

Gonriey v. Callahan, 190 Mo. App. 666 19 

Graham v. Ketchum, 192 Mo. 15 296 

Grainger y. Still, 187 Mo. 213 692, 693, 694 

Gramm t. Boener, 66 Ind. 497 691 

Grand Lodge v. New Orleans, 166 U. S. 143 426 

GraUot ▼. Railroad, 116 Mo. 466 107, 108 

Gray ▼. Bowles. 74 Mo 419 237 

Gray v. McDonald, 104 Mo. 314 221 

Green t. Ditsch, 143 Mo. 8 86 

Green t. Walker, 99 Mo. 73 .' 89 

Grlffln V. Nicholas, 224 Mo. 276 86 

Grocers' Fruit Union v. Kern Co. Land Co., 150 Cal. 466, 89 Pac. 

X20 396 

GroTe V. Kansas City, 76 Mo. 672 618 

Grube t. Railroad. 98 Mo. 334 108 

Guarantee Co. v. Bank ft Trust Co., 80 Fed. 766 663 

Guillaume t. Land Co., 48 Ore. 400 357 

Gutzwlller t. Lackman, 23 Mo. 172 20 

H 

Haake t. Davis, 166 Mo. App. 253 29 

Haarstlck v. Gabriel, 200 Mo. 237, 98 S, W. 760 293 

Hadley ▼. Railroad, 166 N. W. 766 186, 187 

Hales T. Raines, 146 Mo. App. 241 691 

Hall T. French, 165 Mo. 440 296 

Halsey y. Ins. Co., 268 Mo. 659 66 

Hanser t. Bieber, 197 S. W. 68 167 

Hardware Co. t. Fisher, 269 Mo. 276 104 

Harper t. Runner, 86 Neb. 348 867 



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xiv CASES cited/ [279 Mo. 

Harris v. James, 45 L. J. Q. B. (N. S.) 546 639 

Harrison v. Morton, 171 U. S. 38 328 

Hart V. Wire Co., 91 Mo. 418 612, 613 

Hartwell v. Parks, 240 Mo. 543 69 

Hauser v. Murray, 256 Mo. 58, 165 S W. 376 296 

Hawthorn v. Richmond, 48 Vt 559 691 

Hayden v. Railroad, 124 Mo. 666 170 

Ueberling v. Warrensburg, 204 Mo. 604 601 

Helwig V. Jordan, 53 Ind. 21 640 

Heman v. Schulte, 166 Mo. 409 415 

Henry v. Railroad, 113 Mo. 635 30 

He4ry v. Sneed, 99 Mo. 425 292 

Henry Co. v. Salmon, 201 Mo. 151 315 

Hermann v. Rhode Island Co., 90 Atl. 813 171 

Herndon v. Yates, 194 S. W. 46 294, 295 

Hickman v. Green, 123 Mo. 165 182 

Hicks V. St. Louis, 234 Mo. 653 137 

Higbee v. Brockenbrou'gh, 191 S. W. 994 118 

Hingston v. Montgomery, 121 Mo. App. 462 139 

Hinzemann v. Railroad, 199 Mo. 56 112 

Hoffman v. Walsh, 117 Mo. App. 278 T... 602 

Hogan V. Railroad, 150 Mo. 48 499 

Holmes v. Kansas City, 209 Mo. 513 524 

Holmes v. Railroad, 207 Mo. 149 112 

Hoover v. Ry. Companies, 159 Mo. App. 416 601 

Hopkins v. Sweeney Automobile School Co., 196 S. W. 772 478 

Horton v. Howard, 79 Mich. 642 89 

Houck V. Drain. Dist., 248 Mo. 394 421 

Houston V. Pulitzer Pub. Co., 249 Mo. 332 387, 388 

Howarth v. Barlow, 113 App. Div. (N. Y.) 610 402 

Howell V. Jump, 140 Mo. 441 296 

Hubbard v. Bartholomew, 144 N. W. 13 171 

Hubbard v. Railroad, 173 Mo. 255 76 

Hudson V. Wright, 204 Mo. 412 245 

Huff V. Morton, 94 Mo. 409 460 

Hughes V. Israel, 73 Mo. 538 86, 87 

Hughes V. Winkl^man, 243 Mo. 92 123 

Hunt V. Railroad, 262 Mo. 275 109 

Hunter v. Miller. 36 Mo. 147 448 

Hutchings v. Weems, 36 Mo. 286 659, 660 

Hutchinson v. Safety Gate Co., 247 Mo. 71 184 

Hutchinson v. Shelley, 133 Mo. 412, 34 S. W. 838 68 

I 

Ind. Traction Co. v. Love, 180 Ind. 442 171 

In Matter of Mooney v. Railroad, 6 Mo. P. S. C. Rep. 250 487 

In re Haywood, 154 Cal. 312 573 

In re Hutton's Estate, 92 Mo. App. 138 138 

In re Potts, 166 U. S. 263 328 

In re Sanford, 236 Mo. 686 315 

In re Sanford Fork & Tool Co., 160 U. S. 247 828 

In re 6th St., Kansas City, v. Morris, 276 Mo. 158 274 

In re 3rd, 4th and 5th Aves., 49 Wash. 109, 94 Pac. 1078 . . 269, 272 

Ins. Co. V. Charles, 47 Mo. 465 235 

Ins. Co. V. Hill. 193 U. S. 551 328 

Investment Co. v. Curry. 264 Mo. 483 91 

Isler V. Dewing, 71 N. C. 14 19 



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279 Mo.] CASES CITED. xv 

J 

Jackson v. Pittsburgh Times, 162 Pa. St 406 39S 

Jackson v. Railroad, 157 Mo. 621 108, 109 

JadLSon T. Snow, 201 Mo. 460 341 

JeSera v. Oliver, 6 Mo. 433 669 

Joinings Heights Co. v. St Louis, 257 Mo. 291 416 

Jewett V. Boardman, 181 Mo. 656 120 

Johnson v. Bowlware, 149 Mo. 451 64 

Johnson t. Railroad, 255 Mo, 644 109 

Johnson v. Railroad, 104 Mo. App. 688 868 

Johnson v. Roach, 82 N. Y. S. 203 367 

Joice V. Branson, 73 Mo. 28 221 

Jones T. Plummer, 137 Mo. App. 837 427 

Jones V. Pulitzer Pub. Co., 256 Mo. 67 387, 388 

Jordan v. Johnson, 98 N. E. 143 367 

Jordan v Surghnor, 107 Mo. 524 448 

Julian V. K. C. Star Co., 209 Mo. 36 386, 387, 388 

K 

Kane v. Railroad, 251 Mo. 27 27 

Kansas City v, Woerishoeffer, 249 Mo. 1 268, 271 

Karle ▼. Railroad, 56 Mo. 483 108 

Kayser v. Trustees of Bremen, 16 Mo. 90 437 

Keim V. Ins. Co., 42 Mo. 39 167 

Keim V. Railroad, 90 Mo. 321 108 

Keith V Keith, 97 Mo. 223 123 

Kellogg V. Moore, 271 Mo. 193 290, 303, 304 

Kelly V. Railroad, 95 Mo. 285 108 

Kelsay v. Railroad, 129 Mo. 372 170 

Kelsey v. Hay, 84 Ind. 193 691 

Kemper v. King, 11 Mo. App. 127 417, 418 

KilcuUen v. Ins. Co., 108 Mo. App. 61 65 

King V. Ins. Co., 195 Mo. 290 • 157 

King V. Railroad, 211 Mo. 6 109 

King V. St Louis, 250 Mo. 501 227 

Klebe v. Dist. Co., 207 Mo. 487 368 

Klocke V. Klocke, 276 Mo. 572 299, 301 

Koenig v. Railroad, 173 Mo. 698 183, 184 

Koemer v. Car Co., 209 Mo. 154 369 

Krathwohl v. Dawson, 140 Ind. 1 291 

Kreibohm v. Yancey, 164 Mo.^67 678 

L 

LAckey v. Lubke, 36 Mo. 122 450 

Ladd V. Portland, 32 Ore. 271, 51 Pac 654 422 

Lamport v. Ins. Co., 197 S. W. 95 167 

Land ft Imp. Co. v. Bpright, 265 Mo. 210 293, 296 

Landers v. Railroad, 134 Mo. App. 89 19 

Laney y. Garbee, 105 Mo. 359, 16 S. W. 831, 24 Am. St Rep. 391,. .60, 68 

Latimer v. Anderson County, 96 S. C. 187 171 

Leach v. Cargill, 60 Mo. 316 271 

Leachman y. Cohen, 91 S. W. 809 223, 224 

Lenox y. Harrison, 88 Mo. 491 69 

Levee Dist y. Securities Co., 268 Mo. 663, 187 S. W. 866 68 

Lewis V. Barnes, 272 Mo. 377 292, 294, 296 

Lieber y. Lieber, 239 Mo. 13 86 

Liebing v. Ins. Co.. 269 Mo. 609 247 

Ldncola y. Street Commrs., 176 Mass. 210 273 



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xvi CASES CITED. [279 Mo. 

LindeU Real Est Co. v. Lindell, 142 Mo. 76 300 

Lingo V. Burford. 112 Mo. 149 287 

Linlnger v. Railroad, 18 Cal. App. 411 171 

Littlefleld v. Oilman, 207 Mass. 639 171 

Loehring v. Const Co., 118 Mo. App. 16a 866 

Loewenthal y. McElroy, 181 Mo. App. 405 561 

Lohmeyer y. Cordage Co., 214 Mo. 687 499 

Long y. Needham, 37 Mont 408 367 

Longan y. Weltmer, 180 Mo. 328 692 

Lore y. Mfg. Co., 160 Mo. 621 498 

Loyitt y. Russell, 138 Mo. 482 237 

Lowell y. Daniels, 2 Gray (Mass.), 161 292 

Lumber Co. y. Small, 84 S. C. 434 367 

Lusk • . Town of Dora, 224 Fed. 660 106, 106 

Lyke y. Am. Nat Ins. Co., 187 S. W. 266 56 

Lynch y. Railroad, 208 Mo. 34 112 

Mc 

McBeth y. Trabue, 69 Mo. 642 292 

McCarty y. St Louis Trans. Co., 192 Mo. 403 227 

McCbesney y. Chicago, 152 111. 543, 38 N. B. 767 418 

McClanahan y. Railroad, 147 Mo. App. 386 665 

McClung y. Star-Chronicle Co., 274 Mo. 194 399, 400, 403' 

McCormack y. Patchin, 53 Mo. 33 414 

McCormick y. Fitzmorris, 30 Mo. 32 448 

McCracken y. Smathers, 122 N. C. 799 691 

McPadden y. Lott. 161 Mo. App. 652 171 

McFarland y. McFarland, 278 Mo. 1 91 

McFem y. Gardner, 121 Mo. App. 6 27 

McOhee y. Wal^h. 249 Mo. 266 416,417 

McGowen y. West, 7 Mo. 569 659 

McGrath y. Transit Co.. 197 Mo. 97 497 

McGrew y. Railroad, 230 Mo. 496. 177 Mo. 533 491. 492 

McLeod y. Morrison, 66 Wash. .683 357 

McM«han y. Hubbard. 217 Mo. 637 64 

McMurry y. Prairie Oil ft Gas Co.. 159 Mo. App. 623 602 

McNair y. Hunt, 5 Mo. ?09 452 

McNulty y. Collins, 7 Mo. 69 612 

M 

Macon y. Comm., 266 Mo. 490 489 

Madison County Bank y. Suman. 79 Mo. 630 66 

Maginnls v. Railroad, 268 Mo. 667, 187 S, W. 1166 112 

Maher y. People, 10 Mich. 212 221 

Mallcy y. Foley. 133 N .W. 778 357 

Mansur y. Linney. 162 Mo. App. 260 246 

Mfg. Co. y. Ins. Co.. 167 Mo. App. 566 187 

Markey y. Railroad. 185 Mo. 348 105 

Marriott y. Williams. 152 Calit 705 223 

Marsh y. Supenrisors. 42 Wis. 514 435 

Masonic Aid Assn. y. Waddill, 138 Mo. 628 330 

Masonry Contr. Co. y. Reilly, 210 Fed. 437 367 

Mathias y. O'Neill, 94 Mo. 528 69 

Mayo y. Emery, 103 Ky. 637 572 

Mays y. Pelly, 126 S. W. 713 292 

Meier y. Thieman, 90 Mo. 442 87 

Melody y. Railroad, 26 S. D. 606 492 

Merz y. Railroad. 88 Mo. 675 108 

Messimer y. McCray, 113 Mo. 382 87 

Meyers y. Tri-State Co., 121 Minn. 68 171 



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279 Mo.] CASES CITED. xvii 

MiUer v. Assur. Co.. 288 Mo. 98 138 

Miner V. Hobdy, 159 S. W. 96 550 

MiUer T. Railroad. 5 Mo. App. 471 18, 19 

Milner v. Shipley, 94 Mo. 109, 7 S. W. 175 68 

Miners Bank v. Clark. 252 Mo. 20 421 

Moberly v. Hogan. 131 Mo. 19 416 

Monroe t. Crawford, 163 Mo. 178 523 

Montgomery Co. ▼. Auchley, 92 Mo. 129 612 

Moorshead v. United Rys. Co.. 203 Mo. 121 105 

Morgan v. Durfee, 69 Mo. 480 226 

Morrison v. Wilson, 13 Cal. 495 292 

Morrow v. Kansas City, 186 Mo. 675 428 

Morrow v. Lancashire Ins. Co., 29 Ont 377 157 

Most V. Constr. Co., 203 S. W. 477 369 

Mowry v. Bishop. 5 Paige's Ch. 103 679 

Moyer v. Railroad, 198 S. W. 839 602 

Mulderlg v. Wilkes Barre Times, 215 Pa. St. 470 398 

Mullery t. Tel. Co., 191 Mo. App. 118 602 

Mnrdock v. Memphis, 20 Wall. 590 327 

Mnrphy v. Llndell Ry. Co.. 153 Mo. 252 105, 106, 108 

Mnrphy t. People, 120 111. 234, 11 N. B. 202 419 

Myers v. Independence, 189 S. W. 823 12, 28 

N 

Neal T. Pinley, 136 Ky. 346 357 

Nelson v. Harrington, 72 Wis. 597 691 

Nesbit V. Garner, 75 Iowa, 314 171 

Newbrongh v. Moore, 202 S. W. 551 290 

Newlin v. RaOroad, 222 Mo. 375 602 

Newton v. Wilson, 31 Ark. 484 678 

Nicholas V. Kelley, 159 Mo. App. 24 479 

Nichols T. Boswell, 103 Mo. 160 .64 

Nickerson y. Leader Merc. Co., 90 Mo. App. 338 89 

Niqnette v. Green, 81 Kan. 569 357 

Norton v. Reed, 253 Mo. 251, 161 S. W. 842 68 

NoTinger Bank v. St Louis Union Trust Co., 189 S. W. 826 427 

O 

Ormond v. Ins. Co-., 96 N. C. 158 55 

Orrlck School Dist. v. Dorton, 125 Mo. 443 438 

Ottomeyer v. Prltchett, 178 Mo. 160 639 

Ottumwa Const. Co. v. Alnley, 109 Iowa, 386, 80 N. W. 511 419 

P 

Pabst Brew. Co. v. Milwaukee, 126 Wis. 110 353 

Paine v. Tllden, 20 Vt 554, 31 N. C. 14. 12 N. Y. 236, 34 

Barb. 256 18, 19 

Palm V. Pancher, 93 Miss. 785, 33 L. R. A. (N. S.) 295 679 

Palm V. Railroad, 17 N. Y. S. 471 -491 

Parker v. Railroad, 109 Mo. 362 369 

Parkham v. PuUiam, 45 Tenn. 497 673 

Partridge v. Cavender, 96 Mo. 452 118 

Payne v. Railroad, 39 Iowa, 523 171 

Pelky V. Palmer, 109 Mich. 561 691 

Pennsylranla Co. v. Sheeley, 221 Fed. 901 183 

People T. Potts. 264 111. 522 553 

People V. Railroad, 42 Fed. 638 462 

People T. Rose, 174 111. 310 553 

Perkins ▼. Blod, 36 Vt 273 290 



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xviii CASES CITED. , [279 Mo. 

Peterson v. Railroad, 265 Mo. 462 165, 166 

Philadelphia v. Riddle, 25 Pa. St. 259 290 

Phillips V. Piney Coal Co., 53 W. Va. 543 291 

Pike V. Honsinger, 155 N. Y. 201 691 

Pirn V. St. Louis, 122 Mo. 665 296 

Pippin V. Plummer Const. Co., 172 S. W. 1191 28 

Planters Ins. Co. v. Southern S. F. Co., 56 S. W. 443 157 

Plattsburg v. Hagenbush, 98 Mo. App. 669 105, 107 

Pocoke V. Peterson, 256 Mo. 518 120 

Polskl V. St. Louis, 264 Mo. 462 2^8 

Porter v. Raifroad, 45 Fla. 692 171 

Prentis v. Railroad, 211 U. S. 210 489 

Prentiss v. Shaw. 96 Am. Dec. 475 223 

Presnell v. Headley, 141 Mo. 191 64 

Press V. Penny & Gentles, 242 Mo. 98 280 

Prewitt V. Railroad, 134 Mo. 619 108 

Pritchard v. Hewitt, 91 Mo. 547 227 

Prussak v. Hutton. 51 N. Y. S. 761 640, 641 

Pub. Co. V. Warehouse Co., 123 Mo. App. 18 604 

Putnam v. Railroad, 182 Mass. 351 279 

Q 

Queen v. Tutchin, 14 How. St Tr. 1095 398 

R 

Ralfelsen v. Young, 183 Mo. App. 511 - 228 

Railroad v. Allen, 13 Colo. 229 291 

Railroad v. Crudup, 63 Miss. 291 566, 567 

Railroad v. Dustln, 142 U. S. 492 461 

Railroad v. Ellis, 165 U. S. 150 389 

Railroad v. Ferris, 179 U. S. 602 828 

Railroad v. Garrett, 231 U. S. 298 489 

Railroad v. Hall, 91 U. S. 343 461 

Railroad v. Magulre, 49 Mo. 483 235 

Railroad v. Maryland, 10 How. 394 423 

Railroad v. Michigan R. R. Comm., 160 Mich. 355 489 

Railroad v. Mottley, 219 U. S. 479 492 

Railroad v. Nortonl, 154 Mo. 142 119 

Railroad v. Powers, 191 U. S. 379 426, 629 

Railroad v. Prescott, 240 U. S. 638 492 

Railroad v. Pub. Serv. Comm., 279 Mo. 484 461, 466 

•Railroad v. Talbot, 48 Neb. 628 172 

Railroad v. Texas, 210 U. S. 217 629 

Raines v. Lumber Co., 149 Mo. App. 582 369 

Rannells v. Gerner, 80 Mo. 483 292 

Ranus v. Bank, 279 Mo. 332 670 

Real Estate Co. v. Building Co., 196 Mo. 370 85 

Real Estate Co. v. Spelbrlnk, 211 Mo. 671 353 

Rector of Christ Church v. County of Philadelphia, 24 How. 300.. 423 

Reed v. Peck, Guitar and Watson, 163 Mo. 333 215 

Reed v. Railroad, 72 Iowa, 166 604 

Reeves v. Lutz, 179 Mo. App. 64 691 

Reld, Murdock & Co. v. Mercurlo, 91 Mo. App. 679 64 

Remington v. Fid. Dep. Co., 27 Wash. 429 553 

Reyburn v. Railroad, 187 Mo. 565 Ill, 112, 565 

Reynolds v. Transit Co., 189 Mo. 421 698 

Rhodes-Burford Co. v. Elec. Co., 2 P. S. C. 656 489 

RJchardson v. Ashby, 132 Mo. 245 657 

Richelieu Co. v. Boston Ins. Co., 136 U. S. 408 620 



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279 Mo.] CASES CITED. xix 

Roark v. Trust Co., 130 Mo. App. 401 553 

Robbins v. Boulware, 190 Mo. 48 452 

Robertson v. Railroad, 84 Mo. 119 107, 108, 498 

Robie V. Sedgrwick, 35 Barb. 319 290 

Robinson v. Cons. Gas Co., 28 L. R. A. (N. S.) 586, 194 N. Y. 37.. 367 

Roby T. K. C. Ry. Co., 130 La. 880 171 

Rochester t. Railroad, 182 N. Y. 99, 70 L. R. A. 773 425 

Roger and Gillis v. TroosVs Admr., 51 Mo. 476 20 

RoUer v. McGraw, 63 W. Va. 462 353 

Rosenstein v. Fox, 150 N. Y. 354 678 

Ross V. Grand Pants Co., 170 Mo. App. 291 19 

Rude V. St Louis, 93 Mo. 413 -80 

Rule V. Anderson, 160 Mo. App. 347 653 

Rush T. Railroad, 157 Mo. App. 504 ' 171 

S 

Sackewitz v. Biscuit Co., 78 Mo. App. 151 368 

St Louis V. Koch, 169 Mo. 591 271 

St Louis V. Shields, 62 Mo. 251 458 

St Louis V. Theatre Co., 202 Mo. 699 151 

St Louis V. United Rys., 263 Mo. 455 416 

Samuels v. Shelton, 48 Mo. 449 448 

Santa Clara County v. Railroad. 118 U. S. 309 389 

S^uer ▼. New York City, 206 U. S. 536 327 

Scharff v. McGaugh, 205 Mo. 344 84, 85, 87, 448 

Schlereth v. Railroad, 96 Mo. 512 108 

Schluter v. Bank, 117 N. Y. 125 550 

Schmldinger v. Chicago, 226 U. S. 578 150 

Schron v. Staten Island Ry. Co., 45 N. Y. S. 124 171 

Scott V. Battle, 85 N. C. 184 292 

Seaboard Natl. Bank v. Woesten, 147 Mo. 481 417 

Sears v. St Commrs., 180 Mass. 274 269 

Seitz T. Pellingreen Const Co.. 199 Mo. App. 388 496, 498, 499 

ShalTner v. St Louis, 31 Mo. 264 270 

Shelby v. Burlington, 125 Iowa, 352 419 

Shelton v. Franklin. 224 Mo. 367 448 

Shelton v. Horrell. 232 Mo. 369 118 

Shorman v. Eakin, 47 Ark. 351 492 

Shumate v. Snyder, 140 Mo. 77 296 

Sissel V. Railroad. 214 Mo. 515 166, 167 

Sitton V. Shipp. 65 Mo. 29^ , 87 

Sklnker v. Heman, 148 Mo. 349 415 

Sluder v. Transit Co., 189 Mo. 107 108 

Small V. Howard, 128 Mass. 132 691 

Smith V. Box Co.. 193 Mo. 715 499 

Smith V. Patterson, 95 Mo. 529 296 

Smith V. Smith, 201 Mo. 533 87, 296 

Snider v. Exp. Co., 77 Mo. 527 . . r 654 

Snyder v. Warford & Thomas, 11 Mo. 328 531 

Spaulding v. St Ry. Co., 129 Mo. App. 607 602 

Springfield v. Green, 120 111. 273 269 

Springfield v. Owen, 262 Mo. 104 476 

Springfield to use v. Weaver, 137 Mo. 760 654, 655 

Spurlock V. Doman, 182 Mo. 242 524 

Stafford v. Adams, 113 Mo. 721 366 

Stamper v. Roberts, 90 Mo. 683 438 

Stapleton v. Hummel Mfg. Co., 202 S. W. 370 369 

State V. Bailey, 190 Mo. 280 206, 207 

State V. Bateman. 198 Mo. 223 182 

State V. Boatright 182 Mo. 33 204, 206 



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XX CASES CITED. [279 Mo, 

state V. Bobbitt, 215 Mo. 42 209 

State V. Carragln, 210 Mo. 366 208 

State V. Christian, 253 Mo. 393 208 

State V. Collins, 181 Mo. 260 206 

State V. Crab, 121 Mo. 554 209 

State V. Daubert, 42 Mo. 242 204, 206, 208 

State V. Dawson, 124 Mo. 422 209 

State V. Donnelly, 130 Mo. 642 209 

State V. Fogg, 206 Mo. 716 20 

State V. Forsha, 190 Mo. 326 182 

State V. Goetz, 34 Mo. 85 204 

State V. Green, 66 Mo. 644 208 

State V. Gnigln, 147 Mo. 51 221, 224 

State V. Harkins, 100 Mo. 672 209 

State V. Harrold, 38 Mo. 496 204 

State V. Hyde, 284 Mo. 226, 136 S. W. 316, Ann. Cas. 1912D, 191. .. . 207 

State V. Jackson, 106 Mo. 179 209 

State V. Kosky, 191 Mo. 9 209 

State V. Lewis, 273 Mo. 530, 201 S. W. 80 206 

State V. Loomls, 115 Mo. 307, 21 L. R. A. 789 389, 390 

State V. Marcks, 140 Mo. 668 182 

State V. May, 172 Mo. 639 226 

State V. Mayor of Newark, 37 N. J. L. 415 425 

State V. Miller, 67 Mo. 604 208 

State V. Moberly, 121 Mo. 609 89 

State ' V. Myers, 82 Mo. 558 206 

State T. Othtck, 184 S. W. 108 206 

State V. Pace. 269 Mo. 686 208 

State V. Patterson, 271 Mo. 109 206 

State V. Pieski, 248 Mo. 715 571, 572, 573 

State V. Railroad, 238 Mo. 23, 178 S. W. 1179. 244 U. S. 191 491 

State V. Row, 12 Vt. 93 19 

State V. Scott, 214 Mo. 261 223 

State V. Spaugh, 200 Mo. 594 206 

State V. Spray, 174 Mo. 569 204, 206 

State V. Sutton, 64 Mo. 108 20S 

State V. Thomas, 78 Mo. 327 21 

State V. Vest, 254 Mo. 465 225 

State V. Wieners, 66 Mo. 27 221 

State V. Wilkins, 221 Mo. 444 ' 209 

State V. Williams, 77 Mo. 463 551 

State V. Woolard, 111 Mo. 248 209 

State ex inf. y. Gas Co., 254 Mo. 534 464 

State ex Inf. v. Merchants' Exchange, 269 Mo. 346 148, 151 

State ex inf. v. Standard Oil Co.. 218 Mo. 390 138 

State ex rel. v. Baker, 170 Mo. 390 314, 315 

State ex rel. v. Bank, 234 Mo. 197 235 

State ex rel. v. Blair, 245 Mo. 687 438 

State ex rel. v. Birch, 186 Mo. 219 438 

State ex rel. y. Board of Equal., 256 Mo. 461 236 

State ex rel. v. Board of Equal., 103 Mo. 235 315 

State ex rel. v. Drainage Dist., 269 Mo. 459 35, 39 

State ex rel. v. Eicher 178 S- W. 174 437 

State ex rel. v. Fort. 210 Mo. 526 394 

State ex rel. t. Gambs, 68 Mo. 289 548 

State ex rel. v. Harty. 278 Mo. 685 489 

State ex rel. v. Harty, 208 S. W. 835 427 

State ex rel. v. Hemenway, 272 Mo. 199 106 

State ex rel. v. Lumber Co., 198 Mo. 430 235 

State ex rel. t. Met. St Ry. Co., 161 Mo. 188 625 



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279 Mo.] CASES CITED. xxi 

state ex rel. v. Ogden, 172 S. W. 1172 558 

State ex reL v. PhUips, 97 Mo. 339 137 

State ex rel. y. PhlUips. 137 Mo. 265 ' 439 

State ex rel. y. Postal Tel. Co., 96 Kan. 298 464, 466 

State ex reL y. Pub. Sery. Comm., 259 Mo. 278 489 

State ex rel. y. Railroad 113 Mo. 297 625 

State ex rel. y. Railroad, 140 Mo. 549 627 

State ex rel. y. Railroad, 196 Mo. 523 626 

State ex rel. y. Railroad, 279 Mo. 455 488 

State ex rel. y. Reynolds, 278 Mo. 554 496 

State ex rel. v. Robertson, 191 S. W. 989 54 

State ex rel. y. Schooley, 84 Mo. 452 438 

State ex rel. y. Sheetz, 279 Mo. 429 482 

State ex rel y. Taylor, 224 Mo. 415 435 

State ex reL y. Timbrook, 240 Mo. 236 315 

State ex rel. t. Trust Co., 261 Mo. 456 815 

State ex reL t. Vaile, 122 Mo. 33 235, 236 238 

State ex rel. y. Weatherby, 45 Mo. 20 628 

State ex rel. y. W. U. Tel. Co., 165 Mo. 517 284, 235 

State ex rel. y. Wietbaupt, 254 Mo. 319 435 

State ex rel. y. Wiggins Ferry Co., 208 Mo. 622 627, 62S 

State ex reL y. Williams, 136 Mo. App. 330 89 

State ex rel. y. Wilson, 216 Mo. 287 438 

Steyens y. Hampton, 46 Mo. 408 453, 454 

Bteyens y. Ligbt *^ P. Co., 208 S. W. 630 567 

Steyens y. Larwill, 110 Mo. App. 140 124 

Stewart y. Ferguson, 164 N. Y. 553 .' 367 

Stewart y. Jones, 219 Mo. 614 124 

Stewart y. Stringer, 41 Mo. 404 65 

Stotier y. Railroad, 200 Mo. 120 109 

Strack y. Tel. Co., 216 Mo. 614 603 

Street Ry. Co. y. Snell. 193 U. S. 30 391, 393 

Strode y. Transit Co., 197 Mo. 623 354 

T 

TarMo y. Clark. 186 Mo. 285 267 

Tarkio Drain. Dist. y. Richardson, 237 Mo. 75 488 

Taxi Co. y. Dist of Columbia. 241 U. S. 252 490 

Taylor y. George, 176 Mo. App. 215 85 

Tayon y. Ladew, 33 Mo. 207 290 

Teats y. Flanders, 118 Mo. 660 87 

Tebean y. Ridge, 261 Mo. 647 867 

Terwilliger y. Railroad, 209 N. Y. 522 171 

Thompson y. PinneH, 199 S. W. 1013 67 

Thompson y. Railroad, 165 Cal. 748 171 

Thomson y. Thomson, 115 Mo. 67 64 

Thrall y. Knapp, 17 Iowa, 468 222 

Throckmorton v. Pence, 121 Mo. 50 300 

Tilden y. Mayor, 56 Barb. (N. Y.) 361 422 

TlUes y. Pnlitaer Pub. Co.. 241 Mo. 609 387 

Tonseth y. Portland Co., 141 Pac. 868 171 

Toosley y. Railroad, 166 Cal. 457 171 

Transfer Co. y. Railroad, 195 S. W. 568 477 

Trust Co. y; Tod. 67 N. Y. S. 362 553, 556 

Turner y. Maryland, 107 U. S. 38 150 

Tomplke Co. y. Sandford, 164 U. S. 692 387 

U 

Union Cemetery Assn. y. Kansas City, 252 Mo. 500 151 

Union Depot Co. y. Frederick, 117 Mo. 138 287 



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xxii CASES CITED. [2f79 Mo. 

Union School Twp. y. Bank, 102 Ind. 464 660 

United Rys. Co. v. Grain, 123 Md. 332 171 

United States v. Smith', 173 Fed. 227 402 

V 

Vahldlck v. Vahldick, 264 Mo. 632 168 

Vanata v. Johnson, 17o Mo. 269 296 

Vanhooser v. Berghoff, 90 Mo. 487 690 

Van Horn v. Transit Co., 198 Mo. 481 602 

Vantlne v. Butler, 250 Mo. 451 124 

Vawter v. Hultz. 112 Mo. 639 20 

W 

Wachsmlth v. Railroad, 233 Pa. 466 171 

Waldron v. Harvey, 54 W. Va. 608 291 

Walker v. Ins. Co., 62 Mo. App. 220 18 

Walker v. Railroad, 178 S. W. 109 13, 28 

Wallingford v. Plre Ins. Co., 30 Mo. 46 56 

Walsh V. Pulitzer Pub. Co.. 250 Mo. 142 399 

Ward V. Bell & Egolf, 157 Mo. App. 527 89 

Ward Y. Bd. of Equalization, 135 Mo. 309 236 

Ward V. White, 86 Va. 212. 19 Am. St. Rep. 883 223 

Warner v. Railroad, 178 Mo. 133 27 

Warren v. Castello, 109 Mo. 338 363 

Waters-Pierce Oil Co. v. Texas, 212 U. S. 86 (No. 1) 827, 828 

Waters-Pierce Oil Co. v. Texas. 212 U. S. 112 (No. 2) 327, 328 

Webb V. Baldwin, 165 Mo. App. 251 30 

Welermueller v. Scullln. 203 Mo. 471 87 

Well V. Greene Co., 69 Mo. 281 613 

Wells V. St Commrs., 187 Mass. 451, 73 N. B. 554 268 

Wesson v. Horner, 25 Mo. 82 612 

West V. Martin, 31 Mo. 375 692, 693 

Western Storage Co. v. Glasner, 169 Mo. 46 678, 679 

Westland ▼. Gold Coin Mines Co., 101 Fed. 59 367 

Wheeler y. Bowles, 163 Mo. 406 692, 693, 694 

Wheeler v. Poplar Bluff, 149 Mo. 36 215 

Whitaker v. Whltaker, 176 Mo. 10 64 

White V. Montgomery Ward & Co., 191 Mo. App. 272 369 

White T. Railroad, 44 Mo. App. 540 105, 108 

Whltesell v. Hill, 101 Iowa, 629 691 

Whltworth V. Davey, 185 S. W. 241 676, 677 

Wilcox V. Phillips, 260 Mo. 676 328 

Williams V. Beatty, 139 Mo. /pp. 174 139 

Williams V. Grudler, 264 Mo. 216, 174 S. W. 387 68 

Williams T. Williams, 259 Mo. 250 476 

Wilson V. Puget Sound Co., 62 Wash. 528 171 

Wlnslow V. Dundom, 125 Pac. 137 357 

Winston's Exr. v. Francisco, 2 Wash. 189 613 

Wojtylak v. Coal Co., 188 Mo. 260 183 

Wolf V. Smith, 6 Ore. 73 672 

Wolfe V. Dyer, 95 Mo. 551 61 

Wolfe V. Railroad, 97 Mo. 473 603, 605 

Woodhouse v. Powles, 8 L. R. A. (N. S.) 787 227 

Wright V. Green, 239 Mo. 449 187 

Wurdermann v. Barnes, 92 Wis. 208 691 



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279 M:o-] cases cited. xxiii 

Y 

YaU V. Snow, 201 Mo. 511 841, 843 

TameU v. Railroad, 113 Mo. 679 28, 69 

Yost ▼. Cement Ck>., 191 Mo. App. 422 602 

Youn^ ▼. Hartford Ins. Co., 277 Mo. 694 800, 831 

Z 

Zeis ▼• Brew. Assn., 20^ Mo. 653 28 

Sisiiiaiilt ▼• K. O. ft I. Air Ldne, 71 Mo. App. 670 105, 106 



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CASES DETERMINED 

BT THB 



SUPREME COURT 



OF THB 

STATE OF MISSOURI 



APRIL TERM, 1919. 



{Continued from Vol. 278.) 



JOHN P. ORRIS, Appellant, v. CHICAGO, ROCK IS- 
LAND & PACIFIC RAILWAY COMPANY. 

In Banc, June 25, 1919. 

1. TSUBTBJJOTIOJX: Not to Consider OliAracter of Injory: Mldeadlng. 
In a case in which the character of the injury is a material link 
in the chain of circumstances tending to show negligence, an in- 
struction which declares "the court instructs you that the mere 
fact that plaintiff was injured while employed hy defendant is of 
itself no evidence whatever of defendant's negligence or liahility, 
and there can be no recovery by the plaintiff unless the plaintiff 
lias by a preponderance of the creditable evidence in the case 
established negligence on the part of the defendant, as described 
in other instructions herein,'' is misleading and harmful, in that 
it authorizes the jury to disregard the character of plaintiff's 
injury, and to conclude that "the creditable evidence" means evi« 
dence other than evidence as to the injury and character of t£e 
injury. 

JSeld, by BOND, C. J., dissenting, that injury does not of itself 
warrant an inference of negligence in cases in which the 
doctrine of res ipsa loquitur has no application. 

1 

1—279 Ho. 



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2 SUPREME COURT OF MISSOURI. 

Orris V. Rock Island Ry. Co. 

2. -^^ — : lamiting Evidence to Olrconurtantial Evidence. Where all 
the evidence pertaining to the particular issue submitted hy the 
instruction is circumstantial, a statement therein that plaintiff 
06«k9 to prove such issue by circumstantial evidence is not error; 
font If there is positive and direct evidence on that particular is- 
me an Instruction restricting the proof to circumstantial evidence 
^ould be misleading. 

3. — — : Assumption of Fact. An instruction should not assume the 
existence of a disputed fact. Even when there is ample evidence 
from which the jury n^ay fnd that the tool furnished the em- 
ployee was in usual and ordinary repair, that fact does not justify 
an assumption in the instruction that the tool was in usual and 
ordinary repair. 

4. : Oonfllcting: Omitting Element of Negligence: Safe Condi- 
tion. An instruction which directs a verdict for defendant if the 
spark-arrester of the engine on which plaintiff was fireman was 
in good condition, conflicts with one given for plaintiff which re- 
quires the flues also to be in good condition, the petition having 
charged that the injury to his eye by a burning cinder was due 
to a combination of defects in the flues and the spark-arrester. 
There being positive evidence that the flues were stopped up, and 
that their defective condition might have caused the injury even 
if the spark-arrester was in good condition, an instruction which 
omits all reference to the flues and directs a verdict for de- 
fendant if the spark-arrester was in good condition is error. 

6. EVIDEKOE: Proof of Reputation for Truth: No Attack: Contra- 
dictory Statements. Where there is no direct impeachment of a 
witness, that is, where no attempt is made to show that his repu- 
tation for truth and veracity is bad, evidence showing that his 
reputation is good is not admissible. Although he has made con- 
tradictory statements, either out of court, or in a former deposition, 
or upon a severe cross-examination at the trial, those things go to 
his credibility and not to his general reputation, and evidence to 
show his reputation for truth and veracity to be good is not ad- 
missible. [Disapproving a contrary rule announced in Miller v. 
Railroad, 6 Mo. App. 1. c. 481; Walker v. Insurance Co., 62 Mo. 
App. 1. c. 220, and other cases decided by the Courts of Appeals.] 

Appeal from Grundy Circuit Court — Eon. George W. 
Wanamaker, Judge. 

EeVEKSBD and REMANDiED. 

Piatt Hubbell and Geo. H. Hubbell for appellant. 

(1) The defendant's instruction numbered 1 is 
erroneous in that said instruction tells the jury that the 



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Vol. 279 APRIL TERM, 1919. 3 

Orris V. Rock Island Ry. Co. 

injury to plaintiff *s eye is no evidence whatever of 
negligence. The nature and character of the injury, 
the manner in which the injury was received and the 
facts surrounding the injury are evidence for plaintiff 
tending to show negligence on the part of the defendant, 
and the court erred in withdrawing this evidence from 
the consideration of the jury by this instruction. Walker 
V. Railroad Co., 178 S. W. 110; 2 Thomp. Neg. see. 
2293; Texarkana Ry. Co. v. O'Kelleher, 21 Tex. Civ. 
App. 96; Myers v. City of Independence, 189 S. W. 
823; Railway Co. v. Howard, 124 Ark. 588; Fiannery 
V. Railway Co., 44 Mo. App. 400; Melican v. Electric 
Co., 90 Mo. App. 599, 602; Peeler v. McMillan, 91 Mo. 
App. 316. (2) Defendant's instruction numbered 2 is 
erroneous in that said instruction places the test of 
negligence as **when in usual and ordinary repair . . • 
under such circumstances" regardless of whether due 
care was exercised in keeping the netting in proper re- 
pair, and allowed the defendant to set up its own stand- 
ard of reasonable care; and, said instruction concludes 
with a comment on the effect and weight of the evidence, 
in the nature of an argument on behalf of defendant; 
and, this instruction assumes the exercise of ordinary 
care on the part of the defendant. Railway Co. v. 
ProflStt, 36 Sup. Ct. Rep. 622 ; Frazier v. Smelting & 
Refilling Co., 150 Mo. App. 430; Fiannery v. Railway 
Co., 44 Mo. App. 400. (3) The defendant's instruction 
numbered 3 is erroneous in that said instruction arbi- 
trarily classes all of plaintiff's evidence as circumstan- 
tial evidence and contains the erroneous and misleading 
abstract direction to the jury, to-wit: *'it devolves upon 
the plaintiff to prove to your reasonable satisfaction 
that each one of the circumstances has been established 
by the evidence.'' Bryce v. Railway Co., 129 Iowa, 342; 
38 Cyc; 1739; State ex rel. Fire & Marine Ins. Co. v. 
Ellison, 187 S. W. 23; Railway Co. v. Watson, 190 U. 
S. 287, 47 L. Ed. 1057; Schmidt v. Dubuque County, 
136 Iowa, 403 ; Jackson v. Railroad Co., 31 Iowa, 355 ; 
St Louis Railway Co. v. Brothers, 165 S. W. 488; 3 



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4 SUPREME COUET OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

Ency. Ev. 63, 64, 65; 2 Thomp. Neg. sees. 22«0, 2291, 
2293. There is direct evidence of negligence against 
defendant, in addition to circumstantial evidence. (4) 
The defendant's instruction numbered 4 is erroneous 
in that said instruction assumes that the alleged inspec- 
tion on the part of the defendant was in the exercise 
of reasonable and due care, and said instruction submits 
to the jury the issue of the netting suddenly becoming 
out of repair after the departure of the engine from 
Trenton, and before it reached the point where plain- 
tiff was injured, while there is no evidence upon which 
to base such an instruction and said instruction per- 
mitted the jury to wander into conjecture when such a 
possibility was not even suggested in the course of the 
trial. And, said instruction singles out the defendant's 
evidence of inspection and makes an unwarranted com- 
ment thereon. Holden v. Mo. Pac. Ey. Co., 177 Mo. 469 ; 
McKeon v. Railway Co., 42 Mo. 84; Scholthauer v. 
Railway Co., 89 Mo. App. 72; Meyer v. Railroad, 45 
Mo. 138. (5) The defendant's instruction numbered 

5 is erroneous because it is an argument on the part 
of defendant, and is an abstract proposition tending 
only to mislead and misguide the jury. 3 Elliott on 
Railroads, sec. 1245b; Louisville Ry. Co. v. Sullivan 
Timber Co., 138 Ala. 379; Coleman v. Railway Co., 
36 Mo. App. 491. Plaintiff offered to prove and intro- 
duce evidence showing his good reputation. Defendant 
had offered evidence of alleged contradictory statements 
out of court, which entitle the plaintiff to this evidence. 
.Miller v. Railroad, 5 Mo. App. 481; Walker v. Ins- 
Co., 62 Mo. App. 220; Browning v. Railroad, 118 Mo. 
App. 451; Beri7man v. Cox, 73 Mo. App. 74; Landers 
\. Railroad, 134 Mo. App. 89; Gourley v. Callahan, 176 
S. Yv^. 239, 190 Mo. App. 666; Ross v. Grand Pants Co., 
170 Mo. App. 291; Texas Cent. Ry. Co. v. Weidman, 62 
S. W. 810; 30 Am. & Eng. Ency. Law (2 Ed.), p. 1150; 
AUdre Irocer Co. v. Tagart, 78 Mo. App. 166. 



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VoL 279 APRIL TERM, 1919. 5 

Orris v. Rock Island Ry. Co. 

Paul E. Walker and A. G. Knight for respondent. 

(1) Defendant's instruction No. 1, given by the 
court, was accurate, and enunciates a correct principle 
of law. Blanton v. Dold, 109 Mo. 74; McFern v. 
Gardner, 121 Mo. App. 6; Warner v. Railroad, 178 
Mo. 133; Bums v. Railroad, 176 Mo. App. 338. (2) 
The criticism of defendant's instruction numbered 2 is 
without merit. This instruction simply told the jury 
that plaintiff assumed the risk from cinders getting in 
his eyes, such as usually and ordinarily escaped through 
the mesh of the netting in use on the engine at the time 
of plaintiff's injury, when in usual and ordinary repair. 
The mesh of the netting — three-sixteenths of an inch- 
was admitted on all sides to be standard; the netting 
was admitted to be the standard kind in use by all 
roads; the only question was, whether it was out of 
repair by having had holes larger than three-sixteenths 
of an inch, either burnt or worn in it. Miles v. Coal 
& Coke Co., 172 Mo. App. 239, 240. (3) The objection to 
a portion of defendant's fourth instruction is not well 
taken. The plaintiff's criticism states that this instruc- 
tion permitted the jury to wander into conjecture. The 
only question of ''conjecture" is, whether the netting 
ever became out of repair, and we frankly concede there 
was no proven fact on which to base such a conclusion, 
but the mere "conjecture" or "guess" of the plaintiff 
as to the size of the flying cinder, but this "guess" was 
resolved in his favor by the court, and disbelieved by 
the jury, and he cannot complain. Krampe v. Brewing 
Association, 59 Mo. App. 281; Redmond v. Railroad, 
225 Mo. 739; Howard v. Railroad, 173 Mo. 524; Ben- 
nett V. Lumber Co., 116 Mo. App. 699 ; Kelley v. C. & 
A. Railroad, 105 Mo. App. 365; Hach v. Railroad, 117 
Mo. App. 11. (4) As to what amount of impeachment or 
what amount of cross-examining, or what amount of 
contradicting a witness, will allow of reinstatement of 
such witness by character proof, has been the subject of 
much discord in this State, as a reference to the opin- 



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6 SUPEEME COUBT OF MISSOURI. 

Orris T. Rock Island Ry. Co. 

ions and dissenting opinions will show. But, an ex- 
amination of the cases on this subject in this State will 
show that at least the witness's character must have 
been assailed, by imputing criminal conduct or moral 
turpitude, or impeachment of the witness's general 
character, in order to admit of such sustaining evidence, 
as distinguished from a mere contradiction, or an in- 
timation of the want of credence in his story, or of 
intense interest or zeal, or the lack of recollection, or 
want of candor or frankness, or other of the many in- 
cidents of cross-examination. Fulkerson v. Murdock, 
53 Mo. App. 151, 123 Mo. 292; Gourley v. Callahan, 190 
Mo. App. 670; Boss v. Grand Pants Co., 170 Mo. 
App. 293. 

GRAVES, J.— Whilst in the service of the defend- 
ant as fireman upon an interstate train, the plaintiff 
lost his left eye by reason of a burning or hot cinder 
escaping from defendant's engine. Plaintiff says the 
defendant was negligent in furnishing to him and his 
crew an engine which was out of repair, and that 
his injury was the result of such negligence. 

The action is one under the Federal Act. He states 
the alleged negligence of the defendant thus : 

**Said engine was defective in that some of the 
flues of said engine permitted water to leak onto the 
flue-sheet from the boiler of said engine, and in that 
some of the flues of said engine were stopped up, honey- 
combed with impurities and chemicals from the coal 
and parts of the coal and cinders, and some of said 
flues were stopped and filled with a mixture of cinders 
and coal formation, which prevented said flues from 
performing their proper function and which prevented 
the passage of smoke and flame through them ; and said 
condition of the aforesaid flues was caused by the 
negligence of the defendant; and said condition of said 
flues required the other and remaining flues of said 
engine to do the work of those which were so stopped 
up and filled, and caused said remaining flues, which 



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VoL 279 APRIL TERM, 1919. 7 

Orris y. Rock Island Ry. Co. 

were open, to draw abnormally and unreasonably on the 
fire of said engine, and caused said remaining and open 
flues to pull ignited particles of coal and pieces of 
slack through said open and remaining flues, before 
said ignited pieces of coal and slack had been thorough- 
ly burned and while the same were afire and alive and 
burning and caused said ignited pieces of coal and 
pieces of slack to escape from the smoke-sttujk of said 
engine as live cinders, burning and afire; and said 
engine was defective in its smoke-box netting and 
defective in its diaphragm and its deflector plate and 
defective in its other apparatus and equipment for the 
prevention of the escape of burhing and live cinders 
from its smoke-stack; and said engine was defective in 
its steam valves, and said steam valves on both sides 
permitted steam to escape up the smoke-stack without 
going into the cylinders of said engine, and said es- 
caping steam contributed to the passage of live and 
burning cinders and live and burning pieces of coal 
and slack up and through the smoke-stack of said 
engine; and said engine, by reason of the afore- 
said defects, and by reason of other defects now un- 
known to the plaintiff, threw an unusual, unreasonable 
and extraordinary amount and quantity of burning 
coal, burning and live pieces of slack, and burn- 
ing and hot cinders from its smoke-stack; and in its 
running and progress on the aforesaid date, said 
engine emitted and threw out large quantities and 
amounts of burning and flaming pieces of coal and 
slack; and, said engine then and there was not in a 
reasonably safe condition to be run and operated on 
said trip over the defendant's said track. 

**The aforesaid defective condition and defects of 
said engine were then and there well known to the 
defendant, and the defendant might have known of the 
same by the exercise of reasonable care and diligence. 

**The defendant, by the means and in the manner 
aforesaid, then and there and thereby negligently failed 
to furnish the plaintiff and his crew with a reasonably 



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8 SUPEEME COUET OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

safe locomotive engine; and the defendant then and 
there and thereby negligently required the plaintiff and 
his crew to work with a locomotive engine which was 
not reasonably safe/' 

In its answer the defendant admitted its corporate 
capacity and that it was a common carrier of both 
passengers and freight for hire, its further answer 
was (1) a general denial, (2) assumption of risk, and 
(3) contributory negligence. The reply was in conven- 
tional form. In the trial nisi the defendant had a 
verdict and judgment, from which the plaintiflf has 
appealed. 

As fireman on Engine No. 2028, the plaintiff left 
Trenton, Missouri, for Horton, Kansas, a distance of 
120 miles. There is no question of the interstate charac- 
ter of the train which was pulled by this, engine on 
January 31, 1914, the date of the injury. This train 
left Trenton early in the morning and reached Horton 
about five or six o'clock in the afternoon. At James- 
port Hill (something near ten miles from Trenton) 
plaintiff, in the performance of his duties, leaned out 
of the cab window to look for a semaphore, which would 
indicate ''a block" of the road, by some other train, 
which train was then expected. Whilst so doing he 
was struck in the left eye by a hot cinder from the 
smock-stack of the engine, and from the injury received 
to this eye, it had to be removed in a very short time 
thereafter, and plaintiff thereby rendered unfit for 
further railroad service. Plaintiff says that he saw 
the cinder just as it struck him, and saw a portion of it 
as it fell off, and glanced toward the ground. He says 
that he knows that it was larger than a pea, and in 
more than one place says that in his judgment it was 
more than a quarter of an inch through — from a quarter 
of an inch to three-quarters of an inch, is his positive 
evidence in more than one place in the record. 

Engine No. 2028 was called an engine of the 2000- 
class. At the rear was a fire-box, where the firing was 
done, and in which would be gas, flame, smoke, cinders, 



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Vol. 279 APRIL TERM, 1919. 9 

Orris v. Rock Island Ry. Co. 

coal and fire. From a flue sheet in this fire-box in the 
rear ran 340 flues, 2 inches in diameter, 6 inches in 
circumference, and 15 feet long, to a flue sheet in the 
"smoke box" in the front of the engine. The exhaust 
of steam by the engine creates a vacuum in this 
"smoke box,'* and the suction draws the gas, smoke, 
and cinders through these flues from the fire box to the 
smoke box. The cinders (coming through these flues 
and as they reach the smoke Ibox) strike a deflective 
plate and by suction are drawn toward the front of 
the smoke box up through a netting or spark arrester, 
and are then expelled through the smoke-stack. This 
wire netting is of a three-sixteenth inch mesh, but it is 
so arranged that the cinders do not strike it at right 
angles. It is slanted so that the cinders strike it at a 
different angle, and the experts in the case • say that 
owing to the slant of this wire netting (if the netting 
is sound and not burned out or broken) the cinder which 
passes through would have to be less than three-six- 
teenths of an inch in diameter. These experts say 
that with a sound netting or spark arrester the cinders 
passing through would be of the size of a pin head to a 
grain of wheat. 

Plaintiff testified that about one-fourth of the 340 
flues in this engine were clogged up and not working, 
and he and other experts say that the effect of this 
would be to have the other flues draw harder, and there- 
by draw larger burning cinders from the fire box to the 
smoke box, which larger and hotter cinders might 
accumulate on this' cinder screen or spark arrester and 
bum it out. 

They say that the remaining flues have to draw 
harder, because the vacuum which is to be filled, is the 
same, and the flues to fill it are less in number. The 
evidence of the experienced men fix the size of the 
largest cinder which can pass through a perfect or sound 
spark arrester at the size of a grain of wheat. Plain- 
tiff himself was a man of long experience with au 



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10 SUPREME COUET OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

engine, but this evidence comes from others of equal 
experience, and disinterested in the case. 

Plaintiff testifies to the size of the cinder which 
struck him, and says that a cinder of that size could 
not have passed through the mesh of an arrester as 
used upon that class of engine, if the arrester had been 
in good condition. Defendant's evidence tended to 
prove that the engine had been inspected both before 
and after the trip made by plaintiff (upon which trip 
he was injured) and that the flues and spark arrester 
were in good condition. Further details will be left 
for the opinion. The assigned errors here go to the 
giving of sundry instructions for the defendant, and 
the exclusion of certain evidence offered by the plain- 
tiff. 

I. The plaintiff says that there was error commit- 
ted by the court in giving for defendant its instruction 
numbered 1, which reads: 

**The court instructs you that the mere fact that 
plaintiff was injured while employed by defendant, and 
the fact that he has sued to recover damages therefor, 
are of themselves no evidence whatever of the defend- 
ant's negligence or liability in this case, and there can 
be no recovery by the plaintiff in this case, unless the 
plaintiff has, by a preponderance of the credible evi- 
dence in the case, established negligence on the part of 
the defendant, as described in other instructions here- 
in.'' 

We think this instruction misleading and harmful 
in this case. Let us shorten the instructions so that 
its view may more fully appear. Thus shortened it 
reads: ^*The court instructs you that the mere fact 
that plaintiff was injured while employed by defendant 
. . . is of itself no evidence whatever of the defend- 
ant's negligence or liability in this case, and there 
can be no recovery by the plaintiff in this case, unless 
the plaintiff has by a preponderance of the creditable 
evidence in the case established negligence on the part 
of defendant, as described in other instructions herein." 



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Vol. 279 APRIL TEEM, 1919. 11 



Onis y. Rock Island Ry. Ck>. 



From this instruction the jury could well draw 
the conclusion that they should not consider the injury 
to plaintiff in determining the matter of defendant's 
negligence. They could well draw the conclusion that 
they should not consider the character of injury to 
plaintiff in determining the matter of defendant's 
negligence. They could well conclude that *'the credible 
evidence '^ used in the latter part of the instruction 
meant evidence other than evidence as to the injury and 
the character of the injury. In this particular case the 
character of the injury is a material link in the chain 
of circumstances tending to show negligence. To make 
the matter clearer some additional facts in evidence 
should be stated. There is evidence tending to show 
that when the netting is in proper shape only small 
cinders escape through the smoke-stack, and that 
after night they would look to be alive and *'just a 
minute and they were ouit: they were fine cinders.'' 
The evidence also shows that with some flues not work- 
ing the suction through the others is greater, and this 
tends to throw the cinders out of the smoke-stack with 
more force and velocity. In addition the plaintiff says 
this particular cinder burned his eye, indicating heat 
and size. 

So taking all the facts, the very character of the 
iujury would be a link in the chain of circumstances 
tending to prove a defective spark arrester, or negli- 
gence. The eye being burned indicates heat in the 
cinder, as well as size. The small cinders lose their 
heat more rapidly upon exposure to the air. The 
large cinder carries its heat or burning power longer 
and further. So the character of the injury in a 
case like this, tends to show a larger cinder, and 
a larger cinder tends to show a defective spark arrester. 
In cases like this the jury should consider the injury 
and its character in an effort to determine negligence. 
This instruction in our judgment is misleading upon 
this matter. 



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12 SUPREME COURT OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

It is true that the mere fact of injury, standing 
alone, is no proof of negligence. In Blanton v. Dold, 109 
Mo. 1. c. 74, this court said: '*The mere fact of an in- 
jury to plaintiff does not necessarily create a liability 
or war:rant an inference of defendants' negligence. 
The burden of proof was on plaintiff to establish, direct- 
ly or by just inference, some want of care to which his 
injury might fairly and reasonably be traced.'* 

There is a line of cases to like effect. But these 
cases do not conflict with the views we have expressed 
in this case. These cases do not say that the character 
of the injury inflicted may not be a circumstance tend- 
ing to show negligence, or a fact from which when 
coupled with other facts, negligence may not be inferred. 

Instruction No. 1 says that the mere fact that plain- 
tiff was injured is no evidence wh'atever of defendants' 
negligence. This naturally led the jury to believe that 
they should not consider the injury in determining negli- 
gence in this case. We think the instruction wrong and so 
rule. The instruction, under the peculiar facts in this 
case, is but little better than the instruction so forcibly 
condemned by Brown, C, in Myers v. City of Indepen- 
dence, 189 S. W. 1. c. 823. After setting out the instruc- 
tion, our learned Commissioner commented thus : **The 
instruction illustrates that masterly use of language 
by which even experts are puzzled and juries wait with 
patience for such explanation as their author can give 
of the meaning of the terms he has used. It tells them 
that unless he has proven his case by the greater weight 
of the testimony they must disregard the fact that he 
received injuries. In a case in which, according to all 
authority, the fact that he received injuries cuts so 
large an evidential figure, it is important that the jury 
shguld be plainly instructed whether he must prove his 
case by the greater weight of evidence before the jury 
could take into consideration the fact that he was 
injured, or whether the fact that he was injured by the 
turning of the current of electricity through his body 
might be taken into consideration in proving *his case' 



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VoL 279 APEIL TERM, 1919. 13 

Orris V. Rock Island Ry. Co. 

is not explained. A careful reading of this instruction 
impresses us that the words we have italicized have no 
logical or grammatical office in it, other than that w hich 
lies in the Websterian definition of the word * injury' as 
'an act which damages, harms, or hurts,' or its legal 
definition, *an actionable wrong.' In a case of this 
character where so much depends upon the deduction of 
fact to be drawn from the occurrence of the injury the 
vice of such an instruction is especially manifest. " 

So w6 say of this instruction. It is misleading to 
the utmost. From it the jury could readily conclude 
that in determining negligence or liability, they should 
entirely exclude the injury and its peculiar character. 

In Walker v. Railroad, 178 S. W. 1. c. 109, we had 
before us this instruction: **The mere fact, if it be a 
fact, that plaintiff was injured, does not entitle her to 
recover in this case, and you should not allow such 
fact to influence you in arriving at your verdict." In 
that case, like this, the jury had found for the de- 
fendant. The foregoing instruction had been given for 
the defendant. Of this instruction, at p. 110, we said: 
**The court instructs the jury at the instance of defend- 
ant that they should not allow the fact that the plaintiff 
was injured to influence them in arriving at their ver- 
dict. While we understand that the fact of injury is 
not alone sufficient to authorize a recovery on the 
ground of negligence, we do not understand how it is 
possible for the jury to remain uninfluenced by the 
existence of a fact, the existence or non-existence of 
which is the ultimate subject of their injury. The fact 
that plaintiff was permitted to fall to the ground is 
the negligence charged. Negligence is predicated upon 
the fact, which the jury must find, that the fall is liable 
to injure her, and they must also find that the injury 
w^as the immediate result of letting her fall. There is 
a refinement somewhere in this instruction which we 
are unable to grasp, and we think that is sufficient 
reason for withholding the task from the jury.'* 



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14 SUPEEME COXJET OF MISSOURI. 

Orris y. Rock Island Ry. Co. 

So we say in this case. The task of grasping de- 
fendant's Instruction No. 1 should have been withheld 
from the jury. 

II. Complaint is also lodged against Instruction 
No. 3 given for defendant. This instruction, as far as 
pertinent, reads: 

**You are instructed that there is no evidence in 
this case that the netting in use on engine 2028 on the 
occasion of plaintiff's injury was not a proper kind of 
netting and of sufficient structure and 
^^^JIJ^^^*^^ standard-make and the kind in general use 
on the roads of this country. The only 
claim of negligence in respect thereto by plaintiff 
being that such netting had in some way become so out 
of repair that at the very time and place of plaintiff's 
alleged injury, it would permit the escape of uncommon 
and unusually large cinders — ^larger in size than when 
netting was not so out of repair, and the plaintiff on 
this issue seeks to establish such facts of such netting 
being out of repair at the very time and place, as above 
mentioned, by what is known in law as circumstantial 
evidence." 

It is urged that the instruction *' arbitrarily classes 
all of plaintiff's evidence as circumstantial evidence" 
and is therefore erroneous. In 38 Cyc. 1739, the 
correct rule is stated thus: **A statement that plaintiff 
had sought to prove his case by circumstantial evidence 
is reversible error where it is sustained by direct and 
positive evidence." 

But this instruction only says that the plaintiff 
undertook to prove a defective screen or spark-arrester 
by circumstantial evidence. It limits, by language, the 
question to that one issue. Now as a fact is the state- 
ment in the instruction correct? Upon that issue, the 
thing to be proved was a defective spark-arrester. No 
one, for plaintiff, testifies that he saw the spark-arrester, 
or saw defects therein. Plaintiff undertook to show- 
that there were defects in the arrester by showing a 
state of facts from which the jury could infer that the 



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Vol. 279 APRIL TERM, 1919. 15 

Orris v. Rock Island Ry. Co. 

arrester was defective. It is true that he proved by 
experts that a good arrester could not emit cinders 
larger than a grain of wheat, yet after all, the thing 
to be proven was defects in the arrester, and in my 
judgment all the facts proved were only facts from 
which the inference of defects could be drawn. This 
makes circumstantial evidence, and we see no error in 
the instruction. Of course there was direct evidence 
on the question of the flues being out of condition, but 
this instruction does not touch that question. The in- 
struction speaks only of the netting and limits what it 
says to *Hhis issue.'* 

m. Instruction No. 2 for the defendant reads: 
**The jury are instructed that by accepting em- 
ployment as a fireman on the defendant's railroad, the 
plaintiff assumed all the risks and dangers ordinarily 
incident to such employment as a fireman, and this 
included all the risks and dangers from cinders getting 
in his eyes, such as usually and ordinarily 
^^^!j[^J|^'* could or would escape through the mesh of 
the netting in use on the engine at the time of 
the plaintiff's alleged injuries when in usual and ordi- 
nary repair, and for the escaping of cinders through 
such netting under such circumstances, there can be no 
recovery by the plaintiff — and this is true, regardless of 
the condition of said cinders as to being hot or other- 
wise." 

Much is said about this instruction by learned 
counsel for the appellant. To our mind the defect 
in the instruction lies in the fact that it assumes that 
the defendant had exercised usual and ordinary care in 
the use of netting of the character used on this engine. 
The instruction does not leave it to the jury to de- 
termine, from the evidence, the fact as to whether or 
not usual and ordinary care had been exercised by 
defendant in this regard. There was ample evidence 
from which the jwry could have found that the netting 
in use upon thiii engine was such as was generally used 
. by persons in the same line of business, and from this 
to find that defendant had acted with usual and ordinary 



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16 SUPREME COURT OF MISSOURI. 

Orris V. Rock Island Ry. Co. 

care in using this particular kind of netting, and was 
therefore not guilty of negligence in using it, whilst in 
a proper state of repair. Yet this does not always justi- 
fy the assumption made in this instruction. The only 
thing which can be said is, that the assumption made in 
the instruction might be said to be harmless, or per- 
haps justified, on the theory that there was no counter- 
vailing proof upon the question of the general use of 
such netting. If this were the only error, we would 
feel loth to disturb the verdict. It is always best, how- 
ever, to omit assumption of fact in an instruction. 

IV. Instruction No. 4 for defendant reads : 
** Unless the plaintiff has satisfied the jury by a 
preponderance —that is, by the greater weight of the 
credible evidence in the case — that at the very time and 
place of his injury, if any, the netting in the front end 
of Engine 2028 had become so out of repair by iise 
or otherwise, as to allow the passage through 
SsSu^^. *^® ^^^^ ^^ unusually large cinders, and 
larger than those passing through the same 
when in ordinary repair, the verdict and finding of the 
jury will be for the defendant. And, in this connection, 
the jury are told that if they believe and find from the 
evidence that such netting was inspected in the de- 
fendant's shops at Trenton, Missouri, before starting 
on its trip for Horton, Kansas, and was in reasonable 
and ordinary repair when so inspected, then even though 
the jury might believe that at some time after its 
departure and before reaching the point where plain- 
tiff claims to have received his injury, such netting 
became suddenly out of repair, such fact would not war- 
rant the jury in finding the defendant negligent and 
would not therefore authorize a recovery by plaintiff." 
It is urged that there is no evidence to show that 
the netting became suddenly out of repair. There is 
evidence of an inspection before the engine left Trenton, 
and it was out of repair before it had run ten miles 
according to plaintiff's testimony. So that if the in- 



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VoL 279 APRIL TEEM, 1919. 17 



Orris v. Rock Island Ry. Co. 



spection was a careful one, and the condition reported 
was the true condition, there is some evidence to justify 
the clause condemned by plaintiff's counsel. 

However, the trouble that we see with this in- 
struction arises from other sources. In the first place, 
it assumes a reasonably careful inspection by defend- 
ant's agents. It should not do that. 

But the real poison lies in the fact that it denies 
a recovery to plaintiff, if the jury should find that 
the netting was in a good state of repair when the en- 
gine left Trenton. This overlooks the fact that negli- 
gence was also charged as to the condition of the flues. 
Plaintiff's Instruction No. 1 covered the condition of 
the engine (including the condition of the arrester and 
the flues), and this instruction directs a verdict for 
defendant if the arrester was in good condition. It 
clearly conflicts with plaintiffs' Instruction No. 1. 

The evidence tended to show that a large per cent 
of the flues in this engine were stopped up; that this 
condition of things caused greater suction in the 
remaining flues; that this greater suction would cause 
the cinders to be thrown out of the smoke-stack with 
greater force and rapidity; that the cinders when 
thrown out by an engine in good condition, usually 
lost their heat and fire upon reaching the air. In other 
words, there is evidence tending to show that even with 
the spark-arrester in good condition, yet the defective 
flues might have occasioned the injury. This because 
the eye was burned (according to plaintiff's evidence) 
and the smaller cinder might have retained its heat, 
because it was thrown from the smoke-stack with an 
accelerated epeed, by reason of the defective flues. The 
instruction not only conflicts with plaintiff's instruc- 
tion, but omits an alleged act of negligence (with evi- 
dence to show it) and directs a verdict for the defend- 
ant, if the screen was in good repair. This instruction 
was error. 

2—279 Mo. 



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18 SUPEEME COUET OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

V. It is urged that there was error in refusing 
to permit the plaintiff to show his good reputation for 
truth and veracity. There was no direct impeachment 
of the plaintiff. By this we mean the defendant did 
not undertake to show by witnesses that 
Eepuution. the plaintiff's reputation for truth and vera- 
city was bad. The most that can be said 
is that the defendant cross-examined the plaintiff 
as to a deposition which he had previously given, 
and as to some signed statements that he had 
made to a doctor (company doctor) who treated his 
eye; that the cross-examination was vigorous and 
tended to reflect upon the veracity of plaintiff; that 
the statements in the deposition and the other written 
statement tended to contradict the plaintiff's statement 
on the witness stand. There is suflScient to justify 
the introduction of this evidence of good character, 
under a long line of cases from our Courts of Appeals. 

The -rule first announced and since followed, is in 
Miller v. Railroad Co., 5 Mo. App. 1. c. 481, whereat 
the St. Louis Court of Appeals said: **As the case 
must go back for a retrial, we may say that there is 
nothing in the objection of appellant to the testimony 
in support of plaintiff's character. His character for 
truth was attacked by defendant, not by direct evi- 
dence, but by the character of the cross-examination, 
and by evidence of statements by him, out of court, 
different from those sworn to by him on the stand 
It is now well settled that where this is the case, it is 
competent for the party calling the witness to give 
evidence of his general good character. [1 Qreenl. on 
Ev. sec. 462; Paine v. Tilden, 20 Vt. 554; 31 N. C. 
14; 12N. Y. 236; 34 Barb. 256.]" 

So also has the Kansas City Court of Appeals 
ruled. Thus, in the case of Walker v. Insurance Co., 
62 Mo. App. 1. c. 220, that court says: *'The defendant 
further objects that the court erred in refusing to al- 
low it to introduce proof of the good reputation, for 
truth and veracity, of its agent. Miller. His character 
in this respect was attacked by plaintiff, not by direct 



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Vol. 279 APEIL TERM, 1919. 19 

Orris V. Rock Island Ry. Co. 

evidence, but by the character of cross-examination and 
by evidence of statements and reports, etc., made by 
him out of court, different from those sworn to on 
the witness stand. 'It is now well settled,' says Judge 
Eedfeild, in Paine v. Tilden, 20 Vt. 554, 'that, whenever 
the character of a witness for truth is attacked in any 
way, it is competent for the party calling him to give 
general evidence in support of the good character of the 
witness. And we do not think it important whether the 
character of the witness is attacked by showing that he 
has given contradictory accounts of the matter out 
of court and different from that sworn to, or by cross- 
examination, or by general evidence of want of charac- 
ter for truth.' And to like effect are the following cases: 
Miller v. Railroad, 5 Mo. App. 47; State v. Roe, 12 
Vt. 93; Isler v. Dewey, 71 N. C. 14. Accordingly it 
must be ruled that the court erred in rejecting defend- 
ant's offer of general evidence of the good character of 
its agent. Miller, for truth." 

In a number of succeeding opinions this rule is 
approved: Berryman v. Cox, 73 Mo. App. 1. c. 74; 
Browning v. Railroad, 118 Mo. App. 1. c. 451 ; Landers 
V. Railroad, 134 Mo. App. 1. c. 89 ; Gourley v. Callahan, 
190 Mo. App. 666; Ross v. Grand Pants Co., 170 Mo. 
App. 291. 

The rule adopted by the Court of Appeals has 
support in the case law. [30 Am. & Eng. Ency. Law, 
p. 1150.] 

However many courts hold it inadmissible. [30 
Am. & Eng. Ency. Law, p. 1151.] 

In 30 Am. & Eng. Ency. Law, p. 1151, it is said: 
**Mere contradictions in the testimony of opposing 
witnesses, or different versions of the transactions in 
issue, have been generally held not to involve such an 
attack on the character of the witnesses as to justify 
the admission of general evidence of their character 
for truth; otherwise trials would be rendered inter- 
minable, and instead of reaching truth by the verdict, 
it would be likely to be stifled under a large number of 



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20 SUPEEME COUET OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

side issues, calculated to obscure and not to elucidate 
the real one. The rule has been generally applied, al- 
though the contradictions in testimony are of such 
nature as to consequently impute fraud, immorality, 
or crime to the witness. Further, under the decisions 
in some jurisdictions, disapproving the statements of 
text-writers to the contrary, proof that a witness has 
made declarations contradictory of his testimony will 
not warrant the reception of such evidence; nor will 
the cross-examinatioQ of a witness, however severe or 
searching, unless admissions of extrinsic facts going to 
his character are wrung from him during its course. 
Evidence of contradictory statements is an assault on 
the credit rather than on the character of the witness, 
and therefore, does not open the way for evidence to 
sustain his general character.'' 

On the other hand this court in the early case of 
Gutzwiller v. Lackman, 23 Mo. 1. c. 172, per Scott, J., 
said: **We do not see on what principle the plaintiff 
was permitted to introduce evidence of his good 
character. The rule is stated in the books, that, as 
evidence is to be confined to the points in issue, the char- 
acter of either party can not be inquired into in a civil 
suit, unless it is put in issue by the nature of the pro- 
ceeding itself." 

This rule has been consistently followed by this 
court. [Rogers and Gillis v. Troost's Admr., 51 Mo. 
1. c. 476; Dudley V. McCluer, 65 Mo. 1. c. 243; Vawter 
V. Hultz, 112 Mo. 1. c. 639; Black v. Epstein, 221 Mo. 1. 
c. 305; Bank v. Richmond, 235 Mo. 1. c. 542.] 

We have also expressly ruled that sharp conflict in 
the testimony of witnesses will not authorize the in- 
troduction of evidence as to good character (State v. 
Fogg, 206 Mo. 1. c. 716), whereat we said: ''It is 
urged by counsel for appellant that the court com- 
mitted error in the exclusion of the testimony offered 
to prove the defendant's reputation in the neighborhood 
in which he resided for truth and veracity. This testi- 
mony was properly excluded for the reason that the 



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Vol. 279 APRIL TERM, 1919. 21 

Orris V. Rock Island Ry. Co. 

defendant's reputation for truth and veracity had not 
been assailed, and the mere fact that there was a con- 
flict between his testimony and that of the prosecuting 
witness, is not in contemplation of law such an attack 
upon his reputation for truth and veracity as would 
warrant the court in admitting Iho testimony as to 
such reputation, for the purpose of bolstering up the 
testimony of the defendant, when such reputation had 
been in no way assailed. As applicable to this pro- 
position we know of no rule of law which makes any 
distinction between the defendant as a witness and any 
other witness in the case; therefore we take it that 
the rule as announced in State v. Thomas, 78 Mo. 327, 
is decisive of this question. '^ 

But the Courts of Appeals seem to think that the 
general character of a party to a suit has been assailed, 
when the other side proves that at other times and 
places such party has made statements contradictory 
of the statements made on the witness stand, and the 
party so assailed has the right to show his general repu- 
tation for truth and veracity. The rule, as said, has 
support, and it has non-support in the cases. In 40 
Cyc. 2759, it is said: **Some authorities hold that 
where a witness has been attacked by showing state- 
ments inconsistent with his testimony, he may be sus- 
tained by evidence of his good character or reputation 
for truth and veracity; but according to other authori- 
ties it is not permissible to sustain the witness in this 
manner." 

It occurs to us that some of the cases overlook a 
possible difference between things that go to the credibil- 
ity of the witness, rather than to his general reputation. 
When you attack his general reputation is one thing, 
but showing matters which affect the credibility of his 
statements on the witness stand is quite another and 
different thing. To show that a witness has made con- 
trary statements out of court goes to the credibility 
of his evidence, but not necessarily to his general reputa- 
tion for truth and veracity. There is a distinction 



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22 SUPREME COUET OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

between an attack upon the credibility of a witness's 
statement in court, and an attack on his general reputa- 
tion for truth and veracity. 

In Chapman v. Cooley, 12 Richardson (S. C.) L c. 
660, it is said: ** Surely, then, character and credit are 
distinct things, and every assault on the credit of a 
witness does not involve the imputation of perjury to 
him, nor, indeed, any reflection on his reputation. If 
a witness should contradict himself in the course of his 
testimony, it would not be pretended that this would be 
a suflScient basis for evidence as to his good character; 
and yet there is no difference, in principle, between his 
contradiction of himself on the stand and outside of 
the court house. The consumption of the limited time 
which can be appropriated to the administration of 
justice and of the money of parties and witnesses, 
required by the trial of collateral issues as to character, 
is a great and growing mischief." See also Bank v. 
Assurance Co., 33 Ore. 1. c. 50 et seq. 

So we conclude that neither the proof of mere con- 
tradictory statements, nor a rigid cross-examination of 
the party, will authorize the introduction of evidence as 
to his general reputation for truth and veracity. Such 
things go to the credit to be given his testimony rather 
than to his reputation for truth and veracity. These 
things do not constitute such an attack upon his general 
reputation as to admit evidence to support such reputa- 
tion. 

I think the rule established by our Courts of Appeals 
goes too far. Every witness in a case might have made 
some contradictory statements out of court, and hence 
all would be entitled to show good reputation under 
that rule. The court can't try so many side issues in a 
case. Until the general reputation of a witness is 
attacked, no evidence to show his general reputation 
is admissible. Proof of contradictory statements is 
not an attack on general reputation. 

The evidence offered by the plaintiff was properly 
excluded, although it would be competent under the 



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Vol. 279 APRIL TERM, 1919. 23 

Orris v. Rock Island Ry. Co. 

rule of our Courts of Appeals. This rule we do not 
approve, and those cases should not longer be followed. 

VI. There are other errors urged, but the fore- 
going covers all that we find to have substance in thera. 

For the reasons expressed herein the judgment is 
reversed and the cause remanded. Walker, Blair and 
Williams, J J., concur; Paris, J., concurs in the result; 
Bond, C. J., dissents in separate opinion, refiling his 
divisional opinion; Woodson, J., absent. 

BOND, C. J. (dissenting).— Plaintiff, John P. 
Orris, instituted this action for personal injuries against 
the Chicago, Rock Island & Pacific Railway Company, to 
recover the sum of twenty thousand dollars damages, 
alleged to be due to the defendant's negligence in failing 
to provide ** plaintiff with a reasonably safe locomotive 
engine'' on which he was required to work; that on 
account of the defective condition of said locomotive, 
**live cinders and ignited pieces of coal struck the plain- 
tiflf in the left eye . . . and destroyed the sight 
thereof." 

There was evidence tending to prove that on the 
morning of January 31, 1914, plaintiff, as fireman, with 
G. Q. Hoffman, engineer, and Frank Nordyke, conductor, 
in charge of one of defendant's freight trains, left Tren- 
ton, Missouri, to make a run of one hundred and twenty 
miles to Horton, Kansas. About ten miles from Trenton, 
when they had reached what is known as the Jamesport 
Hill, plaintiff leaned out the left side of the engine in 
an effort to discover an automatic semaphore, a signal 
which indicates the safety of what railroad men call 
a ** block;" that while he was in this position and look- 
ing upward toward the smoke-stack of the engine, a hot 
cinder struck him in the left eye. Plaintiff testified that 
this cinder was *'from probably the size of a pea or 
maybe a large grape, in between there some place." 
The train reached Horton about six o'clock that evening 
and about ten-thirty or eleven o'clock that night plain- 



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24 SUPEEME COURT OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

tiff complained to Engineer Hoffman that his eye hurt 
him, and Hoffman then turned back the lid and re- 
moved something from the eye **with a toothpick; a 
black speck of some kind." They left Horton at five 
o'clock the next morning, reaching Trenton again just 
after noon, when plaintiff went to a doctor *^who took 
some piece of cinder" out of his eye. The eye (to use 
plaintiff's words) *^got very much inflamed, and got so it 
kind of shrunk away, and there was a s^ar or cut on 
my eye that seemed to be sinking in, as if the water in 
my eye was seeping out; it finally got so my eye was 
sunken in, same as though it was going to wilt away." 
Plaintiff finally went to Kansas City, where a doctor 
removed the left eye, as the right one was being 
sympathetically alffected. 

The engine on which plaintiff was firing was the 
usual type of freight engine, with fire-boxes at the rear. 
From this fire-box gas, flame, smoke and cinders pass 
through flues about two inches in diameter and six 
inches in circumference. The engine in question was 
equipped with 340 flues attached to what is termed a 
^*flue sheet" and extended from the fire-box to the front 
of the engine or *' smoke-box." The smoke, flames and 
cinders pass out of the flues at the front and strike a 
deflector plate and by suction are drawn toward the 
front of the smoke-box up through a netting or spark 
arrester and are then expelled through the smoke stack. 
This netting was of standard size, having a mesh of 
three-sixteenths of an inch. After the cinders reach the 
smoke-box, they are kept in constant motion by the ex- 
haust of steam which forms a vacuum in the smoke-box, 
and this constant beating of the cinders against the net- 
ting crushes them into small bits. A spark arrester is 
primarily used as a precaution against the ignition of 
fires along the railroad right-of-way and adjoining prop- 
erty. 

On cross-examination plaintiff's testimony tends to 
show that he had gotten cinders in his eyes at various 
times; that it was nothing unusual to get small cinders 



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VoL 279 APEIL TERM, 1919. 25 



Orris V. Rock Island Ry. Co. 



in the eyes; that he usually went to a doctor to have 
them removed *'as he couldn't stand to have any one 
pick af his eyes; and that ho did not examine the 
netting in the engine of which he was fireman. When 
asked if he knew the netting in question was burnt out, 
he said: *'No, but then that was defective, or had a 
large hole in order to let that cinder through." Again: 
** You condemn the netting on your guess of the size of 
the cinder that hit youT A. Yes, sir. Q. That's the 
way you are going to condemn the netting? A. Yes, sir. 
Q. On the size of the cinder that hit youT A. Yes, sir, 
and knowing the cinder couldn't get through the netting 
if it was in proper order." 

When asked if he reported any defect in the en- 
gine when they reached Horton, Kansas, he replied that 
he told the ** engineer to report them (the flues). I 
didn't do it." 

/*Q. So you made no report about the netting in 
the engine! No, sir. 

*^Q. You didn't report to him the netting was out 
of fix? Or did you! A. No, sir, for the reason, the 
roundhouse foreman had told him in my presence (i. e. 
that he had no men to do the work). 

''Q. What did you tell him! A. I told him to re- 
port the flues stopped up. 

'*Q. And that was all you told him! That's all." 

G. 6. Hoffman, the engineer who accompanied plain- 
tiff to Horton, Kansas, and back, testified on cross-ex- 
amination: **I believe that the tearing of holes in the 
fire and clinkers does not have any effect in the amount 
or size of cinders, because the netting would entirely 
govern the size and possibly the number of cinders 
thrown out. The engine throws cinders all the time— 
everybody knows that — it is a usual and common occur- 
rence. I did not notice anything ususual about throwing 
cinders on this trip. . . . I did not examine the 
netting in the head of this engine — did not have any 
reason to suppose that this netting was out of con- 
dition. They have inspectors to examine these nettings. 



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26 SUPREME COURT OF MISSOURI. 

Orris v. Rock Island Ry. Co. 

. . . Mr. Orris did not complain while on the road 
abont his eye — but did complain in our room that night. 
He said he got a cinder in his eye. I turned back the 
lid over a match and brushed this partide off with a 
toothpicf 

At the close of plaintiff's evidence the defendant 
offered an instruction in the nature of a demurrer to 
the evidence, which was overruled. 

The evidence for defendant tended to show that the 
choking up of the flues had nothing to do with the size 
of cinders expelled from the smoke-stack; that the en- 
gine in question had been thoroughly overhauled about 
six weeks previous to the occurrence in suit; that new 
netting was then put in and that netting of this sort 
usually remainded in good condition eight or nine 
months. 

The following ''Reports of Inspection of Head 
Ends'' introduced in evidence by defendant show the 
condition of the netting at the time of the accident : 

''Engine No. 2028, Arrived; date 1-28. Spark arrester 
condition on arrival, opened, no holes in netting; con- 
dition on departure, good . . . Reams, Inspector. 

"Engine No. 2028, Arrived; date 1-30. Spark ar- 
rester condition on arrival, opened good. Repairs made, 
Condition on departure, good . . . Reams, Inspector. 

"Engine No. 2028. Arrived; date 2-1. Spark ar- 
rester condition on arrival; opened, good. Repairs made, 
none. Condition on departure, good . . . Smith, 
Inspector." 

The trial resulted in a verdict and judgment for 
defendant, from which plaintiff appealed to this court. 

• 
I. Without stopping to inquire whether under the 
conceded facts there is any substantial evidence that the 
injury to the eye of the fireman from the emission of cin- 
ders through the smoke-stack of the locomotive was 
caused by the defective condition of the mesh of the 
spark arrester or resulted notwithstanding the mesh of 
the spark arrester was not out of repair and, therefore, 



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Vol. 279 APRIL TERM, 1919. 27 



Orris Y. Rock Island Ry. Co. 



was a danger ordinarily incident to the performance of 
his duties, which he assumed when he engaged as a fire- 
man, it is suflScient to say that this case was submitted to 
a jury whose verdict for defendant is not open to 
review unless caused by legal error in the rulings of 
the trial judge. 

The only errors assigned by appellant are that the 
court erred in giving certain instructions for defendant 
and in excluding proffered testimony. These will be now 
ruled. 

It is complained that the first instruction stated 
''that the mere fact'^ of injury to plaintiff and suit 
therefor **are of themselves no evidence of negligence 

of defendant, which should be shown by a pre- 
2*Sjury. ponderance of the credible evidence in the case,** 

etc There was no error in this direction. In- 
jury and suit of themselves, or per se, do not warrant an 
inference of negligence in cases where the doctrine of 
res ipsa loquitur has no aj^lication. Such has been 
the uniform ruling of this court. [Blanton v. Dold, 109 
Mo. 1. c. 74.] In such cases the plaintiff must do three 
things in order to discharge the burden of proving the 
negligence charged. First, show an injury; second, negli- 
gence on the part of the defendant; and, third, a 
causal connection between the negligence and the in- 
jury. In taking these steps no inference of negligence 
arises from proof of the naked fact of injury, and if 
the plaintiff stops there no recovery can be had. But 
the plaintiff must go further and establish negligence 
from other facts and circumstances. Having done that 
and having also shown the efficiency of the negligence 
in causing the injury, a case is then (and not until then) 
made for the jury, who can then look to the extent of 
the injury and its probable effects as the measure of 
the compensation which they shall give. The instruction 
under review was not inconsistent with these principles. 
[Kane v. Railroad, 251 Mo. 1. c. 27; Deschner v. Rail- 
road, 200 Mo. 1. c. 333; Warner v. Railroad, 178 Mo. 
L c. 133; McFem v. Gardner, 121 Mo. App. 6; Pippin v. 



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28 SUPEEME COURT OF MISSOURI. 

Orris V. Rock Island Ry. Co. 

Plumraer Const. Co., 172 S. W. 1191; Yarnell v. Rail- 
road, 113 Mo. 1. c. 580; Zeis v. Brew. Assn., 205 Mo. 1. c. 
653.] 

Neither was there anything to the contrary intend- 
ed by the ruling of Bbown, C, in Walker v. Railroad, 
178 S. W. 108, and Myers v. City of Independence, 189 
S. W. 816. This distinctly appears from the concession 
of the learned commissioner that the bare fact of in- 
jury would not have any probative force on the issue 
as to negligence, but would be evidential on the final 
issue of the right to recover at all. Thus interpreted 
the language of the learned commissioner in the two 
oases cited is not inconsistent with the elementary prin- 
ciples stated above. We hold that there was no error in 
the instruction under review. 

II. Appellant also complains of Instruction No. 2 
given for d<*fendant on the motion that it did not re- 
quire the jury to **find . . . that the netting in 
use on the engine . . . was in usual and ordinary 
repair." This instruction defined assumption 
J^f^Sf^^"* of risk, stating that it ''included all the risks 
and dangers from cinders getting into his 
eye which ordinarily escape through the mesh or net- 
ting when in usual and ordinary repair," etc. The 
copulative terms ''usual and ordinary" repair are not 
restricted to the practice of defendant alone, but in- 
clude, within the scope of their meaning, the practice 
and custom of ordinarily prudent i)ersons engaged in 
the same business. However, the undisputed fact given 
in the charge to the jury was that the mesh in use by 
defendant was three-sixteenths of an inch and of the 
standard in use by other railroads and adopted because 
reasonably safe. The single issue in this case was 
whether this mesh was out of repair or defective at the 
time of the accident, thereby causing a cinder larger 
than the apertures of the mesh, to hit the (v^re of plain- 
tiff. The burden of proving that the mesh or netting 
was not in "usual and ordinary repair" was upon plaln- 



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Vol. 279 APRIL TEEM, 1919. 29 

Orris v. Rock Island Ry. Co. 

tijff: for absent evidence to that effect, no basis for a 
presumption of negligence existed. Until the advent of 
such evidence, defendant was not required to go further 
than its showing of the use of this engine of a mesh 
of standard size and reasonably safe. We think the 
criticism of this instruction is hypercritical and un- 
sound. 

III. It is next complained that the court erred in 
that by instruction number three for defendant, in so 
far as it informed the jury that the burden of proving 

the circumstances relied upon by him to es- 
Proof. tablish that the mesh of the spark arrester was 

out of repair, was cast upon the plaintiff. Wq 
cannot sustain this contention. We think the evidence 
was circumstantial and hence this was not an improper 
direction. It is not pretended that any witness testi- 
fied positively that there was any fault or imperfection 
or defect of any nature whatever in the spark arrester 
in use on this engine. The theory to that effect was 
based upon a concatenation of circumstances relied upon 
by plaintiff as the basis of a legitimate inference that 
the mesh had become defective when he was hurt. Hence 
it was entirely proper for the court to instruct the 
jury that it devolved upon him to prove those cir- 
cumstances in order to make a case. The whole theory 
of plaintiff's case, as stated by himself, was that the 
cinder which struck his eye was larger than one which 
would ordinarily escape a mesh three-sixteenths of an 
inch in size; therefore, inferentially, that the mesh in 
question had become out of repair. [Haake v. Davis, 166 
Mo. App. 1. c. 253; Fink v. Eailroad, 161 Mo. App. 1. 
c. 327.] 

IV. We are unable to perceive the force of the 
objection to Instruction No. 4. It is claimed by ap- 
pellant that the instruction in question was faulty in 

submitting the issue of the netting '* suddenly 

^^1^^* becoming out of repair after the departure of 

the train.'* There was abundant evidence 



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30 SUPEEME COURT OP MISSOURI. 

Orris Y, Bock Island By, Co, 

for defendant that the admittedly standard-size netting 
had been shown by previous inspection to be in good 
condition and from an inspection in defendant's shops 
before the engine started on its trip. It was not, there- 
fore, error in view of that evidence, to submit to the 
jury the issue of whether the injury to plaintiff was 
caused by the netting becoming suddenly out of repair 
after the beginning of the trip. This issue was 
legitimately raised by the pleadings and testimony and 
was the proper subject of a hypothesis in the instruction. 

V. Appellant complains of instructions five and six; 
that one is argumentative and the other an abstraction. 
We do not discover any reversible error in either of 

them. Number five correctly told the jury 
fflteSS^^^^ that their findings should be based upoD 

tangible evidence and reasonable and legiti- 
mate deductions and not upon mere speculation and 
conjecture. [Conner v. Railroad, 181 Mo. 397, 413; Giles 
V. Railroad, 169 Mo. App. 24; Glick v. Railroad, 57 Mo. 
App. 97.] Instruction numbered six, claimed to be a 
mere abstraction by appellant, has been often approved 
in this State. [Henry v. Railroad, 113 Mo. 535; Feary 
V. Street Ry. Co., 162 Mo. 75; Webb v. Baldwin, 165 Mo. 
App. 1. c. 251.] 

VI. The final complaint of appellant is that the 
court erred in excluding testimony offered by him to 
prove his good character. This assignment is not dis- 
cussed in the learned brief for appellant, nor 

A^nme^t. ^^^ it urged in oral argument, and we take 
it, therefore, has been abandoned. 
The result is that the judgment in this case should 
be afSrmed. 



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Vol. 279 APRIL TEEM, 1919. 31 



state ex rel. Hill t. Pettingill. 



THE STATE ex rel. G. W. Hill et al. v. H. M. PET- 
TINGHiL, Judge of Circuit Court, at al. 

,In Banc, Jnne 26, 1919. 

1. I£VEE DI8TBI0T: Organized in 1903: Bights Under Amended Act 
of 1913: Condemnation: Beorganisation. NotwitlistaQding a levee 
district organized in 1903 under Art. 1, Cliap. 128, R. 8* 1^09, has 
never reorganized under the Act of 1913, Laws 1918, p. 290, it may 
proceed under that act to condemn land for rights^f-way neces- 
sary for ditches, because Section 53 of the Act of 1918 provides that 
"all rights, powers, liens and remedies" then existent might be 
enforced by the mode provided by the existing law or under the 
provisions of the act. 

2. : : Amended Section 6703: Beorganisatlen: Ck>ndemna- 

tion. The Act of 1911, repealing Sec. 5703, R. 8. 1909, and sub- 
stituting amended Section 5703 (Laws 1911, p. 081), did not de- 
stroy the power of a levee district organized in Wt to adopt a 
plan for the reclamation of swamp and wet lands within its 
boundaries and to condemn rights-of-way for drains and ditches 
necessary to accomplish such reclamation. As to districts already 
organized amended Section 5703 merely carried forward the power 
already conferred by old Section 5703 to drain swamp and wet 
lands and to secure rights-of-way for ditches, and Section 5713 au- 
thorized such a district to "proceed under the article as amended 
herein," which means that it was not necessary that the district 
reorganize under the Act of 1911. 

3. : : Beorganlzation Under Act of 1913. Section 47 of 

the Levee Act of 1913 was not intended to repeal all previous acts, 
and leave a levee district previously organized without legal au- 
thority to proceed further in the exercise of the powers con- 
ferred on it by said previous acts. 



Prohibition. 
Pbeliminaby rule disohabged. 

B. L. Gridley, T. L. Montgomery and John M. Daw- 
son for relators. 

(1) The right to condemn real estate must be strictly 
construed and the right of the citizen sacredly pre- 
served under the constitution, and laws of the State, 



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32 SUPREME COURT OF MISSOURI. 

state ex rel. Hill y. Pettingill. 

City of Tarkio v. Clark, 186 Mo. 285; Orrick School 
District v. Dorton, 125 Mo. 444 ; Railroad v. Schweitzer, 
243 Mo. 122, 1. c. 126. (2) Section 52 of the drainage act 
and Section 47 of the levee act, contain the words **may 
elect,'' with reference to the organization specified in 
the act. These words as used in this connection are 
mandatory and not directory. They provide the only 
authority for the district to avail itself of the act, of the 
conditions named in the sections. Deming v. Engineer- 
ing & Const. Co., 154 Mo. App. 540; Hope v. Flentge,140 
Mo. 400; State ex rel. v. King, 136 Mo. 309; Steines v. 
Franklin County, 48 Mo. 178. (3) The circuit court has no 
jurisdiction to hear, try and determine the case, be- 
cause the levee district has never reorganized under the 
law passed and approved April 7, 1913, entitled Drains 
and Levees, as approved by Section 47 to 52 of the act 
under which respondents are proceeding, and all acts are 
coram non judice, Laws 1913, p. 290 and 232; State ex 
rel. McWilliams v. Little River Drain. Dist, 269 Mo. 459 ; 
State ex rel. Caruthers v. Little River Drain. Dist., 196 
S. W. 1117; State ex rel. McWilliams v. Bates, 235 Mo. 
275; Sutherland on Statutory Construction, sec. 325, p. 
412; Felt v. Felt, 19 Wis. 196; State v. Trenton, 38 N. J. 
L. 64 ; McCartee v. Orphan Asylum, 9 Cow. 437 ; McQrew 
v. Railroad, 230 Mo. 496. 

C. T. Llewellyn and Eazen I. Sawyer for respond- 
ents. 

(1) The right of respondent levee district to con- 
demn real estate for rights of way for levees, ditches, 
etc., is expressly granted by Sec. 8364, R. S. 1899, which 
section adopts Sec. 8261, R. S. 1899, and makes it a part 
of the levee district laws of this State. The right of 
condemnation is further granted to levee districts by the 
Act of 1907, Laws 1907, p. 337. And it is further grant- 
ed by Sec. 5706, R. S. 1909, and Sec. 26, Act of 1913, 
Laws 1913, p. 306. (2) Whether the word '^may" as 
used in Sec. 47, Act of 1913, p. 318, is to be construed as 
shall*' is settled by the intention of the statute as 



a 



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VoL 279 APRIL TERM, 1919. 33 

state ex rel. Hill y. Pettingill. 

gathered by the context and by reading the whole act 
as one scheme and code. Section 53 makes its provisions 
available and enforceable at the election of the board of 
supervisors. Section 47 only applies and was only in- 
tended to apply to districts other than those organized 
under the general levee laws. Art. 7, Chap. 122, R. S. 
1899, and Art. 9, Chap. 41, R. S. 1909. The proper con- 
struction of this Act of 1913 will harmonize all its 
sections and carry into effect the intention of the Legis- 
lature. Easton v. Courtwright, 84 Mo. 27 ; State v. Ebbs, 

89 Mo. App. 95; Epperson v. N. Y. Life Insurance Co., 

90 Mo. App. 432; King's Lake Dr. and Levee District v. 
Jamison, 176 Mo. 557 ; State ex rel. Kyger v. Holt Co. 
Ct., 39 Mo. 521. The Levee Laws of 1913 are in express 
terms declared to be ''Remedial in character and pur- 
pose.'* Such statutes must be liberally construed. 
Pulitzer Publishing Co. v. McNichols, 170 Mo. App. 709; 
Abbott V. Marion Mining Co., 255 Mo. 378; Co-Op. L. S. 
Com. Co. V. Browning, 260' Mo. 324; Armor v. 
Lewis, 252 Mo. 568. (3) The cases of State e^ rel. 
McWilliams v. Little Rivei* Drainage District, 269 Mo. 
459, and State ex rel. Caruthers v. Little River Drain- 
age District, 196 S. W. 1115, cited by relators, are mere 
obiter and were not at all necessary to the decision of 
the case in which the remarks were made. As to these 
Little River Drainage District cases they ^y^ere both 
drainage, not levee cases. The drainage district acts 
and levee districts acts are separate, distinct and differ- 
ent statutes. However such provisions as are contained 
in Section 47 have never been passed upon by any 
court of last resort in this State. Section 43 contains 
this language: *'and its provisions shall be construed to 
apply to levee districts already organized or in pro- 
cess of organization." The provisions of Revised S at- 
utes so far as they are the same as those of prior laws, 
are construed as a continuation of such laws and not 
as new enactments. Kamerick v. Castleman, 21 Mo. 
App. 587; Dart v. Bagley, 110 Mo. 42; St. Louis v. 

3—279 Mo. 



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34 SUPREME COURT OF MISSOURI. 

state ex rel. Hill y. Pettingill. 

Tiefel, 42 Mo. 578; Cape Girardeau v. Riley, 52 Mo. 424; 
State ex rel. v. Heidom, 74 Mo. 410. 

BLAIR, J. — The Des Moines & Mississippi Levee 
District No. 1 was proceeding to condemn and appro- 
priate lands of Ellen Hill and others for the purpose of 
draining swamp and wet lands within the district when 
application was made for a rule in prohibition to restrain 
the judge of the Clark Circuit Court from further action 
in the premises. Mrs. Hill, the original relator, has 
died and her heirs have been substituted as parties. 

The levee district was organized December 28, 1903, 
under Article 7, Chapter 122, Revised Statutes 1899. 
The return admits that the district **has never re- 
organized under Sections 47, 48, 49, 50, 51 and 52 of 
the" Act of April 7, 1913, Laws 1913, pp. 290-321; 
admits that an application was made to the Clark County 
Circuit Court *'to amend its original plan of recla- 
mation and to authorize said district to construct drains 
and ditches over and upon" relator's land within the 
district ** under and by virtue of . . . Section 39" 
Of the Act of March 23, 1915, Laws 1915, p. 275, and that 
relators herein filed their exceptions and objections 
thereto, and that, after a hearing, the court, granted the 
prayer of the district's petition. It is then admitted 
that the ** district by its board of supervisors filed a 
petition in condemnation under . . . Article 2, Chap- 
ter 22, Revised Statutes 1909," praying the con- 
demnation of ''rights of way over relators' lands; that 
commissioners were appointed, duly qualified and as- 
sessed damages and compensation to relators therefor, 
and aver the sums assessed have been paid into the court. 
It is also admitted relators filed exceptions to the re- 
port and a plea to the jurisdiction and that this plea 
was overruled, and that the cause is docketed and pend- 
ing for trial." Respondents then aver that the district 
''was not required to reorganize under the Act of 1913." 
Other facts appear in the opinion. 



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Vol. 279 APRIL TERM, 1919. 35 



state ex rel. Hill y. Pettinglll. 



I. By the admission of the return it is disclosed 

the levee district was organized in 1903, under Article 

7, Chapter 122, Revised Statutes 1899 ; has never 

Bemedies reorganized under the Act of 1913 (Laws 1913, 

Am^ed P- 290, et seq.) ; but, nevertheless, is proceeding, 

-^«^ by the method prescribed by that act, against 

relators for the purpose of condemning portions 

of their land for rights-of-way for ditches necessary to 

reclaim swamp or wet lands within the district. 

Since the district has not reorganized under the Act 
of 1913, let it be conceded that the rule contended for 
(State ex rel. v. Drainage Dist., 269 Mo. 1. c. 459) is 
applicable, i. e., that the Act of 1913 did not affect the 
rights, powers or duties of levee districts previously 
organized. It is nevertheless true, as it was held, in the 
case cited, to be true of drainage districts in like con- 
dition, that the district *' continues to operate and 
proceed under the original act and the applicable 
amendments,*' including that of 1911. It is to be noted 
that the case cited dealt only with the question whether 
a stated legal duty was imposed upon the drainage dis- 
trict. As to that question it was held the Drainage Act 
of 1913 had no application, in the absence of reorgani- 
zation under that act. The rule of that case is subject 
to the same limitation when applied in this. Section 53 
of the Act of 1913 affecting levees (Laws 1913, pp. 320, 
321) is, in every respect affecting the question we now 
propose to consider, legally (and almost literally) 
identical with Section 62 of the Act of 1913 (Laws 1913, 
pp. 266, 267) concerning drainage distric,ts. Section 53, 
after providing that no right, power, remedy or lien 
conferred upon a levee district, previously organized, 
shall be impaired by the repeal of previous laws and that 
pending proceedings should not be affected thereby and 
that no obligation, contract or undertaking should be 
held changed, modified or invalidated by such repeal, 
but should remain inviolate, added the following: **A11 
rights, powers, liens and remedies now existing in be- 
half of such levee districts of this State, may be en- 



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36 SUPREME COURT OF MISSOURI. 

state ex rel. Hill y. Pettingill. 

forced and made available in the manner and by the 
means and mode now provided by law, or such rights, 
powers, liens and remedies may be enforced and made 
available under the provisions of this act, if applicable, 
at the election of the board of supervisors of the levee 
district/' It is apparent the section carefully protects 
the rights, powers, liens and remedies from impairment 
by the new act. Section 52 as fully provides against 
the invalidation of obligations by the repeal of old laws 
and the imposition of new obligations by the mere 
passage of the new act. The quoted clause does not 
concern itself with the rights, powers, liens or obligations 
of the district, but has to do solely with the procedure 
for their enforcement. In the case of a district whidi 
was organized prior to 1913 and which has not re- 
organized under the act of that yea,r, the new law left 
its rights, powers, liens and obligations and remedies 
unaffected, but gave the board of supervisors of such a 
district a right to employ, as they might choose, the 
machinery of the old law or the new act in the enforce- 
ment thereof. This provision is express, is within legis- 
lative power and must be construed according to its 
plain meaning. The word ** remedies" casts no doubt 
upon this meaning. The only doubt it raises is as to 
the sense in which it is employed. The words **if 
applicable" cannot well mean *4f the district has reor- 
ganized under the Act of 1913," since the section, in- 
cluding the quoted sentence, expressly deals with dis- 
tricts which have not so reorganized. These words doubt- 
less mean *4f appropriate;" *'if effective for the pur- 
pose in hand," i. e., if they can reasonably be applied 
to the enforcement of the rights, powers, etc., with 
which the sentence deals. This view of the act is in full 
harmony with the holding in the case cited, conceding its 
applicability as contended for by relator. The only ques- 
tion concerning its applicability is one based upon lan- 
guage in Sections 47 and 53, which respondents suggest 
make the whole Act of 1913, as amended in 1915, appli- 
cable to respondent district without reorganization — ^a 



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VoL 279 APRIL TERM, 1919. 37 



state ex rel. Hill y. Pettinglll. 



view which could not aid Relator and need not be dis- 
cussed. 

n. Article 7, Chapter 122, Revised Statutes 1899, 
under which respondent district was organized, authoriz- 
ed organization for the sole purpose of constructing 
^* levees and other works that may be deemed practi- 
cable and necessary'' to protect lands subject to over- 
flow from rivers of the State. L Section 8361, R. S. 
1899.] Section 8363 empowered the district to secure 
rights-of-way by proceeding as provided in Section 8261, 
Revised Statutes 1899, i. e. by condemnation. In 1907 
(Laws 1907, pp. 335, 336) Section 8361, Revised Statutes 
1899, was amended so as to authorize levee districts 
"now or hereafter organized" to drain and ditch swamp 
or wet lands within the district. Sections 8259 and 
8262, Revised Statutes 1899, were referred to for the 
method. In the same year (Laws 1907, p. 337) Section 
8364 was so amended as to provide a detailed scheme 
for condemning rights of way for levees, ditches, drains, 
etc. Article 7, Chapter 122, Revised Statutes 1899, as 
amended in 1907, became Article 9, Chapter 41, Revised 
Statutes 1909. Sections 8361-8370, Revised Statutes 
1899, with amendments, became Sections 5703-5713, 
Revised Statutes 1909. In 1911 (Laws 1911, p. 230, et 
seq.) an act was passed repealing Sections 5703-5713 
(Art. 9, Chap. 41, R. S. 1909) and enacting sixteen 
sections in lieu thereof. Section 5703 of this act au- 
thorized the organization of levee districts for the pur- 
poses expressed in Article 7, Chapter 122, Revised 
Statutes 1899, but instead of carrying forward the pro- 
vision of Section 8361, Revised Statutes 1899, as amend- 
ed in 1907, concerning the drainage of swamp and wet 
lands within the district, as a proviso, it made such 
drainage one of the purposes for which a levee district 
might be organized under the Act of 1911. The con- 
ditions and methods of organization were appreciably 
changed. The adoption of a "plan for reclamation" 
was authorized. No method for changing such a plan was 
provided. Section 5713 of the Act of 1911, (Laws 1911, p. 



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38 SUPREME COURT OF MI SSOURI 

state ex rel. Hill v. Pettingill. 

238) provided that in existing districts ''the landowners 
may proceed under the provisions af the article as amend- 
ed herein, and by doing so no contract, obligation^ assess- 
ment or lien of the district shall be abated/* Section 
5704 of the Act of 1911 (Laws 1911, p. 232) was intend- 
ed to incorporate in the act, by reference, certain sec- 
tions of other acts. 

Under the law as it existed in 1909 (Art. 9, Chap. 
41, R. S. 1909) respondent district had full power to 
adopt plans for the reclamation of swamp and wet lands 
within its boundaries, and for that purpose was au- 
thorized to condemn rights-of-way for ditches and drains 
necessary to accomplish such reclamation. Did the Act 
of 1911, in repealing Section 5703, Revised Statutes 
1909, and substituting amended Section 5703 (Laws 1911, 
p. 231) destroy that power! We think not. The amend- 
ed Section 5703 empowers levee districts organized 
thereafter to include such a purpose in its articles of 
incorporation. The Act of 1911, as well as Article 9, 
Chapter 41, Revised Statutes 1909, authorized levee 
districts to drain swamp or wet land within the district. 
So far as concerned districts then already organized 
this provision of the Act of 1911 constituted merely a 
carrying forward into the new act of a power' existing 
under the old. To hold otherwise would result in the 
conclusion that the Legislature intended to discriminate 
in a very material respect between the old and new dis- 
tricts. It would mean that new districts might pro- 
ceed to the complete reclamation of lands within their 
boundaries, while districts organized prior to the taking 
effect of the Act of 1911 must content themselves with 
permitting swamp and wet lands within their boundaries 
to remain unreclaimed. Districts formed or in process 
of organization prior to 1911 were not authorized to in- 
corporate for the express purpose of reclaiming such 
swamp and wet lands. The power was one given these 
districts in the manner already pointed out, and the 
duty to exercise it was imposed upon the boards of su- 
pervisors. If the Legislature meant to deprive such 



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VoL 279 APRIL TERM, 1919. 39 



state ex rel. Hill y. Pettinglll. 



districts of this power and did not intend it to remain 
in them by force of the amended provision, it would 
have been easy to have made such purpose clear. Sec- 
tions 5704 and 5705 of the Act of 1911 expressly gives 
the board of supervisors power to ** construct or main- 
tain" ditches necessary to the reclamation of any land 
in the district and condenm rights of way therefor. Sec- 
tion 5713 of the same act clearly states that districts 
already organized **may proceed under the article as 
amended herein." This does not require reincorporation. 
It enabled the district already incorporated to avail 
itself of the machinery of the act for carrying out its 
purposes and exerting its powers. There is no pro- 
vision for the reorganization of old districts under the 
new Act of 1911. We think the act left in districts then 
organized the power to reclaim swamp and wet lands 
within their boundaries and condemn rights of way for 
ditches, etc., necessary to that end. 

Since the district had the power to act, it was and 
is, on relator's own theory, authorized (Par. I, supra) to 
employ, in the exertion of that power, the procedure 
provided by the Act of 1913. As already pointed out, 
this renders unnecessary discussion of respondents' con- 
tention that Sections 47 and 53 of the Act of 1913 render 
that act, in every respect, applicable to respondent dis- 
trict, without reorganization. 

III. The argument that Section 47 of the Act of 
1913 was intended to repeal absolutely all previous acts, 
so far as distr:/*ts organized prior to 1909 are con- 
cerned and leave such districts without legal authority to 
proceed further unless they reorganized under the Act 
of 1913, is unsound. It runs counter to the principle ap- 
proved in State ex rel. v. Drainage District, supra, 
and applied in a like situation to drainage districts. It 
also attributes to the Legislature an intent not in accord 
with the announced spirit of the act itself. [Sec. 53, 
Act of 1913, Laws 1913.] This disposes of the question 
raised. The preUminary rule is discharged. All concur; 
Bond, C. J.y in result; Wbodson, J., not sitting. 



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40 SUPREME COURT OP MISSOURI. 

Ins. Co. T. Salisbury. 



MISSOURI STATE LIFE INSURANCE COMPANY, 
Appellant, v. ELIJAH H. SALISBURY. 

DlTision Two, July 6, 1919. 

1. IKSXTBAKOE POUOST: Acceptanca. Inconclusive negotiations con- 
cerning an insurance policy, which contains a clause that the 
insurance shall not take effect until the first premium is paid and 
the policy delivered to and accepted by the insured during life- 
time and in good health, do not constitute an insurance contract. 
The facts of this case are reviewed, and it is held that the policy 
tendered by the company was never unconditionally accepted dur- 
ing the good health of the insured, or that the company under- 
stood that the policy sent and received was accepted, or was ac- 
ceptable except upon a condition which could not be met, and 
that therefore there was no completed contract 

2. : Non-Payment of First Prraiium. A stipulation in an in- 
surance policy requiring the first premium to be paid in advance 
and during the good health of the insured as a condition upon 
which it is to take eftect is enforcible, and if the first premium 
was neither paid nor tendered during the insured's good health 
the policy did not become eftective, and there is no enforcible in- 
surance contract. 

3. : Payment Becited in Policy. The payment of the first pre- 
mium, where the policy itself recites that such first premium was 
made» cannot be disputed for the purpose of invalidating the 
policy; but where the recital is that ''the insurance is granted 
in consideration of the payment in advance" of a named sum of 
money, "being the premium for the first year's insurance under 
this policy," the recital is not a specific recital of payment, but 
a mere statement that the first payment shall be the consideration 
for the issuance of the policy. 



Appeal from Sullivan Circuit Court — Hon. Nat M. 
Shelton, Judge. 

Revebsed and remanded {with directions). 

Jones, Hocker, Sullivan £ Angert and Vincent L. 
Boisauhin for appellant. 

(1) The policy on the life of Alpha 0. Salisbury was 
only conditionally delivered for the purpose of in- 



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Vol. 279 APRIL TERM, 1919. 41 



Ins. Co. T. Salisbury. 



spection and comparison, and therefore the contract 
was never completed. Rey v. Equitable Life Assur. 
Soc., 44 N. Y. 745; New v. Germania Fire Ins. Co., 
171 Tnd. 33; Amos-Richia v. Northwestern Mut. Life, 
152 Fed. 192; Coffin v. New York Life Ins. Co., 127 
Fed. 555; Gordon v. Prudential Ins. Co., 231 Pa. St. 404; 
Hamickell v. N. Y. Life Ins. Co., Ill N. Y. 390. (2) 
The application, which was a part of the policy, pro- 
vided that the insurance applied for should not take 
effect unless the first premium was paid and the policy 
delivered to and accepted by the assured during her 
lifetime and good health. The delivery of the policy was 
therefore conditional and payment of the premium dur- 
ing good health was a condition precedent, which 
not being performed, the policy was never in force. 
Wallingford v. Home Mut. F. & M. Ins. Co., 30 Mo. 46; 
Yount V. Prudential Life Ins. Co., 179 S. W. 749; 
Bowen v. Mutual Life Ins. Co., 104 N. W. 1040; Or- 
mond v. Assn., 96 N. C. 158; Amos-Richia v. North- 
western Mut. Life Ins. Co., 152 Fed. 192; Lyke v. Am. 
Nat. Ins. Co., 187 S. W. 265. (3) The policy contained 
no formal acknowledgment of receipt of the premium, 
and therefore the mere description of the amount and 
nature of the consideration contained in the considera- 
tion clause did not operate as an estoppel to prevent 
the company from denying that the policy was a 
completed contract. Dobyns v. Bay State Ben Assn., 144 
Mo. 95; Bush v. Ins. Co., 35 N. J. L. 429; Dircks v. 
German Ins. Co., 34 Mo. App. 31 ; Lyke v. American 
Natl. Ins. Co., 187 S. W. 265; Amos-Richia v. North- 
western Mut. Life Ins. Co., 152 Fed. 195. (4) The prem- 
ium was not paid or tendered during the good health of 
Mrs. Salisbury, and therefore the policy was not in 
force. Perry v. Security Life & Ins. Co., 150 N. C. 143 ; 
American Home Life Ins. Co. v. Melton, 144 S. W. 362 ; 
Ealcullen v. Metropolitan Life Ins. Co., 108 Mo. App. 
61; Gordon v. Prudential Ins. Co., 231 Pa. St. 404; 
Harriman v. N. Y. Life Ins. Co., 43 Wash. 398; 5 Elliott 
on Contracts, sec. 4358. 



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42 SUPREME COURT OF MISSOURI. 

Ins. Co. V. Salisbury. 

W. C, Irwin, J. W. Bingham and Higbee dk Mills 
for respondent. 

(1) Mrs. Salisbury unconditionally accepted the 
policy in suit on December 23, 1914 and signed and mailed 
the receipt evidencing that fact to Carson. He re- 
ceived this and on December 28th wrote Salisbury, 
congratulating them on accepting the policy. The pencil 
writing on this receipt, ''For Inspection only," was 
written thereon by Carson at a later date. Four witnesses 
testify it was not on the receipt while Salisbury had it. 
(2) The policy acknowledges the payment of the prem- 
ium in advance. That fact may not be disproved to in- 
validate the policy. Dobyns v. Bay State Ben. Assn., 144 
Mo. 95. (3) Carson was authorized to take application 
and deliver the policy. He expressly extended credit for 
the premium. He agreed to take Salisbury's note fot the 
premium due in April, 1916, and that it might be paid 
out of commissions on insurance Salisbury might write. 
Prepayment was waived by unconditional delivery of 
the policy, and by refusal to accept payment when duly 
tendered. 25 Cyo. 726, (3) ; Halsey v. Ins. Co., 258 Mo. 
659. (4) Carson was the agent, the alter ego, of the 
Company, and authorized to waive prepayment of the 
premium. E. S. 1909, sec. 6938; Madison v. Ins. Co., 
180 S. W. 1169. (5) The policy was delivered and ac- 
cepted and credit extended for the payment of the pre- 
mium during good health. It was then in force. The 
answers that Salisbury had no other insurance and 
no other applications for insurance pending were made 
at the instance of Carson and furnish no ground to 
defeat payment of the policy. 25 Cyc. 800, D ; Modern 
Woodmen v. Angle, 127 Mo. App. 95, 112; Ins. Co. 
V. Mullen, 197 Fed. 299. (6) The provision that 
premium must be paid and the policy delivered while 
insured is in good health is for the benefit of the 
insurer and may be waived. Bell v. Mo. Life Ins. 
Co., 166 Mo. App. 399. And once waived cannot be 
recalled. lb. p. 402; Brix v. Fiddity Co., 171 Mo. 



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Vol. 279 APRIL TERM, 1919. 43 



Ins. Co. T. Salisbury. 



App. 518, 526. Mrs. Salisbury's recovery was ex- 
tremely probable, says the petition. It further ap- 
pears from the petition her gunshot wound was not the 
cause of her death. '*She either fell or threw herself 
to the ground. '^ If she **feir' then the condition of her 
health is immaterial. Coscarella v. Ins. Co., 175 Mo. App. 
130, 136. (7) The policy recites that it and the appli- 
cation constitute the entire contract. It was therefore 
inadmissible to offer proof of a verbal agreement that 
neither policy would be accepted unless both were issued. 
Such a condition could be waived. 

WHITE, C— The plaintiff brought this suit for the 
purpose of canceling a policy of insurance written by 
the defendant upon the life of Alpha 0. Salisbury, wife 
of the defendant. The petition alleged several reasons 
why the policy should be canceled, and among them 
those which are urged here and which we will consider : 
First, that the policy was never delivered uncondition- 
ally to the insured and there was no completed contract 
upon which the minds of the parties met prior to the 
death of Alpha 0. Salisbury; and, second, that the first 
premium was not paid during the good health of the 
insured, as required by the terms of the policy. 

The defendant filed an answer and counterclaim. 
The counterclaim alleged the policy under consideration 
insured the life of Alpha 0. Salisbury, in the sum of 
ten thousand dollars for the benefit of the defendant, 
and that Alpha O. Salisbury died on the 10th day of 
February, 1915, and prayed judgment for ten thousand 
dollars. The plaintiff replied to the counterclaim deny- 
ing the execution and delivery of the policy sued on, 
alleging its invalidity as a contract on account of the 
same matters set up in the petition, and praying for its 
cancellation, as prayed in the petition. 

On a trial in the Circuit Court of Sullivan County 
judgment was rendered against the plaintiff on its 
I)etition, and for the defendant on his counterclaim for 



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44 SUPREME COURT OF MISSOURI. 

Ins. Go. T. Salisbury. 

ten thousand dollars and interest, less the amount of the 
first premium. The plaintiff appealed from that judg- 
ment. 

The defendant Salisbury was a school teacher and 
at some time early in October, 1914, he and his wife 
Alpha decided that they would take out insurance, each 
in favor of the other. They went at the matter cau- 
tiously, desiring to secure the best possible contract, 
and let it be known to various insurance agents what 
they contemplated in that respect. The result was that 
they were solicited by various agents and sent in ap- 
plications to a number of companies with the under- 
standing that they should receive the policies for the 
purpose of inspection and after a comparison would 
make their selection, Salisbury testified, in speaking of 
the agents: **I told them I thought of taking out some 
insurance; that I thought I was able to carry it; that 
I had decided on buying it about the same as I would 
a horse ; that is, to examine two or three good policies 
and decide which one I would take." It was his in- 
tention to take a policy out upon his own life and that 
of his wife in the same company; the one he should 
find to be satisfactory. 

Pursuant to his applications several policies upon 
himself and his wife were issued and delivered to him 
for the purpose of inspection; among them was a 
policy of the American Central Life Insurance Company, 
and a policy of the Central Life Insurance Company of 
Illinois. The New York Life and the Iowa National 
Insurance Company also submitted policies for in- 
spection. This occurred about the 20th of October, 1914. 

Matters were in this posture when C. M. Carson, 
agent of the plaintiff, Missouri State Life Insurance 
Company, heard of the contest and desired to enter 
the competition for his company. Salisbury at first in- 
dicated that he had enough policies from which to make 
his selection, but finally consented to let Carson in on 
the competition. Applications for Salisbury and for his 
wife were filled out; his, it appears, was dated on the 



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VoL 279 APRIL TEEM, 1919. 45 



Ins. Co. T. Salisbury. 



22nd day of October, but that of his wife was dated the 
28th of October. This is explained by both Salisbury and 
Carson to be on account of having to take the applica- 
tion to his wife and have her sign it in person, which 
was required by Mr. Carson ; it caused a delay of a few 
days. There applications were sent in to the plaintiff. 
About the 14th of November a policy on the life of 
Mrs. Salisbury was sent to Carson somewhere in 
Illinois, and he in turn sent it to Salisbury about No- 
vember 20th. On the application of Elijah Salisbury no 
policy was issued, because of an unfavorable result in 
the analysis of his urine. The matter was held up for 
further examination. It appears that his application was 
not definitely declined, but subsequently he was urged 
to submit to further examinations and undergo a special 
diet for the purpose of making a proper test. This 
delay and uncertainty in his application figured very 
materially in the subsequent negotiations between the 
parties. 

On the 22lid of November Salisbury and his wife, 
Jiaving policies of the several insurance companies be- 
fore them, went over the entire matter for the purpose 
of deciding the contest, and finally, on the 23rd of No- 
vember, they decided to accept the policies of the Cent- 
ral Life Insurance Company of Illinois. In the mean- 
time, however, Salisbury had so far committed himself 
with reference to the American Central that that com- 
pany treated the policy as delivered and the contract 
as closed. It was said by respondent's counsel in oral 
argument before the court that each of these companies 
had recognized its liability and had paid ten thousand 
dollars on the life of Mrs. Salisbury. 

On the 8th of December, Carson had a telephone 
conversation with Salisbury, telephoning from Quincy, 
Illinois. He testified that he then urged Salisbury to 
go before certain doctors whom he named for the pur- 
IK>8e of further examination, and Salisbury promised to 
do so. Salisbury testified that he told Carson at that 
time he had not accepted the policy on his wife and that 



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46 SUPKEME COUKT OF MISSOURI. 

Ins. Co. V. Salisbury. 

Carson requested Salisbury to give him another chance 
and urged him to send another sample of urine for 
examination, which he agreed to do. Carson swore he 
had no conversation with Salisbury after the applica- 
tions were received except the telephone conversation 
of December 8th, until January 14, 1915. Salisbury swore 
that he had two other conversations with Carson — one 
between November 23rd and December 8th, and the 
other between December 8 and December 23. 

When the policy on the life of Mrs. Salisbury was 
sent to Salisbury on November 20th, Carson enclosed 
a receipt for her to sign. This receipt was retained by 
Salisbury until December 23rd, when he mailed it to 
Carson at St. Louis, with a letter. Several letters be- 
tween the parties appear in the record. 

On the 31st day of December Mrs. Salisbury was 
shot through the chest. All the evidence in relation to 
il indicates that the shooting was accidental. She died 
February 10th, following. There is some evidence tend- 
ing to show that she improved for a while after she 
was wounded, and that her death was immediately caused 
by a fall from a window, while walking in her sleep, 
but while she was still suffering from her wound. 

After Mrs. Salisbury was shot the only conversa- 
tions between the principal witnesses, Carson and Salis- 
bury, relate to an endeavor on the part of the company 
to recover the policy on her life which was in the posses- 
sion of Salisbury. Carson was ordered to recover the 
policy and cancel it, and Salisbury, after putting hira 
off with several excuses, finally refused to give it up. 
Salisbury and Carson agreed that they had a con- 
ference on January 14th, and again on January 21st or 
27th, or probai'Jy on both of these dates. The letters 
mentioned and these various conversations will be 
considered more fully in discussing the question whether 
the minds of the parties met. 

I. Appellant claims it was never the intention of 
Salisbury to accept the policy of his wife unless he 



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VoL 279 APEIL TERM, 1919. 47 



Ins. Co. ▼. Salisbury. 



should also receive a policy on his own life; it was 
upon that condition that he received a policy 
AccS^ci ^^^ examination and such condition was never 
complied with. Also, a contemplated agency 
for the company on the part of Salisbury entered into 
the negotiations; it will be necessary to inquire how 
far his appointment as an agent was conditioned on 
his taking the poUcy. Mrs. Salisbury had nothing to 
do with any of the negotiations at any time, and all of 
the conversations and negotitations relating to the 
matter which took place were between Salisbury and 
Carson. 

It is certain that in the beginning Salisbury had de- 
termined to take out only one policy on his own life and 
one on the life of his wife, both to be in one company. 
He began his investigations with that intention, and that 
was the understanding he had with all the agents, in- 
cluding Mr. Carson, agent for the plaintiff here. It re- 
mains to determine whether there was a change in that 
intention communicated to the plaintiff's agent. 

It is certain that on November 23rd he accepted 
the policy of the Central Life of Illinois and never at 
any time rescinded or attempted to rescind that ac- 
ceptance. There is no evidence in the record to show 
that he ever attempted to deny a completion of the 
contract with that company. He did have a dispute with 
the agent of the American Central and refused to ac- 
cept the policy which had been delivered to him for in- 
spection, when the agent threw it down on the table and 
said it was Salisbury's policy and walked out. Salis- 
bury afterwards retained that policy, but whether he 
reconsidered his determination to decline it before his 
wife was shot is not shown. So he was bound by two 
policies of $10,000 each on the life of his wife before 
he claims to have accepted plaintiff's policy. 

Carson swore positively that Salisbury ''said he 
thought he and his wife would like to take ten thousand 
dollars each, but that he was not going to take ten 
thousand dollars on his wife unless he taken that much 



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48 SUPREME COURT OF MISSOURI. 

Ins. Co. y. Salisbury. 

on himself and he was not going to take that mnch 
on himself unless he taken the same amount on his 
wife, but that if I cared to take his application and 
submit it with the understanding that he would not have 
to take either policy, the one issued on his own life and 
the one issued on his wife's life, unless both his wife's 
policy and his policy were issued, or in other words 
he would not take either policy unless both were issued.'' 

Car son,, on acknowledging the receipt of the ap- 
plication on October 28, wrote Salisbury calling 
attention to the desirability of an agency for Salisbury 
and said: *' Shall be pleased to go into that proposition 
with you when your' policies are issued, and shall then 
bring them over myself and talk things over." 

Salisbury said his first interview with Carson was 
on the 20th of October; that with some reluctance, 
after Carson had urged the matter of agency on him, he 
finally, on the 22nd of October, decided to "let him in 
on the contest as I had the others." In answer to 
the question, *'What was said about your wife's policy!" 
he testified that there was some question about his in- 
surability on account of a weak ankle and he said to 
Carson, **Now, in case my application was turned down 
on that it would be a serious point against them be- 
cause I was not going to take the policies in two com- 
panies." Salisbury again testified in speaking of the 
conversation he had with Carson between the 23rd of 
November and the 8th of December, that he told Carson 
if he decided to take his policy, *'that I was not going 
to consider writing insurance when I decided on the 
policy," definitely eliminating at thai time all question 
of the agency as a part of the agreement. 

In Salisbury's mind, his possession of the policy on 
the life of his wife was for inspection only, for in speak- 
ing of the telephone conversation of the 8th of De- 
cember when Carson called him up from Quincy, 111., 
he says: **I told him [Carson] I had not accepted the 
policy, but that it was a pretty close decision between 
the Central Life and the Missouri State." Then he 



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VoL 279 APEIL TERM, 1919. 49 

Ins. Co. y. Salisbury. 

added that Carson asked him to reconsider and give 
him another chance, and continued: ''And I finally 
agreed to give him another chance, and he said for me 
to send another sample of urine to the home office, he 
wanted them to have another chance, they were holding 
it up on that account, and he told me they had re- 
quested several samples and none had come/^ 

This indicates that in Salisbury's mind the two 
policies should go together in one company; that his 
own physical eligibility must first be determined and 
his insurability approved by the company before he 
decided on a policy for his wife. He then relates an- 
other conversation he had with Carson about the 15th 
of December (Carson denies that they had any conver- 
sation at that time), and says Carson drove over from 
Greencastle in a car and again urged Salisbury to take 
an agency for the company, painting in rosy hues the 
profits which he might earn in that way. He told Carson 
that he was getting eight hundred dollars a year in 
teaching school and that he could get twelve hundred 
dollars away from home, Carson attempted to show 
him how he could earn enough money in the insurance 
business to pay his premiums with ease ; he told Carson 
at that time he was not sure he would take his insurance, 
and Carson says: ''How can you take this jobf "I had 
told him I would have all the insurance I wanted. He 
says, 'You cannot write life insurance for our company 
and hold your insurance in another company,' and I 
told him I would have to tell him 'no.' '' He said further 
to Carson, "Your company is not issuing my policy,'' 
Then followed some discussion about the sample that 
should be sent for examination. Carson at that time, 
Salisbury says, attempted to show him that he could 
carry more than ten thousand dollars by taking an 
agency for the company. The conversation ended by 
his saying that he would talk it over with his wife and 
write Carson what he decided. This conversation about 
December 15th which Salisbury relates and which 
Carson denies took place shows that he had not abandon- 

4—279 Mo. 



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50 SUPREME COURT OF MISSOURI. 

Ins. Co. ▼. Salisbury. 

ed his determination to have two policies in the same 
company, one for himself and one for his wife; there 
is nothing there to indicate that the two policies could 
be separated. At this conversation the prospective 
agency definitely entered into the consideration, and 
what he was going to see his wife about was whether 
he should take the insurance and acquire the agency. 
He testified that then he decided to take the agency, 
and begin the first day of May. He says that Carson 
urged him to go into the life insurance business and 
he would be able to carry twenty thousand dollars in- 
stead of ten. At this time, according to his story, 
Carson was endeavoring to have him take the one on 
his wife, whether he succeeded in getting his own 
policy through or not, showing how he could make an 
argument to a prospective customer, that he had a 
policy on his wife, but the company would not write 
one on him, because he was not a sufficient risk. There 
was nothing said at that time to indicate that he was 
willing to accept the policy on his wife's life without 
one on himself. It is certain that up to that time the 
minds of the parties had not met on the contract. 

Salisbury swore that he definitely accepted the 
policy by sending in the receipt for it on December 23rd. 
It will be remembered that when the policy was sent to 
him on the 20th of November a receipt was enclosed 
which his wife was to sign for the policy. The receipt 
was returned December 23rd, with a letter. The argu- 
ment here is that that was the time when he decided to 
accept unconditionally the policy on his wife's life, 
and that letter the rueans by which he communicated 
that decision to the company. The letter is as follows : 

Green Castle, Mo.» Dec. 23, 1914. 
Mr. C. M. Carson, St. Louis, Mo. 

Friend Carson: Just received your letter to-day and am won- 
dering what is the matter that we can't get things together. Dr. 
Parsons teUs me he sent that sample to you as I agreed by phone 
to have him do. I don't understand this failure. 

I am inclosing receipts for the policy already issued and if 
you will make settlement with the Co. and let me huy that one 
and mine, on the terms offered me tohen you were here, it will he 



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Vol. 279 APEIL TERM, 1919. 51 



Ins. Co. ▼. Salisbury. 



all right tcith me and we can fix our deal up tohen you bring 
my policy to me. 

If you don't get that sample from Parsons very soon I will 
have Dr. Taylor try his hand at it as I want it to go sure, and 
Tery much oblige, 

Yours very respectfully, 
12-28-14 E. H. Sausbury. 

If Salisbury intended to accept the policy of his 
wife unconditionally he not only did not say so, but 
his letter shows 4hat two conditions, were still in his 
mind which must be complied with before it would be 
accepted. He wondered why **we can't get things to- 
gether,'' indicating there was no agreement on anything; 
this is said in connection with the mention of his efforts 
to get his own application acceptable. He mentions the 
enclosed receipt for his wife's policy and speaks of a 
settlement so that it would let him ''buy that one and 
mine.'* This negatives the idea that he had already 
bought "that one'' and shows he still associates the 
two together, that he did not want "that one^^ without 
"mine/' Then he added another condition: "on the 
terms offered me when you were here." That refers 
to insurance agency. On those two conditions ''we can 
fix our deal up when you bring my policy to me." The 
letter is filled with concern about the tests in his own 
case, and he hardly could have used language to make 
clearer his determination to have two policies and the 
agency or none. 

On cross-examination Salisbury had this to say 
about that letter and his intention at the time : 

''Q. Now, you declined, did you not, to fix up the 
deal with him until he brought your policy ; I mean the 
policy issued payable to you as the insured? A. I did 
not decline that exactly. We could not very ha^ndy ar- 
range an agreement of that kind, because there was a 
dovhle agreement. My policy and the settlement was 
going to be a little different, according to his proposition, 
and I wanted to wait and have it fixed up right. I 
wanted to wait until we found out what was going to 
become finally of my policy, and then we would know 
which fioUcy to take." 



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52 SUPREME COURT OF MISSOURI. 

Ins. Co. V. Salisbury. 

This shows conclusively that in his own mind he 
did. not definitely or unconditionally accept his wife's 
policy when he sent in the receipt. 

On December 28lh Carson acknowledged the receipt 
of Salisbury's letter of the 23rd, in a letter as follows: 

12-28-14 

Mr. E. H. Salisbury, 
Green Castle, Mo. 

Dear Mr. Salisbury: Yours of Dec. 23 — ^Just this date reached 
me here. 

Hustle up and go before Dr. Taylor, as that other sample 
must have not reached Company. Take prepared meal of Carmel 
Candy (prepared by Dr. Taylor) ft let him send Company sample 
of urine. 

Please hust}e this through as I must get this through by Jan. 
1st in time for an. report see 7 

Am glad you have decided on our policies, for we certainly 
are placing some big cases recently. 

(next ad. Keokuk, Iowa.) Regards, 

C. M. CAB80N. 

It is argued by respondent that Carson's expression 
of pleasure because he had '* decided on our policies'' 
is conclusive on the plaintiff that the matter had been 
closed. 

There is no warrant for that inference from the 
letter. That expression merely indicates that Carson 
thinks Salisbury has decided that the form of policies in 
his company are what he wants in preference to poli- 
cies in other companies, but the conditions on which 
he would accept the one had not been met. His own 
must be issued. In that letter Carson is trying to hurry 
Salisbury with his test, so that he could pass the exam- 
ination. 

On the same day Carson wrote a letter to Mr. 
Donnelly, assistant secretary of the company, to which 
he added a post script referring probably to the re- 
ceipt, saying: '*P. S. Please see that this & her husband's 
policies are issued at earliest possible moment & mail 
to me — ^as this was written in strongest competition and 
it means other bis. C. M. C." This indicates still that 
Carson understood that Salisbury would not accept 



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Vol. 279 APEIL TERM, 1919. 53 

Ins. Co. ▼. Salisbury. 

the policy on his wife^s life unless he received one on 
his own also, and he was trying to get Salisbury's 
application through. 

There was no further conversation or communica- 
tion between the parties in relation to the matter until 
after Mrs. Salisbury was shot, December 31st. There 
is nothing here to show that Salisbury had ever receded 
from his first intention to have a policy on his own life 
and on that of his wife in the same company. Carson 
evidently so understood it. 

Salisbury testified quite volubly about the agency 
matter, about the different propositions which Carson 
made him with reference to it, and it might be inferred 
from his testimony of those different conversations 
that he intended to accept the agency on the terms 
mentioned by Carson, but it does not appear anywhere 
that he intended to take the agency on those terms 
independent of securing both insurance policies. 

After his wife was shot it appears to have entered 
Salisbury's mind that he could afford to carry much 
more insurance than he had thought himself able to 
shoulder before that time. He had already concluded 
his arrangement with the Central Life, and the American 
Central was so committed that it could not withdraw 
from the arrangement, and both of these he seems to 
have cinched. Now he wanted to carry another ten 
thousand dollars with the plaintiff. His optimism mount- 
ed with his wife's declining health. But he never did 
decide to accept the policy on the life of his wife until 
after the company had decided to withdraw it, and 
declared the entire negotiation off. Carson made a 
visit to Salisbury's home about the 14th of January 
for the purpose of getting the policy. Both he and 
Salisbury testified that the conversation was inconclu- 
sive. Salisbury offered some excuse ; the policy was not 
there; it was in his trunk and he hadn't the key. By 
his own testimony he did not definitely declare then 
that he intended to retain the policy. He did so declare 
later. 



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54 SUPREME COURT OF MISSOURI. 

Ins. Co. V. Salisbury. 

About the 21st of January, Carson attempted to 
bring the matter to a conclusion with him, but Salis- 
bury refused to talk except in the presence of witnesses. 
He had employed counsel by that time. Carson also 
employed an attorney, and they had a conversation in 
the presence of witnesses, and their respective attorneys 
on the 27th of January. At that time Salisbury swore he 
said to Carson: *'I told him if he would give me this 
office and give me this corps of men and give me a 75 
per cent accredited contract, five per cent , on renewals 
and ten per cent on the new ones that came through 
this office, that I would surrender the policy at the 
end of the year." Carson refused to accept the pro- 
position. Thereupon Salisbury tendered $315, the amount 
of the first semi-annual premium on his wife's policy, 
and Carson refused to receive it. 

The policy refers to the application as a part of 
the contract and contains this stipulation: '^This policy 
and the application herefor constitute the entire con- 
tract." The application has this clause: '*6. That the 
insurance hereby applied for shall not take effect unless 
the first premium is paid and the policy delivered to 
and accepted by me during my lifetime and good health." 

This court has held, in the case of State ex rel. v. 
Robertson, 191 S. W. 989, that inconclusive negotiations, 
such as this, do not constitute an insurance contract. 
This court said: *'A proposition presented by the one 
must be accepted by the other in the form tendered; 
and if the acceptance omits, add to or alters the terms 
of the proposition made, then neither party to the 
negotiations is bound. So long as any element of the 
proposition is left open, the contract is not complete 
and of course is not binding on anyone," citing several 
cases. 

On the authority of that case it is impossible to con- 
clude that the policy tendered by the company was 
ever accepted unconditionally during the good health 
of Mrs. Salisbury, or that the company understood 
that it was accepted, or acceptable except upon the 



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Vol. 279 APRIL TERM, 1919. 55 



Ins. Co. ▼. Salisbury. 



condition prescribed by Salisbury, which could not be 
met. 

n. Another reason why the contract was never com- 
pleted was because the first premium was not paid nor 
tendered during the good health of Mrs. 
rSTpre^um. Salisbury, as required by the stipulation 
in the application quoted above. 

A stipulation of that character, requiring the pay- 
ment of a first premium in advance as a condition upon 
which the policy was to take effect, is always recogniz- 
ed and enforced by the courts. The policy, in such case, 
is not effective until that condition is complied with. 
[KilcuUen v. Life Ins. Co., 108 Mo. App. 61 ; Walling- 
ford V. Home Mut. Fire Ins. Co., 30 Mo. 46 ; Ormond v. 
Ins. Co., 96 N. C. 158; Bowen v. Mutual Life Ins. Co., 
104 N. W. 1040.] 

The respondent claims in this connection that the 
policy itself recites that payment of the first premium 
was made, and therefore the appellant could not dis- 
prove that recital. It is held, where a policy acknowl- 
edges the receipt of the first premium, that such receipt 
might be disputed for some purposes as any other re- 
ceipt, but that the payment of the first premium, as 
recited, could not be disputed for the purpose of invali- 
dating the instrument. It is analagous to the recital 
of the payment of consideration in a deed ; such a recital 
may be proven by parol to be erroneous, but it is not 
permitted to show a want of consideration for the pur- 
poses of controlling the operative words of the instru- 
ment, and thereby defeat it as a contract. [Dobyns v. 
Bay State Ben. Assn., 144 Mo. 95, 1. c. 109.] That, 
however, applies to cases where the receipt of the 
payment is specifically acknowledged. The policy in this 
case recites as follows: 

"Consideration— This insurance is granted in con- 
sideration of the application herefor, a copy of whch 
is attached hereto and made a part hereof, and of the 
payment in advance of $312.70, being the premium for 



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56 SUPEEME COURT OF MISSOURI. 

Ins. Co. V. Salisbury. 

the first year's insurance under this policy ending on 
the 11th day of November, 1915, which is term in- 
surance.'' 

That recital is not a specific acknowledgment of 
payment; it merely states what the first payment shall 
be as consideration for the issuance of the policy, 
A similar recital in an insurance policy was held by the 
Kansas City Court of Appeals to be not an acknowl- 
edgment of payment. [Dircks v. German Ins. Co., 34 
Mo. App. 1. c. 41.] There was a like holding by the Spring- 
field Court of Appeals in Lyke v. American National 
Ins. Co., 187 S. W. 265. The respondent cites the case 
of Halsey v. Ins. Co., 258 Mo. 659. It is against his 
contention. The policy in that case was dated May 31, 
1906, and purported to go into effect from that date, 
but the first payment was not paid until June 5th, and it 
was held that the policy did not go into effect until 
June 5th. 

The policy on the life of Alpha 0. Salisbury never 
went into effect for the reason that the first premium 
was never paid nor tendered during her good health. 
It was tendered after she was shot, and when the 
company was demanding the return of the policy. 

There is a suggestion in respondent's brief that 
the payment of the first premium in advance was waived. 
On December 22nd, just the day before the letter of 
Salisbury was written in which he sent in the receipt, 
Carson wrote to him urging him to try the special diet 
prescribed for the purpose of making test as to his con- 
dition, and said in that letter that he would try and 
*'get you through," adding, **if not then it will be 
necessary to either return your wife's policy or remit 
at least 30 per cent of the premium at once as to go in 
our annual reports." This was a reference to a re- 
duction of the first premium by 70 per cent if he took 
the agency. It shows the stipulation was not waived. 
There is no evidence of a waiver. 

The judgment in favor of defendant on plaintiff's 
cause of action and the judgment on the defendant's 



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Vol 279 APEIL TEEM, 1919. 57 



Wells Y. Wells. 



counterclaim is reversed, and the cause remanded with 
directions to the trial court to enter judgment in favor 
of the plaintiff as prayed in the petition. 

PEE CUEIAM:— The foregoing opinion by White, 
C, is adopted as the opinion of the court. AIL of the 
judges concur. 



ELIZABETH WELLS et al. v. JAMES B. WELLS et 
al.; OEVILLE UPSON, Appellant. 

Division Two, July 6, 1919. 

1. JUBISDIOnON: ColUteral Attack: Betnm in Another Case. In a 
partition suit a defendant, whose interest in the land was sold 
upon execution under a default Judgment rendered in another 
circuit court, has the right to offer the sheriff's return in that case 
in evidence, for the purpose of showing that the court did not ac- 
quire jurisdiction over the persons of the defendants therein, be- 
cause of insufficient service of the summons. 

2. : Sherlif's Betum: Words Understood. If the sheriff's re- 
turn recites that he left a copy of the writ and petition "with a 
person family" of said defendants, the words "of the" will be 
understood between "person" and "family," so that it would read 
••with a person of the family" of defendants. 



: : Service UiK>n Husband and Wife. If the defendants 

are husband and wife, and cannot be found in the county, it Is 
proper for the sheriff to leave a copy of the petition and writ, and 
a copy of the writ, "with a person of the family" of said de- 
fendants, at their usual place of abode, over fifteen years of age. 
One such person. In contemplation of the statute, represents both 
defendants. 



: : : Copies for Each. Where the defendants 

are husband and wife and cannot be found, the leaving of copies 
of the petition and writ for one, and a copy of the writ for the 
other, with some person of the family of said defendants, over 
fifteen years of age, at their usual place of abode, is all that the 
statute requires. If it could be construed to require such person 
to deliver a copy of the petition and writ to the first party served, 
and a copy of the writ to the other, still, in the absence of 
evidence to the contrary, it will be presumed that both the 
sheriff and said person did their duty. 



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58 SUPREME COURT OF MISSOURI. 

Wells V. Wells. 

5. : The Return Adjudicated. The sheriff's return recited: "I 

hereby certify that I executed the within writ in Lincoln County, 
Missouri, on 26th day of September, 1907, by leaving a copy of the 
writ and petition and a copy of the writ with a person family of 
said Emeline M. Wells and James B. Wells at their usual place of 
abode over the age of fifteen years/' Held, sufficient to uphold 
a default judgment. 

Appeal from Montgomery Circuit Court. — Hon. J. D. 
Barnett, Judge. 

Affibmed. 

Sutton & Huston, H. W. Johnson and A. H. Drunert 
for appellant. 

(1) The sheriff's return upon the summons in 
Farmers & Mechanics Savings Bank v. Emeline M. 
Wells and James B. Wells does not show that a copy of 
the writ and petition was left at the usual place of 
abode of the first party summoned with a person of the 
family of such party, and does not show that a copy 
of the writ was left at the usual place of abode of the 
party subsequently summoned with a person of the 
family of such party, and such return is* wholly in- 
suflScient to support a default judgment. Gamasche 
V. Smythe, 60 Mo. App. 163, 165 ; Madison County Bank v. 
Suman, 79 Mo. 531; Laney v. Garbee, 105 Mo. 359; 
Blanton v. Jamison, 3 Mo. 53 ; Stewart v. Stringer, 41 
Mo. 404; Colter v. Luke, 129 Mo. App. 706; Rosen- 
berger v. Gibson, 165 Mo. 23 ; Smith v. Rollins, 25 Mo. 
408; Nathan v. Oil Co., 187 Mo. App. 564; Nelson 
V. Railroad Company, 225 111. 197, 205; Bimeler v. 
Dawson, 4 Scam. (111.) 431; Bicknell v. Herbert, 20 
Hawaii, 132, 233 U. S. 70; Thomas v. Thomas, 96 Mo. 
223; Harris v. Hardeman, 14 How. (U. S.) 334; Berry- 
hill V. Sepp, 106 Minn. 458; Enewold v. Olsen, 39 Neb. 
59; Harness v. Cravens, 126 Mo. 247, 249; Real Estate 
Company v. Catering Company, 175 Mo. App. 684, 267 
Mo. 340; State ex rel. Coleman v. Blair, 245 Mo. 680; 
South Missouri Pine Lumber Co. v. Carroll, 255 Mo. 



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Vol. 279 APBIL TERM, 1919. 59 



WeUs V. WellB. 



357; Orchard v. Smith, 193 S. W. (Mo.) 578; Slocomb 
V. Bowie, 13 La. 10; Fuller v. Caldwell, 3 Minn. 117; 
Hickman v. Barnes, 1 Mo. 156; Sweet v. Sanderson 
Brothers Steel Co., 6 Civ. Proc. R. (N. Y.) 69; Taylor 
V. Pridgen, 3 Wilson, Civ. Cas. Ct. App. sec. 89; Sec. 
1760, E. S. 1909. (2) The return not showing actual 
service upon the first party summoned, by a delivery to 
such party in person of a copy of writ and petition, con- 
stmctive service of the party subsequently summoned 
was not authorized by the statute except by delivery 
of a copy of both the writ and petition, and the return 
is on this ground wholly insuflScient to support a de- 
fault judgment. Sec. 1760, R. S. 1909, 

John L. Burns for respondents. 

(1) The service of writs in case of Farmers and 
Mechanics Savings Bank against Emeline M. Wells 
and James B. Wells was personal service. Mattocks v. 
Van Asmus, 180 Mo. App. 404, 406. (2) The return in 
question clearly shows that a copy of the petition and 
writ and a copy of the writ were duly and properly 
served, and that there was a substantial compliance with 
the statute. Collier v. Lead Co., 208 Mo. 269; State 
ex rel. v. Still, 11 Mo. App. 283; Howard v. Still, 14 
Mo. App. 583; Abies v. Webb, 186 Mo. 246; Scharff 
V. McGaugh, 205 Mo. 353. (3) The sheriff's return 
should be given a reasonable construction. Collier v. 
Lead Co., 208 Mo. 269; Abies v. Webb, 186 Mo. 246; 
Dunham v. Wilf ong, 69 Mo. 355 ; McMillon v. Harrison, 
29 L. R. A. (N. S.) 946; Keith Bros. v. Stiles, 92 Wis. 
19; Davis v. Jacksonville Line, 126 Mo. 76; Phillips 
v. Evans, 64 Mo. 17; Great Northern Hotel Co. v. Far- 
rand, 90 111. App. 314; Cloyes v. PhUlip, 149 S. W. 
549; Bruce v. Cloutman, 45 N. H. 37. (4) It is pre- 
sumed that public officers perform their duties right- 
ly and properly. Collier v. Lead Co., 208 Mo. 272; 
State ex rel. Wilson v. Mastin, 103 Mo. 508; Hammond 
V. Gordon, 93 Mo. 233; Adams v. Cowles, 95 Mo. 501; 



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60 SUPREME COURT OF MISSOURI. 

Wells V. Wells. 

Evans v. Robberson, 92 Mo. 198; Owen v. Baker, 101 
Mo. 407. (5) Defect, if any, in the sheriff's return 
is cured by the Statute of Jeofails. Sees. 2119, 2120, 
R. S. 1909; Muldrow^v. Bates, 5 Mo. 214; Weil v. 
Simmons, 66 Mo. 619; Blaisdell v. Steamboat, 19 Mo. 
157; 'Toole v. Lowenstein, 177 Mo. App. 662; Crouch- 
on V. Brown, 57 Mo. 38. (6) The recital in the judgment 
that both defendants were legally served is conclusive 
upoji the parties in a collateral proceeding, Hardin 
V. Lee, 51 Mo. 245; Dunham v. Wilfong, 69 Mo. 358; 
Thompson v. Chicago S. F. Ry. Co., 110 Mo. 147; Free- 
man on Judgments, sec. 130; Adams v. Cowles, 95 Mo. 
501; Draper v. Bryson, 71 Mo. 71; Jones v. Bibb 
Brick Co., 120 Ga. 321; Leonard v. Sparks, 117 Mo. 
103; State ex rel. Kenamore v. Wood, 155 Mo. 470. 
(7) A broad distinction is drawn between cases where 
there is no service on defendant and those in which 
service is in some respect deficient or irregular. In the 
latter cases jurisdiction attaches subject to be de- 
feated by objections to the irregularity interposed in 
season in some direct manner. Leonard v. Sparks, 
117 Mo. 109; State ex rel. Kenamore v. Wood, 155 
Mo. 470; Ellis v. Nuckols, 237 Mo. 290; Conners v. 
St. Joe, 237 Mo. 612; Jasper Co. v. Wadlow, 82 Mo. 
172; State v. Wear, 145 Mo. 194; Cruzen v. Stephens, 
123 Mo. 337; Freeman on Judgment, sec. 126. 

RAILEY, C. — This is an action for the partition 
of 240 acres of land in Montgomery County, Missouri. 
The original petition was filed March 18, 1914. On 
January 2, 1915, an amended petition was filed, and 
upon which the cause was tried. After describing the 
land, the petition alleges that L. B. R. Wells, deceased, 
by his last will devised said real estate to his wife, 
Mary S. Wells, for life, with remainder to his grand- 
children, AUce Dothage, W. S. Wyatt, Frank R. Wyatt, 
Harry D. Wyatt and Mary E. Wyatt, and his children, 
James B. Wells, John T. Wells, Elizabeth Wyatt, Alice 
McCune, and Martha Wyatt, subject to advancements, 



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Vol. 279 APBIL TERM, 1919. 61 

Wells V. Wells. 

the grandchildren taking one share between them and 
iLe children taking each one share; that said James B. 
Wells conveyed his undivided one-sixth interest in said 
real estate to James M. McLellan; that said McLellan 
died testate, and by his will devised said one-sixth in- 
terest to Emeline Wells ; that on April 25, 1914, Emeline 
Wells and James B. WeUs, her husband, conveyed said 
undivided one-sixth interest to Orville TTpson, said deed 
being filed for record July 21, 1914; that on May 1, 
1914, W. H. Verser, sheriff of said county, conveyed 
by sheriff's deed to Charles Martin, trustee, all the 
right, title and interest of Emeline Wells and James 
B. WeUs in and to said real estate, under an execution 
against them, which said deed was recorded in said coun- 
ty; that the plaintiffs and defendants are seized as 
tenants in common of said real estate; that the latter 
is not fifusceptible of partition in kind, and that the plain- 
tiflf, Mary S. Wells, consents that the lands be sold 
for the purposes of partition; and prays that the court 
will declare and determine the title to said real estate, 
adjudge partition and sale of same, and order distribu- 
tion of the proceeds of said sale amongst the parties 
according to their respective rights and interests. 

On January 25, 1915, Charles Martin, trustee, filed 
an answer to the second count of said amended peti- 
tion, and after practically admitting the general title 
as alleged in the petition, except as hereafter stated, 
claimed to be the owner of said one-sixth interest in 
said real estate by virtue of the sheriff's deed afore- 
said. He alleges that said deed is predicated upon an 
execution, which was based on a judgment rendered 
October 16, 1907, in the Lincoln County Circuit Court, 
in favor of the Farmers & Mechanics Savings Bank, 
against Emeline M. Wells and James B. Wells, for 
$686.50 debt and $8.80 costs, etc. The answer denied 
every other allegation in said second count of the peti- 
tion. 

Orville Upson, on April 27, 1915, answered and 
alleged therein that the interest owned by James B. 



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62 SUPREME COURT OF MISSOURI. 

Wells V. WellB. 

Wells, in the estate of his deceased father, which is 
sought to be partitioned in this cause, was by said 
James B. Wells and wife sold and conveyed to James 
B. McLellan; that afterwards, the latter, by his will, 
devised said real estate to Emeline Wells; that the 
latter and her husband conveyed said property to de- 
fendant Orville Upson, who claims to be the owner of 
same, and denies that said bank, or Charles Martin, 
as trustee, has any interest therein. 

Charles Martin, trustee, at the trial, offered in evi- 
dence the sheriff's deed aforesaid, dated May 1, 1914, 
purporting to convey to him, as trustee, the interest 
in said land of Emline M. Wells, and James B. Wells. 
Orville Upson objected to said deed, on the ground that 
the Circuit Court of Lincoln County had no jurisdiction 
or authority to render the judgment upon which exe- 
cution was issued and said real estate was sold. This 
objection was overruled and an exception saved. 

Orville Upson then introduced in. evidence a certi- 
fied copy of a petition entitled, ** Farmers and Mechanics 
Savings Bank, Plaintiff, v. Emeline M. Wells and 
James B. Wells, Defendants.'' The suit was based on 
a note for $2500. There was a credit on said note, 
dated January 14, 1907, far $1450, and a further credit 
of $600 thereon, dated February 21, 1907. The summons 
offered in evidence, was in usual form, and directed the 
sheriff to summon Emeline M. Wells and James B. 
Wells. The sheriff's return was offered in evidence, and 
reads as follows: 

I hereby certify that I executed the within Writ in Lincoln 
County Missouri on the 26th day of September, 1907, by leaving a 
Copy of the Writ and petition and Copy of the Writ with a person 
family of said Emeline M. Wells and James B. Wells at their usual 
place of abode over the age of fifteen years. 

J. W. Gentry, 
Sheriff of Lincoln County, Mo. 

A default judgment was rendered on May 16, 1907, 
based on the sheriff's return aforesaid, and in which the 
bank is named as plaintiff and Emeline M. Wells and 
James B. Wells are named as defendants. 



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Vol. 279 APRIL TERM, 1919. 63 



Wells V. WellB. 



Orville Upson also introduced in evidence a . deed 
from James B. Wells and Emeline M. Wells, to 
James M. McLellan for the land aforesaid, dated 
July 11, 1908. The same defendant also offered in 
evidence the last will of James M. McLellan in which 
the above land was devised to his daughter, Emeline 
M. Wells. He further introduced in evidence the deed 
of Emeline M. Wells and James B. Wells, her husband, 
to himself, dated May 7, 1914. 

The trial court found the issues against Orville 
Upson, and in favor of Charles Martin, trustee, and so 
entered as a part of its decree. Orville Upson filed 
his motion for a new trial, which was overruled and 
the cause duly appealed by him to this court. 

Charles Martin, trustee, died after the case was 
appealed to this court, and the action was duly revived 
in the names of his heirs, administrators and widow, 
to-wit, B. S. Martin, Charles S. Martin, Wm. C. Martin 
and Lucy C. Martin, heirs, Willie C. Martin, widow, and 
Willie C. Martin and Charles S. Martin, as administra- 
tors of the Charles Martin estate, who are now re- 
spondents and trustees for said bank. 

The case before us hinges on the sheriff's return in 
the case of Farmers & Mechanics Savings Bank, plain- 
tiff, V. Emeline M. Wells and James B. Wells, defend- 
ants, tried in the Circuit Court of Lincoln 
2^J^" County, Missouri, on the 16th day of October, 
1907, and in which a judgment by default was 
rendered in favor of the bank. If the return of the 
sheriff, supra, is held to b^ valid, it leads to an affirm- 
ance of the judgment. If, on the other hand, the return 
is held to be void, it will require the cause to be reversed 
and remanded. 

I. As this is a collateral attack, can it be legally 
held that the return aforesaid is void! 

Section 1760, Revised Statutes 1909, which was in 
force at the time of the rendition of said judgment, and 
the sheriff's return aforesaid, as a matter of convenience, 
a^e placed in parallel colrmns: 



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64 SUPREME COUET OF MISSOURI. 

Wells V. Wells. 

Section 1760. Sheriff's return. 

**A Summons shall be executed, "I hereby certify that I execut- 

except as otherwise provided by ed the within Writ in Lincoln 

law, either: First, by reading the County, Missouri on 26th day of 

writ to defendant and delivering September, 1907 by leaving a Copy 

to him a copy of the petition; or, of the Writ and petition and Copy 

second, by delivering to him a of the Writ with a person family 

copy of the petition and writ; or, of said Emeline M. Wells and 

third, by leaving a copy of the James B. Wells at their usual 

petition and writ at his usual place of abode over the age of 

place of abode, with some person fifteen years, 
of his family over the age of fif- "J. W. Gentry, 

teen years; ..." "Sheriff of Lincoln County, Mo.** 

a. It is manifest, that giving a plain and common- 
sense construction to the language of the return, the 
words **of the,'' should be construed as. understood 
between ''person," and ** family," [Section 8057, R 
S. 1909; Reid, Murdock & Co. v. Mercurio, 
WordT^ 91 Mo. App. 1. c. 679; Wolfe v. Dyer, 95 
Mo. 1. c 551; Nichols v. Boswell, 103 Mo. 
160; Thomson v. Thomson, 115 Mo. 1. c. 67-8; Presnell 
V. Headley, 141 Mo. 1. c. 191-2; Johnson v. Bowlware, 
149 Mo. 451; Briant v. Garrison, 150 Mo. 1. c. 667-8-9; 
Whitaker v. Whitaker, 175 Mo. 1. c. 10-11-12; McMahaa 
V. Hubbard, 217 Mo. 1. c. 637-8.] 

In discussing the legal effect of a constable's re- 
turn, GooDB, J., in Reid, Murdock & Co. v. Mercurio, 
91 Mo. App. 1. c 679, said: *' Appellant's contention 
of insuflScient service because the word it was left out 
of the return after the words by reading, will be dis- 
regarded as frivolous, the omission being obviously a 
clerical mistake." 

In Thomson v. Thomson, 115 Mo. 1. c. 67, Sherwood, 
J., speaking for Court in Banc, very clearly stated the 
principal of law which should apply in cases of this 
character, as follows: *'In relation to supplying words 
where it is obvious that from the words used and the 
general tenor and context of the instrument certain 
words of their substance have been omitted, such words 
may be supplied by construction." 

b. Treating the words '*of the," as havings been 
supplied between ** person" and ''familv,'* the return 
in question would read as follows: 



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Vol. 279 APRIL TERM, 1919. 65 



Wells V. Wells. 



I hereby certify that I executed the within writ 
in Lincoln County, Missouri, on 26th day of September, 
1907, by leaving a copy of the writ and petition and 
copy of the writ with a person of the family of said 
Emeline M. Wells and James B. Wells at their usual 
place of abode, over the age of fifteen years. 

It is vigorously contended by counsel for appel- 
lant that the return, with the words *'of the,^' inserted 
as above, is still void, and that the Circuit Court of 
, Lincoln County, Missouri, was without juris- 
^^^^^^ diction to render the judgment of 1907, in favor 



of the bank against Wells et al. It is insisted, 
that the return is void, because it **does not show that 
a copy of the writ and petition was left at the usual 
place of abode of the first party summoned with a person 
of the family of such party, and does not show that a 
copy of the writ was left at the usual place of abode of 
the party subsequently summoned with a person of the 
family of such party.'' . . . 

A large number of cases are cited under Proposi- 
tion 1 of Appellant's Points and Authorities, in sup- 
port of above . contention. Upon a close analysis of 
the cases cited, we do not find any of them directly in 
point, nor do they deal with the facts of this case. We 
will consider the Missouri cases, quoted from in appel- 
lant's brief: 

In Blanton v. Jamison, 3 Mo. 1. c. 53, the return 
read: "I served the within summons on Benjamin 
Blanton, the defendant, by going to his house and leav- 
iDg a true and attested copy of the summons and declara- 
tion with Lovel Harrison, a white person of said Blan- 
ton 's family, above fifteen years of age, on the 23d 
day of September, 1829, in Hurricane Township, Lincoln 
County." 

The above return failed to show, that the process 
teas left at defendant's dwelling house or place of abode , 
as required by the statute then in existence. In dis- 
posing of the subject. Wash, J., said: ** Every word of 
the return may be true, and yet the service may have 

5—279 Mo. 



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66 SUPREME COURT OF MISSOURI. 

Wells V. Wells. 

been made in a manner very different from that pre- 
scribed in the statute." 

In Stewart v. Stringer, 41 Mo. 1. c. 404-5, Wagner, J., 
in discussing the return under consideration, said : *'The 
service and return were both plainly irregular and de- 
fective. The writ purports to have been delivered, ac- 
cording to the return, to one person, a white member 
of the family of both defendants at one and the same 
time. Now a person cannot be a member of two families 
at the same time, and it appears that but one writ was 
left for the two defendants, when the statute con- 
templates that a separate writ should be left for each 
of the defendants last served." The return shows that 
one writ was left with William Stringer for two persons 
of different names. If the two defendants had been 
husband and wife, and a copy of the writ and petition, 
and a copy of the writ, had been left with William 
Stringer, there is nothing in the opinion of the court to 
indicate that the service would have been held invalid. 

In Madison County Bank v. Suman, 79 Mo. 1. c. 
530, cited by appellant, Philips, J., said: **The re- 
turn in this case recites: 'with a member of the family 
of the within named Elizabeth Suman, administratrix, 
over fifteen years of age, at her last usual place of 
abode in the county of Barton,' etc. This service is not 
in conformity with the statute. Her last usual place 
of abode might not be her present place of abode.'' 

In Laney v. Garbee, 105 Mo. 1. c. 359, there was 
only one defendant. The return did not show that the 
petition and writ were left **at the usual place of abode" 
of defendant. Of course it was held the return did not 
comply with the requirements of the statute. 

In Gamasche v. Smythe, 60 Mo. App. 1. c. 165-6, 
a foreign corporation was sued and Smythe was sought, 
to be charged as garnishee. The service on defendant 
corporation was challenged, as being insufficient. Rom- 
BAUER, J., on pages 165-6, in passing upon the return, 
said: *'It fails to show that the defendant had no 
office in this State, and does not state, either in direct 
terms or by unavoidable inference, that the sunmaons 



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Vol. 279 APRIL TERM, 1919. 67 



WellB V. WellB. 



was served upon an oflBcer or agent of the defendant in 
charge of any of its oflSces/* 

In Colter v. Luke, 129 Mo. App. 702, cited by ap- 
pellant, Johnson, J., held that a return of service on a 
member of the family, instead of on a person of the 
family, was good. 

Upon a careful consideration of all the cases cited 
by appellant, we do not find a single one, which, in 
our opinion, sustains appellant's contention, that the 
return before us is void, or that it does not substantially 
comply with Section 1760, Revised Statutes. 1909, 
heretofore quoted. 

c We have also carefully examined and fully con- 
sidered the cases cited in the brief of respondents, and 
aside from the general principles, discussed do not find 
that any of them in terms fit this case, although the 
general principles reviewed tend to support the validity 
of the return before us. 

n. While this is a collateral attack on the judgment 
of 1907, yet the defendant had the legal right to offer 
in evidence, as he did, the original return of the sheriff, 
in that case, for the purpose of determin- 
Attadt^ ^g whether the court acquired jurisdiction 
over the persons of Emeline M. Wejls and 
James B. Wells, under the service aforesaid, attempted 
to be made on them. 

In Thompson v. Pinnell, 199 S. W. 1. c. 1013, Divi- 
sion One, in discussing the question under considera- 
tion, said: *'It is equally as well settled in this State 
that in a collateral proceeding the record, judgment, and 
files of a case in the circuit court may be examined for 
flie purpose of ascertaining whether the court had 
jurisdiction of the person of defendant in said cause, 
and notwithstanding the judgment may assert, in general 
terms, that the defendant has been duly served with 
process, yet if it should appear from the return, or some 
other portion of the record of equal dignity, that the 
service actually had is invalid and no appearance en- 



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68 SUPEEME COURT OF MISSOURI. 

Wells V. Wells. 

tered, the judgment of said court may be declared void 
for want of jurisdiction over the person of defendant. 
[Cloud V. Inhabitants of Pierce City, 86 Mo. 357 ; Crow 
V. Meversieck, 88 Mo. 411; Milner v. Shipley, 94 Mo. 
109, 7^S. W. 175; Adams v. Cowles, 95 Mo. 501, 8 S. W. 
711, 6 Am. St. Rep. 74; Laney v. Garbee, 105 Mo. 355, 
16 S. W. 831, 24 Am. St. Rep. 391; Hutchinson v. SheUey, 
133 Mo. 412, 413, 34 S. W. 838; Norton v. Reed, 253 
Mo. 251, 252, 161 S. W. 842, and cases cited: Am v. 
Am, 264 Mo. 42, 173 S. W. 1062; Williams v. Gradier, 
264 Mo. 216, 174 S. W. 387; Levee Dist. v. Securities 
Co., 268 Mo. 663, 187 S. W. 855.]'' 

The authorities cited in the above case fully sus- 
tain the principles announced by the court. Hence, the 
default judgment rendered in favor of the bank against 
Mr. and Mrs. Wells, in 1907, hinges upon the validity 
of the sheriff's return aforesaid. 

III. As it appears from the record that Emeline 
M. Wells and James B. Wells were husband and wife, 
it was proper for the sheriff to leave the writ and peti- 
tion, and a copy of the writ, with a person of 
imd^Wfe. ^^^ family of Emeline M. Wells and James B. 
Wells, at their usual place of abode, over the 
age of fifteen years. This he did, as shown by the 
return before us. The sheriff performed his duty to the 
extent of his ability. The wife and her husband were 
to be served with process. He left with the person 
designated by statute, on whom service could be made, 
a copy of the writ and petition, for one of the defend- 
ants, and a copy of the writ for the other defendant. 
When this service had been performed, and the sheriff 
made his return in accordance with the facts, the court 
acquired jurisdiction over the persons of Emeline M, 
Wells and James B. Wells, whether they actually re- 
ceived the process or not. It would, in our opinion, be 
giving Section 1760, Eevised Statutes 1909, an impracti- 
cal and unreasonable construction, to require the sheriff, 
under the circumstances of this case, to state in his 
return any additional facts for the purpose of validating 



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Vol. 279 APRIL TERM, 1919. 69 



Clark V. Union Electric Co. 



same. The person designated by the statute to whom the 
sheriff was to deliver the process, represented, in 
contemplation of law, Emeline M. Wells and James B. 
Wells. 

IV. It is evident from the return before us, that a 
copy of the writ and petition, for one defendant and a 
copy of the writ for the other defendant, were left with 

the person designated by the statute on whom 
^rBach. Service should be made. Even if the statute 

should be construed to require the person to 
deliver to the first party served a copy of the writ and 
petition, and to deliver to the other defendant a copy 
of the writ, still, in the absence of evidence to the con- 
trary, it will be presumed, in this collateral proceeding, 
that both the sheriff and person did their duty. [Elrod 
V. Carroll, 202 S. W. 1. c. 5-6; Hartwell v. Parks, 240 
Mo. 543, and cases cited; Chlanda v. Transit Co., 213 
Mo. 1. c. 260-1; Yarnell v. Railway Co., 113 Mo. 1. c. 
579; Mathias v. O'Neill, 94 Mo. 1. c. 528; Lenox v. 
Harrison, 88 Mo. 491.] 

V. We have carefully considered the questions 
involved in this action, as well as the authorities cited 
upon each side. We are of the opinion, that the judg- 

ment of the trial court was for the right 
party. It is accordingly aflfirmed. White 
and Mozley, CC, concur. 

PER CURIAM:— The foregoing opinion of Railey, 
C, is adopted as the opinion of the court. All of the 
judges concur. 



CELIA CLARK, Appellant, v. UNION ELECTRIC 
LIGHT & POWER COMPANY. 

DiTiBlon Two, July 6, 1919. 
1. JOINT T0BTFEA80BS: Belease of One: Effect at Common Law. 
An instrument releasing one of several joint tortfeasors from 
liability for a tort, executed prior to the Act of March 23, 1915, 
Laws 1915, p. 269, is to be construed in the light of the common 
law as it existed in this Stat^ prior to the passage of said act, 
and under the common law a release of one Joint tortfeasor 
operated to release all of ther* 



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70 SUPREME COUF-T OF MISSOURI. 

Clark y. Union Electric Go. 



2. ; : : Covenant Not To Sue. Where the plain- 
tiff by written instrument does "hereby release and forever dis- 
charge" one joint tortfeasor "only from all suits, actions or 
causes of action which I have or might have against" said tort- 
feasor, a subsequent clause by which plaintiff "expressly refuses 
and declines to release" the other tortfeasor "from any claim for 
damages which I may have or might have against it" and whereby 
plaintiff "expressly reserves the right to enforce any and all 
claims that I may or might have against" said other tortfeasor 
did not destroy the release thus clearly made, but the instrument 
operated to release all the Joint tortfeasors. 

3. : : : : Bole. While the courts construe 

an instrument settling a claim for damages with one tortfeasor as 
a covenant not to sue wherever its language will permit, it can- 
not be so construed when it is clear from its unambiguous lan- 
guage that it was not intended as a covenant not to sue. 

Appeal from St. Louis City Circuit Court — Hon. WUr- 
liam A. Kinsey, Judge. 

Affibmeix 

Lashly & Barnett and George E. Egger for appel- 
lant. 

(1) The stipulation whereby plaintiff released her 
claim so far as the telephone company was concerned 
did not constitute such a technical release as would 
discharge the defendant, a joint tortfeasor, and should 
have been construed as a covenant not to sue. Ridenour 
V. International Harvester Co., 205 S. W. 883; Mc- 
Donald V. Goddard Grocery Co., 184 Mo. App. 432 ; Ar- 
nett V. Railroad Co., 64 Mo. App. 368; Lumber Co. v. 
Dallas, 165 Mo. App. 49 ; Dennison v. Aldridge, 114 
Mo. App. 700; Laughlin v. Powder Co., 153 Mo. App. 
508. (2) The stipulation should have been construed to 
be a covenant not to sue, and not a technical release 
such as would discharge a joint tortfeasor. The stipu- 
lation contained an express reservation of the right to 
sue the other joint tortfeasor, the defendant herein. 
In the case of such reservation, notwithstanding the 
fact that the instrument uses the word ''release'* iiie 



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Vol. 279 APRIL TERM, 1919. 71 



Clark y. Union Electric Co. 



instmment is not a release, but is a convenant not to 
sue the person released. Gilbert v. Finch, 173 N. Y> 
455; Feighley v. Milling Co., 100 Kan. 430; Eden v. 
Fletcher, 79 Kan. 139; Nickerson v. Surplee, 174 N. Y. 
139; Berry v. Pullman Co., 249 Fed. 816; Kropidlowski 
V. Pfister & Vogel Leather Co., 149 Wis. 421; Atchison, 
T. & S. Ry. Co. V. Classin, 134 S. W. 358; J. Rosen- 
baum Grain Co. v. Mitchell, 142 S. W. 121; El Paso 
& S. W. Ry. Co. V. Darr, 93 S. W. 169; Bloss v. Plymale, 
3 W. Va. 393; Matthews v. Chicopee Mfg. Co., 3 Rob. 
(N. Y.) 711; Carey v. Bilby, 129 Fed. 203; 34 Cyc. 
1085-1087. (3) It is quite apparent that it was the 
intention of the parties that the said stipulation should 
constitute a covenant not to sue and not a release. The 
instrument was entitled ''covenant not to sue.'' In the 
body of the instrument is found language to the effect 
that the plaintiff elected to take under a certain benefit 
insurance plan in lieu of prosecuting her action for dam- 
ages against the telephone company and further the 
instrument contains an express reservation of the right 
to sue this defendant. This certainly is suflScient to 
establish the intention of the parties not to sue and the 
instrument as not a release. 

Jourdan, Rassieur & Tierce for respondent. 

The writing, though called a ''covenant not to sue,*' 
was a release of a joint tortfeasor, and therefore the 
release of this defendant. Dulaney v. Buffum, 173 Mo. 1 ; 
Hubbard v. Railroad, 173 Mo. 249; Chicago Herald Co. 
V. Bryan, 195 Mo. 587; McBride v. Scott, 132 Mich. 176. 

WILLIAMS, P. J. — Plaintiff sues for damages in 
the sum of $10,000 for the death of her husband, Theo- 
dore C. Clark, which was alleged to have been caused by 
the negligence of the plaintiff on the 7th day of No- 
vember, 1914. 

At the close of plaintiff's evidence at the trial in 
the Circuit Court of the City of St. Louis, plaintiff 
took an involuntary nonsuit, with leave to move to set 



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72 SUPREME COURT OF MISSOURI. 

Clark y. Union Electric Co. 

same aside. The court overruled the motion to set aside 
the nonsuit and plaintiff duly perfected an appeal to 
this court. The. facts are suflBdently summarized in the 
following quotations which we take from the respective 
statements. 

From appellant ^s statement we quote as follows: 
''Deceased was in the employ of the Southwestern 
Telegraph and Telephone Company (hereinafter called 
the Telephone Company) as 'trouble man/ his duties 
consisting of locating and remedying wire trouble on 
the lines of his employer. On this date the defendant, 
Union Electric Light & Power Company (hereinafter 
called the Light Company), the Telephone Company and 
the City of St. Louis were maintaining their respective 
wires upon poles belonging to the Telephone Company, 
there being a joint user of said poles on what was 
known as the Manchester Line, of the Telephone Com- 
pany. The Light Company maintained wires upon two 
cross-arms above the cross-arms and wires of the 
Light Company. There was a lead cable running from 
the ground to a cable box in the midst of the wires^ 
which cable ran alongside of and perpendicular with 
the pole. 

"On the date mentioned deceased was ordered by 
the trouble tester of the Telephone Company to go out 
on the Manchester Line and locate and correct what 
appeared to be a 'ground' on one of the wires of the 
Telephone Company. A test at the station with 
instruments used for that purpose showed that the wire 
was not crossed with the wires of the Light Company or 
with any other, but that the line was simply grounded. 
Deceased went out on the line and was upon the pole 
located at Taylor and Manchester Avenues of the Man- 
chester Line of the Telephone Company when he was 
seen to fall from amongst the wires to the ground, a 
distance of from 30 to 36 feet. He was dead when eye- 
witnesses reached him. He had an electric bum in the 
palm of his left hand and his neck was broken. He was 
wearing canvas gloves at the time. It was necessary 



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Vol. 279 APRIL TERM, 1919. 73 



Clark V. Union Electric Co. 



for deceased to climb through the wires of the light 
Company to get to the wires of the Telephone Company, 
the space be ween the Light Company's wires being 
from 32 to 34 inches. The Light Company was main- 
taining at the time certain wires on both of their cross- 
arms, which were carrjdng a heavy current, ranging 
from 2200 to 4400 volts, suflBciently heavy to be danger- 
ous to human life, and other wires of the Light Company 
on that pole were neutral, carrying no current at all. 
The wires of the city and of the Telephone Company 
were all low-voltage and not carrying a heavy or danger- 
ous current. The insulation on the high-tension wires of 
the defendant was off the wires near the pole and there 
were marks on the bare space of one of them, showing 
that a foreign body had come in contact with it at that 
point and that the current of electricity had been di- 
verted from the wire into the foreign body. This mark 
was not upon the wire a short time before, but was 
there' a short time after Clark was killed.'' 

One of plaintiff's witnesses testified as follows: 
That the Telephone Company had a rule whereby the 
men were supposed to wear rubber gloves where they 
were handling wires which are in contact with or in 
close proximity with high-tension wires, but that it was 
not the custom of the Telephone employees to observe 
that rule universally, but that if they were working on 
high-tension wires they would observe the rule. In 
working with the telephone wires they would not 
generally use rubber gloves; that when a wire gets 
crossed with an electric light wire it has the same volt- 
age as the electric light wire, and then the precaution is 
taken to protect the person from shock. 

The following quotations are taken from respond- 
ent's statement: 

**At that time the Telephone Company had provide- 
ed, among other benefits, a death benefit plan for com- 
pensation to the widow or dependents of employees 
killed while in the service of the company. The original 
fund for the creation of this plan was furnished by the 



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74 SUPREME COURT OF MIS^SOURL 

Clark V. Union Electric Co. 

Telephone Company and it obligated itself to make up 
any deficiency in the fund at the end of the year, provid- 
ing that such deficiency did not exceed more than a 
certain percentage of the total wages paid to its em- 
employees during the previous year. The employees con- 
tributed no money, and made no payments to this fund, 
nor did they pay any premiums or assessments. One of 
the provisions of the plan was, that in case of accident 
resulting in the death of an employee, which entitled his 
beneficiary or beneficiaries to benefits under the regula- 
tions, he or they might elect to accept such benefits, 
or to prosecute such claims at law as he or they might 
have against the company, but that if an election was 
made to accept the benefits, such election was required 
to be in writing; and it was further provided that tho 
company be released from all claims and demands which 
the beneficiaries might have against the Telephone Com- 
pany, otherwise than under the regulations, on account 
of such accident. Under the plan, these benefits were 
to be paid irrespective of the question of liability, but 
an election had to be made. 

''A demand was made on the employer for damages, 
and it appears that the Telephone Company denied 
liability, and thereafter Mrs. Clark, the plaintiff, re- 
ceived from the Telephone Company the sum of $2760, 
and executed an instrument in writing,^ which is as 
follows : 

** * Covenant Not to Sue. 

*' 'Whereas, On or about the 7th day of November, 
1914, Theodore C. Clark, a married man of the City of 
Webster, St. Louis County, Missouri, was in the employ 
of the Southwestern Telegraph & Telephone Company, 
as a repairman, and was working at or near the inter- 
section of Taylor and Manchester Avenues, in the City 
of St. Louis, on a pole owned by the said company on 
said date ; and, 

'' 'Whereas, On said 7th day of November, 1914, 
while the said Theodore C. Clark was working on said 
pole at said location, he came in contact with a live 



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Vol. 279 APRIL TERM, 1919, 75 



Clark V. Union Electric Co. 



wire owned by the Union Electric Light & Power Com- 
pany and sustained injuries which caused his death on 
the same date; and, 

** 'Whereas, I claim that my husband, the said 
Theodore C. Clark, received the injuries aforesaid, 
and from which he died as aforesaid, under circum- 
stances which I claim renders both the Southwestern 
Telegraph & Telephone Company and the Union 
Electric Light & Power Company liable in dam- 
ages, although such liability is expressly denied 
by said Telephone Company in so far as it 
is concerned, and I, being desirous to compromise 
and settle the matter in so far as it relates to 
the said Southwestern Telegraph & Telephone Company, 
do hereby and have elected to accept the provisions 
of the plan for Employees^ Pension, Disability and 
Death Benefits of the Southwestern Telegraph & Tele- 
phone Company in lieu of any and all actions for dam- 
ages against the said Southwestern Telegraph & Tele- 
phone Company, by reason and on account of the death 
of the said Theodore C. Clark, my husband. 

** 'Now, Therefore, In consideration of the sum 
of $2670, to me paid by the Southwestern Telegraph 
& Telephone Company, the receipt whereof is hereby 
acknowledged, I do hereby compromise said claim, and 
do hereby release and forever discharge the said 
Southwestern Telegraph & Telephone Company only 
from any and all liabilities for all claims for and on 
account of the death of my husband, the said Theodore 
C. Clark, and do also release and discharge the said 
Southwestern Telegraph & Telephone Company only 
from all suits, actions or causes of action, which I 
have or might have against the said Southwestern Tele- 
graph & Telephone Company, for and on account of the 
death of my said husband, as aforesaid. 

** ' I hereby expressly refuse and decline to release 
the said Union Electric Light & Power Company from 
any claims for damages which I may have or might have 
against it, and do not intend to hereby waive any claims 



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76 SUPREME COURT OF MISSOURI. 

Clark y. Union Electric Co. 

for damages against the said Union Electric Light & 
Power Company for and on account of the death of my 
said husband, caused as aforesaid. I expressly reserve 
the right to enforce any and all claims that I may or 
might have against said Union Electric Light & Power 
Company. 

*' *In Witness Whereof, I have hereunto set my 
hand in the City of St Louis, State of Missouri, 
this 2lid day of November, 1914. 

***CeUa WeisUng Clark, 
** * Witnesses: 

'* * George C. Egger. 

** 'E. H. Painter.' 

*'Mr. George C. Egger, who appears as one of the 
witnesses to this instrument, Tvas the attorney for Mrs. 
Clark at the time, and according to her testimony Mr. 
Egger had made claim against the Telephone Company 
and against the Union Electric Light & Power Company 
for damages, as such attorney, and that was prior to 
the settlement that was made with the Telephone Com- 
pany.*' 

It is contended that the court erred in holding that 
the instrument of November 7, 1914, executed by appel- 
lant to the Southwestern Telegraph & Tele- 
TorSeLor. P^^^^^ Company, was a release and was not 
merely a convenant not to sue said Telephone 
Company. 

The above mentioned instrument was executed prior 
to the Act of March 23, 1915, Laws 1915, p. 269, which 
changed the common law rule concerning the legal effect 
of the release of one joint tortfeasor. 

The instrument is therefore to be construed in the 
light of the common law as it existed in this State prior 
to the passage of the above statute. Under the common 
law the release of one joint tortfeasor operated to re- 
lease all joint tortfeasors. [Dulaney v. Buffum, 173 Mo. 
1. c. 14; Hubbard v. Railroad, 173 Mo. 1. c. 255; Chicago 
Herald Co. v. Bryan, 195 Mo. 1. c. 587.] 



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Vol. 279 APEIL TEEM, ldl9. 77 



Clark y. Union Electric Co. 



If the last paragraph thereof were omitted from the 
instrument involved in this case, no diflScnlty would be 
encountered in determining the case, because the remain- 
ing portion of said instrument is a clear and unequivo- 
cal settlement in full with, and a release of, one joint 
tortfeasor from **any and all liabilities" by reason of 
the injuries suffered, and under all the authorities 
would operate to release the respondent, the other 
joint tortfeasor. 

But appellant contends that by reason of the last 
paragraph thereof, whereby appellant attempts to re- 
serve the right to proceed against respondent, the 
instrument should be construed merely as a covenant 
not to sue the Telephone Company and that therefore 
the instrument should not operate to release respondent. 

There appears to be much conflict of authority upon 
the question and the modern tendency of the courts ap- 
pears to be along the line of construing an instrument 
upon this subject to be a convenant not to sue wherever 
the language of the instrument will permit A full list 
of the authorities cited by respective counsel will be 
found in the Reporter's notes to this opinion, and it is 
unnecessary to copy the citations herein. By a reading 
of the decisions on the subject it will be found diflScult 
to formulate any definite and fixed rule of construction. 
Each case no doubt is more or less influnced by the lan- 
guage of the instrument held in review. A vast dis- 
similarity exists in the wording of the respective in- 
struments. 

"We have carefully read and reread the instrument 
now under review and are unable to hold that it was 
ever intended to be merely a convenant not to sue 
without doing violence to the clear and unambiguous 
language found in said instrument. 

It may have been the intention of the appellant to 
avoid the legal effect of a release of one joint tortfeasor, 
but the proper way to have avoided such a result would 
have been to have refrained from releasing one joint 
tortfeasor. The release of one joint tortfeasor stands 



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78 SUPEEME COURT OF MISSOURI. 

Edmonds y. Scharff. 

out clear in the instrument, and we know of no rule 
of construction that will justify us in destroying the 
release thus clearly made. It should not be f orgotton 
that this is not a suit to reform the instrument. The 
instrument is in this case, to be construed as written. 

This court passed upon the legal principle here in- 
volved in the case of Dulaney v. Buffum, supra, 1. c. 15, 
wherein the court said: **Wlien the plaintiffs acknowl- 
edge full satisfaction of all the injuries complained of in 
the petition, any effort to reserve a cause of action 
against those jointly liable, will not prevent the opera- 
tion of the bar as to those not included in the release.'* 

The above case has not been overruled and we 
think it announces the rule applicable at the time this 
instrument was executed, which was, as above mention- 
ed, before the Act of 1915. 

For the reasons given in the case of Dulaney v. 
Buffum, supra, we hold that the judgment of the cir- 
cuit court was proper and should be affirmed. 

It is so ordered. All concur. 



W. E. EDMONDS, Appellant, v. ADOLPH SCHARFF 
et al.9 Appellants. 

Division Two, July 6, 1919. 

1. BES ADJUDIOATA: Ejectment: Voluntary Ctonveyance: Former 
AppeaL While a judgment in ejectment is not re« adjudicata as 
to any issue determined therein, the doctrine announced on an 
appeal from such judgment is an authoritative statement upon 
the law as applied to the facts therein presented; but a finding 
by the trial court that a certain deed from a husband to his wife, 
reciting a nominal consideration, was voluntary and void as to 
creditors, there being no showing that it was In fact supported 
by a valuable consideration, is not res adjudicata in a subsequent 
suit in equity in which a valuable consideration Is asserted. 

2. WITNESS: Competency: Other Party Dead: Agent A woman, 
whose son-in-law is dead, cannot testify that he owed her notes 
to the amount of three hundred dollars and that she bought from 
him the lots in suit and had him deed them to his wife and that 



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Vol. 279 APRIL TERM, 1919. 79 



Edmonds y. Scharff. 



the notes were the actual consideration for the deed, which re- 
cited a consideration of one dollar. She was not the agent of 
the wife, but a party to the original contract, for the transaction 
is precisely the same as if she had purchased the lots, had the 
conveyance made to herself and subsequently conveyed to the 
wife; and under the statute (Sec. 6354, R. S. 1909), the son-in- 
law, "the other party to such contract," being dead, she is in- 
competent to testify in favor of the wife, or any person claiming 
under the wife. 

3. CONVETANCE: Nominal Consideration: Voluntary: Correcting 
Mistake. If no witness comjietent to testify is produced to show that 
a deed from thie husband to his wife was supported by a valuable 
consideration, a recital therein that it was for a nominal considera- 
tion prevails, and it must be adjudged void as to his existing credi- 
tors, and neither the wife nor her grantees can maintain a suit in 
equity against them to correct a mistake in it. 

4. DISQUALIFIOATION OF JUDOE: Judgment of Dismissal: Void 
Execution. A Judgment rendered by a Judge not authorized to hear 
or determine a case is subject to collateral attack; and where a 
cause was submitted to a special Judge and by him taken under 
advisement, and one of the counsel in the case afterwards became 
the regular circuit judge, a subsequent Judgment of dismissal 
rendered by such regular judge is void, and an execution for costs 
and a sale of lands thereunder are likewise void. 

5. DO WEB: Mansion House: Limitations. Actions to establish the 
widow's dower in her husband's real estate, unless begun within 
ten years after his death, are barred by limitations; and the 
occupation by the widow of the mansion house thereon after her 
husband's death is no longer, since the Revision of 1889, an ex- 
ception to the unqualified language of Section 391. 

Appeal from Iron Circuit* Court. — Hon. E. M. Bearing, 

Judge. 

Affirmed in part ; reversed and remanded in part. 

J. L. Fort for plaintiff. 

(1) The deed should have been reformed, as 
sought in the first count. 7 Cyc. 255, 257; 34 Cyc. 904, 
923; 24 Cyc. 57; Campbell v. Johnson, 44 Mo. 249; 
Jennings v. Brizeadine, 44 Mo. 335; Ford v. Unity 
Church, 120 Mo. 507; Bryant v. Gammon, 150 Mo. 
655; Stroberry v. Walsh, 203 S. W. 291; Swearengin 



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80 SUPREME COUET OP MISSOURI. 

Edmonds y. Scharff. 

V. Swearengin, 202 S. W. 556; Wilson v. Fisher, 
172 Mo. 22. (2) The consideration clause in the 
deed from Edwards to his wife was open to explana- 
tion. Edwards v. Latimer, 183 Mo. 626. (3) The deed 
from Edwards to his wife was valid against the world 
and conveyed the equitable tHle to the wife. Clark v. 
Thias, 173 Mo. 644; Daniels v. Goeke, 191 Mo. App. 
1; Brewer v. Daniel, 198 Mo. 320; O'Day v. Mea- 
dows, 194 Mo. 604 ; Tennison v. Tennison, 46 Mo. 77 ; 
Hammons v. Renf row, 84 Mo. 342. (4) Mrs. Edwards 
had a dower interest in this land and that interest 
has passed to plaintiff. R. S. 1889, sees. 2934, 4514; 
Phillip V. Presson, 172 Mo. 24; Graham v. Stafford, 
171 Mo. 697; Smith v. Stephens, 164 Mo. 422-3; Null 
V. Howell, 111 Mo. 277; Beard v. Hall, 95 Mo. 16; 
Robinson v. Wear, 94 Mo. 687 ; Sherwood v. Baker, 105 
Mo. 478, (5) The judgment in ejectment in the case 
of Scharff v. McGaugh, constitutes no bar to the grant- 
ing of any relief to plaintiff, by him sought in this 
suit. Swearengin v. Swearengin, 202 S. W. 556. (6) 
The plaintiff has whatever title to the premises in 
suit that defendants acquired by and through the 
sheriff's sale. The record in this case shows that 
the court had jurisdiction of the subject-matter and the 
parties in the case in which the judgment for costs 
was rendered, and the law is that the judgment so 
rendered was a lien upon the real estate of the party 
against whom it was rendered, situated in the county 
in which the judgment was rendered. Right action and 
not wrong action is to be presumed in cases like this. 
The judgment for costs was not void on its face and 
its validity has never been assailed in a direct proceed- 
ing, but has been assailed in this collateral proceeding. 
That judgments, regular upon their face and rendered 
by a court having jurisdiction of the subject-matter 
and the parties, cannot be assailed in a collateral pro- 
ceeding is elementary learning. R. S. 1909, sees. 2284, 
2290; Beedle v. Mead, 81 Mo. 304; Cranor v. School 
Dist., 151 Mo. 127. 



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Vol 279 APBIL TERM, 1919. 81 



Edmonds v. Scharff. 



Wilson Cramer for defendants. 

(1) Plaintiflf seeks to recover on the same title 
relied upon by defendant in the case of Scharff v. Mc- 
Gaugh, 205 Mo. 344. All questions relating thereto 
were considered by this court in that case and its deci- 
sion is res judicata. (2) The sheriff's deed under exe- 
tion to plaintiff, dated September 12, 1904, and purport- 
ing to convey the interests of defendants, is void and 
conveys no title, (a) Because the judgment upon 
which the execution was issued, was rendered by J. L. 
Fort, then circuit judge, who had been counsel for the 
defendant in the cause and was disqualified from acting 
as judge. K. S. 1899, sec. 819. (b) Because at the 
time of the rendition of this judgment by Judge Fort 
the cause was still under advisement by Special Judge 
Bedford, who had tried the same and retained jurisdic- 
tion, and Judge Fort had no authority to make any order 
in the case. (3) , In the fourth count plaintiff seeks 
to recover the dower interest of M. A. Edwards, widow 
of George L. Edwards, who died on the 22nd day of 
July, 1898. The present suit was brought February 
5, 1910, as shown by the file marks on the petition and 
is barred. E. S. 1899, sec. 2979; R. S. 1909, sec. 371; 
Harrison v. McEeynolds, 183 Mo. 533 ; Investment Co. 
V. Cnrry, 264 Mo. 483. 

WHITE, Ci— The petition in this suit was filed in 
1910 in four counts, each of which seeks to affect the 
title to lots 10, 11 and 12 of Block 16 in the town of 
Bernie, in Stoddard County, Missouri. There was a 
judgment for defendants on counts 1, 2 and 3, and a 
judgment for plaintiff on count 4. The parties on both 
^des appealed. 

It is admitted that George L. Edwards was the 
common source of title ; he died in 1895. On December 
26, 1892, he conveyed the property to his wife, M. A. 
Edwards, by direct deed. In the description in that 
<'eed lots 10, 11 and 12 were mentioned, but the block 

6—279 Mo. 



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82 SUPREME COURT OP MISSOURI. 

Edmonds v. Scharff. 

number was omitted. The consideration was recited 
to be one dollar. After her husband's death, in 1897, 
Mrs. M. A. Edwards conveyed the property to James 
L. Fort and James B. Buck and her title then passed 
by mesne conveyances to William McGaugh, who ac- 
quired it August 15, 1899. William McGaugh passed the 
title on by mesne conveyances to the plaintiff, W. E. 
Edmonds, who acquired a one-half interest in 1900 and 
the remaining half interest in 1902. 

In December, 1892, at the time that G. L. Edwards 
conveyed the proi>erty to his wife, he was indebted to 
the firm of L. & A. Scharflf in the sum of $162.40, for 
whiskey which he bought September 30, 1892. Suit 
was brought on this claim before a justice of the peace 
and judgment for $162.40 obtained January 19, 1893. 
A transcript of the judgment and proceeding before the 
justice was filed in the oflSce of the clerk of the circuit 
court; execution issued, by virtue of which the Sheriff 
of Stoddard County levied upon and sold the property 
by correct description, and the same was purchased by 
L. & A. Scharff for the sum of $120, and conveyance made 
by the sheriff to them. The Scharffs then brought suit 
in ejectment against William McGaugh while he was in. 
possession of the land; the petition was in the usual 
form and the answer was a general denial. Judgment 
of the circuit court was rendered in favor of the plain- 
tiffs in that case for possession of the premises. The 
case was appealed to this court, where the judgment 
was aflSrmed. The Scharffs were put in possession in 
1907, under a writ of restitution in that case. 

Prior to the filing of the suit in ejectment and be- 
fore the death of G. L. Edwards, L. & A. Scharff had 
brought suit against Lee Edwards (meaning G. L. Ed- 
wards) and M. A. Edwards, the purpose of which was 
to obtain equitable relief; that is, to set aside the con- 
veyance made by G. L. Edwards to his wife. The suit 
was subsequently dismissed and costs assessed against 
the plaintiffs, L. & A. Scharff. Execution was issued 
upon that judgment for costs, the property sold by the 



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Vol. 279 APRIL TERM, 1919. 83 



Edmonds y. Scharff. 



sheriflf and conveyance made to the plaintiflf here, W. E. 
Edmonds. 

The petition in this case is in four counts, as stated : 
The first count sets out the conveyance by G. L. Edwards 
to Us wife with mistake in the description, the subse- 
quent conveyance whereby the plaintiff acquired her 
title, and prays to have the misdescription corrected and 
for possession of the premises, against the Scharffs, 
with an accounting for the rents and profits during the 
time of their incumbency. 

The second count of the petition sets up the title 
under which the plaintiff claims, the sheriff's deed 
under which L. & A. Scharff acquired their interest 
and the facts that they were in possession, and prayed 
for a cancellation of the sheriff's deed, as a cloud upon 
the title, and an accounting of the rents and profits. 

The third count of the petition states a cause of 
action to determine the title under the statute. Section 
2535. 

The fourth count alleges the title of G. L. Edwards, 
his death, the right to dower of his widow in the prop- 
erty and her conveyance of the same to the plaintiff. 

The answer of the defendant alleges the title 
by which they acquired their claim in the property under 
the sheriff's deed in September, 1893, and sets up the 
Statute of Limitations in bar of the action for dower 
as alleged in the fourth count of the petition. 

The Circuit Court held the sheriff's deed to the 
Scharffs was good, denied plaintiff's right to relief as 
prayed in the first, second and third counts, but ad- 
judged that he had a right to the dower of the widow, 
M. A. Edwards, in the property. Other facts pertinent 
to the different issues raised in the case will be consider- 
ed as the questions which they affect arise. 

I. The plaintiff's claim of title as asserted in the 
first and second counts of his petition is based on an 
assertion of the validity of the deed from G. L. Edwards, 



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84 SUPREME COURT OF MISSOURI. 

Edmonds v. Scharff. 



to his wife, made in 1892, and his right 
?w^ to have that deed reformed so as correctly 

Consideration to describe the land. The plaintiff pro- 
for Deed. ceeds in equity and the question is whether 

the deed under which he claims gave him 
such a right as he might enforce against the defendants 
in a court of equity. 

Many of the questions affecting the regularity of the 
transaction whereby the defendants acquired their title, 
and some of the questions affecting the validity of the 
deed of Edwards to his wife, were settled in this court 
in the case of Scharff v. McGaugh, 205 Mo. 344. It 
was held by this court in that case that the judgment, 
and all other proceedings, by which the Scharffs ac^ 
quired title, were regular. It is true, the judgment being 
in ejectment is not res ad judicata here as to any issue 
determined there, but the doctrine announced in that 
case upon the facts presented is an authoritative state- 
ment of the law as applied to such facts. 

The court there held in the first place that the 
deed from G. L. Edwards to his wife showed on its 
face that it was a voluntary conveyance; it recites a 
consideration of one dollar; that a voluntary 
^cata. conveyance by a husband to his wife is void 
as to existing creditors. The debt to the Scharffs 
had been incurred and was in existence at the time 
the conveyance was made. It was also held that Mc- 
Gaugh, who claimed under Mrs. Edwards, might show 
there was in fact a valuable consideration for the deed 
which passed from her husband to her at the time. 
However, there was a failure of such showing in that 
case and the finding by the trial court that the deed was 
voluntary and void as to creditors was sustained. That 
finding is not res adjudicata here. This being an equity 
case it becomes necessary to examine the facts to see 
whether the recited consideration is refuted by a showing 
that in this case there was a valuable consideration. 

Mrs. Edwards, who had married again and ap- 
peared under the name of M. A. Ashworth, swore that 



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Edmonds v. Scharff. 



her mother, a Mrs. Summers, loaned her husband a 
considerable sum of money, for which her mother held 
his notes, and surrendered these riotes to G. 
2^^5?to!«r ^' Edwards on execution of the deed to his 
wife. Mrs. Summers testified that she bought 
the land from G. L. Edwards, paid him three hundred 
dollars for it ; that he owed her some notes and she gave 
him the notes for the lots, and had the deed made to her 
daughter. This same evidence was offered in the case 
of Scharff v. McGaugh, and was considered as part 
of the case, for the reason that there was no ruling by 
the trial court as to whether it was competent or incom- 
petent. 

It is claimed here that the evidence is incompetent. 
The plaintiff admits the testimony of the widow, Mrs. 
Ashworth, iformerly Mrs. Edwards, is incompetent,^ 
because she was a party to the transaction; that is, a 
party to the conveyance which is immediately the sub- 
ject of the action here; her husband, the other party 
to the transaction, being dead. But the competency of 
Mr. Summers is asserted by the plaintiff, who claims that 
she was the agent of her daughter in procuring the 
property from the daughter's husband. Plaintiff cites 
in support of this position the case of Clark v. Thias, 
173 Mo. 628, where it is held that the agent who trans- 
acts the business with a party since dead is competent 
to testify as to the transaction. The propriety of that 
ruling has been seriously questioned in later cases. 
[Griffin v. Nicholas, 224 Mo. 275, 1. c. 326-7; Bone v. 
Friday, 180 Mo. App. 577; Taylor v. George, 176 Mo. 
App. 215 ; Green v. Ditsch, 143 Mo. 1. c. 8 ; Chas. Green 
Real Estate Co. v. Building Co., 196 Mo. 1. c. 370.] 

However, the question of whether an agent conduct- 
ing a transaction may afterwards testify, when the other 
party to the transaction is dead, hardly enters in this 
case Mrs. Summers was not the agent of her daughter; 
according to her own testimony as she gives it, she 
was herself the original party to the contract. Speaking 
of Q. Li. Edwards, she testified: **I bought some lots in 



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86 SUPREME COURT OF MISSOURI. 

Edmonds v. Scharff. 

Bemie from him and paid him about three hundred dol- 
lars for them. He owed me some notes which I had 
been trying to collect for a long time and he gave me 
the lots for the notes. I had the deed made to my 
daughter, M. A. Edwards. . . . The notes I turned 
over to G. L. Edwards for these lots, and they were can- 
celed at the time, and I gave him a receipt for the ac- 
count he owed me." 

The effect of the transaction as she describes it is 
precisely the same as if she had purchased the lots and 
had the conveyance made to herself and subsequently 
had conveyed to her daughter. She is a party to the 
original contract or cause of action. The wording of the 
statute completely covers her case, Section 6354, Revised 
Statutes 1909. The provision is this: ^'Provided, that 
in actions where one of the original parties to the con- 
tract or cause of action in issue and on trial is dead, or is 
shown to the court to be insane, the other party to such 
contract or cause of action shall not be admitted to 
testify either in his own favor or in favor of another 
party to the action claiming under him/' 

It was held in the case of Chapman v. Dougherty, 

87 Mo. 617, that the ''disability of one of the original 
parties to the contract or cause of action, in issue and 
on trial, where the other party is dead, and the survivor 
is a party to the suit, is co-extensive with every occasion 
where such instrument or cause of action may be called 
in question." That case is a leading case and is cited 
and approved in many later cases. [Goodale v. Evans, 
263 Mo. 1. c. 228-9; Lieber v. Lieber, 239 Mo. 1. c. 13.] 

In Bishop v. Brittain Inv. Co., 229 Mo. 1. c. 723, 
numerous cases are cited and the rule which seems perti- 
nent to the question is stated as follows: ''In apply- 
ing the statute it has been ruled that where, as in 
ejectment, the issue was title and one of the parties to 
a deed necessary to establish it was dead, the living party 
could not testify in denial of the validity of the deed 
(Chapman v Dougherty, supra) ; nor to sustain a eon- 
trat which, if established, would defeat ejectment (Hughes 



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Vol 279 APEIL TERM, 1919. 87 



Edmonds y. Scharff. 



V. Israel, 73 Mo. 538) ; nor to establish in ejectment 
the contents of a lost deed (Messimer v. McCray, 113 
Mo. 382); nor to establish the contract in a suit for 
specific performance (Teats v. Flanders, 118 Mo. 660) ; 
nor to acts of performance (Sitton v. Shipp, 65 Mo. 
297) ; nor to reform a contract by supplying a term omit- 
ted by mistake, accident or oversight (Smith v. Smith, 
201 Mo. 533)." 

The disqualification is not because of the interest of 
the witness offered, but because . . . the < other 
party to the contract, or cause of action in issue and on 
trial, is dead. [Weiermueller v. Scullin, 203 Mo. 1. c. 47L] 
The party to the contract is the person who negotiated 
the contract, rather than the person in whose name and 
interest it was made. [Banking House v. Rood, 132 Mo. 
1. c. 262; Meier v. Thieman, 90 Mo. 1. c. 442-443.] 

There being no competent evidence offered to show 
there was a valuable consideration^ for the deed from 
G. L. Edwards to his wife, the recital that it was for 
a nominal consideration prevails. Under the rule as 
laid down in the case of Scharff v. McGaugh 
iSSu^ it was void as to creditors. The plaintiff, 
claiming under it, could not in equity main- 
tain an action to correct a mistake in it. [Smith v. 
Smith, 201 Mo. 533, 1, c. 546-7.] Nor could he maintain an 
action to remove, as a cloud upon his title, the sheriff's 
deed under which defendants claim, a deed already held 
in the McGaugh case to be regular. The judgment for 
defendant, therefore, upon the first three counts, was 
correct. 

n. The plaintiff claims that the sheriff's deed, 
executed in 1904, whereby the land was sold under a 
jwlgment for costs rendered in 1900, in favor of Lee 
j^ Edwards and against L. & A. Scharff, passed 

WHwjiflcation ^jj^ title to Edmunds. The defendants 
assert that the deed is void because the 
Judgment upon which it is based was rendered by J. L. 
Fort, Circuit Judge, who was incompetent to sit in the 
case because he had previously been of counsel for the 
defendant therein. 



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88 SUPREME COURT OF MISSOURI. 

Edmonds y. Scharff. 

The suit in which that judgment was* rendered was 
filed in 1894. The record entries of the court was pre- 
sented in the abstract of the record here and show that 
March 19, 1894, on a change of venue from the regular 
judge, Hon. H. H. Bedford, was selected as special 
judge to try the cause. The files show answer filed by 
J. L. Fort. At the September term, 1895, on the ISth 
day of October, an entry appears showing that the 
cause was tried and taken under advisement by the 
Honorable H. H. Bedford, Special Judge, and at that 
time Honorable John G. Wear was regular judge. No 
entry appears as to any disposition of the case until the 
September term, 1900, when, on the tenth day of the 
term, this entry appears : 

Court met pursuaut to adjournment, present Hon. Jas. L. Fort, 
Judge. 

L. ft A. SCHABFF 

against ^ Civil Action 

liEE Edwards et al. 

This cause coming on to be heard and there appearing no 
one in behalf of this plaintiff to prosecute this cause of action and 
plaintiff being three times called and comes not, it is therefore 
ordered by the court that this cause be stricken off this docket 
and the cost of this suit laid out and charges be assessed against 
plaintiff and that execution issue therefor." 

Execution was issued on this judgment for costs on 
the 15th day of August, 1904, the property levied upon 
and sold, and purchased by the planitiff, Edmonds, on 
the twelfth day of September, 1904. 

The testimony of Judge Fort as abstracted in 
another case was ojBfered in evidence, and he appeared 
to have no definite recollection about his action in dis- 
missing the case so many years before. He said he 
didn't think he dismissed the case, but that Judge Bed- 
ford might have taken the bench and dismissed it. 

That part of the statute which disqualified Judge 
Fort from sitting in the case. Section 1928, Revised 
Statutes 1909, is as follows: *'Sec. 1928. If the judge 
interested or related to either party, or shall have 
been of counsel in the cause, the court or judge shall 



} 



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Vol. 279 APEIL TERM, 1919. 89 



Edmonds y. Scharff. 



award such change of venue without any application 
from either party/' 

The general rule is that a judgment rendered by a 
judge not authorized to hear or determine a case is subject 
to collateral attack. [23 Ency. Law & Proced. p. 1095; 
Horton v. Howard, 79 Mich. 642; Ex parte Bedard, 106 
Mo. 1. c. 627; 15 E. C. L. p. 846.] The authority of a 
judge to act in a given case should appear by a record 
entry. [ColUer v. Lead Co., 208 Mo. 1. c. 261-262.] 
Where a special judge is called to sit in the place 
of a regular judge he acquires jurisdiction of a case 
and that jurisdiction continues until the termination of 
the case by judgment. [State v. Moberly, 121 Mo. 609; 
State ex rel. v. Williams, 136 Mo. App. 330; Ward v. 
Bell Egolf, 157 Mo. App. 1. c. 527.] Therefore when 
Judge Bedford was qualified as special judge and pro- 
ceeded to hear the case his jurisdiction of the case con- 
tinued. He heard the case and took it under advisement. 
Nothing more was heard from it until six years later 
when it appeared on the docket with Judge Fort, reg- 
ular judge, presiding. If Judge Bedford had made any 
disposition of the case the record should have shown it. 
It remained on the docket undisposed of. We presume 
the record entries brought here are all there are in 
the case. There should be some entry showing a di- 
vestiture of jurisdiction on the part of Judge Bed- 
ford before the regular judge could- proceed to 
hear the case. Yet, since all presumptions of regularity 
of jurisdiction are indulged, if Judge Fort had been 
qualified to sit in the case, this court might presume, 
in this collateral attack upon the judgment, that he had 
authority ; that is, that Judge Bedford had failed to de- 
termine the case, and had been in some manner divested 
of jurisdiction. [Collier v. Lead Co., 208 Mo. 246; 
Nickerson v. Leader Merc. Co., 90 Mo. App. 1. c. 338; 
Green v. Walker, 99 Mo. 1. c. 73.] 

There is no record entry of any kind to indicate 
that Judge Bedford appeared and made the order of 
dismissal. On the contrary, the plaintiff in his brief ad- 



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90 SUPREME COUET OF MISSOURI. 

Edmonds v. Scharff. 

mits that Judge Fort dismissed the cause, having been 
of counsel in the case while the same was pending before 
the Hon. H. H. Bedford as special judge, though it is 
probable that Judge Fort at that time did not remember 
that he had been of counsel. Thus Judge Fort's dis- 
qualification appearing upon the face of the record, 
and being admitted, the judgment of dismissal was a 
nullity and the sale and deed thereunder were likewise 
nullities and passed no title to Edmonds. 

III. The plaintiff, however, claims that he was at all 
events entitled to an assignment of the dower of the 
widow in the premises. George L. Edwards was seized 
in fee simple of the property during his life and his 
title was divested by a sheriff's sale, leaving the widow's 
dower untouched. This dower the plaintiff claims to 
have acquired through conveyance from the widow M. 
A. Edwards. George L. Edwards died in 1895. This suit 
was brought in 1910. Defendant sets up the Statute 
of Limitations in bar of the claim for dower. 

The plaintiff asserts that the Statute of Limitations 
did not run on account of the occupation of the mansion 
house by the widow after the death of her husband. 
There is some doubt about the facts as to that. Edmonds 
testified at the trial that Edwards was not living on the 
ground at the time of his death. 

However, under the recent rulings of this court and 
the plain terms of the statute. Section 391, the right 
of action to have dower assigned is barred. Section 391 
is as follows : 

^*Sec, 391. All actions for the recovery of dower 
in real estate, which shall not be commenced within 
ten years from the death of the husband through or 
under whom such dower is claimed or demanded, shall 
be forever barred." 

As the act containing this section was originally 
passed in 1887, a proviso was appended to the effect 
that the act should not apply to persons suffering 
certain disabilities, nor to any case wb ^re the widow is in 



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Vol. 279 APRIL TEBM, 1919. 91 



Edmonds y. Scharff. 



possession of and enjoying the mansion house. The 
act was amended in the revision of 1899 so as to omit 
the proviso and leave the section to read as above. This 
court in two recent cases has commented upon the 
legislative intention manifested in that revision and has 
announced that there is no doubt the section as it 
now reads bars an action for dower in every case with- 
out an exception. 

In Investment Co. v. Curry, 264 Mo. 483, 1. c. 500, 
Division Numbef Two of this court used this language : 
*'The fact that in the statute as originally enacted there 
were saving clauses in favor of the widow if she was in 
possession of the mansion house or under legal disability 
and that these several clauses were stricken out in the 
revision of 1889, strongly indicates the legislative pur- 
pose that there should be no exception at all to the 
operation of this statute.'' 

In the case of McFarland v. McFarland, 278 Mo.— 1, 
the statutes as originally enacted and as thus amended is 
again set out, and this court held that the motive of 
the Legislature was evident in the result, that was to 
''limit the quarantine of the widow to ten years and 
such further time as is enough to perfect a judicial 
assignment of her dower." A concurring opinion by 
Graves, J., in the same case, holds that Section 391 is 
an absolute bar to an action to recover dower, if such 
action is brought for the first time more than ten years 
after the death of the husband. These cases settle this 
contention against the claim of the plaintiff. 

The judgment is aflSrmed as to the first, second and 
third counts, and is reversed and the cause remanded 
as to the fourth count, with directions to enter judg- 
ment for the defendant on that count. Railey and Mozley, 
CC, not sitting. 

PER CUEIAM : — The foregoing opinion by White, 
C, is adopted as the opinion of the court. All of the 
judges concur. 



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92 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 



HULDA J. MURRELL v. KANSAS CITY, ST. LOUIS 
& CHICAGO RAILROAD COMPANY, Ai)pejlaiit. 

Division Two, July 6, 1919. 

1. OONSTITUTIONAL LAW: Title: Leasing Bailroad. The title to an 
act passed in 1870, entitled, "An Act to amend chapter sixty- 
three of the General Statutes, entitled 'of Tailroad companies/ 
so as to authorize the consolidation, leasing and extension of 
railroads/' was broad enough to authorize a designation in the 
body of the act of the terms and conditions upon which such 
leases should be made, and to include a provision that "a cor- 
poration in this State leasing its road to a corporation of an- 
other state shall remain liable as if it operated the road itself." 

2. : Speed Ordinance: Six Miles An Hour: Unreasonableness. 

An ordinance limiting the speed of railroad passenger trains to 
six miles an hour at a much-used public-street crossing, 1200 feet 
from the station, in a city of the fourth class containing 2700 in- 
habitants, is not unreasonable, nor an unlawful interference with 
interstate commerce, but a needed protection of the public at 
such crossing. 

3. DEMUBBEB TO EVIDENCE: Practice. Where defendant, at the 
close of plaintiff's case in chief, offers a demurrer thereto, and 
upon its being overruled puts in its own evidence, the sufficiency 
of the evidence to sustain the verdict must be determined from 
all the evidence in the case; and the appellate court, in con- 
sidering the demurrer, will indulge every inference in favor of 
the verdict which men of average intelligence and fairness might 
legitimately draw from the proven facts. 

4. NEGLIOEKOE: Contributory: Demurrer to Evidence: Proyen 
Facts: Humanitarian Rule. Where there was substantial evidence 
tending to prove (1) that the servants in charge of the train 
were negligent in failing to ring the bell, and keep it ringing, as 
required by statute, as it approached the public-street crossing 
where plaintiff's husband was killed, (2) that they were guilty 
of negligence in failing to give proper and timely danger signals 
after he was known to be in peril, (3) that they were guilty of 
negligence in violating the six-mile speed ordinance and which 
they continued to violate until he was struck by the train, (4) 
that they were guilty of common-law negligence in running the 
train, at the time and place of the accident, at a dangerous and 
unsafe rate of speed, (5) that the engineer was negligent in fail- 
ing t9 reduce the rate of speed after seeing deceased in peril and 



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Vol. 279 APRIL TERM, 1919. 93 



Murrell y. Railroad. 



apparently oblivious to the approaching train, and (6) that said 
servants were likewise negligent in failing to give danger signals 
with a whistle, so as to arouse in deceased a realization of the 
danger into which he was moving, no demurrer to the evidence 
can be sustained, although it be conceded that deceased, at the 
time and place of the accident, was guilty of negligence that di- 
rectly contributed to his own death. 

: Duty of Engineer: Inference. In the absence of evidence 



to the contrary, the jury have the right to draw the inference that 
the engineer of a passenger train entering a town was at his place 
in the cab, looking towards the station, since he owed that duty to 
his passengers, as well as to members of the public who might be 
upon the track ac a public-street crossing. 

: : Inference from Sounding Whistle. Where defend- 



ant offers evidence tending to show that the station whistle was 
sounded and the bell was rung before the train reached the pub- 
lic-street crossing, the Jury have the right to infer that the en- 
gineer and fireman were at their respective places in the engine 
cab; and hence they have the right to infer, the view being 
clear and the track straight, that the engineer saw deceased in 
peril when the train was 500 feet away and that he was moving to 
a place of danger on the track at the street crossing, apparently 
oblivious to the approach of the train. 

: : Failure to Testify: Other Inferences. Where the 



view was unobstructed for 500 feet before the train reached the 
public-street crossing where plaintiff's husband was struck, the 
jury have the right to take into consideration the fact that the en- 
gineer and fireman, who of all persons were best prepared to give 
the actual facts concerning deceased's movements, were not pro- 
duced as witnesses. 

Appeal from Saline Circuit Court. — Hon. Samuel Davis, 

Judge. 

Affirmed. 

Joshua Barbee and Scarritt, Scarritt, Jones £ Miller 
for appellant. 

(1) Sec. 3078, R. S. 1909, is unconstitutional, for 
the reason that the bill when enacted contained more 
than one subject which was not clearly expressed in the 
title, as provided }y Section 28, Article 4, Constitution of 
Missouri. Willi^^ms v. Railroad, 233 Mo. 666; Witz- 



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94 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

mann v. Railroad, 131 Mo. 612 ; St. Louis v. Bray, 213 
Mo. 131; Shively v. Lankford, 174 Mo. 545; State v. 
Coffey Company, 171 Mo. 634; Gulf Ry. Co. v. Stokes, 
91 S. W. (Tex.) 328. (2) The speed ordinance of six 
miles an hour of Higginsville is unreasonable, uncon- 
stitutional and an attempt to interfere with and regulate 
interstate commerce, contrary to Section 8 of Article 
1 of the Constitution of the United States. Lusk v. 
Town of Dora, 224 Fed. 630; Zumault v. Railroad, 
71 Mo. App. 670; White v. Railroad, 44 Mo. App. 
540; Plattsburg v. Hagenbush, 98 Mo. App. 669; 
Murphy v. Railroad, 153 Mo. 252; Byington v. 
Railroad, 147 Mo. 673. (3) The trial court erred 
in refusing defendant's requested peremptory instruct 
tions at the* close of plaintiff's evidence, and at the 
close of all the evidence, for the reasons, (a) the negli- 
gence of deceased Murrell barred recovery, and (b) 
no actionable negligence was shown against defendant. 
Reeve's Admr. v. Railroad, 251 Mo. 169; Keele v. Rail- 
road, 258 Mo. 78; Laun v. Railroad, 216 Mo. 563; Pope 
V. Railroad, 242 Mo. 232; Moore v. Lindell Railway, 
176 Mo. 538, 546; Sanguinette v. Railroad, 196 Mo. 466; 
Hay den v. Railroad, 124 Mo. 566 ; Huggart v. Railroad, 
134 Mo. 673; Schmidt v. Railroad, 191 Mo. 215; Dyrcz v. 
Railroad, 238 Mo. 33; Lane v. Railroad Co., 132 Mo. 
4; Kelsey v. Railroad, 129 Mo. 362; Walker v. Rail- 
road, 193 Mo. 453; Burge v. Railroad, 244 Mo. 76; Farris 
V. Railroad, 167 Mo. App. 392; Green v. Railroad, 
192 Mo. 131. (4) The court erred in submitting the 
case to the jury on the last-chance theory. Reeve's 
Admr. v. Railroad, 251 Mo. 169; Pope v. Railroad, 
244 Mo. 76; Degonia v. Railroad, 224 Mo. 595; Haw- 
kins V. Railroad, 135 Mo. App. 534; Schmidt v. Rail- 
road, 191 Mo. 234; Boyd v. Railroad, 105 Mo. 382; 
Moore v. Railroad, 176 Mo. 546 ; McGee v. Railroad, 214 
Mo. 542 ; Burge v. Railroad, 244 Mo. 96 ; Ruschenberg v. 
Railroad, 161 Mo. 81; Culbertson v. Railroad, 140 Mo. 
59; Manunerberg v. St. Ry. Co., 62 Mo. App. 563. 



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Vol. 279 APRIL TERM, 1919. 95 



Murrell y. Railroad. 



Bugging <& Duggins and Avll & Aull for respondent. 

(1) The demurrer to the evidence offered at the 
close of the plaintiff's testimony and at the close of all 
the testimony in the case was properly overruled, (a) 
The servants in charge of the locomotive and train that 
struck and killed Murrell on the crossing, failed and 
neglected to ring the bell on the engine as required by 
statute when approaching and passing over the cross- 
ing which was negligence per se. Lloyd v. Railroad, 128 
Mo. 595; Sullivan v. Railroad, 117 Mo. 245; Gratiot v. 
Railroad, 116 Mo. 450; Murray v. Railroad 101 Mo. 242, 
Reybum v. Railroad, 187 Mo. 565 ; Dickson v. Railroad, 
104 Mo. 501; Hanlan v. Railroad, 104 Mo. 387; Karle 
V. Railroad 55 Mo. 476; McNulty v. Railroad, 203 Mo. 
477; migman v. Railroad, 223 Mo. 699. (b) Care- 
lessly and negligently ran said locomotive and train of 
ears within and through the corporate limits of the city 
and to and over said public crossing therein, in violation 
of the ordinance prohibiting the running of locomotives 
and trains within such limits at a rate of speed exceed- 
ing six miles an hour. This was negligence per se and a 
direct cause of MurrelPs ' death. Miller v. Engle, 185 
Mo. App. 563 ; Lueders v. Railroad, 253 Mo. 97 ; Gratiot 
V. Railroad, 116 Mo. 463; Jackson v. Railroad, 157 Mo. 
643; Johnson v. Railroad, 259 Mo. 535; Weller v. Rail- 
road 120 Mo. 654 Schlerth v- Railroad, 115 Mo. 88 
104; Dahlstrom v. Railroad, 108 Mo. 525; Murray v. 
Railroad, 101 Mo. 236; Bluedom v. Railroad, 108 Mo. 
439; Graney v. Railroad, 140 Mo. 89; Keim v. Railroad, 
90 Mo. 321; Schlerth v. Ry. Co., 96 Mo. 515. If the 
train had been running as prescribed by ordinance every 
reasonable inference is that deceased would have cleared 
the track. Lueders v. Railroad, 253 Mo. 116; Murrell 
/V. Railroad, 105 Mo. App. 94; Johnson v. Railroad, 
259 Mo. 550; Schlerth v. Railroad 96 Mo. 515; 
Keim v. Railroad, 90 Mo. 324; Prewitt v. Railroad, 
134 Mo. 615; Graney v. Railroad, 140 Mo. 189. (2) 
Violation of speed ordinance, and violation of statute. 



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96 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

both negligence per se, and causal connection between 
negligence and injury, sustained a verdict (barring 
contributory negligence as matter of law). Hunt 
V. Railroad, 262 Mo. 275; McNulty v. Railroad, 
203 Mo. 477; McNulty v. Railroad, 166 Mo. App. 
459; Stotler v. Railroad, 200 Mo. 121. (3) Contributory 
negligence as matter of law does not arise in this case. 
Dudley v. Railroad, 167 Mo. App. 665; Baker v. Rail- 
road, 122 Mo. 544; McNulty v. Railroad, 203 Mo. 475; 
Weigman v. Railroad, 223 Mo. 699; Petty v. Railroad, 
88 Mo. 306; Williams v. Railroad, 257 Mo. 115; Donohue 
V. Railroad, 91 Mo. 365; Kleiber v. Railroad, 107 Mo. 
247. In no case has a pedestrian been charged with 
contributory negligence as matter of law where, from 
the very incipiency of the danger, and where from his 
very surroundings, he could first know of the approach 
of the train after he had lawfully and in the exercise of 
ordinary care placed himself in a position of peril. 
Harshaw v. Railroad, 173 Mo. App. 483. Where there 
are flagrant violations of the law resulting in injury, 
contributory negligence must be clearly made out. Yon- 
kers V. Railroad, 182 Mo. App. 558 ; Weighman v. Rail- 
road, 223 Mo. 719; Bluedorn v. Railroad, 108 Mo. 449; 
Kennayde v. Railroad, 45 Mo. 255; Dutcher v. Rail- 
road, 91 Mo. 363; Petty v. Railroad, 88 Mo. 306; Baker 
V. Railroad, 147 Mo. 166 ; Jennings v. Railroad, 112 Mo. 
268; Lueders v. Railroad, 253 Mo. 116; Sexton v. Rail- 
road, 245 Mo. 254; Lyons v. Railroad, 253 Mo. 166; 
Weller v. Railroad, 164 Mo. 180. Where the laws are 
flagrantly violated contributory negligence should be 
submitted to the jury. Petty v. Railroad, 88 Mo. 306; 
Baker v. Railroad, 147 Mo. 166; Bluedorn v. Railroad, 
121 Mo. 268, 108 Mo. 449. (4) If the evidence tends 
to, or if inferences therefrom, regardless of conter 
inferences, can be reasonably drawn, tending to 
uphold the action of the trial court; if after 
every inference which the trial jury might with any de- 
gree of propriety have made; if there is conflict in the 
evidence ; if the truthfulness of a witness is in question ; 



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VoL 279 APRIL TERM, 1919. 97 



Murrell v. Railroad. 



if there is reason for difference of opinion among prao- 
tieal men from all walks of life ^i^hether care or caution 
on part of deceased; or servants acted as ordinarily 
prudent servants under the facts and circumstances; 
whether they did, or had time to warn or to stop ; if 
there is any uncertainty, the case should have been sub- 
mitted to the jury and the trial court should be upheld. 
Miller v. Engle, 185 Mo. App. 363 ; Maginnis v. Railroad, 
180 Mo. App. 694; Holmes v. Railroad, 207 Mo. 163; 
Buesching v. Qaslight Co., 73 Mo. 219; Weigman v. 
Bailroad, 223 Mo. 722: Hunt v. Railroad, 262 Mo. 181; 
TroU V. Railroad, 254 Mo. 722; Stauffer v. Railroad, 243 
Mo. 316-17; Weller v. Railroad, 164 Mo. 199; Murphy v. 
Railroad, 228 Mo. 76; Fritz v. Railroad, 243 Mo. 62; 
Church V. Railway, 119 Mo. 215; Williams v. Railroad, 
257 Mo. 87; Dudley v: Railroad, 167 Mo. App. 647; Rol- 
lison V. Railroad, 252 Mo. 538; Johnson v. Railiioad^ 
259 Mo. 550; Franklin v. Railroad, 188 Mo. 542; Powei 
v. Railroad, 244 Mo. 1; Petty v. Railroad, 88 Mo. 318; 
Keim v. RSulway, 90 Mo. 314; Lamb v. Railroad, 147 Mo. 
186; Hegberg v. Railroad, 164 Mo. App. 514. Negative 
testimony takes the case to the jury. Murray v. Railroad, 
176 Mo. 183; Moore v. Railroad, 137 Mo. App. 53; 
Buckry-Ellis v. Railroad, 158 Mo. App. 506; Stotler 
V. Railroad, 200 Mo. 107; Murray v. Railroad, IQl 
Mo. 242; Isaacs v. Skrainka, 95 Mo. 517. Upon a 
demurrer to the evidence the right doctrine to go 
by is: Defendant's testimony where contradicted is 
false; plaintiff's testimony, whether contradicted or 
not, is true; discrepancies, contradictions between wit- 
nesses or self contradictions by witnesses, and the 
weight due their testimony, are for the jury, not 
the court. Plaintiff is entitled to the grace of having 
allowed in his favor every inference springing reason- 
ably from the proof. Fritz v. Railroad, 243 Mo. 79. (5) 
Deceased was in the exercise of due care, (a) He could 
not, when he went upon the crossing and tracks, by 
looking or listening have seen or heard an approaching 
train. No train was within sight or hearing. He could 

7—279 Mo. 



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98 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

not tell uponivliat track a train was approaching, whether 
freight or passenger, nor in what direction to proceed 
to avoid it, even if he had knowledge of its approach. 
Harshaw v. Railroad, 173 Mo. App. 483 ; Dunn v. Rail- 
road, 192 Mo. App. 260; Campbell v. Railroad, 175 Mo. 
676; Gratiot v. Railroad 116 Mo. 450; Weigman v. 
Railroad, 223 Mo. 717; Weller v. Railroad, 120 Mo. 
635; Williams v. Railroad, 257 Mo. 115. (b) The old 
man was not a trespasser nor did his right to pass over 
the crossing depend upon the permission of the railroad. 
Lueders v. Railroad, 253 Mo. 97. (c) When the evidence 
is silent, on the question as to whether the traveler, be- 
fore crossing the track, looked and listened for the train, 
the presumption is that he did both, where there was 
such obstruction that had he looked he could not have 
seen, and had he listened it would have been diflScult^ if 
not impossible, to hear. Johnson v. Railroad 259 Mo. 
547; Weigman v. Railroad, 223 Mo. 717. (d) If in and on 
the danger zone when the train approached, in the 
exercise of ordinary care, he was only required to ex- 
ercise care commensurate with the situation and circum- 
stances to extricate himself. He could not stop between 
tracks with safety. Weigman v. Railrond, 223 Mo. 717. 
A traveler in a walk four feet from the track is in the 
danger zone. Dunn v. Railroad, 192 Mo. App. 268. (e) 
A defendant cannot impart want of vigilance to one 
injured by reason of his acts of negligence if those 
very acts of negligence were the consequence of an 
omission of duty on the part of defendant. Weigman 
V. Railroad, 223 Mo. 723; Kennayde v. Railroad, 45 Mo. 
262. (f ) Deceased had the right to rely upon obedience 
to the law on the part of appellant. Mocowik v. Rail- 
road, 196 Mo. 571; Riska v. Railroad, 180 Mo. 168; 
Weller v. Railroad, 164 Mo. 180; Hutchinson v. Railroad, 
161 Mo. 254; Lueders v. Railroad, 253 Mo. 116; Craw- 
ford V. Railroad, 215 Mo. 414; Felver v. Railroad, 
216 Mo. 213; Dutcher v. Railroad, 241 Mo. 137, 
(6) Sec. 3078, R. S. 1909, has been, from the time 
of its passage, attacked by appellant in various ways 



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Vol. 279 APKIL TERM, 1919. 99 



Murrell y. Railroad. 



The section has been by the appellate courts up- 
held. This attack has long since been rendered non- 
debatable. Brown V. Railroad, 256 Mo. 532; State v. 
Saline County Court, 51 Mo. 350; State v. Callaway 
County Court, 51 Mo. 395; Fleming v. Railroad, 199 Mo. 
390; O'Donnell v. Railroad, 197 Mo. 110; Fleming v. 
Railroad, 263 Mo. 187; Markey v. Railroad, 185 Mo. 
348; Thomas v. Railroad, 101 U. S. 71; Smith v. Rail- 
road, 61 Mo. 1, 17; Markey v. Railroad, 200 U. S. 622; 
Brady v. Railroad, 206 Mo. 521. Under the facts in this 
case the validity of the speed ordinance limiting the 
rate of speed to six miles an hour in approaching and 
passing over this crossing is no longer debatable. Holmes 
V. Railroad, 207 Mo. 162 ; St. Louis v. Weber, 44 Mo. 
547; Gratiot v. Railroad, 116 Mo. 467; Jackson v. Rail- 
road, 157 Mo. 643 ; Lueders v. Railroad, 253 Mo. 116 ; 
Roberston v. Railroad, 84 Mo. 123 ; Prewitt v. Railroad, 
134 Mo. 627; Miller v. Railroad, 185 Mo. App. 574; Petty 
V. Railroad, 88 Mo. 306 ; Johnson v. Railroad, 259 Mo. 535 ; 
Eckhard v. Railroad, 190 Mo. 593; Riska v. Railroad, 
180 Mo. 168. The presumption is that the speed ordin- 
ance is reasonable. MuUins v. Cemetery, 187 S. W. 1170 ; 
Hislop V. Joplin, 250 Mo. 558 ; St. Louis v. Theatre Co., 
202 Mo. 690. (7) The court properly submitted the 
case to the jury on the humanitarian theory. Hunt v. 
Railroad, 262 Mo. 181 ; Maginnis v. Railroad, 182 Mo. 
App. 713, 187 S. W. 1165; Reyburn v. Railroad, 187 
Mo. 565; Moore v. Railroad, 194 Mo. 1; Murray 
V. Transit Co., 108 Mo. App. 501; Klockenbrink 
V. Railroad, 172 Mo. 678; Murphy v. Railroad, 228 
Mo. 76; Thompson v. Railroad, 243 Mo. 351; Feldman 
V. Railroad, 175 Mo. App. 634 Lueders v. Railroad, 
253 Mo. 114; Johnson v. Railroad, 259 Mo. 550. De- 
ceased became and was in imminent peril and the ser- 
vants operating the locomotive and train saw, or by 
the exercise of ordinary care could have seen, him in 
his peril in time by the exercise of ordinary care to 
have slowed down the locomotive and train, to have 
given emergency warnings, to have used emergency ap- 



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100 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

pliances, to have ertopped the train, but carelessly and 
negligently failed so to do. Hunt v. Railroad, 262 Mo. 
181. 

RAILEY, C. — This action was commenced by plain- 
tiff, in the Circuit Court of Lafayette County Missouri, 
on September 17, 1913, as the widow of John D. Murrell, 
who was killed in the City of Higginsville in said 
Lafayette County, by an east-bound fast-passenger train, 
operated at the time by the Chicago & Alton Railroad 
Company, by virtue of a lease in 1879, from defendant, 
a Missouri coporation, which was the owner of the 
right-of-way, road-bed, tracks, etc., where deceased was 
killed. On defendant's application the venue was changed 
to Saline County, Missouri, and there tried upon plain- 
tiff's second amended petition, which among other 
things, in substance, alleges the following grounds of 
negligence: 1. That the statutory signals were not 
given for the crossing, where deceased was killed. 2. 
That the train in question was being operated through 
the city limits of Higginsville, Missouri, in violation of 
its six-mile speed ordinance, and while traveling at a 
highly dangerous rate of speed, to-wit, twenty-five to 
thirty-five miles per hour. 3. Failure on the part of 
the servants operating the train to be at their posts 
of duty, to slow down the train and have the same 
under control as it approached and passed over the 
crossing, when they knew and saw, or by the exercise of 
ordinary care could have known and seen, deceased in 
peril on the crossing in time, by the exercise of ordinary 
care, to have slowed down the locomotive and train, 
given emergency signals or stopped the train and 
averted the killing, which they carelessly and negligently 
failed to do. 

The answer to second amended petition contains 
(1) a general denial; (2) a plea of negligence on the 
part of deceased; (3) an averment cuat the statutes, 
under which it is sought to hold defendant, are un- 
constitutional; and (4) that the six-mile speed ordinance 



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VoL 279 APRIL TERM, 1919. 101 



Murrell v. Railroad. 



of Higginsville is unreasonable, void, unconstitutional, 
and an unlawful interference with interstate commerce. 

At the time of his death, deceased was sixty-seven 
years of age ; hie health was good, but he was a cripple. 
His right leg had been broken ; he wore a stirrup on this 
leg; it was shorter than the other. He used a crutch 
under Ms left arm and a cane in his hand. De- 
ceased Uved about three blocks southwest of where he was 
killed, and walked very slowly. 

It is conceded that, at the time of said killing, de- 
fendant was the lessor of the railroad right-of-way, 
road-bed and tracks over which the Chicago & Alton 
Baihoad Company was operating the train which killed 
deceased. It is likewise conceded that, at the time of sai J 
tilling, the Chicago & Alton Railroad Company was 
operating defendant's road, by virtue of the lease afore- 
said, and that it was at the time an interstate common 
carrier, etc. 

Plaintiff's evidence tends to show that the public 
crossing, where Murrell was killed, is situate in the 
heart of Higginsville, a city of the fourth class, with 
abont 2700 inhabitants, the business portion of the city 
being north, and about half of the residence population 
sonth, of the railroad tracks, about midway between the 
depot and the western limits of the city, or about a 
qnarter of a mile east of the western limits of the city 
and about 1200 feet west of the depot in said city. Two 
other public crossings intervened between the one on 
which Murrell was killed and the depot. There were 
two other public crossings between the depot and the 
eastern limits of the city. Murrell was killed at the 
intersection of Brand Street and the railroad tracks. 
Brand Street, after passing over the railroad tracks, 
west where the killing occurred, and Brand Street, with 
the other crossings mentioned, ran practically north 
and south. Brand Street was a regular traveled public 
road or street, and used by many residents going to and 
continues on north to other portions of the city. The 
ndlroad trades ran in the general direction of east and 



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102 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

from their places of business. North and south of this 
crossing, where the killing occurred, and west thereof, 
except the railroad right-of-way, were many and iiu- 
merous residences, extending to and beyond the city 
limits on the west. The crossing, with five tracks, cover- 
ed a space of about fifty feet, over which there was 
constructed a plank walk about four feet wide, on the 
west side of Brand Street, over the railroad tracks, 
and there was a regular north-and-south wagon cross- 
ing, east of the sidewalk. The road-bed at this crossing 
was elevated above the ground on each side, the tracks 
being constructed on a fill, some four feet or more deep, 
extending west for about 1200 feet, and ending at the 
cut mentioned in evidence. The approach to the cross- 
ing from the south was up this incline to the road-bed 
and south switch track, parallel and connected with 
four other tracks, and connected with the next track 
north about 100 feet or more west of the crossing. The 
second track, traveling north, extended west from the 
crossing from 800 to 900 feet, where it connected with 
the next track north. The third track from the south, 
called in the evidence a ^* passing track," and at times 
used as the main track, continued west from the crossing 
some 1200 feet, where it connected with the next north 
track, called in the evidence, **the main track,'' which 
continued west from the crossing to Kansas City, Mis- 
souri. The north, or smtch track, extended west about 
200 or 300 feet, and connected with the main track. 
Plaintiff's evidence tends to show that the tracks at 
the crossing were about four feet and eight inches wide, 
between rails ; and the space between the main track and 
passing track was thirteen feet and two inches. The 
entire distance from outside of north rail to outside of 
south rail was about fifty feet. 

Plaintiff contends that a man on the crossing look- 
ing west along the tracks could see from 500 to GOO feet. 
Defendant contends that a uian anywliere on the cross- 
ing could see an engine approaching from the west for 



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Vol. 279 APRIL TERM, 1919. 103 



Murrell v. Railroad. 



at least a thousand feet. Substantial testimony was 
offered in support of each contention. 

The deceased came upon the board walk across the 
tracks, from the south, with his crutch and cane, and must 
have traveled north toward the main track where he was 
killed. The train was due at 11 :35 a. m. and arrived 
at 11:40 a. m. on the day of the accident. Plaintiff's 
evidence tends to show that Murrell was crossing over 
the north rail of the main track when struck and killed, 
as his headless body, his brains, pieces of his skull, 
broken crutch, hat and clothing, were found immediately 
after the train passed, north of the north rail of the 
main track, between the latter and the north switch 
track, and some portion of same was attached to slivers 
on the north rail of the main track, commencing about 
ten feet east of the plank walk, and continuing for some 
distance. 

Such other facts and circumstances shown by the 
record, as far as necessary, will be considered later, in 
connection with the instructions given and refused. 

At the conclusion of plaintiff's evidence, the defend- 
ant interposed a demurrer thereto, which was overruled 
and an exception saved. At the conclusion of all the 
evidence, defendant again asked the court to direct a 
verdict in its behalf, which request was refused, and an 
exception saved to the ruling of the court. 

The jury returned a verdict in favor of plaintiff for 
$2,000, and judgment was entered accordingly. Defend- 
ant, in due time, filed its motion for a new trial, which 
was overruled and the cause duly appealed by it to the 
Kansas City Court of Appeals, and certified to this 
court on account of the constitutional questions raised in 
the case. 

L The lease under which appellant was operating 

its trains over the property of defendant was executed 

in 1879. In its assignment of errors, defendant attacks 

the constitutionality of Section 2 of the Act of the 

General Assembly for 1870, at pages 90 and 91, 

approved March 24, 1870, and now known as Section 



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104 SUPREME COURT OF MISSOURI. 

Murrell y. Railroad. 

3078, Revised Statutes 1909, as foUows: ''Section 3078, 
Revised Statutes 1909, is unconstitutional for the reason 
that the bill when enacted contained more than one 
subject, which was not clearly expressed in the title, as 
provided by Section 28, Article 4, of the Constitution 
of Missouri/' 

The above charge is more specifically stated at page 
10 of appellant's brief, as follows: ''By reference to 
the title of the act, it will be observed that at no place 
in the title is any reference made to holding the railroad 
leasing its line of railroad liable, the same as though 
operating if 

The title to the Act of 1870, page 89, reads as fol- 
lows: "An Act to amend chapter sixty- three of the Gen- 
eral Statutes, entitled 'of railroad companies,' so as to 
authorize the consolidation, leasing and extension of 
railroads." (Italics ours). 

We had occasion to fully consider this subject in the 
recent case of Woodward Hardware Co. v. Fisher, 269 
Mo. 1. c. 276-9, where many recent authorities are collated, 
including some of those cited by appellant. We have no 
fault to find with the above cases, nor those cited by 
appellant, considered in connection with the general 
principles of law announced therein. In our opinion, 
they do not sustain appellant's contention, when applied 
to the facts before us. 

In the Act of 1870, supra, the Legislature had un- 
der consideration the subject, as to what aid railroad 
companies might furnish each other by way of extension 
lease or consolidation. The State, acting through its 
legislative agencies, had the undoubted right in the 
granting of railroad charters to corporations organized 
under the laws of this State, to prohibit them from 
leasing such roads to railroad corporations, chartered 
under the laws of another State. The General Assembly 
likewise possessed the power to authorize leases under 
such circumstances, and to designate the terms and con- 
ditions upon which such leases could be made. [Fleming 
V. Railroad, 263 Mo. 1. c. 186-7-8; Brown v. Railroad, 



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Vol 279 APRIL TERM, 1919. 105 



MvireU ▼. Railroad. 



256 Mo. L c. 533-4; Moorshead v. United Railways Co., 
203 Mo. 121; Dean v. Railroad, 199 Mo. 1. c. 390; Mar- 
key V. Railroad, 185 Mo. 348.] The same principle of law 
is recognized by Court in Banc in the recent case of 
State ex rel. v. Hemenway, 272 Mo. 1. c. 199. 

Appellant contends that the following portion of 
Section 2 of the Act of 1870, to-wit, *'and a corporation 
in this State leasing its road to a corporation of another 
State rfiall remain liaUe as if it operated the road itself 
relates to a different subject than the lease mentioned in 
the title to the act. We do not so interpret the act. On 
the contrary, we think it manifest that the Legislature 
mtended that the words quoted above should be constru- 
ed as an inseparable part of the lease itself. In other 
words, the title to the act provided that a lease might 
be made, but left the legal effect thereof to be deter- 
mined in the body of the act. They both relate to the 
same subject, and contemplate the making of a lease by 
the Missouri Corporation, to a railroad corporation of 
another State, with the understanding, that the former 
shall remain liable as if it operated the road itself. 

The cases cited by appellant are clearly distinguish • 
able from the case at bar in many particulars and are 
insufficient, in our opinion, to overturn the validity of 
the act under consideration. We accordingly rule that 
the Act of 1870 is not obnoxious to the criticism leveled 
against it in appellant's brief, and that it is a valid 
enactment. 

n. Appellant contends that the Higginsville speed 
ordinance of six miles an hour '4s unreasonable, uncon- 
stitutional, and an attempt to interfere with and regulate 
interstate commerce, contrary to Section 8 of 
5^1^,^^ Article I of the Constitution of the United 
States.'' The following authorities are cited 
in support of this contention: Lusk v. Town of Dora, 
224 Fed. 650; Zumault v. K. C. & I. Air Line, 71 Mo. 
App. 670; White v. Railroad, 44 Mo. App. 540; Platts- 
burg V. Hagenbush, 98 Mo. App. 669; Murphy v. Lindell 



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106 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

Ry. Co., 153 Mo. 252; Byington v. St. Louis R. R. Co., 
147 Mo. 673. 

In the Lusk case, supra, 224 Fed. 650, an injunction 
suit was brought to restrain the enforcement of a six- 
mile speed ordinance in a town of one thousand inhabi- 
tants. The court, under the peculiar facts of the case, 
sustained the injunction, and in doing so, at page 654, 
said: **This finding is predicated upon the idea that the 
danger to be apprehended can be adequately guarded 
against by property protecting the crossing or crossings 
that need protection by flagmen, without unnecessarily 
impeding the plaintiffs' operation of the railroad by so 
stringent a speed limit." 

The court, by its decree, required the railroad com- 
pany to maintain adequate protection against the 
hazards arising from the operation of trains over the 
crossings. It further appears that there was a watch- 
man stationed at the principal crossing. We do not 
think this case can have any application to the facts be- 
fore us. 

In Zumault v. K. C. & I. Air Line, 71 Mo. App., 670, 
decided by Judge Smith of the Kansas City Court of 
Appeals, it was held that the six-mile speed ordinance 
of Kansas City was inapplicable and oppressive in the 
operation of the Independence Air Line Railroad be- 
tween the Grand Central Depot and the eastern limits of 
the city. Judge Smith simply held that an ordinance 
might be declared unreasonable as to certain localities 
where there was no necessity for having a speed ordin- 
ance of this character. 

In White v. Railroad, 44 Mo. App. 540, a speed 
ordinance of four miles an hour through Marshfield, 
Missouri, was held to be unreasonable under the facts 
disclosed by the record in said case. On pages 542-3, 
the court said: **The uncontroverted facts show that the 
city has a population not exceeding fifteen hundred in- 
habitants, and that only about one-third of its area is 
platted, the residue consisting of farming lands. The 
restriction, if valid at all, extends over this entire area. 



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Vol. 279 APRIL TERM, 1919. 107 



Murrell v. Railroad. 



As far as the farm lands are concerned, the necessity of 
any restriction whatever is not obvious, and as far as 
the residue of the town is concerned, the necessity of a 
restriction to four miles an hour, which, as we know, is 
less than the maximum speed permitted in the most 
populous cities in this State, is equally not apparent. 
In the absence of any necessity shown, the restriction 
is cleariy unreasonable. If one city may adopt it, they 
all may, and thereby make rapid transit, in which the 
people of the entire State are interested, an impossibili- 
ty.*' In this case the ordinance was offered in evidence 
for the purpose of showing negligence, in a place where 
a cow was killed in the corporate limits. No such facts 
were presented, in regard to the necessity for sucn an 
ordinance as are shown in this case. The court does 
not intimate that a speed ordinance of six miles an hour 
would be held unreasonable, where the safety of the 
public demanded it. 

In Plattsburg v. Hagenbush, 98 Mo. App. 670, the 
court had before it a six-mile speed ordinance of said 
city, and which was attacked as being unreasonable. On 
page 673, Judge Smith said: '*We are unable to conclude 
that the limitation imposed by the ordinance, when ap- 
plied to trains running on that part of said railroad 
line between East Street and the western limits of the 
dty, is in the least unreasonable or oppressive. A 
like ordinance-limitation in what was doubtless a less 
populous city was held by the Supeme Court to be not 
unreasonable. [Robertson v. Railroad, 84 Mo. 119.] 
And so, too, it has been held by the same court that an 
ordinance of the City of St. Louis, limiting the speed 
of certain trains to six miles an hour, was not reason- 
able. [Gratiot v. Railroad, ante.] But it seems to us that 
the limitation as applicable to the movement of trains 
on that part of the said railroad between the eastern 
limits of the city and Second Street is wholly unneces- 
sary for the protection of the public." It is thus seen, 
from an examination of this case, that there was no 
intention to hold, that a city like Higginsville could not 



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108 SUPREME COURT OF MISSOURI. 

Murrell y. Railroad. 

pass an ordinance that would be effective at the place 
where Murrell was killed. 

In Murphy v. Lindell Ry. Co., 153 Mo. 252, and 
Byington v. St. Louis Railroad Co., 147 Mo. 673, cited 
by appellant, the validity of speed ordinances was not 
involved. The court, in those cases, held that unless the 
railway compaijies had accepted the ordinance which had 
been enacted, a third party would have no ri^t of 
action based thereon for violation of same. These two 
cases were practically overruled in Jackson v. Railway 
Co., 157 Mo. 622, and in Sluder v. Transit Co., 189 Mo. 
107 and following, decided by the Court in Banc. 

We do not find, upon a careful examination of the 
authorities cited by appellant, any ground for holding 
the ordinance in controversy void. On the other hand, 
by a long and unbroken line of decisions in this State, 
six-mile speed ordinances have been upheld by this court, 
in cities and towns where they were necessary for the 
public welfare, and to prevent accidents at public cross- 
ings. In the following cases, speed ordinances were up- 
held by this court, to-wit : Karle v. Railway Co., 55 Mo. 
1. c. 483, where a five-mile ordinance at St. Joseph was 
sustained; Robertson v. Railroad, 84 Mo. 1. c. 121, in 
which a six-mile ordinance in the town of Jamison was 
sustained; Merz v. Railway Co., 88 Mo. 1. c. 675, in 
which a six-mile ordinance in the city of St. Louis was 
sustained; Keim v. Railway Co., 90 Mo. 1. c. 321, in 
which the St. Louis six-mile ordinance was again 
sustained; Kelly v. Railway Co., 95 Mo. 1. c. 285-6, in 
which the St. Louis ordinance was again sustained; 
Eswin V. Railway Co., 96 Mo. 1. c. 294, in which the St 
Louis ordinance was again sustained ; Schlereth v. Bail- 
way Co., 96 Mo. 1. c. 512, in which this court again 
sustained the St. Louis ordinance ; Grube v. Railway Co., 
98 Mo. 1. c. 334, in which the six-mile speed ordinance of 
Kansas City was sustained ; Gratiot v. Railway Co., 116 
Mo. 1. c. 455, in which the St. Louis ordinance was again 
sustained ; Prewitt v. Railway Co., 134 Mo. 1. c. 619-20, 
in which a six-mile ordinance of Sedalia was aastained; 



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Vol 279 APRIL TERM, 1919. 109 



Murrell y. Railroad. 



Jackson v. Railway Co., 157 Mo. 621, in which a six- 
mile speed ordinance of West Plains was sustained, 
and the court, in its opinion, reviewed all the former au- 
thorities of this State in relation to this subject; Stotler 
V. Bailroad, 200 Mo. 1. c. 120, in which an eight-mile 
speed ordinance of Laddonia was sustained; King v. 
RaQway Co., 211 Mo. 1. c. 5, in which a six-mile ordi- 
nance of Elm Flat was sustained ; Johnson v. Railroad, 
259 Mo. 1. c. 544, in which an eight-mUe ordinance of 
Mexico was sustained; Hunt v. Railroad, 262 Mo. 1. c. 
275, in which a five-mile ordinance of Cape Girardeau 
was sustained. The last case cited was disposed of in 
Court in Banc. 

With this long line of decisions confronting us, 
sustaining six-mile ordinances, we have no disposition to 
declare invalid the one adopted by Higginsville in con- 
troversy here. As a police regulation it was the duty of 
the municipality to protect its citizens in the enjoyment 
of ;their rights, under such circumstances as are dis- 
closed in this record. 

According to the plaintiff's evidence, the Brand 
Street crossing was located in the heart of Higgins- 
ville, a city of the fourth class, containing 2700 in- 
habitants, and over which many people traveled to and 
from their places of business. 

Upon a full consideration of all the facts connected 
^th the case, we have reached the conclusion that the 
ordinance in question is not unreasonable and that, at 
the place where Murrell was killed, it was needed for 
tile protection of the public. 

ni. It is insisted by appellant, that the trial court 
conmiitted error in submitting the case to the jury on 
the last-chance theory. 

The petition undoubtedly states a good cause of ac- 
tion based upon the humanitarian rule, and stands un- 
challenged in defendant's assignment of errors. Plain- 
tiff's instruction numbered 3 correctly placed 
of EiidSct, before the jury the law in respect to this sub- 
ject, and is lUtewise unchallenged in appel- 



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110 SUPREME COURT OF MISSOURI. 

Murrell v. Railroad. 

lant's assignment of errors. Was the evidence sufficient 
to warrant the trial court in submitting this issue to the 
jury? 

At the close of plaintiff's case in chief, defendant's 
demurrer thereto was overruled and it put before the 
jury its own evidence. The sufficiency of plaintiff's 
testimony must be determined from all the evidence in 
the case. It was the province of the jury to pass upon 
the facts, and every inference which men of average 
intelligence and fairness might legimitately draw from 
the proven facts, must be indulged in favor of plaintiff, 
in considering the demurrer to the testimony. 

It may be conceded for the purposes of the case 
that deceased, at the time and place of the accident, was 
guilty of negligence which directly contributed to his 
own death, in failing to learn of the approach of the 
train before going upon the main track where he was 
killed. On the other hand, there was substantial evi- 
dence tending to show the following : That the servants 
in charge of the train were negligent in faiUng to ring 
the bell and keep it ringing, as required by the statute, 
before approaching the crossing where Murrell was 
killed ; that they were guilty of negligence in failing to 
give proper and timely danger signals after deceased 
was known to be in peril ; that they were guilty of negli- 
gence in violating the six-mile speed ordinance of 
Higginsville, and which they continued to violate until 
the time of killing ; that they were guilty of common-law 
negligence in running the train, at the time and place 
of accident, at a dangerous and unsafe rate of speed; 
that the engineer was guilty of negligence, in failing to 
reduce the rate of speed with which he was running, 
after seeing deceased in peril, and apparently oblivious 
of the approach of the train ; and was likewise negligent 
under such circumstances, in failing to give danger 
signals with a whistle, so as to arouse in deceased a 
realization of the danger into which he was then travel- 
ing. 



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Vol. 279 APRIL TEKM, 1919. Ill 



Murrell v. Railroad. 



In the absence of evidence to the contrary, the 
jury had the right to draw the inference that the 
engineer was at his place in the cab, looking toward the 
depot, as he owed that duty to the passengers on his 
train, as well as those who might be upon the crossing. 
[Reybum v. Railroad, 187 Mo. 1. c. 565-6.] The jury 
also had the right to infer from the facts before them, 
that the engineer and fireman were at their respective 
places in the cab, as evidence was oiBfered by defendant 
tending to show that the station whistle was sounded 
and that the bell was rung at some time before the 
crossing was made. Especially is this true, as the train 
stopped at the station and, hence, the engineer must 
have been performing the duty concerning the move- 
ments of the train. 

No witness claims to have seen deceased after he 
came upon the sidewalk and started across the tracks, 
or to have witnessed the killing, except one Joe Fleming, 
^ho testified in behalf of defendant. This witness was 
not only impeached, by other witnesses, who testified 
in the cause, but, in our opinion, his own testimony is 
inconsistent and self -contradictory. It is so at variance 
^th the physical facts, that neither court, nor jury, 
^ere bound to give credence to his testimony. But even 
this witness says that deceased, after he knew the train 
was coming, just started oflf and hobbled along on his 
crntch and stirrup as usual. 

Even if it be conceded that deceased was guilty of 
^^gligence, as heretofore stated, yet the jury had the 
^ight to infer from the other facts in the case, that the 
^^ngineer saw deceased in peril when the latter was less 
than 500 feet away, moving to a place of danger, ap- 
parently oblivious of the approach of the train. The evi- 
dence is undisputed that the train ran on over the cross- 
^^g twenty-five to thirty-five miles an hour, without the 
slightest effort to slow down the speed of same, when, 
oy so doing, even to the extent of two seconds, it would 
probably have saved the life of deceased. Plaintiff's 



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112 SUPREME COXJET OF MISSOUEL 

Murrell y. Railroad. 

evidence tends to show that deceased was in peril in 
front of a rapidly moving train, in plain view of the en- 
gineer for over 500 feet, when a few sharp blows of the 
whistle might have arrested his attention and saved 
him from entering upon the track. It is claimed on ac- 
count of the curve that the engineer may not have seen 
deceased approaching the track, but the jury had the 
right to infer from all the evidence, as the deceased was 
approaching the track on the same side of the engineer, 
that when the comparatively straight track of 500 feet 
was reached, the engineer could see down the track, and 
had a plain view of deceased, moving toward the main 
track where he was killed. As said in the Eeybum 
case, the jury had the right to take into consideration 
the further fact that the engineer and fireman were not 
produced as witnesses, when, of all other persons, they 
would have been better prepared to have given the actual 
facts, than any one else could have done. Unless the 
humanitarian rule in this State is to be abandoned, the 
facts before us present a plain case for its application. 
[Eeybum v. Eailroad, 187 Mo. 565 ; Eppstein v. Eailway 
Co., 197 Mo. 720; Hinzeman v. Eailroad, 199 Mo. 56; 
Holmes v. Eailway Co., 207 Mo. 149; Lynch v. Eailroad, 
208 Mo. 1. c 34; Butcher v. Eailroad, 241 Mo. 137; 
Maginnis v. Eaikoad, 268 Mo. 667, 187 S. W. 1165.] 

Many other well considered decisions of this court 
might be cited in line with the foregoing, but we deem the 
above sufScient to sustain the action of the trial court 
in overruling defendant's demurrer to the evidence and 
submitting the cause to the jury under the humanitarian 
rule. 

rV. We call especial attention to the cases of Eey- 
bum, Hinzeman and Holmes above cited, where the 

Oases. '^*'® ^^^ ^^^y ^^^ ^^t ^^d t^® principles of law 
governing the same are clearly defined. 
We have given full consideration to the assignment 
of errors submitted by appellant, as well as the propo- 
sitions discussed in the respective briefs on file in 



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Vol. 279 APEIL TERM, 1919. 113 

Maxwell v. Growney. 

the case. "We are satisfied from the record before us 
that the judgment below was for the right party, and 
it is accordingly affirmed. White and Mozley, CC, 
concur. 

PER CURIAM: — The foregoing opinion of Railby, 
C, is hereby adopted as the opinion of the court. All 
of the judges concur. 



JAMES E. MAXWELL v. JAMES C. GROWNEY, 

Appellant, et al. 

DiYlflloii Two, July 6, 1010. 

1. EZPBESS TBV8T: Power of BenefldAry to Mortgage. A deed giv- 
ing to the trustee power to seU, convey, pledge, mortgage or other- 
wise dispose of land, and to invest, re-Invest or use the money 
derived from any such sale, mortgage or pledge, or any income 
arising from said property, for the use, benefit, support and main- 
tenance of another, creates an express, active trust in the land, and 
gives to the beneficiary no power to sell or mortgage the same. 

2. : Pleading: Cause of Action: Present Interest. An allega- 
tion that it is now necessary that plaintiff, in the exercise of the 
powers conferred upon him as trustee by a certain trust instru- 
ment, either lease, sell or mortgage the lands for the purposes of 
the trust, and that a mortgage executed by the beneficiary consti- 
tutes a cloud upon the plaintiffs title and has heretofore and does 
now prevent the plaintiff from carrying out the provisions of 
said trust, states that plaintiff had an interest in the land at the 
time his suit was brought. 

8. : Cancellation of Beneficiary's Mortgage: Discovery of De- 
fect. A "mind of legal acuteness" is generally, if not always, re- 
quired to determine what rights of a beneficiary of a trust are 
alienable; and where the defect in the mortgage made by the 
beneficiary is of such a character as to render it invalid but 
can only be discovered by a mind of legal acuteness, a court of 
equity wiU remove it as a doud upon the trustee's title. 

4. : : Sufficient Facts. Where the trustee is unable to 

carry out the powers conferred upon him by the trust instrument 
unless the suspicion cast upon his title by a mortgage made by 
the beneficiary is removed, and there is no adequate legal remedy 
open to the trustee, a court of equity will, at his suit, cancel the 
mortgage. 
8—279 Mo. 



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114 SUPREME COURT OF MISSOURI. 

Maxwell v. Growney. 

Appeal from Buchanan Circuit Court. — Eon. Thomas 
B. Allen, Judge. 

Affirmed. 

James C. Groicney for appellant. 

(1) The petition in the instant case does not state 
facts sufficient to constitute a cause of action. It is not 
alleged that plaintiff at the time he filed his bill in 
1913, had any interest in the subject-matter in suit. 
The only allegation of interest is that in 1907 the 
land was conveyed to him as trustee. Shelton v. Horrell, 
232 Mo. 369; 17 Ency. PI. and Prac. p. 327. (2) The 
demurrer contained in appellant's answer should have 
been sustained for the reason that the allegation in 
the petition is, that the legal title is in the plaintiff, 
and that the defendant, John E. Maxwell, had not title 
or right to make the deed of trust to appellant, Growney. 
This shows that no grounds exist for the authority 
to invoke the aid of a court of equity to decree cancella- 
tion of said deed of trust for the allegation, if true, 
makes the deed of trust void and no extrinsic evidence 
is required to show its invalidity. Dunklin Co. v. 
Clark, 51 Mo. 60; Connecticut Ins. Co. v. Smith, 117 
Mo. 297; Thorp v. Miller, 137 Mo. 231; Hannibal Ry. Co. 
V. Nortoni, 154 Mo. 142. (3) The evidence in the 
instant case shows the defendant, John E. Maxwell, 
cestui que trust in possession of this land, asserting 
ownership thereof, and the plaintiff claiming title 
thereto, being out of possession, cannot invoke equitable 
jurisdiction to remove cloud upon title. Graves v. 
Ewart, 99 Mo. 18; Davis v. Sloan, 95 Mo. 552; Turner 
V. Hunter, 225 Mo. 83. (4) The trust instrument is 
not a trust for an infant ; it is not a trust for a person 
non compos mentis; it is not a trust for a spendthrift, 
because the instrument does not withhold from the 
cestui que trust the right of possession, neither does it 
deprive oi withhold from him the right to alienate his 



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Vol. 279 APRIL TERM, 1919. 115 



Maxwell v. Growney. 



equitable interest in the trust estate. Kessner v. Phillips, 
189 Mo. 524; Wenzel v. Powder, 59 Atl. 194; Heaton 
V. Dickson, 153 Mo. App. 326. (5) The instrument 
carried the corpus of the estate, as well as the income 
for his use and benefit. It all belongs to him, and in 
equity he is the absolute owner thereof and can mort- 
gage it. 1 Perry on Trusts (5 Ed.), sec. 321; 2 Perry 
on Trusts (5 Ed.), sec. 815; 39 Cyc. 203-229; 28 Am. 
& Eng. Ency. Law (2 Ed.), 1107; Wenzel v. Powder, 59 
Atl. 197. (6) The evidence in this case is to the effect 
that the cestui que trust John E. Maxwell, has elected 
to take the trust estate as it exists — the land. That he 
is in possession thereof; that the plaintiff trustee ad- 
mits that the cestui que trust had denied him any right to 
manage or control the trust estate. That the cestui 
que trust is enjoying the possession with the rents and 
profits thereof. IFnder such circumstances a surrender 
has been made by the trustee and the legal title with 
the possession has vested in the cestui que trust. Perry 
on Trufit (5 Ed.), sees. 349, 351, 920; Sears v. Choate, 
146 Mass. 398; Sparhawk v. Cloon, 125 Mass. 263. 

Culver & Phillip for respondent. 

(1) The petition alleges that plaintiff has an in- 
terest in the subject-matter of the suit. (2) The cestui 
que trust had no power to sell, convey or encumber 
the trust property. (3) The beneficiary is not even 
given the right to occupy the land, nor any power or 
control over the sale or disposition thereof, while the 
trustee is given full power to sell, mortgage and convey. 
This vests in the trustee *Hhe fuH fee in the real estate 
itself." Cornwellv. Wulff, 148 Mo. 542. The estate of 
the trustee is commensurate with the powers conferred 
by the trust. Ewing v. Shannahan, 113 Mo. 18«; 38 
Cyc. 208; Higbee v. Brockenbrough, 191 S. W. 995. 
Under such circumstances the corpus of the trust estate 
is not liable to the payment of a judgment against the 
cestui que trust, the only theory on which this could be 



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116 SUPREME COURT OF MISSOURI. 

Maxwell y. Growney. 

done being that the trust was a dry one, imposing no 
active duties on the trustee. Heaton v. Trust Company, 
153 Mo. App. 328. Where the cestui que trust enjoys 
only the income or support and maintenance from the 
principal and the trustee -is charged with any control 
over the trust estate, then the trust is an active one. 
Pugh V. Hayes, 113 Mo. 431; Walton v. Ketchum, 147 
Mo. 218; Freeman v. Maxwell, 262 Mo. 24. The cases 
even go to the extent of holding that where the trust 
is an active one it is the duty of the trustee to protect 
the trust estate, and if the trustee becomes barred by 
limitation, the cestui que trust, even though under 
disability such as infancy, coveture, etc., is likewise 
barred. Simpson v. Erisner, 155 Mo. 157. Moreover 
** where the trustee is not merely the recipient of the 
title for the use of the beneficiary, where he has a duty 
to perform in relation to the property which calls for 
the exercise of judgment and discretion, it is an active 
trust, and is not affected by the Statute of Uses." Webb 
V. Hayden, 166 Mo. 39. 

WILLIAMS, P. J. — This is a suit in equity to cancel 
and annul a certain deed of trust upon real estate. 
Trial was had in the Circuit Court of Buchanan County, 
which resulted in favor of plaintiff, canceling the deed 
of trust. From that judgment James C. Growney, the 
cestui que trust, duly perfected an appeal. 

The facts may be summarized as follows: 

On January 14, 1907, Margaret E. Smith et al. 
conveyed by warranty deed, to the plaintiff, in trust for 
defendant John E. Maxwell, Sr., five acres of land in 
Buchanan County. The deed was made subject to a 
life estate in said property in favor of James Maxwell 
and Malinda Maxwell. 

John E. Maxwell, Sr., named in said deed is the 
father, and James Maxwell and Malinda Maxwell (life 
tenants) were the grandfather and grandmother, of 
plaintiff, James E. Maxwell, named as trustees in said 
deed. 



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VoL 279 APRIL TERM, 1919. 117 

Maxwell v. Growney. 

The powers given plaintiff as trustee are stated 
in the deed as follows : 

** Giving and granting to said trustee full power 
and authority to grant, bargain, sell, convey, pledge, 
mortgage or otherwise dispose of said property, to 
invest, re-invest or use the money derived from any 
such sale, mortgage or pledge of said property or any 
income derived therefrom, for the use, benefit, support 
and maintenance of said John E. Maxwell, Sr.'* 

The above deed was duly recorded January 15, 
1907. 

The survivor of the two life tenants died in 1912, 
or 1913 and shortly thereafter John E. Maxwell Sr., 
**went out and took possession of the land." 

On March 23, 1914, John E. Maxwell, Sr., executed 
a deed of trust (being the deed of trust involved in 
the present suit) on said land, to secure the payment of 
a note of even date in the sum of $300 payable to 
defendant (appellant) James C. Growney. 

On the following day said James C. Growney, 
acting as the attorney for John E. Maxwell, Sr., filed a 
suit in the Circuit Court of Buchanan County against 
the present plaintiff, the object and general nature 
of which was to have the legal title to said land vested 
in John E. Maxwell, Sr., or, failing in that, to have 
the trustee removed and a new trustee appointed. The 
ease was tried, resulting in a judgment in favor of 
the trust and also in favor of the trustee, and no 
appeal was taken from said decree. 

The evidence further tends to show that John E. 
Maxwell, Sr., moved *'back to town" (St. Joseph, Mo.) 
in the fall of 1915, and that there was no one on the 
property at the time this suit was tried. 

The plaintiff trustee testified that his father was 
without other means of support; that he (the son) had 
paid for the board and clothes of his father for the 
past several years and that in August, 1915, he as 
trustee decided to sell or mortgage the property for 
the puri)ose of raising the necessary money with which 



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118 SUPREME COUET OF MISSOURI. 

Maxwell v. Growney. 

to support his father under the terms of the trust; 
that he then discovered for the first time the deed of 
trust given to secure the $300 note to defendant Grow- 
ney ; that by reason of the existence of the Growney deed 
of trust he was unable to borrow any money on the 
land. 

Hence this suit to cancel the deed of trust, in order 
that the trustee might not be hampered in the execution 
of said trust. 

I. It will be noticed that the respondent trustee is 
given full and complete, discretionary control over the 

trust estate. Under the express terms of that 
^^®^ power he may sell, mortgage or otherwise dis- 
pose of said property; may re-invest the pro- 
ceeds thereof or use the money derived from any such 
sale or mortgage or the income thereof for the support 
of the named beneficiary. The trust created in said land 
was therefore an express active trust. [Freeman v. Max- 
well, 262 Mo. 1. c 24; 3 Pomeroy's Equity Jur. (3 Ed.) 
par. 991.] 

The full and express powers conferred upon the 
trustee clearly excluded the idea that the beneficiary 
was given a like power of disposal. It therefore follows 
that the beneficiary did not have an alienable interest 
in the land which he attempted to incumber with the 
deed of trust. [Partridge v. Cavender 96 Mo. 452; 
Higbee v. Brockenbrough, 191 S. W. Rep. 994.] 

The above being true the deed of trust should bo 
held as having no effect whatever upon the title to this 
land nor the powers of the trustee thereover. 

II. It is contended by appellant that plaintiff's bill 
fails to state a cause of action in that it fails to allege 

that plaintiff had an interest in the land at the 

S^wst *™® *^^ ^^^* ^^'^^ fA^A; citing, Shelton 
v. Horrell, 282 Mo. 1. c. 369. 
The petition after alleging that the land was con- 
veyed to him in trust, etc., in 1907 proceeds: **That it 



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Vol. 279 APRIL TERM, 1919. 119 



Maxwell v. Growney. 



is now necessaiy and advisible that plaintiff in the exer- 
cise of the powers conferred upon him as said trustee, 
either lease or sell or dispose of or encumber said lands 
for the purposes of said trust, but that said deed of 
trust so executed to said defendant Growney . . . 
constitutes a cloud on the title of the plaintiff in and to 
said real estate and has heretofore prevented and does 
now prevent the plaintiff *from carrying out the pro- 
visions of said trust.' " (Italics ours.) 

A mere reference to the foregoing portion of the 
bill is we think entirely sufficient to distinguish this 
case from the Shelton case, supra, and to show that 
plaintiff's present interest in the subject-matter of 
the suit was sufficiently alleged. 

III. We are also of the opinion that the trial court 
acting as a court of equity properly cancelled 
Canc^tioii jjj^ j^^^ ^£ trust in question. 

Appellant in insisting to the contrary 
relies upon a line of cases of which Hannibal & St. J. 
Ey. Co. V. Nortoni, 154 Mo. 142, 1. c. 149, is a fair type. 
In that case the court said: ''The deed from Blake to 
defendants is clearly void on its face, because Blake had 
no title whatever to the land, which was apparent from 
the records of deeds in the Recorder's office of the 
county. Under such circumstances a court of equity 
win not lend its aid to remove what is claimed to be 
a cloud upon the title, because there is an adequate 
remedy at law, and it is only where the deed sought 
to be removed as a cloud does not appear to be void 
upon its face, but is void by reason of some other 
infirmity, and extrinsic evidence has to be resorted to 
for the purpose of establishing its invalidity, or the 
defect is of such a character as to render the deed in- 
valid but can only be discovered by a mind of legal 
acuteness, that it will do so." 

The rule above announced will not protect appellant 
under the present situation. A ''mind of legal acute- 
ness ' ' is generally, if not always, required to determine 



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120 SUPREME COURT OF MISSOURI 

Dobschutz T. Dobscbutz. 

what rights of a beneficiary of a trust are alienaWe. 
This will become quite apparent to any researcher. 
[Vide the many authorities reviewed in 3 Pomeroy^s 
Equity Jurisprudence (3 Ed.), par. 989, p. 1840, note 5, 
and par. 1005 and cases cited thereunder. See also 39 
Cyc. 234 (e) and numerous cases thereunder.] 

From the uncontradicted evidence in the case at 
bar it clearly appears that the trustee is unable to 
carry out the power conferred upon him by the settlors 
of the trust, unless the suspicion cast upon the trustee's 
title by the deed of trust in question is removed by the 
decree of a court of equity. There is no adequate legal 
remedy open to the trustee. His only adequate relief is 
in equity and we are of the opinion that the trial court 
did not go beyond its equitable powers in awarding 
relief under the circumstances now held in review. 
[Jewett V. Boardman, 181 Mo. 1. c. 656-7; Poooke v. 
Peterson, 256 Mo. 518-9.] 

The judgment is afiirmed. All concur. 



JOHN CALVIN DOBSCHUTZ et al. v. LOUISA DOB- 
SCHUTZ et al.. Appellants. 

DiYlflloii Two, July 5, 1910. 

1. FOREIGN WILL: EiTect in TUB State. The wUl of a resident of 
lUinols, executed and probated there, when a copy duly authen- 
ticated is filed for record in this State, wiU take effect and be 
interpreted according to the laws of this State, exactly as if it 
had been originally proved here. 

2. : : Partition. Children, residents of Illinois, not men- 
tioned in their father's will, by which he attempted to deTise all 
his property, wherever situate, to his widow, may maintain a par- 
tition proceeding in the courts of this State and assert the 
same rights' to land in this State, belonging to testator at the 
time of his death, that they could have done had he left no will. 

8. : : Ck)ntrary to WiU and Statute. Children "not 

named or provided for" in their father's will, by bringing suit 
for the partition of lands belonging to him at the time of his 



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Vol 279 APRIL TERM 1919. 121 

DobBchutz T. Dobschutz. 

death, do not seek partition contrary to any will which afPects 
them, and consequently Section 2569» Revised Statutes 1909, which 
proTidea that no partition of lands devised by any last will 
shall be made contrary to the intention ot the testator as ez- 
I pressed in the will, has no application to them. 

i 

j Appeal from Ste. Genevieve Circuit Court. — Hon. Peter 

H. Buck, Judge. 

I 

Affibmed. - ~ 

! 

John J. O'Connor for appellants. 

(1) Plaintiffs are barred from recovering under 
j the second cause of action by Sec. 2569, B. S. 1909, 

! which says that **no partition or sale of lands devised by 

j any last will shall be made contrary to the intention 

I of the testator, expressed in any such will.'* Stuart 

V. Jones, 219 Mo. 635; Sikemeier v. Galvin, 124 Mo. 
I 367; Cubbage v. Franklin, 62 Mo. 364; Cannon v. 

I Cannon, 175 Mo. App. 88; Stevens v. De La Vaulx, 

I 166 Mo. 20; Stevens v. Larwill, 110 Mo. App. 151. (2) 

Land owned in this State by a deceased non-resident 
! shall be disposed of according to his last will. Sec. 

260, B. S. 1909. (3) Where a remedy is part of an 

entire and complete scheme of law a* in the '*law of 

partition,'^ and one adopts that remedy, he must recover 
i under that law or fail. If plaintiffs have mistaken their 

remedy, equity will not aid them. State ex rel. v. Allen, 

45 Mo. App. 551. 

Charles Fensky and M. E. Rhodes for respondents. 

(1) A will devising real estate situated in the State 
of Missouri must be executed according to the laws of 
this State. Sec. 567, E. S. 1909. (2) If any person 
make his last will and die leaving a child or children, 
j or descendant of such child or children, not named or 

I provided for in gfaid will, such testator, so far as re- 

gards such child or children or their descendant not 
provided for, shall be deemed to die intestate. Sec. 



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122 SUPREME COURT OF MISSOURI. 

Dobschutz y. Dobschutz. 

544, K. S. 1909; Bradley v. Bradley, 24 Mo. 311; Har- 
gadine v. Pulte, 27 Mo. 423; Thomas v. Block, 113 
Mo. 66; Breidenstein v. Bertram, 198 Mo. 328; Vantine 
V. Butler, 250 Mo. 451. (3) In partition the interest 
of children omitted from the will can be determined, 
and all rights and equities between all persons inter- 
ested in the real estate can be determined, in such pro- 
ceeding. Breidenstein v. Bertrajn, 198 Mo. 344. (4) 
Under the law plaintiffs' rights secured to them by 
Sec. 554, R. S. 1909, are not affected," whether. a will 
is established or annulled, and their right to maintain 
this action for their share of said real estate situated 
in Missouri would be the same as though their father 
died without a will. Vantine v. Butler, 250 Mo. 451. 

WHITE, C— This action seeks the partition of a 
large tract of land in Ste. Genevieve County. The plain- 
tiffs are four children and heirs, of whom there were 
ten in all, of Moritz J. Dobschutz, deceased; the de- 
fendant, Louisa Dobschutz, is his widow, and the other 
defendants his six remaining children. 

Moritz Dobschutz, who owned the land at the time 
of his death, lived and died at Belleville, Illinois, and 
reared his family there. All the parties were at all 
times residents of the State of Illinois. The land was 
wild; neither Dobschutz nor any of his children ever 
lived on any part of it. The petition alleges the rela- 
tionship of the parties, the death of Moritz Dobschutz, 
that the widow has a dower, and the plaintiffs and re- 
maining defendants are tenants in common of the prop- 
erty, subject to said dower, each being entitled to an 
undivided one-tenth interest, and prays for partition 
in the usual form. 

Defendants' answer, admitting the ownership of the 
land in Moritz Dobschutz at the time of his death, set 
out at length in defense the will of Moritz Dobschutz, 
which was admitted to probate in the probate court 
of St. Clair County, Illinois, on July 31, 1913, and a 
copy, duly authenticated, filed for record in the oflSce 



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Vol. 279 



APRIL TERM, 1919. 



123 



Dobschutz Y. Dobschutz. 



of tlie Recorder of Deeds of Ste. Genevieve County, 

Moritz died June 24, 1913. The will left all the property, 

real and personal, of the testator to his wife Louisa 

Dobschutz. No mention of any kind of any of testator's 

children was made in the will. On a trial of the case 

there was a judgment for plaintiffs as prayed in the 

X)etition, and the -defendants appealed. 

I. The rule prevails, not only in this State, but is 
of universal application, that the title to land can be 
acquired only according to the law of the place where 

it is situate. Land may be devised in this 
^J^Jf^ State by a non-resident testator, but his will 

will take effect and be interpreted according 
to the law of this State. Section 567, Revised Statutes 
1909. [Hughes v. Winkleman, 243 Mo. 1. c. 92; Keith 
V. Keith, 97 Mo. 223, 1. c. 230.] The will of Moritz 
Dobschutz can have the same effect and only the effect 
it would have if he had been a resident of this State 
and his iiill had been originally proved in this State. 

n. The appellants assert that the judgment here 
was erroneous because in conflict with Section 2569, 
Revised Statutes 1909, which provides that no partition 
of lands devised by any last will shall be made contrary 
to the intention of the testator as expressed in the will. 
It is argued that having elected to pursue the statutory 
remedy by proceeding in partition, the plaintiffs are 
bound by all the provisions of the statute relating to 
partition, including that section. The will gives the real 
estate in dispute in fee simple to the widow, Louisa 
Dobschutz; therefore the partition decree is in direct 
conflict with the very statute under which the plaintiffs 
are proceeding. 

Section 544, Revised Statutes 1909, provides that if 

any person make his last will and die leaving a child or 

children, or descendants of such child or children in 

case of their death, *'not named or provided for in such 

will, ^ ' snch testator shall be deemed to have died intes- 



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124 STJPBEME COURT OF MISSOUEI. 

Dobschntz y. Dobscbutz. 

tate as regards snch child or children or their descend- 
ants; Under the plain, unequivocal provision of that 
section the plaintiffs are not seeking partition contrary 
to any will which affects them. So far as they are con- 
cerned there is no will; he died intestate as to them. 
They are no more bound by the terms of the will in re- 
spect to their remedies, than they are in respect to 
their substantive rights. 

It has been held by this court that a pretermitted 
heir may maintain an action for partition of land dis- 
posed of by a will in which he was not mentioned or 
provided for; that is, he may ** assert his rights under 
the statute creating an intestacy as to him.'* [Brei- 
denstein v. Bertram, 198 Mo. 1. c. 344; Vantine v. But- 
ler, 250 Mo. 1. c. 451.] 

Appellants rely upon two cases in support of their 
position where it is held that partition cannot be made 
contrary to the terms of the will. In the first case, Ste- 
vens V. Larwill, 110 Mo. App. 140, there were no chil- 
dren or other descendants parties to the proceeding, and 
Section 544 could have no application ; and besides, the 
parties plaintiff, collateral relatives, were expressly 
mentioned in the will. In the other case, Stewart v. 
Janes, 219 Mo. 614, 1. c. 638, the plaintiff, who sought 
the partition contrary to the terms of the will, asserted 
rights which arose under the will. He could not main- 
tain partition contrary to the terms of the will under 
which he claimed. 

Section 544 would have no meaning if plaintiffs were 
denied their right to sue in this case. 

The judgment is affirmed. Modey, C, concurs; Bai- 
ley, C, not sitting. 

PER CURIAM:— The foregoing opinion by Whitb, 
C, has been adopted as the opinion of the court. All of 
the judges concur. 



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Vol. 279 APRIL TERM, 1919. 125 

Hendren y. Neeper. 



LA COSETTE HENDREN et al., Trustees, Appellants, 
V. FREDERICK W. NEEPER et al. 

IhTlsion Two, July 6, 1919. 

OOBPOBATION: Sale of Propertios: Annihilation: Injunction. A cor- 
poration organized for the express purpose of buying and selling 
real estate will not be destroyed by a sale of a large tract of land 
belonging to it; and an injunction suit to enjoin the sale, brought 
by a minority of the directors against the majority, who in regu- 
lar meeting assembled haye authorized the sale, cannot be main- 
tained on the ground that such sale will annihilate the corporation. 

Appeal from Hannibal Court of Common Pleas. — Hon. 
William T, Ragland, Judge. 

Affibmed. 

F. L. Schofield for appellants. 

(1) Although the powers of the corporation as 
they are set out in the articles of agreement are broad 
enough to include the buying and selling and dealing 
in real estate generally, yet the incorporators, neither 
at the time of entering into the articles of agreement 
nor since, ever contemplated or purposed the exercise of 
these broader powers. (2) The intentions or things 
purposed by the corporation itself, if such intentions 
and purposes are to be considered apart from the wish 
and will of those who have constituently composed 
it, must be gathered from the business to which it has 
always confined itself. (3) Whatever the real and ac- 
tual ultimate intentions and purposes, whether of the 
incorporators or of the corporation itself, may have 
been, these ultimate intentions and purposes, conceding 
that they have all the time existed, have always reposed 
in the corporate body itself, and have never been dele- 
gated or committed to its board of directors; and un- 
til BO designated and committed by antecedent action of 



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126 SUPREME COURT OF MISSOURI. 

Hendren v. Keeper. 

the stockholders, the directors possess no power or 
authority in the premises. (4) Notwithstanding its 
corporate powers extended to the buying and selling and 
dealing in real estate generally, it has never exercised 
such powers. It has never bought or sold an acre of 
land. Its corporate purposes, corporate efforts, corpor- 
ate enterprise and practically sole and only corporate 
business, from the time of its organization down to 
the time of the commencement of this suit, have 
been confined to its primary purpose of owning, farm- 
ing and improving the single body of lands acquired by 
it in the very processes of its organization. For the 
corporation to now go forward in the exercise of its 
ulterior powers by selling off the entire body of these 
lands and, with the proceeds, engaging in the business 
of buying and selling and dealing in real estate gen- 
erally *'at any place within the United States of Am- 
erica," would be a radical and complete change in its 
business and affairs, and it belongs to the corporate 
body alone, through the proper action of its members 
and stockholders, to determine whether or not it will 
make so vital a change. 2 Cook on Corp. sec. 670; 
Morawetz on Corp., sees. 238, 239, 240; Railway Co. v. 
illerton, 18 Wal. 233; Buford v. K. N. L. Packet Co., 
3 Mo. App. 166; 7 Am. & Eng. Ency. Law, p. 734, 735; 
26 Am. & Eng. Ency. Law, p. 965 ; Hunt v. Am. Grocery 
Co., 81 Fed. 532; Metcalf v. Am. School Furn. Col. 
122 Fed. 115; City of St. L. v. St. L. Gaslight Co., 70 
Mo. 98; Field v. Eoanoke Inv. Co., 123 Mo. 603; Gill 
V. Balis, 72 Mo. 424, 433; Cummings v. Parker, 250 
Mo. 441. 

Eby S Hvlse and F. W. Keeper for respondents. 

(1) If the charter of a corporation expressly au- 
thorized a lease or sale of the corporate property, such 
a lease or sale may be made by a majority of the direc- 
tors in meeting assembled, and the minority are bound 
thereby. It is immaterial what the terms of the lease 
may be, or whether advantageous or disadvantageous 



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Vol. 279 APRIL TEEM, 1919. 127 



Hendren v. Neeper. 



to the stockholders. The dissenting minority have no 
remedy unless fraud can be shown. 2 Cook on Stock 
(3 Ed.), sec. 898. (2) At common law the directors 
have powers co-extensive with those of the corporation, 
and have not a mere delegated authority as common 
agents ; and in the absence of restrictions in the charter 
or by-laws, directors have all the authority of the cor- 
poration itself in the conduct of its ordinary business. 
Generally, whatever directors do, within the scope and 
powers of the corporation, the corporation does. 1 
Beach on Private Corporations, sec. 227; Conyngton 
on Corporate Management, p. 23, sec. 31; Tanner v. 
Railway Co., 180 Mo. 17; City of St. Louis v. St. 
Louis Gaslight Co., 70 Mo. 98. 

MOZLEY, C. — ^Injunction by the minority of the 
board of directors of the Hannibal, Missouri, Land 
Company against the majority of said board, seeking 
to restrain said majority from selling about twenty-eight 
hundred acres of land owned by the Hannibal, Missouri, 
Land Company, a corporation. 

The said Land Company was duly organized as a 
corporation on or about the 9th day of June, 1904, un- 
der Article 7, Chapter 12, Revised Statutes 1899. The 
land involved was formerly owned by William A. Mun- 
ger and his brother, Lyman P. Munger, and is situated 
in Marion County, Missouri. The two Mungers and 
Lucy A. Munger, the wife of Lyman P. Munger, formed 
the incorporation. William A. Munger had five hun- 
dred shares, his brother, Lyman P. Munger, had four 
hundred and ninety-nine shares, and Lucy A. Munger, 
one share, all of the par value of one hundred dollars 
each. Upon the organization of said corporation, said 
William A. Munger, said Lyman P. Munger and his 
wife, Lucy A. Munger, deeded the whole of the lands re- 
ferred to, to the corporation, the Hannibal, Missouri, 
Land Company, and received therefor certificates of 
gtock in proportion to the shares they had subscribed. 
In the articles of incorporation it was provided as fol- 



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128 SUPEEME COURT OF MISSOURI. 

Hendren v. Keeper. 

lows: **The purposes for which this incorporation is 
formed are to buy and sell real estate, both farm and 
city property, at any place within the United States 
of America; and to own and hold, operate and control 
such real Qstate and to exercise such acts of ownership 
and control over the same as may be exercised over 
the ownership and control of real estate by a private 
citizen of the State of Missouri/' 

Lyman P. Munger departed this life on or about the 
28th day of February, 1906, leaving a will in which he 
bequeathed all of his said capital stock in said corpora- 
tion to his wife, Lucy A. Munger. On the day of 

May, 1911, the said William A. Munger departed this 
life, leaving a will in which plaintiffs. La Cosette Hen- 
dren and Thomas P. Head, were named and appointed ex- 
ecutors, and bequeathing his said five hundred shares of 
the capital stock in said corporation to the said executors 
as trustees, with power of ultimate sale and distribu- 
tion to certain named parties, who were to be the bene- 
ficiaries of the said William A. Mimger. Thereafter the 
said Lucy A. Munger transferred one share of said 
stock to the defendant Frederick W. Neeper, and after- 
wards died, leaving a will duly proved and admitted to 
probate, whereby she bequeathed all of her remaining 
capital stock, namely, four hundred and ninety-nine 
shares, to the defendant Leigh A. Neeper. In addition 
to the lands above referred to, the Mungers owned about 
1650 acres each in Illinois, and it, after the organization 
of the corporation, was handled through the corporation. 
The corporation owns other property beside that men- 
tioned, and had about $5000 in cash. It is conceded in 
the record that the defendants constituted a majority 
of the board of directors of said corporation. 

At the regular annual meeting of the board of di- 
rectors of said company, one William A. Rinehart had 
submitted a proposition in writing to buy said 2800 
acres referred to, and pay therefor to said company the 
sum of $124,500. All of the members of said board 
were present at said regular meeting, and the proposi- 



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Vol. 279 APRIL TERM, 1919. 129 



Hendren v. Neeper. 



tion of Rinehart was duly laid before the board by de- 
fendant Frederick W. Neeper, one of said directors and 
the then president of said corporation. The matter was 
passed over from time to time mitil the 14th day of 
March, when said proposition was accepted by a major- 
ity vote of said board of directors, by resolution duly 
passed, and said board contracted to sell said lands 
for $124,500 as follows : $20,000 cash, upon the execution 
of the deed, and the further sum of $104,500 in three 
annual installments, payable respectively in one, two 
and three years from date of said sale, with interest 
on each of said deferred payments at five and oi^e-half 
per cent, per annum from the date of sale, and the said 
Binehart wag to convey, by trust deed, to the corpora- 
tion, said lands, to secure the payment of the balance on 
the purchase price of same. The plaintiffs, as trustees, 
at this juncture, instituted this action to enjoin the con- 
flnmmation of said sale. On a trial in the Hannibal Court 
of Common Pleas the chancellor found the issues for 
defendants, denied plaintiffs injunctive relief or any re- 
^6f) and dismissed the bill. From that decree, plaintiffs 
appealed to the Saint Louis Court of Appeals, which 
court, because the amount involved is in excess of its 
JDnsdietion, certified the cause to this court. 
Appellants assign error as follows: 

(1) Under the law and all the evidence the finding 
and decree should have been for plaintiffs, awarding 
the relief prayed. The court erred in finding for de- 
fendants and in rendering a decree dismissing plaintiffs ' 
bill. 

(2) The court erred in overruling plaintiffs* motion 
for a rehearing and a new trial and their motion in 
arrest of judgment. 

Under these assignments the contention is made 
by appellants that if the sale of the land in controversy 
i« consummated, it \vill result in annihilating the corpora- 
^^^ tion and that this cannot be done without 

oJjJSw. ^^ consent of all the stockholders. We 
cannot subscribe to that view. To do so 

»— 279 Mo. 



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130 SUPREME COURT OF MISSOURI. 

Hendren y. Keeper. 

would be to lose sight of the purposes for which the cor- 
poration was formed. Its charter powers expressly au- 
thorizes it to buy and sell real estate — in fact recites 
that the corporation was formed for that purpose. The 
sale of the land in question has no reference to the de- 
struction of the corporation, it is merely carrying out 
the specific charter power the corporation possesses. 
Nor is there anything in the record that discloses any 
attempt or desire, in making this sale, upon the part 
of the majority of the directors, to interfere with the 
integrity of the. corporation. 

Cook, in his admirable treatise on corporations, 
states the following as the law: *'The law seems to be 
clear that all corporate contracts are to be made by the 
directors. This includes original contracts as well as 
modifications of them. If a. contract is within the ex- 
press or implied powers of the corporation, then the 
directors need not consult the stockholders nor follow 
their wishes, even though the latter constitute a majority 
or a minority, and though these stockholders object in 
meeting assembled or individually in the courts.'* [Vol. 
3, par. 709, p. 2423.] Further in the same volume, para-^ 
graph 712, page 2435, it is said: **A11 contracts of a 
corporation are to be made by or under the direction of 
its board of directors. And in all cases the board of 
directors and not the stockholders, nor the president, 
secretary, treasurer, or other agent, is the original and 
supreme power in corporation to make corporate con- 
tracts. The stockholders, indeed, have very few func- 
tions. The board of directors have the widest of powers. 
All of the various acts and contracts which a corporation 
may enter into are entered into by and through the 
board of directors. The board of directors make or 
authorize th- making of the notes, bills, mortgages, 
sales, deeds, liens, and contracts generally of the corpora- 
tion." 

We think there is no doubt that the majority of the 
board of directors were acting expressly with the charter 
powers of the corporation in making said contract of 



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Vol. 279 APRIL TEEM, 1919. 131 



I 



Stegmann v. Weeke. 



sale to Rinehart, and that said sale is legal and the 
corporation bound thereby. 

Entertaining these views, it results that the decree 
of the lower court will be aflBrmed. It is so ordered. 
White, C, concurs; Railey, C, absent. 

PER CURIAM : — The foregoing opinion of Mo2aLEY, 
C, 18 adopted as the opinion of the court. All of the 
judges concur. 



FEED STEOMANN et. al., Appellants, v. HENRY L. 
WEEKE, Commissioner of Weights and Measures 
of City of St. Louis. 

(No. 21,151) 

IhTlsioii Two, July 6, 1919. 

^ ^^nTNonON: Dismissal Without Hearing. In an injunction. If 
^e bill states a cause of action entitling plaintiff to a hearing on 
^e merits and he does not in any way waiye his right to have the 
^^^^ proceed in due course, it would seem, though it is not decided, 
^bat, under Sec. 2532, R. S. 1909, the court is not authorized to 
dismiss the bill without a hearing on the merits and without 
^^'^ passed upon the matter ot issuing a temporary restrain- 
ing order. 

^' ^^^A^UEEMBNTS: Unlawful Boshel: Prescribed By Ordinance. 
p^ ^i*dinance which prescribes that a bushel box shall be 23V4 
"C^ea long, 9% inches deep and 11 inches wide calls for a box 
^^^^ cubical content is 2493.5 inches, and is contrary to the 
®«^^t« (Sec. 11961, R. S. 1909) which says the content of a 

siiqI ^^^y ^ 2150.4 cubic inches, and attempts to make unlaw- 
^ ^l^e use of a box of any other dimensions, even though it con- 

'^^'i the exact statutory content. 

' ^^ CASE: Abatement: Costs. An appeal from a Judgment dis- 

Jf^^tig plaintiffs' bill for an injunction at their cost will not 

^ unless thereby they are given a full measure of relief. Be- 

^ a defendant may abate a case by complying with the de- 

^^Q of the petition, he must comply with all its demands, in- 

^^^dlug the payment of costs. 

* ""■ : : Injunction: Threat to Oontinue Wrong. An injunc- 

"^'^ to restrain a city officer from destroying the market boxes of 
P^iixtifls, who are farmers and gardeners, vrill not abate an ap- 



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132 SUPREME COURT OF MISSOURI. 

Stegmann v. Weeke. 

peal on the ground that the objectionable sections of the ordinance 
under which defendant had destroyed their boxes had been re- 
pealed after the case was submitted and others enacted in lieu 
thereof, if the defendant has threatened to destroy, without a 
hearing, all boxes he believes to be of different dimensions from 
those prescribed by the ordinance as amended. In Tiew of such 
threat, the determination of the case does not turn upon a mere 
moot question. 

5. INJT7NCTI0K: Clean Hands: Determined Without Hearing. The 
trial court is not empowered to decide, without a hearing on the 
merits, upon a mere preliminary consideration of the question 
whether upon the face of the petition a temporary restraining 
order should be issued, that the plaintiffs have not come into court 
with clean hands. 

6. : : Limitations of Bule. The rule that he who comes 

into equity must come with clean hands has its limitations. The 
particular iniquity which prevents the pursuit of an equitable 
remedy must relate to the particular matter in hand, and must 
arise out of the transaction which is the subject of the suit. If 
the plaintiffs, who by their petition ask that a city commissioner 
be restrained from destroying their market boxes, who has 
threatened to destroy them on the ground^ that they are not of 
the dimensions prescribed by ordinance, have used the boxes with 
the understanding that some persons would be deceived as to 
their contents, they come with unclean hands; but if the facta 
show that the boxes have long been in use, that the purchasers 
of their produce fully know their contents, and fail to show that 
some consumer or purchaser has been deceived, they do not come 
with unclean hands. 

Appeal from St. Louis City Circuit Court. — Hon. Wilson 
A. Taylor, Judge. 

Reversed and bemafdbd. 

Edward W. Foristel, Taylor R. Young and T. T. 
Hinde, for appellants. 

(1) The first cause was not heard on its merita 
at a final hearing, hence, since the petition states Hi 
cause of action, the court should not have dismissed the 
suit at the preliminary hearing on the order to show^ 
cause why a temporary injunction should not issue. 
And even if tiie petition did not state a good oause of 



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Vol. 279 APRIL TERM, 1919. 133 



Stegmann v. Weeke. 



action, appellants had a right to amend. Harrison v. 
Rush, 15 Mo. 175; State ex rel. v. Smith, 188 Mo. 179; 
(2) Sections 22 and 23, both original and amended, of 
the ordinance are unconstitutional, both under the Feder- 
al and State Constitutions, in that they impair appel- 
lants^ right to contract and deprive them of their prop- 
erty without due process of law. Article 5 . of Amend- 
ments to U. S. Constitution ; Art. 2, sec. 10, U. S. Con- 
stitution; Art. 2, sec. 15, Missouri Constitution; Art. 
2, sec. 30, Missouri Constitution ; St. Louis v. Dreisoer- 
ner, 243 Mo. 224. (3) Original Section 23 of the ordinance 
is illegal under our statute providing that no city shall 
have the power to levy or collect a license or fee from 
any farmer or producer for the sale of produce raised 
by him, when sold from his wagon in a city. The an- 
nual inspection fee of ten cents per box is nothing 
more nor less than a tax, license or fee. Sec. 9516, 
R. S. 1909; St. Louis v. Meyer, 185 Mo. 583. (4) Orig- 
inal Section 22 of the ordinance violates our statute 
pertaining to weights and measures in at least two 
particulars: (a) It attempts to establish a standard 
bushel box with a capacity of 343.16 cubic inches in 
excess of the statutory standard; (b) it fixes absolute 
and arbitrary dimensions, thus limiting the shape, as 
well as the capacity, of the container. Sec. 11961, R. S. 
1909; Sec. 11963, R. S. 1909. 

Charles H. Danes and H. A. Hamilton for respondent. 

(1) If an event occurs pending an appeal which 
renders a decision unnecessary, the appeal will be dis- 
missed. Such condition may arise by the act of the ap- 
pellee in relinquishing the right to do some act in re- 
spect to which the appeal was taken. That part of 
Ordinance No. 29795 against which complaint is made 
having been repealed, the matter presented in said 
cause is a moot question. (2) All substantial interest 
in the controversy having been extinguished, this court 
will not hear the appeal merely to determine the right 
to costs. Hicks v. St. Louis, 234 Mo. 647; Union El. 



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134 SUPREME COUET OF MISSOURI. 

Stegmann y. Weeke. 

L. & P. Co. V. St. Louis, 253 Mo. 592; Howe v. Doyle, 187 
Mich. 655; EusseU v. CampbeU, 112 N. C. 404; Mabry 
V. Kettering, 91 Ark. 81; Pinkerton v. Randolph, 200 
Mass. 24; Moore V. Cooper Monument Co., 81 S. E. 170; 
Anderson v. Cloud County, 90 Kan. 15; Wingert v. 
First National Bank, 223 U.. S. 670, 672; Lisman v. 
Knickerbocker Trust Co., 211 Fed. 413. 

WHITE, C. — The plaintiffs are truck gardeners 
and farmers, and oflScers of a voluntary unincorporated 
association which consists of twenty-five hundred mem- 
bers. The defendant is Commissioner of Weights and 
Measures of the City of St. Louis. The plaintiffs filed 
their amended petition in the circuit court of St. Louis 
on April 24, 1918, in which they set out a certain ordi- 
nance of the City of St. Louis, No. 29795, enacted on 
the ninth day of August, 1917, which was alleged to 
be in violation of the State and Federal Constitutions 
and unreasonable and oppressive. Under this ordinance 
the defendant in his oflBcial capacity had destroyed, 
and threatened to continue destroying, certain boxes used 
by the plaintiffs and other members of the association. 
The petition asked for a temporary restraining order 
and, upon a final hearing, a permanent injunction to 
prevent said acts on the part of the defendant. 

On the filing of said petition the court issued an 
order directing the defendant to show cause on a certain 
day why a temporary restraining order should not be 
issued. The defendant thereupon, on the day mentioned, 
filed his return to the order, in which he set out certain 
sections of the ordinance referred to, prescribing the 
dimensions of boxes which might be used in the market- 
ing of produce, and alleged that the plaintiffs in market- 
ing their produce used boxes of other and different 
dimensions, contrary to the ordinance, and for that 
reason he had seized a number of such boxes. 

After hearing the evidence upon the petition and 
return, the court, instead of merely passing upon the 
matter of issuing a restraining order, dismissed the bill 
at plaintiffs* costs. 



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Vol. 279 APRIL TERM, 1919. 135 



Stegmann v. Weeke. 



I. Appellants here complain that the court had no 
light in this mere preliminary hearing, in which the 
only mafter to be determined by the court was whether 

a temporary restraining order should issue, to 
Mterit^ dismiss the bill; that the bill states a cause 

of action which entitled the plaintiff to a 
hearing on the merits, and even if it did not state a 
cause of action the plaintiff had a right to amend and 
have a trial in due course upon the merits of the case. 
Although the return of the defendant may be treated 
as an answer to the petition, it is not contended any- 
where by the respondent that the taking of evidence was 
a trial of the case upon the merits or that the plaintiffs 
in any way waived their right to have the case proceed 
in due course. It looks as if Section 2532, Revised Stat- 
utes 1909, did not authorize this summary disposition, 
but the case may be disposed of without determining 
that question. 

II. The ordinance under which the defendant sought 
to justify his acts in destroying the plaintiffs' boxes, 
and which the plaintiffs claim is unconstitutional and 

unreasonable, consists of many sections. The 
2^^^^ pertinent ones set out in the petition and 

in the return, are sections 22 and 23. Section 
22 provides that a standard bushel box shall be of 
the following dimensions, inside measurement: length, 
231/4 inches; depth, 9 J inches; width, 11 inches. Dimen- 
sions also are provided for half -bushel, quarter-bushel, 
eighth-bushel, sixteenth-bushel, and thirty-second-bushel 
boxes. The bushel box of the dimensions prescribed 
would contain 2493.56 cubic inches. The other 
boxes prescribing for fractional parts of a bushel 
correspond in capacity to the bushel box. Section 11961, 
Revised Statutes 1909, provides that the cubical con- 
tents of the half-bushiel shall be 1075.2 cubic inches; 
cronble this would be 2150.4 cubic inches. This is 
approximately the same for the contents of the 
bushel, 2150.5 cubic inches, as provided by the Federal 



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J 36 SUPEEME COURT OF MISSOURI. 

Stegmann v. Weeke. 

statute. Tho cubical contents of the bushel by the ordi- 
nance is therefore 343.06 inches in excess of the actual 
bushel provided by the State and Federal statutes. 

The boxes used by the plaintijffs are spoken of 
in the evidence as ** short busheP' boxes. The plaintiffs 
only claimed that they contained three-fourths of a 
bushel each, but hj actual measurements the contents 
was seven-eighths of a bushel, and, when heaped up, 
a bushel. These were the boxes which the plaintiffs were 
using to dispose of their produce at the time they 
were seized and destroyed by the defendant. The 
appellant? make a statement of the case which the re- 
spondent concedes to be correct, and the statement in- 
cludes the written opinion of Judge Wilson A. Taylor 
who heard the cage, which opinion sets out at length the 
facts as determined by him. According to the facts as . 
found by Judge Taylor and as supported by the evidence 
in the record, the plaintiffs were farmers and truck gar- 
deners. They sold their produce in the boxes mentioned 
to commission merchants only, who in turn sold it in the 
same boxes to retail men and hucksters, and such sales 
were never by the bushel, but always by the box. The 
commission man, the purchaser, knew exactly the con- 
tents of the box, as did also the hucksters who bought 
from the commission men. 

The ordinance provides that it shall be unlawful 
for any person, firm or corporation to sell or offer for 
sale in th^ city of St. Louis any fruits or vegetables in 
any box or receptacle that is of a capacity different from 
that prescribed, providing a penalty for the violation of 
the ordinance. In other words, the ordinance provides 
an unlawful measurement for the selling of produce. If 
the appellants were using a box of any other contents 
than the one prescribed, even though it contain the 
exact statutory bushel, it would be as unlawful, according 
to the ordinance, as the boxes they actually used. It is the 
enforcement of this ordinance which the plaintiffs seek 
to enjoin. 



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Vol, 279 APRIL TERM, 1919. ±37 

Stegmann t. Weeke. 

Respondent, however, presents two reasons why .le 
claims the judgment of the circuit court in dismissing 
the bill should be sustained here. 

III. First, it is asserted, the question is now a moot 
question. It seems that after the case was submitted to 
the court in the manner mentioned the Board of Alder- 
men of the City of St. Louis repealed the objectionable 

sections of Ordinance 29795, and enacted others 
Q^^^j^ in lieu of them, so that there is no longer any 

possibility of an attempt to enforce them. So, it 
is argued, this court could not affect the condition of 
the parties by passing upon the question which is no\Y 
merely academic. 

It is true, it has been determined by this court in 
several cases, when a defendant in any case voluntarily 
does the thing which the plaintiff seeks to have ac- 
complished by an order of court, at any stage of the 
proceeding, whether it is done before or after the 
trial or before or after the appeal is granted, the suit 
may be abated. [Hicks v. City of St. Louis, 234 Mo. 1. c. 
653.] The repeal of an ordinance pending a prose- 
cution under it, operates to relieve the defendant from 
further prosecution. [Electric Light & Power Co. v. St. 
Louis, 253 Mo. 1. c. 603.] It is true in this case, the repeal 
of the ordinance at which the plaintiffs strike would 
disarm them, if that were all there is in the case. It is 
held, however, that before a defendant may abate a 
case by complying with the demands of the petition he 
must comply with all such demands, including the pay- 
ment of the cost. [State ex rel. v. Philips, 97 Mo. 1. e. 
339-40.] This court there said in relation to that matter, 
I c. 339: ''The plaintiff had the right to have the full 
measure of the relief he claimed, or else by a solemn 
adjudication of the court, to know the why and the 
wherefore of the refusal which denied him redress In 
full of his demands.^' Also, 1. c. 340: ''Plaintiff was 
entitled to insist that the court should make such a 
thorough disposition of the whole cause as would pro- 
tect him even against nominal damages or costs." 



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138 SUPREME COUET OF MISSOURI. 

Stegmann v. Weeke. 

In State ex inf. v. Standard Oil Co., 218 Mo. 1. o. 
390, it is held tiat before defendant may abate a suit in 
such case he must have paid all the costs. [See, also^ 
Miller v. Assurance Co., 233 Mo. 1. c. 98; in re Button's 
Estate, 92 Mo. App. 1. c. 138.] 

In this case the bill was dismissed at the plaintiff's 
costs. Not only that, but according to the statement 
which respondent admits is correct, the defendant in- 
tended to continue the destruction of plaintiff's boxes. 
If the court did not enjoin this proceeding he would 
continue to break up the boxes '^ until there is not another 
dinky box left in town." The threat could hardly be 
stronger. That is to say, the Commissioners of Weigths 
and Measures proposed, without a hearing, to punish all 
whom he believed to be violators of the ordinance as 
amended. So the repeal of the objectionable ordinance 
did not give the plaintiffs a full measure of relief, for 
the reason that the costs were assessed against them 
and for the reason that the destruction of their prop- 
erty was to be continued. Therefore, the determina- 
tion of the case does not turn upon a mere moot ques- 
tion, but upon questions which, the plaintiff has a right 
to have considered, though the result may have no 
effect except to determine upon whom the costs shall 
fall. 

IV. The other point made by respondents is that 
the plaintiffs in this case did not come into court with 
clean hands. That was the theory as stated by Judge 
Taylor upon which he dismissed the bill. The fact that 
this question was decided without a hearing upon the 
merits of the case, but upon a mere preliminary con- 
sideration of the question, whether upon the face of the 
petition a temporary restraining order should be issued, 
is sufficient to stamp it as error. But inasmuch as the 
case is to be further considered by the circuit court it is 
well enough to touch upon that question. 

The ancient maxim that he who comes into equity 
must come with clean faaads has been applied to vanous 



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Vol. 279 APKIL TEEM, 1919. 139 



Stegmann t. Weeke. 



kinds of cases, but it has its limitations. The particular 
iniquity which prevents the pursuit of an equitable 
remedy on the part of a plaintiff must relate to tho 
particular matter in hand, must arise out of the trans- 
action which is the subject of the suit. [1 Pomeroy on 
Equity Jurisprudence, sec. 339; Williams v. Beatty, 
139 Mo. App. 1. c 174 ; Kingston v. Montgomery, 121 Mo. 
App. 1. c. 462; Chicago v. Unibn Stockyards 
Co., 164 111. 224.] 

If the plaintiffs originally had constructed the boxes, 
had devised their contents, and had sold with the un- 
derstanding that some purchaser would be deceived, 
there might be some reason for saying they did not 
come into equity with clean hands in seeking to prevent 
the destruction of the boxes. But it is shown that the 
commission men who purchased from the farmers bought 
by the box, knowing fully its contents, and never by 
the bushel; that the purchasers from the commission 
men, the retail dealers and the hucksters, bought in 
the same way. It is not shown that any consumer was 
deceived by these boxes. That is a matter upon which 
there is no allegation and no evidence. There is no evi- 
dence even that any consumer ever purchased any pro- 
duce in those boxes. The finding of Judge Taylor i6 to 
the effect: *' These same short bushels are handed on 
down to the retailer and very likely to the consumer." 

It is not sufficient to show that there was a pos- 
sibiUty of unfair dealing by some remote person in the 
chain of transactions, but it must be shown tliat the 
plaintiffs had reason to believe actual unfair dealings 
would be conducted. 

These same boxes had been in use for twenty-five 
years ; when heaped up they held a bushel, when level full 
they held seven-eighths of a bushel. The plaintiffs in the 
beginning probably in each case came into a business in 
which several thousand other farmers and truck garden- 
ers were engaged, and found these boxes in universal use 
and no complaints made. They furnished their produce 
in the boxes and received emptiea to the same number in 



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140 SUPREME COUET OF MISSOURI. 

Stegmann v. Weeke. 

return at the time of each sale. If the commission mer- 
chant didn 't have the empties on hand for the exchange he 
would give an order on the box factory for the requisite 
number and the farmer immediately went there and got 
new boxes. It appears that most of these boxes were in 
fact purchased by the commission men. Neither on the 
face of the petition, nor on the evidence as produced at 
the preliminary, is there a showing that the plaintiffs 
came into court with unclean hands; that is a matter 
which should be determined upon the final hearing. If 
the plaintiffs knew or had reason to believe that the 
boxes passed on to the consumer and that the consumer 
was in fact deceived by them as to the contents, another 
question would be presented from that presented here, 
where no such facts are shown. 

The conclusion is that the trial court was in error 
in dismissing the petition without a hearing, and no 
considerations have been presented .to relieve from the 
consequences of that erroneous ruling. 

The judgment is reversed and the cause remanded. 
Railey, C, not sitting; Mozley, C, concurs. 

PER CURIAM : — The foregoing opinion by White, 
C, .is adopted as the opinion of the court. All of the 
judges concur. 



FRED STEGMANN et al.. Appellants, v. HENRY L. 
WEEKE, Commissioner of Weights and Measures 
of City of St. Louis. 

(No. 21, 152) 

Division Two, July 5, 1919. 

1. WEIGHTS AND MEASX7BES: Legislative Power: Invasion of 
Bight to Contract. For the purpose of protecting the public and 
consumers from fraud and imposition in their purchase of com- 
modities, the Legislature has the right, as a police regulation, to 
regulate weights and measures, and delegate that authority to 
municipal corporations, in so far as they exercise police powers; 
but the regulation must not be such as to invade the constitu- 
• tional right to make contracts. 



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Vol. 279 APRIL TERM, 1919. 141 

I 

Stegmann v. Weeke. 



: : : Reasonable Restrictions. A legislative ex- 
ercise of the police power to fix weights and measures necessarily 
limits the freedom of contract that would otherwise exist; but 
so long as the restriction has a reasonable relation to the ex- 
ercise of the power and is not so arbitrary or capricious as to 
be a deprivation of due process of law, freedom of contract in 
the constitutional sense is not interfered with. 



3. : : : Bushel Boxes According to Statute: Pen- 
alty for Use of Boxes of DifTerent Dimensions. An ordinance es- 
tablishing standard bushel and half-bushel boxes to contain the 
same cubical content of the bushel and half-bushel prescribed by 
statute, to be used by truck gardeners and farmers in selling 
their fruits, vegetables and other produce in the city, and pre- 
scribing a penalty for the use of boxes of a different capacity and 
thereby sufficiently guaranteeing that boxes of a different capacity 
will not be used, is not unconstitutional as impairing the obliga- 
tion of contracts, although it makes unlawful the use of boxes of 
a less capacity which have been in general use for many years. 

4. : Bushel Boxes of Given Dtpiension: No Penalty. The court 

may determine whether an ordinance prescribing that bushel and 
half-bushel boxes to be used by farmers and truck gardeners in 
marketing their fruits and vegetables within the city shall be 
of certain dimensions, is unreasonably arbitrary, and may settle 
the question by inspecting the face of the ordinance, or may find 
it unreasonable by a state of facts which affects its operation; 
but' an ordinance which prescribes that a bushel box shall have cer- 
tain dimensions and a half-bushel box certain other dimensions, 
but prescribes no penalty for the use of boxes of different dimen- 
sions, but only a penalty for the use of boxes of a different ca. 
pacity, is not unreasonable. 

Heldy by PARIS, J., concurring, that the ordinance is valid .only 
because it prescribes no penalty for the use of boxes of dif- 
ferent dimensions, thus making the prescription that the 
bushel and half-bushel boxes shall have certain dimensions 
only advisory, and not mandatory. Held, also, that the city 
has no power to say that the boxes shall be of a required 
length, width and depth. 

5. : : : Oppressive Enforcement: Injunction. 

Plaintiffs cannot have an injunction to restrain the city from 
pursuing some unexpected and unthreatened prosecution. If 
the ordinance requires plaintiffs in marketing their vegetables 
and produce to use boxes having the number of cubic Inches pre- 
scribed by statute for bushel and half-bushel containers, and 
fixes a penalty for the use of boxes of different capacity, and also 
goes further and prescribes that boxes of those capacities shall 
be of certain length, breadth and width but prescribes no penalty 



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142 SUPREME COURT OF MISSOURI. 

Stegmann y. Weeke. 

tor the use of boxes of different dimensions, and their contention 
is that the ordinance interferes with their use of boxes of a 
smaller capacity which have long been in use, and they make no 
showing that they intend to use boxes of the prescribed capacity, 
the ordinance will not be held to be invalid on the theory that 
it will be interpreted to mean that they must use boxes of the 
specified dimensions and therefore will be oppressively and il- 
legally enforced. 

6. : Sale By Weight. Where the ordinance does not require 

the immediate purchaser from the gardeners to purchase by 
weight, although such purchasers are commission merchants and 
retail dealers who have not been deceived as to the contents of 
the "short" boxes long in use, yet if the commodities in the boxes 
can be passed on to the*ultimate consumer, the city has the right, 
in order to provide against imposition by the use of the smaller 
boxes, to enact an ordinance requiring the use of boxes containing 
the statutory capacity of a bushel and half-bushel, and affixing a 
penalty for the use of boxes of different capacities. 

Appeal from St. Louis City Circuit Court. — Hon. Vital 
W. Garesche, Judge. 

Affirmed. 

Edward W. Foristel, Taylor R. Toung and T. T. 
Hinde for appellants. 

(1) Courts have jurisdiction to enjoin the en- 
forcement of an illegal ordinance. Coal Company v. 
City of St. Louis, 130 Mo. 323; Union Cemetery Assn. 
V. Kansas City, 252 Mo. 466; Jewel Tea Co. v. City 
of Carthage, 257 Mo. 383; Hays v. Poplar Bluff, 263 
Mo. 516. (2) Sections 22 and 23, both original and 
amended, are not in harmony with the constitutional 
and statutory State provisions, and for that reason are 
illegal and void. St. Louis v. Meyer, 185 Mo. 593; 
Peterson v. Railroad, 265 Mo. 497; Sec. 9582, R. S. 
1909; St. Louis v. Bernard, 249 Mo. 56; St. Louis v. 
Dreisoemer, 243 Mo. 223; Hays v. City of Poplar Bluff, 
263 Mo. 516; Union Cemetery Assn. v. Kansas City, 
252 Mo. 466; St. Louis v. Worlds Pub. Co., 270 Mo. 
146; St. Louis v. King, 226 Mo. 334. (3) As to ap- 
pellants, the ordinance is beyond the police power of the 



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Val. 279 APRIL TERM, 1919. 143 

Stegmann v. Weeke. 

city to enact, unreasonable and oppressive, and for 
that reason void under all the authorities above cited. 
(4) Appellants did not have an adequate remedy at 
law. Coal Company v. City of St. Louis, 130 Mo. 323 ; 
Jewel Tea Company v. Carthage, 257 Mo. 383. 

Charles R. Danes and H. A. Hamilton for respon- 
dent. 

(1) By its charter the City of St. Louis is ex- 
pressly invested with power to inspect, test, measure 
and weigh any article of consumption within said city, 
and to establish, regulate, license and inspect weights 
and measures. Charter, art. 1, sec. 1, 27 ; Charter, art. 
1, sec. 1, 28. (2) The ordinance in question having 
for its purpose the protection of the inhabitants of the 
City of St. Louis against false weights and measures, 
is a valid exercise of the police power of said city and 
is not obnoxious to any provision of the State or Federal 
constitutions. Sylvester Coal Co. v. St. Louis, 130 Mo. 
323; State ex rel. v. Merchants Exchange, 269 Mo. 
346 ; Chicago v. Schmidinger, 243 HI. 167 ; Schmidinger 
V. Chicago, 226 U. S. 578; People v. Wagner, 86 Mich. 
594. (3) The City of St. Louis being authorized to 
establish and regulate weights and measures, may pre- 
scribe the form and dimensions of the container in which 
articles of consumption are marketed in said city. 
Turner v. State, 55 Md. 240; Turner v. Maryland, 107 
U. S. 38. (4) Ordinance No. 29795, as amended, does 
not conflict with the Constitution or statutes of the 
State of Missouri, but is in complete harmony therewith. 
(5) The Municipal Assembly of St. Louis is vested 
with the power of determining the necessity of regulat- 
ing business in said city, and courts will not ordinarily 
review the exercise of its discretion. An ordinance 
passed in the exercise of legal authority will not be de- 
clared void on the ground of unreasonableness unless 
no difference of opinion can exist upon the question, 
and a clear case must be made to authorize a court to 
interfere on that ground. St. Louig, v. Weber, 44 Mo. 



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144 SUPREME COURT OF MISSOURI. 

Stegmann v. Weeke. 

547; Gratiot v. Missouri Pacific Railroad Co., 116 Mo. 
450; Chillicothe v. Brown, 38 Mo. App. 609; Kansas 
City V. Sutton, 52 Mo. App. 398; Monett v. Campbell, 
204 S. W. 32. 

WHITE, C— This is a companion case to No. 21,151 
of the same title. Many facts pertinent here are fully 
set out in the opinion in chat case and it may be read in 
connection with this case. However, for convenience, 
it is proper briefly to restate some of them. That was 
a suit brought by plaintiffs as farmers and truck garden- 
ers, to restrain the Commissioner of Weights and Meas- 
ures of the City of St Louis from enforcing a certain 
ordinance. No. 29,795. In that case the circuit court, 
on a preliminary hearing for the purpose of determin- 
ing whether a temporary restraining order should be 
issued, dismissed the biP without a final hearing on the 
merits of the case. 

The ordinance complained of, enacted August 9, 
1917, provided for a bushel box, and boxes holding 
fractions of a bushel, in which produce, fruits and vege- 
ables should be marketed, of a cubical content in excess 
of the statutory bushel as provided by Section 11961, 
Eevised Statutes 1909, and by the Federal statute. 
The plaintiffs were using as a bushel box one containing 
less cubical contents than the statutory bushel. After 
that case was heard and before its determination the 
City of St. Louis amended the ordinance so as to make 
it accord with the statute of Missouri and the Federal 
Statute. When that was done and the former case dis- 
missed, the plaintiffs brought this suit to enjoin the 
enforcement of the ordinance as amended. In their 
petition in this case they set out the original ordinance 
enacted August 9, 1917, in full, and the amendment to 
the same made in April, 1918. 

They allege that they are farmers and gardeners 
and market their produce either to commission mer- 
chants, retail grocers or hucksters; (h.at their produce 
is packed in wooden boxes, or crates, before being loaded^ 



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Vol. 270 APBIL TERM, 1919. 145 

Stegmann ▼. Weeke. 

and in loading the boxes are packed in tiers and so 
arranged that the bottom tier is protected from upper 
tiers ; that in capacity said boxes or crates range from 
three-fourths of a bushel, standard measure as defined 
by statute, to a bushel, and are used by all truck garden- 
ers in the vicinity where plaintiffs grow their produce ; 
that they have been used for twenty-five years in that 
manner and are peculiarly suited to the economical and 
safe delivery of produce; that the plaintiffs and other 
truck gardeners and farmers have on hand, complete to 
be used, 1,875,000 of such boxes, which cost them in 
the neighborhood of $350,000; that their delivery trucks 
are especially designed to conform to the size of said 
boxes and crates; that the produce which they sell is 
neither bought nor sold by the bushel but, by special 
agreement between the sellers and purchasers, it is 
sold by the box or crate and the purchasers from plain- 
tiffs are not in any manner misled or deceived as to 
the capacity of the boxes in which the produce is sold; 
that they deliver their boxes full to the purchaser and 
receive in return in each case empty boxes of the same 
size and character from the purchaser. 

Upon the filing of this petition 'and a bond in the 
sum of one thousand dollars, duly approved, a tempo- 
rary restraining order wap issued and served upon the 
defendant Weeke, who was ordered to show cause on a 
certain day why the induction should not issue. There- 
upon the defendant filed his return in the nature of an 
answer to the allegations of the petition. Afterwards 
the parties filed a stipulation as to certain facts, wherein 
they agreed that the case might be submitted **for final 
adjudication upon the petition of the said return of the 
respondents, to be taken and construed as an answer 
thereto, and the reply jf the plaintiffs filed on that date, 
together with certain stipulations of facts." The court 
thereupon heard the case upon its merits, found the 
issues in favor of the defendant and dismissed the bill, and 
from that judgment the plaintiffs appealed to this court. 

10 — 279 Mo. 



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146 SUPREME COURT OF MISSOURI. 

Stegmann v. Weeke. 

Ordinance No. 29,795, in its original form provided, 
among other things, the duties of the Commissioner of 
Weights and Measures to test the accuracy of weights 
and measures and to seize in the name of the city, *'all 
false weights, measures and scales, and to make arrests 
of persons violating the ordinance by using false weights 
and measures and scales." It provided for inspection 
of all weights and measures examined, and penalties 
for persons having weights and measures in their posses- 
sion, for refusing to allow them to be tested and examin- 
ed, and for using weights and measures that are not 
tested; that the commissioner should mark ** condemned '* 
weights, measures, standards, etc., that did not conform 
to the standard in this State, and that it should be a 
misdemeanor to use a weight or measure containing a 
less quantity than represented. 

Section 22 of that ordinance fixed the dimensions 
for standard boxes to hold bushels, half -bushels, and 
other fractional parts of a bushel, making the cubical 
contents of such boxes greater than the statutory require- 
ments. Section 23 of the ordinance provided for a fee of 
ten cents each for inspection of such boxes, that they 
should be inspected once a year, and that it should be a 
misdemeanor for anyone to use boxes of other dimensions 
for the purpose of selling fruits or vegetables. Those 
were the sections struck at in the other suit. 

By the amendment of April, 1918, sections 22 and 
23 of the ordinance were made to read as follows : 

*^ Section 22. Standard bushel box and fractional 
part part thereof established. There is hereby establish- 
ed a standard bushel box, the dimensions of which shall 
be as follows; Length twenty-two inches; depth, eight 
and one-half inches; width, eleven and one-half inches; 
which bushel box shall contain twenty-one hundred and 
fifty and five-tenths -cubic inches. There is hereby es- 
tablished a stardard half-bushel box, the dimensions of 
which shall be as follows: Length, twenty-two inches; 
depth, four and one-quarter inches; width, eleven and 
one-half inches, which half bushel box shall contain one 



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Vol. 279 APEIL TERM, 1919. 147 

Stegmann v. Weeke. 

thousand and seventy-five and two-tenths cubic inches. 
^W boxes or containers in which fruits and vegetables 
^re 8old or offered for sale shall be of the foregoing di- 
mensions and standards, unless otherwise provided by 
ordinance. 

** Section 23. Penalty. Any person, firm or corpora- 
tion who shall sell or offer for sale in the City of St. 
Louis any fruits or vegetables except fresh berries, 
cherries, currants or other small fruits, in any box or 
receptacle that is of a capacity different from that here- 
inbefore provided, shall be guilty of a misdemeanor 
and upon conviction thereof shall be fined not less than 
five dollars nor more than fiv.e hundred dollars." 

It will be seen by this amendment Section 22 is 
ID agreement with the statute as to the cubical contents 
of a bushel. The answer restates much of the same mat- 
ter contained in the petition, including the ordinance, 
and sets out at length Judge Taylor's opinion delivered 
in the previous case. 

The stipulation which supplements the pleadings is 
to the effect that the defendant Commissioner of Weights 
and Measures intends to arrest and prosecute plaintiffs 
and others using boxes in violation of the ordinance as 
Jong as they fail to use boxes of the exact dimensions and 
contents provided in the amended ordinance, regardless 
of how said boxes are marked or whether said boxes con- 
tain more than the quantity marked on the box or not; 
that the defendant, Weeke, has not destroyed any boxes 
belonging to any of the plaintiffs since the 23rd day of 
April, 1918; **that all persons who now sell direct to the 
consumer of products sold by the plaintiffs are required 
to sell and do sell by weight and not by measure." The 
further fact was stipulated for what it is worth, that a 
number of farmers and truck gardeners, naming them, 
forty-five or fifty, use boxes which correspond to the 
requirements of amended sections 22 and 23 of the ordi- 
nance. 

The amended ordinance at which this proceeding is 
aimed does not contain the oppressive feature of in- 



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148 SUPREME COURT OF MISSOURI. 



Stegmann v. Weeke. 



spection fee for each box contained in the original ordi- 
nance and there is ,no threat of the Commissioner of 
Weights and Measures to destroy without a hearing the 
boxes or other property of plaintiffs. 

I. Appellant asserts that sections 22-23 of the ordi- 
nance are unconstitutional and in conflict with Article 
I, Section 10, of the United States' Constitution, and with 
Article XI, Section 15, of the Constitution of Missouri, in 
that the ordinance, prohibiting a person 
impainneirt from selling his produce in any form or 
of OoSaraS. manner or in any quantity which he sees fit 
and which his purchasers desire, so long 
as his method is fair and characterized by honest dealing 
with his purchaser, impairs the right to make contracts. 

As a police regulation, for the purpose of , protecting 
the public and consumers from fraud and imposition in 
their purchase of commodities, it is recognized by the 
courts that the legislative authority has the right to 
regulate weights and measures and delegate that author- 
ity to municipal corporations so that the latter, in so far 
as they exercise police powers, may regulate weights 
and measures. The question here is whether this regula- 
tion is such as to invade the constitutional right to make 
contracts. This court has considered the question in 
construing the statutes providing for oflBcial weighers of 
coal and grain. A leading case is State ex inf. v. Mer- 
chants Exchange, 269 Mo. 346. In that case the court 
had under consideration ihe constitutionality of a stat- 
ute which forbade any person, corporation or associa- 
tion other than the duly authorized and appointed State 
weigher to issue any weight certificate or to issue or 
sign any ticket purporting to be the weight of any car, 
wagon, sack, or other package of grain weighed at any 
warehouse in the State. The court held that the pur- 
pose of the act was to protect from fraud the people who 
sold and bought grain, and banks who loaned money on 
warehouse receipts. This language is used, 1. c. 358: 
*'The whole purport of the act is for such official super- 



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Vol. 279 APRIL TERM, 1919. 149 



Stegmann v. Weeke. 



vision in the principal grain markets as will protect not 
only the buyers, but the sellers of grain. In other words, 
it establishes a disinterested agency between the buyer 
and seller, both as to weights and grades of the grain. 
If a wheat-grower of Missouri ships a car of wheat to 
St. Louis, he is not forced to take the grading and weigh- 
ing of the defendant (an association of grain dealers and 
speculators), but he has the protection of the disinter- 
ested agency established by the State, an agency duly 
bonded for faithful performance of duty.'* 

The effect of that statute then was to make the 
certificate of the weigher an oflBcial guar^anty that the com- 
modity which is represented was correctly represented, 
without further investigation on the part of the purchas- 
er or of the seller. It would not only save time and 
expense in negotiations of that kind, but was a power 
for protection against fraud and imposition in connection 
with such sales. The case quotes from an earlier 
case, Coal Co. v. City of St. Louis, 130 Mo. 327, where a 
municipal ordinance similar in import was under con- 
sideration, and it was held binding and valid under the 
charter authority of the City of St. Louis wherein it 
had authority to license, tax and regulate retailers, and 
** establish the standard of weights and measures to be 
used in the City of St. Louis.'' It is pointed out in those 
cases that a purchaser or a seller may. weigh his grain 
for his own satisfaction, but that the oflBcial weight 
only can be allowed in buying and selling. 

In the case of Ex parte House v. Mayes, 227 Mo. 636, 
this court had under consideration a statute which pro- 
vided that no agent or broker selling grain, etc., should 
have authority, under claim of right to do so by rea- 
son of any custom or rule of any board of trade, to 
sell such commodities except on the basis of the actual 
weight thereof, and any contract for such sale in viola- 
tion of the act should be null and void. The Board of 
Trade of Kansas City had a rule which permitted the 
purchaser of grain to deduct a hundred pounds from 
a carload of such grain because of dirt and foreign sub- 



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150 SUPREME COURT OF MISSOURI. 

Stegmann v. Weeke. 

stances which were presumed to be in it and which were 
swept out after it was unloaded, it being common ex- 
perience that about that amount of dirt on the average 
was in each carload. One R. J. House was prosecuted 
for making such deduction in accordance with the rules 
of the Board of Trade and in violation of the statute. 
It was held that the statute was valid and constitutional 
as a matter of police protection, and not in violation of 
the Constitution which prohibits any act impairing the 
obligation of contracts. 

An ordinance of the City of Chicago, fixing the stand- 
ard size of loaves of bread and prohibiting the sale of 
loaves of any other size, was held to be constitutional by 
the Supreme Court of Illinois. [Chicago v. Schmidinger, 
243 111. 167.] The case was taken to the Supreme Court 
of the United States, where it was aflBrmed under the 
title, Schmidinger v. City of Chicago, 226 U. S. 578. That 
court, in the opinion rendered, thus comments upon the 
claim that the effect of the ordinance was to impair the 
right to contract, 1. c. 589: **This court has had fre- 
quent occasion to declare that there is no absolute free- 
dom of contract. The exercise of the police power fixing 
weights and measures and standard sizes must neces- 
sarily limit the freedom of contract which would other- 
wise exist. Such limits are constantly imposed upon the 
right to contract freely, because of restrictions upon that 
right deemed necessary in the interest of the general 
welfare. So long as such action has a reasonable relation 
to the exercise of the power belonging to the local legisla- 
tive body and is not so arbitrary or capricious as to be 
a deprivation of due process of law, freedom of contract 
is not interfered with in a constitutional sense.'' 

The law of Maryland which provided that it should 
be unlawful to carry, out of the State any hogshead of 
tobacco raised in that State except as had been inspected, 
marked and passed according to the provisions of the 
act regulating the inspecting and marketing of tobacco, 
was held to be constitutional by the Supreme Court. 
[Turner v. Maryland, 107 U. S. 38.] 



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Vol. 279 APKIL TERM, 1919. 151 



Stegmann y. Weeke. 



The Supreme Court of Massachusetts held consti- 
tutional an act which provided that the sale of oats and 
meal must be by the bushel, and providing that an 
action could not be maintained for the price of such 
commodity when sold by the bag. [Eaton v. Kegari, 
114 Mass. 433.] 

The ordinance under consideration here fixes the 
cubical contents of bushel and half-bushel boxes and 
provides a penalty for using boxes of a different capo- 
city. The effect of the ordinance is that certain com- 
modities could not be sold except in contaiilers contain- 
ing a bushel or a half -bushel. The prohibition of the use 
of boxes of other capacity is sufficient guaranty that 
boxes of other capacity would not be used, and furnished 
the same protection to the purchaser that the final weigh- 
ing certificates would furnish in case of the sale of hay 
and coal as considered by the court in the Merchants 
Exchange case, supra, and the Coal Company case, 
supra. The reason for the validity of the statute and 
the ordinance in those cases applies with equal force to 
the ordinance here. It is not unconstitutional as impair- 
ing the obligation of contracts. 

XL But it is claimed that the ordinance is an un- 
reasonable regulation in its operation, in that it not 
only prohibits the use of containers of any other capa- 
city than that provided, but prescribes the exact dimen- 
iNxnensioiis. ^ions, the length and depth of the boxes, and 
forbids the use of containers of equal capacity 
of any other shape. That is, a box may be a perfect 
cube and contain a bushel or a half-bushel. Of course, 
this court may determine whether an ordinance is reason- 
able or unreasonable (Union Cemetery Assn. v. Kansas 
City, 252 Mo. 1. c. 500 ), ami in considering the matter 
may settle it by inspection of the ordinance on its face, 
or, may find it unreasonable by a state of facts which 
affects its operation. [S*. Louis v. Theatre Co., 202 Mo. 
1. c. 699.] It might be unreasonable in one place and 
perfectly reasonable in smother. It might be unreasonable 



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152 SUPREME COURT OF MISSOURI. 

Stermann v. Weeke. 

in a mere village, whereas in a large city, with its 
great volume of husii ess of the character affected, it 
would be a reasonable regulation. Here there are sev- 
eral thousand farmerp engaged in raising and selling 
produce. There are hu idreds of thousands of consumers 
in the •City of St. Lo lis, many of whom, doubtless the 
majority, at some tirae or other purchase these very 
commodities. The evi^'ent purpose of the ordinance in 
providing containers of uniform shapes and sizes was 
that a* purchaser earily could tell the exact quantity 
of the commodity he vas buying, the presumption being 
that the box contaii ing the commodity which he pur- 
chased had passed t e final test as to capacity, and he 
need not trouble hii/»self in relation to that matter or 
inquire further. Likewise, it may be said that certain 
definite shapes and dimensions, would greatly facilitate 
inspection, lessen the expense of supervision for the 
city and conduce ir no way to hamper or hinder the 
course of trade. 

It might be sa d further that the plaintiffs here 
could not complain hat the definite dimensions of the 
boxes were providec because they were using, or claimed 
the right to use, b xes of uniform dimensions and ca- 
pacity. The evidence shows they nearly all used exactly 
the same kind of boxes, as did all other persons pur- 
suing like business. It seems from the facts stated in 
the record that it was to their advantage to use exactly 
the same kind of containers as to shape and dimensions. 
However, it is sufficient answer to this point to say that 
no penalty is fixed for the violation of that part of 
the ordinance prescribing the dimensions of the box; 
the plaintiffs could not be prosecuted for misdemeanors 
unless they used boxes of different capacity. In that re- 
spect the ordinance is no more unreasonable than the 
Chicago ordinance fixing the size of loaves of breaa, or 
the statutes and ordinances Considered in the Missouri 

cases cited above. 

• 

III. Plaintiffs, however, assert that the ordinance 
will be interpreted and enforced oppressively and il- 



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Vol. 279 APEIL TERM, 1919. 153 



Stegmann v. Weeke. 



legally. Persons might use boxes having different length, 
width and depth from those mentioned in Section 22, 

and if they possessed the cubical contents 
^^mLt. ^^ ^^^ ^^^^^ *^^^^ provided for they would 

not be guilty of a misdemeanor under the 
provisions of Section 23. Yet, according to the stipula- 
tion, the defendant expects to prosecute plaintiffs for 
using boxes unless they are of the exact dimensions pro- 
vided in the ordinance. 

In this connection it appears that the only boxes 
which the plaintiff s' use, and have no right to use, are 
those which do not have the contents provided for in 
Section 22. There is nothing to show that they expect 
to use boxes of the right capacity and of a different 
shape, but only expect to use the boxes they have been 
using which are of an insufficient capacity ; therefore they 
are liable to incur the penalties of the ordinance in all 
they propose to do. This court cannot conjecture that 
they will use some boxes which they do not expect to 
use, or that they will be arrested and prosecuted for 
doing soinething which they do not intend to do. They 
cannot have an injunction to restrain the city from 
pursuing some unexpected and unthreatened prosecution. 

IV. It is stipulated, as noted above, that the con- 
sumer who purchases the goods from their immediate 
vendors, goods which plaintiffs sell, are required to 
purchase by weight and not by measure. It is not stated 
whether this requirement is by ordinance or by contract. 
Section 28 of the ordinance provides that certain pro- 
ducts enumerated, which are presumed to include some 
of the products sold by plaintiffs, shall be sold by weight, 
excepting, however, '^comuiodities in original packages," 
and then provides that: *'The term 'original package,* 
as herein used, shall be taken to mean packages in 
which the commodities have been packed before shipping 
by the grower, producer, or original packer thereof, 
and the contents of which have not been disturbed or 
diminished except for the purpose of ripening it or 
of replacing spoiled goods." 



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154' SUPREME COURT OF MISSOURI. 

Stegmann y. Weeks. 

This provision of Section 28 evidently would exclude 
plaintiffs and those pursuing a like business, from an 
obligation to sell by weight, or persons handling their 
produce in original packages from selling by weight, 
and therefore the ordinance is in direct conflict with 
this stipulation as to its purport. This section of the 
ordinance must be construed in connection with the 
other sections. It certainly was not the intention in the 
passage of the ordinance to make any provisions which 
are absolutely nugatory. There would be no purpose 
or use in providing for dimensions *bf measures to con- 
tain a bushel, and half-bushel, unless the products were 
sold by the bushel or half -bushel; and the exclusion of 
the original packers and of property which comes in 
original packages from the requirement to sell by weight 
is the only reasonable construction of the provision in 
Section 28 in connection with the rest of the ordinance. 
We must attempt to take the evident meaning of the 
ordinance as it reads, even though counsel for both 
parties may have misunderstood its meaning, or may 
have inadvertently construed it differently. 

It is also noted that throughout the ordinance the 
inspection and the penalties fixed apply to false stand- 
ards, false weights and measures. The evidence 
here does not show that the boxes which the plaintiffs 
were using were measures or standards of measures; 
they were simply the containers in which they sold their 
products. The boxes are not used like a half-bushel 
measure to measure out the quantity of the product, they 
are only used to contain the products sold. Neverthe- 
less Sections 22 and 23, leaving out of consideration the 
balance of the ordinance, fix the size and shape of box 
and name the penalty for using those of different ca- 
pacity. Those sections are valid and effective as to that 
purpose, regardless of the rest of the ordinance. 

While it is admitted that plaintiffs sold only to com- 
mission merchants and retail dealers who were not at all 
deceived as to the contents of the boxes and who did not 
buy by the bushel, nevertheless the conmiodities in the 



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Vol. 279 APRIL TERM, 1919. 155 

Stegmann v. Weeks. 

origmal packages under the ordinance could be passed 
on to the ultimate consumer. It was entirely within 
the discretion of the city government to provide against 
imposition which they thought might occur in such sales 
to consumers. Their discretion and judgment in pro- 
viding against possible fraud in the matter, whether 
sound or otherwise, is not for this court to determine. 
It is suflScient that the governing body deems the 
restrictions necessary for the protection of citizens and 
consumers. It has lawful authority to make the regu- 
lations and this court will not interfere. 

The judgment is aflfirmed. Railey, C, not sitting; 
Mozley, C, concurs. 

PEB CUBIAM :— The foregoing opinion by White, 
C, has been adopted as the opinion of the court. 
Williams, P. J., and Walker, J., concur ; Paris, J., con- 
curs in separate opinion. 

FABIS, J. (concurring.)— I concur for the reason 
only that* there is no penalty attached for the failure 
to use a container of the prescribed di- 
^r^4iLi Diensions, thus leaving so much of the ordin- 
Dimensions, ance as prescribes the dimensions of such con- 
tainers neither mandatory nor punishable, but 
advisory only. 

I do not agree that the City of St. Louis has the 
authority under the guise of a police regulation to re- 
quire the use of containers of fixed and arbitrary di- 
mensions. I concede the authority in the city to pass an 
ordinance requiring such containers to be of a certain 
capacity so as to guard against fraud and cheating and 
even to require such containers to be rectangular in 
shape, so as to minimize time and labor in ascertaining 
the conformity of such containers to the capacity requir- 
ed by the ordinance. But I do not think it lies in the 
power of the city to say by its ordinance that such con- 
tainers must be of a required length, width and depth.* 
Neither do I think that one using containers of an 



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156 SUPREME COURT OF MISSOURI. 

Frlck V. Ins. Co. 

impeccable capacity, so far as complying with the re- 
quirement as to capacity is concerned, could be punished 
in any wise for using a longer, or a shorter, a wider or 
narrower, a deeper or shallower container than the 
arbitrary standard prescribed by ordinance. 

Upon the view that the ordinance means what I have 
said above that it ought to mean, I concur. 



J. A. FEICK, Appellant, v. MILLERS NATIONAL 
INSURANCE COMPANY. 

Division Two, July 5, 1919. 

APPEAIi: No Assignment. If appellant's brief in a ciyll case no- 
where distinctly alleges the errors upon which he relies for a 
reversal of the judgment, either by assignments or points and 
authorities, Rules 15 and 16 of the Supreme Court require that 
his appeal be dismissed. Mere statements that "plaintiff is en- 
titled to recover on the undisputed facts/' that "Instruction 2 
should have been given/' etc., do not "distinctly allege the er- 
rors committed by the trial court." 

Appeal from Jackson Circuit GouTt—Hon. Thomas B. 
Buckner, Judge. 

Dismissed. 

Fyke <& Snider and Fenton Hume for appellant. 

Barger S Hicks and White, Hackney & LyOns for 
respondent; Bates, Hicks S Folonie of counsel. 

WILLIAMS, P. J.— This is an action at law to 
recover an alleged $8,T)00 loss under a fire insurance 
policy. 

Trial was had in the Circuit Court of Jackson Coun- 
ty before the court sitting as a jury, which resulted in 
a judgment for defendant. Thereupon plaintiff duly 
appealed to this court. 



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Vol. 279 APRIL TERM, 1919. 157 



Frlck V. Ins. Co. 



This case upon practically the same facts, but in 
a somewhat different form was before this court 
before. [Frick v. Millers National Ins. Co., 184 S. W. 
1161.] 

Api ellant 's brief contains no assignment of errors. 
In his brief under the head of '* Points and Authorities'^ 
we find the. folio wing; 

**1. Plaintiff is entitled to recover on the undisputed 
facts, 

**2. When the policy was transferred to plaintiff 
by the Caney Company, the original insurer, defend- 
ant was notified of the transfer and requested to sub- 
stitute plaintiff as insured and only the formal part 
of transfer remained to be arranged. The policy then 
became a new contract between plaintiff and defendant. 
Instruction 2 to this effect should have been given — 
Instruction 5. Keim v. Ins. Co., 42 Mo. 39, 1. c. 41; 
King V. Ins. Co., 195 Mo. 290, 1. c. 307 ; Andrus v. Ins. 
Co. 168 Mo. 1. c. 166; Bay less v. Ins. Co. 106 Mo. 
App. 684; Planters Mut. Ins. Co., v. Southern S. F. 
Co., 56 S. W. 443. 

*'3. The policy permitted 60 days' vacancy or non- 
operation, and that length of time had not elapsed 
after plaintiff became the owner and insured when the 
fire occurred — Instruction 3. 

*'4. Plaintiff is not bound by acts of the Home 
National Bank in its dealings with defendant ; the con- 
tract between said bank as mortgagee, and defendant, 
being a separate contract from the one between plain- 
tiff and defendant, and there is no evidence said bank 
had authority to act for plaintiff — Instruction 4. Morrow 
V. Lancashire Ins. Co., 29 Ont. 377." 

Rule 15 of this court (as amended October 23, 1917— 
See Supreme Court Rules on page 3 of supplement to 
270 Mo. Report) provides, among other things, that 
**the brief for appellant shall distinctly allege the errors 
committed by the trial court . . . No brief . . . 
which violates this rule will be considered by the court/' 



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158 SUPEEME COUET OF MISSOURI. 

Tannehill y. Railroad. 

This rule works no undue hardship upon the appel- 
lant, but when followed saves this court much time and 
labor in reviewing the case. In fact such a rule is well- 
nigh indispensable to the proper dispatch of appellate 
work. 

Appellant's brief in the instant case nowhere dis- 
tinctly alleges the errors upon which he seeks a re- 
versal of the cause, as is required by said rule. 

''It has been held that where appellant though mak- 
ing no formal collective assignment of errors in any 
given part of his brief, yet separately assigns erroi 
specifically in distinct subheads of his points and 
authorities, we will accept this as a substantial com- 
pliance with the statute and our rules'' (Vahldick v. 
Vahldick, 264 Mo. 1. c. 532) ; yet we have never held 
that a brief complies with this rule when, as here, it 
nowhere contains a distinct or specific allegation or 
assignment of error.* 

Unless Rule 15 is to be treated as a ''mere scrap of 
paper" we are not at liberty to review the case, but 
under Rule 16, and the practice in regard thereto, 
it is our duty to dismiss the appeal for failure to com- 
ply with our rules. [Vahldick v. Vahldick, 264 Mo. 529 
and cases therein cited.] 

The appeal is therefore dismissed. All concur. 



JAMES E. TANNEHILL, Curator of Estate of RUTH 
E. • TANNEHILL et al.. Appellant, v. KANSAS 
CITY, CLINTON & SPRINGFIELD RAILWAY 
COMPANY. 

Division Two, July 5, 1919. 

1. NEGUGENCE: Contributory: Demurrer to Eyldence. If the evi. 
dence adduced by plaintiff proves his own contributory negligence 
as a matter of law, and there is no room in the case for the last- 
chance doctrine, defendant's demurrer to the evidence should be 
sustained, although the evidence also estabHshes defendant's 



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Vol. 279 APRIL TERM, 1919. 159 



Tannehill v. Railroad. 



prima-facle negligence. In such case plaintiff's evidence establish- 
ing his own contributory negligence destroys the prima-facie neg- 
ligence of defendant. And a demurrer to his evidence in such 
case is certainly available where there is a defensive plea of con- 
tributory negligence, and on reason and authority it would be 
available without such plea. 



2. : : : Bad Weather Conditions: Ringing Bell. 

Conceding that the failure of the trainmen to ring the bell or 
sound the whistle as the train approached a public-street crossing 
constituted prima-facie negligence on the part of defendant, and 
conceding further that bad weather conditions were prevailing, 
yet as plaintiff's own evidence is to the effect that under ordi- 
nary conditions the driver of the automobile could have seen the 
train a guarter of a mile away from a place 400 feet from the 
crossing, and that the automobile was forty or fifty feet from the 
crossing when the driver last looked, and he went ahead, travel- 
ing up-grade at the rate of five or six miles per hour and could 
have stopped in a space of eight or ten feet, and without look- 
ing again, attempted to cross the track and the automobile was 
struck by the train, it must be held as a matter of law that the 
driver was guilty of contributory negligence, which, under the 
other facts, bars a right to recover damages for the death of the 
driver's brother, sitting in the automobile. 

3. : : Imputed to Joint Owner. The contributory neg- 
ligence of the driver is to be attributed to his brother who was 
a joint owner of the automobile, was engaged with him in a joint 
enterprise and was riding with him in the automobile at the time 
of its collision with a railroad train. 



: : Humanitarian Bule. If the driver of the automobile 

could see the railroad train for the first time when it was 200 
feet from the crossing, it must be assumed that the trainmen could 
not see the automobile at a greater distance, and if the uncon- 
tradicted evident^ is that the train could have been stopped only 
in from 400 to 600 feet, there is no place in the case for the 
humanitarian doctrine, that the trainmen could have stopped the 
train, after they saw the driver's peril, in time to have avoided 
striking his automobile. 



Appeal from Cass Circuit Court. — Eon. Andrew A. 

WMtsett, Judge. 



Apfibmbd. 



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160 SUPREME COURT OF MISSOURI. 

Tannehill v. Railroad. 

L. M. Crouch, Parks S Son and Campbell <& Camp- 
hell for appellant. 

(1) ** Contributory negligence, as a rule, is a matter 
of defense, which must be pleaded and proved by the 
defendant. When plaintiff makes out a prima-facie case, 
entitling him to go to the jury, the burden then shifts to 
the defendant, if he relies upon plaintiff's negligence, 
to disprove and overcome that case, to the satisfaction 
of the jury. And the prima-facie case for plaintiff 
having been made out, the case can never be peremp- 
torily taken from the jury; for, however strong the 
countervailing testimony of plaintiff's contributory 
negligence may be, its credibility and weight are for 
the jury." Peterson v. C. & A. Ry. Co., 265 Mo. 462; 
Farrar v. Met. St. By. Co., 249 Mo. 210; Taylor v. 
Met. St. Ry., 256 Mo. 191, 1. c. 213, 215 ; Krehmeyer v. 
Transit Co., 220 Mo. 639; DeRousse v. West, 200 S. W. 
783; Kennayde v. Railroad, 45 Mo. 255; Underwood v. 
Ry. Co., 190 Mo. App. 407; Thornsberry v. Ry. Co., 
178 S. W. 197, 1. c. 200, par. 5 ; Hubbard v. Lusk, 181 S. 
W!1028; Goebel v. United Rys. Co., 181 S. W. 1051; 
Montague v. Mo. & K. I. Ry. Co., 193 S. W. 935; Walker 
V. Wabash Ry. Co., 193 Mo. App. 249. (2) *'0n demurrer 
to the evidence, plaintiff is entitled to every favorable or 
reasonable inference arising therefrom." Lamport v. 
Fire & Life Assn. Co., 197 S. W. 95; Hanser v. Bieber, 
197 S. W. 68; Jetter v. St. Joseph Terminal Ry. Co., 193 
S. W. 95ft; Hendrix v. United Rys. Co., 193 S. W. 812; 
Montague v. Mo. & K. L Ry. Co., 193 S. W. 935; Camp- 
bell V. St. L. & Sub. Ry. Co., 175 Mo. 161. (3) the 
presumption of due care on the part of H. Earl Tanne- 
hill accompained him, as he approached the railway 
crossing, regardless of whether or not there was any 
evidence to show that he looked and listened for an 
approaching train. McQuitty v. Kansas City Southern 
Ry. Co., 194 S. W. 888; Underwood v. St. L. L M. & S. 
Ry. Co., 190 Mo. App. 415; Hubbard v. Lusk, 181 S. W. 
1031. (4) The demurrer should have been overruled 



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Vol. 279 APEIL TEEM, 1919. 161 



Tannehill v. Railroad. 



and the case snbmitted to the jury, under the evidence 
in the case and under the pleadings under the humani- 
tarian or last-chance doctrine. Ellis v. Metr. St. Ry. Co., 
234 Mo. 657; Flynn v. Metr. St. Ry. Co., 166 Mo. App. 
187; Bruening v. St. Ry. Co., 181 Mo. App. 264; Norders 
V. Metr. St. Ry. Co., 168 Mo. App. 172; Flack v. Railroad, 
162 Mo. App. 650; Cole v. Metr. St. Ry. Co., 133 Mo. App. 
440; McNamara v. St. Ry. Co., 133 Mo. App. 645; Delmar 
V. Metr. St. Ry. Co., 136 Mo. App. 443; Sheldon v. 
St. Ry. Co., 167 Mo. App. 404; Johnson v. Traction Co., 
176 Mo. App. 174; Crutcher v. Railroad, 241 Mo. 137; 
Taylor v. Railroad, 256 Mo. 191; Strauss v. Railroad, 
166 Mo. App. 153; White v. Railroad, 202* Mo. 539; King 
V. Wabash Ry. Co., 211 Mo. 1; Shipley v. Metr. Str. Ry. 
Co., 144 Mo. App. 7; Lynch v. C. & A. Ry. Co, 208 
Mo. 1; Reybum v. Railroad, 187 Mo. 575; Rine v. 
Railroad, 100 Mo. 234; Krehmeyer v. Transit Co., 220. 
Mo. 639; Farrar v. Metr. Str. Ry. Co., 249 Mo. 220. (5) 
The negligence, if any, of Thos. P. Tannehill, could not 
be imputed to H. Earl Tannehill, for the evidence shows 
that H. Earl Tannehill was not driving the automobile, 
nor was he in any way exercising any control over the 
car or in any way directing Thos. P. Tannehill in its 
control and management, but on the contrary Thos. P. 
Tannehill had the exclusive control over its operation 
and management. Johnson v. Traction Co., 176 Mo. App. 
185; Moon v. St. Louis Transit Co., 237 Mo. 434; 
Stotler V. C. & A. Ry. Co., 200 Mo. 146-148; Farrar 
V. Metr. St. Ry. Co., 249 Mo. 219; Sluder v. Transit Co., 
189 Mo. 107; Ebert v. Metr. St. Ry. Co., 174 Mo. App. 
45; Connor v. Railroad, 149 Mo. App. 675; Diskon v. 
Railroad, 104 Mo. 491 ; Baxter v. St. Louis Transit Co., 
103 Mo. App. 598; Keitel v. Railroad, 28 Mo. App. 657. 

John H. LvBcas, Wm. C. Lucas and D. C. Barnett 
for respondent. 

(1) There was no evidence on which to base a sub- 
mission of either of the two alleged acts of negligence, 

11—279 Mo. 



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162 SUPREME COXJRT OF MISSOURI. 

Tannehill y. Railroad. 

viz. : Failure to sound the whistle or ring the bell. There 
was an entire failure of proof of either allegation. 
The rule is well established **when the evidence is of 
such a character that the trial judge would have a plain 
duty to perform in setting aside the verdict as unsup- 
ported by the evidence, it is his duty and prerogative to 
interfere before submission to the jury and direct a ver- 
dict for the defendant. " Jackson v. Hardin, 83 Mo. 175 ; 
Hite V. Metroplitan St. Railway Co., 130 Mo. J 32; War- 
ner V. St. L. & M. R. Railroad, 178 Mo. 132 ; T^aggoner v. 
Railroad, 152 Mo. App. 179; Weltmer v. Bishop, 171 
Mo. 116; Sexton v. Met. St. Ry. Co., 245 Mo. 272; 
Burge V. Wabash Railroad, 244 Mo. 94. (2) The deceased 
was guilty of such contributory negligence as barred a 
recovery. McManamee v. Mo. Pac. Ry. Co., 135 Mo. 
449; Huggart v. Mo. Pac. Ry. Co., 134 Mo. 679; Kelsay 
.V. Mo. Pac. Ry. Co., 129 Mo. 372. (3) There is no room 
for the application of the humanitarian fule, and the 
claim therefor is without substantive evidence to sup- 
port the contention. Keele v. A., T. & S. F. Railroad, 258 
Mo. 77; McGee v. Wabash Railroad, 214 Mo. 541; RoUi- 
son V. Wabash Railroad, 252 Mo. 537 ; Phippin v. Mo. 
Pac. Ry. Co., 196 Mo. 343. (4) The final contention is 
that as the deceased was not driving the car he was 
absolved from the exercise of ordinary care, a conten- 
tion unsustained in reason and unsupported by preced- 
ent. It was the duty of the deceased to look and listen 
for the approaching train, and this duty could not be 
shifted to his business associate. Burton v. Pryor, 198 
S. W. 1120; Erie R. R. Co. v. Hurlburt, 221 Fed. 907; 
Brommer v. Penn. Railroad, 29 L. R. A. 924; Coby v. 
Q., 0. & K. C. Railroad 174 Mo. App. 648. 

FARIS, J.— Appellant as the curator of certain 
minor children of one H. Earl Tennehill, deceased, sued 
to recover damages for the negligent killing of the 
latter by a passenger train of defendant. Upon a trial 
nisi, the court at the close of plaintiff's case in chief 
sustained defendant's demurrer to the evidence. There- 



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Vol. 279 APRIL TERM, 1919. 163 



Tannehill v. Railroad. 



upon plaintiff took a voluntary nonsuit with leave. 
Cast in his motion to set this nonsuit aside, plaintiff 
in the conventional mode appealed. 

The grounds upon which plaintiff, pursuant to his 
petition, seeks to fix liability upon defendant, are : (a) 
The failure and neglect of defendant's servants, agents 
and employees in charge of said train to sound the 
whistle or riri^ the bell upon defendant's locomotive at 
the crossing where the decedent was struck and killed, 
and (b) the negligent failure to avoid striking and 
killing decedent at a place whereat he could and ough^ 
to have been seen in a position of danger in time to 
have stopped the train and thus avoided killing him. 
Defendant's answer is a general denial and a plea of 
decedent's contributory negligence. 

Decedent; who lived at Garden City, Missouri, 
while riding in an automobile, was struck and killed, 
at a grade crossing of a public highway, called in the 
record the ^'Kenagy Crossing," on December 18, 1914. 
The time was about one o'clock in the afternoon. The 
train was practically on time. The day was cloudy and 
overcast, damp and foggy, ar misty. A light snow par- 
tially covered the ground, and the roads were muddy, 
or slushy. The railroad and the highway crossed at an 
angle of forty-five degrees. 

Decedent and one of his brothers were returning to 
their home at Garden City from a trip to Clinton in an 
automobile. Decedent's brother was driving the ear, 
which car was jointly owned by decedent, the brother 
who was driving, and another brother. The curtains 
of the car were down as the car approached this cros- 
sing, though a view of objects to the side was obtain- 
able through celluloid covered spaces, or windows, 
some seven or eight inches by twelve or fourteen inches 
in dimensions. Decedent was about thirty-five years of 
age, and slightly hard of hearing. His business was that 
of a real estate agent, wherein he seems to have been 
engaged with the brother in question, and perhaps 
with another brother, at his home town of Garden Cit^ . 



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164 SUPEEME COURT OF MISSOURI. 

Tannehill y. Railroad. 

The only eye-witness who testified upon the trial 
was the brother of decedent, who, as stated, was driving 
the car at the time the decedent was killed. Upon the 
testimony of this brother the case, of necessity, niust 
largely turn. He says that as he and decedent ap- 
proached this crossing and, when at a distance of some 
400 feet therefrom, he looked for an approaching train ; 
that he knew a train was due from the south at about 
one o'clock, but that he did not know what time of day 
it was. Seeing no train, though from the point at which 
he looked a train coming as was the one which killed 
decedent could ordinarily have been seen when a quarter 
of a mile distant from the crossing, he continued driving. 
When he and decedent reached a point some forty feet 
from the crossing and while driving on an up-grade at 
the rate of five or six miles an hour, he again looked for 
a train. From this last point of observation, a train 
could ordinarily have been seen a quarter of a mile 
away, but on this day, on account of the prevailing 
weather conditions, the witness says, he could only have 
seen a train when the same was some 200 feet distant 
from the crossing. Seeing no train from this final point 
of observation, hearing none, and hearing no crossing 
signals, he looked in the other direction toward Garden 
City and continued driving until he reached the rail- 
road track. There he suddenly saw the locomotive 
right upon him, and was instantly struck, and hurled 
with the car and decedent some 100 feet. From this 
impact decedent was fatally injured, dying in the after- 
noon of the same day, and the witness rendered un- 
conscious for some few minutes. The automobile, this 
witness says, at the rate it was traveling when struck, 
could have been stopped in from eight to ten feet. 

Whether the required statutory signals were given 
by sounding a whistle, or whether the train on this day 
and at this time was visible at a greater distance than 
that stated by decedent's brother, is contradictory upon 
the record before us; some of plaintiff's witnesses saying 
these signals were given, some that they were not given, 



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Vol. 279 APEIL TEEM, 1919. 165 

fannehill v. Railroad. 

and some that if they were given the witnesses did 
not hear them. Tpuching the visibility of the train, so 
far as such visibility was affected by existing wheather 
conditions, some of plaintiff's witnesses say they 
actually saw it on this day and at this time, while it was 
from a quarter of a mile to a mile and a half away. 
This, however, by the way, for the rule requires us 
here to apply every inference in favor of plaintiff, and 
to consider in his favor the very highest points shown 
by the proof. 

Since the case is a fact case, we will on this account 
reserve other facts for recital when we shall come 
to discuss what we deem to be the controlling law of 
the case. 

I. As forcast, this case presents but one question; 
that question is, was the evidence sufficient to take the 

case to the jury? Plaintiff in effect contends, 
SSenw^^^i*^ absolute correctness, we think {if it 

were, or could here be, considered alone), 
that there was sufficient evidence of one element of 
negligence pleaded, that is, as to the failure of the 
defendant to sound the whistle or ring the bell upon 
the engine (Sec. 3140, R. S. 1909), as to constitute prima- 
facie negligence, to take the case to the jury. In this 
connection, plaintiff urges upon us the rule stated in the 
case of Peterson v. Railroad, 265 Mo. 462, which rule 
he excerpts bodily from the syllabus of the case. Taking 
the rule stated in the Peterson case as his text, plaintiff 
insists that since contributory negligence is an affirma- 
tive defense, the moment a prima-facie case bottomed 
upon defendant's negligence is made out, every such 
case must go to the jury, and therefore this case ought 
to have gone to the jury. 

This view, we think, leaves out of consideration 
another controlling point by which the rule contended 
for is in a proper case always modified. That point is, 
that even if the plaintiff's evidence make out a prima- 
facie case, or, to be more exact, make out proof of de- 
fendant's negligence, yet if in developing such a case 



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166 SUPREME COURT OF MISSOURI. 

Tannehill v. Railroad. 

the evidence adduced by plaintiff also proves plaintiff's 
own contributory negligence as a matter of law, then 
the case is not one for the jury, but is one for the court, 
and the court ought to sustain a demurrer to the 
evidence. [Sissel v. Kailroad, 214 Mo. 515.] 

In the Sissel case, supra. Graves, J. upon a point 
presented in that ^ase which was much similar, and 
wholly analogous upon principle, said at page 526, this : 
**Even though there was no plea of contributory neg- 
ligence, yet the trial court would be authorized to take 
a case from the jury upon a demurrer to the evidence 
whenever it was shown by plaintiff's own proof there 
was contributory negligence, such as to preclude a re- 
covery. Without a proper plea of contributory negligence 
the defendant should not be permitted to show, affir- 
matively, by his proof, that there was contributory neg- 
ligence, but where the witnesses for plaintiff disclose the 
facts, aAd the court is thus possessed of them, such 
court has but one course to follow, and that is to say 
that by plaintiff's proof no case has been made. The 
rule which this court has followed is thus stated in 
5 Ency. Plead. & Prac, p. 13: 'The defendant may take 
advantage of contributory negligence which is shown in 
the development of the plaintiff's case, although he 
has not pleaded it as a defense.' " 

In the instant case, there is a defensive plea of 
contributory negligence. If plaintiff may not recover 
when his own evidence, or evidence wHch he offers, 
shows contributory negligence as a matter of law, even 
when defendant has not pleaded such contributory 
negligence, then a fortiori he cannot recover in such 
situation when defendant has interposed this plea. 
Even the case of Peterson v. Railroad, supra, which 
seemingly is largely relied on by plaintiff, does not, 
when the facts in that case are examined, nor even 
when the language used is carefully read, bear out the 
rule contended for by plaintiff. For the learned writer 
of that opinion, in stating the rule which is urged upon 
us, was careful to restrict it to cases wherein the prima- 



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Vol. 279 APRIL TERM, 1919. 167 



Tannehill ▼. Railroad. 



facie case had been made out, thus clearly negativing 
its application to a case wherein, though prima-facie 
the negligence of defendant is shown, yet goes farther 
and destroys such prima-facie case before he stops 
offering evidence, by proving his own contributory neg- 
Hgence as a matter of law. The rule we cite from the 
Sissel case is too well-settled for either dispute or cavil. 

Applying this rule to the facts shown in evidence in 
the instant case, we are of the opinion that the plain- 
tiff's proof shows contributory negligence of decedent 
as a matter of law, and thus precludes plaintiff's re- 
covery. Numerous witnesses offered by plaintiff testi- 
fied to having seen the train which killed decedent when 
it was from a quarter of a mile or a mile, or more, 
distant. Witnesses for plaintiff who were half a mile 
away at the moment the train struck the car could 
even see the car, or the debris therefrom, flying through 
the air. But we concede, of course, that decedent was 
not under the rule enjoined on us in this sort of case, 
required to see the train as others saw it. If there 
be a witness who says that the weather conditions 
prevailing prevented the seeing of it at so great a dist- 
ance, the case, so far as this phase is concerned, is 
one for the jury. [Lamport v. Ins. Co., 197 S. W. 95; 
Hanser v. Bieber, 197 S. W. 68 ; Campbell v. Railroad, 
175 Mo. 161]. 

The brother of decedent, who was in the car driv- 
ing it at and prior to the moment at which the latter 
was struck and killed, says that he could have 
seen the train, under ordinary conditions, a quarter of 
a mile away, at a time and from a place whereat the 
automobile was 400 feet distant from the crossing. When 
decedent and his brother got within forty feet or 
fifty feet of the crossing, this brother again looked south 
dowTi the track, in the direction whence the train was 
approaching, and saw — ^he says — nothing of this train. 
He then turned his head in the other direction, looking 
toward Garden City and away from the point whence 
the train was coming, and without again looking, con- 



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168 SUPREME COURT OF MISSOURI. 

Tannehill y. Railroad. 

tinued to drive toward the track, traversing the forty 
feet of distance, till the car went upon the track and was 
struck by the train. When the brother looked last, forty 
feet away from the track, he was in such a position that 
even the weather conditions considered, he could have 
seen the train when it was 200 feet away. Ordinarily, he 
says, he could from this point have seen it when it 
was more than a quarter of a mile away. The automobile 
was then going up-grade at the rate of five or six miles 
an hour, and could have been brought to a stop in eight 
or ten feet. In other words, there was space between 
the time the driver last looked, and the place and mo- 
ment at which he tried to cross the track and was 
struck, to have stopped the car four or five times. There 
can be no other reasonable inference than that the 
driver was guilty of contributory negligence, which, 
if he had been hurt, would have precluded his recovery. 
We think the physical facts to- be deduced from un- 
contradicted evidence admit of no other inference. 

Other facts in the case indicate that tlie engine and 
the car both reached this crossing at about the same 
instant. The front wheel on the left-hand side of the 
car struck the pilot of the engine. The step upon tlic 
right-hand side of this pilot was badly bent, as also 
were the steps leading from the ground to the cab 
of the locomotive on this same side. Both wheels upon 
the left side of the car were demolished, and there was 
mud upon the right-hand cylinder and the driving rod 
of the locomotive. 

Leaving this phase of the case to be again recurred 
to, we are further of the view that the evidence also 
shows the contributory negligence of decedent himself 
as a matter of law. Asked touching the actions of 
decedent at the moment the automobile approached this 
crossing, decedent's brother said: 

'*Q. And he turned around and was looking back 
to the rear end of the car at the time and before this 
collision? That is a fact isn't it? A. At the time ho 
was. 



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Vol. 279 APRIL TERM, 1919. 169 



Tannehill ▼. Railroad. 



'*Q. Was looking back at the time of this collision, 
he wasn't looking out in front of the car but was look- 
ing back gathering these packages that he was going to 
give to his children, in the back part of the car, wasn't 
heT A. He had just turned around. 

**Q. Well it took some time to turn around didn't 
it, a second or soT A. Oh, it didn't take so great 
length of time. 

*'Q. Took just about as long as it would take to stop 
the car wouldn't it f A. About.'' 

The above excerpt shows, we think conclusively— 
and there is nothing in the record to destroy or minimize 
its force — that decedent was not looking when he was 
driven into the zone of danger. He was looking to the 
rear instead of toward the south, or to the front, a 
period of time suflScient to have brought about the 
stopping of the car before the car went upon the track. 
The mathematics of the situation shows this conclu- 
sively. For if, as the only witness upon this point says, 
the train was running from twenty-five to thirty-five 
miles an hour, or if, as plaintiff's counsel assume, the 
train was running thirty miles an hour, and the car, as 
the driver thereof says, was running six miles an hour, 
then when the car got within ten feet of the track the 
train was in full view and only fifty or sixty feet 
away. There was then yet remaining time to stop the 
car, for the driver swears it could have been stopped in 
eight or ten feet. From the same figures, it is likewise 
demonstrable that when the train came into view of the 
deceased and his brother two hundred feet away, the 
ear was then forty feet from the track. The space was 
suflBcient, upon all the evidence, within which to have 
stopped the car four times before reaching the zone of 
danger. All this is true, with but slight variations, 
whether we take the minimum or maximum speed of 
the locomotive and the car, and whether we take the 
minimum or maximum space within which the car could 
have been stopped. 



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170 SUPREME COURT OF MISSOURI. ' 

Tannehili y. Railroad. 

In such a situation, what was said by this court 
in the case of Kelsay v. Railroad, 129 Mo. 1. c. 372, 
applies: **The duty of a traveler upon a highway, in 
approaching a railroad crossing, to use all reasonable 
precautions to ascertain the approach of trains and to 
avoid injury by them is well settled law, not only in 
this court, but perhaps of all the courts of this country. 
This rule imperatively requires hi!n to look carefully in 
both directions, at a convenient distance from the 
crossing, before venturing upon it, if by looking, a 
train could be seen. The duty will not be performed by 
attempting to look only from a point at which the view 
is obstructed. The duty is a continuing one until 
the crossing is reached. If there is a point between the 
obstruction and the track which gives opportunity to 
see it is the duty of the traveler to look. He can not 
close his eyes and thereby relieve himself of the con- 
sequences of his own neglects [Hayden v. Railroad, 124 
Mo. 566.]'' 

But, recurring to the qilestion in the negligence of 
decedent's brother who was driving, if we were to 
take the view that decedent was himself free from 
actual negligence, we are yet of the opinion that the 
obvious negligence of his brother who was driving is 
upon the facts in this record, imputable to decedent. For 
this brother, as stated above, admits that after looking 
for the train, the time of passing of which he knew, 
when he was forty or fifty feet from the crossing, he 
then looked no more, but turned his gaze toward 
Garden City, which was in the opposite direction from 
that from which the train was coming, and continued 
to look in this direction till the instant at which the 
train was actually upon him and struck the car. 

In such situation, the joint enterprise and joint 

ownership of the automobile considered, the negligence 

of the driver was imputable to the deceased. 

KTegS^ce. ^^ ^^ *™^' *^^t ^y *^® great preponderance 

of authority the negligence of the driver of 

an automobile is not imputable to a mere guest, or to a 



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Vol- 279 APRIL TERM, 1919. 171 



Tannehill y. Railroad. 



passenger who is riding in the machine, but who has no 
authority either over the machine or over the driver 
thereof. [Dale v. Denver Tramway Co., 97 C. C. A. 
511 ; Baltimore v. Maryland, 92 C. C. A. 335 ; Lininger v. 
San Francisco Ry. Co., 18 Cal. App. 411; Tousley v. 
Pacific Ry Co., 166 Cal 457; Porter v. Jacksonville 
Ry., 45 Fla. 692; Ind. Traction Co. v. Love, 180 Ind. 
442; Hubbard v. Bartholomew, 144 N. W. 13; Corley v. 
Ry. Co., 90 Kan. 70; United Railways Co. v. Crain, 123 
Md. 332; Littlefield v. Gilman, 207 Mass. 539; Terwill- 
iger V. Railroad, 209 N. Y. 522; Tonseth v. Portland Co.. 
141 Pac. 868; Hermann v. Rhode Island Co., 90 Atl. 813; 
Latimer v. Anderson County, 95 S. C. 187.] 

The like rule has been applied to the negligence of 
the driver of an automobile for hire, in a case wherein 
the passenger merely gives directions as to the desired 
designation, but who neither has nor exercises any 
further control over either the machine, or the driver. 
[Rush V. Ry. Co., 157 Mo. App. 504; McFadden v. Lott, 
161 Mo. App. 652; Thompson v. Ry., 165 Cal. 748; 
Roby V. K. C. Ry. Co., 130 La. 880; Meyers v. Tri- 
State Co., 121 Minn. 68; Wachsmith v. Railroad, 233 
Pa. 465; Wilson v. Puget Sound Co., 52 Wash. 528; 
Galloway v. Detroit Ry. Co., 168 Mich. 343.] 

But in the instant case, decedent and his brother, 
who was the driver of the car of tchich these two and 
another brother were joint owners^ were engaged in a 
joint enterprise. They were returning to Garden City, 
whereat they were engaged as partners in the real 
estate business, from Clinton, to which place they had 
been on some sort of business or pleasure, the record 
so far as we are able to find, not disclosing which. In 
such case, it is almost universally held that the neg- 
ligence of the driver of the car is to be imputed to the 
other member of the joint enterprise. [Payne v. Chicago, 
etc., Ry. Co., 39 la. 523; Nesbit v. Garner, 75 la., 314; 
Donnelly v. Brooklyn Ry. Co., 109 N. Y. 16; Schron v. 
Staten Island Ry. Co., 45 N. Y. Supp. 124; Boyden v. 



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172 SUPREME COUET OF MISSOURI. 

Tannehill y. Railroad. 

Fitchburg Ry. Co., 72 Vt. 89; Omaha Ry. Co. v. Talbot, 
48 Neb. 628.] 

Here then, whether decedent and his brother were 
in their journey to Clinton upon either pleasure or 
business bent, they were neither master and servant, 
employee and employer, nor guest or passenger of the 
other. They owned the car jointly, they were upon a 
joint enterprise, either of business or pleasure, and 
neither had any more or any less control of the car 
at the time than the other. In such case, it seems clear 
that the negligence of one part owner of the car, when 
engaged in a joint enterprise, is imputable to the 
other. So, upon either view, the ruling of the learned 
court nisi in sustaining the demurrer to the evidence 
was well taken. 

n. But it is contended that there was a duty, aris- 
ing from the humanitarian doctrine, to avoid injuring 

decedent. This contention upon the record 
Doct^oT^*" before us deserves but short shift. The 

brother of decedent says that from a point 
forty or fifty feet from the track is was only possible 
to see the train when it was two hundred feet from 
the crossing. The only witness offered in the case to 
show within what space the train in question could 
have been stopped, at the rate it was running, swore 
that it could only have been stopped in from four hun- 
dred to six hundred feet. If decedent and his brother 
could see the train for the first time only when it was 
two hundred feet from the crossing, we may safely as- 
sume that the servants, agents and employees of the 
defendant in charge of its train could not see the 
automobile at a distance, on this day, greater than two 
hundred feet. Therefore, if it requires a minimum of 
even four hundred feet within which to stop the train, 
no further comment is necessary. This view, of course, 
leaves out of consideration the testimony of other 
witnesses for plaintiff who swore that the train was 
in fact visible at a much greater distance than two 



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Vol. 279 APRIL TERM, 1919. 173 

Smith y. K. C. Southern Ry. Co. 

hundred feet on this day. But none of these witnesses 
was at the point when they saw the train, that deceased 
and his brother occupied. Moreover, there inevitably 
arises in the case upon the latter view, a consideration 
of how far defendant was justified in concluding that 
decedent would stop before reaching the track, in 
taking the course which defendant took. The learning 
upon the latter point is extensive, and we need not 
take up space here to discuss ii Merely remarking, in 
passing, that if it be in fact a duty incumbent by law up- 
on a defendant railroad to stop its trains whenever those 
in charge thereof see an automobile within forty or fifty 
feet of a railroad crossing, and running only five or 
six miles an hour, it would require in many cases three 
or four days for a train to cross this State. But upon 
this point, and upon the rules suggested by what we 
have said, we may content ourselves with saying that 
the record herein is replete with facts showing that 
this is not a last-chance-doctrine case. 

It results that the view taken nisi was correct, and 
this case ought to be affirmed. Let it be so ordered. All 
concur. 



ROBERT W. SMITH v. KANSAS CITY SOUTHERN 
RAILWAY COMPANY, Appellant 

Division Two, July 5, 1019. 

1. TE8TIM0MY: Expert: Chiropractic: Deposition: No Timely Ob- 
jection. The admission in evidence of the deposition of a chiro- 
practic, who did not qualify so as to give an opinion regarding 
the effect of plaintiffs injuries upon his physical and mental 
functions, taken in May, defendant's counsel being present, and 
read in chief, without objection, at the trial in October, and to 
which no objection was made until after the deponent's cross- 
examination was read at some length, and then for the first time 
counsel for defendant announced that he was going to move to 
strike out every portion of the testimony which attempted to 
give an expert opinion, but did not point out specifically the por- 
tions he expected to have striken out, was not error. There be- 



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174 SUPREME COURT OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

Ing no designation of what portion of the deposition was incom- 
petent, and consequently no ruling as to the admissibility of any 
specific portion of it, and no timely objection to it, its admission 
cannot be held to be error. 

2. : : : Improper Question and Answer Withdrawn. 

PlaintifT, in taking the deposition of a chiropractic, asked a ques- 
tion which called for an expert opinion. Defendant objected be- 
cause deponent was not qualified as an expert. The answer was 
recorded, an exception saved, the question repeated, and the ob- 
jection renewed, whereupon plaintiff withdrew both the question 
and the former question and answer. Deponent was not qualified 
as an expert, but throughout his deposition, which was read with- 
out objection, had in effect answered the same and similar ques- 
tions in detail. Held, that, there being no other exception to the 
rulings as to the admissibility of deponent's testimony, it cannot 
be conceiyed how the question and answer, even if they hafi not 
been withdrawn, injured defendant, for they added nothing to 
what deponent already had testified. 

3. : Bes Gestae: Contradicting Witness. Where the conductor 

of the train, of which plaintiff was a brakeman, had in his direct 
testimony for defendant, testified that no one had told him that 
the brakebeam of the car was down and that he did not know 
that the fireman or the plaintiff had gone under the car to ad- 
just the beam, and on cross-examination was asked if he didn't 
come running up to the place where plaintiff was injured and 
say he had forgot the men were under the car, it was competent, 
for the purpose of contradiction, to prove by another witness, on 
rebuttal, that the conductor, at that time, was asked by the en- 
gineer why he turned the air on while the men were under the 
train and that he exclaimed, "My Qod, I forgot it; I didn't know 
what I was doing." [Following Gordon v. Railroad, 222 Mo. 1. c. 
581.] 

4. INSTBUOnON: Knowledge: Actual and Imputed. Where the evi- 
dence tends to show that the conductor was told the brakebeam of 
a car was down and knew the plaintiff had gone under the car to 
adjust it, but did not necessarily know plaintiff was still under 
the car at the time he "cut in the air" which caused the fioating 
lever to move and strike the plaintiff's head, and where there is 
also evidence tending to show that a "spot" signal was given, 
which required the conductor to know that something was wrong 
about the train concerning which it was his duty to obtain in- 
formation, an instruction which tells the jury that if the conduc- 
tor, at the time he cut in the air, knew, "or in the exercise of 
ordinary and reasonable care could and should have known," that 
the plaintiff was under the car, the defendant was guilty of neg- 
ligence, is proper; the question, under such circumstances, is 
not solely one of actual knowledge. 



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Vol. 279 APKIL TEEM, 1919. 175 

Smith V. K. C. Southern Ry. Co. 



5. : : : Theory of Trial. Besides, Instructions of- 
fered by defendant telling the jury that if the conductor did not 
know and "could not have known in the exercise of ordinary care'* 
plaintiffs perilous position he could not recover, precludes de- 
fendant from insisting that plalntifT's instruction should have 
confined his right to recover to the conductor's actual knowledge. 

6. VEBDIOT: Presumption: Finding of Every Fact. The court must 
presume that the Jury found every fact of which there was evi- 
dence on the issues properly submitted tending to support the 
verdict. 

7. : Deduction for Costrlhutory Negligence: Award for Actual 

Damages Only: Bemlttitur. Where the petition demanded $75,000 
as damages, and there was some evidence of contributory negli- 
gence, and the instruction, under the provisions of the Federal 
Employers' Liability Act, directed the jury to make a proportionate 
deduction from the actual damages suffered, if they should find 
there was such contributory negligence, and they returned their 
verdict for $37,500, it cannot be held that they found the actual 
damages were $37,500; for the court cannot assume that the jury 
found any fact, where the evidence was contradictory, that would 
Impair their verdict, and there being positive evidence that plain- 
tiff was not guilty of contributory negligence, the excess may be 
corrected by remittitur if the court finds the verdict excessive as 
to the actual damages. 

8. : EzcesslTe: $25,000. Plaintiff's head was crushed between 

two beams of a car; his nose was mashed over to one side; the 
bones of the skull were broken into pieces, and some of them 
taken out, leaving a space unprotected by bone, an inch and a half 
long and an inch wide; he suffered with convulsions until an 
operation was performed. Indicating pressure upon and injury to 
the brain; two years later the evidence Indicates injury to the 
brain; his vision is impaired, he cannot turn his eyes laterally, 
can only focus them on objects directly in front, and is unable to 
read except for a few moments at a time; there is a suppurative 
discharge from his nose, accompanied by a disagreeable odor; he 
has an ataxic walk, and fibrillary tremors, involuntary and in- 
capable of simulation, run over his body, and in walking he lifts 
his legs much higher than a normal man, indicating ataxia, and 
in stooping over has a sensation that his brain is dropping out 
through the hole in the forehead. Prior to his injury he was in 
perfect physical condition, was an athlete, possessed an un- 
usually quick mind, learned easily and took interest in literary 
pursuits; his mind is now Impaired, especially his memory, and 
scientific tests indicate his mind is about equal to that of a child 
ten years of age. At the time of his injury he was 24 years of 
age and receiving a hundred dollars a month, and since has been 
unable to earn anything. The jury returned a verdict for $37,500, 



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176 SUPREME COUKT OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

and that was reduced by the trial court to $25,000, which on appeal 
is, held, not excessive. 

9. : : Bule. The court has never ruled that any verdict 

for personal injuries in excess of $25,000 is excessive. Every case 
must be determined on its own individual facts. 

10. : : Value of Money. Twenty-five thousand dollars in 

1904 was a much larger sum in purchasing power than the same 
sum in 1914. 



Appeal from Jackson Circuit Court. — Hon. Thomas 
Seehorn, Judge. 

Affirmed. 

Cyrus Crane for appellant. 

(1) TJie excessive verdict was not cured by the 
remittitur which the court ordered. The remittitur 
merely brings the verdict down to the maximum allowed 
by this court in the personal injury cases and does not 
preserve the deduction from the gross amount of dam- 
ages which the jury apparently made or intended to 
make in tJie verdict, (a) There was evidence from which 
the jury could have found that the plaintiff was guilty 
of contributory negligence, (b) Total amount of dam- 
ages demanded by plaintiff was $75,000. (c) The jury's 
verdict shows that it made a deduction on account of 
plaintiff's negligence, (d) The remi/fifwr required by the 
court does not preserve such deduction, (e) The origi- 
nal verdict was manifestly excessive, (f) The defend- 
ant's right to a deduction because of contributory neg- 
ligence must be strictly observed. Hadley v. Kailway, 
156 N. W. (Neb.) 765; Railway Co. v. Wright, 207 
Fed. 281, 125 C. C. A. 25; Pennsylvania Co. v. Sheeley, 
221 Fed. 901. (2) The verdict of the jury was excessive 
under either Stat« or Federal decisions and a new trial 
should be ordered rather than a remittitur. The United 
States Supreme Court leaves the amount of damages to 
the trial and appellate courts. Railway Co. v. Bennett. 



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Vol. 279 APRIL TERM, 1919. 177 



Smith V. K. C. Southern Ry. Co. 



233 U. S. 80. Federal court allowances are not more 
liberal than those of Missouri. Duke v. Railway Co., 
172 Fed. 684; Railway Co. v. Lindsey, 201 Fed. 836; Cain 
V. Railway Co., 199 Fed. 211. This court is free to follow 
its own decisions and, therefore, should grant a new 
trial. Partello v. Railway, 217 Mo. 645. Remittitur is 
only used as a cure where there is no other error in 
the record. Cook v. Globe Printing Co., 227 Mo. 471. 
(3) The court erred in admitting expert opinions from 
witness E. C. Herron because he was not qualified. The 
qualifications of this witness were for the court, and not 
for the jury, as the court erroneously held. FuUerton v. 
Fordyce, 144 Mo. 530; Benjamin v. St. Ry. Co., 50 Mo. 
App. 608; Bradford v. Railway, 64 Mo. App. 483; Gates 
V. Railway, 44 Mo. App. 492. This court is not given to 
treating fake practitioners as experts. Weltmer v. 
Bishop, 171 Mo. 110. The objection made to the testi- 
mony was suflBcient. Railway v .Second St. Improvement, 
256 Mo. 411; Railway v. Walsh, 197 Mo. 409. (4) The 
court erred in admitting evidence as to Conductor 
Johnson's statements made after the accident occured. 
They were not part of the res gestae, nor admissible as 
impeaching testimony. Koenig v. Railway Co,, 173 Mo. 
709; Wojtylak v. Coal Co., 188 Mo. 260; Barker v. Rail- 
way, 126 Mo. 143; Price v. Thornton, 10 Mo. 135; Rogers 
v. McCune, 19 Mo. 558 ; McDermott v. Railroad, 73 Mo. 
516 ; Adams v. Railroad, 74 Mo. 553 ; Devlin v. Railroad^ 
87 Mo. 545; State v. Hendricks, 172 Mo. 654; Gordon v! 
Railway Co., 222 Mo. 532. The alleged contradictory 
statements were not admissible for the purpose of im- 
peaphment. Hamburger v. Rinkle, 164 Mo. 407; Roe v. 
Bank, 167 Mo. 406. (5) Instruction one given on behalf of 
plaintiff was erroneous. There was no evidence or facts 
warranting the jury in finding that the conductor, **in 
the exercise of reasonable and ordinary care could and 
should have known that plaintiff was under the car.'' 

12—279 Mo. 



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178 SUPKEME COURT OP MISSOURI. 

Smith V. K. C. Southeni Ry. Co. 



A. N. Gossett and T. J. Madden for respondent. 

WHITE, C. — The plaintiff in an action for personal 
injuries was awarded a verdict against defendant in the 
Circuit Court of Jackson County for $37,500. Defend- 
ant's motion for new trial was overruled on condition 
that the plaintiff remit $12,500 from the verdict. 
This was accordingly done, judgment entered for $25,000, 
and the motion overruled. Thereupon the defendant 
appealed to this court. 

The plaintiff was a brakeman in the service of the 
defendant. He was injured January 10, 1914, at Bates, 
Arkansas. He was working on a branch line running 
from Hetherman, Oklahoma, to Waldron, Arkansas. 
When the train, on the day mentioned, arrived at the 
town of Bates, it contained only three or four cars. 
At that point there stood on tie siding a number of 
cars comprising a bridge-and-building outfit, consist- 
ing of seven to nine cars; these were to be taken into 
the train on which the plaintiff arrived. Considerable 
evidence was introduced to show the method by which 
this was done and to explain the operation of the train 
at that time. It is not necessary to state this in detail. 
Briefly, the engine and one or two cars were cut off 
from the train on the main line, brought on to the 
siding and attached to the bridge-and-building cars; 
the train was then run back on the main line and backed 
to the cars of the train which had been detached, for 
the purpose of coupling them on again. It seems that 
the conductor, a man named Johnson, remained witji 
the section of the train which was left on the main 
track, while Smith, the plaintiff, was engaged in assist- 
ing to couple and line up the new cars that were brought 
into the train. While this was being done it was discover- 
ed that a brakebeam was down on a car near the engine. 
There was evidence tending to show that the fire- 
man, a man named Weller, gave what is termed a** spot*' 
signal, indicating to the conductor that something was 
wrong that required his attention. The testimony is 



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Vol. 279 APRIL TERM, 1919. 179 

Smith V. K. C. Southern Ry. Co. 

contradictory as to whether such spot signal was given, 
and if it was given whether the conductor was in posi- 
tion to see it. 

The plaintiff testified, and was corroborated by an- 
other witness, that he called to the conductor and told 
him the brakebeam was down, and was directed by the 
conductor to go in and fix it. The fireman, Weller, 
notified the engineer that the brakebeam was down. 
Weller got a pick and went under the car for the purpose 
of attempting to repair the brakebeam, and plaintiff 
went under for the purpose of assisting, and while there 
he saw that a pin which goes through what is called 
a ** floating lever'' was out of position and' he attempted 
to fix it. In doing that his head came between the float- 
ing lever and what is termed the *' needle beam," which 
is attached to the bottom of a car and runs crosswise. 
At that time the conductor, Johnson, was coupling up 
the rear remnants of the train with that section which 
had been taken in, and in doing so found some difficulty 
which required time, but finally made the coupling. He 
then made the necessary hose connections for the air 
and, using the term applied by the men, ''cut in the air." 
This caused the floating lever where Smith w^as working 
to move and strike Smith's head, crushing it between 
that appliance and what is called the needle beam, 
causing the injury for which he sues. 

The question as to defendant's negligence was as to 
whether the conductor, Johnson, before cutting in the 
air, knew, or by the exercise of ordinary care could have 
known, that the brakebeam was down, and also knew, or 
by the exercise of ordinary care could have known, 
that some of the men were under the car fixing it. If he 
did it was conceded that he was negligent in cutting in 
the air, which would be likely to cause some movement 
and render the position of the men dangerous. 

Also it was a question whether the plaintiff was 
negligent in placing himself in the position in which he 
was, without first cutting off the air from the car where 
he was working. The evidence on both of these proposi- 



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180 SUPREME COURT OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

tions was conflicting. It seems to be conceded by the 
appellant that there was snflBx^ient evidence bf the de- 
fendant's negligence to warrant submission of that issue 
to the jury. But it is argued that the conduct of the 
plaintiff shows negligence upon his part so as conclusive- 
ly to warrant a deduction under the Federal Employers' 
Liability Act from any actual damages found. There was 
suflScient evidence from which the jury might very prop- 
erly have found that the plaintiff was not negligent in 
any respect, but was in the line of his duty and did not 
unnecessarily expose himself to a peril which might 
reasonably have been avoided; that he had a right to 
rely upon the conductor's observing ordinary care, and 
believed and had reason to believe that such conductor 
knew of his position. He swore, and there is other 
evidence corroborating him, that he had plenty of room 
and was in a perfectly safe and proper position if the 
cars had been allowed to remain without interference; 
that is, if nothing had been done with respect to the 
brakes. 

I. Error is assigned to the admission of the testi- 
mony of E. C. Herron who, it is claimed, testified as 
an expert, when his evidence showed that he was not 
qualified as an expert. He was a chiropractic 
TSSnony ^^^t^^ ^^d testified to the condition of plain- 
tiff Smith before he was injured and the 
relation of his hurts to his present condition. He had no 
license to practice medicine and had received his educa- 
tion as a chiropractic mainly by correspondence. 

Undoubtedly counsel for plaintiff is correct in his 
position that Herron did not qualify so as to give an 
opinion regarding the effect of the plaintiff's injuries 
upon his physical and mental functions. He testified by 
deposition which was taken May 20, 1915, at Mena, 
Arkansas. This deposition was read at the trial which 
did not begin until October. The defendant was rep- 
resented by counsel at the taking of the deposition and, 
of course, knew as well when the deposition was offered 



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Vol. 279 * APRIL TERM, 1919. 181 



Smith V. K. C. Southern Ry. Co. 



in evidence what it disclosed as to Herron's disquali- 
fication as it did after it was read. Yet the deposition 
in chief was read without objection and showed the quali- 
fication of the witness, his experience and education as 
a chiropractor. Witness testified that he was acquainted 
with the plaintiff long before the injury, and described 
his fine physical condition prior to that time. He ex* 
plained the effect upon his movements caused by his 
injuries, and described what he seemed to think was the 
cause of the trouble; it was the displacement of certain 
vertebrae which affected his nerves. This alleged dis- 
placement was shown by one of the defendant's expert 
witnesses to be absurd and impossible. Herron also 
described the general condition of plaintiff and the 
condition of his head where it was injured. Occasionally 
objections were interposed and in each case they were 
sustained or questions withdrawn. At one point in the 
reading of the deposition defendant's counsel interrupt- 
ed and pointed out the place to which the counsel for 
plaintiff might skip and continue to read, and that part 
which then was read gives the witness's theory about 
the impingement upon the nerves caused by the dis- 
location of some joints of the spine; also the effect of 
this supposed condition upon the muscles of the throat 
and the internal organs. All this without objection. 
Many objections appear in the course of the examination 
to the form of the questions ; these appear to be entered 
on the deposition as originally taken, and no exceptions 
were saved when the answers to such questions were 
read to the jury. Finally, after the cross-examination of 
the witness was read at some length, counsel for de- 
fendant announced that he was going to move to strike 
out every portion of the witness's testimony which 
attempted to give an expert opinion, and would point 
out specifically the portions w hich he expected to have 
stricken out. The record does not show that any such 
designation was made and consequently there was no 
ruling as to the admissibility of any specific evidence 
which had been offered. 



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182 SUPEEME COURT OF AIISSOURI. 

Smith V. K. C. Southern Ry. Co. 

For that reason and for the failure to object in 
time, the complaint that such testimony was in- 
competent cannot be heard now. [State v. Marcks, 140 
Mo. 1. c. 668-9; State v. Forsha, 190 Mo. 1. c. 326-7; 
State V. Bateman, 198 Mo. 1. c. 223-4 ; Hickman v. Green, 
123 Mo. 165.] 

In reading the deposition, this question occurred: ''I 
will ask you if there is any part of the human body that 
is not affected by the brain and nerves?" This was 
objected to because the witness was not qualified as 
an expert. The objection was overruled and the excep- 
tion saved. Witness answered that there was no part of 
the body but what was affected by the brain and nerves. 
The question was repeated and the objection renewed, 
whereupon the plaintiff's attorney withdrew the former 
question and answer and also withdrew the question 
which had just been asked. 

It hardly seems that the defendant, could have been 
injured by the question and answer even if it had not 
been withdrawn, because the witness had in effect an- 
swered the same and similar questions more in detail 
throughout his deposition without objection and the 
present question, to which the objection was made, and 
the answer added nothing to what he had already said. 
No other exceptions were saved to the ruling in the 
testimony of Herron. It is claimed by plaintiff's counsel 
that the defendant was anxious to-have his testimony in 
for the purpose of ridiculing it as a weakness in the 
plaintiff's case. The defendant's conduct lends color to 
that claim. There was no error in receiving the testi- 
mony which can be considered here. 

II. The appellant claims that the court comnjitted 
error in permitting a witness to testify to a statement 
made by Johnson, the conductor, immediatelj'' after he 

learned that the plaintiff was injured, in 
wto*^^^*^^ which he said that he forgot that the men 
Bes Gestae. "^ere under the car. Johnson had testified in 

his examination in chief that no one told 
him the brakebeam was down and he didn't know either 



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Vol. 279 APRIL TERM, 1919. 183 

Smith V. K. C. Southern Ry. Co. 

Weller or Smith had gone under the car to adjust it. 
On cross-examination he was asked if he didn't come 
running up to where the plaintiff was caught and say 
he forgot the men were under the train. He replied that 
he didn't remember saying that. Witness Cooper theji 
was placed upon the stand, in rebuttal, and testified that 
at that time Mr, Hull, the engineer, asked Johnson 
why he turned the air on while the men were under the 
train, and that Johnson exclaimed, *'My God, I forgot 
it; I didn't know what I was doing." 

The position of appellant is that this exclamation 
was no part of the res gestae, a matter not necessary to 
determine. It was offered for the purpose of contradict- 
ing the witness, and appellant claims it was incompetent 
for that purpose. Two cases are cited by appellant in 
support of that position. [Koenig v. Union Dep. Ry. Co., 
173 Mo. 698; and Wojtylak v. Coal Co., 188 Mo. 260.] 
In the Koenig case, shortly after a child was killed 
by a street car, the motorman was asked, '*Are you 
blind to run over a child like that?'' and he replied: 
**I didn't see the child, I was looking at the car coming 
east." The court held this was not res gestae and not 
admissible for that reason. The motorman had not testi- 
fied indicating that he saw the child or to any fact 
which this statement would tend to contradict, and the 
court said, 1. c. 721-22: **This evidence was not offered 
for the purpose of contradicting the motorman, hence 
inadmissible for any purpose." 

In the Wojtylak case the court held that a statement 
of that character was not admissible in that case, be- 
cause it only tended to contradict a statement of the 
witness which was not pertinent to any issue in the 
case. [188 Mo. 1, c 288-89.] 

In the case of Gordon v. Railroad, 222 Mo. 516, 1. c. 
531-2, the plaintiff, a switchman, sued for injuries 
cansed by a defective handrail, and was permitted to 
show that the yard foreman, soon after the injury, had 
made a statement indicating that he knew of the de-. 
fective appliance. He had just testified that he examined 



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184 SUPEEMB COTJET OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

the handrail in question an hour and a half after the 
accident and found it in good condition. His declaration 
was held tq be admissible, because it was inconsistent 
with his testimony. That case distinguishes the Koenig 
case, supra, in that the foreman had just previously 
testified to matters inconsistent with this declaration. 
Several cases are reviewed by this court in the Gordon 
case illustrating the principle (L. c. 533-4). 

In the case of Hutchinson v. Safety Gate Co., 247 
Mo. 71, 1. c. 104 a statement of similar nature was ad- 
mitted in evidence. The only objection to it was that the 
witness was not examined in relation to the matter while 
on the stand, but he was afterwards recalled and ex- 
amined, and then the impeaching statement admitted. 
The competency of the testimony for the purpose was not 
questioned. 

In this case the statement as offered indicated that 
Johnson knew the brakebeam was down and that some- 
one was under the car and tended thereby directly to 
contradict the testimony he had just offered to the 
effect that he did not know those things. On the authority 
of the Gordon case the evidence was competent. 

III. Appellant claims the court conmiitted error 
in instructing the jury that if they should find from the 
evidence that the conductor cut in the air without first 
warning the plaintiff of his intention to do so, 
Knowledge. ^^^ if they further found that the conductor 
knew, ''or in the exercise of ordinary and 
reasonable care could and should have known" the 
plaintiff was under the said car, etc., then he was guilty 
of negligence. 

It is asserted that while there was evidence that the 
conductor knew there were men under the car, there was 
no evidence on which to base that part of the instruction 
which authorizes the finding of negligence if by the ex- 
ercise of reasonable and ordinary care he could and 
should have known that the men were under the car ; that 
it was a question of actual knowledge. 



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Vol. 279 APRIL TERM, 1919. 185 



Smith V. K. C. Southern Ry. Co. 



There was evidence tending to show that the con- 
ductor was told the brakebeam was down, and some of 
this evidence indicates that while he was so informed, 
and knew the men were going under the car, it would 
n6t necessarily follow that he knew the men were under 
the car at the moment the air was cut in. There was 
also evidence of a **spot" signal which indicated some- 
thing was wrong that required attention. Other evidence 
indicates that the train was stopped for soriie time and, 
while the conductor was back toward the rear of the 
train at the time he cut in the air, on account of the 
spot signal, if it was given, he had reason to know that 
something was wrong about which it was his duty to 
obtain definite information. He himself swore positively 
that he did not know the men were under the car, and 
there is positive evidence that he was told the brake- 
beam was down; this would suggest to him that the 
men probably would be under the train for the purpose 
of adjusting it. The evidence was entirely suflScient to 
allow the instruction. 

Besides, appellant tried the case on that theory. 
In instruction numbered 2, and instruction numbered 9, 
offered by defendant, the jury were told that if the 
plaintiff went under the car without advising the con- 
ductor that the brakebeam was down and that the 
conductor did not know and *' could not have known it in 
the exercise of ordinary care" then the verdict should 
be for the defendant. 

IV. Appellant with great ingenuity and force insists 
that thB verdict is excessive and the defect cannot be 
cured by remittitur. The argument runs thus : 

There was evidence tending to show the plain- 
tiff was guilty of contributory negligence, and the 
instructions under the provision of the Federal 
p]mployers' Liability Act directed the jury to 
make a proportionate deduction from the actual 
damages suffered, if they should find such con- 
tributory negligence. The amount of recovery 



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186 SUPREME COURT OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

demanded in the petition was $75,000, and 
the full amount was insisted on in the 
coiiteibuS>ry' plaintiff's argument. The verdict was for 
Aw^'^r' ^^^^ *^^*' ^^ $37,500. It is therefore prob- 

Actuai Damages Sible that the jury found plaintiff's 
^^' actual damages at $75,000, and deducted 

half on account of his negligence. Or they 
might have found his damages at $50,000, and deducted 
one-fourth on account of his negligence. But this court 
has never allowed a verdict for actual damages in a 
personal injury case to stand for more than $25,000. 
Therefore, the actual damage to plaintiff could not ex- 
ceed $25,000, and the remittitur of $12,500, which the 
circuit court ordered did not allow for the probable find- 
ing that the plaintiff was negligent. The circuit court 
should have limited recovery to $25,000, actual damages, 
less a proportionate amount for contributory negligence, 
but did not. It is impossible to say what the jury might 
have deducted for contributory negligence if there had 
been such limit. Therefore, the judgment as reduced to 
$25,000, is excessive because of the probable contribu- 
tory negligence, and the excess cannot be cured by 
remittitur because it is impossible to say what propor- 
tion the jury might have deducted from the actual dam- 
ages on that account. An alternative might be found 
by reducing the judgment one-half, to $12,500. 

Appellant cites two cases in support of this position. 
[Hadley v. Union Pacific Raih-oad Co., 156 N, W. (Neb.) 
765, and Pennsylvania Co. v. Sheeley, 221 Fed. 901.] The 
Hadley case follows the Sheeley case, holding, as is the 
rule, that the construction of the Federal Employers' 
Liability Act by the Federal courts is conclusive upoii 
the State courts. Both these cases hold that it is proper, 
in case there is evidence of contributory negligence in a 
suit under the act, to submit such issue to the jury. In 
the Sheeley case the court held it was not properly sub- 
mitted to the jury, so that they might apportion the 
damages on that account. Nevertheless the court found 
it could correct that defect in the verdict by remittitur 



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Vol. 279 AI^^IL TERM, 1919. 187 

Smith V. K. C. Southern Ry. Co. 

In the Hadley case the court first determined from the 
evidence that the actual damages should not be in excess 
of $18,000, and then determined that the proportionate 
amount on account of contributory negligence could not 
exceed one-fourth of that amount, and ordered a 
remittitur so as to reduce the judgment to $13,500. In 
each of these cases, therefore, where the amount of the 
deduction for contributory negligence was uncertain, 
the court did find it possible to correct any excess by 
remittitur. Appellant suggests that the court in those 
cases invaded the province of the jury, but if this court 
follows the Federal case, which we are presumed to do, 
then any excess in the verdict may be cured by 
remittitur. 

However, there is another principle which applies 
here. That is, all presumptions are indulged in support 
of a verdict and a judgment. In an attack upon the 
propriety of a verdict the court must presume that 
the jury found every fact, of which there was evidence 
on issues properly submitted to the jury, tending to 
support the verdict. [Wright v. Green, 239 Mo. 449, 1. c. 
454 ; Mfg. Co. v. Insurance Co., 167 Mo. App. 566, 1. c. 570.] 
In this case it may be conceded there was some evidence 
tending to show the plaintiff was negligent, while other 
evidence and many of the facts in the situation would 
lead to the conclusion that he was not negligent in get- 
ting under the car and in putting himself in the position 
in which he got hurt — that he was only pursuing his 
ordinary duty. Now, if necessary in order to sustain the 
verdict as rendered, we are bound to presume the jury 
found that he was not negligent and that the verdict ren- 
dered indicates the actual damage which they found he 
had incurred. This court cannot assume that the jury 
found any fact, where the evidence is contradictory, whicli 
would impair their verdict. It cannot be presumed that 
they reached a conclusion in regard to any disputed fact 
which would invalidate the general conclusion shown by 
the verdict. In that case, if this court finds the verdict 



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188 SUPREME COURT OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

excessive as to an award of actual damages, the excess 
may be corrected by remittitur. 

V, It remains to consider whether the verdict is ex- 
. cessive, requiring a remittitur as a condition of affirm- 
ance. 

The plaintiff's head was crushed between the float- 
ing lever and the needle beam. His nose was mashed 
over to one side, the bones of his nose crushed into his 
face; the bones in the skull were broken into 
^J^^ST* many pieces, and these bones had to be taken 
out, leaving a space unprotected by bone, an 
inch and a half long and an inch wide. He suffered with 
convulsions for several hours until an operation was 
performed. This indicated pressure upon and injury to 
the brain. Blood was coming out of his ^yes and ears. 
His suffering for some time was intense. 

The permanence of the injury was testified to by sev- 
eral physicians who examined him. There was con- 
tradictory evidence as to whether any of the gray brain- 
matter oozed out at the time of the injury, but the 
evidence seemed to be uniform that his brain could be 
injured, and there was evidence thai it was injured, 
by the blow, even if there was no rupture of the cover- 
ing of the brain. His vision was impaired and the evi- 
dence indicates that he could not turn his eyes laterally 
and could only focus them on an object directly in front ; 
he was unable to read except for a few moments at a 
time. A discharge came from his nose; there was a 
suppurative condition there, accompanied by a dis- 
agreeable odor. He had an ataxic walk and fibrillary tre- 
mors ran over his body at times ; this is explained by the 
physicians as being entirely involuntary and incapable 
of similation. His eyes fluttered on account of his in- 
ability to focus them on a direct object without moving 
his head, and that was because the nerve supply was 
affected with indications that the muscles which manipu- 
late the eye were atrophied from diease. He was contin- 
ually restless and nervous, with twitching and fidgeting, 



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Vol. 279 APRIL TERM, 1919. 189 



Smith V. K. C. Southern Ry. Ck). 



even when he was asleep. He would squirm around and 
wring his hands when engaged in conversation. On a 
test of his equilibrium when he closed his eyes and tried 
to stand erect he had a tendency to fall backward to the 
left side. He lifted his legs much higher in walking than 
a normal man does, indicating ataxia. He did not sit 
down or move like a normal individual. In stooping over, 
he had a sensation that his brain was dropping out 
through the hole in his forehead. This is characterized 
by the physicians as a delusion due to pressure on the 
brain when he stoops. 

The testimony of several physicians was that this 
physical condition would grow worse instead of better; 
that in no event could he ever recover his normal con- 
dition. There was some evidence offered by defendant 
to the effect that he would to some extent recover. 

Before plaintiff was injured he is described by the 
witness as being in perfect physical condition; he was 
an athelete and had a naturally quick mind. He was apt 
at school. He began working for himself at fifteen years 
of age as a clerk in the commissary department of a 
planing mill, and did the work of an ordinary clerk. 
He learned unusually fast, acquired a limited speaking 
knowledge of the German language; took great interest 
in the literary exercises at school; he had some educa- 
tion in telegraphy. 

The evidence tended to show that his physical con- 
dition had affected his mind, particularly his memory. 
The physician of the Kansas State Penitentiary and 
other physicians subjected him to what is termed the 
Binet-Simons test, for the purpose of determining 
whether or not he was deficient in certain faculties of 
mind. Those tests are set out in the evidence, and the 
result was reached that his mind, by all those tests, was 
about equal to that of a normal child ten years old. 
His memory of recent events was very much impaired. 
T!ie tests to which he was subjected by the physicians 



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190 SUPREME COURT OF MISSOURI. 

Smith V. K. C. Southern Ry. Co. 

indicated that condition of his memory, his association 
and continuity of ideas, his perception, his conception, 
judgment and will. His faculty of association of ideas, 
that is, following one idea after another in an intelligent 
manner, was not that of a normal man. He was ex- 
tremely slow and labored in answering questions. It 
. was the opinion of an expert that his memory of past 
events prior to his injury was better than riecent ones 
and showed that his memory must have been good be- 
fore his injury. Appellant argues that his deposition 
and his evidence, set out in the record, shows no im- 
pairment of his mental faculties. But his manner of 
delivering that testimony does not appear in the record, 
and one physician called attention to his demeanor in 
court as "showing the impairment of his mind and muscu- 
lar control. 

There was considerable evidence offered by defend- 
ant indicating that his injury was not as serious as the 
testimony offered by plaintiff would indicate, but there 
was suflScient evidence by which the jury might very 
properly have found that his physical and mental con- 
dition was impaired beyond any possible recovery to 
aTiything like a normal state, and that his capacity for 
earning a living and enjoying life were reduced to a 
very low point. He w^as injured January 10, 1914, and at 
the time of the trial in October, 1915, nearly two years 
later, he had been unable to earn anything. A suflScient 
time had elapsed so that the permanence of his injuries 
or otherwise were capable of approximate ascertain- 
ment. 

Appellant asserts that this court has never allowed 
a damage for personal injuries in excess of $25,000, and 
states it as if that wero a definite rule. There is no 
definite rule laid down by this court in any case ; each 
individual case has been determined upon its own facts. 

The case of Gordon v. Railroad, 222 Mo. 516, is 
mentioned as the extxeme case in which this court per- 
mitted the highest possible damage for personal in- 
juries, and that is where a verdict for fifty thousand 



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Vol. 279 APRIL TERM, 1919. 191 



Smith V. K. C. Southern Ry. Co. 



dollars was cut down by the circuit court to thirty-five 
thousand dollars and by this court to twenty-five thou- 
sand dollars. In that case the plaintiff's injuries re- 
sulted in total paralysis in his lower extremities. He 
finally died of the injury before the decision was reached 
in this court. 

The plaintiff in this case was 24 years of age and 
earned about a hundred dollars a month ; the plaintiff in 
the Gordon case was 29 years of age and earned about 
ninety dollars a month. In the Gordon case the injury 
occurred in 1904, and in this case in 1914, about ten 
years later. Twenty-five thousand dollars in 1904 was a 
much larger sum in purchasing power than that sum in 
1914. While the injury in the Gordon case was probably 
more painful and more serious in its results, we are 
not prepared to say that the verdict for $25,000 by the 
trial court was excessive. 

In the recent case of Tumbow v. Kansas City 
Railways Company, decided at the last term of this 
court, a verdict for $30,000 was affirmed on condition of 
a reimttitur of $5,000. The injury was the loss of both 
legs, possibly not as serious as the injury in this case. 

Respondent cites many cases from other States 
where much larger verdicts for injuries no more serious 
than that suffered by the plaintiff have been upheld. 

The jiwJgment is aflSrmed. Roy, C, absent. 

PER CURIAM:— The foregoing opinion by White, 
C., is adopted as the opinion of the court. All of the 
judges concur. 



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192 SUPREME COURT OF MISSOURI. 

state V. Cummins. 



THE STATE v. RAY H. CUMMINS, Appellant. 

Division Two, July 5, 1919. 

1. EVIDENCE: Other Burglaries: Conspiracy. Where there is test!- 
mony that defendant, a policeman, entered into an agreement with 
a burglar and some women by which the moneys and goods stolen 
by the burglar from houses burglarized by him were to be divided 
among them, in return for protection to the others by defendant, 
testimony of other burglaries than the one specified in the indict- 
ment, which the burglar testifies were committed about the same 
time and in pursuance to the continuing conspiracy, is competent. 

2. : : Committed Before Conspiracy Was Formed. When 

a witness was testifying concerning the burglarizing of his house 
defendant objected because it did not then appear that defendant 
was connected with any burglary except the one specified in the 
indictment. At that time the witnesses by which the State subse- 
quently attempted to prove that the defendant and one of them 
had entered into an agreement by which defendant, in considera- 
tion of police protection for the other, was to share in the goods 
stolen, had not testified, and consequently the court could not then 
tell whether the connection would be later established. It later de- 
veloped that at the time fhe witness's house was burglarized de- 
fendant had never met his said accomplice, but the objection was 
not then renewed. Held, first, that since the objection was not re- 
newed, the admission of the testimony was not error, and, second, 
since the accomplice testified that he divided the goods which he 
stole from said house with defendant, under said agreement, the 
testimony was competent. 

3. EIiECnOK: Burglary and Larceny: Beceiving Stolen Goods. Where 
the evidence is comprehensive enough to sustain a conviction either 
for burglary and larceny, or for receiving stolen goods, knowing 
them to have been stolen, the court does not err in refusing to com- 
pel the State to elect upon which of the two counts of the indict- 
ment, charging both offenses in separate counts, it will stand. 

4. INSTBXJCTION: Uncorroborated Testimony of Accomplice. An in 
struction telling the jury that they are at liberty to convict the de- 
fendant upon the uncorroborated testimony of an accomplice alone, 
if they believe his statements are true and sufllcient to establish 
defendant's guilt, but that such testimony, when not corroborated, 
ought to be received with great caution, is not error. 

5. : Assumption of Disputed Fact. An instruction telling the 

Jury that "evidence of other burglaries and larcenies were admitted 



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Vol. 279 APRIL TERM, 1919. 193 



state y. Cummins. 



by the court solely for the purpose of determining whether a con- 
spiracy" existed between defendant and his accomplice to burglarize 
Yarious dwellings in the city "and you are to consider this eri- 
dence for no other purpose," did not assume that other burglaries 
had been committed or that defendant had committed them. 

6. SUFFICIENT EVIDEKOE: Burglary and Larceny. The evidence in 
this case, which is fully set out in the statement, was. sufficient to 
sustain a conviction of burglary in the second degree and larceny, 
and assessing defendant's punishment at five years' imprisonment 
for the burglary and five years for the larceny, the evidence being 
that defendant, a policeman, entered into an agreement with a 
burglar and some women by which, in consideration of protection 
for them, the burglar was to burglarise dwelling houses in the com- 
munity and divide the stolen goods among them. 

Appeal from St. Lfouis City Circuit Court. — Hon. 
Victor H. Falkenhainer, Judge. 

Affirmed. 

Charles A. Bouts for appellant. 

(1) It is not admissible, upon the trial of an indict- 
ment for burglary or larceny, to introduce evidence of 
other burglaries or larcenies. State v. Daubert, 42 Mo. 
242; State v. Spray, 174 Mo. 569; State v. Boatright, 
182 Mo. 33. (2) Where, by exception to the general 
rule, evidence of other crimes is admitted to show a 
common scheme or plan, such evidence of other crimes 
must in fact tend to establish a common scheme or plan ; 
otherwise, such evidence is not admissible. State v. 
Hyde, 234 Mo. 200. (3) Evidence of other burglaries 
by Frank (an alleged co-conspirator) was not ad- 
missible for the purpose of proving the existence of a 
conspiracy between him and the defendant. 3 Bishop 
New Criminal Procedure, sec. 229; Metcalfe v. Conner; 
12 Am. Dec. (Ky.) 340. (4) It is error to instruct 
that a defendant charged with a felony can be con- 
victed upon tho uncorroborated testimony of an ac- 
complice. State V. Wilkins, 221 Mo. 444. 

13—279 Mo. 



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194 SUPREME COURT OF MISSOURI. 

state y. Cummins. 

Frank W. McAllister, Attorney-General, and Shra- 
der P. Powell, .A.88istant Attorney-General for respond- 
ent. 

(1) The verdict meets the statutory requirements 
in every particular. State v. Blockberger, 247 Mo. 606 ; 
State v.* Kinney, 190 S. W. 306; State v. Conway, 241 
Mo. 276. (2) The court did not err in permitting the 
State to introduce evidence of the commission of other 
burglaries and larcenies for the purpose of showing the 
intent and a common scheme and plan. State v. Myers, 
82 Mo. 558; State v. Bailey, 190 Mo. 280; State v. 
Spaugh, 200 Mo. 594; State v. Kinney, 190 S. W. 306; 
State V. Patterson, 271 Mo. 109; State v. Lewis, 273 
Mo. 530; State v. Othick, 184 S. W. 108. It is proper 
to introduce testimonj showing that the defendant and 
others combined and confederated together for the com- 
mission of a series of criminal acts, even though a con- 
spiracy is not charged in the indictment. State v. 
Collins, 181 Mo. 261 ; State v. Rock, 194 Mo. 432 ; State 
V. Vaughan, 203 Mo. 670; State v. Casto, 231 Mo. 408; 
People V. Micelli, 142 N. Y. S. 104. (3) The action of the 
trial court in overruling defendant's motion to re- 
quire the State to elect upon which count or charge in 
the indictment it would stand, was erroneous. State v. 
Sutton, 64 Mo. 108; State v. Carrigan, 210 Mo. 366; 
State V. Pace, 269 Mo. 686; State v. Christian, 253 Mo. 
393. (4) The evidence adduced on the trial is amply 
suflScient to sustain the verdict returned by the jury. 
State V. Concelia, 250 Mo. 420; State v. Maurer, 255 Mo. 
168. (5) Instruction number one properly defined the 
crime of burglary and larceny. State v. Fields, 234 Mo. 
623; State v. Shout, 2(<3 Mo. 373; State v. Wklker, 
98 Mo. 104. Instruction number five which announces 
the law relative to knowingly receiving stolen property 
is in an approved form. State v. Sakowski, 191 Mo. 
642; State v. Kosky, 191 Mo. 1. Instruction number 
six clearly defined the terms *' common design'^ and 
** conspiracy." State v. Walker, 98 Mo. 95; State v. 



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Vol. 279 APRIL TERM, 1919. 195 



state y. Cummins. 



Lewis, 273 Mo. 534; Kennish v. Safford, 193 Mo. App. 
372. By instruction number eight the jury was advised 
that they could consider evidence of receiving stolen 
property other than the particular instance charged in 
the indictment only for the purpose of showing intent 
and is fully sustained by the authorities. State v. 
Patterson, 273 Mo, 110; State v. Spaugh, 200 Mo. 
594. The jury was likewise advised by instruction 
number 8-A, that evidence of other burglaries and 
larcenies was admitted for the sole purpose, and could 
be considered only in determining whether a common 
design and scheme existed between the defendant and 
the witness Franke. State v. Bailey, 190 Mo. 284; State 
V. Lewis, 273 Mo. 530. Instruction number nine and 
ten clearly stated the law relative to the rule for weigh- 
ing the testimony of an accomplice. State v. Donnelly, 
130 Mo. 649; State v. Kosky, 191 Mo. 9; State v. 
Bobbitt, 215 Mo. 42. 

RAILEY, C— On September 29, 1917, the grand 
jury of the City of St. Louis, returned into open court 
an indictment in two counts, charging defendant, Ray 
Cummins, in the first count, with burglarizing the 
house of Jessie Bennett and Charles Bennett on June 
5, 1916^ and also with stealing therefrom certam articles 
of jewelry of the total value of $442.50. The second 
count of the indictment charged defendant with receiv- 
ing stolen property. On January 7, 1918, defend- 
ant waived formal arraignment and entered a plea of 
not guilty. He filed a motion to require the State to 
elect, as to which count it would proceed to trial, and 
tliis motion was overruled. 

On January 8, 1918, the trial was commenced, a 
jury impaneled and after hearing the evidence and re- 
ceiving tlie instructions of the court, a verdict was 
returned, finding the defendant guilty of burglary in 
the second degree and larceny as charged in the first 
count of the indictment, and assessing his punishment 
at five years' imprisonment in the State Penitentiary for 
the burglary and five years additional for the larceny. 



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196 SUPREME COUET OF MISSOURI. 

state y. Cummins. 

After xmsuccessful motions for a new trial and in 
arrest of judgment, the court pronounced sentence in 
accordance with the terms of the verdict. Thereupon 
defendant was granted an appeal to this court. 

The testimony submitted on the part of the State 
tends to show that the defendant was, at the time of the 
commission of the crime charged, a police oflScer in the 
City of St. Louis, and had been for nine or ten years 
prior to 1915. During the month of December, 1915, he 
l>ecame acquainted with one George Franke, a profes- 
sional house-breaker, and entered into an agreement 
with Franke, by which he (defendant) was to share 
in the proceeds of the loot or stolen plunder, in return 
for the protection from arrest he was to accord to 
Franke. The evidence shows that some time during the 
month of December, 1915, Franke met defendant at the 
home of a Mrs. Enyart, located at 3324 Vincent Avenue, 
and that a Mrs. Champagne and a Mrs. Edna Steveos 
were at the Enyart place at the time. The two first- 
named women had, for some years prior to the date 
above mentioned, been receiving from Franke stolen 
property, and the last-named woman conducted a house 
of ill repute at 730 Carpenter Street. The arrangement 
seems to have been for the defendant to suggest to 
Franke certain houses to burglarize, and to keep the 
latter advised as to the actions and efforts of the police 
in trying to locate the guilty parties. At the suggestion 
of defendant, Franke rented a room at 3740 Olive 
Street and lived there for a number of months witli a 
woman named Sybil White. After Franke would 
burglarize a home, according to plan, he would bring the 
loot either to 3740 Olive Street or to the home of Mrs. 
Enyart, and at one or the other of these places, with 
defendant Cummins and usually Mrs. Enyart and Mrs. 
Champagne present, the plunder would be divided ; that 
Cumrains had first pick, and would select out such 
articles as he desired, some of which he would turn 
over to either Mrs. Enyart or Mrs. Champagne, both 
of whom were his particular friends. Quite a number of 



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Vol. 279 APRIL TERM, 1919. 197 



state T. GummiiiB. 



homes were burglarized, and the stolen property, is is 
claimed, was divided between this defendant and the 
other parties above mentioned, for a period extending 
from December, 1915, until about the 12th of July, 1916, 
at which time Pranke and the White woman were ar- 
rested by officers Hunt and Flavis at Grand and Olive. 
When they were arrested, the testimony discloses, each 
of them told the officers to tell **Ray*^ or get word to 
*^Ray'^ and, upon inquiry, the officers ascertained that 
they meant ^'Ray Cummins J' According to the testi- 
mony of the above officers, they reported to defendant 
the above remarks made by Franke and the White 
woman, and suggested to defendant that he ascertain 
their street address. Both officers said that, at de- 
fendant's suggestion, they remained some distance away 
while he entered into a private conversation with 
Franke, and reported to them that he was unsuccessful 
in obtaining the desired information. 

Both Franke and Sybil White testified that they had 
an arrangement with Cummins whereby, in the event 
of their arrest, they would get word immediately to 
the defendant, and he would see that they were taken 
care of. The testimony discloses that defendant visited 
both Franke and the White woman in the holdover, and 
also at the jail, and sent them packages containing 
clothing and other articles several times. He also 
promised to secure a lawyer, and to. see that Sybil 
White was released on bond. There is also evidence 
tending to show that defendant went to a room at 
3824 Penrose Street, which was occupied by Franke and 
Sybil White at the time of their arrest, and took from 
their room several valises full of stolen property, which 
remained there at the time they were confined in jail. 
George Franke pleaded guilty to the charge made 
against him, and was sentenced to the penitentiary. 
While confined there, he testified that defendant, in 
company with one Crites, visited him and promised to 
866 that he was released. 



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198 SUPREME COUET OF MISSOURI. 

State v. CummiiiB. 

A considerable number of articles alleged in the indict- 
ment to have been stolen from the Bennett home, as well 
as a number of articles stolen from the homes of other 
people in St. Louis, were identified at the trial, as 
articles whidi Franke had turned over to the defendant, 
and by the latter turned over to Mrs. Enyart. A 
number of these articles had been recovered by the police 
from the Enyart home, where some of them were found 
hidden in a box under a trap door in the floor at that 
place, and some of them were recovered from pawn 
shops. 

Mrs. Jessie E. Bennett testified as to the robbery 
of the Bennett property on June 5, 1916, and after 
enumerating the various articles stolen she gave the 
value of same as $442.50. Mrs. Frank S. Wiemeyer, 
living at 5744 Berlin Avenue, testified that about June 3, 
1916, their residence was robbed of personal property 
estimated to be of the value of $800 or $900. It further 
appears that the home of Otto Dieckmann, at 5727 
Clemens Street, was robbed on December 14, 1915, and 
various articles of jewelry, etc., were stolen, of an 
aggregate value of $700. David Abrams testified that 
his apartment at 5515 McPherson Street was robbed on 
December 29, 1915, of mink furs and other property of 
the aggregate value of about $1200. L. W. Johnson, 
who lived at 5794, McPherson Street, testified that his 
apartment was robbed on December 1, 1916, of clothing 
and other property of the aggregate value of $250. 
Mrs. John E. Avery, who lived at 4122 McPherson 
Street, testified that her home was robbed on January 
5, 1916, and that she lost cut glass, table-linen, etc., of 
the aggregate value of $100. Mr. Jules D. Block, who 
lived at 5715 Gates Avenue, testified, that his apartment 
was robbed on December 5, 1915, of clothing and other 
property of the aggregate value of $225. 

The evidence shows, that George Franke robbed 
the residence above mentioned of the property taken 
therefrom. 



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Vol. 279 APRIL TERM, 1919. 199 



state T. Cummins. 



George Franke admitted that he had heen confined 
in the reformatory at Boonville, and Pontiac, Illinois, 
and had been in the penitentiary of this State. He 
testified that he had been disposing of stolen goods to 
Mrs. Enyart at 3327 Vincent Avenue for a number of 
years, and that while visiting there one evening in 
December, 1915, he met defendant Ray Cummins, and 
was told by Mrs. Enyart, Mrs. Champagne and Edna 
Stevens, who were at the Enyart home at the time of 
his visit, that the defendant was a **good copper'' and 
that he was stationed at police headquarters and would 
be able to help Franke out if he got into trouble. Franke 
further testified that defendant Cummins, at this meet- 
ing, talked with him about *'all the good jobs I had been 
doing and about the reports coming into the place there'' 
and assured him that he was *' pretty safe" and ** would 
tell me what neighborhood to go into when the police 
were not in the neighborhood," and he cautioned Franke 
to be careful and always *'be very careful in a job, to 
change clothes as quickly as possible, and stay in the 
house." At another time, Franke testified, defendant 
told him to work in the district of Forest Park, Grand 
and Russell Avenue, around Grand and LaFayette Ave- 
nue, Hawthorne and Longfellow Boulevard, and wanted 
to know why '*I did not go to Chief Young's residence," 
and later Chief Young's residence was robbed and **he 
kinda chided me about it because some one beat me to 
it." He testified that, at the suggestion of defendant, 
he and Sybil White moved to 3740 Olive Street to the 
home of Mrs. Agnes Gray, where they lived until shortly 
before the time of his arrest. He testified that defend- 
ant told him he was walking that beat, and if there 
were any reports made he could protect witness by 
not sending the report in right, or in not calling help if 
he was around, etc. 

Franke admitted, on the witness stand, that he 
had burglarized the Bennett apartment, located at 5705 
Clemens Avenue, and had secured entrance by removing 
tlie glass panel out of the front door, and, after enter- 



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200 SUPREME COUET OF MISSOURI. 

state Y. Cummins. 

ing, took from the apartment several^ shirt studs, a 
revolver, some beads, pearl necklace, gold watch, breast 
pin, umbrella, a diamond lavelier and other articles 
which he could not recall at the time; that, in accord- 
ance with the agreement with defendant, the latter was 
to get the pick out of the property stolen, and on the 
day of the burglarizing of the Bennett apartment he 
took the loot to the home of Mrs. Enyart, handed over to 
defendant Cummins the pearl shirt studs, the cuff but- 
tons, chain and locket on which initials were engraved, 
a little chain necklace and a ring. He further testified 
that there were present at the Enyart home, when he 
brought the stolen plunder from the Bennett apartment, 
besides Mrs. Enyart and himself, Mrs. Champagne, 
Sybil White and the defendant; that he showed Cum- 
mins an account of the robbery as printed in the paper, 
and at the time Cummins gave him a duplicate or skele- 
ton key, with the remark, **he thought I could use it." 
Franke then described the robberies of the other persons 
heretofore set out. 

Franke testified to various meetings and conversa- 
tions with defendant, in regard to the loot which had been 
stolen, and in both direct and cross-examination said he 
had made an agreement with defendant by which the 
latter was to designate the houses which were to be 
robbed, and that after robbing these places he divided 
the plunder with defendant, as heretofore stated. 

In the brief of defendant's counsel he describes 
Franke as follows: ''After having introduced evidence 
of the other burglaries referred to, the State placed 
upon the witness stand George Franke, then confined in 
the State Penitentiary upon a plea of guilty to burglar- 
ies committed in the latter part of 1915 and the first 
part of 1916. Franke was a professional burglar. He 
took an early course in crime, starting as usual with 
self -instruction, then entering the reform schools and 
from there graduating into several penitentiaries. He 
testified to having returned to St. Louis in December, 
1915. He immediately began burglarizing houses. He 



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Vol. 279 APRIL TERM, 1919. 201 



state y. CummiiiB. 



continued in this course until June, 1915, when after 
the Bennett robbery, referred to in the indictment, he 
was arrested, following which he pleaded guilty and was 
sent to the penitentiary. During his six months^ so- 
journ in St. Louis he testified that he burglarized be- 
tween 150 and 175 different houses. Among the houses 
so burglarized were the ones hereinbefore referred to.'* 

Mrs. Christie Scott, and her son, Charles Tilley, 
testified that they were introduced to Franke and Sybil 
White by defendant at the home of Mrs. Enyart. 

William Howe, who conducted a grocery store over 
which Franke and the White woman lived at 3724 Pen- 
rose Street, testified that he heard some one going up 
the back stairs a few nights after Franke was arrested, 
and that the person left the rooms with a bundle under 
his arm. Franke testified that defendant told him 
about having left the place above described with the 
valises and goods. 

Richard Kent, a chauffeur testified, that he had 
driven defendant to 3740 Olive Street three times at 
night, and that the defendant would go to the second 
floor, put his head out of the window and remark, **A11 
right Dick,'' which was a signal for the witness that he 
did not desire him to wait longer. 

Wm. Brinkmeyer and Thomas Combs, both of whom 
had been employed as waiters at Dick Campbell's cafe 
at Grand and Olive Streets, stated they had seen de- 
fendant at the Campbell place a number of times in 
company with George Franke and Sybil White. 

According to the evidence of Edward Jarvis, the 
janitor, at police headquarters, defendant had frequent- 
ly sent packages to George Franke and Sybil White 
while they were confined in the jail, and defendant had 
given him to understand that he was not to say any- 
thing about it to anybody. 

According to the evidence of C. L. Ferricks, while 
defendant was assigned to the record room at police 
headquarters he bad access to the records and reports 



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202 Sl/PREME COUET OF MISSOURI. 

state v. Cummins. 

made by various policemen of burglaries and other 
crimes. 

Sybil White testified that she commenced living 
with George Franke in December, 1915, and described 
the places heretofore mentioned where they resided. She 
8aid that she met defendant while at Mrs. Enyart's 
place, and that George Franke, Mrs. Enyart and de- 
fendant were together almost every night; that while 
living at the Olive Street address, when Franke would 
come in after burglarizing a home, they would divide up 
the stuff and give Ray and Mrs. Enyart their pick out 
of everything ; that she had heard defendant tell Franke 
where to go a number of times and remarked that ho 
would watch the police headquarters so as to notify 
him. She said that defendant had a key to the room 
where they were living and visited there almost every 
evening ; that the plunder would be divided either there 
or at Mrs. Enyart ^s. Frequently the entire crowd 
would visit cabarets after the spoils had been divided. 
She testified that defendant visited her at the jail and 
assured her that he had gotten considerable of the 
stolen goods that was in the room at 3724 Penrose 
Street out of the place after their arrest. 

Other testimony in behalf of the State was given 
along substantially the same lines. 

The defendant testified, in his own behalf, that he 
had been a member of the police force for more than 
ten years and had been dismissed for taking up a 
collection among the police force for the purpose of de- 
fraying the expense of securing the passage of a legis- 
lative measure to increase the salary of police oflScers 
by the 1917 General Assembly, which was in violation 
of a rule of the police department. He admitted that 
he knew George Franke, and had, at the latter ^s re- 
quest, referred him to Mrs. Gray's rooming house at 
3740 Olive Street.. He said that he had frequently seen 
Franke while performing his duties as trafiic officer at 
Grand and Olive, and had gone with Franke to pur- 
chase a cigar, both at the Metropolitan Store and 



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Vol. 279 APRIL TERM, 1919. 203 



State Y. CummiiiB. 



Campbeirs Cafe, and also met him twice at Mrs. En- 
yart's place. Defendant, however, denied that he had 
ever directed Franke to any house to be burglarized, 
and denied that he ever received any loot or stolen 
plunder from him, and denied that he had an agreement 
of any kind to share in the fruits of his ill-gotten gains. 
He explained his visits to the jail, after the arrest of 
Franke and Sybil White, by saying that it was in re- 
sponse to a note which he had received from Franke, 
and he had sent over to them by Jarvis some old 
clothes so that they might present a neat appearance 
when taken to court. He further admitted that he 
frequently went to Franke 's rooms at 3740 Olive Street 
but said that his purpose in going there was to visit 
Sybil White. 

Davis Israel, Patrick J. Gaffney, Lawrence P. Walsh 
and Hugh Murphy took the stand, and each testified 
that the reputation of defendant for truth and veracity 
and as a law-abiding citizen was good. 

Joseph J. Crites testified, in behalf of defendant, 
that he had been employed by the Police Relief Asso- 
ciation of St. Louis, to further the interest of the bill 
pending before the Legislature to increase the salaries 
of police officers, and stated that he met defendant 
Cummins in Jeflferson City in March, 1917, during the 
session of the Legislature, and that they went to the 
penitentiary together. He denied the conversation testi- 
fied to by George Franke in respect to what occurred at 
the penitentiary. 

The defendant, in his own behalf, denied any knowl- 
edge of Franke being a burglar until the latter ^s arrest; 
denied that he had ever received any of the stolen 
property which Franke said he had received ; denied the 
testimony of Franke and Sybil White, to the effect that 
defendant had advised, counseled or assisted Franke, 
in any way, in his unlawful practices. 

Defendant's evidence shows that he had been elected 
and re-elected several times as secretary of the Police 
Belief Association and had handled its money faithfully. 



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204 SUPEEME COUET OF MISSOUEI. 

state V. CummiiiB. 

The character witnesses aforesaid testified that defend- 
ant had the reputation of being a good officer. 

The case was submitted to the jury under the evi- 
dence and the instructions of the court. Defendant was 
found guilty, as heretofore mentioned and appealed the 
case to this court. 

I. The first error assigned by appellant reads: 
''The court erred in admitting evidence of other bur- 
glaries than the one specified in the indictment." Un- 
der this proposition defendant cites: State v. 
g^ Daubert, 42 Mo. 242; State v. Spray, 174 Mo. 
^569; State v. Boatright, 182 Mo. 33. 

In the Daubert case, supra, the evidence, in regard 
to other crimes than the one designated in the indict- 
ment, is not set out. Wagner, J., upon page 246, said: 
''Upon the trial of an indictment for larceny, evidence 
of the commission of a separate and distinct larceny 
from that charged is inadmissible. [State v. Goetz, 34 
Mo. 85.] But where the evidence offered directly tends 
to prove the particular crime charged, it is to be re- 
ceived, although it may also tend to prove the. com- 
mission of another separate and distinct offense. [State 
V. Harrold, 38 Mo. 4%.] To admit the evidence, there 
must be a connection or blending which renders it 
necessary that the whole matter should be disclosed, in 
order to show its bearing on the issue before the court. *' 

In passing upon this question, it is well to keep in 
mind that in the above case the State was offering to 
show that defendant had been guilty of other and in- 
dependent crimes, while in the case at bar, the owners 
of the property testified as to the burglary and larceny, 
followed up by the testimony of Franke, the alleged 
accomplice of defendant, that he had burglarized the 
residence of said parties, stolen therefrom the plunder 
mentioned in evidence, and divicjed the same with de- 
fendant under their previous arrangement. The State 
was attempting to show a conspiracy between Franke 
and defendant which had for its purpose the commission 
of said burglaries and larceny, as well as the division of 



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Vol. 279 APRIL TERM, 1919. 205 



state T. Cummins. 



the proceeds of same. Among other things the State 
endeavored to show that Franke had been for years a 
notorious burglar and thief ; that defendant on account 
of his intimate relation with Franke, and those asso- 
ciated with him, must have known of the business in 
which he was engaged and actively aided him in pur- 
suing same. On the other hand, the defendant's counsel 
examined Franke with reference to various burglaries 
and lai^cenies committed by him outside of St. Louis and 
outside of the State of Missouri. In other words, de- 
fendant undertook to show that Franke was such a 
notorious thief and burglar that no jury ought to give 
credence to his testimony. 

Defendant's objection to this class of evidence arose 
in this way. The State had introduced testimony of 
the burglarizing of the Bennett, the Wiemeyer and the 
Dieckmann homes, without any evidence of the de- 
fendant's connection with the burglaries and larcenies, 
and without objection from defendant. When Abrams 
was introduced as a witness to show the burglarizing of 
his home, the defendant's counsel for the first time ob- 
jected to the introduction of evidence relating to other 
burglaries than that described in the indictment, and 
moved to strike out that part of the testimony which 
did not relate to the Bennett indictment. This objection 
was overruled, and the State was permitted to prove 
that Franke committed each of said burglaries and lar- 
cenies, which were objected to, and sought to be stricken 
out. If the evidence thus produced by the State failed 
to connect defendant with these burglaries and larcenies, 
the admission of same did him no harm, for it furnished 
testimony in behalf of defendant, tending to blacken the 
reputation of Franke, and prove him to be unworthy of 
belief. If, on the other hand, after the State proved 
the commission of said burglaries and larcenies by 
Franke, there was evidence tending to show that defend- 
ant received a part of said plunder, it was for the jury 
to determine from all the facts and circumstances in 



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206 SUPREME COURT OF MISSOURI. 

state v. Cummins. 

evidence whether it was so received by virtue of a 
previous arrangement with defendant. 

The Spray and Boatright cases, cited by defend- 
ant, are in line with the Daubert case, supra. 

The facts heretofore set out, in our opinion, sustain 
the action of the trial court when considered in the light 
of our rulings upon this subject. [State v. Lewis, 273 
Mo. 1. c. 530, 201 S. W. 80; State v. Patterson, 271 
Mo. 1. c. 109; State v. Spaugh, 200 Mo. 1. c. 594; State 
v. Bailey, 190 Mo. 280; State v. Collins, 181 Mo. 1. c. 
260-1; State v. Myers, 82 Mo. 558; State v. Othick, 
184 S. W. 1. c. 108.] 

In State v. Spaugh, 200 Mo. 1. c. 594, Gantt, J., 
very clearly states the law of this State, in respect to 
above subject, as follows: '* There is no doubt that it is 
a general rule of criminal law in this State that evidence 
of separate and isolated crimes cannot be given against 
one on trial for a specific crime, but it is equally well 
established in this State that proof of another crime 
than the one for which the defendant is on trial is com- 
petent to prove the specific crime charged when it tends 
to establish the motive, intent or absence of mistake or 
accident or the identity of the person charged with the 
commission of the crime on trial. [State v. Collins, 181 
Mo. I.e. 260, 261.] '^ . 

In State v. Bailey, 190 Mo. 1. c. 284, we said : ''Hence, 
as already said, we think this evidence was competent 
to establish the identity of the defendant as the person 
who committed the crime; to show that it was inten- 
tional and willful, and to show that he was one of a 
band organized together to commit crimes of the kind 
charged, and to connect the offense with which he is 
charged in this case as a part of a common, unlawful 
and felonious scheme.'^ 

In State v. Othick, 184 S. W. 1. c. 108, we said: 
''Appellant contends that the court erred in admitting 
over his objection the evidence as to the larceny of the 
Brightwell and Holmes automobiles. We are unable to 
agree with this contention. From the evidence it ap- 



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Vol. 279. APRIL TERM, 1919. 207 



state v. Cummins. 



pears that the theft of these cars was but part of the 
* common scheme or plan embracing the commission of 
two or more crimes, so related to each other that proof 
of one tends to establish the other.' The evidence 
therefore was clearly admissible. [State v. Bailey, 190 
Mo. 1. c. 280, 88 S. W. 733; State v. Hyde, 234 Mo. 
X c. 226, 136 S. W. 316, Ann. Cas. 1912D, 191.]" 

The other cases heretofore cited are in accord 
with above quotations. We accordingly overrule this 
assignment of error. 

II. Appellant's second assignment of error, reads 
ias follows: **The court erred in admitting evidence of 
the burglary of the Abrams house which 
Prior to occurred prior to the time that Franke be- 
conspiracy. q^^j^^ acquainted with the defendant and prior 
to the time when it is claimed the conspiracy 
between Franke and the defendant was formed." 

This contention is without merit, for the following 
reasons: (a) The objection was made when Abrams was 
on the stand that it did not appear up to that time 
that defendant was connected with any of the burgla- 
.lies, except that of Bennett's. Neither Franke, nor Sybil 
"White, had then been examined as witnesses. The 
court could not anticipate at that time what the evi- 
dence would be in the way of connecting defendant with 
-the burglaries, and properly overruled the objection then 
made. Now, on cross-examination of Franke, he stated 
that he had robbed either the Dieckmann home or the 
Abrams home on the same day, but before he first met 
defendant After making this discovery, defendant 
did not then ask the court to exclude the testimony of 
'either Dieckmann or Abrams, which had been formerly 
admitted, but let it stand on his original objection, 
•^hich was properly overruled when made, (b) The 
evidence as to the Dieckmann and Abrams burglaries 
was competent, for the reasons stated in the preceding 
.proposition, and because Franke testified that he di- 
Tvided the loot which he got from both homes, under 
.the agreement which they made that night. 



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208 SUPEEME COUET OF MISSOUEI. 

state Y. CummiiiB. 

In view of the foregoing, defendant's contention, 
supra, wap properly overruled. 

in. The third assignment of error, reads as fol- 
lows: **The court erred in not requiring the State to 
elect at the close of the case whether it would stand 
^_^ upon the first count (burglary and larceny) 
* or the second count (receiving stolen property).'* 

If the jury believed from the evidence that there 
was a conspiracy between Franke and defendant to 
burglarize the Bennett home and to divide the loot 
stolen therefrom, then the verdict reached in this case 
was proper. If, on the other hand, the jury had found 
in favor of defendant as to the conspiracy, but had 
been satisfied from the evidence that he had accepted 
from Franke the goods stolen from Bennett, knowing 
them to have been stolen, he might have been acquitted 
of the burglary and larceny, and convicted of receiving 
stolen property. The evidence was comprehensive 
enough to cover both issues and, hence, the court com- 
mitted no error in refueing to sustain defendant's 
motion to require the State to elect, whether it would 
stand upon the first or second count of the indictment. 
It correctly declared the law, in respect to this matter, 
in its instruction numbered seven, which is amply sus- 
tained by the decisions of this court. [State v. Pace, 
269 Mo. 1. c. 686; State v. Christian, 253 Mo. 1. c. 393; 
State V. Carragin, 210 .Mo. 1. c. 366; State v. Miller, 
67 Mo. 604; State v. Green, 66 Mo. 1. c. 644; State 
V. Sutton, 64 Mo. 1. c 108; State v. Daubert, 42 Mo. 
242.] 

The txial court was within the law in overruling 
defendant's motion to elect, etc., and properly informed 
the jurors as to their duty in respect to this subject. 

IV. Defendant's fourth assignment of error, reads 

as follows: **The court erred in instructing the jury that 

•• - -^ it might find defendant guilty upon the 

Upon Tastimony ®, xjxx- ^ ^*^ ^ 

of AccompUcos uncorroborated testimony of an accom- 

^^^^ plice (in this case George Franke and 

Sybil Brown)." Appellant cites in sup- 



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Vol. 279 APRIL TERM, 1919. 209 



state Y. Cummins. 



port of above contention, State v. Wilkins, 221 Mo, 444. 

We are not advised in the above assignment of 
error, which instruction or instructions the defendant 
is complaining of, but herewith set out the two given by 
the court, numbered nine and ten, which read as follows : 

**9. The court instructs the jury that one accomplice 
cannot, as a witness, corroborate the testimony of 
another witness who is an accomplice. 

**10. The court instructs the jury that they are at 
liberty to convict the defendant on the uncorroborated 
testimony of an accomplice alone if they believe the 
statements as given by said accomplice in his testimony 
are true in fact and sufficient in proof to establish the 
guilt of the defendant ; but the jury are instructed that 
the testimony of an accomplice in crime, when not cor- 
roborated by some person or persons not implicated in 
the crime, as to matter material to the issues, that is, 
matters connecting the defendant with the commission 
of the crime charged against him and identifying him 
as the perpetrator thereof, ought to be received with 
great caution by the jury, and they ought to be fully 
satisfied of its truth before they should convict the 
defendant on such testimony." 

There is nothing in the Wilkins case which is an- 
tagonistic to either of the above instructions. That 
numbered ten has been in terms approved by this court 
in State v. Bobbitt, 215 Mo. 1. c. 42, where it is fully con- 
sidered and the leading authorities in this State cited in 
support of the conclusion there reached. To same effect 
are: State v. Harkins, 100 Mo. 1. c. 672; Stat^ v. 
Jackson,' 106 Mo. 179; State v. Woolard, 111 Mo. 248; 
State V. Crab, 121 Mo. 554; State v. Dawson, 124 Mo. 
422; State v. Donnelly, 130 Mo. 642; State v. Kosky, 
191 Mo. 1. c 9. The foregoing authorities clearly sup- 
port the action of the court in giving said instructions. 

V. Appellant's fifth assignment of error, reads as 
follows: ** Instruction No. 8-A given on behalf of the 

14—279 Mo. 



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210 SUPREME COUET OF MISSOURI. 

state v. Cummins. 

State was erroneous, in that it assumed that 

^f*?^^^"^ other burglaries had been committed and 

that this defendant had committed them, and 

the court erred in giving it.'' The above instruction 

reads as follows: 

''8-A. The court further instructs the jury that 
evidence of other burglaries and larcenies were admitted 
by the court solely for ' the purpose of determining 
whether a conspiracy, agreement and common design ex- 
isted between the defendant and one George Franke to 
burglarize various dwellings in the City of St. Louis 
and steal goods, wares and merchandise therefrom ; and 
you are to consider this evidence for no other purpose, 
for you cannot convict the defendant of any other 
charge than the one for which he is now on trial.'' 

I'^ef endant 's criticism of said instruction is not well 
founded. It does npt assume **that other burglaries 
had been committed and that this defendant had com- 
mitted them." It simply told the jury *'that evidence 
of other burglaries and larcenies were admitted by 
the court solely for the purpose of determining whether 
a conspiracy" existed between defendant and Franke. 
There is nothing in the instruction which could be con- 
strued as an intimation of the court's views of the 
evidence adduced. On the contrary, the jury were left 
to consider this question without any expression of 
opinion from the court. 

The instruction properly declared the law, and Is 
sustained by the authorities heretofore cited under 
Proposition I. 

VI. Defendant claims that the evidence was In- 
.suflScient to sustain a conviction. In view of the full 
statement of facts heretofore made, we do not deem 
it necessary to again go over this subject as it was the 

province of the jury to pass upon the facts, 
Sufficiency under proper instructions of the court. The 
of Evidence, latter tried the case, in our opinion, with 

marked ability and fairness. The instruc- 
tions covered every possible theory of the case in a 



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Vol. 279 AFKIL TEKM, 1919. 211 



Bennett y. Nevada. 



satisfactory manner, and we do not find that defendant 
has any just gromnds of complaint as to the merits of 
the controversy. We are of the opinion that on the 
facts presented in the record, the verdict as returned 
was supported by the testimony and is within the pur- 
view of the law. 

The judgment below is accordingly affirmed. White 
and Mozley, CC, concur. 

PER CURIAM:— The foregoing opinion of Railey, 
C, is adopted as the opinion of the court. All of the 
judges concur; Paris, J., in result. . 



MATTIE BELLE BENNETT v. CITY OF NEVADA, 

Appellant. 

Division Two, July 6, 1919. 

1. EJECTMENT: Ouster: Improvement of Street: Verbal Direction: 
Trespass. In ejectment against a city for a strip of land, wherein 
the answer is a general denial, the burden Is upon plaintiff to 
prove that the city was in the wrongful possession of the land at 
the time the action was brought; and the mere act of the street 
commissioner In going upon said strip and grading it for street 
purposes, in obedience to a verbal Instruction of the city council, 
is not the act of the city, and is not sufficient to establish wrong- 
ful possession by the city or to maintain ejectment against It, 
but amounts to no more than a trespass by him. 



: Street Improvement: Ordinance Necessary. In order to 

establish, open, extend or alter a street the mayor and city coun- 
cil must by ordinance provide that such improvement shall be 
made; a mere resolution or verbal motion by the council, instruct- 
ing the street commissioner to improve a named strip of land, 
though unanimously adopted and made a matter of record, is void 
and does not bind the city, and if in obedience to It the street 
commissioner enters upon the land and grades it for street pur- 
poses, his act amounts to no more than a trespass, for which he 
and possibly those acting with him are liable in damages for the 
injury done the owner. 



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212 SUPEEME COXJET OF MISSOUEL 

Bennett y. Nevada. 

Appeal from Vernon Circuit Court.— Hon. B. G. 

Thurman, Judge. 

Ebversbd- 

A. G. King and M. T. January for appellant. 

(1) Ejectment must be brought against a party 
in possession, and plaintiff must allege in his petition 
that defendant is in possession, and must prove it 
when defendant denies possession. Clarkson v. Stanch- 
field, 57 Mo. 573; Shaw v. Tracey, 95 Mo. 531. (2) A city 
can open or establish streets only by ordinance. E. S. 
1909, sees. 9261, 9262. (3) When the statute prescribes 
that the powers of a city may be exercised by the pas- 
sage of an ordinance, no other method is allowable. Eum- 
sey Mfg. Co. v. Schell City, 21 Mo. App. 175. (4) A 
municipality can only be held responsible for the act 
of its oflScers when the act is authorized by ordinance, 
in cases where the city, as a corporation, has power 
to authorize action only in that way. Stewart v. City 
of Clinton, 79 Mo. 603; Werth v. City of Springfield, 
78 Mo. 107; Eeed v. Peck, 163 Mo. 333. 

Chas. E. Gilbert for respondent. 

(1) The owner of land wrongfully taken by a 
city and converted into and used as a public street, 
may maintain ejectment against the city for its re- 
covery. Armstrong v. City of St. Louis, 60 Mo. 309, 
Anderson v. City of St. Louis, 47 Mo. 484; Walther v. 
Warner, 25 Mo. 277 ; Hammerslough v. City of Kansas, 
57 Mo. 221; Warner v. Eailroad Co., 57 Mo! 275; Evans 
V. Eailroad Co., 64 Mo. 453; Bradley v. Mo. Pac. Ey. 
Co., 91 Mo. 500; McCarty v. Clark County, 101 Mo. 
182. 

MOZLEY, C. — This action is ejectment, with oust- 
er laid on the day of July, 1915, and is brought 

against the City of Nevada alone as defendant. 



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Vol. 279 APRIL TERM, 1919. 213 



Bennett y. Nevada. 



The real estate involved is described as follows: 
*' Commence at the southwest comer of the east half 
of Lot two of the northwest quarter of Section Four, 
in Township Thirty-five, Range Thirty-one, in the City 
of Nevada, County of Vernon and State of Missouri, 
from thence run north twenty rods, thence east twenty 
rods, and from the point thus found as a place of 
beginning, run north ninety feet, thence east one hun- 
dred and sixty feet, thence south ninety feet, thence 
west one hundred and sixty feet to place of beginning.** 
It will thus be seen that the lot is one hundred and 
sixty feet east-and-west and ninety feet north-and- 
south. The particular part of the lot involved here is 
twelve or fifteen feet oflf of the south end thereof, 
which lies between Main and Ash Streets. Plaintiff 
claims that the defendant city, on the date above set 
forth, ousted her from the possession thereof, and took 
the possession itself, and that the street commissioner, 
acting for the city, as it is alleged, did great damage 
thereon by plowing and grading the soil. The answer 
of defendant was a general denial. The case was tried 
before a jury in the Circuit Court of Vernon County, 
at the February term, 1917, which resulted in a verdict 
for plaintiff for possession of the land in controversy 
and fifty dollars damages, and monthly rents and profits 
fixed at $1.50 per month, upon which verdict judgment 
was duly entered. Motion for new trial being overruled 
at the same term of the court, defendant duly appealed 
the case to this court. 

About June 15, 1915, at a meeting of the city council 
of defendant, it was verbally moved, seconded and 
carried '*that the street commissioner, under the super- 
vision of the city engineer, be instructed to put Floral 
Avenue, between Main and Ash streets (the strip in 
controversy) in proper condition.'* Counsel for both 
sides agree that no ordinance was passed authorizing 
the work to be done. Counsel for plaintij9f proved by the 
the city clerk that the City of Nevada had never passed 
an ordinance with reference to this street, this with the 



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214 SUPREME COURT OF MISSOURI. 

Bennett y. Nevada. 

view of relying upon the verbal motion or resolution 
above sel forth, upon which predicate he seeks to bind 
the corporation. Mr. January, for the city, made the 
following objection in the nature of consenting to the 
correctness of the proof offered by plaintiflF that no 
ordinance had ever been passed : 

**Well, I will get my objection in. The defendant 
objects to the introduction of the minute book of the 
council in evidence, for the reason that it already ap- 
pears in evidence that the city of Nevada never passed 
any ordinance opening or ordering opened any street 
over the ground in controversy.*' 

As above stated, the answer of defendant was a 
general denial, which placed the burden on the plaintiff 
to prove that defendant (the corporation) was in the 
wrongful possession of the strip of land in controversy 
at the date of the institution of this suit. 

Plaintiff contends, as we understand the position 
of her counsel, that the act of the street commissioner 
in grading the strip of land involved was the act of 
defendant (the corporation), and that on account there- 
of ejectment can be maintained against it. We are un- 
able to agree with this contention. We think, and so 
hold, that the act of the street commissioner in grading 
said strip of land was done without authority and was, 
therefore, not binding upon defendant, because, as the 
record discloses, no ordinance was passed by the leg- 
islative department of the city authorizing any one to 
go upon plaintiff's lot and do grading or do any other 
act calculated to damage the property. 

It has been held by this court, in harmony with 
the express provisions of the statute, that in order to 
establish, open, extend or alter any street, avenue ,etc., 
the mayor and board of aldermen shall provide by 
ordinance that such improvement shall be made. In 
other words, the adoption of the ordinance is the first 
step toward making the improvement and unless that 
step is taken in the legal way, the proposed improve- 
ment cannot be legally made. A mere resolution or 



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Vol. 279 APRIL TERM, 1919. 215 



Bond v. Williams. 



verbal motion by the city council to make such improve- 
ment is absolutely void, and could not bind the city, and 
the act of the street commissioner in going upon the 
land in question and grading it without the consent of 
the owner amounts to no more than a trespass on his 
part, for which he and possibly those assisting him 
rendered themselves liable in damages for the injury 
done the plaintiff. [R. S. 1909, sees. 9161-9162; Reed v. 
Peck, Guitar and Watson, 163 Mo. 333, 1. c. 338; Wheel- 
er V. aty of Poplar Bluff, 149 Mo. 36, 1. c. 45-46; City 
to use V. Eddy, 123 Mo. 546, 1. c. 558-559.] 

We think it is clear that, under this record, eject- 
ment cannot be maintained against the defendant city. 
Having reached this conclusion, it will not be necessary 
to notice other points made by appellant. The demurrer 
requested by appellant at the close of the case ought to 
have been sustained. Let the judgment be reversed. 
White and Railey, CC, concur. 

PER CURIAM : — The foregoing opinion of Mozlet, 
C, is adopted as the opinion of the court. All of the 
judges concur. 



STERLING P. BOND, Appellant, v. LUTHER H. 
WILLIAMS et al. 

Diylslon Two, July 6, 1919. 

1. ASSAULT AND BATTEBT: OlrcnmstancaB. In an action for dam- 
ages caused bj assault and battery it is always permissible to 
show the circumstances under which the alleged assault was com- 
mitted. 



: Provocation: PonitiTe Damages: Mitigation: Malice. In 

an action for damages for assault and battery, wherein punitive 
damages are asked, whether malice were present is an issue, and 
defendant may show the circumstances of provocation in mitiga- 
tion of such damages, though such evidence is inadmissible in 
mitigation of actual damagea. 



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216 SUPEEME COURT OF MISSOXJRL 

Bond V. Williams. 

3. : : AbusiTe Language: Recent Oocnzrence. In order 

that evidence of provocation, such as abusive language, may be in- 
troduced in mitigation of punitive damages, the provocation must 
have occurred at the time of the assault, or so recently as to war- 
rant an inference that the defendant was still laboring under the 
excitement caused by it. But no definite limits for a "cooling 
time" can be set. So that where plaintiff, in argument to a jury, 
violently abused two witnesses, characterizing them as liars and 
perjurers, and an hour and a half afterwards or less, as he was 
going from the court house to his hotel, they assaulted him, evi- 
dence of the violent language used by him was admissible, in miti- 
gation of punitive damages, in his action against them for dam- 
ages for assault and battery. 

4. : Malice: Definition. An instruction declaring "malice in its 

legal sense does not mean mere spite, ill-will or hatred, as it is 
ordinarily understood, but does mean that state of disposition 
which shows a heart regardless of social duty and fatally bent on 
mischief is appropriate in an action for assault and battery, 
and does not materially differ in its meaning from one defining 
malice as "a wrongful act done intentionally without legal justi- 
fication or excuse;" and if appellant asked an instruction defin- 
ing malice in the latter words and respondent the former instruc- 
tion, and both were given, appellant had the benefit of both defi- 
nitions, and hence cannot complain that the court did not use 
<mly his to define the term. 

6. : Verdict for Defendant: Nominal Damages. Where the 

evidence is that the injury inflicted upon plaintiff was slight, and 
he presented no request for nominal damages, though in law en- 
titled to nominal damages, a verdict for defendants, approved by 
the trial court, and there being no assignment in the motion for 
a new trial that he should have been allowed at least nominal 
damages, will not be disturbed on appeal on the theory that the 
provocation could not mitigate the actual damages unless it 
amounted to justification, and no actual damages were allowed. 

6. VEBDIOT: Against Evidence: Motion for New Trial: Insnillclent 
Assignment. An assignment in the motion for a new trial that the 
verdict is "against the evidence" and "against the law," however 
often repeated therein, is insufficient to permit a review by the 
appellate court of the evidence to show that the verdict was ex- 
cessive, or inadequate, or unsupported in any respect by evi- 
dence, or erroneous in any specific particular, and in his action 
for assault and battery does not assign as a ground therefor that 
plaintiff was at least entitled to nominal damages. 

Appeal from St. Louis City Circuit Court. — Hon. 
Thomas L. Anderson, Judge. 



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Vol. 279 APRIL TEKM, 1919. 217 



B<md Y. Williams. 



Affirmed. 

Lee Meriwether and 8. P. Bond for appellant. 

(1) The court erred in striking out the words *'aid, 
abet'^ in plaintiff's amended petition. The rule is well 
settled that one who is present, aiding and abetting 
another who commits an assault is as much a principal 
as he who strikes the blow or fires the shot. Murphy v. 
Wilson, 44 Mo. 313; Gray v. McDonald, 104 Mo. 303; 
State y. Orrick, 106 Mo. Ill; Miles v. Lucas, 110 Mo. 
219; Brouster v. Fox, 117 Mo. App. 711; Schraper v. 
Ostmann, 172 Mo. App. 610. (2) The court erred in al- 
lowing witness Marbury to testify to the language used 
by plaintiff in his argument to the jury. Cox et al v. 
Whitney, 9 Mo. 531; Collins v. Todd, 17 Mo. 537; Avery 
V. Bay, 1 Mass. 11 ; Hoagland v. Forest Park Highlands 
Amus. Co., 170 Mo. 343; Lee v. Wooley, 19 Johns. (N. 
Y.) 318; State v. Atchley, 186 Mo. 174, 179; Maynard 
V. Beardsley, 7 Wend. (N. Y.) 560, 564; Rochester v. 
Anderson, 1 Bibb. (Ky.) 428; Keiser v. Smith, 46 Am. 
Rep. 342, 364, 71 Ala. 481 ; Millis v. Forrest, 2 Duer, 
310; Ireland v. Billiott, 5 Iowa, 478; Thrall v. Knapp, 
17 Iowa, 468; Le Laurin v. Murray, 75 Ark. 232; Dupee 
V. Lentine, 147 Mass. 580; Murphy v. McGrath, 79 111. 
594, 596; Linder v. Hine, 84 Mich. 517; J^lsworth v. 
Thompson, 13 Wend. (N. Y.) 658, 663; Roach v. Cald- 
beck, 64 Vt. 593. (3) The court erred in allowing the 
evidence of the witnesses of what the appellant said an 
hour and a half or more before the assault concerning 
Marbury, Luther Williams and King Williams, or either 
of them, in his argument before the jury in the case of 
the State of Missouri against John McBrien and to 
draw their conclusions as to the effect upon the audi- 
ence, etc., in mitigation of damages or in extenuating the 
offense. (4) The remarks of the appellant in the case 
of the State v. McBrien were made as an attorney in 
behalf of his client and were therefore privileged. 3 
Am. & Eng. Ency Law (2 Ed.), 294, 295. (5) No in- 



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218 SUPREME COURT OF MISSOURI. 

Bond V. Williams. 

struction as to malice on behalf of defendant or defend- 
ants should be given under the law and the evidence in 
this case. The instruction as given is erroneous in itself. 
State V. Wray, 172 Mo. 639; State v. Scoggs, 159 Mo. 
581. (6) The court erred in not granting plaintiff a 
new trial on the ground that the jury failed to award 
him actual damages. Le Lauren v. Murray, 75 Ark. 232, 
238; Coxe v. Whitney, 9 Mo. 531; Collins v. Todd, 17 
Mo. 537; Goldsmith v. Jay, 61 Vt. 488; Lovelace v. 
Miller, 43 So. (Ala.) 734. 

Fauntleroy, Cullen £ Hay and B. H. Bayer for re- 
spondents. 

(1) The plaintiff having elected to proceed against 
defendants upon the charge of conspiracy and assault- 
as ihe result thereof must recover upon that theory or 
not at all — and hence must recover against all defend- 
ants or none. Aronsen v. Ricker, 185 Mo. App. 528, 533 ; 
Rice V. McAdams, 62 S. E. 774; Hoblicbtel v. Yawbert, 
39 Mo. 877; Laverty v. Vanarzdale, 65 Pa. St. 507; 
Hines v. Whitehead, 99 N. W. (la.) 1064; Shafer v. 
Ostman, 148 Mo. App. 648. (2) The question of whether 
or not plaintiff had sustained any actual damage was 
also, by plaintiff's own instructions, left to the jury, 
and, having found against plaintiff on each hypothesis, 
plaintij9f cannot now be heard to complain. Berkson v. 
K. C. Cable Ry. Co., 144 Mo. 220; Ellis v. Harrison, 104 
Mo. 250. (3) Appellant cannot complain of the court in 
not instructing the jury differently because he caused 
such failure by failing to ask other or different instruc- 
tions. Anchor Milling Co. v. Walsh, 24 Mo. App. 101. (4) 
Appellant asked and the court gave instructions virtually 
limiting his recovery to a verdict against all the defend- 
ants and warranted the jury in believing that unless he 
was so entitled to recover, he was not entitled to re- 
cover at all. Having thus limited himself and invited 
error, if error it be, appellant is in no position now to 
complain. Schafer v. Ostmann, 148 Mo. App. 648. (5) 



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VoL 279 APRIL TERM, 1919. 219 



Bond v. Williams. 



While it is the duty of the court to instruct the jury 
in writing on all questions of law arising in the trial 
of a civil case, yet it is not the court's duty to so 
instruct unless instructionis are asked: R. S. 1909, sec. 
1987; Coleman v. Drane, 116 Mo. 387; Brown v. Print- 
ing Co., 213 Mo. 611; Nolan v. Johns, 126 Mo. 159; 
Marion v. Railroad, 127 Mo. App. 129; Morgan v. 
MulhaU, 214 Mo. 461, 464; Powell v. Railroad, 255 Mo. 
456; Sweet v. Bunn, 195 Mo. App. 503; Willis v. Miller, 
189 Mo. App. 325. 

WHITE, C— Plaintiff brought this suit in the 
Circuit Court of the City of St. Louis, claiming damages 
for assault and battery. The petition alleged that on the 
26th day of March, 1914, in the City of Farmington, 
the defendants unlawfully assaulted, beat and bruised 
the plaintiff, injuring him in a manner described. It 
was further alleged that the assault and battery were in 
pursuance of a conspiracy. Judgment was prayed for 
actual damages in the sum of five thousand dollars and 
punitive damages in the sum of ten thousand dollars. 
The defendants filed a general denial. On trial of the 
case there was a verdict and judgment for the defend- 
ants from which the plaintiff appealed. The circum- 
stances out of which the alleged cause of action arose 
are as follows: 

On March 26, 1914, the plaintiff, who is an attorney, 
was engaged at Farmington representing the defendant 
in the case of the State v. John O'Brien. Two of these 
defendants, Marbury and Luther Williams, were wit- 
nesses for the State in that trial. Defendant George K. 
Williams was the brother of Luther. In his argument 
to the jury on behalf of his client which took place in the 
evening, the plaintiff violently abused Williams and 
Marbury in the presence of a number of people, char- 
acterizing them as liars and perjurers. All three of the 
defendants were in the courthouse at the time, 
sitting in different parts of the house. After 
the argument was over and the case submitted 



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220 SUPREME COURT OF MISSOURI. 

Bond V. Williams. 

to the jury, the plaintiff and his associate counsel 
walked out of tJie courthouse and went across the street 
to the hotel. As they approached the hotel the defendant 
Marbury accosted the plaintiff and demanded that he 
apologise for what he had said in the course of his 
speech. It appears that Marbury attempted to strike 
Bond, but was held by a friend from behind, so that his 
purpose in that respect was frustrated. About that time 
defendant Luther Williams appeared and struck the 
plaintiff, knocking him down. Defendants offered some 
testimony to the effect tbat when Marbury accosted the 
plaintiff he made a motion as if to draw a weapon, and 
then Luther Williams struck. There is also some evi- 
dence that Mr. Bass, Mr. Bond's associate, made a like 
demonstration before Williams struck. 

Each of the defendants testified that he was arous- 
ed to extreme anger by the language of the plaintiff, 
but that there was no concert of action, and no conversa- 
tion between them after the plaintiff made his speedi, 
until the encounter took place. The case was submitted 
to the jury on instructions offered by the plaintiff to 
the effect tiiat if they should find that the defendants, or 
either of them, acting alone or in concert with the 
same purpose, assaulted and beat the plaintiff without 
justification or excuse, they should find for the plaintiff. 

1. The principal error complained of was the ad- 
mission of evidence offered by the defendants showing 
the abusive language used by the plaintiff while address- 
ing the jury. This was testified to by each of the de- 
fendants and other witnesses. The defendants testified 
that they were very much outraged by the 
^^ language used, and that the excitement and 
indignation remained with them up to the time 
of the assault. 

In an action for damages caused by assault and 
battery it is always permissible to show the circum- 
stances under which the alleged assault was committed. 
Where punitive damages are asked, whether malice 



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Vol. 279 APRIL TERM, 1919. 221 



Bond Y. Williams. 



was present is an issue, and it is permissible to show 
the circumstances of provocation in mitigation of such 
damages, though such evidence is inadmissible in mitiga- 
tion of actual damages. [Joice v. Branson, 73 Mo. 28; 
Gray v. McDonald, 104 Mo. 1. c. 314.] In order, however, 
that evidence of provocation, such as abusive language, 
may be introduced for the purpose of mitigation the 
provocation must have occurred at the time of the as- 
sault, or so recently as to warrant an inference that the 
defendant was still laboring under the excitement caused 
by it. 

Appellant, while admitting the principle of law 
stated, argues that a sufficient time had elapsed after 
the provocation and before the assault to show that the 
attack was made in cool blood and with malice. The 
authorities are not altogether in agreement as to what 
would be sufficient time for the passions aroused by 
such a provocation to subside so that it would be pre- 
sumed the assault was deliberate ; that is, they do not 
set definite limits for a period designated as a '* cooling 
time." [State v. Wieners, 66 Mo. 1. c. 27.] In general 
it is said that the length of time necessary to remove 
the excuse of provocation depends upon the circum- 
stances of each case. As said by this court in the case 
of State V. Grugin, 147 Mo. 1. c. 51: **No precise time, 
therefore, in hours or minutes, can be laid down by the 
court as a rule of law, within which the passions must be 
held to have subsided and reason to have resumed its 
control, without setting at defiance the laws of man's 
nature, and ignoring the very principle on which prov- 
ocation and passion are allowed to be shown, at all, in 
mitigation of the offense.*' This passage is quoted by 
the court from the case of Maher v. People, 10 Mich. 
212. 

The appellant cites two Missouri cases in support 
of his position. The case of Coxe v. Whitney, 9 Mo. 
531, where plaintiff, editor of a newspaper, published 
an article reflecting on defendant's wife. Two days 
later, defendant went to the room of plaintiff and made 



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222 SUPEEME COURT OF MISSOURI. 

Bond V. Williams. 

the assault. The court held that evidence of the prov- 
ocation was inadmissible in mitigation of damages. 
The court said, p. 535: '*The evidence of provocation 
which is allowed to mitigate the damages must be so 
recent ^as to induce a fair presumption that the violence 
was done during the continuance of the feelings and the 
passions excited by it.' *' The court then makes this 
statement, 1. c. 536: *'But ira furor brevis est: What is 
done twenty-four or forty-eight hours after the prov- 
ocation received, is not the result of that passion, but 
is the deliberate infliction of vengeance for an injury, 
real or supposed. "^ 

The other case is Collins v. Todd, 17 Mo. 537. In 
that case the plaintiff used insulting language to the 
defendant's niece, and this was communicated to the 
defendant on Sunday. The assault occurred on the suc- 
ceeding Monday or Tuesday, and the court held evi- 
dence of the provocation was inadmissible, because 
suflScient time had elapsed to allow the presumption 
that the person had cooled. No other case is cited in 
this State by appellant holding that a shorter time be- 
tween the provocation and the assault was suflScient to 
exclude the evidence, nor do cases in general from 
other States generally support the appellant's position. 
In the case of Dupee v. Lentine, 147 Mass. 580, the 
provocation occurred sometime before the assault, but 
the defendant learned of it just ten minutes before the 
assault, and the evidence was held inadmissible, but 
that case is contrary to the weight of authority. The 
case of Thrall v. Knapp, 17 Iowa, 468 is cited. In that 
case the provocation occurred a week before the assault, 
but information in relation to it was conveyed to the 
defendant three hours before and the evidence of 
provocation was held improperly admitted. It appears 
in that case that the court gave attention to the time 
in which the provocation occurred rather than the time 
at which the information reached the defendant. It was 
said that **no circumstances or provocation on the week 
before or the day before the assault, or any other time 



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Vol. 279 APRIL TERM, 1919. 223 



Bond v. Williams. 



than the identical day of the assault, could be offered 
in evidence.^' 

In the case of Prentiss v. Shaw, 96 Am. Dec. 475, 
50 Maine, 427, the provocation was two hours before 
the assault, and the evidence was held admissible. 

The case of Ward v. White, 86 Va. 212, 19 Am. 
St. Rep. 883, is where an abusive article appeared in a 
newspaper concerning the defendant and the next day 
the defendant committed the assault for which he was 
sued. The newspaper article was held properly admit- 
ted. 

In Biggs V. State, 29 Ga. 723, the plaintiff offered 
an indignity to the defendant's wife one evening and on 
the following morning the assault occurred. Evidence of 
the affront was held admissible. 

In the case of Dolan v. Fagan, 63 Barbour (N. 
Y.) 73, the plaintiff insulted the defendant with oppro- 
brious language on a number of occasions before the 
assault took place. The trial court ruled that the de- 
fendant could show anything that took place on the day 
of the assault or the day before, but not what took 
place several days before. The case was reversed on 
the ground that the ruling excluding what took place 
several days before was erroneous. 

In Genung v. Baldwin, 79 N. Y. Supp. 569, it was 
held that where the defendant on the same day and 
prior to the assault read some article in defendant's 
newspaper severely criticizing him, it might be shown 
in evidence in an action for assault and battery. There 
is a similar ruling in Marriott v. Williams, 152 Cal. 705. 

In the case of Leachman v. Cohen, 91 S. W. (Tex.) 
809, a livery-stable keeper hired a horse to a young man 
and while the horse was- out word came to him that the 
young man was abusing the horse and driving reck- 
lessly. When the young man came in, it appears several 
hours later, the livery-stable keeper assaulted him, was 
sued for damages afterwards, and it was held that the 
abuse of the horse and the knowledge brought to the 
defendant was admissible in mitigation. In that case 



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224 SUPEEME COURT OF MISSOURI. 

Bond V. Williams. 

the rule was thus stated, p. 810: *' Immediate prov- 
ocation is such as happens at the time of the assault 
or so recently before it as to induce the presumption 
that the violence was committed under the immediate 
and continuing influence of a passion thus wrongfully 
excited.' ' 

The case of Cook v. Neely, 143 Mq. App. 632, is 
where a school-teacher violently whipped the son of 
the plaintiff at the afternoon recess ; that evening about 
nightfall the defendant met the plaintiff and assaulted 
him. The sujl was for damages caueed by that assault. 
The Kansas City Court of Appeals held that the evi- 
dence of the provocation by whipping the plaintij9f's 
son was properly admissible in mitigation of exemplary 
damages. In that case the provocation occurred several 
hours before the assault, and the boy who was whipped 
conveyed the information to his father as soon as he 
went home after the dismissal of school; two or three 
hours must have elapsed between the time the defend- 
ant was first excited by the information and the time 
the assault took place. 

The same question arises in criminal prosecutions 
for murder where the evidence of provocation is offered 
to reduce the grade of the offense to manslaughter. 
**The cooling time" is spoken of in such cases in the 
same manner as it is used in civil cases for assault 
and battery. To reduce a homicide to manslaughter 
in the fourth degree under the statute, Section 4467, the 
killing must have occurred **in the heat of passion.'' 
A leading case is State v. Grugin, 147 Mo. 39, quoted 
above. In that case the defendant was charged with 
murder. The man killed had committed an outrage up- 
on his daughter some days before. The father learned 
of the outrage at nine o 'clock in the morning, he hunted 
up the offender and killed him at three o'clock in the 
afternoon. The evidence of the provocation and the 
information was held admissible. It was held that char- 
acter of the provocation and its tendency to continue 
the excited statje of mind must always be considered 



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Vol. 279 APRIL TERM, 1919. 225 



Bond ▼. Williams. 



to determine whether the cooling time has been suflS- 
cient. In that case the provocation was extraordinary. 
It has been cited in later cases without criticism. [State 
V. Vest, 254 Mo. 1. c. 465.] 

While cases showing the provocation which would 
reduce homicide to manslaughter are cited, it is ap- 
parent that the provocation which would mitigate puni- 
tive damages in a civil action would not always be 
sufficient to reduce homicide to manslaughter; for in- 
stance, mere words are held not sufficient provocation 
to reduce homicide to manslaughter, but mere words, it 
is held, may produce a state of mind and arouse a pas- 
sion that would mitigate damages caused by consequent 
. assault. 

Appellant asserts that his violent language offered 
in evidence occurred an hour and a half before the 
assault. The evidence fails to show the exact time. De- 
fendants assert that the time was less. At any rate, 
after the offensive language was used the court con- 
tinued in session and another address to the jury fol- 
lowed that of plaintiff, before the adjournment. The 
assault took place within a very few minutes after 
court adjourned. Under all the authorities the evidence 
was admissible and it was for the jury to say whether 
the defendants under the circumstances were actuated, 
by malice, which would authorize punitive damages. The 
instructions directed the jury that they could consider 
such evidence only in connection with an award of puni- 
tive damages. 

II. Appellant complains of an instruction given on 
behalf of defendants defining malice as follows: ** Mal- 
ice in its legal sense does not mean mere spite, ill-will 
or hatred, as it is ordinarily understood, but does 
^^^ mean that state of disposition which shows a 
heart regardless of social duty and fatally 
bent on mischief.'' 

That is the definition usually given in homicide 
cases where the presence or absence of malice may 

15—279 Mo. 



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226 SUPREME COURT OF MISSOXJRI. 

Bond y. Williams. 

determine the grade of the crime, but the definition 
has been approved by this court in an action for dam- 
ages for assault. [Morgan v. Durfee, 69 Mo. 1. c. 480.] 
And it seems to be a generally approved definition. [18 
R. 0. L. p. 2, sec. 2.] The case of Morgan v. Durfee has 
been cited with approval in the case of Boyd v. Rail- 
road, 236 Mo. 1. c. 93. 

Appellant does not contend that the definition is 
erroneous so far as it goes, but complains that the 
usual definition found in the books should have been 
added, to- wit: malice means a wrongful act done in- 
tentionally without legal justification or excuse. 

The case of State v. May, 172 Mo. 639, includes 
both definitions in one, and upon that case the appellant 
bases his complaint. In reality, however, the two defi- 
nitions are not very different in meaning. At the in- 
stance of plaintiff the court gave an instruction con- 
taining the definition which the appellant complains was 
left out of the defendant's instruction; so that the 
plaintiff had the benefit of both, and has no cause for 
complaint. 

III. Finally the appellant argues that the verdict 
ought to be set aside and a new trial granted because 
he was allowed no actual damages. The argument is 

that the provocation could not mitigate the 
Nominal actual damages unless it amounted to justi- 

Damages. 'fioation. Instructions given on behalf of 

the plaintiff authorized the jui-y to find 
for the plaintiff against all defendants, provided 
there was a conspiracy or they acted together for 
a common purpose. There was little or tfo evidence 
on which to base that instruction, and the verdict of 
the jury is conclusive that there was no conspiracy. 
George K. Williams, defendant, didn't attempt to as- 
sault the plaintiff at all; Marbuary made as if to as- 
sault him, but was held by friends, so that he committed 
no assault. The only assault of which there was any 
evidence was made by Luther H. Williams. Since there 
was a finding of no conspiracy, and no concert of action 



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Vol. 279 APRIL TERM, 1919. 227 



Bond ▼. Williams. 



this objection of the appellant can only apply to the 
assault made by Luther Williams. Some of the evidence 
indicates that the injury inflicted upon plaintiff was 
of a very slight nature, so that the jury might have 
found his damage was only nominal. This court is slow 
to set aside a verdict, in a case of this character, on the 
ground of inadequacy. [Pritchard v. Hewitt, 91 Mo. 
547; Dowd V. Air Brake Co., 132 Mo. 579.] There was 
some evidence, though slight, that plaintiff and his com- 
panion made hostile demonstration before Luther Wil- 
liams struck. The jury might have found plaintiff was 
not without fault at that time. [McCarty v. St. Louis 
Transit Co., 192 Mo. L c. 403; Gorham v. St. L., I. M. & 
S. R. Co., 112 Mo. App. 1. c. 208.] 

The trial court overruled plaintiff's motion for a 
new trial, and therefore determined the verdict was 
not against the weight of evidence. 

It is possible that the plaintiff would have been 
entitled to nominal damages had the question been prop- 
erly presented. Some authorities hold that where the ac- 
tion sounds in damages only, the failure to prove actual 
damages is a failure to make out a case, and, though 
an actual violation of plaintiff's rights is proven, there 
can be no recovery. [8 R. C. L. sec. 5, p. 42€; Wood- 
house V. Powles, 8 L. R. A. (N. S.) 1. c. 787.] On the 
other hand, the general rule is that any violation of 
one's rights, whether actual damages is inflicted or 
not, whether the action sound in tort for personal in- 
juries, or otherwise, in the absence of actual damages, 
at least nominal damages may be recovered. [1 Suth. on 
Damages, sec. 9; Dailey v. Houston, 58 Mo. 361, 1. c. 
369; King v. St. Louis, 250 Mo. 501, 1. o, 513.] 

But the plaintiff did not assign as a ground for 
sustaining his motion for new trial that he should have 
been allowed at least nominal damages against Luther 
Williams. The objection to the verdict, repeated in 
different forms in his motion for a new trial, is that 
the verdict was ''against the evidence" and ** against 
the law." Such objections uniformly have been held in- 



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228 SUPREME COURT OF MISSOURI. 

State ez rel. Johnson v. Bank. 

sufficient to permit a review by this court of the evi- 
dence to show the verdict was excessive, or inadequate, 
or unsupported in any respect by evidence, or erroneous 
in any specific particular. [Polski v. St. Louis, 264 Mo. 
1. c. 462; Disinfecting & Mfg. Co. v. Bates Co., 273 Mo. 
1. c. 304; Cook v. Clary, 48 Mo. App. 1. c. 169; State v. 
Scott, 214 Mo. 1. c. 261; Raifeisen v. Young, 183 Mo. 
App. 1. c. 511; Brosnahan v. Best Brewing Co., 26 Mo. 
App. 1. c. 399.] 

All instructions asked by plaintiff were given ex- 
cept one relating to the exclusion of evidence. We are 
not prepared to say the trial court erred in overruling 
the plaintiff's motion for a new trial. 

The judgment is affirmed. Roy C, absent. 

PER CURIAM:— The foregoing opinion of White, 
C, is adopted as the opinion of the court. Williams, P. 
J., and Walker, J., concur, Paris, J., concurs in result. 



THE STATE ex rel. BERT JOHNSON, Collector, v. 
MERCHANTS & MINERS BANK et al.. Ap- 
pellants. 

THE STATE ex rel. BERT JOHNSON, Collector, v. 
CENTRAL NATIONAL BANK OF CARTHAGE 
et al.. Appellants. 

In Banc, July 7, 1919. 

1. TAXATION: Board of Equalization: Jndicial Acts: Oertioraxi The 
State Board of Ekiualization in fixing the value of property in any 
county acts judicially, and its valuations have the force and effect 
of judgments of courts. Of course, if in making its valuations it 
exceeds its powers or statutory jurisdiction, and such fact ap- 
pears upon its record, the courts can quash its judgment by cet' 
tiorari; but the courts cannot nullify its judgment in a collateral 
proceeding. 

2. : : : Collateral Attack. The action of the State 

Board of Equalization being judicial in character its judgment 
cannot be attacked in a collateral proceeding. To be overthrown 



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Vcl. 279 APRIL TERM, 1919. 229 



State ex rel. Johnson v. Bank. 



there must be a direct attack upon the judgment itself for the 
purpose of vacating, annulling and setting it aside. It cannot be 
annulled .by a showing, when suit is brought on a tax bill against 
a bank, that the board valued and assessed defendant's property 
at one half its true value and all other personal property in the 
county at forty per cent of its true value. Such a defense would 
be a collateral attack on the judgment, and is therefore unavail- 
able, and evidence to show such discrimination is incompetent. 

Appeal from Jasper Circuit Court. — Hon. R. A. Pear-- 

son, Judge. 

Judgment modified and affibmed. 

J. W. Halliburton, A. E. S^pencer and Howard Gray 
for appellants. 

(1) The evidence proves conclusively that during 
the years 1911 to 1915, inclusive, bank stocks were 
assessed in Jasper County at fifty per cent of their 
true value, while no other property in the county was 
assessed at more than forty per cent of its value; that 
banks, prior to the institution of these suits, paid all 
the taxes which should have been assessed against them 
had they not been assessed higher than other property 
according to value. Mercantile Trust Co. v. Schramm, 
190 S. W. 886; Iowa Cent. By. Co. v. Board of Review, 
157 N. W. 731; Ewert v. Taylor, 160 N. W. 797. (2) 
The evidence shows that it had been the practice, un- 
derstanding and settled policy, for many years, for 
the assessor and the County Board of Equalization in 
Jasper County to assess the personal property of the 
county on a basis of forty per cent of its true value, 
and real estate on a basis of thirty per cent; that the 
State Board of Equalization, with the certificate of the 
county clerk before it, showing that real estate and 
personal property had been assessed on this basis, ar- 
bitrarily raised the assessment on bank stock to fifty 
per cent. This is unjust and an illegal discrimination, 
and it is no answer to say that the stockholders of the 
banks have no right to complain because their property 



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230 SUPREME COUBT OP MISSOURI- 

state ex rel. Johnson v. Bank. 

was not assessed at its full value in money as re- 
quired by law. Bank v. Treasurer of Lucas Co., 25 Fed. 
749 ; Eminence Distillery Co. v. Henry Co. Board, 200 
S. W. 347; Porter v. Langley, 155 S. W. 1042; Lively 
V. Railroad Co., 120 S. W. 852; Chicago, B. & Q. R. 
R. Co. V. Atchison County, 54 Kan. 781; Iowa Cent. 
Railroad Co. v. Board of Review, 157 N. W. 731 ; First 
Natl. Bank v. Chapman, 173 U. S. 205; First Natl. 
Bank v. Christianson, 118 Pac. 778 ; First Natl. Bank 
v. McBride, 149 Pac. 353; State ex rel. v. Osbom, 83 
N. W. 357; Drew Co. Timber Co. v. Board, 187 S. 
W. 942; Barz v. Board of Equalization, 111 N. W. 
41; Nevada-California Power Co. v. Hamilton, 235 
Fed. 317. (3) The plaintiff claims that even though all 
the matters alleged in defendants' answer are true, 
inasmuch as thin is an action at law for the taxes no 
equitable defense can be successfully made, and that 
the defendants are absolutely without any remedy. We 
claim all of the authorities are to the contrary. First 
National Bank v. Treasurer of Lucas Co., 25 Fed. 749 ; 
Nevada-California Power Co. v. Hamilton, 235 Fed. 
317; Arosin v. London & N. W. Am. Mtg. Co., 83 
N. W. 339; Board of Comrs. Garfield Co. v. Field, 
162 Pac. 733; Porter v. Langley, 155 S. W. 1042; Ray- 
mond V. Chicago Union Trust Co., 207 U. S. 20; First 
Natl. Bank v. McBride, 149 Pac. 353; Chicago, B. & 
Q. R. Co. V. Atchison Co., 54 Kan. 781; First Natl. 
Bank v. Christianson, 118 Pac. 778. (4) We admit that 
the general rule is that where the laws of a State 
provide for a hearing before the State Board of Equali- 
zation and an appeal from its decision, the remedy 
is exclusive; but in this State there is no provision 
for the appearance before the State Board, for any 
hearing or an appeal from its decision in assessing 
bank stock, and the only remedy the taxpayer has is 
to enjoin the collection of the excess or, when sued for 
the taxes, to set up the facts as he would were he bring- 
ing a suit to enjoin. In this case the defendants are not 
in a position to bring suit to enjoin because until these 



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Vol. 279 APRIL TERM, 1919. 231 



state ex rel. Johnson y. Bank. 



suits were filed no effort was made or had been made 
to collect the excess, but there was a tacit under- 
standing that the same would not be collected. In any 
event, in this State the old common law procedure of 
requiring the defendants to bring a suit to enjoin the 
collection of a tax and ask to have the collector's suit 
at law postponed until the court had heard the equity- 
case, no longer prevails; but under our code all can 
be accomplished in the one suit by the equitable answer 
lo the plaintiff's cause of action. Martin v. Turn- 
baugh, 153 Mo. 172; Swope v. Weller, 119 Mo. 556; 
Dwyer v. Rohan, 99 Mo. App. 120. 

R. A. Mooneyhan and J. D. Harris for respondent. 

(1) The State Board of Equalization is a creature 
of the Constitution of the State, being created by Sec- 
tion 18 of Article 10 of the Constitution. By that 
section it is made the duty of the board to adjust and 
equalize the valuation of real and personal property, 
among the several counties. This court has ruled that 
the board has the inherent power to proceed to the 
performance of these duties without legislative author- 
ity. Railway v. State Board of Equalization, 64 Mo. 
294; State ex rel. v. Vaile, 122 Mo. 33. It is further 
provided in the foregoing section of the Constitution 
that the board shall perform such other duties as are 
or may be prescribed by law. The Legislature has by 
Section 11412 provided the plan of equalization to be 
pursued by the State Board of Equalization, in its per- 
formance of its duties. And as there must be an 
end to the matter of affixing values somewhere, it is a 
wise law that has made the finding of the State Board 
of Equalization final, so long as its proceedings are not 
\4tiated by fraud or illegality. Mercantile Trust Co. 
V. Schramm, 269 Mo. 489, Missouri ex rel. Hill v. 
Dockery, 191 U. S. 165, 48 L. Ed. 133. (2) The 
Supreme Court of the United States, that the State 
Board of Equalization has the power to classify the 



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232 SUPREME COURT OP MISSOURI. 

State ex rel. Johnson v. Bank. 

various kinds of property for the purpose of fixing 
valuations thereon. Mercantile Trust Co. v. Schramm, 
269 Mo. 489; Missouri ex rel. Hill v. Dockery, 191 
U. S. 165, 48 L. Ed. 133; Copper Queen Consolidated 
Mining Co. v. Arizona, 2D6 U. S. 474. (3) The State 
derived its authority to assess national bank stock 
from Sec. 5219, U. S. R. S. 1878. (4) The Act of 
Congress does not make the tax on personal (or real) 
property the measure of tax on bank stock, but the 
tax on moneyed capital in the hands of individual 
citizens. Money invested in railroads, mdning property 
and stocks, business corporations and savings banks do 
do not fall within the class of ** moneyed capital'* in 
the sense used in the Federal statute, and it has been 
held that these investments do not come into competi* 
tion with national bank stock and national banking, 
within the prohibition. First National Bank of Aber- 
deen V. Chehalis County, 166 U. S. 445; Hepburn v. 
Carlisle Burrough School Director, 90 U. S. (23 Wall.) 
480, 23 L. Ed. 112; First National Bank of Aberdeen 
V. ChehaUs County, 166 U. S. 452, 41 L. Ed. 1075. 
(5) Mere over- valuation is no defense. State ex rel. v. 
Western Union Tel. Co., 165 Mo. 502. (6) Merely 
because witnesses testify that the defendants' proper- 
ties have been assessed at a higher per cent of the true 
value thereof by the State Board of Equalization than 
other classes of property, is not sufficient to overcome 
the judgment and decision of the State Board of Equali- 
zation. And even though in the opinion of witnesses 
for the defendants their property was equalized at 
fifty per cent of its true value, while other classes of 
property were equalized at forty per cent of the true 
value thereof, in the opinion of such witnesses, still 
this evidence cannot avail the defendants here, since 
the solemn judgment of the State Board of Equaliza- 
tion can not be impeached by such evidence. State ex 
rel. V. Western Union Tel. Co., 165 Mo. 502; C, B. & 
Q. R. Co. V. Babcock, 204 U. S. 585; Coulter v. L. & 
N, R. Co., 196 U. S. 599; Williams v. Garfield Ex- 



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Vol. 279 APRIL TERM, 1919. 233 

state ex rel. Johnson y. Bank. 

change Bank, 134 Pac. (Okla.) 863; Southern Spg. R. 
& C. Co. V. Board, 139 Pac. (N. M.) 159; Ray v. Arra- 
strong, 131 S. W. 1039; People v. Pitcher, 156 Pac, 
812; Hacker v. Howe, 101 N. W. (Neb.) 255; State 
ex rel. v. Hann. & St. J. Ry. Co., 101 Mo. 127; Ward 
V. Board of Equalization of Gentry County, 135 Mo. 
309; Stanley v. Supervisors, 121 U. S. 535; Mercan- 
tile Trust Co. V. Schramm, 269 Mo. 489. (7) The State 
Board of Equalization in performing its duty, acts 
judicially, and its judgments are not open to' collateral 
attack. State ex rel. v. Western Union Tel. Co., 165 
Mo. 517; Western Union Tel. Co. v. State ex rel. 
GottUeb, 190 U. S. 426, 47 L. Ed. 1122; State ex rel. v. 
Vaile, 122 Mo. 47; State ex rel. v. Neosho Bank, 120 
Mo. 161; State ex rel. v. Baker, 170 Mo. 383; Hann. 
& St. J. Ry. Co. V. State Board of Equalization, 64 Mo, 
294. 

GRAVES, J. — These are two actions to recover de- 
linquent « taxes. They are consolidated and tried to- 
gether helow, and are so presented here. The first is 
a case against a state hank, and the second case is 
against a national bank. 

It is claimed that the State Board of Equalization 
raised the assessed value of bank stock in Jasper 
County from forty per cent of their value to fifty per 
cent of their value, whilst said State Board of Equali- 
zation left other personal property stand at an assessed 
valuation of forty per cent of the value. 

The tax bills in these cases were based upon the 
assessed valuation as certified to the county by the 
State Board of Equalization. The suits cover de- 
linquencies for the five years prior to their institution. 
During these years and for some time prior, the 
banks had been paying on a forty per cent assessed 
valuation, instead of the fifty per cent assessed valua- 
tion as fixed by the State Board. This is the claim of 
the defendants. As a fact they paid about three-fourths 
of their taxes each year and these suits are to collect 



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234 SUPEEME COURT OF MISSOUEI. 

state ex rel. Johnson y. fiank. 

the unpaid portions for the five years next before 
the institution of these actions. 

The tax bills were based upon the valuation fixed 
by the State Board of Equalization, and the relator is 
entitled to recover in this action, unless the judgment 
of the State Board of Equalization can be successfully 
attacked in this proceeding. Evidence was admitted 
over the objection of plaintiff, which was offered for 
the purpose of nullifying the judgnient of the Board 
of EquaKzation. But after hearing it all the trial 
court entered judgment for relator. In our view of the 
law further details are unnecessary. 

I. It is settled doctrine in this State that boards 
of equalization, including the county boards of equali- 
Judiciai zation, as well as the State Board of Eqnali- 
Act. zation, act judicially. 

As to the State Board of Equalization the statute. 
Section 11410, thus reads: ''The State Board of Equal- 
ization shall have power to send for persons^ and pa- 
pers, to administer oaths through its oflScers or agents, 
and to take all evidence it may deem necessary to 
ascertain the value of the property in the different 
counties in the State.'' 

So the very statute itself indicates the judicial 
character of its acts. This court has so ruled as to the 
State Board in State ex rel. v. Western Union Tele- 
graph Co., 165 Mo. 1. c. 517, whereat it is said: ''The 
defendant cannot avail itself of these cases, for the 
reasons, first, that it seeks to raise the question of 
discrimination by a defense to an action at law to 
collect the taxes, and thereby collaterally attacks the 
judgment of the board of equalization; second, that 
such questions can only be raised by a direct attack, in 
equity, and then only upon the condition precedent that 
it pays or tenders the amount justly due and only asks 
to have the collection of the excess restrained. This 
the defendant has not done in this case." 



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Vol. 279 APRIL TERM, 1919. 235 



state ez rel. Johnson y. Bank. 



The county boards of equalization perform judicial 
functions, as is clearly indicated by Article 3 of Chap- 
ter 117, Revised Statutes 1909. And this court has so 
held. Thus in Black v. McGonigle, 103 Mo. 1. c 198 
et seq., is said: ** According to the plain letter of the 
statute, the board has not only the power to hear com- 
plaints, but it has the power, of its own motion, to 
equalize the valuation for the purposes named in the 
law, namely, so that each tract of land shall be entered 
at its 'true value.* In performing these duties the 
board acts judicially; this has been often held, and 
the very nature of the duty to perform makes it a 
judicial one. [St. Louis Mutual Life Ins. Co. v. Charles, 
47 Mo. 465; Railroad v. Maguire, 49 Mo. 483; Coolev 
on Taxation (1 Ed.), 291.]** 

To like eflFect in the case of State ex rel. v. Bank, 
234 Mo. 1. c. 197, whereat we thus spoke: *'Iji making 
the order raising the valuation of the property for 
taxation in Christian County for the year 1905, the 
County Board of Equalization was acting in a judicial 
capacity, and, under the well-settled rule of law appli- 
cable to judgments, its action was not subject to col- 
lateral attack. [Black v. McGonigle, 103 Mo. 192; 
State ex rel. v. Vaile, 122 Mo. 33; State ex rel. v. 
Western Union Tel. Co., 166 Mo. 502 ; State ex rel. v. 
Lumber Co., 198 Mo. 430.]** 

So also in State ex rel. v. Lumber Co., 198 Mo. 
1. c. 439, we said: *'But the County Board of Equaliza- 
tion had jurisdiction over the lands taxed for levee 
purposes (Sec. 8449, R. S. 1899), and the authority to 
raise the assessments for benefits against all the lands 
(Sec. 9131, R. S. 1899), and in so doing it acted judicial- 
ly. [Black V. McGonigle, 103 Mo. 192; St. Louis 
Mutual Life Ins. Co. v. Charles, 47 Mo. 465; Railroad 
V. Maguire, 49 Mo. 483; Cooley on Taxation (1 Ed.), 
291; Ward v. Board of Equalization, 135 Mo. 309.] 
In raising the rate of taxation against the lands in the 
levee district it was sufficient for the board to desig-- 
nate a percentage of increase. [1 Cooley on Taxation 



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236 SUPREME COURT OF MISSOURI. 

state ex rel. Johnson y. Bank. 

(3 Ed.)t 786.] It is not claimed that the Board of 
Equalization failed in any of its duties. Its proceed- 
ings were regular, proper notice given, and the result 
legally published and certified as required by the 
statute. The act of the board in raising the assessment 
being judicial in its character is not subject to attack in 
this collateral way.^* 

Other cases along the same line are State ex rel. 
V. Vaile, 122 Mo. 1. c. 47; Railroad v. McGuire, 49 Mo. 
1. c. 483; Black v. McGonigle, 103 Mo. 1. c. 198; State 
ex rel. v. Board of Equalization, 256 Mo. 1. c. 461. In 
the latter case, supra, Bond, J., said: ''The functions 
of the board of equalization in judging the assessments 
of property are judicial, and if in the exercise of that 
power it shall act without rightful jurisdiction, and 
this should appear from the fact of its record, then 
certiorari is the proper remedy to quash its record and 
proceedings." 

So that from the beginning to this time we have 
held the proceedings of these boards (both county and 
State) to be judicial in character. Not only so, but we 
have given their proceedings in fixing values the force 
of judgments. Other cases from this State might be 
cited, but these are illustrative of the whole line of 
our cases. Of course if such bodies in acting (as stated 
by Bond, J., supra) exceed their constituted power or 
jurisdiction, and such fact appears upon their records, 
then we can reach their judgments by certiorari. Such 
is the rule as to courts. 

II. It being conceded (as it must be) that the 
action of the State Board of Equalization was judicial 
in character, then it must be held that its judgment 
cannot be attacked in this collateral pro- 
Atudk!*^ ceeding. That the attack upon the judgment 
of the State Board of Equalization is collat- 
eral is clear from the books. 

In 23 Cyc. 1062, the difference between direct and 
collateral attacks is clearly stated, thus: **The term 



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Vol. 279 APRIL TERM, 1919. 237 



state ex rel. Johnson y. Bank. 



*collateraP as used in this connection is opposed to 
* direct.* If an action or proceeding is brought for 
the very purpose of impeaching or overturning the 
judgment, it is a direct attack upon it. Such is a mo- 
tion or other proceeding to vacate, annul, cancel, or 
set aside the judgment, or any proceeding to review it 
in an appellate court, whether by appeal, error, or cer- 
tiorari, or a bill of review, or, under some circumstances, 
an action to quiet title. On the other hand, if the action 
or proceeding has an independent purpose and con- 
templates some other relief or result, although the over- 
turning of the judgment may be important or even 
necessary to its success, then the attack upon the judg- 
ment is collateral. *' The same authority on the same 
page says: **The rule against collateral impeachment 
of judicial decisions applies to the determination of 
State and county oflBcers or boards of oflBcers, who, al- 
though not constituting a court, are called upon to act 
judicially in matters of administration, such as boards 
of county commissioners, boards of land commissioners, 
or railroad commissioners, or a State Board of Equali- 
zation.'* 

Our rule as to what is collateral attack accords 
with Cyc. supra. Thus in Lovitt v. Russell, 138 Mo. 
1. c. 482, Gantt, p. J., said: **Now it must be borne 
in mind that the proceedings, under review and col- 
laterally assailed in this case, were in the Circuit Court 
of Jackson County, a court of general jurisdiction. No 
principle of law is more universally accepted in this 
country than that the judgment of a court of competent 
jurisdiction so long as it stands unreversed cannot be 
impeached in a collateral proceeding, on account of 
mere errors, or irregularities, not going to the juris- 
diction. [Union Depot Co. v. Frederick, 117 Mo. 138; 
Lingo V. Burf ord, 112 Mo. 149 ; Gray v. Bowles, 74 Mo. 
419; 1 Black on Judgment, sec. 261.] The plaintiff 
did not proceed in the circuit court by bill in equity and 
ask to have the judgment set aside for fraud, nor did 
she attempt to set it aside for irregularity by motion 



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238 SUPREME COURT OF MISSOURI. 

State ex rel. Johnson v. Bank. 

or petition for review/* See also the cases cited in 
our paragraph one, supra. 

There is no doubt that the State Board of Equali- 
zation was acting within its jurisdiction when it fixed 
values for bank stock in Jasper County, and its judg- 
ment can not be attacked in this collateral proceeding. 

In State ex rel. v. Vaile, 122 Mo. 1. c. 47, Black, 
P. J., said: "A board of equalization in performing 
its duties, acts judicially, and its orders cannot be 
impeached collaterally, save for want of jurisdiction 
or for fraud. [Black v. McGonigle, 103 Mo. 193, and 
cases cited; Black on Tax Titles (2 Ed.), sec. 141.] 
But it is a board of special and limited powers, and 
when it steps outside of its jurisdiction its acts are 
void.'* 

If attacked for want of jurisdiction, the fact 
must appear on the face of the record. So appearing, 
the judgment is void, and a void judgment may be at- 
tacked collaterally. But if the judgment is only void- 
able and not void it cail only be attacked in a direct 
proceeding. This is hornbook law. 

Judgments may be set aside for fraud, but the 
fraud must be such as entered into the very concoction 
of the judgment. But we need not discuss this, because 
a judgment cannot be attacked for fraud in a col- 
lateral proceeding. It must be by a direct bill in 
equity. It follows that the objections made by relator 
to all the oral evidence introduced to impeach the 
judgment of the State Board of Equalization should 
have been sustained, because such judgment cannot be 
thus impeached in this collateral proceeding. "With this 
evidence stricken from the record there is nothing left 
to either of these cases for the defendants. The mem- 
bers of the State Board of Equalization could not im- 
peach their own judgment in this collateral proceed- 
ing. Nor can the judgment of the County Board of 
Equalization be impeached in this collateral proceed- 
ing. This removes from the record all evidence having 
in view that purpose. 



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Vol. 279 APRIL TERM, 1919. 239 



state ex rel. Johnson y. Bank. 



Under the law these boards, both State and county- 
Cm this collateral proceeding), are presumed to have 
performed fheir duties under the law. This presump- 
tion is a finality in collateral proceedings. The face of 
the record does not disclose want of jurisdiction in the 
State Board of Equalization, and its judgment is not 
void. Its attack in this collateral proceeding cannot 
be sustained under the law. When we have stripped 
from the record in this case all the incompetent evi- 
dence (duly objected to below) there is absolutely noth- 
ing left to the defenses made by defendants. The 
many matters discussed need not be noted at all, be- 
cause this is not a case wherein they could properly 
arise. The judgment nisi should be aflBrmed, and it is 
so ordered. All concur except Woodson, J., not sit- 
ting. 

On Motion to Modify Opinion and Judgment. 

GRAVES, J. — .Motions to modify our opinion and 
the judgments herein have been filed. Those motions 
should be sustained. As stated in the opinion these two 
actions are to recover unpaid balances due upon taxes 
for the five years next preceding the bringing of the 
actions. It would appear that the circuit court omitted 
to credit the payments of a portion of the taxes paid 
by the two banks. Counsel for plaintiff admits the 
error, but in our deep interest in the vital question in 
the case, we overlooked this matter. Counsel oflFers 
to remit from the judgments so as to make them cor- 
rect. This will be permitted. 

So that in the first case, the judgment will be cut 
down to $93.96, which includes ten per cent for the tax 
attorney's fees. In the other case, the judgment will 
be cut to $96.36, which includes ten per cent for the tax 
attorney's fees. 

In the cases the tax bills (five in each) show these 
amounts as the balance due, including the penalties 
and tax attorney's fees. The opinion is hereby modified, 



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240 SUPREME COUET OF MISSOUBI. 

Graves y. Metro. Life Ins. Co. 

as are also the judgments. In the first case, judgment 

is entered here for the sum of $93.96, and in the second 

case, judgment is entered here for the sum of $96.36. 

All concur except Woodson, J., who is absent. 



EMERY GRAVES and LOTTIE JOHNSON, Appel- 
lants, V. METROPOLITAN LIFE INSURANCE 
COMPANY. 

In Banc, July 7, 1919. 

1. SUIT OK LOST IKSTBUMENT: Insurance PoUcy: AffldaTlt The 
statutes requiring tliat in a suit founded upon a written instru- 
ment, if "the debt or damages claimed may be ascertained" there- 
from, such instrument "shall be filed with the Justice, and no 
other statement or pleading shall be required," and if such instni- 
ment shall be lost an affidavit stating such loss or destruction 
and setting forth the substance of the instrument, do not apply to 
a life insurance policy, for an insurance policy is not such an 
instrument, since it cannot be ascertained from its face the debt 
or damage due; and hence, it cannot be ruled that the justice 
fails to obtain jurisdiction of the subject-matter of an action for 
an amount alleged to be due on an insurance policy, on the sole 
ground that neither the j[>olicy nor an affidavit that it was lost 
was filed with the justice. 

2. UFE INSUBAKOE: Extended Policy: Failure to aive Notice of 
Insured's Death: Bar to Becovery. Sections 6946 and 6948, Re- 
vised Statutes 1909, providing that, in case of extended life in. 
surance, notice of the claim and proof of death must be submitted 
to the company within ninety days after insured's death, must be 
read and construed together, and a failure to give notice and 
make proof of death within such time, absent waiver or estoppel 
or other matter of avoidance, defeats recovery. A claim under the 
policy is not, by said statutes, strictly speaking, defeated by rea- 
son of forfeiture, but because failure to give notice and make proof 
of death constitutes a failure to perform a statutory requirement 
essential to the creation of a valid claim against the company. 

Appeal from St. Louis City Circuit Court.— flon. WiU 
Ham T. Jones, Judge. 



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VoL 279 APEIL TERM, 1919. 241 



Graves y. Metro. Life Ins. Co. 



Affibmed. 

James J. O'Donohoe for appellant. 

(1) The policy in suit is non-negotiable and hence 
Section 7414 is inapplicable. The pertinent sections 
are Sees. 7412, 7416, R. S. 1909. Neither the filing 
of the instrument nor an affidavit in case of its loss or 
destruction is essential to jurisdiction over the subject- 
matter. Watkins v. American Yoemen, 188 Mo. App. 
626; Sanders v. Selleck, 165 Mo. App. 392; Mansur v. 
liinney, 162 Mo. App. 260; Keyes & Watkins Livery 
Co. V. Freber, 102 Mo. App. 315; Bank v. Clifton, 263 
Mo. 211; State ex rel. v. Smith, 104 Mo. 422; Dowdy 
V. Wamble, 110 Mo. 284; Railway v. Lowder, 138 Mo. 
536; O'Brien v. People, 216111. 354. (2) A policy of in- 
surance is not a debt, but only primary evidence of a 
debt, and its loss or destruction does not change the 
obligations of the parties thereto. Dannehauser v. Wal- 
lenstein, 169 N. Y. 199; McDonnell v. Ins. Co., 85 Ala. 
412. And being non-negotiable when reduced to judg- 
ment the p6licy is merged in the judgment and put out 
of existence. The judgment becomes the sole and only 
debt and hence section 7414 is in such cases inapplicable 
and section 7416 is applicable. Barber v. Baker, 70 Mo. 
App. 680. (3) '* Courts of equity do not favor forfeitures, 
although life insurance companies do." Belt v. Ins. Co., 
12 Mo. App. 101. Accordingly, since there are no 
words of forfeiture in the statutes for failure to make 
claim or to supply proof of death within ninety days 
from the decease of the insured, none should be sup- 
plied by construction. Dezell v. Casualty Co., 176 Mo. 
253. (4) Time for making claim or furnishing proofs 
of death is not of the essence of the statute. Mont- 
gomery V. Ins. Co., 1 Bush. (Ky.) 51; Insurance Co. v. 
Jarboe, 102 Ky. 80; Insurance Co. v. Patterson, 22 
Ky. Law Rep. 1282; Insurance Co. v. Miles, 23 Ky. 
Law Rep. 1705. Statutes, like policy stipulations, can be 

16—279 Ma 



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242 SUPREME COURT OF MISSOURI. 

Graves y. Metro. Life Ine. Ck>. 

waived. Liebing v. Ins. Co., 269 Mo. 509; Shearlock v. 
Ins. Co., 193 Mo. App. 430. The policy stipulates that 
''if this policy is or shall become void, all premiums 
paid shall be forfeited to the company.'' It stipulates, 
too, that ''if any premium shall not be paid when due, 
this policy shall be void.'' These stipulations dispensed 
with notice and proof of death. Mun v. Ins. Co., 181 S. 
W. (Mo. App.) 606; Dodge v. Ins. Co., 189 S. W. (Mo. 
App.) 609. 

Nathan Frank and Louis B. Sher for respondent. 

(1) The unqualified denial of liability after the 
time for proofs has expired, is no waiver of the failure 
to furnish them. Boren v. Brotherhood of Railroad 
Trainmen, 145 Mo. App. 136 ; Cohn v. Insurance Co., 62 
Mo. App. 275; Bolan v. Association, 58 Mo. App. 531; 
Gale V. Insurance Co., 33 Mo. App. 672; Brwin v. In- 
surance Co., 24 Mo. App. 151. (2) Appellants show no 
valid reason why this court should refuse to follow the 
decision of the Kansas City Court of Appeals in the 
case of Chandler v. John Hancock Ins. Co., 180 Mo. 
App. 394. The contention below was that there was 
a failure to comply with the terms and provisions of 
Section 6948, requiring the submission of claim and 
making and filing proofs of death within ninety days 
after the death of the insured. (3) This suit being upon 
a lost instrument filed in the justice court, it was incum- 
bent upon plaintiffs to verify the petition in accordance 
with Section 7414. The cases referred to by appellants 
have reference to suits filed in the circuit court. Sections 
7413 and 7414 are sections that govern the filing of 
suits on instruments in writing in the justice court 
and do not refer solely to suits upon promissory notes 
or negotiable instruments, as is contended by the appel- 
lants. Hudson V. Wright, 204 Mo. 412. 

WILLIAMS, J. — This action, originally instituted 
before a justice of the peace in the City of St. Louis, 
seeks to recover the sum of $160, and interest thereon, 



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Vol. 279 APRIL TERM, 1919. 243 



Graves y. Metro. Life Ins. Ck>. 



upon a policy of life insurance issued by defendant upon 
the life of one OUie M. Graves. 

Plaintiff recovered judgment in the justice court 
and defendant appealed to the circuit court. Upon trial 
in the circuit court judgment was rendered for defend- 
ant and plaintiffs duly appealed to the St. Louis Court 
of Appeals, which court (See 179 S. W. 947), reversed 
the judgment of the circuit court with directions, but, 
deeming its decision in conflict with certain decisions 
of the Kansas City Court of Appeals, certified the 
cause to this court. 

The case was first heard and written in Division 
One, but upon a dissent the cause was transferred to 
and heard by Court in Banc. After the opinion was 
written in Division One, and before the cause was sub- 
mitted In Banc, appellant filed a supplemental abstract 
of the record, setting forth a copy of the original 
statement which was filed in the justice court. This 
statement alleged that the insurance policy was lost. 
The statement was not verified, neither was there any 
aflSdavit filed with the justice which undertook to com- 
ply with Section 7414, Revised Statutes 1909. 

The following facts are quoted from the Divisional 
opinion : 

"The beneficiary died on September 5, 1906, and 
the insured on the 16th day of March, 1907. The in- 
sured was never married. The plaintiffs are the next 
of kin and are the sole surviving heirs of the insured 
and beneficiary. Both died intestate and left no estate. 
There was no indebtedness against said policy. The 
insured reserved the right to change the beneficiary. 

**It was admitted at the trial that said policy was 
dated October 20, 1902, and that the premiums w^re 
paid until the 22nd day of October, 1906. It was ad- 
mitted that by reason of the payment of these premiums 
the policy acquired a net value, three-fourths of which, 
when applied as a net single premium for temporary 
insurance, carried the policy to the death of the in- 



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244 SUPREME COURT OF MISSOURI. 

Graves y. Metro. Life Ins. Ck>. 



snred, figured according to the non-forfeiture statute of 
the State of Missouri. 

**The insured died less than five months after de- 
fault. R. J. Douglass, who wrote the application, and 
F. M. McDonald, collected part of the premiums there- 
on. The plaintiffs testified that soon after the death of 
the insured they notified agents Douglass and Mc- 
Donald thereof, and made claim under said policy, but 
McDonald testified that he had quit the employ of de- 
fendant before the death of insured. The testimony of 
McDonald in this respect was conceded to be true. 

**At the conclusion of the trial the plaintiffs asked 
a peremptory instruction, and a declaration of law in 
respect to their damages, both of which were refused 
and exceptions saved. Defendant likewise asked in- 
structions, which were refused and exceptions duly 
saved. The case was taken under advisement by the courl^ 
and on May 26, 1933, judgment was entered in favor of 
defendant and against plaintiffs. The court, at the time 
of the rendition of said judgment, filed the following 
memorandum : 

** 'It seems clear from the evidence that plaintiffs 
in the case failed to furnish any proofs of the death of 
the deceased, as required by the policy, and by Section 
6948, Revised Statutes 1909, and failed to show any 
acts on the part of the defendant that can be construed 
as a waiver of proofs. The testimony satisfies me that 
at the time of the conversations, or alleged conversa- 
tions, of plaintiffs with Douglass and McDonald, neither 
of them was connected with defendant. This suit was not 
instituted until four years after death of deceased, 
which indicates that plaintiffs must have considered at 
the time of suit that they had no claim. For this reason 
judgment will go for defendant.^ '* 

I. Respondent insists that the justice court (and' 
hence the circuit and appellate courts) acquired no 
jurisdiction over the subject-matter of this case, be- 
cause the appellant failed to file an afiSdavit before the 



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Vol. 279 APRIL TERM, 1919. 245 



Graves y. Metro. Life Ins. Co. 



justice as required by the statute when a suit is in- 
Juiisdicti stituted before a justice upon certain lost 
instruments. This was the point upon which 
the decision turned in the Court of Appeals. 

Section 7413, Revised Statutes 1909, among other 
things, provides: ''When the suit is founded upon any 
instrument of writing purporting to have been executed 
by the defendant, and the debt or damages claimed may 
be ascertained by such instrument, the same shall be 
filed with the justice, and no other statement or plead- 
ing shall be required. '* 

Section 7414, Revised Statutes 1909, provides: 
''If such instrument be alleged to be lost or destroyed, 
it shall be suflBcient for the. plaintiff to file with the 
justice the affidavit of himself, or some other credible 
person, stating such loss or destruction, and setting 
forth the substance of such instrument. *' 

If the life insurance policy upon which this suit 
is founded is such an instrument as is embraced within 
the meaning of the foregoing statutes, then under the 
former rulings of this court, the plaintiff having failed 
to file the required affidavit with the justice, jurisdiction 
of the subject-matter was not acquired. [Hudson v. 
Wright, 204 Mo. 412, 1. c. 431.] 

But is the insurance policy such an instrument! 
With all due deference to the learned Court of Appeals 
we feel constrained to rule that it is not such an in- 
strument. Under the statute the instrument of writing 
must purport to have been executed by the defendant 
and must be a writing by which the debt or damages 
claimed 7nay he ascertained. 

In the case of Hudson v. Wright, supra, the in- 
strument involved was a negotiable promissory note 
and the statute was quite properly held to api^y, be- 
cause the debt could be easily ascertained from the face 
of the instrument itself. But can as much be said for 
an insurance policy I Can a debt upon an insurance 
policy be ascertained by a mere inspection of the face 
of the policy! We think not. It would at least be 



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246 SUPREME COURT OF MISSOURI. 

Graves y. Metro. Life Ins. Co. 

impossible to ascertain the debt due upon this policy 
unless it were known that the insured's death had oc- 
curred. This fact could not be found by an inspection 
of the policy. 

We are of the opinion that Ellison, J., announced 
the correct rule, here applicable, in his separate con- 
curring opinion in the case of Mansur v. Linney, 162 
Mo. App. 260, 1. c. 268, wherein he said: ''This suit, 
manifestly, is not founded upon such an instrument of 
writing, mentioned in the latter section, whereby a 
debt or damages can be ascertained by the instrument. 
The written contract in this case does not ascertain any 
debt. It is not like a bond or note ; it is merely an em- 
ployment of service which may never be performed, or 
which may be performed in various ways. The statute 
contemplates such character of written instrument as 
need not require any pleading or explanatory statement 
in order to make a cause of action, for it says that 
'no other statement or pleading shall be i-equired.' 
What would have been said of this case if there had 
been filed with the justice nothing but the contract? 
Would that have been any indication that plaintiff had 
sold the land, or that, as here, while not selling it, but 
had done all that was necessary to give him a cause 
of action for his commission, or that a cause of action 
had by any means accrued f 

Therefore we conclude that the court acquired juris- 
diction of the subject-matter of this case. 

n. Appellant's right to a recovery, if at all, must 
arise by virtue of Sections 6946 and 6948, Revised Stat- 
utes 1909, because it appears from the evidence that but 
for the saving provisions of the above statutes the 
policy would have become forfeited by reason 
DeSS ^' ^^ *^^ failure to pay premiums. It also stands 
conceded that by reason of Section 6946, 
sujpra, the term of extended insurance was sufficient to 
cover the date of the death. 



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V^ol. 279 APRIL TERM, 1919. 247 



Graves y. Metro. Life Ins. Co. 



Section 6948, supra, * among other things provides : 
*'If the death of the insured occur within the term of 
temporary insurance covered by the value of the policy 
as determined in Section 6946, and if no condition of 
the insurance other than the payment of premiums shall 
have been violated by the insured, the company shall 
be bound to pay the amount of the policy, the same as if 
there had been no default in the payment of premium, 
anything in the policy to the contrary notwithstanding: 
Provided, however, that notice of the claim and proof 
of the death shall be submitted to the company in the 
same manner as* provided by the terms of the policy 
within ninety days after the decease of the insured/' 

The trial court found that appellants failed to give 
notice of the claim and make proof of the death within 
ninety days as required by the above statute, and that 
there was no waiver by the respondent of this require- 
ment. This being an action at law, and there being sub- 
stantial evidence to support the above finding, the same 
is conclusive here. (In fact as we read the record it 
does not appear therefrom that the company had notice 
of this claim until this suit was instituted, which was 
more than four years after the death.) 

The legal question presented is. Does the failure to 
give notice and make proof of death within the time 
provided by the above statute (absent waiver or other 
matter of avoidance), defeat a recovery! 

We have reached the conclusion that this question 
must be answered in the affirmative. By the terms of the 
statute it clearly appears that the notice and making 
proof of death within ninety days is made a condition 
precedent to a right of recovery. 

In the case of Liebing v. Insurance Company, 269 
Mo. 509, 1. c. 520, it was held that the above-mentioned 
proviso was enacted for the benefit of the insurer and 
that the insurer could waive a compliance therewith. 
It would necessarily follow as a corollary to the above 
holding that if the provision were not waived (or, we 
might add, avoided in some other manner, as for ez- 



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248 SUPREME COURT OF MISSOURI. 

Graves y. Metro. Life Ins. Co. 

ample, by estoppel), a failure to comply therewith 
would operate to prevent a recovery. If this were not 
so, then it was entirely unnecessary in that case to 
base the right to a recovery on the existence of such a 
waiver. 

The Kansas City Court of Appeals in the case of 
Chandler v. Insurance Company, 180 Mo. App. 394, 
held that a recovery upon extended insurance under 
the provision of Section 6946, supra, could not be had 
(absent a waiver by the insurer), where the beneficiaries 
failed to give the notice or make proof of death as 
required under Section 6948, supra. • 

This exact feature of the statute has not been 
construed by this court, and we find no decision from 
other States upon similar statutes which throw any light 
upon the question. 

We are of the opinion that the conclusion reached 
by the Kansas City Court of Appeals on this question 
in the Chandler case is correct. 

The line of cases cited and relied upon by appellant, 
of which Dezell v. Casualty Co., 176 Mo. 253, is a fair 
type, are, we think, not in point here. 

Appellants' present right of recovery depends up- 
on the language of the above mentioned statutes. 

In this behalf Sections 6946 and 6948, supra, must 
be read and construed together. When this is done it 
will be seen that plaintiffs' claim in the present action 
is not defeated, strickly speaking, by reason of forfei- 
ture, but is defeated because plaintiffs failed to perform 
the statutory requirements essential to the very crea- 
tion of a valid claim against the respondent. 

From the foregoing it follows that the judgment 
of the circuit court should be aflBrmed. 

It is so ordered. 

Walker, Paris, Blair and Graves, J J., concur ; Bond, 
C. J,, not sitting; Woodson, J., absent. 



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Vol. 279 APEIL TERM, 1919. 249 



In re 23rd Street y. Crutcher. 



IN EE TWENTY-THIRD STREET TRAFFICWAY, 
Kansas City, v. L. T. CRUTCHER et al, Appel- 
lants. 

In Banc, July 7, 1919. 

1. STREET IHPBOVEMENT: Elimination of Part of Ordinance 
Plan. Under the charter of Kansas City, an ordinance may provide 
for the widening and grading of a street, and the grading of in- 
tersecting streets, as a part of a general scheme to establish one 
continuous trafflcway, "all as one general Improvement," and a 
circuit court cannot ignore or alter any material part of such 
ordinance; and where the ordinance provided that thirteen in- 
tersecting streets should be graded or regraded so as to consti- 
tute approaches to a trafficway, the court had no authority, in an 
attempt to ascertain the damages and benefits, to receive a verdict 
or render a judgment which eliminated four of the intersecting 
streets from consideration. 

2. : General Improvement: Instruction for Separate Verdicts. 

Where the charter and ordinance provide for one general im- 
provement of a highway, crossed by thirteen streets, it is error 
to instruct the jury that the damages and benefits from the grad- 
ing of the highway and each fntersecting street are to "be con- 
sidered and determined separately" and that thirteen separate 
verdicts are to be rendered. 



: Instruction To Disregard Testimony. In so far as an in- 
struction attempts to direct a jury to exercise their own judgment 
as to the damages and benefits free from any connection with the 
testimony, it is error. 



: General Improvement: Individual Benefit to Lot: Separate 

Assessment. Where the charter and ordinance unite all elements 
of the street improvement into one general improvement, it is 
error to instruct the jury that they "have no right to assess any 
lot to pay for any of the proposed street improvements, except for 
such Improvement as will actually benefit the particular lot," or 
that they "have no right to assess any greater sum against any 
lot than it will be actually benefited by the particular improve- 
ment." The improvement being a general one, no attempt should 
be made to accredit any one portion of the Improvement with 
benefits apart from the others, except to separate the grading 
benefits from the condemnation benefits. 



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250 SUPREME COUET OF MISSOURI. 

In re 23rd Street y. Crutcher. 

5. : : Damages Exceeding Benefits: As to Particular Lots. 

Where the court has told the jury that the proposed street im- 
provement is necessary as a matter of law, and that if they 
find the entire damages exceed the benefits they should go no 
further, but so report, another instruction telling them that if they 
find that "the total benefits from the proposed grading of any in- 
tersecting street do not equal the amount of damages to lots on 
such street, then you need to proceed no further as to such in- 
tersecting street," is error, in that it conflicts with the other cor- 
rect instruction, and besides is contrary to the law governing such 
cases. 



6. : Damages to Non-Abirtting Property. Where the charter 

and ordinances made 23rd Street and the intersecting streets one 
for the purpose of the improvement, an instruction telling the 
jury that only property abutting on 23rd Street is entitled to dam- 
ages is error, the evidence tending to show that the deep cut in 
23rd street deprives the owners of property abutting on the inter- 
secting streets of vehicular access thereto. 

Appeal from Jackson Circuit Court. — Hon. Harris 
Robhison, Judge. 

Reversed and remanded {with directions). 

Clarence L Spellman and John G. Park for appel- 
lants. 

(1) The court erred in overruling appellant's mo- 
tions for new trial and in arrest of judgment. The judg- 
ment did not respond to the charter and ordinance and 
established a different public improvement to that au 
thorized by charter and ordinance, (a) Article 6, 
Section 16, is legal. Kansas City v. Woerishoeffer, 249 
Mo. 1; Wells v. Street Commissioners, 187 Mass. 451, 
455; Sears v. Street Commissioners, 180 Mass. 274, 
62 L. R. A. 144; In re Third, Fourth and Fifth Ave- 
nues, 49 Wash. 109; City of Springfield v. Green, 120 
111. 269, 273. (b) The elimination of four approaches de- 
stroyed the identity of the plan. The verdict and judg- 
ment did not conform to the charter and ordinance. 
Shaffner v. St. Louis, 31 Mo. 264. (c) The charter and 
ordinance should have been strictly pursued. Leach v. 



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Vol. 279 APRIL TEEM, 1919. 251 



In re 23rd Street y. Crutcher. 



CargiU, 90 Mo. 316; St. Louis v. Koch, 169 Mo. 587, 591; 
Westport V. Mastin, 62 Mo. App. 647. (d) If one part 
of a general improvement fails, the entire improvement 
fails. City of Bloomington v. Reeves, 177 111. 161, 168. 
(2) The court erred in giving instruction 6, which told 
the jury that they must write '*or cause to be written 
13 separate verdicts as to the damages and benefits, 
one for each proposed improvement. '* The improve- 
ment was an entirety, not a combination of units. Au- 
thorities above. (3) The court erred in giving instruc- 
tion 10, which told the jury that the damages and 
benefits, if any, from the grading of Twenty-third 
Street, and of each of the intersecting streets, must be 
considered and determined separately, as to each of such 
streets. Where a single improvement consists of dis- 
tinguishable parts made one by lawful municipal action, 
damages and benefits must be assessed on account of the 
improvement as a whole, and not on account of certain 
of its parts. In re Third, Fourth and Fifth Avenues, 
49 Wash. 109; Alden v. Springfield, 121 Mass. 27; Lin- 
coln V. Dore, 176 Mass. 210; City of Bloomington v. 
Reevefs, 177 111. 161, 168. (4) The court erred in giving 
to the jury instruction 11, Kansas City v. Max (In re 
6th Street), 207 S. W. 503. (5) The court erred in giv- 
ing instruction 13, which told the jury, in effect, that 
they must minutely analyze the improvement and assess 
only such benefits against property in the benefit dis- 
trict as they could directly trace to a '* particular im- 
provement.'' Authorities above. (6) The court erred in 
giving instructions 14 and 15, which converted the 
proceeding from **one general public improvement" 
into a group of 13 independent improvements. (7) The 
court erred in giving instructions 16 and 17, which 
told the jury that only persons whose property abutted 
on Twenty-third Street might recover damages for such 
regrading. (a) They misled the jury as to the issues to 
be tried, (b) Appellants entitled to recover for being 
cut off from the outside world. They had easements of 
access. Thurston v. St. Joseph, 51 Mo. 510; Glaessner 



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252 SUPREME COURT OF MISSOURI. 



In re 28rd Street y. Crutcher. 



V. Brew. Association, 100 Mo. 508 ; Heinrich v. St. Louis, 
125 Mo. 424, 427; Press v. Penny & Gentles, 242 Mo. 98, 
103; Gaus v. Railway, 113 Mo. 308, 315; Schopp v. St. 
Louis, 117 Mo. 131, 135; Versteeg v. Railway, 250 Mo. 61, 
75; Rourke v. Railroad, 221 Mo. 46, 60; Downing v. Cor- 
coran, 112 Mo. App. 645 ; Putnam v. Railroad, 182 Mass. 
351, 353; 1 Lewis on Em. Dom. (3 Ed.), sees. 206, 121, 
123; 2 ElUott on Roads and Streets (3 Ed.), sec. 1181; 
Dantzler v. Railway, 141 Ind. 604, 34 L. R. A. 769; 
Borghart v. Cedar Rapids, 126 Iowa, 313. Immaterial 
that complainant's property was not directly in front of 
the obstruction. Powell v. Railroad, 135 S. W. (Tex.) 
1153; Sweeney v. Seattle, 57 Wash. 678; Rigney v. 
Chicago, 102 111. 64; C. Hacker v. Joilet, 192 lU. 415, 
425; City of Joliet v. Blower, 155 111. 414; Burr v. 
Leicester, 121 Mass. 241 ; Vanderburgh v. Railroad, 98 
Minn. 329, 6 L. R. A. (N. S.) 741; Dairy v. Railroad, 
113 Iowa, 716; Winetka v. CUrord, 201 111. 475; Mellor 
V. Philadelphia, 160 Pa. St. 614. 

E. M. Harber, City Counselor, and J. C. Pether- 
bridge, Assistant City Counselor, for respondents. 

(1) In this proceeding thirteen different improve- 
ments were combined in one ordinance and hence in one 
proceeding for convenience and in order to save time 
and expense. There could have been thirteen separate 
ordinances and all filed in one proceeding, or thirteen 
separate ordinances and thirteen separate proceedings, 
or one proceeding combining all the improvements. In 
any event, there would have to be thirteen separate 
judgments, as happened in this case. (2) It was neces- 
sary to have thirteen separate verdicts — one for each 
improvement— because the procedure and rules for the 
condemnation of land to widen Twenty-third Street, 
is governed by Article 6 of the charter; and the proce- 
dure and rules for assessing damages and benefits for 
the change of grade on Twenty-third Street and the 
itersecting streets, is governed by Article 7 of the 
charter. The two procedures are entirely different — 



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Vol. 279 APRIL TERM, 1919. -*g9- 

In re 23rd Street y. Crutcher. 

one relates to condemnation matters and the other to 
damages arising on account of the change of grades of 
streets. But the same jury, the same court, at the same 
time, may try all of them, as authorized by the practice, 
under the charter. (3) The instructions were not er- 
roneous but in perfect harmony with the charter and 
the theory on which the proceeding was bottomed and 
tried. (4) The ordinance filed in this cause is a pleading 
and is considered the petition, with thirteen different 
counts to be construed and decided separately as if 
there were thirteen different suits. City of Tarkio v. 
Clark, 186 Mo. 297; Sec. 1971, R. S. 1909; K. C. Charter, 
1908, sec. 12, art 7, p. 304. (5) Lots not abutting on 
Twenty-third Street were not entitled to damages- on 
account of the change of the grade of Twenty-third 
Street. Hence the property on Fairmount Avenue and 
Terrace Place, about which complaint is here made (not 
abutting on Twenty- third Street) was not entitled to 
damages on account of the change of grade on Twenty- 
third Street, although by the grading down of Twenty- 
third Street the property on such intersecting streets 
may be shut off entirely from access thereto by way of 
Twenty-third Street. Gardner v. St. Joseph, 96 Mo. App. 
6&1; Burde v. St. Joe, 130 Mo. App. 453; Rude v. St. 
Louis, 93 Mo. 408; Wallace v. Railway Co., 47 Mo. App. 
491 ; Stephenson v. Railway, 68 Mo. App. 642 ; Clemens 
V. Conn. Mut. Life Ins. Co., 184 Mo. 46 ; Knapp, Stout & 
Co. V. St. Louis, 153 Mo. 560. (6) The refusal of the 
jury and trial court to allow any damages for changing 
the grade on the two cross streets, is no legal bar to 
grading such streets down to meet the new grade of 
Twenty-third Street, if the property-owners desire to 
have such grading done. 

R. H. Field for respondent. 

(1) The verdict is in accordance with the evidence 
as to damages and benefits from the proposed grading. 
(2) The jury were not required nor authorized to 



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254 SUPREME COURT OF MISSOURI. 

In re 23rd Street ▼. Cmtcher. 

make a verdict for damages as to Fairmonnt Avenue 
or Terrace Place in the face of their finding of the fact 
that the damages exceed the total amount of benefits to 
the city and public at large, and the private property 
within the benefit district. And the jury were authorized 
to limit the assessment of special benefits against only 
two-fifths of the private property in the prescribed bene- 
fit district ,and to leave out the remaining three-fifths of 
the private property in the benefit district unassessed. 
Kansas City v. Baird, 98 Mo. 221 ; Kansas City v. Bacon, 
147 Mo. 281; Kansas City v. Bacon, 157 Mo. 474; St. 
Louis V. Brown, 155 Mo. 559. It was neyer intended to 
require a jury to render a verdict for damages from a 
proposed street grading, under Article 7 of the Charter, 
where the benefits did not equal the damages. It would 
certainly have been a vain thing for the jury to have 
made a verdict finding amount of damages from the pro- 
posed grading of Fairmount Avenue and Terrace Place, 
when they could not find the benefits to the city and the 
property in the prescribed benefit district in an amount 
equal to the amount of the damage therefrom. (3) Appel- 
lants' brief does not assign any error of fact in the find- 
ing of the jury that the damages from the proposed grad- 
ing of Fairmount Avenue iand Terrace Place exceeds the 
benefits to the city and the private property in the 
benefit district. Appellants' complaints here are that 
they have been deprived of a recovery of the damage to 
their property on Fairmount Avenue and Terrace Place, 
suflFered from the proposed change of grade of Twenty- 
third Street, a thing not alleged nor included in their 
claims in question filed in this cause. The claims for 
damages from the proposed grading of Fairmount Ave- 
nue and Terrace Place, filed by appellants, were for the 
proposed change of the grade in Fairmount Avenue 
and Terrace Place, '*in connection with the proposed 
Twenty-third Street TraflBcway." Clements v. Yates, 69 
Mo. 623; Knapp v. St. Louis, 153 Mo. 560; Fuess v. 
Kansas City, 191 Mo. 692. (4) Appellants are wrong 
in their contention that all or none of the proposed 



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Vol. 279 APEIL TERM, 1919. 255 



In re 23rd Street y. Cmtcher. 



improvements under this ordinance must go through, 
because they are combined in the same ordinance as 
one general improvement. Section 16 of Article G of 
the Kansas City Charter, relied on by appellants, does 
not sustain appellants' view of this matter. This sec- 
tion of the charter covers mere matters of procedure 
only. It merely gave the city the option, in a case like 
this, where the thirteen improvements are combined 
in one general ordinance. (5) The finding of the jury on 
the one issue, to-wit, that the damages on the proposed 
grading of Fairmount Avenue and Terrace Place exceeds 
the benefits to both the city and the private property in 
the benefit district, shows that the jury ignored all of 
the instructions complained of in appellants' brief. And 
for this reason the judgment should not be reversed for 
errors, if any, in said instructions. It is firmly settled, 
and particularly in condemnation cases, th^t a judgment 
will not be reversed for error in any instruction when 
it is clear that the jury were not prejudiced, nor 
aflfected by such instruction. St. Louis v. Lannigan, 97 
Mo. 175; Kansas City v. Block, 174 Mo. 434; St. Louis 
V. Brown, 155 Mo. 567 ; Edwards v. Mo. Pac. Ry., 82 
Mo. App. 484. (6) The instructions numbered 16 and 17, 
excluding appellants' right to damages to property 
not abutting on Twenty-third Street for the grading of 
Twenty-third Street, are in direct accordance with the 
following decisions in this State. Rude v. St. Louis, 
93 Mo. 408; VanDevere v. Kansas City, 107 Mo. 83; 
Knapp V. St. Louis, 153 Mo. 560; Clements v. Ins. Co., 
184 Mo. 46; Gardner v. City of St. Joseph, 96 Mo. App. 
657. 

WALKER, J.— Appellants seek a review by appeal 
from a judgment of the Circuit Court of Jackson Coun- 
ty in proceedings under the Charter of Kansas City, 
and Ordinance No. 28181, entitled, **An ordinance, to 
open, widen and establish Twenty-third Street from the 
east line of New Brook Street to the westerly line of 
Southwest Boulevard, and condemning the necessary 



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256 SUPREME COURT OF MISSOURI. 

In re 23rd Street v. Crutcher. 

lands therefor; providing for and authorizing the work 
of grading and regrading Twenty-third Street as widened, 
Fairmount Avenue, Benton Place, Terrace Place, Mer- 
cier Place, Circle Avenue, Bast Street, Holly Street, 
West Prospect Place, Belleview Avenue, Monitor Place, 
Madison Avenue and Summit Street, condemning an 
easement to support an embankment or fill, all as one 
general public improvement, to bq known as the Twenty- 
third Street TraflScway, ^nd providing for the cost of 
said improvement, and authorizing the issuance of con- 
demnation fund certificates, and repealing Ordinance 
No. 26318, approved June 1, 1916.'' 

Appellants own property on Terrace Place and 
Fairmount Avenue, streets intersecting Twenty-third 
Street^ which, by the judgment of the circuit court, were 
eliminated from the improvement. It is contended that 
vehicular ingress to and egress from appellants' prop- 
erty will be destroyed by reason of the failure to im- 
prove these streets; tbat the trial court's judgment 
thereby abrogated the ordinance in part and established 
an improvement not designed or approved by the 
municipal authorities, and one which, without compen- 
sation, will destroy the value of appellants' property. 

November 21, 191&, Kansas City filed in the office 
of the Circuit Clerk at Kansas City a petition for the 
appointment of conmiissioners, together with Ordinance 
No. 28181, and the plats and maps required by the 
charter. The proceeding was brought to ascertain dam- 
ages and benefits arising from the establishment of the 
general public improvement, described in the title to the 
ordinance, which was enacted under Section 16 of 
Article 6 of the Charter of Kansas City of 1909 (p. 
277), and is as follows: 

**Sec. 16. When the grading or regrading of any 
public highway or the grading or regrading of any 
highway and highway or highways intersecting there- 
with, or the construction of tunnels, subways or viaducts 
in, under or upon said public highway or highways, 
or the taking of private property by condemnation for 



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Vol. 279 APRIL TERM, 1919. 257 



In re 23rd Street y. Crutcher. 



widening, opening or extending any such public high- 
way or highways, any or all of said improvements shall 
be deemed by the common council to be part or parts 
of one general public improvement, the common council 
shall have the power to provide for the same in one and 
the same ordinance or by separate ordinances. Said 
ordinance or ordinances may provide for establishing 
or re-establishing the grade of such public highway or 
intersecting highway or highways or part or parts 
thereof, and may provide for such grading or regrading 
by means of cuts, fills, or viaducts, and may provide 
for building subways or tunnels, and may, in tbe same 
ordinance and as a part of the same general public 
improvement, provide also for the condemnation of 
private property taken or damaged by such proceeding. 
Such ordinance or ordinances shall in such case provide 
also for the payment of compensation for private prop- 
erty so taken or damaged either out of the general 
fund of the city or by special assessments upon a 
benefit district, or by both; the damages, if any, caused 
by such public improvement may be ascertained in one 
court proceeding or by separate court proceedings in 
the Circuit Court of Jackson County, Missouri, at Kan- 
sas City, as may be provided by ordinance, and all pro- 
cedure for the ascertainment of damages, the service 
of notice, and the making of special assessments shall 
be conducted under such section or sections of this 
article or of Article VII of this charter, as the ordinance 
or ordinances shall provide. Such ordinance or or- 
dinances shall provide the method by which the damages 
awarded in such proceeding or proceedings shall be 
paid, and if said damages are to be paid by special as- 
sessment upon a benefit district, said ordinance or ordi- 
nances shall fix the boundaries of said district,^' etc. 

The portions of Ordinance No. 28181, pertinent to 
the matter at issue, are as follows: 

Section 1 describes the land to be condemned for 
the widening of 23rd Street. 

17—279 Mo. 



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258 SUPREME COURT OF MISSOURI. 

In re 23rd Street ▼. Crutcher. 

Section 2, that compensation for private property 
so condemned is to be raised by an assessment against 
property within the benefit district described therein, 
and an assessment against Kansas City, of which not 
exceeding $50,000 of the proceeds of the sale of Twenty- 
third Street-Trafficway bonds theretofore authorized by 
the voters of Kansas City, may be paid as a part of the 
assessment against the city at large for land taken or 
damaged. 

Section 3, that Twenty-third Street, Fairmount Ave- 
nue, Benton Place, Terrace Place, Mercier Place, Circle 
Avenue, East Street, Holly Street, West Prospect Place, 
Belleview Avenue, Madison Avenue, Monitor Place and 
Summit Street should be regraded to the established 
grade thereof between lines described. 

Section 4 has reference to the cost of regrading in- 
tersecting streets. 

Section 5, that the construction cost of the regrad- 
ing of Twenty-third Street is to be spread over the 
entire benefit district and a suit brought under Article 
8, Section 28, of the charter to test its validity. 

Section 6, that owners of property damaged by 
reason of the change in the grade of the streets to be 
regraded, and not having waived claim thereto, shall 
have their damages ascertained and assesssed as pro- 
vided in Article VII of the Charter of Kansas City, 
and that such damages be raised by assessments against 
the city and against private property within the benefit 
district described in said ordinance and in the manner 
authorized by Article VII of the charter. 

Section 7 describes the benefit district, against which 
the damages arising from the opening and widening of 
Twenty-third Street and the grading and regrading of 
the various other streets shall be assessed as benefits. 

Section 8 provides for retaining walls on Twenty- 
third Street, and Section 8V^ for an easement for em- 
bankments where the proposed streets are above the 
level of abutting property. 



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Vol. 279 APRIL TERM, 1919. 259 



In re 23rd Street y. Crutcher. 



Section 9, that Twenty-third Street, when widened 
and graded, and a viaduct is built by Kansas City, from 
the Wyandotte County, Kansas, High Line Bridge, 
over the Kaw River, connecting with Twenty-third 
Street at the intersection of New Brook Street, shall, 
when complete, constitute the ** Twenty-third Street 
Trafficway,'' and is by said ordinance established as 
such. 

Section 10, that the improvements therein provided 
for have been approved and recommended by the Board 
of Public Works of Kansas City, Missouri, by a resolu- 
tion previously . adopted. 

Section 11, that the council found and declared that 
the Board of Public Works had caused plans and 
specifications to be prepared, ** which shows the location 
and description of the general public improvement 
herein provided for as a whole, '^ and that all of the im- 
provements provided for in the said ordinance, in- 
cluding the widening of Twenty-third Street, shall be 
deemed parts of one general public improvement, to be 
known as ''Twenty-third Street TraflBcway,'' as au- 
thorized in Section 16 of Article 6 of the Charter of 
Kansas City, Missouri, 1909, and that said improve- 
ments are thereby provided for and authorized, and the 
ordinance referred to the resolutions of the Board of 
Public Works, setting out the plans and specifications 
of the said improvement. 

Section 12 defines the court proceedings. 

Section 13 has relation to condemnation fund certi- 
ficates, and provides that: ''The Common Council 
hereby determines that the assessments to pay for prop- 
erty taken or damaged, as provided by Article 6, of the 
Charter of Kansas City, for the widening of Twenty- 
third Street, which have not been voluntarily paid 
within sixty days from the final confirmation of the 
verdict in the proceedings instituted to determine the 
amount of said assessments, shall be paid in ten equal 
annual installments bearing seven per cent interest 
per annum, for which the city treasurer shall issue 



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260 SUPREME COURT OF MISSOURI. 

In re 23rd Street v. Crutcher. 

condemnation fund certificates equal in amount to such 
impaid assessments, which certificates shall be sold by 
the Board of Public Works of Kansas City as provided 
by Section 22 of Article 6 of the Charter of Kansas 
City and the provisions of Sections 22, 23, 24, 25, 26 
and 27 of Article 13 of the Charter of Kansas City shall 
apply thereto and govern the same as far as applicable. 
Said certificates shall be known as and called the 
* Twenty-third Street TraflScway Condemnation Fund 
Certificates, Series 1,' and shall be in such form as may 
hereafter be fixed by ordinance. The Board of Public 
Works shall, sell such certificates at sujch price, not less 
than the face value of the amount of the special assess- 
ments, excluding interest represented by said certifi- 
cates, as may be obtainable, and shall determine the 
manner and means of such sale. Such certificates shall 
be delivered by the city treasurer to the purchaser, upon 
payment therefor, on the order of the Board of Public 
Works, specifying the price which order shall be coun- 
tersigned by the comptroller. The proceeds of such 
certificates shall be used for the payment of land taken 
or damaged by said improvement. Such certificates 
may, by agreement, be issued direct in payment for 
said land taken or damaged, arising from said condem- 
nation proceedings. 

*'The Common Council finds and declares that the 
Board of Public Works of Kansas City has heretofore, 
by Resolution No. 4837, adopted May 8, 1914, recom- 
mended that the Common Council provide, by ordi- 
nance, that the assessment to pay for property taken or 
damaged shall be made in ten equal annual installments, 
and that condemnation fund certificates equal in amount 
to the unpaid assessments, as provided by Articles VI 
and Xin of the Charter of Kansas City, be issued 
therefor.'' 

Section 14, that Kansas City shall not be liable to 
pay for work required to be paid in special tax bills. 

Section 15, declaring the repeal of the former or- 
dinance. 



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Vol. 279 APRIL TERM, 1919. 261 



In re 23rd Street v. Crutcher. 



Appellants' property is located on Fairmount Ave- 
nue and Terrace Place. We are concerned, therefore, 
with the judgment so far as it aflfects those streets. 

T)ie west bluflf of Kansas City at Twenty-third 
Street is about eighty-five feet above the Kaw River, 
or the **West Bottoms. '^ A new diagonal thoroughfare 
named *'New Brook Street, '' extends along the bluff 
about twenty-five feet above this ''bottom." To open 
Twenty-third Street on a plane from Southwest Boule- 
vard to New Brook Street will necessitate a cut whose 
maximum will be about sixty feet between Fairmount 
Avenue and the present bluflf. Twenty-third Street ex- 
tends from the bluflf eastward, and is now graded and 
open for travel and is paved from Terrace eastward, 
but must be regraded to connect with Brook Street. 
The streets intersecting it, from New Brook Street east- 
ward, are in order, Fairmount Avenue, Terrace Place, 
Mercier Place, Circle Avenue, East Street, Holly Street, 
West Prospect Place, Belleview Avenue, West Madison. 
Madison Avenue, Summit Street. These are to be 
graded or regraded, but are now open and in use from 
Twenty-third Street in both dirctions. The present 
grade of Terrace from Twenty-third Street southward 
to Twenty-fourth Street is 12.45 per cent descent, and 
that of Fairmount from Twenty-third Street to Twenty- 
fourth Street is 15.47 per cent descent. Householders 
on those intersecting streets must now approach their 
homes with loaded vehicles via Twenty-third Street 
and down the respective grades on Terrace or Fair- 
mount, and when leaving their homes must go south- 
ward over their respective streets to Twenty-fourth 
Street. These streets are so deep that wagons and 
vehicles must move southwardly downhill; they cannot 
move northward. 

The proposed changes in grade in Twenty-third 
and in the intersecting streets are relatively slight from 
Southwest Boulevard westward until Mercier Street is 
reached. Here, the proposed grade practically meets 
the present grade. From this point proceeding west. 
Twenty-third Street, as proposed, will decline toward 



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262 SUPREME COURT OF MISSOURI. 

In re 28rd Street y. Crutcher. 

New Brook Street on a grade of 3.17 per cent, whereas, 
the present surface of Twenty-third Street rises grad- 
ually? going west from Mercier Street, and the intersec- 
ting streets now conform to it, so that the greatest 
divergence between the present and proposed grades are 
at the extreme west end near Fairmount and Terrace. 
One of the appellants named Doarn owns the property 
extending from Terrace to Fairmount, on the south side 
of Twenty-third Street, except twenty-five feet at the al- 
ley intersection. The cut in Twenty-third Street at Ter- 
race Place will be 25.4 feet, whilst the cut at Fairmount 
Avenue on its east line will be 41.1 feet, on its west line 
42.6, and at the alley between Fairmount and New Brook 
Street, the cut will be 44.7 feet. The cuts in front of 
property on Terrace and Fairmount Avenue adjacent 
to Twenty-third Street, when the grade of those streets 
is brought down to meet the new grade of Twenty-third 
Street, will be correspondingly severe. The ordinance 
provides for deep cuts on Fairmount Avenue and Ter- 
race Place, but easy grades to both Twenty-third and 
Twenty-fourth Streets. The verdict and judgment estab- 
lished the deep cut in Twenty-third Street, but by a find- 
ing that the damages exceeded the benefit abrogated the 
grading at Fairmount and Terrace so as to connect with 
Twenty-third Street, without providing for easier ac- 
cess from Twenty-fourth. This having been done, 
appellants' property, will, they contend, be shut off 
from the outside world, iif the judgment is aflSrmed; 
and that the property of one of the appellants (Doam's) 
will be on the edge of a canyon, 25.4 feet deep at the 
east end of his property and 41.1 feet deep at the other, 
if the regrading of the intersecting streets promised him 
be withheld. 

The purpose of the proposed widening of Twenty- 
third Street was to afford an approach to a high line 
viaduct to be constructed between Kansas City, Mis- 
souri, and Kansas City, Kansas. 

After the resolution was adopted, upon which the 
ordinance providing for this improvement was based, 
notice was published, describing the proposed improve- 



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Vol. 279 APRIL TERM, 1919. 263 



In re 23rd Street v. Crutcher. 



ment and inviting property owners interested to ex- 
amine the plans of the proceedings and present their 
views thereon. A public hearing for that purpose was 
held in the office of the Board of Public Works, and 
was attended by appellants and others. The plans re- 
vealed that while Twenty-third Street would suffer a 
great cut at the west end, Fairmount, Terrace and the 
other intersecting streets were to be brought down to 
meet the new Twenty-third Street grade, and that in- 
creased and facilitated means of ingress to and egress 
from appellants^ property would be afforded, and on 
easier grades. While adjacent property would be left 
substantially higher than the new street grade, the new 
trafficway would improve the ingress and egress by 
Twenty-third Street and increase the utility of Twenty- 
fourth Street by reducing the grades and making them 
easier; and Fairmount and Terrace Streets would be- 
come two-way streets instead of one-way streets, as 
now. After examination, the Board of Public Works 
adopted a resolution approving plans for the grading 
of Twenty-third Street, as widened, and of the in- 
tersecting streets, **all as one general improvement to 
be known as the Twenty-third Street Trafficway. '^ 

Each of the appellants filed his claim in writing, 
setting out that the building of this trafficway and the 
change in grade of intersecting streets, as provided in 
said ordinance and plans, would cause his property to 
be damaged, etc. 

Kansas City introduced in evidence Ordinance No. 
28181, the maps and plats filed with it, the bond ordi- 
nance, and the judgment record in the cause filed in 
the Circuit Court of Jackson County, Missouri, at 
Kansas City, styled, *'In the matter of determining the 
validity of or^n^nce of Kansas City, Missouri, No. 
28181, approved November 4, 1916, and the proposed 
tax lien tiiereunder for the cost of grading Twenty- 
third Street, as widened from the east line of New 
Brook Street to the east line of Jeflferson Street." 
This case was filed concurrently with Ordinance No. 



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264 SUPREME COURT OF MISSOURI. 

In re 23rd Street y. Crutcher. 

28181, and bears the next succeeding number in the 
clerk's oflSce. It was brought under the provisions of 
Section 28 of Article 8 of the Charter of Kansas City 
of 1909, which provides that after the passage of the 
ordinance for constructing a 'viaduct and an approxi- 
mate estimate of the cost of the work, the city shall 
file a proceeding in the circuit court in its name against 
the respective owners of property chargeable with 
the cost of the improvement. ' This ordinance was 
passed and approved, and the approximate estimate of 
the cost of the work made. It defines and sets forth 
the limits of the benefit district, and closes with a 
prayer that the court find and determine the validity of 
that ordinance and as to whether or not the respective 
tracts of land in the benefit district shall be charged 
with the lien of the work.. 

This validity-testing ordinance case came on be- 
fore the court for hearing January 3, 1917, several 
days before the trial of this case began, and a judgment 
was entered which, among other things, recited th^t 
''the court finds, orders and adjudges that Ordinance 
of Kansas City No. 28181, approved November 4, 1916, 
entitled: An ordinance to open, widen and establish 
Twenty-third Street from the east line of New Brook 
Street to the westerly line of Southwest Boulevard and 
condemning the necessary land therefor; providing for 
and authorizing the work of grading and regrading 
Twenty-third Street, Fairmount Avenue, Terrace Street, 
etc., is in all respects valid and legal; and that the 
work be done in the manner and to the extent provided 
in said ordinance and a contract for said work, and 
that the same be paid for in special tax bills was ex- 
pressly authorized.'' The judgment further provided 
that the proposed lien of the special tax bills for said 
work should be a valid lien against the property as- 
sessed to pay for said work. 

Oral testimony was offered by Kansas City, show- 
ing that the Twenty-third Street TraflScway was a neces- 
sity; that the proposed depression in Fairmount Ave- 



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In re 23rd Street y. Crutcher. 



nue, to meet the new grade, will make cuts in front of 
private property on Fairmount, ranging from less than 
one foot near Twenty-fourth Street to forty feet at 
Twenty-third Street, and on Terrace Street 26.8 feet 
. at Twenty-third, tapering out to nothing near Twenty- 
fourth Street. 

Each claim for damages by change of grade was 
given a number and considered in connection with the 
street upon which the tract abutted. If a tract was on 
the corner of Twenty-third Street and one of the inter- 
secting streets, it had two numbers and was considered 
in connection with Twenty-third Street ad well as such 
intersecting street. The city introduced real estate 
expert appraisers who inspected the various pieces of 
property involved. These expert witnesses agreed that 
lots on Terrace and Fairmount Avenue would sustain 
damages by the proposed change in grade in Twenty- 
third Street and the intersecting street, caused by this 
improvement. They also testified that the damages 
would be $24,288.53 to claimants on Fairmount Avenue, 
and $21,020.62 to those on Terrace Street. 

Appellants' witnesses estimated the damages at 
$65,032.70, and explained the reasons therefor, that 
unless the intersecting streets were graded as planned 
in the improvement, the approaches to appellants' lots 
would be destroyed. 

The following instructions given by the court are 
complained of: 

Instruction No. 6 told the jury that they were to 
write thirteen separate verdicts in the case. 

Instructions 10 and 13 told them they must separate- 
ly assess the benefits arising from each particular im- 
provement. 

Instructions Nos. 14 and 15 told the jury that if the 
total benefits from the proposed grading of any of 
the intersecting streets do not equal in dollars and 
cents the amount of damage to the lots on such side 
street, the jury need proceed no further as to such in- 



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266 SUPREME COURT OF MISSOURI. 

In re 23rd Street t. Crutcber. 

tersecting street, except to so report to the court as to 
such intersecting streets. 

Instructions Nos. 16 and 17, in effect, told the jury 
that only the property abutting on Twenty-third Street 
might recover damages from the grading of that street. 

The jury made findings of damages and benefits as 
to each feature of the improvement specified in the 
ordinance, except as to the damages from the grading 
of Fairmount, Terrace, Holly and East Streets, and 
found that the damages exceeded the benefits upon each 
of such streets. No damages were awarded claimants 
on such four intersecting streets, the effect being to 
leave the improvement of such streets out of the pro- 
ceeding entirely, but to sanction and approve all other 
features of the proposed improvement. 

Claimants owning property on Madison, Summit, 
Monitor, Belleview, West Prospect, Circle and Mercier 
Streets, where the changes were relatively slight, were 
awarded damages, and the work ordered in the ordi- 
nance was authorized to be done, but the remaining 
four cross streets were left as before. 

Appellants contend: (1) that, the improvement 
being *'one general public improvement" must stand 
or fall as such; (2) that the charter and ordinance re- 
quired the jury to ascertain and report the damages 
caused to appellants ' property by the improvement as a 
whole and forbade a severance of the improvement into 
parts; (3) that the judgment was not responsive to the 
charter, to Ordinance No. 28181, nor to the resolutions of 
the Board of Public Works, and the court therefore 
was without jurisdiction to render it; (4) the city 
and property owners in the benefit district were es- 
topped to question the validity of any portion of Ordi- 
nance No. 28181, because of the previous judgment, to 
which specific reference has been made in this state- 
ment. These contentions, to which may be added the 
objections to instructions given, embody appellants* 
assignments of error. 



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In re 23rd Street v. Crutcher. 



I. Appellants insist that Ordinance No. 28181, 
with its accompanying documents, upon which this con- 
troversy centers, constitutes the petition in this case; 
and that but one cause of action was therein stated, 
which consisted of the contemplated improvement as an 
entirety. The conclusion, although some- 
ST™S! what figurative in form, is not foreign to a 
practical interpretation of . the ordinance 
and finds support in City of Tarkio v. Clark, 186 Mo. 
285, in which the facts were not dissimilar to those at 
bar, and the issues were sufficiently parallel to render 
the ruling at least persuasive. Whether it be or not, 
the provisions of the ordinance interpreted in the light 
of the purpose of the improvement will enable It to be 
determined whether its provisions are to be construed 
together as component parts of a harmonious whole 
or as separable powers which may be enforced or aban- 
doned, as the tribunal empow^ered to execute them may 
determine. The ultimate purpose of the improvement 
was the establishment of a trafficway or great artery 
of transit between the two adjacent cities. The munici- 
pal assembly clearly cognizant of the purpose in view, 
in framing the ordinance, employed terms therein com- 
prehensive of the territory to be aflfected and specific 
as to the streets. It was therefore not the improving 
of Twenty-third Street, and in addition any of the in- 
tersecting streets, less than the entire number enumer- 
ated, that was to constitute a compliance with the 
ordinance, but of Twenty-third Street, and all other in- 
tersecting streets named. To illustrate : The ordinance 
provided that eleven intersecting streets should be 
graded or regraded so as to constitute approaches to 
the proposed trafficway. The verdict and judgment of 
the circuit court eliminated four of these, to-wit. Fair- 
mount Avenue, Terrace Place, and Holly and East 
Streets. This constituted but a partial enforcement of 
the ordinance, in that it construed its provisions, not 
as constituting one improvement, but as being separable. 
and capable of enforcement by piecemeal, at the dis* 



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268 SUPREME COURT OP MISSOURI. 

- 

In re 23rd Street v. Crutcher. 

cretion of the court. The ordinance, measured by every 
rule of construction, which includes not only its evident 
purpose, but its context and subject-matter, was not 
thus intended to be enforced. If the intersecting streets 
named could be omitted, then all of same could have 
been omitted. That it was intended, therefore, that 
the separate improvements comprised in the ordinance 
should constitute an entirety, seems beyond question. 
This being true, the circuit court had no authority to 
receive a verdict or render a judgment which ignored 
any of the essentials of the ordinance required to be 
included therein. As applied to the facts at bar, the 
court could not in the ascertaining of damages and 
benefits eliminate from its consideration the four in- 
tersecting streets named. 

Section 16 of Article 6, Charter of Kansas City, 
1909, set forth in the statement, under which it was 
sought to ascertain the damages and benefits, has been 
construed in Kansas City v. Woerishoeflfer, 249 Mo. 1, 
as authorizing an omnibus proceeding such as was ren- 
dered necessary by Ordinance No. 28181, where the 
purpose was to form one general public improvement. 

Statutes of other States, similar in their material 
features to that at bar, have been upheld which provide 
for a combination in one proceeding of distinguishable 
public improvements. 

In Wells V. Street Commissioners, 187 Mass. 451, 
73 N. E. 554, there was a petition to quash special bene- 
fits on account of the widening and extension of Sum- 
mer and Cove Streets, and the construction of the 
South Terminal Station in Boston, under a special 
statute combining those improvements. The court up- 
held the assessment, saying : * * The constitutionality of 
the statute was considered and affirmed in Sears v. 
Street Commissioners, 180 Mass. 274. We are all of 
opinion that the Legislature, in dealing with the bene- 
fits by the amount of which the assessment should be 
limited, well might treat the changes in the streets and 
the construction of the station as parts of a single 



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Vol. 279 APRIL TERM, 1919. 269 



In re 28rd Street y. Crutcher. 



public improvement constituting one joint enterprise, 
bringing special and peculiar benefits to the estates in 
the vicinity." 

In re Third, Fourth and Fifth Avenues, 49 Wash. 
109, 94 Pac. 1. c. 1078, similar to the instant case where 
the streets named were in one proceeding ordered im- 
proved by widening and cutting, it was stated: ,*' An- 
other point urged by appellants is that it was not law- 
ful for the council to combine in one ordinance and as 
one improvement, two improvements so different from 
each other as the widening feature and the change of 
grade feature of this ordinance. We think this conten- 
tion is not well taken. The ordinance relates to a uni- 
fied subject, the improvement of certain streets, and it 
is immaterial that such subject is capable of subdivision. 
Appellants argue that, in levying the assessment, no 
lot should be assessed for any part of the widening 
except such as is benefited by the widening, and then 
only the amount of its benefit from that source. We 
think each lot should bear its share of the expense to 
the extent of the resultant benefits received by it from 
the improvement considered as an entirety. The widen- 
ing and also the change of grade are simply elements 
which enter into the reasoning by which the final re- 
sult is reached when fixing the amount of benefits to 
each lot.'^ 

In The City of Springfield v. Green, 120 111. 1. c. 
273, which was a proceeding providing for the pavement 
of a large number of streets and alleys, the Illinois 
Supreme Court said: '*The ordinance is also assailed 
on the ground that it embraces more than one improve- 
ment. We do not think this is true, in point of fact. 
While many streets and parts of streets are embraced 
in the scheme of improvement adopted by the city, yet 
we regard them all as but parts of the same improve- 
ment. The city authorities, in adopting the ordinance, 
must have found, as a matter of fact, that these streets 
and parts of streets were so similarly situated, with 
respect to the improvement proposed to be made, as 



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270 SUPREME COURT OP MISSOURI. 

In re 23rd Street y. Crutcher. 

to justify treating them as parts of a common enter- 
prise and single improvement, and from the record 
before us we think they were justified in doing so.'* 

As illuminative of tie same doctrine under a 
different state ot facts, see City of Bloomington v. 
Reeves, 177 111. 1. o, 168. 

The ruling ol this Court is apposite, in Shaffner 
V. City of St. Louis, 31 Mo. 264, based as it is upon 
facts similar to tho«e at bar, and holding that a jury in 
ascertaining damages and benefits shall be limited to 
the ordinance authorizing the improvement. TEe court's 
opinion, expressed ivith that directness, characteristic of 
the style of Judge Scott, the writer, is, so far as per- 
tinent to the issue here involved, as follows: **The 
proceedings were commenced under one ordinance di- 
recting the street to be opened, and before they were 
finished the lines of that street were altered by another 
ordinance, and yet the proceedings, though in conform- 
ity to the latter ordinance, were continued under the 
original notice which required them to be under the for- 
mer one. In a matter of this kind, where all the own- 
ers of the property benefited by the opening of a street 
are to be taxed, it is impossible for the courts to as- 
certain how the variation of the line of the street will 
affect them. We cannot say that the alteration was 
not a material one; the circumstances forbid it. Some 
who might have acquiesced in the street as originally 
established; would have objected, perhaps, had they 
been aware of the change. The history of this proceed- 
ing shows how unwise it is to depart one iota from the 
law in condemning property for public use, when a 
few of the neighbors are by the law compelled to pay 
for the property condemned. The seeds of litigation 
in such cases will be sown broadcast, where any ground 
is given for the opinion that the requisite legal steps 
have not been taken in order to condemn the property 
and to assess the benefits. We are of the opinion that 
after the line of the street as originally established 
had bef n changed by an ordinance passed subsequently 



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Vol. 279 APKIL TERM. 1919. 271 

In re 23rd Street v. Crutcher. 

to the beginning of the proceedings to condemn private 
property for public use and to assess benefits, the 
mayor could not proceed under the original notice, but 
the proceeding first commenced should have been aban- 
doned, and a proceeding de novo should have been had 
under another notice such as is required by the amend- 
ed charter. The judgment is reversed. The other judges 
concur." 

The Woerishoeffer case, 249 Mo. 1. c. 31, hereto- 
fore referred to, distinguishes the Shaffner case, but 
not in regard to the ruling doctrine announced in the 
latter, that proceedings which deprive an owner of his 
property must be conducted in strict conformity with 
the act which authorizes them, and if not so conducted 
they are void. 

In Leach v. Cargill, 60 Mo. 316, we held tJiat pro- 
ceedings of the nature here involved were in invitum, 
purely statutory, and hence to be strictly construed. 
Further, confirmatory of this ruling, we held in St. 
Louis V. Koch, 169 Mo. 1. c. 591, that every material 
requirement of the statute authorizing such proceed- 
ings must be strictly complied with. It will suffice in 
the face of the facts, as construed in the light of the 
cases cited, to say that Ordinance No. 28181 did not con- 
template in the construction of the trafficway the im- 
provement of Twenty-third Street, to the exclusion of 
the improvement of the intersecting streets named. 

II. The court, in giving Instruction 6, in effect, 
told the jury that they should '* write or cause to be 
written 13 separate verdicts as to the damages and 
benefits, one for each proposed improvement. These 
separate verdicts may, when written, be bound to- 
gether,'^ etc.- This was misleading. There 
v^u^ were not thirteen separate improvements. 
There was but one general improvement as 
specified in Article 6, Section 16, of the Charter, and in 
the title and in Section 11 of Ordinance 28181. While 
this constituted but a misdirection as to the mechanical 
preparation of the verdict, it was nevertheless error. 



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272 SUPREME COUET OF MISSOURI. 

In re 23rd Street v. Crutcher. 

Instruction numbered 10, given by the court, told 
the jury **that the damages and benefits, if any, from 
the grading of Twenty-third Street and each of the 
intersecting streets proposed in this proceeding, must 
be considered and determined separately by the jury, 
as to each of such streets." Under the construction 
placed upon the ordinance authorizing this improve- 
ment, this instruction was calculated to mislead the 
jury. It was immaterial what the benefits might be 
from a particular part of the general improvement. ' 

In re Third, Fourth, and Fifth Avenues, 49 Wash. 
109, 94 Pac. 1075, 1078, construing a charter provision 
similar to ours, the Supreme Court of Washington 
held, ''that in levying the assessment no lot should 
be assessed for any part of the widening except such 
as is benefited by the widening and then only the amount 
of its benefits from that source. We think each lot 
should bear its share of the expense to the extent of 
the resultant benefits received by it from the improve- 
ment considered as an entirety. The widening and 
also the change of grade are simply elements which 
enter into the reasoning by which the final result is 
reached when fixing the amount of benefits to each 
lot.'' 

The improvement in the instant case was an en- 
tirety so far, at least, as it related to the change of the 
grade of Twenty-third Street and its intersecting streets. 
If any part of such grading was illegal, the whole must 
fail, as was held in City of Bloomington v. Reeves, 177 
111. IfiS; if the conditions precedent had all been com- 
plied with, the improvement would have stood as a 
whole and the grading benefits to pay the grading dam- 
ages assessed as a whole, because of the character of 
the improvement. As to the benefits assessed to pay 
the damages awarded for the lands taken in the condem- 
nation proceeding, the charter and the ordinance in this 
case provide that they may be paid in ten annual in- 
stallments; while the benefits assessed to pay the 
damages awarded for the change of the grade of the 



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Vol. 279 APRIL TERM, 1919. 273 



In re 23rd Street v. Crutcher. 



varioua streets must be paid in sixty days from the 
confirmation of the verdict. Owing to the different 
times of payment fixed for each, the amounts of the 
two different benefit assessments can not be mixed and 
assessed as a whole, but must be kept separate by the 
jury in rendering its verdict and judgment thereon 
entered accordingly by the trial court. 

To a like effect was the ruling in Alden v. City of 
Springfield, 121 Mass. 27, a proceeding to revise a 
special assessment because of a street opening, where 
the court said: **The question was as to the benefit 
to the petitioner's land by the whole construction of 
the street, and the petitioner had no right to introduce 
evidence as to the benefit resulting from any particular 
piece- of work done in the course of such construction." 

In Lincoln v. Street Commrs., 176 Mass. 210, which 
was a proceeding to quash a special assessment for con- 
structing a system of sewers and establishing building 
lines in the City of Boston, in estimating the special 
benefits, the whole improvement was taken as one, in- 
stead of separating the items. The court said: **The 
statute seems to contemplate the course which was 
adopted, so that strictly the question would be, per- 
haps, whether the statute could not authorize it. But 
if we assume the statute to be neutral, the question is, 
whether it can be said as a matter of law, that the 
commissioners were not warranted in finding street, 
sewer, and building lines all to be portions of one 
improvement. We are of opinion that they were war- 
ranted in their finding. The different elements are 
combined in the unity of a single though complex de- 
sign.' ' 

Instruction numbered 11, complained of, is as fol- 
lows: **The jury are instructed that they are the sole 
judges of the credibility of the testimony offered in the 
case and the credit which should be given the testimony 

IS— 279 Mo. 



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274 SUPREME COURT OF MISSOURI. 

In re 23rd Street v. Crutcher. 

of any witness who has testified in the case, and the jury 
are riot bound to accept, against their own 
TMtSony. jiidgment and conviction, the statement or 
statements of any witness in the case as to 
damage or benefit to property from the proposed 
improvement." In so far as this instruction may at- 
tempt to authorize the jury to exercise their own judg- 
ment in the finding of a verdict free from any connec- 
tion with the evidence, it is error and in conflict with 
the rule announced in In re Sixth Street, Kansas City, 
V. Morris, 276 Mo. 158. , 

It is complained that error was committed in the 
giving of sub-paragraphs (2) and (3) of 

Benefits to instruction 13, which are as follows: 

Particular 

Lota. ''(2) The court instructs the jury that 

they have no right to assess any lot or parcel 

of land, in the prescribed benefit district, to pay for any 

of the proposed street improvements, except for such 

of said street improvements, if any, as will actually 

benefit the particular lot or parcel of land assessed 

by the jury; 

''(3) And the jury are instructed that they have 
no right to assess any greater sum against any lot or 
parcel of land in the prescribed benefit district than it 
will be actually benefited by the particular improvement 
for which the jury assesses the same." 

These sub-divisions are contrary to the spirit and 
intent of Article 6, Section 15, of the Charter, and 
Section 11 of Ordinance No. 28181, which was intended 
to unite all of these elements of improvement into one 
proceeding. 

As contended by appellants, a single improvement 
can not be dissected and the benefits assessed or with- 
held according to technical reasoning, but must be as- 
sessed in view of the fact that the various elements 
are united in a single improvement. 

The refinements of reason cannot split a ** general 
improvement" into unbeneficial parts; and no attempt 
should be made to accredit any one portion of this 



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Vol. 279 APRIL TERM, 1919. 275 



In re 23rd Street v. Grutcher. 



improvement with benefits apart from the others, ex- 
cept to separate the grading benefits from the con- 
demnation benefita, as above stated. 

Instructions 14 and 15 contain the same objection 
and will be considered together. They read as f oUows : 

**14. If the jury shall consider and determine 
that the total benefits from the proposed grading of 
any of the intersecting streets do not equal, 
^**^*ov^' ^^^^' ^ dollars and cents, the amount of dam- 
Benefits. £tge to the lots on such side street, then 
the jury need proceed no further as to such 
intersecting street, except to so report to the court as to 
such intersecting street or streets, if any. 

**15. If the jury shall consider and determine that 
the total benefits from the proposed grading of Twenty- 
third Street do not equal, in dollars and cents, the 
amount of damage to the lots abutting on Twenty-third 
Street, then the jury need proceed no further, except to 
so report to the court as to said Twenty-third Street." 

These instructions are subject to the criticisms 
heretofore stated, as applicable to other instructions, 
and are contrary to the law governing cases of this 
character. They contravene the last sentence of the 
instruction numbered one, which properly told the 
jury that they were **not at liberty to pass on the 
question as to whether there is a public necessity for 
the proposed proceeding, that being a matter within the 
discretion of the Common Council, which has already 
been determined." In other words, the court an- 
nounced in this instruction that the improvement was 
necessary as a matter of law, while instructions 14 and 
15, in effect, told the jury that they might find that 
portions of the improvements were not needed suflB- 
ciently to require paying for them. 

In a former instruction, the jury had been given 
the whole law on the question of damages exceeding 
benefits, and told that if all of the damages should 
exceed the benefits, they should go no further, but re- 
port, et^. Instructions 14 and 15, therefore, conflicted 



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276 SUPEEME COUBT OP MISSOURI. 

In re 23rd Street v. Crutcher. 

therewith, and relieved the jury of the necessity of 
finding that all of the benefits taken together exceeded 
all of the damages taken together, and authorized the 
jury to ignore any part of the improvement. 

Instructions 16 and 17 contain the same error, and ' 
will be considered together. They read: 

**16. The jury are instructed that the only prop- 
erty entitled to damages, if any, for the grading of 
Twenty-third Street, is the property abut- 
S^^^!**°* ting thereon, and that the property sit- 
uated upon the intersecting streets in this 
proceeding, not abutting on said Twenty-third Street, is 
not entitled to any damages, if any, occasioned to such 
property by such grading of said Twenty-third Street. 

**17. The court instructs the jury that the owners 
of lands on the intersecting streets, not abutting on 
Twenty-third Street, are not entitled to any damage 
they may sustain by the proposed cut on Twenty-third 
Street. ^^ 

Appellants contend that these instructions involve 
a misapprehension of the meaning and purpose of 
the charter and ordinance provisions, as applied to 
the case at bar. 

The charter. Article 6, Section 16, gave authority 
for the improvement in this case of Twenty-third Street 
with intersecting streets for the purpose ot opening, 
grading, regrading and the building of viaducts or tun- 
nels, and Ordinance No. 28181 stated that it was drawn 
under authority of said article and section. The char- 
ter and ordinance made Twenty-third and the intersec- 
ting streets one for the purpose of the improvement, 
and the authorities which hold that the benefits nee<1 
not be accredited to any particular part of the improve- 
ment, must be deemed to decide that the issue is, 
whether the complainant's property is damaged by the 
improvement as a whole. The authority of the charter 
cannot be dissipated and the ordinance frustrated by 
instructions based upon the immaterial issue of whether 



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Vol. 279 APRIL TERM, 1919. 277 



In re 23rd Street v. Grutcher. 



property abutting upon the proposed improvement is 
damaged by one part of the improvement or another. 

The land of all of the appellants was and will be 
aflfected by this general improvement. The improvement, 
under the limitations stated, is an entirety. If any 
part of same damages appellants, they are entitled to 
recover. 

These instructions, therefore, are misleading and 
submit an issue not presented by the pleadings. 

Appellants contend, and the facts show, that after 
the cutting down of Twenty-third Street, appellants 
cannot bring vehicles to their houses from the north 
via Twenty-third Street, because of the, deep cut, and 
cannot bring them from the south because of the steep 
grade. Fairmount and Terrace will become cul de sacs, 
and appellants' property isolated; that these streets 
will be to all essential purposes vacated; that ap- 
pellants have an easement m the access to their prop- 
erty, which this judgment erroneously destroys without 
compensation. 

Glaessner v. Brewing Assn., 100 Mo. 508, was a 
suit brought to enjoin the Anheuser-Busch Brewing 
Association from constructing and maintaining a rail- 
road on, over and across Broadway, Seventh and Ninth 
Streets in St. Louis, which run north and south. The 
track was to be laid between Dorcas and Arsenal 
Streets, which run east and west. Plaintiff's property 
was seventy or seventy-five feet north of the proposed 
railroad and on the west side of Broadway. His com- 
plaint was that the railroad diverted travel from the 
front of his premises and interfered with his easement 
of ingress and egress. The court held that plaintiff w^as 
entitled to a permanent injunction, saying: *'That the 
public travel will and must be greatly obstructed is 
clear, and if such an ordinance as this is to be upheld 
there is no telling where such municipal legislation will 
end. The trust reposed in the City of St. Louis to 
regulate the use of the streets is for the purpose of 
keeping them open and free to all, and we can but 



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278 SUPREME COURT OF MISSOURI. 

In re 23rd Street v. Crutcher. 

conclude that the ordinance in question violates that 
trust and Iq void. The city having no rightful author- 
ity to enact the ordinance, the switch tracks constructed 
thereunder on the public highway would be a public 
nuisance ; and in order for the plaintiff to maintain this 
injunction he must show some special injury over and 
above the general injury to the public. Some of the 
evidence offered by the defendant is that the construc- 
tion of the switch will not decrease the value of the 
plaintiff's property. On the other hand it is alleged and 
showed that plaintiff's property is within seventy-five 
feet of the proposed crossing, and the weight of the 
evidence is that these proposed crossings will have the 
effect to divert the travel to streets west of the brew- 
ery, and thereby decrease the value of the plaintiff's 
property, and take away some of the trade which he at 
this time enjoys. The evidence satisfied the trial 
court and it satisfies us that plaintiff will suffer an 
injury which entitles him to maintain this suit. The 
judgment is aflSrmed. All concur." 

In Downing v. Corcoran, 112 Mo. App. 645, plain- 
tiff brought suit to enjoin defendant from placing and 
maintaining obstructions in a certain private road so 
that plaintiff's free use of the road was interfered with. 
The parties both required a way to the public road. 
The plaintiff made use of a passway, and afterwards, 
at the instance of defendant, it was converted into a 
private road and became free to the use of the public, 
but defendant prevented its use by obstructions. The 
Kansas City Court of Appeals held plaintiff entitled 
to the injunction, saying: **In support of his objection 
to the conclusions of the trial court, defendant states 
several correct propositions of law and cites authority 
in connection therewith, but we are clear that the 
facts of the case leave them without just application. 
It is contended that plaintiff is not entitled to connec- 
tion with a public highway at every point along his 
line. That may be granted, especially if having connec- 
tion at every point would inconvenience some other 



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Vol. 279 APEIL TERM, 1919. 279 



In re 23rd Street v. Crutcher. 



person. But here, plaintiff had a right to reasonably 
convenient points of connection and it was wrong in 
defendant, without excuse or right to prevent his use 
of such points, notwithstanding there possibly may 
have been other places where defendant could have 
gotten through. '^ 

In Putnam v. Boston & Providence Railroad, 182 
Mass. 351, 1. c. 354, the law is thus stated: ''It never 
has been held that one whose access to a general sys- 
tem of public streets in a city or town is entirely 
cut off, suffers only the same kind of damage by the 
discontinuance of a street as one of the public who is. 
merely obliged to travel further through public streets 
to reach his destination. So to hold would be to extend 
too far the doctrine previously stated in this opinion, 
which as now established sometimes causes hardships, 
although it rests on sound principles and generally ac- 
complishes justice. . . . We know of no adjudica- 
tion, nor of any sound principle that precludes the peti- 
tioners from recovering such damages as they suffered 
from the deprivation of access from their property to 
the public streets as a necessary result of the change 
ordered by the aldermen. It will seldom happen that 
the execution of such an order will cut off access in all 
directions to the public streets of a city, which before 
had been enjoyed as an attribute of the property. When 
It does happen, in a case in which the statute makes 
compensation for damages, such damages are recover- 
able. '^ 

The rulin«gs of our own and of other courts, upon 
the effect of the vacation of a street affording access 
to property, may be epitomized in the general rule 
announced in 1 Lewis on Em. Dom. (3 Ed.) sec. 206, 
p. 387, and sec. 123, p. 190, that the owner of property 
thus affected has a right of access in both directions 
which extends as far, at least, as the next connecting 
highway. A like doctrine is announced in 2 Elliott on 
Roads and Streets (3 Ed.), sec. 1181 and cases. The 
owner's remedy, when deprived of such a right, has 



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280 SUPREME COURT OF MISSOURI. 

Powell V. Bowen. 

been clearly defined by this court in the following cases : 
Gorman v. Railroad, 255 Mo. 483; Press v. Penny & 
Gentles, 242 Mo. 98; Rude v. St. Louis, 93 Mo. 413. 
Cases pro and con are cited in the briefs of opposing 
counsel. We have reviewed these with some degree of 
care, reaching the conclusion that error was committed 
by the trial court in its rulings herein; and that this 
case should be reversed and remanded, to be proceeded 
with as herein indicated. It is so ordered. 

All concur; Bond, 0. J., in the result. Woodson, J., 
absent. 



BELLE POWELL et al., AppeUants, v. MARY BOWEN 

ei al. 

In Banc, July 7, 1919. 

1. DEED OF BiABBIED WOMAN: Defectlye Acknowledgment: 
Prior to 1883. A deed made by a married woman, the certificate 
of acknowledgment of which simply recited that she and her hus- 
band "personally appeared before me, a notary public in and for 
said county, both being personally known to me and acknowledged 
the execution of the annexed deed/' made when the statute (Sees. 
680, 681, R. S. 1879) requiring that any offlcer taking the ac- 
knowledgment of a married woman to any deed of conveyance of 
real estate must examine her separate and apart from her hus- 
band, and so certify in the certificate of acknowledgment, and 
further certify that she executed such conveyance freely and with- 
out compulsion of her husband, was in force, was void. 



: Abandonment of Land. The defense of abandonment, dis- 
associated from other defenses, such as adverse possession or 
failure to pay taxes, has never been recognized at common law as 
affecting title to real property; for at common law title can nei- 
ther be lost nor gained by abandonment operating alone. 

: Laches and Estoppel: Suit for Interest. Neither laches nor 

estoppel in pais is as to her real estate imputable to a married 
woman who ever since the making of her void deed in 1882 has 
been under the legal disability of coverture, the reason being that 
prior to the Married Woman's Acts of 1889 the right of possession 
ot a married woman's lands was in her husband and was a vested 



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Vol. 279 APRIL TERM, 1919. 281 



Powell Y. Bowen. 



right which was not destroyed by those acts, and she could tfot 
before or since have maintained an action for possession. Since 
the Act of 1897 she could have maintained an action to determine 
interest, but was not compelled to do so, but that act did not di- 
vest the husband's existing right to possession, or permit her to 
sue for possession during his life. 

Held by GRAVES, J., dissenting, that the Act of 1897 afforded to 
a married woman the right to assert her interest in land, and 
a remedy; and if she stood by for eighteen years after its 
enactment and saw valuable improvements made upon the 
land she is barred by estoppel in pais from asserting such in- 
terest; and estoppel in pais goes both to the remedy and the 
right, and may be set up as a defense in actions at law and 
suits in equity. 



4. : Estoppel By Covenant in Void Deed. A married woman is 

not estopped to assert her interest in land by a covenant in a deed 
which is void as to her because not acknowledged in the manner 
required by statute. The deed being void, any covenant in its can. 
not be efficacious to produce estoppel. 

5. : Limitations. Neither the ten-year, nor the thirty-one-year, 

nor the twenty-four-year Statute of Limitations was a bar to a 
married woman's suit begun in 1915 to establish her interest in 
land attempted to be conveyed in 1882 by a deed void because it 
was not acknowledged in the manner prescribed by statute, she 
being at the time and ever since under the legal disability of cov- 
erture. There was no time when she was capable of maintaining 
an action for possession, and as no such action can accrue to her 
until her husband's death, the thirtyone-year and the ten-year 
statute has never begun to run as to her, and her suit to estab- 
lish her interest is not barred by the twenty-four-year statute, be- 
cause it was begun in less than twenty-four years after the Act 
of 1897 was passed. 

Held, by GRAVES, J., dissenting, that Section 1881, Revised Stat- 
utes 1909, which antedated the Married Woman's Acts of 1889, 
should no longer be held to except married women from the 
provisions of the ten-year and other statutes of limitations, 
•but the Married Woman's Acts having made her a femme aole^ 
with power to sue for her interest in lands, she should be 
considered discovert, and said Section 1881 should not be held 
to prevent the statutes of limitations from running against 
her. 

6. : : Thirty-year Statute: Obligation to Pay Taxes. As 

between a married woman, whose deed made in 1882, in which 
her husband Joined, was void as to her because not acknowledged 
in the manner prescribed by statute, and who has since been un- 
der the disability of coverture, anl her husband's grantee and 
grantees by mesne conveyances, as the obligation to pay taxes 



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282 SUPREME COURT OF MISSOURI. 

Powell V. Bowen. 

rests up the latter, the holders of his lifetime right to possession; 
and hence the thirty-year Statute of Limitations does not apply to 
her in her suit to establish her Interest in the land, she being at 
no time entitled to Its possession. 

7. CHAMPEBTT: Agreement of Attomey to Pay Ck>st. An agree- 
ment by an attorney with a married woman to pay the cost of a 
suit to recover her interest in land, in consideration of a one-half 
Interest In the amount recovered, even if champertous between him 
and her, does not serve to deprive her of relief touching the land as 
against a stranger to the contract. 

Appeal from Pemiscot Circuit Court. — Hon. Sterling H. 
McCarty, Judge. 

Reversed and remanded {with directions). 

Duncan <& Brewer for appellants. 

(1) The deed made by Belle Powell and her hus- 
band, dated Sept. 15, 1882, is null and void and did not 
convey the land in question to Leonard for the reason 
that the certificate of acknowledgment to said deed fails 
to recite that the said Belle Powell was first made ac- 
quainted with the contents of such instrument and ac- 
knowledged said deed on examination separate and 
apart from her husband, and does not recite she execut- 
ed said deed freely and without compulsion or undue in- 
fluence of her husband. 1 Wagner's Statute 1872, p. 275, 
sec. 13, and sec. 14; Linville v. Greer, 165 Mo. 394; 
Mayes v. Price, 95 Mo. 613; Bartlett v. O'Donohue, 
72 Mo. 563; Goff v. Roberts, 72 Mo. 570; Hoskinson 
V. Adkins, 77 Mo. 540; Hord v. Taubman, 79 Mo. 103; 
Rivard v. Railroad, 257 Mo. 164; Laclede Land & 
Imp. Co. V. Goodno, 181 S. W. 412 ; Bagby v. Bmberson, 
79 Mo. 139; Devlin on Deeds (3 Ed.), sec. 107. (2) 
As Belle Powell was married in the year 1870, 
and remained under said coverture from that time 
to the bringing of this suit, plaintiffs are not barred 
by either the twenty-four-year Statute of Limitations or 
the so-called thirty-year Statute of Limitations pled by 
defendant. Dyer v. Wittier, 89 Mo. 81 ; Vanata v. John- 



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Vol. 279 APEIL TERM, 1919. • 283 



Powell V. Bowen. 



son, 170 Mo. 274; DeHatre v. Edmonds, 200 Mo. 267; 
Bone V. Tyrell, 113, Mo. 188; Howell v. Jump, 140 Mo. 
457; Shumate v. Snyder, 140 Mo. 87; Land & Imp. Co. 
V. Epright, 265 Mo. 215; Lewis v. Bames, 199 S. W. 212; 
Graham v. Ketchum, 192 Mo. 15 ; Babcock v. Adams, 196 
S. W. 1118; Smith V. Smith, 201 Mo. 533. (3) Plaintiffs 
are barred neither by laches nor by estoppel. Blodget v. 
Perry, 97 Mo. 273; Bales v. Perry et al., 51 Mo. 453; 
Dameron v. Jamison, 143 Mo. 491 ; Mayo v. Cartwright, 
30 Ark. 407 ; Throckmorton v. Pence, 121 Mo. 50 ; Myers 
V. DeLisle, 259 Mo. 514; Lewis v. Bames, 199 S. W. 
212; Bigelow on Estoppel (3 Ed.), 484; Acton v. Dooley, 
74 Mo. 69; Monks v. Beldan, 80 Mo. 642; Harrison v. 
McEeynolds, 183 Mo. 549; Butter v. Carothers, 223 
Mo. 640; Shannon v. Thompson, 234 Mo. 15; Henry v. 
Sneed, 99 Mo. 425; Rannells v. Gerner, 80 Mo. 483. (4) 
The deed of a married woman defectively acknowl- 
edged does not operate as an estoppel against her. Dev- 
lin on Deeds (3 Ed.), sec. 5486; Drury v. Foster, 2 
WaU. 34; Smith -v. Ingram, 61 L. R. A. 678. (5) The 
doctrine of champerty and maintenance is not appli- 
cable to this case, for the plaintiffs will not be deprived 
of relief because the contract between plaintiff. Belle 
Powell, and the plaintiff, Bex A. Trimble, may be 
infected with champerty. Euneau v. Rieger, 105 Mo. 682. 
(6) The court erred in refusing instruction number I 
offered by the plaintiffs declaring that under the plead- 
ing and evidence in the case the finding should be that 
the plaintiffs are the owners of the land in question 
and that the defendant, Mary Bowen, was entitled to 
thfe possession of the premises as long as the marital re- 
lation existed between plaintiff. Belle Powell, and her 
husband, John W. Powell. (7) As plaintiff, Belle 
Powell, had the legal title to the land in question under 
the law there could be no abandonment of the title. 
Tiedeman on Real Property (3 Ed.), sec. 516; Corpus 
Juris, p. 10, sec. 14; Barrett v. Kansas Coal Co., 70 
Kan. 649; Kreamer v. Boneida, 213 Pa. 80; Tarver v. 
Deppen, 132 Ga. 804; Tennessee Oil Co. v. Brown, 131 



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284 SUPEEME COURT OF MISSOURI. 

Powell V. Bowen. 

Fed. 699; Calledonia County Grammar School v. Kent, 
77 Am. Dec. (Vt.) 880; Arnold v. Cramer, 41 Pa. 
Super, 13. 

G. G. Shepard for respondents. 

(1) Under the peculiar facts in this case both the 
twenty-four and thirty-one-year Statutes of Limita- 
tions are effective and are a complete bar to plaintiflf's 
cause of action to quiet the title to the land in question. 
Faris v. Moore, 256 Mo. 123 ; Belfast Inv. Co. v. Curry. 
264 Mo. 483; DeHatre v. Edmonds, 200 Mo. 246; 
Collins V. Pease, 146 Mo. 139 ; Fairbanks et al. v. Long, 
91 Mo. 628. (2) Belle Powell and her husband abandoned 
the land in question in 1882, gave the land no atten- 
tion from that date up to the time or just prior to 
the time this suit was filed, and such abandonment com- 
pletely defeats their right of recovery in this case. 
Tayon v. Ladew, 33 Mo. 205; Shelton v. Horrell, 232 
Mo. 358; Carson v. Verthoed & Jennings Lumber Co., 
192 S. W. 1022. (3) Suits to quiet title under Section 
2535 are not possessory actions, and tKe statute as 
first enacted did not contemplate recovering possession 
of the land to which the title was to be quieted under 
said section, therefore a married woman from and after 
the enactment of said section had a full and complete 
cause of action in her behalf for the purpose of quieting 
title to land, as did any other person, even though she 
was a married woman prior to the enactment of the 
Married Woman's Enabling Act and remained a married 
woman until the time of instituting suit. There being no 
exemption clause in the twenty-four or thirty-one- 
year Statutes of Limitations exempting married women 
from the operation of said statute, the courts have no 
right to read into said statute provisions that were not . 
placed therein by the Legislature, therefore said stat- 
utes are as eflfective against married women as against 
other parties. (4) The Married Woman's Enabling Act 
emancipating her and making her sui juris, was encat^d 
in 1889; what is now Section 2535 was first enacted in 



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Vol. 279 APRIL TERM, 1919. 285 



Powell V. Bowen. 



1897, and it must be presumed that at the time the Legis- 
lature passed the act for quieting title to land it had in 
mind the Married Woman's Act, as well as the twenty- 
four and thirty-one-year Statutes of Limitation, and 
passed the statute authorizing the quieting of titles as 
much for the benefit of married women who could not 
bring a possessory action by reason of the fact that 
their husbands' right to possession had attached prior 
to the married Woman's Act, and there being no exemp- 
tion in behalf of married women in either the twenty- 
four or the thirty-one-year Statutes of Limitation, 
and there being nothing said in the act to quiet title 
in regard to married women, it must be presumed that 
the Legislature had in mind the fact that married 
women in many instances could not bring a suit to 
recover possession of land, therefore, it was necessary 
that they have the right to bring a suit quieting the title 
and showing their interest in the land even though they 
were not entitled to the possession thereof. (5) The 
reading of Section 1881 clearly contemplates that the 
bringing of an action asserting title has the same effect 
insofar as arresting the Statute of Limitaion is con- 
cerned as bringing a possessory action. (6) Belle Powell, 
by reason of her laches and failure to look after said 
land or claim any right, title of interest therein, per- 
mitting the parties claiming to own said land to make 
expensive and valuable improvements thereon, is now 
estopped to come in at this late day and claim said 
land in its improved condition. And this condition pre- 
vailing at the time plaintiff, Belle Powell, made hei 
deed to her co-plaintiff, Bex A. Trimble, he is likewise 
estopped. Tennent v. Union Life Insurance Co., 112 S. 
W. 754; Toler v. Edwards, 249 Mo. 152; Shelton v. Hor- 
rell, 232 Mo. 358; Butter v. Carothers, 223 Mo. 631; 
Powell V. Powell, 267 Mo. 117; Moreman v. Talbot, 55 
Mo. 392. (7) Under the facts in this case the doctrine of 
champerty and maintenance applies with all its vigor 
and plaintiffs cannot maintain this suit. 6 Cyc. 850; 
Duke V. Harper, 66 Mo. 57; Bent v. Triest, 86 Mo. 475. 



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286 SUPREME COURT OF MISSOXJRI. 

Powell T. Bowen. 

FARIS, J. — This is an action to determine interest 
in a certain parcel of real estate situate in Pemiscot 
County. Upon the trial below defendants had judgment, 
and plaintiffs, after the usual motions, appealed. 

The facts are few and simple. Plaintiff Belle 
Powell married one John W. Powell on the 24th day 
of March, 1870, and ever since has been and was at the 
time of the bringing of this suit, on the 4th day of May, 
1915 a married woman. While under all the disabilities 
of coverture, plaintiff Belle Powell (hereinafter for 
brevity, except where otherwise stated, referred to sim- 
ply as *' plaintiff") acquired title to the land in dispute. 
On the 15th day of September, 1882, plaintiff, together 
with her husband attempted to convey this land by 
warranty deed to one Mark T. Leonard. The form of 
deed used in this attempted conveyance was not the gen- 
eral form of warranty deed in common use at that 
time in the State of Missouri, but seemingly this in- 
strument followed an Indiana form. No point is made, 
however, upon any portion of this instrument, except 
the acknowledgment appended thereto which is al- 
leged to be defective. This acknowledgment constitutes 
the sole ground and raison d'etre of this action. Omit- 
ting venue, signature and seal of the oflScer taking the 
same, all of which are conventional and are not attacked, 
the acknowledgment to this deed reads thus: 

^* Before me Fred P. Leonard, Notary Public in 
and for said county, this 15th day of September, 1882, 
personally appeared the within named Belle Powell 
and John W. Powell, both being personally known to 
me and acknowledged the execution of the annexed 
deed." 

A part of the land in controversy was, at the 
time of the above attempted conveyance thereof, in 
cultivation and in the possession of the grantors. The 
grantees in the above instrument of conveyance— we so 
denominate it for convenience — thereupon took posses- 
sion of this land, and they and their mesne grantees con- 
tinued in possession, and were in possession thereof on 



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Vol. 279 APRIL TERM, 1919. 287 



Powell T. Bowen. 



the 4th day of May, 1915, when this action was brought. 

The defendants derive their paper title from the 
above mentioned conveyance to Mark T. Leonard. 
Leonard thereafter conveyed the land to one Willis 
Charles. Willis Charies gave a mortgage thereon to 
said Mark T. Leonard, which mortgage being foreclosed, 
the land was sold by the sheriff and purchased by one 
John Wilks, who entered into possession of the same 
and continued in possession thereof till his death. Upon 
the death of Wilks, the land was duly partitioned among 
his heirs, and the part here in .dispute was set off 
to his daughter Mary, intermarried with one William J. 
Bowen, who are the defendants herein. 

The several defenses interposed upon the trial will 
be summarized in the opinion, and no necessity exists 
for lengthening this statement by a recital of them here. 

Upon the trial, the testimony of plainiff Belle 
Powell was offered in evidence by deposition. Among 
other things shown therein was the nature of the con- 
tract made by plaintiff Belle Powell with her co-plaintiff 
Bex A. Trimble. Touching this contract, plaintiff Belle 
Powell said in her cross-examination : 

''I received information about March of this year 
from Bex A. Trimble that led me to believe that I 
could recover this land. Bex A. Trimble is one of the . 
lawyers representing me in this case. He was to have 
one half of (sic) 50% of any land recovered by suit or 
compromise. Mr. Trimble and the lawyers with whom 
he is associated in this matter are to pay all costs and 
expense and to hold me harmless in regard to the costs 
in this suit, or any suits that might be brought for this 
land or any part of it.'* 

This plaintiff further testifies that she sold the 
land to Mark T. Leonard, and that after she sold 
it to Leonard she ''didn't have anything further to 
do about it," and that she had ''never paid any taxes 
on it from that time, since she considered that she had 
no further interest in it and abandoned all claims to 
it." As a part of plaintiffs' case they offered a quit- 



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288 SUPREME COURT OF MISSOURI. 

Powell T. Bowen. 

claim deed, dated April 30, 1915, from Belle Powell and 
her husband, John W. Powell, conveying to plaintiff Bex 
A. Trimble an undivided one-half interest in the land 
in dispute and other lands. 

If any further facts shall become necessary to an 
understanding of the points involved, these will be 
stated in the opinion. 

I. The sole source of paper title in defendants, as 
such title is disclosed by the record, is one Mark T. 
Leonard, to whom as stated, plaintiff and her husband 
Ackno led t ^**^^Pt^^ ^^ convey the land in dispute 
by warranty deed bearing date the 15th 
day of September, 1882. At the time plaintiff signed 
and delivered, and attempted to acknowledge the instru- 
ment in question, and for some ten months thereafter 
(See Laws 1883, p. 21) the law in force in this State 
required that any officer taking acknowledgment of 
a married woman to any deed of conveyance of real 
estate must examine such woman separate and apart 
from her husband (Sees. 680, 681, R. S. 1879), and ^so 
certify in the certificate of acknowledgment, and fur- 
ther certify that the wife executed such conveyance 
freely and without compulsion or undue influence of her 
husband. 

Mere casual reference to the acknowledgment of 
the deed of conveyance from plaintiff and her husband 
to Leonard discloses a palpable lack of conformance 
to the certificate of acknowledgment with the law 
then in force. That this deed was void is well settleij — 
in fact, that it is so void is tacitly conceded by defend- 
ants. 

Certain other facts, as shown in part by the fore- 
going statement, are either conceded by the parties 
or they are conclusively shown by the record. These we 
epitomize, and re-state below some of them. They are : 
(a) That plaintiff was married March 24, 1870, and 
when she attempted on the 15th of September, 1882, to 
convey the land in controversy to Leonard, was, is 



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Vol. 279 APRIL TERM, 1919. 289 



Powell T. Bowen. 



now, and continuously since said latter date has been, a 
married woman and under all the disabilities of cover- 
ture which existed by law in this State until 1889 (Sec. 
6869, R. S. 1889) ; (b) that neither plaintiff, nor any 
one for her, nor her husband or any one for him, has 
paid any taxes of any kind on this land since September 
15, 1882, but that such taxes, and all of them, have been 
for all the years intervening paid by defendants and 
those under whom defendants claim; (c) that since the 
date last mentioned defendants and those under whom 
they claim title have been in the actual, open, notorious, 
continuous, exclusive, peaceable and adverse possession 
of the lands in controversy; (d) that these lands have 
grown in value by reason of the labor and money ex- 
pended thereon, and on account of money expended 
for betterment and faxes by defendants and those under 
whom defendants claim, from $800, their fair value 
when the attempted conveyance was made to Leonard, 
to $32,000, their present actual cash value; and (e) 
that by the contract of plaintiff Belle Powell with 
her co-plaintiflf Trimble, who is an attorney at law, 
this action is to be maintained and prosecuted by the 
latter at his own expense, and plaintiff Belle Powell is 
to be held harmless from all costs of suit and expenses, 
in consideration of her conveying to said Trimble a half 
interest in the land in controversy. 

To escape the force of the legal conclusion, arising 
from the fact that plaintiff's deed to Leonard, the 
common source of title, is void, defendants urge that 
plaintiffs are barred by (1) the twenty-four-year Stat- 
ute of Limitations ; (2) the thirty-one-year, or so called 
thirty-year, Statute of Limitations; (3) the ten-year 
Statute of Limitations as based upon the Act of 1897 
(Laws 1897, p. 74), and the alleged duty of plaintiff to 
have begun her action within ten years after she was by 
the above act permitted so to do; (4) that the contract 
between plaintiff Belle Powell and her co-plaintiff Trim- 
ble is champertous; (5) that plaintiff Belle Powell 

19—279 Mo. 



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290 • SUPREME COUBT OF MISSOURI. 

Powell V. Bowen. 

abandoned this land from September 15, 1882, till May 
4, 1915; and (6) that plaintiffs have been guilty of such 
laches and acts in pais as to estop them from asserting 
title after more than thirty-two years have elapsed from 
the date of the attempted conveyance, 

11. Coming to consider whether any of the above 
defenses are valid as against plaintiff's paper title, 
we might, without examining them and for the sake 
Laches and ^^ argument, concede that each and all of 
BstoppeL them except that of abandonment would be 
efficacious and would constitute complete defenses as 
against any person sui juris- The defense of abandon- 
ment, disassociated from other defenses, e. g., adverse 
possession, or a failure to pay taxes, has never been 
recognized as affecting title to real property at common 
law. For at common law, whatever the rule may have 
been under the Spanish or Civil law (Tayon v. Ladew, 
33 Mo. 207), title to real property can neither be gained 
nor lost by abandonment operating alone. [Robie v. 
Sedgwick, 35 Barb. 319; Philadelphia v. Riddle, 25 Pa. 
St. 259; Perkins v. Blood, 36 Vt. 273.] Because both 
the defense of laches and that of estoppel in pais may 
be dealt with together, we do not stop to consider again 
whether laches may be imputed even to one sui juris 
when such one puts forward as the basis of his action 
nothing but a pure legal title. [See Kellogg v. Moore, 
271 Mo. 1. c. 193; Garrison v. Taff, 197 S. W. 1. c. 274; 
Newbrough v. Moore, 202 S. W. 1. c. 551 ; Bell v. George, 
204 S. W. 1. c. 519; Chilton v. Nickey, 261 Mo. 1. c. 
243.] 

Touching the insistence of learned counsel for 
defendants that plaintiff is barred by laches and by es- 
toppel in pais, we are constrained to hold, perforce the 
authorities, that neither laches nor estoppel in pais is 
as to her real property imputable to a married woman, 
who was (and who so continued down to the date of 
the judgment herein) under the disability of coverture 
when the amendment of 1889 to the Married Woman's 
Act took effect. [10 R. C. L. 403; Waldron v. Harvey, 



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Vol. 279 APRIL TERM, 1919. 291 



Powell V. Bo wen. 



54 W. Va. 608; Gibson v. Herriott, 55 Ark. 85; 10 
R. C. L. 742; Phillips v. Piney Coal Co., 53 W. Va. 543; 
Crenshaw v. Julian, 26 S. C. 283; Krathwohl v. Daw- 
son, 140 Ind. 1; Colorado Ry. Co. v. Allen, 13 Colo. 
229.] 

The legal reasons for this rule are fairly obvious, 
especially when applied to the concrete case before us. 
By virtue of the Law in force in 1882, and of the 
husband's marital rights at common law, the right of 
possession of the land in controversy was in the husband 
of plaintiff. While such husband lived, plaintiff could 
not have brought any possessory action for the recovery 
of the land in dispute. This right of possession in the 
husband had become a vested right before the amend- 
ment of 1889 to the Married Woman's Act took effect. 
The latter amendment could not divest the husband of 
his vested right of possession, and could not in any 
wise affect the husband's interest therein. No action, 
it is plain, except a possessory action, would have af- 
forded plaintiff any adequate or substantial relief. 
Since plaintiff, during the lifetime of her husband, 
was unable to bring a possessory action, it follows 
that her failure to sue cannot be the basis of laches. 
It is true, that since both the Act of 1889 and the Act 
of 1897 (Laws 1897, p. 74) took effect, plaintiff, at any 
time since the latter date, could have brought an action 
to determine interest, that is, the identical action whicb 
she now has before us. But she was not compelled to 
bring such an action. She was not even compelled to 
bring the present action at the time she did bring it. 
She could have waited till the right of possession of 
the land in her husband terminated by his death, 
and then, within ten years, have brought ejectment. 

In fact, if she had brought an action to determine 
interest in 1897, as soon as the act supra of that year 
permitted her so to do, she would have been compelled, 
by the same token, to have brought another action 
in 1907 and still another in 1917 (or even earlier and 
oftener than in ten-year periods, since laches often 



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292 SUPREME COURT OF MISSOURI. 

Powell V. Bowen. 

operates to bar right of action far short of the period 
prescribed by the applieatory Statute of Limitations). 
Failing to sue thus eariy and often, her rights would 
have been barred and lost to her forever, upon the 
doctrine of laches here contended for. To this absurdity 
it is apparent the defense of laches leads us when 
we try to apply it to the concrete case. 

The right of plaintiflf's husband to the possession 
of the land during his natural life (which right since it 
constitutes an estate of freehold and is in fact an 
estate pur autre vie, has been called a ''life estate,*' 
because its effect upon the remainderman in some 
phases is similar to that of a technical life estate) 
saved and protected plaintiff's interest. It is funda- 
mental that laches, or neglect to promptly bring or as- 
sert a cause of action to the hurt of a potential defend- 
ant, can never be imputed to one who has no right to 
sue, or to a case wherein a suit if brought, would not 
afford any actual relief. Laches is but a manifestation 
of estoppel in pais. The latter is the genus, the former 
merely a species. That estoppel in pais is not imputable 
to a married woman who rests under the disabilities x>f 
^overture stated in the premises is settled by what we 
say above, and by the authorities in this State, and by 
the weight of authority everywhere. [Rannells v. Ger- 
ner, 80 Mo. 1. c. 483; Cockrill v. Hutchinson, 135 Mo. 
67 ; Henry V. Sneed, 99 Mo. 1. c. 425 ; Lewis v. Barnes, 
272 Mo. 1. c. 404; Crenshaw v. Creek, 52 Mo. 98; Mc- 
Beth V. Trabue, 69 Mo. 642; Lowell v. Daniels, 2 Gray 
(Mass.) 161; 10 R. C. L. 742; Barker v. Circle, 60 Mo. 
258; Mays v. Pelly, 125 S. W. (Ky.) 713; Scott v. Battle, 
85 N. C. 184; Morrison v, Wilson, 13 Cal. 495; Cook v. 
Walling, 2 L. R. A. (Ind.) 769, and note.] We need not 
reiterate that we are passing only upon the concrete 
case before us, and not upon a case wherein the wife's 
separate property is involved, or a case wherein the 
woman married subsequent to the time at which the 
amendment of 1889 to the Married Woman's Act took 
effect. 



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VoL 279 APEn^ TERM, 1919. 293 



Powell T. Bowen. 



HE. The above cases are likewise persuasive au- 
thorities against the suggestion that plaintiff was es- 
topped by the covenant in her deed. Obviously, also, 
the plain reason of the thing is against any 
^Jl^^J^^such view. For, if she is to be estopped by 
her deed, then such deed, to be eflScacious in 
producing an estoppel, must of necessity be a good and 
valid deed, and it is axiomatic that a thing which can- 
noj; be done directly cannot, of course, be done indirect- 
ly. The deed here is utterly void. Neither can her cove- 
nant of warranty estop her, for, among other reasons 
against such a view, she was not estopped at common 
law (21 Cyc. 1344) and there was in existence and ap- 
plicatory in 1882 a statute which limited and made void 
the covenant of a liiarried woman, except in so far as 
was necessary effectually to convey her title expressed 
to be conveyed by such deed. [Sec. 669, R. S. 1879.] If 
the deed, as was the case here, was utterly void and 
conveyed no title by reason of such invalidity, then it 
follows that the covenant was void also. It results tnat 
these contentions of defendants must be disallowed. 

IV. Coming to the strenuously and ably urged con- 
tentions of counsel for defendants that plaintiff is- 
barred by the several statutes of limitations noted, 
we are likewise constrained to disallow each and all of 
these. The twenty-four-year Statutes of Limitations and 
the thirty-one-year statute are expressly 
pleaded. The ten-year statute is raised by a 
general denial. [Carson v. Lbr. Co., 270 Mo. 1. c. 245; 
Land & Imp. Co. v. Epright, 265 Mo. 210.] Under the 
facts which were admitted, or which are conclusively 
shown by the proof, plaintiff without any question 
would have been barred by every statute of limita- 
tions pleaded, if she had not been protected by the dis- 
ability of coverture. In fact, it is settled law that if she 
had had an existing cause of action, even the disability 
of coverture alone would not have saved such cause of 
action to her, because we have held that, given an ex- 



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294 SUPREME COURT OF MISSOURI. 

Powell V. Bowen. 

isUng cause of action, neither insanity (Faris v. Moore, 
256 Mo. 123) nor coverture will save such action after 
the lapse of twenty-four years of adverse possession 
(De Hat re v. Edmonds 200 Mo. 246), because so reads 
the statute. [Sec. 1881, R. S. 1909.] The difficulty under 
which we labor in applying the twenty-four-year statute 
to the facts in this case is that since plaintiff was mar- 
ried in 1882, her husband was entitled alone to sue, and 
she has never since that date, or at least until 1897, h^d 
any cause of action. Since plaintiff sued in less than 
twenty-four years after she had a bare cause of action, 
or right to sue, we need not consider a situation wherein 
there is, and will be, no cause of action till the death of 
one who holds a life estate, or an interest tantamount to 
such an estate. All such interests are* saved, covered and 
protected by the outstanding life estate. [De Hat re v. 
Edmonds, 200 Mo. 1. c 273; Lewis v. Barnes, 272 Mo. 
377 ; Herndon v. Yates, 194 S. W. 46 ; Armor v, Frey, 
253 Mo. 1. c. 477; Bradley v. Goff, 243 Mo. 95.] 

In the case of Bradley v. Railroad, 91 Mo. 1. c. 498, 
Brace, J., of this court, expressed the thought with rare 
terseness when he said: '*No cause of action accrued to 
her until her husband's death and until that event the 
•Statute of Limitations did not commence to run against 
her or her heirs." [Dyer v. Brannock, 66 Mo. 391.] 

Nor did the Act of 1897, supra, have the effect to 
divest the husband's right to possession, or to confer 
on the plaintiff the right to bring a possessory action, 
or to bring any other action which would afford either 
actual or present relief to her. Besides, as we have al- 
ready pointed out in discussing other phases of this 
case, such a view would force us to assume the anoma- 
lous position of saying to plaintiff in effect, that she 
must have sued to determine interest within less than 
ten years after the Act of 1897 took effect, and that 
after a judgment in her favor she must continue to 
bring fresh suits to determine interest every ten years, 
while her husband lives, or lose her land as a penalty. 
Discussing a situation precisely analogous, we took oc- 



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Vol. 279 APRIL TERM, 1919. 295 



Powell V. Bowen. 



casion to say, in Division Two, in the case of Herndon 
V. Yates, 194 S. W. 1. c. 48, this: 

''Defendants insist that the Statutes of Limitations 
bar recovery; relying, it seems, upon both the ten- 
year statute and the thirty-year statute for this position. 
Both the time and sort of possession meet for a founda- 
tion for the running of these statutes were shown, we 
may concede for argument's sake ; but learned counsel in 
urging the applicability of these statutes overlook the 
fact that the plaintiffs are remaindermen, and that 
Lutes, who holds the life estate, is yet alive, and 
therefore, since his life estate has not yet fallen in, 
plaintiffs were not compelled to bring this action till he 
died. They are not, of course, protected here by their 
non-age existing up till the time they married, nor by 
their subsequent and yet continuing coverture, because 
they may not tack these disabilities, but they are pro- 
tected by the fact that defendants were (and yet are as 
to a present action in ejectment, entitled to the posses- 
sion of the land in dispute till the holder of the life 
estate shall die. While there are a few cases wherein 
broad language was used which was peculiarly appli- 
cable to the facts in such cases and which language 
from its broadness seems to squint at the view that 
since the right to sue was given to plaintiffs by statute 
in 1897, they must have sued to determine interest with- 
in ten years thereafter (cf. De Hatre v. Edmonds, 200 
Mo. 246, 98 S. W. 744, 10 L. B. A. (N. S.) 86; Burk- 
ham V. Manewal, 195 Mo. 500, 94 S. W. 520; Haarstick 
V. Gabriel, 200 Mo. 237, 98 S. W. 760), and while at 
first blush on some considerations the logic of the thing 
may seem also to point somewhere in that direction, yet 
the rule is sound and free from absurdities which holds 
otherwise (Armor v. Frey, 253 Mo. 447, 161 S. W. 829). 
For we would involve ourselves in an absurd position 
if we were to say that plaintiffs are barred here in 
this action, but that if they had but waited till the life 
estate fell in they would have been entitled to bring 
ejectment at any time within ten years subsequent to 



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296 SUPREME COUET OF MISSOURI. 

Powell V. Bowen. 

such event. The Statute of Limitations could not begin 
to run against plaintiffs till they became entitled to the 
possession of the land in dispute. This right to posses- 
sion being postponed by the protecting life estate they 
were not barred here. [Bradley v. Goff, 243 Mo. 95, 147 
S. W. 1012; Hauser v. Murray, 256 Mo. 58, 165 S. W. 
376; Armor v. Frey, supra.] *' 

.While the situation presented makes the case a 
hard one, apparently working great injustice upon the 
defendants, the rules of law invoked are well settled by 
numerous adjudged cases. These rules are the result of 
following the common law, unchanged till 1889 by stat- 
utes requiring a more logical and fair view of the re- 
lations and property rights of married men and women. 
We cannot change the law as it is written, however 
much the compelling justice of the situation may seem 
to urge. To do so would necessitate the overruling of 
dozens of cases and would bring about an unsettling of 
the law in matters wherein it has been deemed settled 
by Bench and Bar for almost half a century. I See 
Dyer v. Wittier, 89 Mo. 81 ; Howell v. Jump, 140 Mo. 
441; Shumate v. Snyder, 140 Mo. 77; Vanata v. John- 
son, 170 Mo. 269; De Hatre v. Edmonds, 200 Mo. 1. c. 
267; Smith v. Smith, 201 Mo. 533; Land & Imp. Co. v. 
Epright, 265 Mo. 1. c. 215; Graham v. Ketehum, 192 Mo. 
15; Dyer v. Brannock, 66 Mo. 391; Pim v. St. Louis, 
122 Mo. 1. c. 665; Bradley v. Railroad, 91 Mo. 493; 
Hall V. French, 165 Mo. 1. c. 440; Smith v. Patterson, 
95 Mo. 1. c. 529; Babcock v. Adams, 196 S. W. 1118; 
Lewis V. Barnes, 272 Mo. 377.] Many other cases can 
be found, but these should suffice. If to-day, in order 
to meet a seemingly unjust and harsh case, we should 
change the settled law, perhaps to-morrow, again in 
order to meet a harsh and unjust case, we might be 
compelled to return to the law as it is now ruled. 

V. What has been said above herein applies with 
equal force to the so-called thirty-year Statute of Limi- 
tations. Here plaintiff was, as between her and her 



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Vol. 279 APRIL TERM, 1919. 297 



Powell y. Bowen. 



husband, who was entitled to possession of the land 
(whatever her duty may have been to the 
^^^^^ State) under no obligation to pay taxes. It 
may indeed be said that the duty to pay taxes, 
considered merely as a matter between plaintiff and de- 
fendants, was upon the latter as the holders and owners 
of the life estate. Nor was plaintiff, as we have seen, at 
any time in the thirty-six years, which have now 
elapsed, entitled either to make an entry, or to bring 
a possessory action. Hence, it follows that neither the 
ten-year statute, the twenty-four-year statute, nor the 
thirty-year Statute of Limitations applies to her here. 

VI. Upon the question of champerty, the ruling 
must likewise be against the defendants. [Euneau v. 
Rieger, 105 Mo. 1. c. 680.] If the agreement between 
plaintiffs Belle Powell and Bex A. Trimble inter sese be 
champertous, this fact will not serve to deprive plain- 
tiffs of relief touching the subject-matter 
*"^ ^' dealt with in the champertous contract as 
against a stranger to such champertous agreement. 
While there are in some jurisdictions — ^Wisconsin, for 
example — holdings to the contrary, and in favor of the 
view urged on us by defendants, the great weight of 
authority everywhere bears out the rule we state above. 
This State early took the view set forth in Euneau v. 
Rieger, supra. This rule is buttressed both by the rea- 
son of the thing and by the overpowering weight of the 
ruled cases. We see no good or sufficient reason to 
now change either our views upon the point or the rule 
announced thereon. Let this contention also be dis- 
allowed. 

It results that the judgment of the trial court was 
erroneous and for the wrong party. Let this judg- 
ment be reversed and the cause remanded, with direc- 
tions to the trial court to adjudge the title to the land 
in controversy to be in plaintiffs, subject to the right 
of possession of defendants therein, till such time as 
the husband of Belle Powell shall depart this life, if 



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298 SUPREME COURT OF MISSOURI. 

Powell V. Bowen. 

SO it be — in the event of plaintiff's prior death, such 
husband shall have also an estate by curtesy. It is so 
ordered. 

Bond, C. J,, Walker, Blair and Williams, J J., con- 
cur; Graves, J., dissents in separate opinion. Woodson, 
J., not sitting. 

GRAVES, J. (dissenting). — Our learned brother 
says this is a harsh case. To this I cheerfully accede. It 
is indeed so harsh, that I will not lend my assent there- 
to, if upon any legal theory it can be avoided. That 
the plaintiff in this case received the full value for 
her land when she sold it is not questioned; that she 
then, and for more than thirty-one years thereafter, 
abandoned all claim thereto, she admits ; that she knew 
that her grantee was taking possession thereof, and 
would make improvements thereon, stands to reason 
from the record; that the grantee and his subsequent 
vendors in title did make permanent, valuable and 
lasting improvements is thoroughly shown; that by rea- 
son of these improvements and the advance in lands 
(growing with the flux of time) the cheap land of 1882 
is now worth $32,000; that it required a champertous 
contract, at this late date, to spur her to this action, is 
shown. In short, the record facts are nauseating to a 
sense of right doing, and shocking to a keen sense of 
justice. I believe that there is a clear way around this 
wrong, and in the succeeding paragraphs will suggest 
them. 

I. I am not unmindful of our previous rulings upon 
several of the questions I shall discuss. The harsh 
facts of this case furnish me further excuse to reiter- 
ate what I said in Babcock v. Adams, 196 
Kte.'''' ^ S. W. 1. c. 1120. I then said: 

'*I have long had in mind the idea that we 
have misconstrued Section 1881, Revised Statutes, 1909, 
when read in connection with the Married Woman's 
Act. In origin this statute antedates the Married Wom- 



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Vol. 279 APRIL TERM, 1919. 299 



Powell V. Bowen. 



an's Act. It was at the time of its first enactment ex- 
pressive of common-law doctrines. At its inception mar- 
ried women belonged to a class suffering disabilities, 
so far as the right to sue was concerned. This 
Section 1881 excepted the class (married women) 
from the limitations prescribed by Section 1879, Revised 
Statutes 1909, which is the ten-year Statute of Limi- 
tations. But for the exception the married woman would 
have fallen under the ban of said Section 1879. This 
exception made by Section 1881 was written into the 
law because of the then inability of a married woman 
to sue and recover her real estate. When the Married 
Woman's Act was passed all reason for the exception 
vanished. By Section 1881 she was not excepted for the 
reason that she was a married woman, but because she 
belonged to a class laboring under disabilities. When 
the disabilities were removed from the class (as they 
were by the Married Woman's Act), then the excepted 
class was in effect removed from the statute, and as 
to Statutes of Limitations the married woman stood 
just as all other persons sui juris stand ; in other words, 
the effect of the Married Woman's Act was to repeal 
and modify the terms of the statute, to the extent of 
taking this excepted class (married women) out of 
Section 1881. 

** Since the passage of the Married Woman's Act 
there is no reason for saying that a man or single 
woman must sue for lands within ten years, but the 
married woman, possessed of all the rights to sue as 
the others should have the statute tolled in her favor. I 
am aware that our opinions are the other way, but 
these have long since been my views, and I take this 
occasion to express them." 

It will be noted that I concurred in the Babcock 
case, solely on the ground tliat our previous rulings con- 
stituted rules of property, and to disturb them would bo 
to disturb property rights. But since that time we have 
in the case of Klocke v. Klocke, 276 Mo. 572, ruled that 
the overruling of an opinion of this court, wliich coii- 



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300 SUPREME COURT OF MISSOXJRI. 

Powell V. Bowen. 

stmed a statute of the State, would not effect previous- 
ly acquired property rights. In other words, the ruling 
in the ease which overruled such previous opinions 
would be prospective only and not retroactive. It be- 
comes necessary at times to overrule opinions constru- 
ing statutes, and which opinions have fixed rules of 
property. But, in view of the rule in the Klocke case, 
supra, this should not deter us in righting a wrong, 
when the mischief is such as to demand it. 

In 7 R. C. L. p. 1008, the idea is most elegantly 
expressed: **If judges were all able, conscientious, and 
infallible ; if judicial decisions were never made except 
upon mature deliberation, and always based upon a 
perfect view of the legal principles relevant to the 
question in hand, and if changing circumstances and 
conditions did not so often render necessary the aban- 
donment of legal principles which were quite unexcep- 
tionable when enunciated, the maxim stare decisis 
would admit of few exceptions. But the strong re- 
spect for precedent which is ingrained in our legal sys- 
tem is a reasonable respect which balks at the per- 
petuation of error, and it is the manifest policy of our 
courts to hold the doctrine of stare decisis subordinate 
to legal reason and justice, and to depart therefrom 
when such departure is necessary to avoid the perpetua- 
tion of pernicious error.'' 

I think we went wrong in the early cases of Throck- 
morton V. Pence, 121 Mo. 50, and Lindell Real Estate 
Co. V. Lindell, 142 Mo. 1. c. 76, when we held that under 
the Married Woman's Act of 1889, a married woman 
did not have to sue until she became discovert. There 
were two lines of thought in the early, cases at the time 
of our first ruling. One line held that the Married 
Woman's Acts (similar to our own) gave a married 
woman the right to sue whilst she was covert, but she 
was not obliged to sue where there were statutes (like 
our Sees. 1881 and 1894, R. S. 1909) which excepted 
married women from the usual statutes of limitations. 
The other line of cases held, that the force and effect 



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Vol. 279 APBIL TERM, 1919. 301 



Powell V. Bowen. 



of the Married Woman's Act were to strike this ex- 
ception as to married women from all tolling statutes, 
such as our Sections 1881 and 1894, supra. Our court 
followed the first named line of cases, and herein 
much of our trouble, and all of our harsh case law. 
I think we erred in the two cases above cited, and 
under the Klocke case, supra, we can change the rule 
without prejudicing property rights. We should hold 
that the effect of the Married Woman's Act of 1889 
was to strike from our Section 1881, Revised Statutes 
1909, the exception as to married women. It was then 
Section 6767, Revised Statutes 1889. Not only so, but 
it would strike a similar exception from Section 1894, 
Revised Statutes 1909, which was Section 6779, Revised 
Statutes 1889. 

The cases to be overruled are all oases construing' 
statutes, and under the ruling in Klocke 's case, supra, 
no baneful effects will follow. There is no sense in 
saying (since the Act of 1889 as to married women; 
that a man or a single woman must sue within the statu- 
tory period in order to protect their rights, and that 
a married woman, with the same legal right to sue, 
may postpone her action until she becomes discovert. 
There was no reason for giving her the right, unless 
she was to be required to exercise it, as a femme sole. 
The very purpose of the law was to place her in the 
position of a femme sole. She needed no statute to give 
her the right to sue after she became discovert. 

The two statutes (Sees. 1881 and 1894, Revised 
Statutes 1909) had the exceptions therein as to mar- 
ried women stricken therefrom per force of the Act of 
1889 as to married women. We should have so ruled 
from the beginning. We will have to so rule, or 'be 
troubled with other harsh and unrighteous cases, as is 
the case at bar. It will be noted that the two sections 
cover all kinds of actions, and that the exceptions are 
the same in each. With these exceptions stricken from 
these statutes, we are permitted to get to the meat of 
the instant case. 



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302 SUPREME COURT OP MISSOURI. 

Powell V. Bowen. 

II. It is urged that the plaintiff in this case could 
not sue for the possession, because her husband was 
yet alive. Under our holdings, I shall grant this prop- 
osition. But that concession does not settle the case. 
^^ ^ If the tolling statutes (Sections 1881 and 1894, 
E. S. 1909) no longer contain an exception as 
to married women, then this plaintiff is not necessarily 
protected by the fact that her husband, up to the date 
of the deed had the right of possession, and that after 
the deed the defendants and then their predecessors in 
title had the right of possession. 

By the Act of 1897, which, with its amendments, 
is now Section 2535, Revised Statutes, 1909, the plain- 
tiff was given a cause or right of action, and a remedy. 
This right of action has been in her since 1897. It is 
this identical right of action that she is now attempting 
to enforce. In other words her present suit is predicated 
on Section 2535, supra, and is the same suit that she 
could and should have brought in 1897. Estoppel in pals 
is duly pleaded. Not only so, but well shown in the 
evidence. In other words, the record tends to show 
improvements on the land since 1897. A levee was com- 
pleted in 1896, since which drainage of the land by a 
drainage plan has been perfected. Many improvements 
were made since 1889, including the levee. Four or 
or five houses have been built upon the land, whilst there 
was but one in 1882. But it suffices to say that the evi- 
dence tends to prove improvements made since 1897. 

Mrs. Powell should have brought this suit when the 
right was first given her so as to stop these improve- 
ments. Failing to do so she is estopped now from main- 
taining the very suit she should have brought in 1897. 
She knew that her grantee would claim the full title 
from the date of her deed in 1882. She recognized this 
claim of full title, as is shown by her evidence. She knew 
that improvements would be made. She knew all these 
things, and is now fully estopped from maintaining 
this particular action, because defendants were permit- 
ted to act to their detriment. And this is true, although 



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Vol. 279 APRIL TERM, 1919. 303 



Powell V. Bo wen. 



in a possessory action (not yet accrued under our rul- 
ings) she may be able to recover possession. 

We are not discussing laches, but estoppel in pais. 
We undertook to say that there was a difference be- 
tween the two doctrines in Kellogg v. Moore, 271 Mo. 
1. c. 193 et seq. After disposing of the question of laches 
in our paragraph 2 in that opinion, estoppel in pais is 
disposed of in paragraph 3 of that opinion. So that we 
hold that plaintiff is clearly estopped from maintaining 
this particular action, because (eliminating from our 
tolling statutes Sections 1881 and 1894, supra) the 
exception as to married women she had an unrestricted 
right to bring her action, and thereby forestall the 
improvements thereafter made. At that time she had the 
clear right not only to sue, but the clear and unobstruct- 
ed right to contract. At that time she could have con- 
tracted as to her alleged reversionary interest, and 
having the right to contract with reference thereto, 
and to convey the same, the doctrine of estoppel in pais 
will apply. At that time she had all rights to sue and 
to contract, save and except the right to sue for posses- 
sion. We concede that where one cannot sue to protect 
rights, she can't well be estopped. We further concede 
that when one cannot be bound by contract she may not 
be bound by estoppel. But these concessions do not reach 
this case. In this very case she is trying to enforce a 
right which could have been enforced from 1897 to the 
present. As to her, the doctrine of estoppel in pais was 
properly invoked, and if sustained by the facts, should 
preclude this particular action. Whether she may have 
a more successful form of action when her husband dies, 
is another question. It is to be hoped that some Provi- 
dential act may obviate the harsh rules of law, and 
save defendant from dire results. But her own conduct 
estopped her as to this particular action. 

Estoppel in pais is not dependent upon limitations, 
nor is it confined to equitable actions. The doctrine 
was and is recognized in common law courts. [16 Cyc. 
682.] In that it differs from laches. [Kellogg v. Moore, 



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304 SUPREME COUET OF MISSOURI. 

state ex rel. McCune v. Carter. 

271 Mo. 1. c. 193 et seq.] Estoppel in pais may be set 
up as a defense in actions at law as well as in equity. 
[16 Cyc. 725.] Nor is this all. The doctrine goes to the 
remedy which many invoked, as well as to the right. [16 
Cyc. 722.] We emphasize this, because the conduct of 
the plaintiff in this case has justified the invocation of 
estoppel in pais, as to the remedy, i. e. this particular 
suit. So I conclude that the judgment nisi in this suit 
was well within legal bounds, whatever may be the re- 
sult of a future possessory action, and irrespective of 
any statute of limitations. The judgment should be af- 
firmed and I so vote. 



THE STATE ex reL JEFF D. McC?UNE et al., Ap- 
pellants, v. ALEXANDER CARTER et al.. Con- 
stituting the Board of Equalization of Audrain 
County. 

DlTlslon One, July 9, 1919. 

1. BOARD OF EQUAIJZATIOK: Constitution: OertlorftrL In a cer- 
tiorari brought to quash the record of a county board of equaliza- 
tion, if the record shows on its face that the officers designated by 
the statute were named as composing the board and that they 
were present at its meetings, it cannot be held that such persons 
were not de jure members of the board, or that said board was il- 
legally organized. 

2. : Jurisdiction: Insufflcient Notice: Appearance. Whether or 

not the notice to the taxpayer that an increase in the assessed ral- 
uation of hie property was sufficient, if he actually appeared be- 
fore the board of equalization and the matter was continued, and 
before such increase was made he appeared specially and filed his 
objections thereto, his appearance vested the board with jurisdic- 
tion. 



: Amending Becord: Classification. Amendments of the rec- 
ords of the board of equalization, made prior to its final adjourn- 
ment by the direction of its presiding officer, which did not change 
the amount of the increase in the taxpayer's assessment, but 
simply specified the classes of property to which it was applicable, 
did not oust the board of jurisdiction, or impair the validity of 
the increase. 



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Vol. 279 APRIL TERM, 1919. 305 



state ex rel. McCune y. Garter. 



4. : Trebling Aflsessment. The County Board of Equalization, 

after Increasing the taxpayer's assessment to equal the amount of 
property owned by him, is by statute given power to treble the 
assessment upon a finding that he has given a f^lse list. 

5. : Increasii^f Assessment: Certiorari. In reviewing the action 

of the County Board of Equalization by certiorari the courts can- 
not go beyond the face of its record; and since under the statute 
it had authority to Increase the assessment of the property re- 

. turned by the taxpayer, and to add that omitted, if it had knowl- 
edge of facts Justifying such action, it will not be held on certi- 
orari that it exceeded its statutory powers, if it heard evidence be- 
fore it made the Increases and it is not denied that the taxpayer 
owned property equal to the amount of the Increased valuation. 

Appeal from Audrain Circuit Court. — Hon. Ernest S. 

Gantt, Judge. 

Afpibmeix 

E. A. Shannon and Pearson <& Pear soil for ap- 
pellants. 

(1) Statutes imposing taxes are strictly construed 
against the State, and in favor of the taxpayer. 37 
Cyc. 768; State ex rel. v. Alt, 224 Mo. 513; State ex 
rel. V. Lesser, 237 Mo. 318; State ex rel. v. Scullin, 266 
Mo. 331; State ex rel. v. St. L. Co. Ct., 13 Mo. App. 
54; City of Hannibal ex rel. v. Bowman, 98 Mo. App. 
109. (2) A county board of equalization is a court of 
limited and inferior jurisdiction. Section 11402, R. S. 
1909; Washington Co. v. Eailroad, 58 Mo. 379. (3) 
Where the proceedings of inferior courts whose methods 
of procedure are not in accordance with the courts of 
the common law, are called in question, jurisdiction 
will not be presumed; but must of necessity appear, 
and be distinctly disclosed by the record, on the face 
of the proceeding; and can receive no help from intend- 
ments or implications. Cunningham v. Railroad, 61 
Mo. 36; State ex rel. v. County Court, 66 Mo. App. 99; 
Rousey v. Wood, 57 Mo. App. 658. The record of such 
courts must show the existence of all facts necessary to 

20—279 Mo. 



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306 SUPREME COURT OF MISSOURI. 

State ex rel. McCune y. Carter. 

give jurisdiction over the subject-matter, and the 
parties. Schell v. Leland, 45 Mo. 294; State v. Metz- 
gler, 26 Mo. 66 ; Corrigan v. Morris, 43 Mo. App. 461 ; 
Fisher v. Davis, 27 Mo. App. 327. If such jurisdiction 
does not appear upon the face of the proceedings, their 
acts are void. Haggard v. Railroad Co., 63 Mo. 303. 
(4) The law requires, that an accurate and detailed 
record of the proceedings and orders of a board of 
equalization must be kept, showing distinctly, when it 
is raising the valuation of property already assessed; 
and, when it is adding and^ assessing other property 
** omitted from the assessor's books,'' designating in 
each instance, the **kind and class" of property raised, 
or assessed. Sees. 11404, 11407, R. S. 1909; State ex- 
rel. V. Cunningham, 153 Mo. 653; Washington Co. v. 
Railroad, 58 Mo. 378. (5) When the valuation of prop- 
erty listed and assessed is raised, or property ^* omit- 
ted from the assessor's books" is assessed, a notice 
must, in either case, be served on the property owner 
stating the *'kind and class" of property raised or 
assessed and the value fixed thereon by the Board; 
and the record of the board should show, and such no- 
tice should distinctly state whether the action of the 
board was on the property listed and assessed or prop- 
erty omitted from the assessor's books, and by it as- 
sessed for the first time. Sees. 11404, 11407, R. S. 
1909; State ex rel. v. Cunningham, 153 Mo. 653; 
Washington Co. v. Railroad 58 Mo. 378. (6) A notice, 
such as the law requires to be given, on increasing the 
valuation of property or already assessed, or assessing 
property ** omitted from the assessor's books," is es- 
sential to the validity of the proceeding. Sec. 11407, 
R. S. 1909; State ex rel. v. Springer, 134 Mo. 224. 
(7) A property owner does not waive his rights to a 
legal notice, by appearing for the sole purpose of ob- 
jecting to the invalidity and insufficiency of the notice 
served on him, and to the jurisdiction of the board to 
act under the premises. His appearance for a special 
purpose constituted no waiver of any valid objection 



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Vol. 279 Ar\iIL TERM, 1919. 307 



state ex rel. McCune v. Carter. 



which he had to the defective process and service; for 
a party who is in court for one purpose, is not neces- 
sarily in for any other purpose. Schell v. Leland, 
45 Mo. 293; Thompson v. Ry. Co., 110 Mo. 156. (8) 
The board of equalization acts judicially in either rais- 
ing the assessments already listed; or, in assessing 
property ** omitted from the assessor's books.'' In 
raising the assessment of property already listed or in 
assessing property ** omitted from the assessor's books, 
the board of equalization must have evidence before it, 
or its act will be invalid. Sees. 11406, 11407, R. S. 1909, 
Washington Co. v. Railroad, 58 Mo. 378 ; State ex rel. 
V. Scullin, 266 Mo. 331. The record of the proceedings 
of the board should contain a statement, that evidence 
was taken and heard in either raising assessments of 
property already listed, or in assessing property ** omit- 
ted from the assessor's books." Washington Co. v. 
Railroad, 58 Mo. 378. (9) On and after the 4th Monday 
of April, a board of equalization ceases to act as such, 
but is simply a board of appeals; and has power and 
authority as such to hear complaints from the property 
owner, on the action of the board of equalization, in 
either raising the valuation of his property already 
assessed, or in assessing property '* omitted from the 
assessor's books;" and, can only ** change or alter the 
same, upon it being shown by the said owner that 
said assessment was erroneous, or improperly made; 
otherwise said property and the valuation as (pre- 
viously) fixed by said board, shall be extended upon the 
assessor's books, as in case of other property." And, 
it has no power or authority (on its own initiative, 
the property owner not appearing), to hear evidence 
or change the valuation thitherto raised or assessed. 
Sec. 11407, R. S. 1909. (10) A board of appeals has 
no authority to treble assessments before the board 
of equalization shall have had a notice filed with it, 
by the assessor, that the property owner has made out 
a list **with intent to defraud," and said board shall 
have given notice thereof to the property owner who 



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308 SUPREME COURT OF MISSOURI. 

state ex rel. McCune v. Carter. 

shall have furnished such false list which notice was to 
specify the particulars in which said list is alleged to 
have been false. Sec. 11354, R. S. 1909; State ex rel. 
V. Baker, 170 Mo. 390. (11) The clerk had no right to 
change the record, in vacation of the board, upon the 
order, or at the dictation of any one. Sec. 11405, R. S. 
1909; State ex rel. v. Wray, 55 Mo. App. 654; Corrigan 
V. Morris, 43 Mo. App. 461 ; State ex rel. v. Scullin, 266 
Mo. 331. A change in the record, after it had been 
writttn up by the clerk, and a certified copy of which 
had been served on the property owner, was a fraud on 
the property owner. In doing so, it was wilfully 
depriving him of knowledge of the true record of the 
alleged board^s proceedings against his property. Wash- 
ington Co. V. Railroad, 58 Mo. 378. (12) ''Under our 
system of taxation, there can be no lawful collection of 
a tax until there is a lawful assessment; and, there 
can be no lawful assessment, except in the manner 
prescribed by law and of property designated by law 
for that purpose.^' State ex rel. v. Lesser, 237 Mo. 
318. 

A. C. Whitson for respondents. 

(1) The rule of strict construction in tax proceed- 
ing does not obtain in this State and has not since the 
decision of State ex rel. v. Bank, 120 Mo. 161; State 
ex rel. v. Timbrook, 240 Mo. 236, 238; State ex rel. v. 
Wilson, 216 Mo. 286; Sec. 11383, R. S. 1909. (2) The 
board of equalization is not a court of limited juris- 
diction. Sees. 11402, 11409, R. S. 1909; Sees. 11747, 
11748, R. S. 1909. It has full power and it is the duty 
of the board to assess and to equalize the valuation and 
assessment of all property both real and personal with- 
in the county. Sec. 11403, R. S. 1909; 15 C. J. 982, sec. 
414, note 15. Diehl v. Page, 3 N. J. Eq. 143; WiiUam 
V. Ball, 52 Tex. 603; State ex rel. v. Harrison, 226 
Mo. 174; State ex rel. v. Springer, 134 Mo. 212. (3) 
The county clerk is by the statute (Sec. 11402, R. S. 
1909) made secretary of the board of equalization, and 



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Vol. 279 APRIL TERM, 1919. 309 



state ex rel. McCune y. Carter. 



as such had a right to correct its records to speak the 
truth at any time Before final adjournment of the 
board. The board may at any time before final adjourn- 
ment correct its records. State ex rel. v. Board, 108 
Mo. 235; State ex rel v. Ray, 55 Mo. App. 647; Henry 
County V. Salmon, 201 Mo. 151; Williams v. Silvy, 
84 Mo. App. 433; State v. Jeffries, 64 Mo. 376; Becker 
V. Schutte, 85 Mo. App. 65. The record of the board 
of equalization was sufficient without any correction as 
made hy the clerk showing the classification of the 
property added to the assessment list. State ex rel. v. 
Trust Co., 261 Mo. 448. (4) The board has a right to 
add omitted property to the assessment list, or to as- 
sess omitted property even though no list be given. 
Sec. 11407, R. S. 1909; State ex rel. v. Trust Co., 261 
Mo. 448; State ex rel. v. Timbrook, 240 Mo. 236. The 
respondent, Guy McCune, having given a false list, the 
board had a right to treble his assessment. Sec. 11354, 
R. S. 1909; State ex rel. v. Baker, 170 Mo. 391. The 
procedure in adding omitted property and in adding 
property where a false list is given is the same. In re 
Sanford, 236 Mo. 686. (5) The respondents having ap- 
peared before the board, the form of the notice or 
whether or not notice had been given at all is im- 
material. On their appearance the board had jurisdic- 
tion, and by such appearance appellants waived the 
giving of notice and its form and such appearance cured 
all defects in the notice. State ex rel. v. Baker, 170 Mo. 
390; State ex rel. v. Trust Co., 261 Mo. 455; State ex 
rel. V. Board, 108 Mo. 243; Cooley on Taxation (3 
Ed.), p. 783; Smith v. Kiene, 231 Mo. 222; State ex 
rel. V. Galord, 73 Wis. 306 ; Brown v. Weatherby, 71 
Mo. 152. (6) The presumption is that the board heard 
evidence, and that the procedure was lawful. The 
board has power of its own knowledge to add omitted 
property or to raise the valuation of property assessed. 
State ex rel. v. Springer, 134 Mo. 225 ; Hannibal Kail- 
road V. Board, 64 Mo. 309. (7) While the board of 
equalization is required to hear appeals on the 4th 



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310 SUPREME COURT OF MISSOURI. 

State ex rel. McCune v. Carter. 

Monday in April, it is the same board and its labors are 
not necessarily to be completed at that time. Sec. 
11404, R. S. 1909; State ex rel. v. Vaile, 122 Mo. 43. 
The record as returned by the respondents, and as 
proved at the trial, shows a record kept by the County 
Clerk of Audrain County, in '* County Board of Equali- 
zation Record B, Audrain County." That the board met 
at the time as required by law (Sec. 11402, R. S. 1909), 
and was composed of the officers designated by the 
statute. 

BOND, C. J.— Certiorari by the Circuit Court of 
Audrain County, directed to respondents, the Audrain 
County Board of Equalization, in their official capacity, 
requiring them either to have the original record and 
papers, or to certify to said court a true, full and com- 
plete copy of their record as made at their respective 
sessions, April 3rd, April 24th and May 15, 1916, to- 
gether with a copy of the several demurrers or pleas 
in abatement to the jurisdiction of said alleged board, 
filed in said proceedings by appellants, Jeff D. and 
Guy McCune, on May 15, 1916, in order that the cir- 
cuit court might adjudicate upon the legality of such 
proceedings. 

In their petition for said writ of certiorari, rela- 
tors state that they are residents of Vandalia, Mis- 
souri ; that the respondents compose the County Board 
of Equalization of Audrain County; that at a certain 
meeting of said board on April 3, 1916, the board 
raised the assessment of relators, and thereafter duly 
notified them that the board would meet on the fourth 
Monday in April, 1916, **to hear reason, if any be 
given, why such increase should not be made;" that 
on April 24, 1916, said hearing was continued until 
May 15th; that on May 12th. relators, with their at- 
torney, examined the record of said board, and there- 
upon each had prepared and thereafter filed, a demur- 
rer to the jurisdiction of said board, on the ground 
that its action was illegal and void for not setting out 
the class and kind of property and the amount raised on 



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Vol. 279 APRIL TERM, 1919. 311 



state ex rel. McCune v. Garter. 



each, as required by law; that sometime between May 
12th, the date on which they examined the record of 
the board, and May 15th, the date to which their hear- 
ing was continued, the record of said board dated April 
3rd, **was altered, mutilated and changed by some one 
other than the Clerk of the County Court of Audraia 
County. *' 

At the trial the record of the board, which was 
introduced in evidence, showed that on April 3, 1916, 
the board met; that among other business transacted, 
the board raised the assessment of Guy MeCune, Jeff 
McCune and of Guy and Jeff McCune as follows : 

** Personal Raised. Jeff D. McCune — from $500 to 
$75,000 ($74,500 in money, notes and bonds; classes 
5-6-7-8-9; $500 all other personal. Mayor and city 
assessor not voting). 

'*Jeff and Guy McCune— from $100 to $15,000 
(Money, notes and bonds; classes 5-6-7-8-9. Mayor and 
city assessor not voting). 

*'Guy McCune— $650 to $4,000 ($3,350 money, notes 
and bonds. Classes 5-6-7-8-9, and $650 all other personal. 
Mayor and city assessor not voting)." 

The following also appears in the records of the 
board of date Monday, April 24, 1916. 

** County Board of Equalization met pursuant to 
adjournment with J. W. Beagles, C. C. Bledsoe, Judges 
of the County Court, and T. J. Kelso, County Assessor, 
J. W. Dry, Ex-mayor of the City of Mexico and J. T. 
Marshall, Assessor of the City of Mexico, present and 
the following business was transacted, to-wit: 

''Presiding Judge Alex Carter being absent Judge 
C. C. Bledsoe was elected to preside over the meeting 
by the board. Jeff D. McCune appears before the board 
and on his application and by order of the board the 
hearing of his protest on increase of assessment was 
continued to Monday, May 15, 1916. 

*'Guy McCune appears before the board and on his 
application, and by order of board the hearing of his 
protest on increase of his assessment was continued 
to Monday, May 15, 1916. 



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312 SUPEEME COURT OF MISSOURI. 

state ex rel. McCune y. Carter. 

** Je£f and Guy McCune appear before the board 
and on their application and by order of board, the 
hearing of their protest on increase of assessment was 
continued to Monday, May 15, 1916. 

''All other items as shown on the meeting of board 

.on April 3, 1916, and not shown on minutes of this 

meeting, were ordered left as raised by board April 

3rd. The boar dadjoumed to meet Monday, May the 

15th, 1916.'' 

The following also appears on the record of the 
board under date May 15, 1916 : 

''Eugene Pearson, an attorney, appears for Jeff 
D. McCune and for Guy McCune; and for Jeff D. 
and Guy McCune jointly, and filed motions for each 
of the above parties. 

"Motion was made and carried that the motions as 
filed by Eugene Pearson for Jeff D. McCune, and for 
Guy McCune and Jeff D. and Guy McCune, jointly, be 
not made a matter of record. 

"Evidence on the assessment of Jeff D. McCune 
was heard. 

"Evidence on the assessment of Guy McCune was 
heard. 

"Evidence on the assessment of Jeff D. and Guy 
McCune was heard. 

"Motion made and carries that the assessment of 
Jeff D. and Guy McCune be $15,000 in money, notes 
and bonds (Classes 5-6-7-8 and 9) as raised April 3rd, 
1916. 

"Motion made and carries that the assessment of 
Jeff'D. McCune be $74,500 in money, notes and bonds 
(Classes 5-6-7-8 anl 9) and $500 all other personal as 
raised April 3, 1916. 

"Motion made and carries that the assessment of 
Guy McCune be placed at $7,732 in money, notes and 
bonds (classes 5-6-7-8 and 9) and $150 all other per- 
sonal property. 

"Motion made and carries that the assessment of 
Guy McCune be trebled as a penalty for giving a 
fraudulent list making his assessment $23,646, $450 in 



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Vol. 279 APKIL TERM, 1919. 313 

state ex rel. MqCune y. Garter. • 

class 4 and $23,196 in money, notes and bonds, classes 
5-6-7-8 and 9J' 

The change of the record of the meeting of April 
3, 1916, consisted in the addition thereto of the various 
classes of property to which said increases were re- 
ferable. As to these matters Ros Cauthorn testified 
that he was Clerk of the County Court; that the en- 
tries of April 3rd, April 24th and May 15, 1916, were all 
in his handwriting; that the writing on the margin (of 
which complaint is made) was added ** after his [Mr. 
Pearson's] visit on May 12th'' and that he (Cauthorn) 
** wrote it there by order of the presiding member of 
the board of equalization . . . and it was read and 
approved at the last meeting." 

On cross-examination by Mr, Pearson, witness Cau- 
thorn testified as follows: 

**Q. What was the occasion of your making this 
change? A. I was ordered to do so by the county 
judge. Judge Bledsoe. . . . 

**Q. What did the judges say when they came in 
your office! A. Well, Judge Carter said he didn't ap- 
prove that record as it was. Looked it over and said 
*I won't approve that record as it is.' ... 

*'Q.. That was after May 12th when Mr. Pearson 
was there f. A. Yes, sir. 

''Q. And before May 15th f A. Yes, sir. . . . 

'*Q. Didn't you think it was a little strange he 
should come in there and order you to make the change 
in this proceeding! ... A. No, I don't see why 
it should if his attention was called to it and he came 
and looked it over. I don't see why it should be 
strange at all. 

**Q. Does the board examine your record for the 
purpose of approval! A. Well, not often. Occasion- 
ally they look it over, especially if they have anything 
special in their mind that they are not clear about they 
come and look it over. 

*'Q. And order you to change it! A. Yes, sir. 
1 changed county records that way.*' 



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314 SUPREME COURT OF MISSOURI. 

state ex rel. McGune v. Carter. 

The court found the issues for respondents and 
ordered and adjudged that relators take nothing by 
their writ and that the same be quashed, from which 
finding and judgment relators duly appealed. 

I. Appellants complain that the record discloses 
that the board of equalization was illegally organized. 
The record shows beyond controversy that the persons 

acting as members of the board were those 
of bS'''' pointed out in the statute; that the board 

as so organized convened at the times pre- 
scribed by the statute and proceeded to discharge the 
duties imposed on the Board of E<iualization of Au- 
drain County, Missouri. The certification of its rec- 
ords by the Clerk of the County Court recited them to 
be the proceedings of the Board of Equalization of Au- 
drain County, Missouri. This proceeding is one by 
certiorari to quash the proceedings of said board of 
said county and State, in so far as they increase the 
assessment of taxes against relators jointly and several- 
ly. It is not within the scope of the present proceeding 
to question the organization de jure of the Board of 
Equalization of Audrain County. We, therefore, put 
that contention aside. 

n. It is however contended that the board of 
equalization failed to notify defendants of its action 
increasing their assessments, and that such notice was 
jurisdictional. The answer to this is that the relators 
were notified and thereafter appeared at the meeting of 
the board on April 24th and upon their appli- 
cation the matters were continued until the 
meeting to be held on May 15th. This general appear- 
ance of relators vested the board with jurisdiction, even 
if there was any defect in the prior notice to them. 
[State ex rel. v. Baker, 170 Mo. 1. c. 390 et cases 
cited.] At the subsequent meeting of May 15th, re- 
lators again appeared, and this time specially, and 
filed objections in writing to the orders of the board 
increasing their assessments. This appearance at the 



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Vol. 279 APRIL TERM, 1919. 315 



State ex rel. McCune v. Garter. 



adjourned meeting of the board though in limited 
terms, could not in any way detract from the jurisdic- 
tion which the board acquired by virtue of the pre- 
vious general appearance on April 24th. We hold, 
therefore, that there was no lack of jurisdiction on the 
part of the board to deal with the question of increas- 
ing the assessment of the property of relators, as shown 
by the face of its record. 

ni. One of the points made in the written objec- 
tion filed by relators at the board meeting of May 15th, 
1916, was that the records of the board had been al- 
tered or changed so as to specify the respective prop- 
erty on account of which the increased assess- 
^JJ^y^^ ments were made. The record abundantly 
shows that these amendments of the records 
of the board were made prior to its final adjournment 
by the direction of its presiding officer. The amend- 
ments did not change the amount of increase, but simply 
specified the class of property to which it was applicable. 
It was clearly within the right of this body to make its 
records speak the truth, whe^, in so doing, no legal in- 
jury was inflicted. These amendments could not have 
prejudiced relators if they owned the property specified, 
w^hich does not seem to be denied. [State ex rel. v. 
Buchanan Co. Board Equal., 103 Mo. 235; Henry Co. 
v. Sahnon, 201 Mo. 1. c. 151.] We hold, therefore, that 
they did not oust the jurisdiction of the Board. [State 
ex rel. v. Trust Co., 261 Mo. 1. c. 455; R. S. 1909, sec. 
11407; State ex rel. v. Timbrook, 240 Mo. 236.] 

IV. It is also claimed on behalf of one of the 
relators that the board acted without jurisdiction in 
trebling his assessment. This contention cannot be sus- 
tained under the facts shown in this record. 
ABsesment. ^^^ action of the board in trebling the as- 
sessment in question was based upon a find- 
ing that the relator had given a false list. [R. S. 1909, 
sec. 11354; State ex rel. v. Baker, 170 Mo. 1. c. 392; 
In re Sanf ord, 236 Mo. 686.] 



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316 SUPEEME COURT OF MISSOURI. 

Barber y. Ins. Co. 

V. It aflSrmatively appears in the records of the 
board that it heard evidence as the basis of the in- 
creased assessments of relator's property. Under the 
statute it had the right to increase the assessments of 
the property returned, or to assess that omitted, or to 
do both, if it had knowledge of facts justifying such 
action. [R. S. 1909, sec. 11407.] In the matters com- 
plained of it did not act of its own knowledge, but took 
proof. It was charged with the duty of assessing and 
equalizing the valuation of all the property within the 
county, and seems to have been actuated by that whole- 
some motive in making the orders complained of. We 
are unable to perceive from the records before us that 
the board has transcended its statutory power or has 
violated the law in the matter of assessing the property 
of relators. In reviewing its action we cannot go 
beyond the face of the record under the decisions of 
this State. 

It necessarily follows that the writ of certiorari 
was properly quashed by the trial court and that its 
judgment must be afl5rmed. 

It is so ordered. Blair,, P. J., and Graves, J., con- 
cur. 



EOSA BARBER v. HARTFORD LIFE INSURANCE 
COMPANY, Appellant. 

DlYlsloii One, July 0, 1010. 

1. INSUBANOE: Bes Adjudlcata: Deddon of V, 8. Supreme Court: 
Assessment: State Tax. Only such questions as were before the 
court and were decided by it upon writ of error become the law 
of the case by force of its Judgment therein. A decision of the 
Supreme Court of the United States holding that the Supreme 
Court of Missouri, in passing on the validity of certain assess- 
ments by an insurance company organized under the laws of Con- 
necticut, had not given full faith and credit to certain public acts 
and Judicial proceedings of the State of Connecticut, was not an ad« 
judication of the validity of that portion of each assessment, in- 



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Vol. 279 APRIL TERM, 1919. 317 



Barber v. Ins. Co. 



eluding the one on which the alleged forfeiture waa based, which 
included a state tax of two per cent of the amount thereof, nor of 
that portion of the unpaid assessment which contained a charge 
of quarterly expense dues not yet due; for the former judgment 
of the Supreme Court of Missouri was based on no such grounds, 
but was simply against the validity of the assessment and the for- 
felture of the certificate for non-payment, and the question of the 
right of the company to include the state tax as a part of said as- 
sessment, and to declare a forfeiture for its non-payment, is one 
arising under a state statute, of which the Supreme Court of the 
United States could take no cognizance upon a writ of error, it 
being the rule of that court to leave to the state courts the duty 
of ascertaining and determining the contractual relations of par- 
ties dependent solely upon a state law; and, besides, that court 
did not attempt to determine the validity of assessments which 
included the state tax. 

2. BEVEB8AL OF JUDGMENT: Bemand for Betrial: Farther Pro- 
cedure. When a Judgment is reversed by the Supreme Court and 
the cause is remanded for a new trial, the trial court has Juris- 
diction, not only to retry the issues of fact presented by the plead- 
ings in the first trial in accordance the principles announced 
in the Judgment of reversal, but also to reframe those issues as 
provided by the Code of Civil Procedure; for a retrial does not 
mean a mere replica of the former trial, but is a trial in the light 
of the experience and knowledge acquired In the interval. 

3. INSUBANCE: Assessment: State Tex as Part. An assessment which 
includes as a part thereof the two per cent tax mentioned in Sec- 
tion 7099, Revised Statutes 1909, is void, and its non-payment con- 
stitutes no ground for a forfeiture of the certificate of insurance. 



4. : : : Doing Business As Old-Line Company. 

The fact that defendant, since it issued the certificate of insur- 
ance, has ceased to issue certificates on the assessment plan and 
is now doing its assessment business without a special license there- 
for, but is doing business simply as an old-line Joint-stock company, 
does not affect the substantial rights of the parties to an action on 
the certificate, nor relieve it of the wrong, of including the two 
per cent tax in the assessments. 

6. : : : Smallness of Tax. The fact that the tax 

improperly included in the insured's assessment amounted to only 
fifteen cents on each assessment, and that the entire mortuary 
fund to which it accrues belongs to the certificate-holders, is no 
ground for upholding an attempted forfeiture of the certificate, 
where the insured, prior to the attempted cancellation, not only 
paid illegal exactions amounting to nearly, if not quite, the amount 
of his alleged delinquency, but also paid a considerable sum into 
a fund which is held for distribution among living certlficate- 



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318 SUPREME COURT OF MISSOURI. 

Barber v. Ins. Co. 

holders when the amount thereof in force shall have been re- 
duced to one million dollars. 

6. : : Forfeiture. The law abhors a forfeiture, and this 

aversion has resulted in the rule that it may be prevented by a 
construction as technical as that by which it is invoked. 

7. : : Damages: Attorney's Fees. The fact that when 

the case was before the court on a former appeal it committed 
error which caused a reversal of its judgment by the Supreme 
Court of the United States, did not affect the right of plaintiff to 
damages for vexatious delay and attorney's fees on a retrial. 

Appeal from Johnson Circuit Court: — Hon, C. A. Cal- 

vird, Judge. 

Affirmed. 

Jones, Hocker, Sullivan <& Angert, Geo, F. Raid 
and James C. Jones, Jr., for appellant. 

(1) The Connecticut court was a court of competent 
jurisdiction to determine the question of the right 
of the company to maintain the mortuary fund, and its 
decree was binding upon the company and all its mem- 
bers. Hartford Life Ins. Co. v. lbs, 237 U. S. 662; 
Royal Arcanum v. Green, 237 U. S. 531; Hartford 
Life Ins. Co. v. Barber, 245 U. S. 146; Condon v. 
Mutual Reserve, 89 Md. 99; Taylor v. Mutual Reserve, 
97 Va. 60; State ex rel. Hartford Life Ins. Co. v. 
Shain, 254 Mo. 78. (2) The issue as to the right and 
propriety of maintaining the mortuary fund and the 
amount that could properly be held in such fund was in- 
volved in the Connecticut case and in the case at bar. 
Hartford Life Ins. Co. v. lbs, 237 U. S. 662; Southern 
Pacific Co. V. United States, 168 U. S. 1; Klein v. 
Insurance Co., 104 U. S. 88. (3) The circuit court 
denied full faith and credit to the decree of the Con- 
necticut court in the Dresser case by its assumed finding 
as a fact, without support in the evidence and against 
the evidence, that the assessment in question was ex- 
cessive and illegal. Creswill v. Knights of Pythias, 225 
U. S. 246; Northern Pacific v. North Dakota, 236 U. 



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Vol. 279 APRIL TERM, 1919. 319 



Barber y. Ins. Co. 



S. 585. (4) All questions presented at the second or 
last trial were before the trial court on the first trial 
and appeared in the record on the former appeal in the 
Supreme Court of Missouri and the Supreme Court 
of the United States and the judgment of the Supreme 
Court of the United States became res judicata upon 
all matters and questions appearing in the record. 
United States Trust Company v. New Mexico, 183 U. 
S. 535; Chaffin v. Taylor, 116 U. S. 567; Tyler v. 
Maguire, 17 Wall. 283; Pitkin v. Shacklett, 117 Mo. 
548; Hill V. Draper, 37 S. W. 574; Castleman v. 
Buckner, 202 S. W. 681; Illinois Life Ins. Co. vr. 
Wortham, 119 S. W. 802; Clark v. Brown, 119 Fed. 
130; McLure v. Bank, 263 Mo. 135. (5) The assess- 
ments collected by Hartford Life Insurance Company 
in Missouri were subject to the two per cent tax upon 
all premiums collected in the State. Sec. 7068, R. S. 
1909, as construed by the trial court, imposes its pen- 
alties for failure to pay a policy of life insurance re- 
gardless of the good faith of the defense, and so con- 
strued, it deprives the defendant of its property without 
due process of law. Supreme Ruling v. Snyder, 227 
U. S. 497; Ry. Co. v. Chicago, 166 U. S. 226. 

Robert Kelley, M. D. Aber, Nick M. Bradley and 
Charles E. Morrow for respondent. 

(1) The burden was on defendant to show that the 
assessment was necessary, not excessive and legally 
made. Barber v. Hartford Life Insurance Co., 269 Mo. 
21; Hannum v. Waddill, 135 Mo. 153; Barney v. 
Modem Woodmen, 79 Mo. App. 385; Agnew v. A. 0. 
U. W., 17 Mo. App. 254; Puschman v. Insurance Co., 
92 Mo. App. 640; Johnson v. Hartford Life Ins. Co., 
166 Mo. App. 275; King v. Hartford Life Ins. Co., 133 
Mo. App. 612; Wayland v. Indemnity Co., 166 Mo. 
App. 221; Settle v. Ins. Co., 150 Mo. App. 520; lbs 
V. Hartford Ins. Co., 121 Minn. 310. (2) The assess- 
ment is excessive and void. It was not calculated, com- 
puted or levied in accordance with the terms of the 



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320 SUPEEME COURT OF MISSOURI. 

Barber v. Ins. CJo. 

policy, (a) It contained a two per cent tax, not as- 
sessed by the company, against the assured, attempted 
to be collected in advance, in violation of the provisions 
of the terms of the policy, which was not shown was 
even levied and assessed by the Superintendent of In- 
surance, and which, under the law of Missouri, could 
not be levied against the assessment and was an illegal 
charge against assured. R. S. 1909, sec. 7099; North- 
western Masonic Aid Assn. v. Waddill, 138 Mo. 628; 
AVesterman v. Supreme Lodge, 196 Mo. 670; Bankers 
Life Company v. Chorn, 186 S. W. 618; Young v. 
Hartford Life Ins. Co., 277 Mo. 694. (b) The dues were 
not payable until October, 1910, and the dividend of 
$1.40, in th6 defendant's hands, should have been ap- 
plied in reduction of the assessment, and it is excessive 
on that account. (3) The defendant wrongfully collect- 
ed from assured two per cent on all the assessments 
he had paid on the policy, covering a period of seven- 
teen years, amounting to more than the assessment in 
question, and defendant was indebted to assured for 
the amount so wrongfully collected, and should have 
applied it to the assessment or to reduce it. National 
Council of Junior Order v. Thomas, 163 Ky. 364 ; Citi- 
zens Life Ins. Co. v. Boyle, 139 Ky. 1; Niblick on 
Benefit Societies, sec. 71. (4) By amending its answer, 
after this case was reversed and remanded, and plead- 
ing the failure to pay a subsequent assessment, due 
June 1, 1910, the defendant waived the alleged forfei- 
ture for failure to pay the prior assessment for which 
it claims the policy was forfeited. Beatty v. Mutual, 
etc., Ins. Co., 75 Fed. 65; Murray v. Home Benefit 
Life Assn., 90 Cal. 402; Union Central Life Ins. Co. v. 
Jones, 17 Ind. App. 592 ; Union Central Life Ins. Co. v. 
Woods, 11 Ind. App. 335 ; Union Central Life Ins. Co. 
V. Spinks, 119 Ky. 261; Moreland v. Union Central 
Life Ins. Co., 104 Ky. 129; Union Central Life Ins. 
Co. V. Moreland, 56 S. W. 653; Union Central Life Ins. 
Co. V. Duvall, 46 S. W. 518; National Life Ins. Co. v. 
Beppand, 81 S. W. 1012; Insurance Co. v. Springgate, 



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Vol. 279 APRIL TERM, 1919. 321 



Barber y. Ins. Ck>. 



129 Ky. 627; Assurance Soc. v. Ellis, 147 S. W. 1152; 
25 Cyc. 871. No notice of the subsequent assessment 
was given assured. Besides, the defendant claimed a 
forfeiture for failure to pay assessment due March 1, 
1910, before suit, and on that ground only. Thereby, as 
a matter of law, it waived its right to claim a forfei- 
ture on any other ground. Burges v. Ins. Co., 114 Mo. 
App. 180; Home Ins. Co. v. Pierce, 75 111. 426; Moore 
V. National Ace. Soc, 38 Wash. 31. (5) The defendant 
did not shew that the notice of the assessment was ♦iver 
mailed. It calmot be proven by affidavit. Patterson 
A\ Fagan, 38 Mo. 70; 2 C. J. 373. The stipulation in 
the policy, providing that a certificate of the secretary, 
supported by the affidavit of the person who mailed the 
notice, should be conclusive proof, is inconsistent with 
the impartial course of justice, as administered under 
the law of Missouri, and is against public policy and 
void. Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483; 13 
C. J. sec. 382, p. 46; French v. Wilier, 126 HI. 611; 
Hamilton v. Schoenberg, 47 Iowa,2385 ; Supreme Council 
V. Forsinger, 125 Tnd. 52; Fidelity & Casualty Co. v. 
Eickhoff, 63 Minn. 170; New York Fidelity, etc., Co. 
V. Crays, 75 Minn. 450; Guaranty Co. of North Ameri 
ca V. Charles, 92 S. C. 282; Mutual Reserve Fund 
Assn. V. Cleveland Woolen Mills, 82 Fed. 580; Doyle 
V. Continental I. & S. Co., 94 U. S. 535; Home Ins. Co. 
V. Morse, 20 Wall. (U. S.) 445; Mute v. Hamilton Ins. 
Co., 6 Gray (Mass.), 174; Buell v. Eailroad, 53 N, 
Y. Supp. 749. (6) The dues under the policy were not 
payable until October, 1910, and defendant cannot for- 
feit the policy for failure to pay them before that date. 
Barber v. Hartford Life Ins. Co., 269 Mo. 40. (7) The 
Supreme Court of the United States reversed this case 
for the sole reason, as stated in its opinion, that the 
decisions of this court, affirming the judgment of the 
trial court, failed to give full faith and credit to the 
Connecticut decree, and that this error inhered in the 
instructions to the jury. It remanded this cause for 

21—279 Mo. 



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322 SUPREME COURT OF MISSOURI. 

Barber y. Ins. Co. 

further proceedings, not inconsistent with the opinion 
of this court. In obedience to fhis mandate, this court 
reversed the judgment and remanded this cause general- 
ly for a new trial. (8) The opinion of the Supremo 
Court of the United States did not hold the assess- 
ment in this case to be valid, nor did it decide the ques- 
tions presented to the trial court, and presented here. 
On the contrary, the opinion of the Supreme Court of 
the United States recognized that there were both 
questions of law and fact left open in the case. The 
defendant, realizing this, amended its answer, setting 
up a new defense, and the plaintiff filed a reply thereto) 
pleading new and additional defenses, and the issues 
were changed. By so doing, defendant waived the ques- 
tion that the case was not properly remanded for a 
new trial and that questions were not left open to be 
determined by the trial court. Carrico v. Lilly, 3 0. K. 
Marsh (Ky.), 389; Howell v. Sherwood, 242 Mo. 513. 
(9) By remanding this cause generally for a new trial, 
without specific directions, this court gave the parties 
the right to amend their pleadings, and make any legal 
claim or defense, not concluded by the opinion of the 
United States Supreme Court. Wilcox v. Phillips, 260 
Mo. 676. (10) Only such questions as were passed upon 
by the Supreme Court of the United States became the 
law of this case. That decision cannot be extended to 
matters not decided. In re Potts, 166 U. S. 263; Mu- 
tual Life Ins. Co. v. Hill, 193 U. S. 551; Ex parte 
Union Steamboat Co., 178 U. S. 317; In reSanford 
Fork & Tool Co., 160 U. S. 247 ; Barney v. Winona Rail- 
road Co., 117 U. S. 228; Tanizer v. Railroad, 191 Fed. 
547; Gwinn v. Waggoner, 116 Mo. 151; Howell v. Sher- 
wood, 242 Mo. 513. (11) By reversing this case on one 
ground, the Supreme Court of the United States did not 
consider and decide all the questions presented or which 
might arise at a further trial of the cause. Mutual Life 
Ins. Co. V. Hill, 193 U. S. 551. (12) Sec. 7008, R. S. 
1909, as amended, providing for damages and attorney's 
fees, for vexatious refusal to pay a policy of life in- 



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Vol. 279 APRIL TERM, 1919. 323 



Barber y. Ins. Co. 



surance, is constitutional. Barber v. Hartford Life Ins. 
Co., 269 Mo. 21; Keller v. Home Life Ins. Co., 198 Mo. 
440; Farmer Ins. Co. v. Dobney, 189 U. S. 301; Fra- 
ternal Mystic Circle v. Snyder, 227 U. S. 497; Man- 
hattan Life Ins. Co. v. Cohen, 234 U. S. 123; Fidelity 
Mutual Life Assn. v. Mettler, 185 U. S. 308; Iowa 
Life Ins. Co. v. Lewis, 187 U. S. 335; Williamson v. 
Liverpool, etc., Ins. Co., 141 Fed. 54. 

BROWN, C. — This is a suit founded upon a certi- 
ficate of life insurance upon the life of Frank Barber 
for $2000 for the benefit of plaintiff, then his wife and 
now his widow. It is dated September 4, 1893. Mr. 
Barber died June 5, 1910. The defendant, which issued 
the certificate, was then and still is an insurance com- 
pany incorporated and having its principal place of 
business in Connecticut and doing business in Missouri. 
When this certificate was issued, and for a long time 
before and ever since, it has been doing business in 
this State as a stock company, issuing old-line insur- 
ance, and has also operated what is called a ^* Safety 
Fund Department,*' which issued certificates on the 
assessment plan until 1899, when it ceased issuing such 
policies, but continued to administer that department 
with respect to the certificates already issued. Barber 
complied faithfully with the conditions of his certificate 
up to March 31, 1910, when it was cancelled by the de- 
fendant on the alleged ground that he had failed to pay 
a mortuary assessment and a contribution to the ex- 
pense fund then due and payable according to its 
terms. 

This suit was instituted June 17, 1911, and was 
tried in the Johnson Circuit Court, where plaintiff had 
judgment upon a verdict for the amount of the face of 
the certificate with interest, $200 damages for vexa- 
tious delay, and $500 for attorney's fees. An appeal 
from that judgment was prosecuted to this court, where, 
on July 3, 1916, it was affirmed in an opinion published 
in 269 Mo. 21. In that opinion the principal facts, in- 



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i 



324 SUPREME COURT OP MISSOURI. 

Barber t. Ins. Co. 

eluding the provisions of the certificate applicable to 
them, were fully stated and will not be repeated here, 
but will be referred to as necessary to the understand- 
ing of the questions now before us. 

A writ of error from the Supreme Court of the 
United States was directed to this court, upon which 
our judgment was taken to that court for review upon 
certain matters wherein it was asserted that full faith 
and credit had not been given to certain public acts 
and judicial proceedings of the State of Connecticut. 
This referred to the power and duty of the directors un- 
der its charter in making mortuary assessments upon 
the certificates issued by the Safety Fund Department, 
and a judgment of a Connecticut court in a suit by one 
Dresser, on behalf of himself and all such certificate 
holders, in which it was adjudged that the Safety Fund 
Department had the right to maintain, by assessment, a 
fund for the prompt payment of losses, to be replenished 
by assessments for such losses when made and col- 
lected. The cause was heard in said court and our 
judgment reversed upon the last stated of these Federal 
questions in an opinion printed in volume 245 of the 
reports of said court at page 146 and following, which 
closes with the following words: ^*We are of opinion 
that full faith and credit was not given to the Connecti- 
cut record and that for that reason the present judg- 
ments must be reversed." It also said, in the course 
of the opinion, that **a jury would have been justified, 
at least, in finding that the call was made by the direc- 
tors within the meaning of the instructions, although 
it did not appear that the directors went over the 
figures of the ofiicers who made -it up, and voted it 
specifically.'^ The judgment and mandate of the court 
concludes as follows: 

^^And it is further ordered that this cause be, and 
the same is hereby remanded to the said Supreme Court 
for further proceedings not inconsistent with the opin- 
ion of this court. November 19, 1917. 



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Vol. 279 APKIL TEEM, 1919. 325 



Barber y. Ins. Co. 



**And the same is hereby remanded to you, the 
said judges of the said Supreme Court of the State of 
Missouri, in order that such execution and further pro- 
ceedings may be had in said cause, in conformity with 
the judgment and decree of this court above stated, as, 
according to right and justice, and the Constitution and 
laws of the United States, ought to be had therein, the 
said writ of error notwithstanding." 

Upon receiving the mandate this court entered and 
transmitted to the Johnson Circuit Court the follow- 
ing mandate: 

**Now, at this day, pursuant to the mandate of the 
Supreme Court of the United States, heretofore filed 
herein, reversing the judgment of this court in said 
cause, it is ordered by the court that the judgment of 
this court in said cause, entered on the 30th day of 
March, 1916, affirming the judgment rendered herein 
by the said Circuit Court of Johnson County, be, and 
the same is hereby set aside and for naught held. It 
is further considered and adjudged by the court, in con- 
formity with the said mandate of the Supreme Court 
of the United States, that the judgment aforesaid of 
the said Circuit Court of Johnson County, rendered on 
the 27th day of November, 1912, be reversed, annulled 
and for naught held and esteemed, and that the said 
appellant be restored to all things which it has lost 
by reason of the said judgment. It is further con- 
sidered and adjudged by the court that the said cause 
be remanded to the said Circuit Court of Johnson 
County for a new trial. And it further appearing to 
the court that on the 28th day of June, 1918, the court 
made and directed the entry of an order overruling a 
motion therefor filed by the said appellant to tax the 
costs herein, no order is therefore made adjudging 
costs.'' 

In pursuance of this mandate the cause was retried 
and the judgment rendered for the amount of the 
certificate and interest, with statutory damages and 



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326 SUPREME COXJET OF MISSOUEI. 

Barber v. Ins. Co. 

attorney's fee for vexatious delay, from which this 
appeal is taken. 

I. At this trial it was shown, both by the de- 
fendant's amended pleadings and the evidence, that 
in each assessment made by the defendant upon this 
certificate, including the one on which the alleged for- 
Bes Adjudicata. ^ ^i^^^e is based, a sum was included repre- 
senting a state tax of two per cent upon the 
amount thereof. The sums so paid amounted in all to 
$11.93, and defendant undertook to justify its exaction 
under the provisions of Section 7099, Revised Statutes 
1909, as in force, in different forms, during the entire life 
of this certificate. The amount so included in the un- 
paid assessment was fifteen cents and its inclusion was 
and is assigned by the plaintiff as a ground for avoid- 
ing the forfeiture. The assessment on which the can- 
cellation is based also contained a charge of $1.50 for 
quarterly expense dues, which the plaintiff asserts was 
not yet due. 

The defendant at the trial objected to the con- 
sideration of each of these matters on the ground that 
they had been already determined by the judgment of 
the Supreme Court of the United States to which we 
have referred. The theory of this objection, so far 
as we are able to understand it, is that the reversal 
conclusively adjudicated that the certificate was in force 
at the former trial in the circuit court; otherwise, the 
judgment should have been affirmed, notwithstanding 
the errors found in the record with respect to the Fed- 
eral questions on which the writ of error stood. 

Although there was some evidence in the former 
trial that some such tax had been included in the assess- 
ment in question, no such point was made either in the 
pleadings or at the trial, or mentioned or decided by 
this court, which placed its affirmance solely upon the 
two Federal questions upon which the writ of error 
from the United States Supreme Court was based. Our 
judgment was against the validity of the assessment 



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Vol. 279 APRIL TERM, 1919. 327 



Barber y. Ins. Co. 



and the forfeiture by its non-payment. It implied noth- 
ing in its favor. The matter now before us is purely 
a question arising under the laws of this State, of 
which the Supreme Court of the United States could 
take no cognizance upon writ of error. [Waters-Pierce 
Oil Co. V. Texas (No. 1), 212 U. S. 86, 97, 112; Same 
V. Same (No. 2), 212 U. S. 112, 118; Sauer v. City of 
New York, 206 U. S. 536, 546; Eustis v. BoUes, 150 U. S. 
361; Murdock v. Memphis, 20 Wall. 590; Cohens v. Vir- 
ginia 6 Wheat. 264.] These and many other cases which, 
follow the Cohens case, supra, have established the rule 
which is forcibly and logically stated by Mr. Justice 
Moody in the Sauer case as follows (p. 547): **This 
court, whose highest function it is to confine all other 
authorities within the limits prescribed for them by 
the fundamental law, ought certainly to be zealous to 
restrain itself within the limits of its own jurisdiction, 
and not be insensibly tempted beyond them by the 
thought that an unjustified or harsh rule of law may 
have been applied by the State courts in the determin- 
ation of a question committed exclusively to their, care. '^ 
It was further said by the same eminent judge in the 
same case (p. 545): ^*This court does not hold the 
relation to the controversy between these parties whicn 
the Court of Appeals of New York had. It was the 
duty of that court to ascertain, declare and apply the 
law of New York, and it^ determination of that law is 
conclusive upon this court.'' It is clear that if the 
question now presented, which is clearly dependent 
solely of the construction and effect of a tax law of 
this State and the contractual relations with reference 
thereto of the parties to a Missouri contract was de- 
cided by this court in the former case, then the Supreme 
Court of the United States had no jurisdiction and did 
not intend by its judgment to adjudicate to the contrary. 
Even had the question now brought before us been 
a Federal question it would have been eliminated from 
the cas'e in the former appeal by our action in basing 
our affirmance upon other grounds. [Waters-Pierce Oil 



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328 SUPREME COURT OF MISSOURI. 

Barber v. Ins. Ca 

Co. V. Texas (No. 1), supra; Missouri, Kansas and 
Texas Ry. Co. v. Ferris, 179 U. S. 602; Harrison v. 
Morton, 171 U. S. 38 ; Glue Company v. Glue Company, 
187 U. S. 611.] Only such questions as were before the 
Supreme Court of the United States Hnd were de- 
cided by it became the law of the case by force of its 
judgment. Its opinion in express terms confines its 
decision entirely to the two Federal questions, to which 
we have already referred, and places its judgment upon 
the sole ground that, in our judgment, we failed to give 
full faith and credit to the Connecticut record in the 
Dresser case. We are without authority to extend the 
force and effect of that decision to other questions of 
which that court had no jurisdiction and did not at- 
tempt to determine. [In re Potts, Petitioner, 166 U. S. 
263; Mutual Life Insurance Co. v. Hill, 193 U. S. 
551; . Ex parte Union Steamboat Co., 178 U. S. 317; 
In re Sanford Fork and Tool Co., 160 U. S. 247; Bar- 
ney V. Winona Ry. Co., 117 U. S. 228.] 

Our judgment remanding the cause to the Johnson 
Circuit. Court for retrial was in full accord with the 
mandate of the Supreme Court of the United States, 
and gave the trial court full jurisdiction, not only to 
retry the issues of fact presented by the pleadings in 
the first trial in accordance with the principles an- 
nounced in the judgment and opinion of the Supreme 
Court of the United States, but also to ref rame those 
issues as provided by our Code. A retrial does not 
mean a mere replica of the former trial, but is a trial, 
as the term implies, in the light of the experience and 
knowledge which may have been acquired in the in- 
terval. This question was fully discussed by us in Wil- 
cox v. Phillips, 260 Mo. 1. c. 676, 677-8. 

n. The real question upon which this case seems 
to have turned in the trial court is whether or not, by 
the terms of this certificate, the insurance was for- 
feited by the failure of the insured to pay the assess- 
ment made as of March 1, 1910. It is admitted that 



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Vol. 279 APRIL TERM, 1919. 329 



Barber y. Ins. Co. 



this assessment, as well as all other quar- 
^ciuding Tax terly assessments made to pay losses since 
Assessment. the issue of the certificate in September, 

1893, included a charge for taxes assessed 
or to be assessed by and paid to the State of Missouri 
by the defendant under the following provision of the 
contract: **If the laws of any country. State, coimty or 
municipality shall require a tax to be paid by said 
company on account of such payments, then the mor- 
tality calls thereon shall be determined so as to cover 
such tax.'^ It is contended by defendant that the law 
of the State of Missouri now embodied in Section 7099, 
Revised Statutes 1909, requiring the payment of a tax 
of two per cent upon premiums received on account of 
business done in this State, also required the payment 
of a tax similar in amount on all mortuary assessments 
made and collected from the holders of certificates or 
policies issued on the assessment plan, and that such 
liability of the insurer would constitute a valid charge 
against the insured under the terms of this certificate. 
In this way the defendant had, during the life of this 
policy, assessed and collected from Barber upon its 
quarterly assessments $11.93 as tax required by the 
laws of this State. In no case, nor at any time, had it 
been revealed to him by the form of the notice of such 
assessment or otherwise, that it included any such item 
or was made upon that plan. We cannot assume that 
he was advised by law of an unlawful charge, nor of 
fact which was not disclosed by the data in his posses- 
sion. The assessment in question included the tax 
which, upon defendant's theory, was afterward to be 
paid to the State. The question is whether this tax 
was exacted by the State by the statutory provision 
above cited. 

It is unnecessary, in view of the former decisions 
of this court, to elaborate this question otherwise than 
by citing those cases. The word ** premium," in its 
application to insurance contracts, has a well settled 
meaning. The meaning of the word ** assessment" in 



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330 SUPREME COURT OF MISSOURI. 

Barber v. Ins. Co. 

the same connection is equally well understood. It is 
upon this distinction that life insurance is divided by 
our Legislature into two general classes or plans, called 
the stipulated premium plan (Sec. 6963, R. S. 1909) and 
the assessment plan (Sec. 6950 Id.). As early as the 
October term, 1896, this court had before it the same 
question in Masonic Aid Association v. Waddill, 138 
Mo. 628. Referring to the taxation of assessment com- 
panies under this same provision we said: **To hold 
that moneys received by them as ^assessments^ under 
this plan are ^premiums' within the meaning of Section 
2 (5958), which is now one of the * provisions or require- 
ments of the general insurance laws of this State,* 
would not only be to confound terms and disregard 
the well defined distinction made between them by 
the statute as a whole, but to ignore or directly contra- 
vene this proviso of Section 5869." These reterences 
are to the Revised Statutes of 1889. The same ques- 
tion was last before us in Young v. Hartford Life 
Insurance Company, 277 Mo. 694, in which the in- 
termediate decisions of this court and the Courts of 
Appeals were cited, and the cause disposed of by 
holding that the assessment including the two per cent 
tax was void, and that its nonpayment constituted no 
ground for the forfeiture of the insurance. This case 
is peculiarly applicable, the certificate having been is- 
sued against the same fund as the one now in question, 
and upon the same terms with reference to forfeiture 
by non-payment of assessments. 

These cases are founded upon a marked legislative 
distinction between a tax upon a burden resting upon 
the insured, in which the insurer can have no interest, 
but is a mere conduit between him and his associates, 
.and the ordinary excise tax upon the receipts from 
the business of an insurer from which its profits are 
derived. In this case, which is a typical one, a separate 
payment is exacted from the insured for expenses which 
necessarily includes the profits of the company, while 



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Vol. 279 APRIL TERM, 1919. 331 



Barber v. Ins. Co. 



the tax is recouped from the mortuary assessment alone. 
These simply represent a mutual burden. 

While the legislative policy requires no justifica- 
tion, we think it stands on solid ground. 

in. The defendant makes the point that it is doing 
this assessment business without a special license 
therefor, but simply as an old-line joint-stock company. 
MakMhifi: -A.ppropriating the language of the Supreme 
Court of the United States in the same case, 
we are inclined to consider this a mere makeshift, 
which adds nothing to the substantial basis of this 
case. Whatever profit it may have made from its 
wrong must bear the burden of the resulting loss. 

rv. The defendant has asked with much earnestness 
for our consideration of the fact that in the assess- 
ment involved in this case the tax amounted only to 
fifteen cents, and insists that the entire mortuary fund 
to which it accrues belongs to the certificate-holders, and 
that it is inequitable therefore to sustain this 
52^ certificate against its attempted cancellation. . We 
see no force in this contention. The law, it is 
said, abhors a forfeiture. This aversion has resulted 
in the rule that it may be prevented by construction 
as technical as that by which it is invoked. In this 
case the deceased has not only paid illegal exactions 
amounting to nearly, if not quite, the amount of his 
alleged delinquency, but has paid a considerable sum 
into a fund which is held for distribution among living 
certificate-holders when the amount of insurance in 
force shall have decreased to one million dollars. The 
defendant ceased to issue this class of insurance in 
1899, and the time of distribution is rapidly approach- 
ing. While equities are not available in cases of this 
character, we can see no equity in the defendant which 
can call for mitigation of the legal rule. We have 
referred to this question in greater detail in Barber 
V. Hartford Insurance Company, supra, and Young v. 
Hartford Life Insurance Company, supra. 



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332 SUPREME COURT OF MISSOURI. 

Ranus v. Boatmen's Bank. 

V. We see nothing in the fact that we, when the 
cause was first before ns, committed error in the de- 
cision of the Federal question upon which our judg- 
ment was reversed, which affects the right of plaintiff 
to damages and attorney's fees. We think 
roM."**^'* the question was properly and fairly sub- 
mitted. [Barber v. Ins. Co., 269 Mo. 1. c. 
42, and cases cited.] 

Holding, as we do, that the certificate sued on was 
not by its terms subject to cancellation for failure to 
pay the assessment in question and finding no other 
error in the record, we aflBrm the judgment of the Cir- 
cuit Court for Johnson County. Railey, C, not sitting. 

PER CURIAM:— The foregoing opinion of Brown, 
C, is adopted as the opinion of the court; Blair, F. J., 
and Bond and Graves, J J., concur. 



ESTHER LENORE RANUS, By Her Next Friend, E. 
L. WlNTERMAN, v. BOATMEN'S BANK, Ap- 
pellant. 

Division One, July 9, 1919. 

1. NEOUOENCE: Insui&cient Fire Escapes: Death in Dormitory. 
Section 10663, Revised Statutes 1909, relating to fires escapes, is 
applicable to the City of St. Louis, and the death of a member of 
an athletic club while asleep in the fifth floor wlien the building 
was destroyed by fire aftords a basis for a legitimate inference 
that his death was caused by the negligence of the owner in fail- 
ing to comply with the statutes and ordinances relating to fur- 
nishing fire escapes. 



: : Question for Jury. If the building which deceased 

occupied at the time it was destroyed by fire, which caused his 
death, falls within the classification designated in the statutes 
and ordinances, and was not supplied with the fire escapes required 
by them, the question of whether Insufl&cient fire escapes was the 
proximate cause of his death is one for the Jury. 



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VoL 279 APRIL TERM, 1919. 333 



Ranos y. Boatmen's Bank. 



8. : : Donnitory: Definition. The common and ordinary 

significance of the word "dormitory" is a place for sleeping; and 
the fifth floor of an athletic club, on which 93 rooms were dis- 
tinctly reserved for sleeping quarters and accommodation of its 
members, with provision for increasing the number of such 
rooms to 130, was a dormitory within the meaning of the stat- 
ute and ordinance, which required that "all buildings of non-fire- 
proof construction, three or more stories in height, used for manu- 
facturing purposes, hotels, dormitories, schools, seminaries, hospi- 
tals or asylums, shall have not less than one fire escape for every 
fifty persons, or fraction thereof, for whom working, sleeping or 
living accommodations are provided above the second floor." And 
the evidence being that the building destroyed by flre did not have 
the requisite number of flre escapes, the question of whether the 
insufllcient supply was the proximate cause of the death of a mem- 
ber of the club asleep in the dormitory was one for the Jury. 

4. : : : Owner's Knowledge of Use. There is no 

necessity of further proof that the owner of the building had 
knowledge that its lessee, an athletic club, was using the fifth floor 
of the leased premises for "dormitory" or sleeping purposes prior 
to the flre which destroyed the building, than the undisputed fact 
that the building and such floor had been so used for eleven years, 
during all of which time the owner occupied a portion of it. 

Appeal from St. Louis City Circuit Court. — Hon. Wm. 
M. Kinseyj Judge. 

Affibmeix 

Lehmann & Lehmann and Faimtleroy, Cullen £ 
Hay for appellant. 

(1) The building was not a hotel or dormitory, 
(a) If appellant was under any duty to construct fire 
escapes upon the building in question, it was obligated 
to construct only such fire escapes as were required and 
designated by the Building Commissioner of the City 
of St. Louis. R. S. 1909, sec. 10668. (b) The building 
in question was not used for manufacturing purposes, 
was not a hotel, dormitory or school, seminary, hospital 
or asylum and hence no one was obligated to construct 
thereon one fire escape for every fifty persons for whom 
working, sleeping or living accommodations were pro- 
vided above the second story. Sees. 6720, 10668, E. S. 



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334 SUPREME COURT OF MISSOURI. 

Ranus y. Boatmen's Bank. 

1909; Metzler v. Terminal Hotel Co., 135 .Mo. App. 
410; 4 Words & Phrases, p. 3349; Hillsdale v. Ride- 
out, 82 Mich. 94; 1 Corpus Juris, p. 922; Common- 
wealth V. Pomphret, 137 Mass. 564. (c) It was, there- 
fore, reversible error for the court by Instruction No. 
1 to authorize the jury to find that the building was a 
hotel or dormitory, and to refuse to give Instruction E. 
requested by appellant. (2) The word '' owner '^ as 
used in the fire escape laws (Sec. 10666, R. S. 1909; 
Sec. 421, St. Louis Ordinances 1912) means the person 
** standing in the shoes of the owner," and having the 
dominion and control of an owner. Bender v. Weber, 
250 Mo. 563, 566; Behre v. Hemp, 191 S. W. 1042; 
Roman v. King, 202 S. W. 592; Griffin v. Freeborn, 
181 Mo. App. 206; Roberts v. Cottey, 100 Mo. App. 
503; Roth v. Adams, 185 Mass. 345; Radley v. Knep- 
fly, 104 Tex. 130 (a fire-escape case) ; Helling v. Boss, 
121 N. Y. S. 1013 (a fire-escape case) ; Jourdan v. Sulli- 
van, 181 Mass. 348; Margolius v. Muldberg, 88 N. Y. 
S. 1048; Boutell v. Shellaberger, 264 Mo. 78, 81. 
A duty, carrying a weight as grave as the responsibil- 
ity for human life itself, cannot be supported on a 
foundation as insubstantial as the baseless fabric of a 
name. In order to support the weight of such a duty 
there must be either: (a) A present legal ability to 
perform such duty; or (b) An act done to create, or 
helping to create, such duty; or (c) An act establish- 
ing or helping to establish the conditions to which such a 
duty is by law attached. Mo. Const, sec. 30, art. 2 ; U. S. 
Const. 14th Amend, sec. 1 ; and authorities above. There 
is no evidence in this case that appellant was in control 
of the building, or that it leased the building for one of 
the purposes designated in the fire escape laws (so as 
thereby to create a duty to construct fire escapes, accord- 
ing to the rule insisted upon by respondent), or that it 
ever was a party to any act which brought the building 
within one of the classes so covered by the fire escape 
laws (if it ever was brought within any such class). 
(3) An owner will not be held liable for breach of the 



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Ranus v. Boatmen's Bank. 



fire escape laws unless he has leased his property for 
a use within such laws, or unless he knows, or by the 
exercise of ordinary care would know, that his proij- 
erty is being devoted to such use. Yall v. Snow, 201 
Mo. 525; Bell v. LesUe, 24 Mo. App. 668. (4) There is 
no evidence whatever in this case that appellant knew, 
or by the exercise of ordinary care would have known, 
that the Missouri Athletic Club building was being used 
in a manner or for a purpose which brought it within 
the scope or operation of the fire escape laws or any of 
them, so as to require the number of fire escapes held 
by the lower court to be necessary. (5) If Mr. Ranus 
were in fact killed in the fire, his death ipay have re- 
sulted from any one of the following causes, viz: (a) 
The *' highly combustible, dangerous and totally unfit'* 
character of the building; (b) The *' highly inflam- 
mable and extremely dangerous*' nature of the altera- 
tions and furnishings and equipment, with which Mr. 
Ranus and his fellow members supplied their club 
building; (c) A violent explosion, which occurred a 
few minutes after the fire started, which immediately 
spread the flames all over the building, and which de- 
feated all further exodus on the part of the doomed 
inmates; (d) A defect in the gas connections, which 
caused the fire to rage with unprecedented violence, 
and to remain beyond control until the gas pipes were 
dug up. ''If the injury may have resulted from one 
of two causes, for one of which and not the other the 
defendant is liable, the plaintiff must show with reason- 
able certainty that the cause for which the defendant 
is liable produced the result, and if the evidence leaves 
it to conjecture, the plaintiff must fail in his action." 
Warner v. Railroad, 178 Mo. 134; Graefe v. Transit 
Co., 224 Mo. 263. 

Leonard & Sibley for respondent. 

(1) The building was a hotel or dormitory, (a) 
The building was of non-fireproof construction, three or 



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336 SUPREME COURT OP MISSOURI. 

Ranus y. Boatmen's Bank. 

more « stories in height, used for a hotel or dormitory, 
and nnder the law was obliged to have ''not less than 
one fire escape for every fifty persons or fraction there- 
of for whom working, sleeping or living accommodations 
are provided above the second story/' Sec. 10668, R. 
S. 1909. (b) The fire escape law (Sees. 10666-10671, R. 
S. 1909, and Sees. 317, 318, 337, 338, 421, Ordinances 
St. Louis of 1912, and Sees. 101, 38, 40, 100, 94, Ordi- 
nances St. Louis of 1900) is remedial legislation, and 
as such is to be construed liberally with a view to 
effectuate the legislative intention of saving human life. 
Yall V. Snow, 201 Mo. 521; Rose v. King, 49 Ohio, 
St. 226. (c) Not only is the law to be construed liberally 
in the interest of the public, and strictly against the 
owner, but also the general rule of construing statutes, 
viz., search for the intention of the Legislature in en- 
acting these police regulations. ''What is within the 
clear meaning and implication of an enactment is as 
much a part of it as its very letter." Bryant v. Russell, 
127 Mo. 430; 2 Sutherland on Statutory Construction, 
sec. 695. (d) The word ** dormitory," as used in modem 
law, means '*a place, building or room, to sleep in." 
Century Dictionary; Words & Phrases; 14 Cyc. 868; 
Webster's New International Dictionary, (e) The word 
''hotel," as used in modem law means "a house for 
entertaining strangers or travelers;" " a place where 
transient guests are admitted to lodge, as well as 
where they are fed and lodged." Webster's New 
International Dictionary; Century Dictionary; Metzler 
V. Hotel Co., 135 Mo. App. 416. (2) The owner of a 
building cannot shift his responsibility. He is bound, 
under the law, to equip the building with a sufficient 
number of legal fire escapes. Johnson v. Snow, 201 Mo. 
450; Yall v. Snow, 201 Mo. 511; Contant v. Snow, 201 
Mo. 527. It is immaterial whether or not he has leased 
the building. Yall v. Snow, 201 Mo. 522; Landgraf v. 
Kuh, 188 HI. 493; Johnson v. Snow, 201 Mo. 455. The 
owner does not trespass, in entering on leased property 
for the purpose of erecting fire escapes. Yall v. Snow, 



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Vol. 279 APRIL TERM, 1919. 337 



Ranus ▼. Boatmen's Bank. 



201 Mo. 525. The owner cannot wait for the building 
commissioner to prod him into action. Steiert v. Coulter, 
102 N. E. (Ind. 1913) 13; Willy v. MuUedy, 78 N. Y. 
314; Carrigan v. Stillwell, 98 Mo. 253. (3)AppeUant 
conjectures that, (a) the '^ highly combustible" nature 
of the building, and (b) the *' highly inflammable" na- 
ture of the alterations may have caused the death of Mr. 
Ranus. It is not conjecture, but a certainty, that they 
caused the building to rank as of ** non-fireproof con- 
struction" (Sec. 10668, R. S. Mo. 1909; Sec. 421, Rev. 
Code of Ordinances, St. Louis. 1912), and required it to 
be equipped with the legal number and legal kind of 
fire escapes. It is obvious that, if the building was not 
inflammable, and combustible, it would not have burned 
and the need of hasty exit by the fire escapes would not 
have developed. The statutes requiring fire escapes were 
enacted for the protection of those persons housed, em- 
ployed and lodged within an inflammable and combusti- 
ble building. It is an odd argument to advance — that the 
owner is excused for failure to equip the building with 
proper fire escapes because the building was of such 
peculiarly dangerous and inflammable construction that, 
in the event of fire, those within would probably be 
burned to death before they could reach fire escapes, 
anyway. (4) The question of proximate cause in this 
case was for the jury. The law does not countenance a 
rule by which *4t is possible for those only to sue who 
are crippled, but which so seals u,p the facts and the 
law when the lips of the dead are sealed that no action 
may be brought for their death. Such a view penalizes 
the innocent for the benefit of the guilty." ''Where, as 
here, these fire-appliance laws are violated, and death, 
unexplained, except by the physical facts, occurs by 
fire in the burning of a building not equipped with the 
required appliances, but which is by law required so to 
be, the rule of res ipsa loquitur should be invoked to 
take the case to the jury." Burt v. Nichols, 264*^ Mo. 1; 
Arnold v. Natl. Starch Co., 194 N. Y. 42; Landgraf v. 
Kuh, 188 HI. 500. 

22—279 Mo. 



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338 SUPREME COURT OF MISSOURI. 

Ranus v. Boatmen's Bank. 

BOND, C. J. — Esther Lenore Ranus, the infant 
child of Arthur T. Ranus, recovered, a judgment of ten 
thousand dollars against the Boatmen's Bank for al- 
leged negligence, which caused the death of her father. 

On Apirl 9, 1914, at two o'clock in the morning, the 
seven-story brick building at the corner of Washington 
Avenue and Fourth Street, in the City of St. Louis, 
was completely destroyed by fire. The building was oc- 
cupied by the Missouri Athletic Club, for club purposes, 
with the exception of one hundred and thirty-five feet on 
the Fourth Street side and fifty feet on the Washington 
Avenue front, which was reserved for and occupied by 
the Boatmen's Bank, the owner of the building. 

On March 2, 1903, the bank leased to the Missouri 
Amusement & Club Supply Company, the part of the 
building above mentioned, said lease to expire April 1, 
1913. Later the bank executed another lease, dated June 
30, 1910, effective April 1, 1913, and expiring ten years 
later, to the Missouri Athletic Club, the original lessee 
(The Missouri Amusement & Supply Company) having 
gone out of business. The latter lease covered the same 
portion of the building as the former. Both leases pro- 
vided for use of the building as a social and athletic 
club; that the lessee would keep it in good order and 
make, at its cost and expense, all repairs necessary 
(except as to roof, gutters, etc.); that the premised 
should not be used for any purpose considered more 
than ordinarily hazardous by the Board of Insurance 
Underwriters, and that the lessee take over all machin- 
ery, steam heating and elevator plants, and furnish 
heat, etc., to the lessor during the life of the lease. 

The building in question was not fire-proof, as under- 
stood to-day, but was what is known as the slow-com- 
bustion type, and previous to its occupancy by the 
Missouri Athletic Club was used by the Shapleigh Hard- 
ware Company as warehouse, with general oflBces on 
the first floor. The ceiling of the bank's quarters, how- 
ever, which was virtually on a level with the ceiling 
of the second floor, was composed of fireproof material 



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Vol. 279 APRIL TERM, 1919. 339 



Ranus v. Boatmen's Bank. 



which successfully withstood the terrific heat, as the 
bank's quarters were found to be intact after the con- 
flagration. 

On the consummation of the lease, the club under- 
took to remodel the building to suit the purposes of a 
club. In the basement a swimming tank and Turkish 
baths were installed; the first floor was laid with tile, 
the walls decorated and the space divided into lobby, 
office, etc. ; the second floor was converted into a billiard 
room, a new wooden floor laid and a drop ceiling put 
in; the third floor was converted into a dining room 
with kitchens adjoining, and a portable wooden stage 
was provided for entertainments, equipped in the usual 
way; the fourth floor was made into bowling alleys, 
and the fifth and sixth floors were partitioned into 
/'sleeping dormitories or apartments'^ (96 in number), 
and the seventh floor was turned into a gymnasium. 

The building was equipped with a spiral fire escape 
on the Washington Avenue front, running to the sev- 
enth floor, which was in conformity with the city ordi- 
nances at the time it was built, and several years there- 
after platforms were added running around the comer 
of the building to the fifth and sixth floors, said plat- 
forms extending over the roof of the adjoining building. 
There was also an inclosed stairway at the north end of 
the building intended for use in case of fire, and an out- 
side fire escape on the Fourth Street side of the build- 
ing. Both of these were built at the time the alterations 
were made by the club, and the east side escape was 
planned and erected in conformity to city ordinances, 
and said plans were submitted to and approved by the 
building commissioner. The escape on the east side 
passed various windows in its descent to the ground. 
All the alterations to the building were made with the 
consent and by the authority of the defendant bank. 

On the day before the fire Mr. Ranus was passing 
through St. Louis on his way to Kansas City, where he 
expected to enter into new business relations. He spent 
the day with a business associate, and after registering 



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340 SUPREME COURT OF MISSOURI. 

Ranus v. Boatmen's Bank. 

at the club and being assigned to Room 36 on the fifth 
floor, his friend, who is probably the last "person who 
saw him alive, left him there about one o'clock in the 
morning, just one hour before the fire. Four or five days 
thereafter his body was found buried in rubbish a little 
north of the central elevator shaft on the first floor. 
From the unburned portions of his trousers his watch 
and keys were taken. 

In her petition plaintiff pleaded violation of Sec- 
tions 10666, 10667 and 10668, Revised Statutes 1909, 
the pertinent parts of which are hereafter quoted, and 
further pleaded Section 421 of the Revised Code of St. 
Louis, which provides for the kind and description of 
fire escapes and their number and location by the Build- 
ing Commissioner of Public Buildings, and adds, to-wit : 

** Provided, however, that all buildings of non- 
fire-proof construction, three or more stories in height, 
used for manufacturing or mercantile purposes, hotels, 
dormitoriesy schools, seminaries, hospitals or asylums 
shall have not less than one fire escape for every fifty 
persons for whom working, sleeping or living accom- 
modations are provided above the second story ; and all 
public halls which provide seating room above the 
first story shall have such a number of fire escapes 
as shall not be less than one fire escape for every hun- 
dred persons calculated on the seating capacity of the 
hall, unless a different number is authorized in writing 
by the commissioner of .public buildings. 

*' Whenever a fire escape attached to any building 
shall be found to be in an unsafe condition it shall 
be the duty of the owner, lessee, proprietor of said 
building to forthwith rebuild or repair the same or 
replace the same in a safe condition, subject to the penal- 
ties of this article. [R. C. St. Louis (Rombauer) 1912.J 
(Italic© ours). 

Defendant's answer admitted the membership of 
the deceased in the Missouri Athletic Club, denied other 
allegations, and averred that as such member he as- 
sented to the terms and conditions under which the 



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Vol. 279 APRIL TERM, 1919. 341 



Ranus y. Boatmen's Bank. 



lessee occupied said building, and that as such member 
he had the further right to control or protest against 
the construction, state of repair, equipment and means 
of protection in case of fire, and that he voluntarily 
occupied a room in said building without due exercise 
of care for his own safety. 

From a judgment for ten thousand dollars entered 
in plaintiff's favor, the defendant duly appealed. 

I. The grounds of action in this case are that the 
building demolished by fire was one of a class which fell 
within the definition of the general statutes of this 
State and the accordant ordinances of the City of St. 
Louis, requiring the owners thereof to provide specified 
fire escapes ; that the defendant, the owner of the fee of 
the building, failed to perform this statutory duty and 
on that account became responsible in damages to plain- 
tiff for the death of her father caused by the burning of 
the building in question. 

That the statute relied on (which was enacted 

in 1901 and with subsequent amendments is now Sec. 

10668, R. S. 1909) is applicatory to the City of St. 

Louis has been expressly adjudged by both 

divisions of this court. [Jackson v. Snow, 

201 Mo. 450; Yall v. Snow, 201 Mo. 511.] 

That a death, in circumstances like the present, 
affords a basis for a legitimate inference that It was 
caused by the negligence of the owner in failing to 
comply with statutes and ordinances regulating the 
furnishing of fire escapes, has been expressly adjudged 
by Division Number Two, where it was held that the 
circumstances attending a loss of life by fire were evi- 
dentiary and would take the case to the jury to de- 
termine, by legitimate inferences therefrom, whether or 
not the conflagration was the proximate cause of the 
death sued for. [Burt v. Nichols, 264 Mo. 1. c. 18.] 

Under these rulings it necessarily follows that if 
the building heretofore described as having been leased 
for ten years to the Missouri Athletic Club falls within 
the classification of the statutes and ordinances invoked 



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342 SUPREME COURT OF MISSOURI. 

Ranus v. Boatmen's Bank. 

by plaintiff, a case was made for the jury, since it is 
conceded that it was not supplied with the iBre escapes 
described and required by the terms of Section 10668, 
Revised Statutes 1909, the pertinent parts of which are, 
to-wit : 

''The number of fire escapes to be attached to any 
one building as required in this article shall, when the 
building is locat.ed within a city, be determined by the 
commissioner or superintendent of public buildings 
within such city . . . Provided, however, that all 
buildings of non-fire-proof construction, three or more 
stories in height, used for manufacturing purposes, 
hotels, dormitories, schools, seminaries, hospitals or 
asylums, shall have not less than one fire escape for 
every fifty persons, or fraction thereof, for whom work- 
ing, sleeping or living accommodations are provided 
above the second story . . . unless a different num- 
ber is authorized in writing by the commissioner or 
superintendent of buildings." [R. S. 1909, sec. 10668.] 

This statute is almost literally copied in tlie con- 
cluding part of the second clause of Section 421 of the 
Revised Code of St. Louis (Rombauer, 1912) quoted 
above. This statute and this conformatory ordinance 
present, therefore, the first question to be ruled on this 
appeal, which is, whether or not the building in question 
fell within any of the descriptions and classifications 
of non-fire-proof buildings mentioned in the statute. 

In order to resolve this question it is only necessary 
to refer to the use of the word ''dormitory'' both in the 
statute and in the ordinance. The common and ordinary 
significance of this English form of a Latin word is a 
place for sleeping. The building in question provided 
ninety-three distinct rooms for sleeping purposes and 
also accommodations which would have supplied one 
hundred and thirty people places to sleep. Although the 
people entitled to these sleeping quarters and accom- 
modations were restricted to members of the club or 
their guests, that limitation in nowise contravenes the 
fact that the building itself was a dormitory and could 



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Vol. 279 APRIL TERM, 1919. 343 



Ranus v. Boatmen's Bank. 



be occupied as such by one hundred and thirty people. It, 
therefore, in the strict sense of the term, fell within the 
purview and intendment of the statute and ordinance 
when they required that a dormitory in a building con- 
structed like the one in question should be supplied with 
fire escapes by the owTier or lessee of the prescribed kind 
and number. We do not think any other conclusion can 
be arrived at upon a full and fair consideration of 
the import and meaning of the word '* dormitory" as 
used in the statute and ordinance, in view of the fact 
that both of these regulatory laws have been, held to 
be highly remedial and entitled to a broad and liberal 
interpretation (Yall v. Snow, 201 Mo. 1. c. 521), and 
that they are a legitimate exercise of the police powers 
of the State and the City to prevent the loss of human 
life. 

It follows that the question as to the applicability 
of the statute and the local ordinance must be resolved 
in the aflfirmative. 

II. It is urged by appellant that there was no evi- 
dence of knowledge of defendant of the use to which its 
building was put. In answer to this it may be said there 
was no necessity of further proof of knowl- 
^ ' edge on the part of defendant that the build- 
ing in question was used as a dormitory, than the un- 
disputed fact that it had been so used for about eleven 
years, during all of which period the defendant bank 
occupied a portion of it. With the knowledge thus im- 
puted, it became the duty of defendant to take cogni- 
zance of and conform to the statutes and ordinances re- 
quiring it to provide specified fire escapes for the pre- 
vention of a human holocaust such as took place when 
this building was burned. 

m. We have examined the instructions complained 

of by appellant and are unable to concur in its view that 

they invaded the province of the jury or 

were repugnant or transcended the allega- 



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344 SUPREME COURT OF MISSOURI. 

Starr v. Crenshaw. 

tions of the pleadings or contained misdirection requir- 
ing a reversal of this judgment. 

The judgment of tiie trial court is affirmed. 

It so ordered Blmr, P. J., and Graves, J., concur. 



J. G. STAEK, Appellant, v. G. L. CRENSHAW. 

DlYislon Two, July 16, 1919. 

1. PT7BCHASE OF LAND: Unilateral Contract: Mutuality Supplied. 
A mere option agreement to sell land, though in its inception uni- 
lateral and lacking in mutuality, may, when bottomed on a valu- 
able consideration and accepted by the promisee within the time 
limited by the px;omisor, form the basis of an action for specific 
performance. 

2. : : : — 2 Consideration: Extension. The word con- 
sideration is correctly defined as a benefit to the party promising, 
or a loss or detriment to the party to whom the promise was 
made. An extension by the vendor of the option agreement for 
thirty days, made on the last day of the option period and bot- 
tomed on a valid consideration, if accepted by the vendee on 
any day before the extension period expired, is enforcible and can- 
not be withdrawn before the expiration of such period; and if 
the vendor agreed to extend the option for thirty days upon con- 
dition (a) that the vendee give the vendor a certified copy of the 
report of his drillings for coal on the land and (b) pay interest 
on all deferred payments from the beginning of said thirty days 
in the event he should buy, and he unequivocally accepted the 
terms of purchase, and continued the drillings, though he did not 
furnish the certified report, which could be of no value to the 
vendor after the vendee's acceptance, there was a valuable con- 
sideration for the agreement, and the vendee is entitled to specific 
performance. 

3. : Breach of Contract for Other Seasons. A breach of the op- 
tion contract to purchase land, by the vendor before the expiration 
of the option period, for reasons other than the vendee's failure to 
perform, relieved the vendee from doing the vain and useless 
thing of furnishing a certified report of his drillings for coal on 
the land, called for by the agreement before the vendee had ac- 
cepted the terms of purchase, but no longer of practical utility 
after he had accepted, although the drillings themselves furnished 
the consideration for the agreement 



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Vol. 279 APEIL TERM, 1919. 345 



Starr y. Crenshaw. 



Appeal from Barton Circuit Court. — Hon. B. G. Thur- 

man, Judge. 

Ebvebsed and bemanded {iuith directions.) 

Fred W. Kelsey and E. F. Cameron for appellant. 

(1) It is conceded that an option to purchase land 
must be supported by a consideration or it can be with- 
drawn at any time prior to its acceptance. The option 
of February 1, 1916, or rather the renewal of the old 
option of that date was supported by a suflBcient con- 
sideration to keep it open until March 1, 1916. Cren- 
shaw offered to extend the option provided Starr would 
do two things: (a) Furnish reports of drilling and (b) 
pay interest on deferred payments from February 1, 
1916, instead of from the date the deal was finally con- 
summated. 6 Am. & Eng. Enc. (2 Ed.), 721 (8), note 
6 ; Green v. Brooks, 81 Cal. 328. If the respondent desir- 
ed the information as to the location of coal on the land 
drilled by Starr it was suflBcient to support a considera- 
tion for a contract. Reed v. Golden, 28 Kan. 451, 42 
Am. Rep. 180. A consideration may be defined as a bene- 
fit to the party promising, or a loss or detriment to the 
party to whom the promise is made. 13 C. J. 311 (144A). 
There is a consideration if the promisee, in return for 
the promise, does anything legal which he is not bound 
to do, whether there is any actual loss or detriment to 
him or actual benefit to the' promisor or not. 13 C. J. 
315 (150) and 316; Glade v. Ford, 131 Mo. App. 164. 
After February 1st, Starr did drilling at his own ex- 
pense and furnished the information to Crenshaw. This 
is of value to Crenshaw. Crenshaw obtained this infor- 
mation and if he is permitted to repudiate his promise or 
agreement to convey he would thereby be enabled to per- 
petrate a fraud upon Starr. 13 C. J. 318. (2) The prime 
function of courts of justice is to enforce the written law 
and enforce established contracts — the contract being as 
between the parties hereto but the law unto themselves. 



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346 SUPBEME COURT OF MISSOURI. 

Starr v. Crenshaw. 

Evans v. Evans, 196 Mo. 23. (3) When Crenshaw at- 
tempted to withdraw the land from the market, that 
excused Starr from further carrying out any of the 
terms of his contract of option and making further 
reports as to the drilling. 6 R. C. L. sec. 374, p. 1012 ; 
Claes Mfg. Co. v. McCord, 65 Mo. App. 507; 9 Cyc. 635. 
(4) The fact that Crenshaw cannot convey all of the 
title does not relieve him from conveying that which he 
has, and Starr is entitled to receive such title as he 
has with an abatement out of the purchase money for so 
much as he cannot deliver. McGhee v. Bell, 170 Mo. 133 ; 
Story on Equity Juris. (13 Ed.) sec. 779. The inchoate 
right of dower should be deducted from the purchase 
price of this land. Tebeau v. Ridge, 261 Mo. 574. 

H. W. Timmonds for respondent. 

(1) An option giving the appellant a right to pur- 
chase respondent's land, without binding the appellant 
to purchase, and without consideration, is not enforce- 
able against the respondent. Davis v. Petty, 147 Mo. 
382; Wallace v. Figone, 107 Mo. App. 367. The option 
given appellant that expired February 1st had no con- 
sideration therefor in any respect, but was merely a 
privilege or permission to enter respondent's land and 
drill to ascertain the amount of coal underlying this 
land. This option was extended by respondent on con- 
dition that appellant would give respondent a certified 
report of his drillings and pay interest on the deferred 
payments from February 1st if appellant concluded to 
buy the land— a consideration for the extension of the 
option, but no consideration in any contract to sell the 
land. Even if so, no certified report of appellant's drill- 
ings was ^ven respondent. The drillings from the man 
who did the drilling, let alone giving respondent a cer- 
tified report, as he agreed to do. This report of the 
drillings now claimed by appellant to be the considera- 
tion to support the alleged contract sued upon is merely 
a pretext, certainly not of suflScient importance to sus- 



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Vol. 279 APBIL TEEM, 1919. 347 



Starr y. Crenshaw. 



tain a contract. (2) Even where there is a binding legal 
contract for the sale of real estate, a decree for specific 
performance thereof does not go as a matter of course, 
but is granted or withheld as the equity of the case de- 
mands. Brown v. Massey, 138 Mo. 532 ; Davis v. Pett}', 
147 Mo. 385. (3) There must be a consideration for an 
option to make it a binding contract and enforceable. 
A mere option to buy land within a specified time does 
not give either party any claim for damages. Huggins 
V. Stafford, 67 Mo. App. 474; Eamsey v. West, 31 Mo. 
App. 676. And may be withdrawn at any time before 
acceptance. 

FAEIS, J. — This is a proceeding in equity by which 
it is sought to compel specific performance of a certain 
option to convey the Southwest quarter of Section 28, 
in Township 32, Eange 33, in Barton County, Missouri. 

The petition is so far in conventional form as that 
no attack is made thereon by defendant. Among other 
things, this petition contains an offer by plaintiff of 
his willingness, ability and readiness to pay into court 
the sum agreed on, and ''to do each and every thing 
required of him by said agreement and option," and 
he further avers that he ''has at all times been willing 
to perform his part of said agreement, and that defend- 
ant has refused to accept said performance, and has 
repudiated and seeks not to be bound by said agree- 
ment." 

The answer of defendant is a general denial, and 
a specific denial of the legal effect of the alleged option 
agreement and contract, coupled with the averment 
that said option was without any consideration what- 
ever, and that it was withdrawn by the defendant before 
it was accepted by the plaintiff, and that plaintiff for 
this reason has no right, or claim, or interest in said 
land, or any cause of action against defendant. 

The evidence offered consisted largely of letters and 
telegrams which passed from time to time between plain- 
tiff and defendant. There was an admission that defend- 



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348 SUPEEME COtJET OF MISSOURI. 

Starr v. Crenshaw. 

ant *4s the owner of the property described, to- wit, 
the Northwest [sic] quarter of Section 28, Township 
32, except Mrs. H. C. Timmonds owns an undivided one- 
half interest in the west half of said Southwest quarter 
section ; and that Mr. Crenshaw is a married man aged 
62, and his wife^s age is 58." 

On the 8th day of December, 1915, defendant, in 
answer to a letter of plaintiff, wrote plaintiff from 
Los Angeles, California, a letter, which, omitting formal 
parts and signature, reads thus : 

Yours of the 3rd inst. received and noted. Regarding the 
price of my coal land SW14 28, 32, 33, Barton County, Mo., wlU 
say I am holding it at $18,000 net; $6000 cash, balance in 3 equal 
annual payments of $4000, 6% interest, payable semi-annually 
secured by deed of trust, which trust deed will provide that pay- 
ments shaU be made sooner than the terms of the trust deed, pro- 
vided more than one-third of the coal was taken out each year. 
In other words, there must be $4000 paid when one-third of the 
present coal has been removed, if such removal takes place before 
note is due and so on during the life of the trust deed. I will 
give you permission to enter the ground and do such prospecting 
as you may deem necessary anytime up untU the 1st of February, 
without expense or obligation to myself and with the right to 
you to remove any machinery that you may be using on the prem- 
ises for that purpose, without restraint or hindrance, on or be- 
fore the 1st of February, 1916. This is in no sense of the word 
giving you a lease or possession of the property in any way what- 
ever, except for the sole and only purpose of ascertaining to your 
satisfaction the amount of coal underlying the land. This privi- 
lege shall expire February 1st, 1916. 

If you decide to prospect, drop me a line that you accept my 
terms and I will reply immediately, otherwise you have no right 
or privilege whatever to enter the premises. 

To this letter plaintiff, writing from Joplin, Mis- 
souri, to defendant on December 13, 1915, replied by 
letter, which letter, again omitting merely formal parts 
and signature, reads thus: 

Replying to your favor of Dec. 8th, will say we will immedi- 
ately commence prospecting on your land following a reply from 
you giving us the privilege to commence prospecting, and have 
until the first day of February, and will prospect same and ac- 
cept your proposition as per your letter of the 8th. If we cam 



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Vol. 279 APEIL TERM, 1919. 349 



Starr v. Crenshaw. 



find enough coal that is available for steam shovel stripping on 
the 160 acres to Justify us in paying your price, we will accept your 
terms. If we do not find enough coal so that we can afford to 
pay the price we will tell you the amount, of coal we think is 
on your land. 

Hoping to hear from you by return mail, I remain, 

To this letter, under date of December 17, 1915, de- 
fendant replied thus: 

Tours of the 13th inst. received in regard to prospecting my 
coal land in Barton County. In reply, I hereby authorize you to 
enter upon said coal land SWy^ 28, 82, 83, Barton County, for 
the sole purpose of prospecting same for coal at your own expense. 
I will give you until February 1st to do this prospecting. If you 
find coal satisfactory, will sell you the land on the terms stated 
in my letter of the 13th inst. 

You must understand that this permission to enter the ground 
and prospect it is in no way a lease, excepting for the mere pur- 
pose of ascertaining to your own satisfaction the quantity and 
quality of coal underlying the property; and furthef, the time 
limited in which you are permitted to make this investigation runs 
to February 1st, 1916, at which time you will remove all machinery 
and apparatus of whatever kind from the premises. 

Thereafter, as appears from further correspon- 
dence, not particularly pertinent to the point in mind, 
plaintiff proceeded to drill the land in question, and on 
January 7, 1916, advisod defendant by letter that he 
had put down several holes, and so far the showing 
was fairly satisfactory. He added: ''We desire to do 
considerable more drilling, and several days ago bad 
weather set in here and all work of this nature has 
been suspended. There is ice all over the district and 
the drillers cannot do any work. If the weather gets 
better within the next few days we will no doubt be 
able to complete our prospecting by the first of Feb., 
otherwise we may have to ask for a few days extension/* 

On the Slst day of January, 1916, plaintiff sent to 
defendant the below telegram, to-wit: 

The extreme wet and stormy weather has prevented drilling 
on your land, and weather at this time is very unfavorable. WiU 
you grant thirty days extension on my option to complete work! 



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350 SUPREME COURT OF MISSOURI. 

Starr v. Crenshaw. 

To this telegram, on February 1, 1916, the defend- 
ant replied as follows : 

Will extend option to March 1 provided you wll to (sic) 
give certified report your drillings, also pay interest on deferred 
payments from February first in event you buy the land. Other par- 
ties want 60 days to prospect as soon as you are through Certified 
report will save delay. Wire at once. 

To this telegram plaintiff wired on February 2, 
1916, an acceptance as follows: 

Accept your proposition. Will complete drilling as soon as 
possible. 

Thereafter, and on February 8, 1916, plaintiff wrote 
defendant the following letter: 

We received your telegram giving us permission until the 
first of March to complete the drilling, but that you wanted 
the notes to bear interest from the first of February in the event 
that we closed the deal with you. This is satisfactory to us. 

The weather has improved some in the last few days and 
we have about completed our drilling. 

According to the drilling there is something like 80 acres of 
coal on the 160 that probably can be handled with our shovel. No 
doubt there is more coal than this but it would be in the way * 
of pillars and in such condition that we could not run our shovel 
over and take oft tLe over burden. 

We find that about 30 acres of this SO acres in the southwest 
comer of the 160 has about a five-foot vein or strata of sand 
rock. This will be very expensive operating with our shovel, as 
it will havfe to be shot and we are not sure that we can even handle 
this rock after it is shot. However, we are willing to try this out. 

In view of the fact that you will want an agreement stating 
that in the event a certain amount of coal should be taken oft 
this land before the deferred payments become due, should such 
be the case I take it from your letter that the payments cannot 
run one, two and three years. If this Is a fact, we deem it would 
be better to make you a cash offer for this property and have 
concluded to make an offer of $16,000 for this 160 acres. If you 
conclude to accept this offer, I would like to have an answer one 
way or the other, by wire, upon receipt of this letter. 

Hoping to hear from you promptly, I remain, 

This letter defendant answered on February 11, 
1916, as follows: 



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Vol. 279 APRIL TERM, 1919. 351 



Starr v. Crenshaw. 



Your favor of the 8th inst. received, and In reply will say I 
am willing to stand by my agreement per letter December 8th, 
1915, to sell you the land for $18,000. However, I am not particu- 
lar at this time about selling the land at that price; and, when 
you are through with the investigation, send me a statement of 
such investigation and call the deal off if you wish. Think I can 
mine the coal and make a good profit above this price. 

Should you decide to buy the land, deposit $6000 in the bank 
of Thomas Egger on or before the 1st of March, payable to my or- 
der, on the delivery of my Warranty Deed to this land with an Ab- 
stract showing clear title, and notify me by wire when you have 
made such deposit and I will forward the deed to Mr. Egger with 
instructions to deliver to you upon the payment of this $6000 
and your proper execution of the Trust Deed, per my letter of De- 
cember 8th, in addition to the notes and Trust Deed and an 
agreement to pay the notes and Trust Deed before due, provided 
you take out the coal according to my letter of December 8th. 

Time is the essence of my letter of December 8th; and, un- 
less the matter is closed up strictly on time and according to the 
terms, I shall not feel under obligation to make the conveyance. 
I write you this early on this point that you may be prepared and 
not have an excuse for failing to be prompt. The fact is I regret 
now that I made you this price, however I will carry out my agree- 
ment in good faith if you are promptly on time with your part 
of the agreement. 

Plaintiff, pending the passage between the parties 
of the above named telegrams and letters, continued 
to investigate this land by drilling the same. He caused 
to be drilled thereon twenty-four drill holes in all. This 
drilling was largely done during the month of February, 
1916, and plaintiff says that all of it was probably com- 
pleted before he sent to defendant the letter quoted 
above, wherein the statement is made by plaintiff to de- 
fendant that ''there is something like 80 acres of coal on 
the 160 that probably can be handled with our shovel. 
. . . We jSnd that about 30 acres of this 80 acres in 
the Southwest comer of the 160 has about a jSve-foot 
vein, or strata [sic] of sand rock." For the work of 
drilling this land plaintiff paid $453.75. 

On February 23, 1916, ^ defendant wired plaintiff, 
repudiating whatever agreement the above letters and 
facts constituted. This telegram is as follows : 



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352 SUPREME COUET OF MISSOURI. 

Starr v. Crenshaw. 

"Reed report from out attorney . on abstract of title to our 
coal land. He 'says many defects in it which will likely require 
litigation in circuit court to correct. Therefore we withdraw the 
land from the market. 

Between the 11th day of Fehniary, 1916, when the 
letter last ahove quoted was written by defendant to 
plaintiflf, and tie date of defendant's repudiation of 
the option, there seems to have been no communication 
between plaintiff and defendant, except a wire which 
plaintiff sent defendant on February 19, 1916, which 
wire read thus: ''Your lett^er received. What is the 
best discount you will make if I pay all cash for the 
land? Answ,er at once.'' 

Thereafter, and on February 24, 1916, plaintiff wrote 
defendant as follows: 

I wired you this morning in which I thought I was complying 
with your proposition, but have since found that I was wrong and 
therefore withdraw the statements made in said telegram this 
morning, and accept your proposition as outlined in your favor of 
February 11th, 1916. as follows: 

"Should you decide to buy the land, deposit $6000 in the bank 
of Thomas Egger on or before the 1st of March, payable to my 
order, on the delivery of my Warranty Deed to this land with an 
Abstract showing clear title, and notify me by wire when you 
have made such deposit and I will forward the deed to Mr. Bgger 
with instructions to deliver to you upon the payment of this $6000, 
and your proper execution of the Trust Deed, per my letter of 
December Sth, in addition to the notes and Trust Deed and an 
agreement to pay the notes and Trust Deed before due, pro- 
vided you take out the coal according to my letter of December 
8th." 

I am sending bank draft today for said sum of $6000 to Mr. 
Thomas Egger for deposit for the purpose above described, and 
request that you forward Warranty Deed and abstract as you have 
proposed, making said deed direct to "Jesse O. Starr of Joplin, 
Missouri," and I will execute the Trust Deed and notes for the 
deferred payments as outlined. 

If you prefer, I can arrange to pay the whole amount in cash, 
which might simplify the drawing up and making of the papers 
and the closing of the deal, but will leave that to your ^pleasure. 
I will request Mr. Egger to notify you of the receipt of said de- 
posit by wire as you request 



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• Vol. 279 APEIL TERM, 1919. 353 



Starr y. Crenshaw. 



Awaiting your advice as to the delivery of the Deed and also 
the abstract, I remain 

Yours truly, 

J. G. Stabb, 
I am enclosing Missouri form of Warranty Deed for your con- 
venience in preparing deed in the form desired for this State. 

Immediately thereafter, plaintiff deposited the sum 
of $6009 with Thomas Egger, of Lamar, Missouri, as 
and for the proposed iSrst payment in cash on the land 
in controversy, of which fact he advised defendant by 
wire, adding: ''Send on your abstract and deed and I 
will execute note and deed of trust for remainder when 
abstract is approved/' There seems to have been no 
answer to this wire, nor any action whatever taken 
thereon by either party till September 9, 1916, when 
plaintiff brought this action, praying for specific per- 
formance of the alleged contract to convey. 

Some few further facts will become pertinent in 
the course of our discussion, which facts we will set 
out in connection with the matters to which they are 
apposite. 

The contract here was unilateral — ^in other words, 
a mere option in plaintiff to purchase. That such option, 
though in its inception unilateral and lacking in mutual- 
ity may caeteris paribus, when bottomed on a valuable 

^ ,M ^ consideration and accepted by the promisee 
Consideration. .,, . .. .. t- •. •, 7 .-, 

untnin the time limited by the promisor, 

form the basis of an action for specific performance, 
is in this State no longer open to question. [Warren v. 
Castello, 109 Mo. 338; Real Estate Co. v. Spelbrink, 
211 Mo. 671.] 

Upon this view the first and most important ques- 
tion in this case is, was there a valuable consideration 
for the option? We are of the opinion there was. The 
word ''consideration" has been defined — correctly, we 
think — as "a benefit to the party promising, or a loss 
or detriment to the party to whom the promise was 
made.'' [Roller v. McGraw, 63 W. Va. 462; Pabst Brew- 
ing Co. V. Milwaukee, 126 Wis. 110; Corbett v. Cronk- 

23—279 Mo. 



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354 SUPREME COURT OF MISSOURI. 

Starr v. Crenshaw. 

hite, 239 111. 9 ; Eastman v. Miller, 113 Iowa, 404 ; Chicora 
Co. V. Dunan, 91 Md. 144; Strode v. Transit Co., 197 Mo., 
1, c. 623; 6 Am. & Eng. Encyc. of Law, 703; 1 Parsons 
on Contracts, 357.] 

Plaintiff, as we gather his position from his argu- 
ment and brief, seems to consider that there was no 
l)inding contract which could have been enforced in 
this proceeding against defendant till the extension of 
the option till March 1, 1915, was made. But he con- 
.tends that this extension, being bottomed upon a valu- 
able consideration, could be accepted by plaintiff up 
to the expiration thereof on said latter date, and that 
the same, for the like reason that it was bottomed upon 
a valuable consideration, could not be withdrawn by 
defendant till the expiration of such date. We think 
this position is well taken. The defendant, on February 
1, 1916, by his telegram in that behalf, agreed to extend 
plaintiff's option to purchase to March 1, 1916, on con- 
dition (a) that plaintiff give defendant a certified re- 
port of defendant's drillings, and (b) that he pay in- 
terest on all deferred payments from the first day of 
February, 1916, in the event that plaintiff should buy 
the land. Plaintiff immediately and unequivocally ac- 
cepted this proposition, and advised defendant that he 
would complete drilling as soon as possible. Plaintiff 
thereafter, and on February 8, 1916, wrote defendant 
confirming his acceptance of defendant's offer of an 
extention for one month as made in defendant's wire. 
In this latter letter plaintiff offered to pay in cash the 
sum of $16,000 instead of the $18,000 as contained in 
the price made to plaintiff by defendant in deferred pay- 
ments, and asked for an answer by wire. Instead of 
answering by wire, defendant wrote to plaintiff the let- 
ter of February 11, 1916, wherein he said that he stood 
by the terms of the original option to sell the land for 
$18,000, and that he was not particular at this time 
about selling the land at that price. To this letter he 
added this: ** Should you decide to buy the land, de- 
posit $6000 in the bank of Thomas Egger on or before 



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Vol. 279 APRIL TEBM, 1919. 355 



Starr v. Crenshaw. 



the first of March payable to my order on the delivery 
of my warranty deed to this land, with an abstract show- 
ing clear title, and notify me by wire when you have 
made such deposit and I will forward the deed to Mr. 
Egger with instructions to deliver to you upon the 
payment of this $6000 and the proper execution of the 
trust deed per my letter of December 8, in addition to 
the notes and trust deed and an agreement to pay the 
notes and trust deed before due, provided you take out 
the coal, according to my letter of December 8. Time 
is the essence of my letter of December 8, and unless 
the matter is closed up strictly on time and according 
to the terms I shall not feel under obligation to make 
the conveyance. '* 

Plaintiff, pursuant to the several telegrams with 
relation to this drilling, continued to drill the land, and, 
as stated, put down in all 24 drill holes, at a total ex- - 
pense to him of $453.75. We think there can be no doubt 
that this was a suflScient consideration within the pur- 
view of the definition thereof with which we prem- 
ised the discussion of this point. For it was clearly 
''a loss or detriment to the party to whom the promise 
was made,^' that is, to the plaintiff. It was more than 
this; it was a potential benefit to the defendant, the 
party promising, in that he was to get, or was promised 
in the event the plaintiff failed to take the land before 
the expiration of the term of the option, a certified re- 
port of the drillings made, which report, as his tele- 
gram stated, would save delay when he came to sell the 
land to others, in the event plaintiff did not buy. More- 
over, there was, in our opinion, an actual consideration 
promised to defendant from plaintiff, in that defendant 
required, and plaintiff promised to pay, interest from 
February 1, 1916, in lieu of the payment of such in- 
terest only from the date of acceptance. This certified re- 
port of the drilling done was never sent by plaintiff to 
defendant. Such a report, as we gather from the evi- 
dence, seems to be a report made up and certified by 
the person doing the drilling. The custom of tie com- 



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356 SUPEEME COUET OF MISSOURI. 

Starr v. Crenshaw. 

munity seems to require, as also does the reason of the 
thing, that such a report shall show the location of the 
drill holes upon the land, the number of such holes, to- 
gether with a log of each hole, that is, a showing of the 
diameter and depth of* the hole and of the various soils, 
rock, coal or other minerals or substances through which 
the drill passes in boring the hole. Plaintiff merely ad- 
vised defendant, by a letter dated February 8th, 1916, 
that ''there is something like 80 acres of coal on the 160 
that probably can be handled with our shovel." To the 
suflSciency and definiteness of this report no objection 
was made by defendant, till he filed his answer in this 
action. 

It is strenuously contended by defendant that the 
failure of plaintiff to make to defendant such certified 
report, among other reasons mooted, precludes the 
granting to defendant of the relief prayed for, or of 
any relief. We cannot agree to this view. In passing, it 
is apparent that when plaintiff closed his option by an 
acceptance within the period limited by the option's 
terms, the certified report and log of the drill holes 
interested defendant no more, except as a mere matter 
of curiosity, or as a basis for mental reflections touch- 
ing whether his bargain was a good one or a bad one. 
This is the wholly utilitarian view, and is merely by the 
way. There is a stronger reason in law. That reason is, 
that if there was a consideration to support this option 
up to March 1, 1916, and we think there was and have 
so ruled the point, then defendant could not withdraw 
or recede from this option till March 1, 1916. He did, 
however, attempt to recede on February 23, 1916, 
and to this end wired plaintiff that he had ''receiveii 
report from our attorney on abstract of title to our 
coal land. He says many defects were in it, which will 
likely require litigation in circuit court to correct. There- 
fore, we withdraw the land from the market.'* When this 
notice that defendant would not abide by the option con- 
tract to sell the land to plaintiff w as given, the contract 
in question yet had six days to run. When defendant 



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Vol. 279 APRIL TEEM, 1919. 357 

Starr v. Crenshaw. 

breached it before it expired, for reasons other than 
the failure of plaintiff to periform, the latter was not 
bound to do the vain and useless thing of furnishing a 
certified report of the drillings made on the land. This 
is the general rule adhered to almost uniformly and in 
all jurisdictions. [Cumberledge v. Banks, 235 111. 249; 
Malloy V. Foley, 133 N. W. 778; Niquette v. Green, 81 
Kas. 569; Long v. Nedham, 37 Mont. 408; Guillaume 
V. Land Co., 48 Ore. 400; Jordan v. Johnson, 98 N. E. 
143; Neal v. Finley, 136 Ky. 346; McLeod v. Morrison, 
66 ^ash. 683.] 

Likewise, this same rule has been applied, and with 
good reason, to breaches of an option to purchase. 
[Winslow V. Dundom, 125 Pac. (Mont.) 137; Cape Fear 
Lbr. Co. V. Small, 84 S. C. 434; Harper v. Runner, 85 
Neb. 343.] 

• It follows that the option, (a) being bottomed upon 
a valuable consideration, permitted acceptance by plain- 
tiff up to the date at which by its own terms it ex- 
pired, and (b) that the refusal to abide by its terms 
before the expiration of the period limited therein for 
acceptance, relieved plaintiff from a tender of the 
certified report of the drillings made. Having made 
tender and prof ert of full compliance with all the terms 
of such option on his part in his petition, plaintiff is 
entitled to a decree for specific performance in so far as 
the condition of defendant's title will allow. This decree 
should go for plaintiff for the whole of the east half of 
the Southwest quarter of the land in controversy, and 
for an undivided one-half of the west half of the South- 
west quarter thereof, upon payment by plaintiff to de- 
fendant of the sum of $13,500, the latter sum to be 
diminished by the present value of the outstanding in- 
choate dower of the wife of defendant, in the event 
such wife shall refuse to join in a conveyance of said 
land. [Tebeau v. Ridge, 261 Mo. 547.] 

Let the case be reversed and remanded, with direc- 
tions to the court nisi to take such further action there- 
in as is not inconsistent with what we have herein ruled. 

It is so qrdered. All concur. 



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358 SUPREME COURT OF MISSOURI. 

Prapuolenis .v. Construction Co. 



JOSEPH PRAPUOLENIS v. GOEBEL CONSTRUC- 
TION COMPANY, Appellant. 

DlTlslon Two, JTuly 16, 1919. 

1. SOAFFOIaD: Movable Platfonn. It is a matter of common knowl- 
edge that a platform for the use of workmen in erecting a large 
and tall building is readjusted and moved either laterally or per- 
pendicularly as the work on the walls progresses, but it is none 
the less a scaffold on that account. Where the entire wall of a 
building, sixty or eighty feet long and fifty or sixty feet high, was 
separated into sections called panels, and the platform on which 
the men worked in removing the forms was moved from panel to 
panel as the work progressed, the platform was a scaffold within 
the meaning of Section 7843, Revised Statutes 1909. 

2. : Negligence: Specific Acts: Fall: Burden of Proof. Testi- 
mony that one of the chains supporting the scaffold had become un- 
fastened will support an inference that it was insecurely fastened. 
But it is not necessary under the statute (Sec. 7843, R. S. 1909) 
to prove a specific act; of negligence which caused the scaffold to 
fall. The statute requires that the structure "shall be well and 
safely supported" and ''so secured as to insure the safety of per- 
sons working thereon/' and this language means that the giving 
way of scaffold and the consequent injury of a workman raises a 
prima-facie presumption that his employer had failed of his duty 
and places the burden on him to show that it gave way without 
any negligence on his part. The statute would possess no force 
or effect if the injured workman were required to point out a 
specific defect in the scaffold furnished him, and which fell, caus- 
ing his injury. 

3. : : : — • — : Ees Ipsa Loquitur. While the 

doctrine of res ipsa loquitur does not generally apply to a case 
arising between master and servant, it is so applied where the 
injury to the servant is caused by some appliance peculiarly within 
the master's knowledge and control, of which the servant is ignor- 
ant and with whose construction or arrangement he has nothing 
to do. 

4. NEGLIGENCE: Fellow-Servants: Carpenter and Common Laborer. 
A carpenter constructed the platform on which the men were to 
work in taking down the scaffolding, and a common laborer had 
nothing to do with its constructing and knew nothing about it. 
Later after the platform was completed, the carpenter and laborer 



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Vol. 279 APEIL TERM, 1919. 359 



Prapuolenis v. Ck)n8tniction Co. 



stood on the platform and were working together In taking down 
and receiving the timbers of the scaffold when the platform fell, 
injuring the laborer. Held, that they were not fellow-servants in 
the work of constructing the platform, and as the laborer's ac- 
tion for damages is based on a violation of the statute requiring 
employers to furnish safe scaffolds or structures for such work, 
his action is not barred on the theory that his injuries were due 
to the negligence of a fellow-servant. 

5. : : Detached Employee. When the master uses one 

servant to construct a place in which he and the other servants 
are to work, and the place is made unsafe by that servant, and a 
fellow-servant who was not employed in that particular work is 
injured because of the defect, he is not the fellow-servant of the 
one who did that particular work so as to defeat recovery. 

Appeal from St. Louis City Circuit Court.— ff on. WU- 
Ham T. Jones, Judge. 

Afpibmbd. 

Leahy, Saunders S Barth for appellant. 

(1) Defendant's instruction in the nature of a de- 
murrer to the evidence should have been given, (a) 
Sec. 7843, R. S. 1909, does not cover a swinging and 
shifting platform such as shown in the instant case. 
This doctrine is known as the ^'shifting'' or *' transi- 
tory*' device doctrine. Livergood v. Lead & Zinc Co., 
179 Mo. 229; Anderson v. Missouri Granite & Const. 
Co., 178 S. W. 737; Deiner v. Sutermeister, 266 Mo. 
514-19 (b) Sec. 7843, R. S. 1909, does not preclude the 
legal effect of a negligent act of a fellow servant, when 
such act is the direct and proximate cause of plaintiff's 
injury. Williams v. Ransom, 234 Mo. 55. (c) It devolves 
upon the plaintiff who relies upon the absence of the 
relationship as fellow servants to prove its non-ex- 
istence. McGowan v. Railroad, 61 Mo. 528; Blessing v. 
Railroad, 77 Mo. 410; Ryan v. McCuUy, 123 Mo. ^36; 
Shaw V. Bambrick-Bates Construction Co., 102 Mo. App. 
666; Sheehan v. Prosser, 55 Mo. App. 569; Ryan v. 
Christian Board of Publication, 199 S. W. 1032. (d) By 
plaintiff's allegation and evidence the direct and proxi- 



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360 SUPREME COURT OF MISSOURI. 

PrapuolenlB v. Construction Co. 

mate cause of his injury was the negligent manner in 
which the particular chain in question was secured, when 
the platform was changed by the workmen during the 
progress of the work, (e) "WTien plaintiff's evidence is 
uncontradicted, the question whether other workmen are 
fellow servants of the plaintiff is a question of law for 
the court alone to decide. McGowan v. St. Louis & 
Iron Mountain R. Co., 61 Mo. 528 ; Marshall v. Schricker, 
63 Mo. 308. (f ) In the case at bar the other workmen 
were fellow servants of the plaintiff. Richardson v. 
Mesker, 171 Mo. 666; Ewan v. Lippincott, 47 N. J. L. 
192; O'Brien v. American Dredging Co., 53 N. J. L. 
291. (g) When the evidence is uncontradicted that the 
negligent act of a fellow-servant is the direct and 
proximate cause of plaintiff's injury, a verdict should be 
directed for defendant. McDermott v. Pac. Railroad, 
Co., 30 Mo. 115; Brothers v. Carter, 52 Mo. 372; Hig- 
gins V. Mo. Pac. R. R. Co., 104 Mo. 413; Warmington 
V. Railroad, 46 Mo. App. 159. (2) This case in its last 
analysis rests upon the res ipsa loquitur doctrine which 
does not apply in master and servant cases. Sec. 7843, 
R. S. 1909; Deiner v. Suterraeister, 266 Mo. 514; White 
v. Montgomery Ward & Co., 191 Mo. App. 270; Wil- 
liams V. Ranson, 234 Mo. 75 ; Forbes v. Dunnavant, 198 
Mo. 210; Hedrick v. Kahmann, 174 Mo. App. 57; Rem- 
ovich V. Construction Co., 264 Mo. 43. 

Joseph A. Wright, for respondent. 

(1) The testimony leaves no doubt that the scaffold 
**was not well and safely supported," as required by 
Sec. 7843, R. S. 1909. This was sufficient evidence to 
warrant a finding of negligence, particularly in view 
of the obvious peril to the workmen from failure to 
exercise proper care in supporting the scaffold. Reber 
v. Tower, 11 Mo. App. 199 ; Denker v. Wolff Milling Co., 
135 Mo. App. 340; Mayer v. Atlantic Refining Co., 254 
Pa. 544; Blohm v. Boston Elevated Railway Co., 221 
Mass. 390; Bartlett-Hayward Co. v. Maryland, 121 Md. 



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Vol. 279 APKHj term, 1919. 361 



Prapuolenls v. Construction Co. 



1. (2) Plaintiff had nothing whatever to do with the 
erection of the scaflFold, and therefore he cannot be re- 
garded as the fellow-servant of Clark, who constructed 
it. Stapletoh v. Hummel Mfg. Co., 202 S. W. 369; Koer- 
ner V. St. Louis Car Co., 209 Mo. 141 ; McGrath v. Vogel, 
182 S. W. 813; White v. Montgomery Ward & Co., 191 
Mo. App. 268; Lang v. Bailes, 19 N. D. 582. (3) The 
statute (Sec. 7843, R. S. 1909) is mandatory, and im- 
posed the nondelegable duty on defendant to have the 
scaffold **well and safely supported. ^^ Deiner v. Suter- 
meister, 266 Mo. 505. Manifestly, if it had been well and 
safely supported, and the statutory mandatory observed, 
plaintiff would not have been injured. It is a case of 
statutory negligence made negligence per se by the law- 
making authority. Thompson Law of Negligence, par. 
10; Burt v. Nichols, 264 Mo. 1; Johnson v. Snow, 201 Mo. 
450; Yall v. Snow, 201 Mo. 511; Turner v. Eailroad, 
78 Mo. 580; Sluder v. St. Louis Transit Co., 189 
Mo. 107; Stewart v. Ferguson, 164 N. Y. 553, 556; Cady 
V. Interborough Rapid Transit Co, 195 N. Y. 415, 30 L. 
R. A. (N. S.) 30; Madden v. Hughes, 185 N. Y. 466; 
McDonald Co. v. Manns, 177 Fed. 203; Steel & Masonry 
Contracting Co. v. Reilly, 210 Fed. 437; New York 
R. R. Co. V. Mooney, 223 Fed. 626. (4) The fact that 
defendant erected a separate and complete scaffold for 
each section of the building cannot defeat liability. 
Since each scaffold at the particular section was a sepa- 
rate and complete place to work, its erection carried with 
it the duty to make each scaffold safe. Murray v. Paino 
Lumber Co., 155 Wis. 409 ; Feldman v. Mackey Co., 161 
N. Y. Supp. 564; Swenson v. Wilson Mfg. Co., 102 App. 
Div. (N. Y.) 477; Steel & Masonry Contracting Co. v. 
Reilly, 210 Fed. 437. If defendant's contention that 
although the ends rested on solid supports, it is re- 
lieved from liability because the center rested upon 
chains, then the law can be defeated by adopting the 
exceeding perilous method of suspending the scaffold 
with ropes and chains. In truth, this dangerous method, 
apparently adopted to save expense, is the cause of 



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362 SUPREME COURT OF MISSOURI. 

Prapuolenis y. Construction Co. 

these workmen being injured and killed. It is the use, 
not the method of supporting the scaffold, that deter- 
mines liability. If fastened by ropes or chains, it re- 
mains a scaffold within the meaning of the law. Deiner 
V. Sutermeister, 266 Mo. 505; Madden v. Hughes, 185 
N. Y. 466; Flannlgan v. Ryan, 89 App. Div. (N. Y.) 624, 
85 N. Y. Supp. 947; Frid v. Benton, 69 L. J. Q. B. 436, 
82 L. T. 193. 

WHITE, C— The plaintiff obtained judgment 
against defendant in the sum of fifteen thousand dol- 
lars for personal injuries received while employed by 
the defendant and alleged to have been inflicted through 
the negligence of defendant. Defendant appealed from 
that judgment. 

The plaintiff was employed as a common laborer. 
The defendant had erected a concrete building to be used 
as a packing plant for the St. Louis Independent Pack- 
ing Company. After its erection the plaintiff was in- 
jured while assisting in removing the forms which had 
been used in constructing the building. 

The building was estimated to be between sixty and 
eighty feet in length and was fifty or sixty feet in width. 
It was sixty feet high. There had been built up along 
the walls on the inside of the building for the use of 
the workmen a framework for stationary platforms, ex- 
tending to within a few feet of the ceiling. This left 
an open space in the centre of the building about thirty- 
five feet wide from the stationary framework of the 
scaffold on one side to the stationary framework of the 
scaffold on the other side. The gang of men with whom 
the plaintiff was working were taking down the forms 
from the top of the building. In order to do this a 
platform was constructed across the thirty-five feet of 
space between the stationary scaffolds on the sides in 
this manner: a swinging beam made of two-by-sixes 
about thirteen feet long, nailed together at the ends, 
running lengthwise of the building in the centre of this 
space, was suspended and supported by chains depend- 



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Vol. 279 APEIL TEEM, 1919. 363 



Prapuolenig y. Construction Co. 



ing from the roof. In the concrete roof there were holes 
three inches in diameter, through which the chains were 
let down. Planks were then laid across from the fixed 
framework on each side of this swinging support, so 
that it made a platform thirty-five feet long and about 
thirteen feet wide, extending crossways of the building, 
supported on each end by the solid framework, and 
supported in the middle by the swinging beam men- 
tioned. The chains which went through the holes in 
the roof to support this structure were double and fas- 
tened together at the top. There was a large knot in 
one end of each chain, while the other end was wired 
to that knot. A four-by-four block eighteen inches long 
was thrust through the loop thus made. Each end of 
the four-by-four block rested on a short plank about a 
foot long and five-eighths of an inch thick and five or 
six inches wide, perhaps to protect the concrete. 

On the 5th day of August, 1915, the plaintiff and 
three other men were working on the platform described. 
One of the four was a man named Clark, a carpenter. 
It seems that Clark was engaged in detaching the lum- 
ber used in the forms and handing it to the plaintiff, 
who in turn handed it down to another laborer. While 
they were so engaged one of the chains became detached 
from its fastening on the roof, the support of the scaf- 
fold gave way, and the four men were precipitated to 
the bottom of the building sixty feet below. One of 
them was killed and the others severely injured. All of 
them or their representatives sued and recovered judg- 
ments against the Goebel Construction Company. The 
cases other than that of the appellant went to the St. 
Louis Court of Appeals, where they were affirmed. 

The plaintiff was a common laborer. Clark, the 
carpenter who was working with him at the time of the 
injury, had constructed the scaffold upon which they 
were working at some time previous to that. The plain- 
tiff had nothing to do with that part of the work and 
didn't know when it was done. 



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364 • SUPREME COURT OF MISSOURI. 

Prapuolenls y. Construction Co. 

There was some evidence indicating that the ends 
of the chain had been insecurely fastened around the 
block which supported it on top of the building, or had 
become insecurely fastened in the progress of the work, 
so that it slipped through the hole and let down one 
end of the cross-piece which supported the platform. 
The building extended in an easterly and westerly direc- 
tion, and as described by one of the witnesses **the 
farthest chain west had become unfastened and the 
men were precipitated to the bottom, scaffolding and 
all/' 

I. The plaintiff seeks to recover on the ground 
that his injury was caused by a failure on the part 
flcAff Id. ^^ *^^ defendant to comply with Section 7843, 
Eevised Statutes 1909, which is as follows: 

"All scaffolds or stxuctures used in or for the 
erection, repairing or taking down of any kind of build- 
ing shall be well and safely supported, and of sufiScient 
width, and so secured as to insure the safety of persons 
working thereon, or passing under or about the same, 
against the falling thereof, or the falling of such 
Materials or articles as may be used, placed or deposited 
thereon. All persons engaged in the erection, repairing 
or taking down of any kind of building shall exercise 
due caution and care so as to prevent injury or acci- 
dent to those at work or near by." 

Appellant asserts that the section does not cover 
the case of what it terms a * ' swinging and shifting plat- 
form'^ such as shown in the evidence in this case. In 
this appellant makes two objections to this platform 
as a scaffold. It was a shifting platform, it is alleged, 
because it was moved from time to time as the work 
required. It appears from the testimony that the entire 
length of the building was separated into sections called, 
panels, there being eight panels. The men took down 
the forms for the first panel at one end of the building, 
then the platform was moved to the next panel by mov- 
ing the chains on the roof to convenient holes further 



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Vol. 279 APKIL TERM, 1919. 365 

Prapuolenis y. Construction Co. 

along. The platform was changed in that way from 
panel to panel, and at the time it broke down the men 
were working' on the fifth panel. It is urged by ap- 
pellant that because this platform was moved from 
time to time it was not a scaffold ; that a scaffold must 
be a fixed and stationary support for the men at work. 
It is a matter of common knowledge that a platform 
for any kind of workmen in erecting a building is 
readjusted and moved either laterally or perpendicularly 
as the work on the wall of a building requires, and it 
would be none the less a scaffold on that account. The 
scaffolding on the sides of the building, made for the 
purpose of supporting the workmen, was evidently 
changed from time to time in its level as the men would 
mount in their work. 

The other objection is that this is a swinging plat- 
form and therefore it is not a scaffold within the mean- 
ing of the statute. The effect of this position is that 
the employer by making the support of his scaffold a 
swinging or vibrating one instead of a fixed or station- 
ary one, and thereby rendering his platform less safe, 
escapes the obligation and penalty of the statute. This 
would put a premium upon the very neglect against 
which the statute is aimed. This court had occasion to 
construe this section and define the terms *' scaffolds'^ 
or ** structures" to which it applies. [Deiner v. Suter- 
meister, 266 Mo. 505.] This was said, 1. c. 518: '^t is 
plain that it does include by the use of the words * scaf- 
folds or structures' all stationary platforms, staging, 
trestles and other similar false work used in erecting, 
or tearing down, buildings of any kind, in addition to 
the contrivance connoted by the use of the general word 
scaffold." Citing many cases. And further on the same 
page: ** Moreover, as stated above, we think it is ob- 
vious from the very context of Section 7843 that in the 
clause * scaffold or structures' the last word is ejusdem 
generis, and said clause is to be construed as meaning 
scaffolds, or contrivances and appliances of similar use 
md nature to scaffolds, viz., platforms, staging, trestles 



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366 SUPREME COURT OF MISSOURI. 

Prapuolenis y. Construction Co. 

of whatever kind." (Italics ours). See, also, Loehring 
V. Construction Co., 118 Mo. App. 163. We think tlio 
structure was within the terms of the statute. 

II. It is further claimed by appellant that there is 

no evidence of any specific negligence of the defendant 

which caused the injury complained of. It was stated 

in the testimony that one of the chains supporting the 

platform had become unfastened; it might 

SSgiSenco. ^® ^^^^ *^^* ^* ^^® ^ proper inference from 
this that it was insecurely fastened. The 
chain was fastened together with wire around the block 
of four-by-four and could only have become unfastened 
if the fastening was insecure. The jury was required 
to find that the defendant failed to have one of said 
chains so fastened as to well and safely support the 
scaffold. 

However, was it necessary to prove a specific act 
of negligence as the cause of the falling of the scaffold T 
Where the statute imposes a duty to provide safety 
appliances of any kind for protection of persons from 
injury, the failure of the duty imposed is negligence 
per se. [Stafford v. Adams, 113 Mo. App. 1. c. 721.] In 
a case where machinery is required to be guarded or 
fire escapes provided, and where such statutory duty is 
violated, the injury or loss in such case is presumed to 
be in consequence of that failure; the doctrine of 
res ipsa loquitur^ is said to apply. [Burt v. Nichols, 
264 Mo. 1. c. 18.] In such cases the entire absence of a 
guard around machinery or of a fire escape is easy to 
prove. Here, however, arises a question of fact as to 
whether the scaffold provided was safe. It is contended 
by the defendant that besides the mere fact that the 
platform gave way, there would have to be some proof 
of a specific defect in it. The statute, Section 7843, 
requires that the structure ** shall be well and safeJy 
supported'* . . . and so secured as to insure the 
safety of persons working thereon.'* The use of this 
language would indicate that a collapse or giving way 



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Vol. 279 APRIL TERM, 1919. 367 

Prapuolenis y. Construction Co. 

of such platform and consequent injury would raise a 
prima-facie presumption that the employer had failed 
of his duty and would place the burden upon him to 
show that it gave way without any negligence on his 
part. 

The State of New York has a statute very similar 
to the one under consideration here, and it is there 
held, construing the statute, that the fall of such a 
scaffold, in the absence of evidence of any other produc- 
ing cause, points to the omission of the duty enjoined 
by the statute in its construction and makes out a prima- 
facie case. [Stewart v. Ferguson, 164 N. Y. 553; Steel 
and Masonry Contracting Co. v. Keilly, 210 Fed. 437, 
1. c. 439:] 

It is usually held, in the absence of a statute, where 
a scaffold falls when used in the ordinary way with no 
special strain upon it and causes an injury the doctrine 
of res ipsa loquitur applies. [Johnson v. Roach, 82 
N. Y. Supp. 203.] While doctrine of res ipsa loquitur 
does not generally apply to a case arising between 
master and servant, there are many cases in which it 
is made to apply the same as in cases of persons in 
other relations. It is applied particularly to falling 
scaffolds which are provided for servants to use, when 
the servants have nothing to do with their construction. 
[Cleary v. Genl. Contr. Co., 101 Pac. (Wash.) 888; 
Westland v. Gold Coin Mines Co., 101 Fed. 59.] See 
4 Labatt on Master and Servant, sec. 1601, note on pp. 
4872-5, where the doctrine in discussed at length in con- 
nection with master and servant and the furnishing of 
scaffolds, platforms and safe places to work. [Robin- 
son V. ConsoUdated Gas Co., 28 L. R. A. (N. S.) 586, 
194 N. Y. 37.] 

There are many cases in this State in which the 
doctrine of res ipsa loquitur is applied between master 
and servant, where the injury to the servant is caused 
by some appliance peculiarly within the knowledge and 
control of the master, of which the servant is ignorant 
and with which he had nothing to do. [Klebe v. Dis- 



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368 SUPREME COURT OF MISSOURI. 

Prapuolenis v. Construction Co. 

tilling Co., 207 Mo. 1. c. 487 ; Johnson v. Eailway Co., 
104 Mo. App. 588; Sackewitz v. American Biscuit Co., 
78 Mo. App. 1. c. 151; Burt v. Nichols, 264 Mo. 1. c. 
18; Ash V. Woodward & Tiernan Printing Co., 199 
S. W. 994.] 

The statute under consideration would possess no 
force or effect if the plaintiff were obliged to point out 
a specific defect in the scaffold or platform which was . 
furnished him. In that case he would be entitled to 
recover at common law. If it wasn't the intention of 
the Legislature to require absolute safety in the con- 
struction of a scaffold of this kind or at least put the 
burden upon the employer to show that he was without 
fault in case of an injury from the fall of a* scaffold, 
then the statute would serve no purpose whatever. This 
seemed to be the understanding of this court, though 
it was not decided, in the Sutermeister case, 266 Mo. 1. 
c. 515. That case also refers to the New York decisions 
construing different features of this very statute. So 
we hold that in the absence of exculpatory showing on 
the part of the employer, the fall of a scaffold is prima- 
facie evidence of negligence on the part of the em- 
ployer and a violation of the statute. 

m. Appelant argues that the plaintiff is not en- 
titled to recover in this case because the work of con- 
structing the scaffold was done by Clark, and Clark, it 
is claimed, was the fellow-servant of the plaintiff. It is 

true, at the time the scaffold gave way, Clark 
Sei^its. ^°d *^^ plaintiff were fellow-servants. They 

were working together in the same kind of work 
and assisted each other in taking down the timbers 
comprising the form. But Clark was a carpenter ; that 
was the general work which he did. Plaintiff was a 
common laborer. Clark had constructed the scaffold on 
which they were working before this particular work 
began, and plaintiff had nothing to do with it and 
knew nothing about it. There was an entire absence of 
relation of fellow-servant in the work of constructing 



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Vol. 279 APEIL TERM, 1919. 369 



Prapuolenis v. Construction Co. 



the platform. The test of the relation as laid down, is, 
was the employee injured and the one inflicting the 
injury so associated in their work that each could ob- 
serve and influence the other ^s conduct and report any 
delinquency to a correcting power, or headt LKoemer 
V. Car Co., 209 Mo. 1. o. 154; Parker v. Hannibal & St. 
Joe Ry. Co., 109 Mo. 362; Stapleton v. Hummel Mfg. 
Co., 202 S. W. 1. c. 370.] The plaintiff had no oppor- 
tunity whatever to observe the work of Clark in con- 
structing the platform and knew nothing about it. And 
it has been held that where workmen are working to- 
gether as fellow-servants, and one of them is detached 
from that particular work to do some other work in 
relation to the general enterprise in hand, and an injury 
to his feUow-workman is caused by that particular de- 
tached work, with which the injured man had nothing 
to do, the doctrine of fellow-servant does not apply. 
[Raines v. Lumber Co., 149 Mo. App. 1. c. 582 ; White 
V. Montgomery Ward & Co., 191 Mo. App. 1. c. 272; 
see Most v. Goebel Constr. Co., 203 S. W. 1. c. 477.J 
That is, when the master uses one servant to construct 
a place to work, and the place is made unsafe by that 
servant, and a fellow-servant who was not employed 
in that particular work is injured because of the defect, 
he is not the fellow-servant of the other as to that 
particular work so as to prevent recovery. The duty 
to make the place safe is non-delegable. The Raines 
case, supra, was a scaffold case where one of two em- 
ployees was caused to construct a platform by which 
his fellow-employee was injured. 

The appellant complains of an instruction given on 
behalf of the plaintiff, but the objection has been fully 
met in the principle discussed above. 

The judgment is afiSrmed. Railey and Mozley, CC, 
concur. 

PER CURIAM:— The foregoing opinion by White, 
C, is adopted as the opinion of the Court. All of the 
judges concur. 

-279 Mo. 



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370 SUPEEME COURT OF MISSOURI, 

McClung y. Pulitzer Publishing Co. 



DICKERSON C. McCLUNG v. PULITZER PUBLISH- 
ING COMPANY, Appellant. 

In Banc, Jnly 7, 1919. 

1. JUBISDIcnON: Venue: Corporation: LibeL The Act of 1909 
(Sec. 1755, R. S. 1909), declaring that "suite for libel against 
corporations shall be brought in the county in which the de- 
fendant is located, or in the county in which the plaintiflt re- 
sides/' in so far as it permits a plaintift to bring a libel suit 
in the county in which he resides against a corporation whose 
place of business is in another county and whose newspaper in 
which the libel is published is printed in such other county, is 
invalid, in that it denies to said corporation the equal protection 
of the laws, since, were the libeler an individual, the plaintiff could 
not maintain his suit in his own county unless the libeler were 
found and served therein. A resident of CJole Ck)unty cannot 
maintain a suit in the circuit court of said county against a 
corporation whose place of business is in the City of St. Louis and 
whose newspaper in which the libel is published is printed in said 
city, unless said corporation waives the lack of Jurisdiction. [Per 
McBAINE, Special Judge; WALKBR, PARIS and GRAVES, JJ., 
concurring; BOND, C. J., and BLAIR and WILLIAMS, JJ., dis- 
senting; WOODSON, J., not sitting.] 

2. EQUAL PBOTEOTION: Corporations. Corporations come within 
that provision of the Fourteenth Amendment declaring that no 
State shall deny to any person within its jurisdiction the equal 
protection of the laws. Therefore the laws must extend to them 
the same protection they extend to individuals. 



8. : Corporations^ and IndlTidnals: Venue: Classiflcation. It 

is an advantage to a plaintiff to sue in the county in which he 
lives, and to a defendant to defend in the county of his resi- 
dence; and. a statute which permits a plaintiff in a libel suit to 
sue a non-resident corporation libeler in his own county, and de- 
nies to him the right to sue a non-resident individual libeler in 
the same county, makes an unreasonable classification against the 
corporation, and is invalid, since the classification is not based 
upon a difference bearing a just and proper relation to the at- 
tempted classification. 

4. LIBEL: Public Officials. Citizens, through newspapers and other- 
wise, have the right to criticise the official acts of public officers. 
Rules relating to defamation of an individual in private life do 



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Vol. 279 APRIL TERM, 1919. 371 

McClang t. Pulitzer Publishing Ck). 

not apply to the official conduct of a public official. A qualified 
privilege of free discussiotf and free criticism of the public acts 
of public officials is essential to free government. 

B. : ^: Matter For Ooort. It is the duty and proTince of 

the court to determine whether the spoken or written published 
matter complained of relates to the public acts of the plaintiff 
and is of public interest, and to further determine whether the 
comments upon the facts and the criticism are qualifiedly privi- 
leged; and if the alleged libelous matter pertains solely to plain- 
tiff's public conduct as a public official, and all the substantial facts 
are admitted to be true or established without substantial con- 
troversy, and the comments upon them are qualifiedly privileged, 
the court should not submit the case to the Jury. 

6. : Inference. A newspaper has a right to draw inferences 

from established facts as to the motives of a public official, whether 
such inferences are right or wrong, reasonable or unreasonable, 
provided they are made in good faith. 

7. : Qoalifled PriTllege: Malice. A defendant has a qualified 

privilege to criticise and censure the public acts of a public 
official, but the privilege does not exist where defendant is actuated 
by malice, by which is meant the presence of an improper motive. 

8 : Malice: Proof: Other Artiolei. The burden of establishing 

malice or improper motive is upon the plaintiff in a libel suit; 
and is not established by the introduction of other articles which 
only show that plaintiffs conduct as a public official was being 
discussed and censured for the purpose of bringing about needed 
reforms, as defendant viewed the matter, in the management of a 
public institution. 

Appeal from Callaway Circuit Court. — Hon. David H. 
Harris, Judge. 

Bevebsedu 

Judson, Green & Henry for appellant. 

(1) Neither the Circuit Court of Cole County nor 
the Circuit Court of Callaway County ever had any 
jurisdiction over this defendant, because Sec. 1755, R. S. 
1909, authprizing plaintiffs to sue in the county of their 
residence in actions for libel against corporate publish- 
ers, although the defendant resides in and must be 
•crvod in another county, is unconstitutional, being 



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372 SUPREME COURT OF MISSOURI. 

McClung V. Pulitzer Publishing Co. 

special or class legislation. It is exactly the same kind 
of statute as old Section 1754; which has been held un- 
constitutional by this court as applied to corporate pub- 
lishers of libels. It is also unconstitutional because it 
denies to such corporations the equal protection of the 
law, Houston v. Pulitzer Pub. Co., 249 Mo. 337, 339; 
Julian V. Kansas City Star, 209 Mo. 35; Davidson v. 
PuUtzer Pub. Co., 178 S. W. 68. (a) This statute is un- 
constitutional because it unreasonably discriminates be- 
tween corporate publishers of libels and all other cor- 
porations. Cases supra, (b) The statute is also un- 
constitutional as arbitrarily discriminating between cor- 
porations and individuals. See Cases supra; Santa 
Clara County v. Southern Pacific Ry., 118 U. S. 118; 
Gulf Ry. Co. V. ElUs, 165 U. S. 150; Barbiere v. Con- 
nolly, 113 U. S. 558; State v. Loomis, 115 Mo. 307; 
Wyatt V. Ashbrook, 154 Mo. 375; Russell v. Croy, 164 
Mo. 97; State ex rel. v. Ry. Co., 195 Mo. 228. (c) There 
is no reasonable basis of classification warranting dis- 
crimination between individual and corporate publishers. 
State ex rel. Wyatt v. Ashbrook, 154 Mo. 375. (2) The 
defendant's demurrer to the evidence at the close of the 
case should have been sustained and the judgment should 
therefore be reversed. The articles complained of were 
both editorial discussions of a matter of the highest pub- 
lic interest and importance and every statement of fact 
in the first article was shown to be true by undisputed 
evidence, (a) The expression of an opinion in a general 
public discussion of the management of the penitentiary 
is not libelous or defamatory, but it is privileged in law, 
under the facts in evidence. Walsh v. Pulitzer Pub. Co., 
250 Mo. 142; Cook v. Pulitzer Pub. Co., 241 Mo. 326; 
Tilles V. Pulitzer Pub. Co., 241 Mo. 609; Gandia 
v. Petttingill, 222 U. S. 452, 457; Branch v. Knapp 
& Co., 222 Mo. 532; Diener v. Star-Chroni(5le, 230 
Mo. 613; Diener v. Star-Chronicle, 232 Mo. 416; 
Davis V. Shepstone, 11 App. Cas. 190; Gott v. Pulsifer, 
122 Mass. 236; Duffy v. Evening Post, 96 N. Y. Supp. 
629. (b) Comment and criticism includes the right to 



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Vol. 279 APKIL TERM, 1919. 373 

McClung y. Pulitzer Publishing Go. 

draw incorrect inferences and to state unjust opinions. 
Cook V. Pulitzer Pub. Co., 241 Mo. 326; Diener v. Star- 
Chronicle, 232 Mo. 417; Howarth v. Barlow, 113 App. 
Div. (N. Y.) 258; United States v Smith, 173 Fed. 240. 
(c) That it is for the court, and not for the jury, to con- 
strue th^ language complained of in an action for libel 
where the facts are not in dispute, and to determine 
whether it is libelous, has been held in many recent de- 
cisions of our Supreme Court. Cook v. Pulitzer Pub. 
Co., 241 Mo. 326; Walsh v. Pulitzer Pub. Co., 250 Mo. 
142; Diener v. Star-Chronicle, 239 Mo. 613; Diener v. 
Star-Chronicle, 232 Mo. 416; Branch v. Knapp & Co., 222 
Mo. 532. (d) That a newspaper has the right to make 
publication concerning and to comment upon matters of 
public interest and that the doctrine of privilege under 
the law by libel permits an honest censorship by the 
newspaper press over the conduct of ofiScials in the 
management and conduct of public affairs is well es- 
tablished. Cook V. Publishing Company, 241 Mo. 354, 
357; O'Rourke v. Lewiston Daily Sun Pub. Co., 89 Me. 
310; Branch V. Knapp & Company, 222 Mo. 603; Cole- 
man V. MacLennan, 78 Kas. 711; Gandia v. Pettingill, 
222 U. S. 457; Cowan v. Fairbrother, 118 N. C. 418; 
Bearce v. Bass, 88 Me. 521 ; Schull v. Hopkins, 26 S. D. 
21. (e) The record fails to establish that the comment 
contained in the publication was inspired by malice, or 
that the facts upon which it is based are false. 

Ed E. Yates, A. T. Dumm, W. C. Irwin and J. R. 
Baker for respondent. 

(1) ** Courts will approach the question with great 
caution, examine it in every possible aspect, and ponder 
upon it as long as deliberation and patient attention can 
throw any new light on the subject, and never declare a 
statute void, unless the nullity and invalidity of the act 
are placed in their judgment, beyond reasonable doubt.^* 
State ex rel. v. Fort, 210 Mo. 526. (2) This venue section 
of our statute has never been directly before the Supreme 



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374 SUPREME COURT OF MISSOURI. 

McClung y. Pulitzer Publishing Co. 

Court. It has been referred to in cases where its validity 
was not involved, and it is fair to remember that all that 
has been said with reference to the statute is in its favor. 
Cook V. Globe Print. Co., 227 Mo. 522. (3) The Legisla- 
ture in enacting this statute, Sec. 1755, R. S. 1909, doubt- 
loss had in mind the inequalities affecting plaintifif, as 
well as a corporate defendant, in the matter of libels 
published. If it was unfair to drag a corporate defend- 
ant to any county of plaintiff's choosing, by the same 
token it is equally unfair to require a citizen of the in- 
terior of the State to go to the habitat of a newspaper 
for his redress. And because the great newspapers, 
those of largest circulation and influence and therefore 
possessing the greatest power to injure, are published in 
the cities and by corporations, the Legislature very prop- 
erly and without doing violence to law, placed them in a 
single classification. The doctrine announced by Valliant, 
J., in the minority opinion in the Julian Case, 209 Mo. 
67, that * 'there is a difference between a corporation and 
an individual. The corporation is an artificial being pos- 
sessing only the rights that the statute has granted and 
bearing the burdens that its charter imposes," etc., is the 
law of the land, as announced repeatedly by the United 
States Supreme Court, as shown by the cases cited. 
(4) That powers may be conferred upon or withheld 
from a corporation without doing violence to constitu- 
tional mandate is sound, wholesome doctrine. Beva 
College V. Ky., 211 U. S. 45; Hammond Pack. Co. v. 
Arkansas, 212 U. S. 322; Jenkins v. Cor. Mut., 171 Mo. 
384. (5) The fact of the great power of the corporate 
libeler for harm, since such possess practically all of 
the great agencies for this work, suggests the right of 
classification; and since a corporation can only exist 
by grace, it has no legal right to complain that it can- 
not do the things or enjoy the rights that an individual 
may any more than an individual may complain under 
the Constitution that he cannot do the things or enjoy the 
privileges and immunities which may lawfully be done 
or enjoyed by a corporation. State ex rel. v. Fort, 210 



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Mo. 512. (6) Suits against insurance companies under 
the general corporation laws of this State have been 
brought in the county where the cause of action accrued, 
practically ever since grass grew and water ran in Mis- 
souri; and this without reference to the local residence 
of the company. Individual insurers cannot be so 
sued unless residents of the county where the cause of 
action accrued. No good lawyer in wildest fancy has 
ever thought that this corporation law furnishes a con- 
stitutional objection or that such might be successfully 
urged by an insurance company to an action against it 
where it did not reside and had no agent. We have 
a law in Missouri which permits insurance companies 
even after they have withdrawn from the State and 
ceased to do business therein, to be sued by taking serv- 
ices on the insurance superintendent on outstanding 
policies. Of course, you could not do this in the case 
of an individual insurer (and there are many sucli 
in these days of individual underwriters), but who would 
stand up and affirm that the law referred to is uncon- 
stitutional as being discriminatory? It will be a wise 
man, indeed, who can maintain such a position. Such 
laws are valid for two reasons: (a) Corporations being 
children of the law are ipso facto subject to such bur- 
dens as the law-making power may from time to time 
impose. He who accepts favors must expect to bear bur- 
dens, (b) The possession of a peculiar power to do mis- 
chief possessed by a given agency, suggests of itself, the 
right to legislate with reference to that particular agen- 
cy. To illustrate: We have special legislation against 
railways for setting out fire, yet railway engines are not 
the only offenders along this line. The traction engine 
owned by an individual may do it, and frequently does, 
yet we have special laws and special rules of evidence 
created by statute affecting the railway alone. Why? 
Because the railway has common carrier rights and in 
addition thereto, great power for harm in the matter 
suggested; so when the corporate newspaper by legisla- 
tive grant becomes a common carrier of news for hire, 



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376 SUPREME COURT OF MISSOURI. 

McClung V. Pulitzer Publishing Co. 

it is proper classification and violative of no constitu- 
tional provision to say to it: You may not libel the citi- 
zen and drag him to your home, the seat of your greatest 
influence and power 'for redress, but if he so chooses he 
may make his vindication in the place where he resides 
and where the humiliation and injury' suffered is likely 
to be greatest. Hatcher v. So. Ry. Co., 68 So. 55 ; Allen 
V. Smith, 95 N. E. 831. (6) '* Legislation which merely 
affects the remedy for or against a corporation is not 
unconstitutional if it does not take away all remedy, or 
BO reduce it as to have practically that effect/' 1 Clark 
& Marshall on Private Corporations, pp,-679, 695, and p. 
678, sec. 268. If a statute assailed under the equal 
protection provision of the Federal and State constitu- 
tions affects merely the venue of the cause, the place 
where it may be brought or ultimately tried, and the 
laws administered in each of the courts are the same, 
no court in Christendom has up to this hour held that 
such a statute is bad. The United States Supreme Court ' 
Jias fully settled this proposition, and it cannot be ruled 
in appellant's favor in this case without striking down 
the unanimous decision of that court in Cincinnati Street 
Railway Co. v. Snell, 193 U. S. 29, 48 L. Ed. 604. See, 
also, 12 Corpus Juris, p. 1185; Cook v. Ray Mfg. Co., 
159 Cal. 694, 115 Pac. 318; Central Ga. Tar Co. v. 
Stubbs, 141 Ga. 172. See, also, Houston's Case, 249 Mo. 
L c. 338. (7) Concluding this branch of the case, we 
make the following observations, some of which we get 
directly from the cases cited, some of which are the 
result of our own reflections: (a) No case can be found 
where a statute similar to this solely affecting the venue 
of actions has been held bad under the Fourteenth 
Amendment or under our State Constitution, (b) To 
require a citizen to go to the habitat of the powerful in- 
fluential corporation for his redress when libeled is to 
create for him a worse condition than that which excited 
sympathy when it was held that corporations might be 
sued for libel in any county where same was published. 
If that right which has existed under the conamon law 



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ever since there were libelers gave the plaintiff an unfair 
advantage in the choice of venue, does not the same ob- 
jection obtain when the plaintiff can only have his action 
by bearding the lion in his den! (c) To hold that this 
statute is unconstitutional is virtually to strike down the 
provisions of Article 2, Section 10, Missouri Constitu- 
tion, for that, inter alia, it guarantees an open court and . 
a certain remedy to every injury to person, property or 
character. Mining & Mill. Co. v. Fire Ins. Co., 267 Mo. 
583. Certainly, it has never been claimed that because 
an individual could not be sued where and under the 
same circumstances these enumerated corporations may 
be sued, the venue and process statutes affecting them 
were repugnant to constitutional provisions, (d) If 
reason for classification between corporations and in- 
dividuals were at all needed, we think sufficient reason 
for the privilege of so doing arises from these considera- 
tions: Corporations exist by grace. They are the 
creatures of legislative generosity. They may do many 
things that the individual with his physical, financial and 
legal limitations may not do. Individual publishers of 
newspapers as well as other individual libelers are 
liable to a plaintiff to the full extent of their property 
holdings. Corporation libelers have no individual lia- 
bility or responsibility of any kind, (e) Corporation 
libelers naturally fall into a class, since with perhaps two 
exceptions in the entire United States they own the 
great newspapers with their attendant power and in- 
fluence where they are printed, and with an unlimited 
power for injury to those living remote from their seats, 
(f) The right to sue such newspapers at the place of 
residence of the one to whom wrong is done should and 
does exist, because there an unchallenged charge most 
nearly affects him. (g) Venue laws in both civil and crim- 
inal actions are not uniform, were not intended to be 
uniform and cannot in the very nature of things be made 
uniform. (8) It is claimed that defendant's demurrers 
at the close of the whole case should have been sustain- 
ed, for that the article sued on contained mere state - 



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378 SUPREME COURT OF MISSOURI. 

McClung y. Pulitzer Publishing Co. 

ments of opinion, fair comment and criticism. Counsel 
seem to try to make a distinction in this regard between 
the two articles. There is none. The facts upon which 
these alleged opinions and comment and criticism are 
based are not given. One may not withhold facts and yet 
so denounce another by language descriptive of his 
conduct in such a way as to hold him up to public scorn, 
hatred, contempt or in a way to deprive him of the 
benefits of public or private confidence, or social inter- 
course, without ipso facto making himself a Ubeler under 
our law. Price v. Whiteley, 50 Mo. 441. In that case the 
language sued on was mere denunciation, to- wit: ''I 
found an imp of the devil in the shape of Jim Price 
sitting upon the mayor's seat." If to charge one witJi 
being a coward or an imp of the devil is libelous which 
portray moral qualities, how much more so to say of 
one as warden of a penal institution that he was guilty 
of mediaeval barbarities toward those under his charge I 
To those familiar with the world's history it means 
anything conceivable in the way of torture practiced by 
the barbarian and the savage. In the first article thr 
charges are rung again and again upon the barbarous 
character of the punishment inflicted by Warden Mo- 
Clung. The case last cited has been followed again and 
again. The conception of counsel that one cannot be 
libeled by an expression of opinion as to his moral quali- 
ties or conduct is not ever *' archaic," for it never has 
been the law in any jurisdiction and could not by any 
possibility be the law under such a statute as ours. 
Ferguson v. Chronicle, 72 Mo. App. 465; Mauget v. 
O'Neill, 51 Mo. App, 35; Farley v. Chronicle, 113 Mo. 
App. 216; 25 Cyc. 253, note 32. To say of one that he 
is a ** frozen snake'* is libelous per se. Hoare v. Silver- 
lock, 12 Q. B. 624. Or a skunk: Pledger v. State, 77 
Georgia, 242. To say of a writer that he is a '•pre- 
sumptuous literary freak'' is libelous per se. Triggs v. 
Sun, 179 N. Y. 144. '* Whenever the libelous intent or 
seeming libelous intent appears though dimly and 
vaguely, as through a glass darkly/ the question be- 



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Vol. 279 APEIL TERM, 1919, 379 



McClung y. Pulitzer Publishing Ck>. 



comes one for the jury to say whether the meaning was 
harmless or defamatory." McQinnis v. Geo. Knapp & 
Co., 109 Mo. 150; Link v. Hamlin, 193 S. W. 593. Com- 
ment must be fair and without malice. This is for the 
jury. Cook v. Pub. Co., 241 Mo. 357 ; Cornelius v. Corne- 
lius, 233 Mo. 31. To publish a libelous communication on 
the authority of another is to adopt it as one's own, even 
where the authority is given. 25 Cyc. 363. (9) That 
the publications sued on were inspired by malice fully 
appears from the fact that defendant knew them to be 
false or had the opportunity to learn their falsity and 
failed to ascertain the truth. Recklessness is equivalent 
to malice. Minter v. Bradstreet, 174 Mo. 444; Brown v. 
Kripp, 213 Mo. 695. Nor does either article with any 
degree of fairness characterize the punishments that 
obtained in the Missouri prison. When the publisher goes 
beyond the limits of fair criticism or comment the region 
of libel has been reached, and ** whether those limits 
have been transcended is for the jury." 18 Am. & Eng. 
Enc. Law (2 Ed.), pp. 1021-2; Trigg v. Ptg. Co., 189 
N. Y. 154; Fay v. Harrington, 176 Mass. 270. (10) 
Appellant reiterates the statemens in its brief that Willis 
was kept in the rings fourteen hours each day. This 
is not only untrue, but at the time of the publication of 
this statement defendant knew or could easily have 
known that it was untrue. When the truth is plead- 
ed the ^evidence to sustain it must be as broad as 
the charge and go to the very charge. Nelson v. Mus- 
grave, 10 Mo. 648; Whittlesey's Practice, p. 228; 
Odgers on L. & S. sec. 170; Townshend on L. & S. sec. 
212; Starkie on L. & S. p. 342; Newell on L. & S. 
p. 662; Pratt v- Pioneer Press, 30 Minn. 44; Self v. 
Gardner, 15 Mo. 480; Faler v. Delavan, 20 Wend. 57; 
Thompson v. Pioneer Press, 37 Minn. 285; Mull v. 
McKnight, 67 Ind. 535. 

McBAINE, Spedal Judge. — This is an action for 
libel, in which the plaintiff recovered judgment and 
the defendant appealed to this court. 



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380 SUPREME COURT OF MISSOURI. 

McClung y. Pulitzer Publishing Ck>. 

The suit was instituted in the Circuit Court of 
Cole County, where the plaintiff resided, and summons 
was served upon the defendant in the City of St. Louis. 

At the return term the defendant appealed specially 
and filed a plea to the jurisdiction of the Circuit Court 
of Cole County. The plea to the jurisdiction was, in 
substance, that defendant was a Missouri corporation 
engaged in publishing a newspaper, called the St. Louis 
Post-Dispatch, in the City of St. Louis, where its princi- 
pal oflSce is located and that at all times mentioned in 
plaintiff ^s petition it had no office or agent in Cole 
County. It was alleged that* the service of summons 
was made upon defendant by the Clerk of the Circuit 
Court of Cole County sending the petition and summons 
to the Sheriff of the City of St. Louis and that no other 
service was had; and, that defendant had made no 
voluntary appearance in the Circuit Court of Cole 
County. The plea alleged that the paper containing 
the alleged libel was first published in the City of St. 
Louis. 

The defendant then alleged, in its plea to the 
jurisdiction, that if the statutes of Missouri are con- 
strued as warranting service in this manner and com- 
pelling defendant to appear in the Circuit Court of Cole 
County when individual defendants in libel suits can 
only be sued in counties of their residence, then the 
statutes violate the Constitutions of Missouri and of 
the United States in that they deny to defendant the 
equal protection of the laws. 

The plea to the jurisdiction was overruled. The 
defendant then demurred to the petition on the ground 
that the petition on its face showed that the court had 
no jurisdiction. The demurrer was overruled. A change 
of venue was then taken by defendant to the Circuit 
Court of Callaway County, where the case was tried 
by the court and a jury. A verdict was rendered in favor 
of plaintiff in the sum of $20,000, but before defendant's 
motion for a new trial was passed upon plaintiff remitted 



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VoL 279 APEIL TERM, 1919. 381 

McClung y. Pulitzer Publishing Co. 

$13,000 and judgment was thereupon entered against 
defendant in the sum of $7000. 

As was stated, this is an action for libel. The peti- 
tion is in two counts. In the first count the plaintiff 
alleged that he was the Warden of the State Penitenti- 
ary and *'that by the provisions of the laws of this State, 
the plaintiff as such warden at all times hereinafter 
mentioned had and exercised the general control and 
supervision over the government, discipline and police 
regulations of and appertaining to the said peniten- 
tiary.'' He alleged that the defendant newspaper pub- 
lished an article charging him with barbarous and 
archaic treatment of prisoners in the penitentiary. 

In the second count of the petition. the same allega- 
tion is made as to the plaintiff's conduct. It was then 
alleged that the defendant published another article 
defamatory of the plaintiff of the same general nature. 
It was alleged that the second article was a purported 
letter from a convict in the penitentiary. The letter is 
set forth in full in the petition. The convict, in the 
letter, complained of the treatment of prisoners in the 
penitentiary, and stated, in substance, that many prison- 
ers were severely whipped with a leather whip on their 
bare backs. The letter also stated that prisoners were 
punished by compelling them to stand on their feet, flat 
on the stone floor, with their arms extended above their 
heads and their wrists chained by hand-cuffs to a ring 
fastened in the wall of a prison cell. It was stated 
that they stand in that position from 6:30 a. m. to 
three p. m., and again from three p. m. to nine p. m.; 
that they receive one slice of bread at six o'clock in the 
morning, and another one at three o'clock in the after- 
noon ; that they were given water, but no other food, and 
that they were compelled to sleep at night, without 
bedding or cover, in the cell upon a board upon the cell 
floor. This treatment of prisoners was criticized as 
horrible, ignorant, brutal and unjust, and it was said that 
many prisoners because of such treatment, left the 
penitentiary ''with murder in their hearts, determined 



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382 SUPREME COURT OF MISSOURI. 

MeClung T. Pulitzer Publishing Co. 

to make society pay them what it has allowed them, 
through its representatives, unjustly to suffer." The 
convict called upon the defendant paper to discuss the 
matter in the interest of society and stated: **I promise 
you you will uncover brutality, ignorance and vice such 
as would make the story of the Spanish Inquisition read 
like a nursery rhyme." 

The letter also stated that one Steve Willis was put 
in the rings and kept there a great length of time until 
he made a confession to the officials where he had gotten 
some whisky found on his person. The convict stated 
that a confession **rung from a man under torture" 
has no value in a court of law and asked why such a 
confession should be given value in the penitentiary. 
It was alleged that this letter from the convict was 
published with comment by the defendant. The comment 
was that the letter was published as a statement of an 
intelligent man for what it was worth, and that tha 
defendant stated *'we ask Warden McClung and the 
members of the Board of Prison Inspectors if tneso 
charges are true. We ask Governor Major if they are 
true. We ask a through investigation to determine their 
truth or falsity." 

The answer of defendant alleged that the peniten- 
tiary at Jefferson City was a public institution of the 
State, and that plaintiff was its warden; that defendant 
published a newspaper in the City of St. Louis, known 
as the St. Louis Post-Dispatch and that it wrote the 
articles mentioned in the petition of the plaintiff aa 
Warden of the Penitentiary. The defendant alleged 
that the penitentiary had in it 2500 prisoners, and that 
the management, government and discipline thereof were 
matters of the highest public interest and concern 
to the i>eople of Missouri, and that defendant and every 
citizen of the State had the right to discuss, criticize 
and comment upon the conduct and management of the 
penitentiary and its various officials. It was alleged 
that defendant had the right to criticize the plaintiff 



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Vol. 279 APRIL TERM, 1919. 383 

McClung y. Pulitzer Publishing Oo. 

warden if in its opinion he deserved criticism or cen- 
sure. 

The answer alleged that before the publication of the 
alleged libels complained of a prisoner named Steve 
Willis had been punished for refusing to tell the prison 
officials where he obtained a bottle of whisky which- 
had been found in his possession; that Willis was 
placed in a cell in solitary confinement, hand-cuffed, 
and his hands chained to an iron ring, fastened to the 
wall, the ring being placed so that his hands and arms 
were raised several inches above his head; that he was 
compelled to stand in this posture for twenty consecu- 
tive days, for 14V^ hours a day ; that he was not allowed 
to leave his cell at any time and only had one slice of 
bread at six o'clock in the morning and another at 
three o'clock in the afternoon, and had nothing else to 
eat during the twenty days, and that at night he was 
compelled to sleep upon a bare board laid upon the 
concrete floor of the cell without bedding or covering 
of any kind. It was alleged that at the end of twenty 
days Willis was unable to bear up longer, and that he 
made a false confession to the prison officials that he 
obtained his whisky from another prisoner named 
Wright; and that thereupon the prison officials released 
Willis and seized Wright and hand-cuffed and chained 
him, and that in order to obtain a release Wright con- 
fessed, and thereupon Wright was released. The answer 
also alleged that prior to the publication of the articles 
complained of, plaintiff and his deputies had caused 
various inmates of the penitentiary to be stripped of 
their clothing and their hands tied, and whipped upon 
there bare backs with a heavy leather strap. It was al- 
leged that these matters were commonly known and dis- 
cussed in the public press at the time both articles in 
question were published. 

It is alleged that these articles were published 
for the purpose of bringing about reform in the manage- 
ment and discipline of the penitentiary, and that the 
statements of facts in the articles were substantially 



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384 SUPREME COURT OF MISSOURI. 

McClung y. Pulitzer Publishing Ck>. 

true and all matters of inference, opinion or com- 
ment in the articles were based upon the facts and 
were made in good faith for the purpose of bringing 
about reform, and that they were not libelous of plain- 
tiff. 

The reply denied the new matter in the answer. 

At the trial, the evidence showed that Steve Willis 
was put in the rings for 20 or 21 days ; that he was given 
a slice of bread at six o'clock in the morning and was 
put in the rings at 6 :30 in the morning, and taken down 
at three in the afternoon and given another slice of 
bread, and was put back in the rings and kept there 
until nine o'clock at night, and then compelled to sleep 
on a board laid upon the concrete floor of the cell, 
without covering or bedding. 

On cross-examination plaintiff stated that such 
was the discipline inflicted upon Steve Willis. He stated 
that he thought Willis was let down at three o'clock and 
not put back again. But he also said: '*I do not know at 
what time he was put up and let down." He stated that 
he kept men in the rings 30 or 40 days. He stated 
that he regarded this form of punishment as proper. 
He said that Willis was punished for having a bottle of 
whisky on his person, and **that he was not strung up" 
to compel him to state where he had gotten his whisky. 
He said, though, that Willis was let down shortly after 
he made his confession that Wright had given him the 
whisky, and that Willis was let down because the 
oflScials though he had been punished enough. 

The testimony of the night guard and the day 
guard in the punishment hall at the time Willis was 
strung up in the rings was that Willis was put in the 
rings at 6 :30 in the morning, taken down at .three, put 
back at 3:30 and kept there until nine o'clock. Willis 
himself also testified to the same effect. 

The evidence showed that four or five prisoners 
were whipped with a leather whip on their bare backs 
during the time the plaintiff was Warden of the peniten- 
tiary. This evidence was given by the plaintiff, on 



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cross-examination, and by his witness, the Deputy 
Warden, whom the plaintiff said did the whipping. 

It was also given by two former members of the 
Board of Prison Inspectors who had witnessed the 
whipping or two negroes who were whipped for fighting. 
They stated that these prisoners were whipped with a 
strap that was two to four feet in length, attached to 
a wooden handle, and that the* whipping was done by the 
Deputy Warden, and that the prisoners cried out that 
they would quit fighting if the Deputy Warden would 
quit whipping them. It was stated that when they were 
whipped they had their hands fastened to a ring in the 
wall, and that their clothing was stripped off their backs* 
and that they were hit five or six licks on their bare 
backs. 

I. First, is the Missouri statute, Section 1755, 
Revised Statutes 1909, authorizing the institution of 
y^^^^. this suit in the Circuit Court of Cole 

Unconstitutional county constitutional! That section reads 
statute. ag follows: 

'*Sec. 1755. Suits for libel against corporations 
shall be brought in the county in which the defendant is 
located, or in the county in which the plaintiff resides) 
and when suit is instituted in the county in which the 
plaintiffs resides, summons may be issued to and served 
by the sheriff of the county in which the defendant is 
located.'' , [Laws 1909, p. 347.] 

It applies only to suits for libel against corporations. 

Section 1751, Revised Statutes 1909, the statute 
covering the question of the venue in libel suits, and 
many other suits, against individuals, provides that 
suit shall be brought in the county where the defend- 
ant resides, or where the plaintiff resides and the de- 
fendant may be found. 

Section 1754, Revised Statutes 1909, relating to suits 
against corporations, provides that the suit shall be 
brought in any county where the cause of action ao- 

25—279 Ho. 



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386 SUPREME COURT OF MISSOURI. 

McClung V. Pulitzer Publishing Co. 

crues, or in any county where the corporation usually 
keeps an office or agent for the transaction of their 
usual and customary business. 

It is earnestly insisted by appellant that Section 
1755, Revised Statutes 1909, denies to corporations 
charged with libel the equal protection of the law, and 
that it has been so decided by the prior judgments of 
this court. For respondent it is also strenuously argued 
that this statute does not deny to defendant the equal 
protection of the laws of Missouri, and that it has not 
been so decided by the prior judgments of this court. 
The question has been discussed learnedly by counsel 
for both parties, both in the printed briefs and in the 
oral arguments. An approach to the solution of the 
question will be made by making a short reference to 
the prior decisions of this court on this question. 

Julian V. Kansas City Star Co., 209 Mo. 35, de- 
cided by the court, In Banc, is the starting point. There 
an action by the plaintiff was brought against the 
defendant in the Circuit Court of Platte County. The 
plaintiff lived in Jackson County, and the defendant 
corporation first published the alleged libel in Jack- 
son County, where it had its office and principal place 
of business. A majority of this court held that the 
Circuit Court of Platte County had jurisdiction. Graves 
and Lamm, JJ., dissented on the ground that the court 
had no jurisdiction, and that if the Legislature intended 
to confer jurisdiction upon the Circuit Court of Platte 
County in a case of this nature the act of the Legis- 
lature was void and in violation of the State and Federal 
constitutions, in that defendant was denied the equal 
protection of the laws of Missouri. The basis of the 
dissenting opinion was that the construction given the 
Missouri statutes by the majority of the court made a 
difference between corporate libelers and individual 
libelers. It was pointed out that a corporation is a 
citizen within the meaning of ^ the 14th Amendment to 
the Federal Constitution which provides that no state 
*' shall deny to any person within its jurisdiction the 



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Vol. 279 APRIL TERM, 1919. 387 

McGlung T. Pulitzer Publishing Ck>. ^ 



equal protection of the laws." In Covington and Lex- 
ington Turnpike Co. v. Sandford, 164 U. S. 1. c. 592, it 
was said that no distinction existed between corporate 
libelers and individual libelers, and also that no dis- 
tinction existed between two individual plaintiffs, for 
example, one of whom had been libeled by a corporation 
publishing a newspaper, and the other by an individual 
publishing a newspaper. It was also said that such 
legislation was in violation of Section 10, Article 2, of 
the Constitution of Missouri, guaranteeing that ** justice 
should be administered without sale, denial or delay." 
It was said that disadvantages were placed upon cor- 
porations charged with libel, and that there was no 
difference in fact between an individual charged with 
libel and a corporation. The majority opinion, however, 
was followed in several succeeding cases. [See Tilles 
V, Pulitzer Publishing Co., 241 Mo. 609.] 

But in Houston v. Pulitzer Publishing Co., 249 
Mo. 332, the rule laid down in the dissenting opinion 
in Julian v. Kansas City Star Company, supra, was 
recognized as the correct rule, and applied in that case 
by Court In Banc. The court held that the circuit court 
of Macon County had no jurisdiction of a libel suit in- 
stituted by a citizen of Cass County against the de- 
fendant corporation, whose domicile was in the City 
of St. Louis. Julian v. Kansas City Star Company was 
overruled in part. It was said that if old Section 997, 
Revised Statutes 1899, was to be given the construction 
placed upon it **by the majority in the Julian case,'' 
then the statute violates both the State and Federal 
Constitution. Graves, J., wrote the opinion for the 
majority of the court. Woodbon and Bond, JJ., dis- 
sented. 

Jones V. Pulitzer Publishing Co., 256 Mo. 57, Divi- 
sion 2, was decided upon the express authority of 
Houston V. Pulitzer Publishing Company, 249 Mo. 332, 
and held that the trial court got no jurisdiction of the 
Kbel suit in question, as it was brought *4n another 
county than that in which the plaintiff resided, or the 



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388 SUPREME COURT OF MISSOURI. 

McClung v. Pulitzer Publishing Co. 

defendant, if a newspaper, first published the libel or 
had an office or agent." 

Again, in Davidson v. Pulitzer Publishing Co., 
178 S. W. 68, Division One of this court held, upon the 
authority of the Houston case and the Jones case, 
supra, that the Circuit Court of Jackson County did 
not get jurisdiction of a suit brought by plaintiff, a 
resident of Jackson County, against this defendant, a 
Missouri corporation, with its office and place of busi- 
ness in the City of St. Louis. The opinion was written 
by Woodson, J. All concurred, Bond, J., ''for the 
reason that Court in Banc has decided the question." 

So then we conclude that since the decision in 
Houston V. Pulitzer Publishing Co., 249 Mo. 332, de- 
cided April 8, 1913, this court has been of the opinion 
that the Legislature has not the authority, under the 
State and Federal Constitutions, to provide that the 
venue in libel suits shall be that the individual charged 
with libel may only be sued in the county where he 
resides, or where the plaintiff resides if the individual 
is there found, but, that in the case of a corporation 
charged with libel the corporate defendant may be sued 
in a county in this State, where neither the action ac- 
crued nor the corporation has its domicile or agent for 
the transaction of business, and that the Legislature 
may not provide that a citizen of the State, who is 
plaintiff in a libel suit, can sue a corporate defendant 
charged with libel in the county where the citizen resides 
while a citizen, as plaintiff, who charges an individual 
defendant with committing a libel, cannot sue the de- 
fendant in the county in which the plaintiff resides, un- 
less the individual defendant shall be found in the 
county where the plaintiff resides. 

We believe that the rule laid down in Houston v. 
Pulitzer Publishing Co., 249 Mo. 332, is not only the 
established law of this State, but that it is also sound in 
legal principle. For a lucid and forceful discussion of 
the principle we refer to the dissenting opinion in Julian 
V. Kansas City Star Company, 209 Mo. 1. c. 97. As 



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Vol. 279 APRIL TERM, 1919. 389 

McClung y. Pulitzer Publishing Co. 

was stated by Judge Gbaves in that case the Supreme 
Court of the United States has definitely settled that 
corporations are within the protection of Section 1 of the 
14th Amendment to the Constitution of the United 
States, providing that no State shall **deny to any per- 
son within its jurisdiction the equal protection of the 
laws.'' [Santa Clara County v. Southern Pac. Railway 
Co., 118 U. S. 394; Gulf etc. Railway Co. v. Ellis, 165 
U. S 150.] In the latter case Mr. Justice Prewer said: 
**The rights and securities guaranteed to persons by that 
instrument cannot be disregarded in respect to these 
artfiioal entities called corporations any more than 
they can be in respect to the individuals who are the 
equitable owners of the property belonging to such cor- 
porations. A State has no more power to deny to cor- 
porations the equal protection of the law than it has 
to individual citizens." 

The Supreme Court of the United States therefore 
laid down the rule that the property, and other rights, 
of the citizens were protected by this amendment when 
several citizens have associated themselves together 
under the sanction and authority of the State, for the 
purpose of transacting business and have brought into 
existence a legal entity called a corporation. These 
entities have received legal sanction from a very early 
period in the common law, and have been and are now 
receiving legal sanction in all of the States of the Union. 

No extended discussion of the authorities need be 
made holding invalid many state statutes which deny 
to corporations and individuals the equal protection of 
the laws. Such a discussion would serve no useful pur- 
pose at this late date. Nowhere is the matter more 
clearly discussed than in Gulf Railroad Co. v. Ellis, 165 
U. S. 150, in the opinion by Mr. Justice Brewer. In 
that case that learned jurist specifically approved a 
decision of this court, State v. Loomis, 115 Mo. 307, 
where the question is also very ably considered. In 
the first case Mr. Justice Brewer said, at page. 155: 



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390 SUPREME COURT OF MISSOURI.. 

McClung T. Pulitzer Publishing Co. 

*'As was well said by Black, J., in State v. Loomis, 
nS Mo. 307, 314, 21 L. R. A. 789, in which a statute 
making it a misdemeanor for any corporation engaged 
in manufacturing or mining to issue in payment of the 
wages of its employees any order, check, etc., payable 
otherwise than in lawful money of the United States, 
unless negotiable and redeemable at its face value in 
cash or in goods and supplies at the option of the holder 
at the store or other place of business of the corpora- 
tion, was held class legislation and void: * Classifica- 
tion for legislative purposes must have some reasonable 
basis upon which to stand. It must be evident that 
differences which would serve for a classification for 
some purposes furnish no reason whatever for a classifi- 
cation for legislative purposes. The differences which 
will support class legislation must be such as in the 
nature of things furnish a reasonable basis for separate 
laws and regulations. Thus, the Legislature may fix the 
age at which persons shall be deemed competent to con- 
tract for themselves, but no one will claim that com- 
petency to contract can be made to depend upqp statute 
or color of the hair. Such a classification for such a 
purpose would be arbitrary and a piece of legislative 
despotism, and, therefore not the laws of the land.' '' 

Concluding the opinion, at page 165, Mr. Justice 
Brewer said: '*It is apparent that the mere fact of 
classification is not suflScient to relieve a statute from 
the reach of the equality clause of the Fourteenth 
Amendment, and that in all cases it must appear not 
only that a classification has been made, but also that it 
is one based upon some reasonable ground — some dif- 
ference which bears a just and proper relation to the 
attempted classification — and is not a mere arbitrary 
selection. Tested by these principles the statute in 
controversy cannot be sustained. The judgment of the 
Supreme Court of Texas is therefore reversed, and the 
case is remanded for further proceedings not inconsist- 
ent with this opinion.'' See also Cotting v. K. C. Stock 
Yards Co., 183 U. S. 79. 



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Vol. 279 APRIL TERM, 1919. 391 

McClung y. Pulitzer Publishing O/. 

And as stated by a learned writer discussing the 
'-equality'' clause of the Federal Constitution (Guthrie, 
The Fourteenth Amendment to the Constitution of the 
United States, p. 110): *'The provision, if properly 
construed, assures to every person within the jurisdic- 
tion of any State, whether he be rich or poor, humble 
or haughty, citizen or alien, the protection of equal 
laws, applicable to all alike and impartially administer- 
ed without favor or discrimination. Thus what was the 
spirit became the written rule of American state govern- 
ments; and equality, infused through the mass of our 
rights and duties, now pervades, unites, invigorates, the 
whole system." 

Learned counsel for respondent place great reliance 
upon Cincinnati Street Railway Co. v. Snell, 193 U. S. 
30. They argued that under the rule laid down by that 
case. Section 1755, Revised Statutes 1909, is constitu- 
tional. In that case the Supreme Court of the United 
States held a statute of Ohio not in violation of the 
equality clause of the Fourteenth Amendment. The 
Ohio statute read as follows: *'When a corporation 
having more than fifty stockholders is a party in action 
pending in a county in which the corporation keeps its 
principal office, or transacts its principal business, if the 
opposite party make affidavit that he cannot, as he be- 
lieves, have a fair and impartial trial in that county, and 
his application is sustained by the several affidavits of 
five credible persons residing in such county, the court 
shall change the venue to the adjoining county most con- 
venient for both parties.*' 

A personal injury suit was brought against the de- 
fendant corporation in an Ohio court and the plaintiff 
under the statute took a change of venue. The trial 
resulted in a verdict in favor of plaintiff. It was affirm- 
ed by the Supreme Court of Ohio. A writ of error was 
sued out to the Supreme Court of Ohio by the defendant 
railroad company. The Supreme Court of the United 
States held the statute valid and not in violation of the 
equality clause of the Fourteenth Amendment. The 



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392 SUPEEMB COURT OF MISSOURI. 

McClung y. Pulitzer Publishing Co. 

opinion holds that classification made as to corpora- 
tions having fifty stockholders or more was not un- 
reasonable, and that it was in the power of the Ohio 
Legislature to provide that a plaintiflf in a suit against 
a corporation having fifty stockholders or more, which 
was pending in the county where the corporation keeps 
its principal office or transacts its principal husinesi^, 
may change the venue to some? other county, if he shall 
make an affidavit that he cannot have a fair trial in the 
county where the suit is instituted, and the application 
shall be supported by the several affidavits of five 
creditable persons residing in that county. A classifi- 
cation is made then for all corporations having fifty or 
more stockholders for the purpose of determining the 
venue of actions against the corporations where the 
action is pending in a county where the corporation has 
its principal office or transacts its principal business. 

We understand the Supreme Court of the United 
States to hold that this is a reasonable classification, 
and that the defendant corporation was not denied the 
equal protection of the laws of Ohio, though a plaintiflf 
against an individual defendant could not by the same 
means take a change of venue to another county. The 
court pointed out that in the forum to which the cause 
was removed the cause was conducted in the same way 
under the same rules of pleading and practice and of 
substantive law that would have been applied in the 
county where the suit was instituted. We do not under- 
stand the opinion to hold that the Legislature of a state 
may enact a general venue statute providing that suits 
of the same nature shall be brought in the county of the 
residence of the defendant where the defendant is an in- 
dividual, and not at the residence of the plaintiff, but 
that suits may be brought by the plaintiff in the county 
of his residence if the defendant is a corporation. The 
Ohio statute involved no such question. Under the Ohio 
statute the plaintiff might change the venue to another 
county from the county where the corporation had its 
principal office or principal place of business when the 



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Vol. 279 APRIL TERM, 1919. 393 

McClung v. Pulitzer Publishing Ck>. 

suit was pending in such county when he made affidavit 
that he could not get a fair trial and supported it by 
the several affidavits of five creditable persons residing 
in such county. 

Learned counsel for respondent argue that the rule 
was laid down in Cincinnati Street Railway Co. v. Snell, 
193 U. S. 30, that the equality clause of the Federal 
Constitution has no application to venue statutes. We 
do not agree with this view. Our substantive and re- 
medial law are inseparable. In fact, we know that the 
development of the common law was through the reme- 
dial side of the law. Lawyers and litigants readily 
recognize that there is an advantage, if one is plaintiff, 
to sue in the county where one lives, if the defendant 
is a resident of another county. To be able to do so is 
to save time, expense and trouble, and to have the ad- 
vantage of having jury casQS passed upon by one's ac- 
quaintances. The subject of local influence is one well 
known to the law, and there can be no denial that it is 
a decided practical advantage for a plaintiff to sue a 
non-resident defendant in the county where the plaintiff 
resides. The administration of the law is a practical 
matter, and never without the human element. People 
are plaintiffs and people are defendants, and money, 
property and other things of value are the subjects of 
litigation. 

It is also strenuously argued by counsel for respon- 
dent that if Section 1755, Revised Statutes 1909, is not 
valid the personal plaintiff in a libel suit must go to the 
domicile of the defendant to bring suit if he is libeled, 
and that in the case of corporations publishing papers 
of large circulation in the cities of the State this would 
be very unfair to the personal plaintiff who does not 
live in one of these large cities where the corporation 
has its domicile. This we think is an argument more prop- 
erly addressed to the Legislature of the State than to 
the courts. It may be conceded that the venue statutes of 
the State need general revision, but it is not the function 
of the courts to make that revision. The Legislature 



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394 SUPREME COUET OF MISSOURI. 



McClung V. Pulitzer Publishing Co. 



has provided for venue of cases and the courts have not 
the power to change those statutes if they do not con- 
flict with the State or Federal constitutions. The Legis- 
lature of the State has the power to make reasonable 
classification of people and of corporations in determin- 
ing the venue of actions, but it has not the power to 
make an arbitrary or unreasonable classification. The 
statute in question is not a venue statute governing 
the venue of all libel suits. It is a statute governing 
the venue of libel suits against corporations. It is not 
even a statute governing venue of libel suits against 
newspaper corporations. No good reason has been 
given why corporate libelers are any different from in- 
dividual libelers. No reason has been given why a cor- 
porate defendant publishing a daily newspaper in the 
City of St. Louis .with a large circulation should be 
subject to suit in Cole County, while an individual who 
publishes a paper with a large circulation in Kansas 
City is not subject to suit in Cole County. We believe 
none can be given. We believe the classification of in- 
dividuals and corporations unreasonable, and not based 
upon **any difference which bears a just and proper re- 
lation to the attempted classification." No doubt more 
could be said for the reasonableness of a statute which 
provided that in all libel suits against individuals and 
corporations alike the action might be brought in the 
county where the plaintiff resides if there is publication 
of the libel in that county. But such is not the statute 
under consideration. 

So then following the guide laid do^n by this court 
in State ex rel. v. Fort, 210 Mo. 1. c. 526, as to the deter- 
mination of the constitutionality of legislative enact- 
ments, viz., **to ponder upon it as long as deliberation 
and patient attention can throw any new light upon the 
subject, and never declare a statute void unless the nul- 
lity and invalidity of the act are placed in their (the 
court's) judgment beyond reasonable doubt," we have 
concluded that the statute in question violates consti- 
tutional mandate. 



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Vol. 279 APRIL TERM, 1919. 395 



McClung T. Pulitzer Publishing Co. 



Research by learned counsel for respondent and 
appellant brought forth no judgment of the Federal 
courts nor the courts of our sister States where a stat- 
ute like the one in question was passed upon. The Su- 
preme Court of California, though, has decided a case 
which we believe involves a venue statute substantially 
like the one in question. [See Grocers' Fruit Growing 
Union v. Kern County Land Co., 150 Cal. 466, 89 Pac. 
120.] The action was for specific performance of a 
contract for the sale of land. The suit was commenced 
in the City and County of San Francisco. The defend- 
ant denied jurisdiction and asked that the case be re- 
moved to Kern County. The motion to remove was de- 
nied. The land in question was admittedly in Kern 
County. It was contended that under the California 
Constitution, Article 6, Section 5, this suit should have 
been brought in Kern County. The respondent, in that 
case, insisted that under the Code of California the 
action was properly brought in the County of San Fran- 
cisco, the county of the defendant's residence, and 
properly retained there for trial. Also under Section 16 
of Article 12 of the Constitution, it was contended that 
the corporation had the right to insist upon the case 
being tried in the' county where the corporation was 
domiciled. In suits against individuals where land was 
involved the individual defendant had the right to have 
the suit tried in the county where the land was located. 
It was argued by the appellant that *4f the proposition 
be advanced that Section 16 of Article 12 of the Consti- 
tution warrants the commencement of the action in the 
City and County of San Francisco and forbids to defend- 
ant its right to change the place of trial, then this clause 
of our Constitution is violative of the Fourteenth Amend- 
ment to the Constitution of the United States, in denying 
to corporations the right to have an action affecting an 
interest in real estate tried in the county where the - 
land is situated, while this right is accorded to natural 
persons." In holding that the corporation might remove 
th^ suit to the county where the land lay, and that a 



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396 SUPREME COURT OF MISSOURI. 

MoOlung y. Pulitzer Publishing Go. 

construction of the Civil Code, or a provision of the 
California Constitution which denied corporations that 
right, would violate the Federal Constitution, the Cali- 
fornia Court said, at page 474: ''Where the subject- 
matter of the action, to-wit, land, is made the test 
for fixing the place of trial of the action, no reason or 
distinction appears, or can be made appear, why the 
right should be given to a natural person to have such 
an action tried in the county where the land is situated, 
and the same right should be denied to an artificial per- 
son, a corporation. ... No conceivable ground can 
be suggested why a natural person should have the right 
of trial of an action involving an interest in land in 
the county where the land is situated, and the same 
right should be denied to a corporation. If the situation 
were reversed the absurdity would be patent. A law 
which granted to a corporation the right and denied it to 
a natural person would be held arbitrarily discriminative 
without a moment's hesitation." The California court 
then concluded that the Civil Code and Section 16 of 
Article 12 of the Constitution could be and should he 
so construed as to make no difference in suits against 
individuals and corporations where the title to land i^ 
involved. 

It was suggested by the California court as is shown 
in the above quotation, that an act of a Legislature which 
granted the right to a corporation to have the suit 
brought where the land was located and denied the 
right to a natural person would be held arbitrarily dis- 
criminative without hesitation. Apply that thought to 
the statute under consideration, which deals differently 
with corporate libelers and individual libelers. Would 
not the courts without a moment's hesitation declare 
unconstitutional a statute which provided that in suits 
against a natural person charged with libel the action 
might be begun in the county where the plaintiff resided, 
though the natural person was a non-resident of the 
county, but as to corporations the suit could not be 
brought in the county where the plaintiff resided, but 



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Vol. 279 APRIL TERM, 1919. 397 



McClung V. Pulitzer Publishing Co. 



must be brought in the county where the corijorate de- 
fendant resided! We say a statute would be clearly 
unconstitutional which discriminated against natural 
persons and provided that though they were non- 
residents they might be sued in the county where the 
plaintiff resided, and required suits against corpora- 
tions to be brought where the corporate defendant had 
its residence. 

Learned counsel for appellant cite many cases in 
their brief to support their argument. Time and space 
prevent a discussion of these authorities. They have 
been carefully read and considered, but have all been 
found distinguishable and indecisive of the matter in 
question. We therefore, conclude: first, that though 
Section 1755, Revised Statutes 1909, has not actually 
been passed upon by this court, yet, this court in passing 
upon Section 997, Revised Statutes 1899, laid down a 
general principle of constitutional law that condemns 
the thing attempted by the Legislature in enacting Sec- 
tion 1755; and, second, that under the decisions of this 
court the Supreme Court of the United States and the 
courts of last resort of other states, Section 1755, 
Revised Statutes 1909, is void, in that it contains an 
inequality and makes a classification bearing no reason- 
able, just or proper relation to the class made. 

n. We are also of the opinion upon the merits of 
the case that the judgment should have been for the de- 
fendant below. In our opinion the case should not have 
been sent to the jury. There can be no ques- 

A(SL''' *^^" ^^ ^^^^ *™^ *^^* *^® citizens of this State, 
through newspapers and otherwise, have the 
right to criticise the ofiicial acts of the public oflScers of 
this State. The rules relating to defamation where the 
party alleged to have been defamed is an individual in 
private life do not apply where the individual alleged 
to have been libeled is a public official and where the 
alleged libelous matter is as to the conduct of the in- 
dividual as a public official, viz.. Warden of the State 



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398 SUPREME COUET OP MISSOURI. 

McClung y. Pulitzer Publishing Go. 

Penitentiary, Perhaps at one time in the English com- 
mon law one did not have the privilege of freely discuss- 
ing and criticising the public acts of public officials. 
Lord Holt said in 1704: ''If persons should not be 
called to account for possessing the people with an ill 
opinion of the government, no government can subsist, 
for it is very necessary for all governments that the 
people should have a good opinion of it." [The Queen 
V. Tutchin, 14 How. St. Tr. 1095.] Such is no longer the 
English rule. [Odgers on Libel and Slander (5 Ed.), 
193.] And that this early English case does not rep- 
resent the rule in this State and in this country general- 
ly is a matter of common knowledge to the bench and 
bar of this country. Though imprimatur does not exist 
in our law, yet we are definitely committed to the propo- 
sition in this country that freedom of discussion and 
freedom of criticism of the public acts of public officials 
is essential to free government. As was well said by 
Lamm, J., in Diener v. Star-Chronicle Co., 230 Mo. 613, 
1. c. 630: **The right of freedom of speech, of fair com- 
ment with an honest purpose in matters of public con- 
cern, is on the foot of pro bono publico and founded 
on public policy. Free discussion is the foundation on 
which free government itself is builded. That lost, all 
is lost — the two exist or perish together. They mean the 
same thing. It is only in despotisms that one must 
speak sv^ rosa, or in whispers with bated breath, around 
the comer, or in the dark, on a subject touching the 
common welfare. It is the brightest jewel in the croT\n 
of the law to seek and maintain the golden mean be- 
tween defamation on one hand and a healthy and robust 
right of free public discussion on the other." 

As we have stated the authorities in this country 
are numerous to the effect that there exists a qualified 
privilege of free comment upon public acts of public 
officials. [See Black v. State Co., 93 S. C. 467, 77 S. B. 
51; Briggs v. Garrett, 111 Pa. St. 404; Jackson v. 
Pittsburgh Times, 152 Pa. St. 406; Mulderig v. Wilkes^ 
Barre Times, 215 Pa. St. 470; Burt v. Newspaper Co., 



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Vol. 279 APRIL TERM, 1919. 399 

McClung V. Pulitzer Publishing Co. 

154 Mass. 238; Gandia v. PettingiU, 222 U- S. 452; 
Branch v. Knapp & Co., 222 Mo. 580; Diener v. Star- 
Chronicle Co., 230 Mo. 613; Diener v. Star-Chronicle 
Co., 232 Mo. 416; Cook v. Pulitzer Pub. Co., 241 Mo. 
326; Walsh V. Pulitzer Co., 250 Mo. 142; McClung v. 
Star-Chronicle Publishing Co., 274 Mo. 194. See, also. 
Freedom of Public Discussion, 23 Harvard Law Review, 
p. 413, and exhaustive study by Judge Van Vechten 
Veeder, a leading American authority on defamation.] 
No useful purpose would be served by a detailed con- 
sideration of these authorities and many others that 
might have been added. 

It is the duty and province of the court to determin<3 
whether the matter spoken or written about is a matter 
of public interest. There can be no doubt but that the 
matter written about in this case was of great public 
interest. [Diener v. Chronicle Publishing Co., 230 
Mo. 613.] The articles in question did not in anywise 
relate to the private life of the plaintiff. The only matter 
under discussion was his conduct as Warden of the State 
Penitentiary. The evidence showed that the matters of 
fact stated in the various articles were substantially 
true. 

The matters of fact stated in the convict's letter 
which is the subject of the action in the second count 
were shown by the defendant to be substantially true. 
The evidence as to whether the matters of fact were 
true or false was adduced, in the main, by the plaintiff 
and his witnesses. It was supplemented by the evi- 
dence of the defendant. There was no attempt, however, 
upon the part of plaintiff to controvert the evidence of 
the defendant. 

It is also the duty and function of the court to deter- 
mine whether the comments upon the facts, the criticism, 
the discussion of the fact, are qualifiedly privileged. 
This, too, is a question for the courts and not the jury. 
[See the authorities above.] In our opinion the com- 
ments were qualifiedly privileged. 



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400 SUPREME COURT OP MISSOURI. 

McClung V. Pulitzer Publishing Co. 

As was well said by Kennish, P. J., in Cook v. Pulit- 
zer Publishing Co., 241 Mo. 326, where the subject- 
matter of the alleged defamation is a matter of public 
interest the plaintiff can only recover where the state- 
ments of fact are untrue, or where there is proof of 
express malice upon the part of the defendant. He 
stated the rules as follows, 1. c. 363: **We think the 
rule to be deduced from the authorities and in accord 
with the better reason, is that when a defense of priv- 
ileged conunent on a matter of public interest is pre 
sented by the issues, the plaintiff may overcome the 
privilege pleaded either by proof that the publication was 
inspired by actual malice, or that the facts published 
and commented upon were false. If he fail to prove 
the one or the other a prima facie case will not be made 
out, and the court, upon the request of the defendant, 
should give an instruction in the nature of a demurrer to 
the evidence. These two grounds of attack upon the 
privilege pleaded are available to the plaintiff in all 
cases, for in publications commenting upon matters of 
public interest, facts are always present, stated either 
expressly or by necessary implication.** 

And in McClung v. Star-Chronicle Co., 274 Mo. 194, 
the same rule is announced. That was an action for libel 
growing out of an article written by the defendant criti- 
cizing the plaintiff for his conduct as Warden of the 
State Penitentiary and for his punishment of Steve 
Willis. This court there held the article was not action- 
able, but was qu&lifiedly privileged criticism of the 
plaintiff's conduct as a public official. 

Nor do we think that the defendant exceeded its 
qualified privilege of fair comment upon the official con- 
duct of the plaintiff in publishing that part of the con- 
vict's letter that stated that Steve Willis was strung 
up for the purpose of obtaining a confession from him 
from whom Willis received a bottle of whiskey. The 
plaintiff warden denied that Willis was strung up to 
obtain a confession from him, but stated that he was 
strung up for punishment for having whiskey in his 



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Vol. 279 APRIL TERM, 1919. 401 

McClung v. Pulitzer Publishiag Co. 

possession. The defendant paper had the privilege of at- 
tributing that motive to the plaintiff. The prisoner 
Willis was strung up for twenty days, and he was re- 
leased, so the Warden says, either the same day he made 
a confession or the next day. The defendant had, un- 
doubtedly, the right to discuss the matter fully and to 
draw from the facts inference that might reasonably I 
drawn. This precise question was decided in Cook v. 
Publishing Co.,^ 241 Mo. 326. In considering that phase 
of the case Kbnnish, P. J., for the court said: 

''Under the facts in evidence it was the undoubted 
right of the defendant, and of all others, to discuss the 
failure of the bank and the oflScial conduct of plaintiff in 
connection therewith. Was this right of comment re- 
stricted to a restatement of the naked facts, without 
drawing inferences or. expressing opinions thereon, or 
did the right of comment mean the right to discuss the 
facts and place thereon the writer's own construction, 
and to express his opinion of the motives which actuated 
the officer in his failure to examine and close the bank 
and protect the public, regardless of whether the opinion 
was right or wrong, provided it was based upon facts 
and was not malicious? The two facts that plaintiff and 
one of the owners of the bank were close political 
friends, and that this insolvent bank had not been ex- 
amined for two years, during which time no other bank 
in the district had escaped examination, fully warranted 
the inference of that relationship as the cause of the 
plaintiff's omission to examine this bank. Indeed, the 
comment suggesting the motive follows as the shadow of 
the imputation already cast by the facts previously 
stated. Plaintiff's failure to protect the public by 
closing the bank may have been due to neglect or inad- 
vertence, or to his lax enforcement of the law as to that 
bank because of his political friendship for the owners. 
It will not do to say that the right of comment would 
permit the defendant to suggest the first and most 
favorable explanation, but deny to it the right, in good 
faith to suggest the second, which was fully warranted 

26— 27a Mo. 



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402 SUPREME COURT OF MISSOURI. 

McClung V. Pulitzer Publishing C5o. 

under the conceded facts. The right to comment on 
matters of public interest means the right to express 
opinions as to the acts of a public oflScer and to draw 
inferences as to his motives, whether such opinions or 
inferences are right or wrong, reasonable or unreason- 
able, provided they are made in good faith and based 
upon the truth. [Branch v. Knapp & Co., 222 Mo. 580; 
United States v. Smith, 173 Fed. 227; Howarth v. 
Barlow, 113 App. Div. (N. Y.) 510; Townshend on Libel 
and Slander (4 Ed.), 258.]^^ 

The important fact is that the defendant made no 
substantial misstatement of fact as to what the public 
official did. The motive attributed to the plaintiff was 
not unwarranted in view of the facts. Without doubt 
it is not libelous, in a case of this sort, where the motive 
of the public official is difficult to ascertain, to attribute 
to the public official a motive which is warranted by 
the facts and circumstances. 

Nor was there any proof of express malice in this 
case. As we have stated defendant had a qualified privi- 
lege to criticize and censure the public acts of the plain- 
tiff. This privilege though, as we have stated, is a 
qualified privilege. It is not an absolute privilege. There 
are instances of absolute privilege in the law of defama- 
tion where one is not liable, though his statements of 
facts are false and defamatory, but this case is not of 
that type. The courts in this State, following the weight 
of authority both in England and in this country, hold 
that this qualified privilege to criticize and censure the 
public acts of public officials does not exist where the 
defendant is actuated by malice. Malice in an ambigu- 
ous term. In these cases it means the presence of the 
improper motive upon the part of the defendant. The 
matter has been well put by a scholarly English writer 
as follows, Salmond on Torts, p. 427 : 

'*A statement is said to possess a qualified privilege 
when, although false and defamatory, it is not action- 
able without proof of malice. Malice means the presence 
of an improper motive. A statement is malicious when it 



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Vol. 279 APRIL TERM, 1919. 403 

McClung y. Pulitzer Publishing Co. 

is made for some purpose other than the purpose for 
which the law confers the privilege of making it. *If 
the occasion is. privileged, it is so for some reason, and 
the defendant is only entitled to the protection of the 
privilege if he uses the occasion for that reason. He is 
not entitled to the protection if he uses the occasion for 
some indirect and wrong motive.' " 

The burden of establishing an improper motive upon 
the part of the defendant was upon the plaintiff in this 
case. [Cook v. Pulitzer Publishing Co., 241 Mo. 33(), 
1. c. 363; McClung v. Star Chronicle Publishing Co., 274 
Mo. 194, 1. c. 216; Odgers on Libel and Slander (5 Ed.), 
225.] 

Plaintiff attempted to prove malice by introducing 
in evidence other articles in the defendant's newspaper 
relating to the same matter. We have carefully ex- 
amined these articles and we do not believe that they 
tend to prove that the defendant was discussing the 
plaintiff's conduct as a public oflScial for any improper 
purpose. They only show that plaintiff's conduct as a 
public oflScial was being discussed and censured to bring 
about needed reform in the penitentiary management, in 
this State, as the defendant viewed the matter. 

There are many assignments of error by appellant 
relating to the admission and exclusion of testimony and 
the giving and refusing and modification of instructions. 
Many of the assignments present questions that deserve 
serious consideration. They have not, however, been 
decided, in view of our holding that the trial court had 
no jurisdiction and that the plaintiff made out no case 
of libel under the Constitution and laws of this State. 

For the foregoing reasons the judgment below in 
favor of the plaintiff is reversed. Walker, Paris and 
Graves, J J., concur ; Bond, ( . J., Blair and Williams, 
J J., concur in paragraph 2 and dissent from paragraph 1 ; 
Woodson, J., not sitting. 



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404 SUPREME COXJET OF MISSOURI. 

Collins y. Jaicks Co. 



W. E. COLLINS et al., Appellants, v. A. JAICKS 

COMPANY. 

In Banc, July 7, 1919. 

1. PBAOTIOE: Judgment on Pleadings: Ascertainment of Cause of Ac- 
tion. In an action brought by property owners for the cancella- 
tion of special tax bills, wherein the pleadings consist of the 
petition, an answer and a reply denying the allegations of the 
answer, the sole question, on the filing by defendant of a motion 
for judgment on the pleadings, is whether the petition states a 
cause of action entitling plaintiffs to the relief asked. 

2. STREET IMFBOVEMENT: Maintenance and Repair: Benefit As- 
sessments. Under the present charter of Kansas City the city has 
power by ordinance to direct that the cost of repairing and main- 
taining an existing boulevard be paid by special assessments 
against the abutting property, or said cost may be paid out of 
the funds belonging to the park district in which the improve- 
ment is made or out of the general park fund; and the exercise 
by the city of its option to authorize the co»t to be paid by 
special assessments will not be held to be illegal, unless the 
act is clearly unreasonable, oppressive and subversive of the rights 
of the property owners. 

3. : General Power of Cities: Conclusiveness of Exercise Upon 

Courts: Fraud. The power of cities to grade and improve streets 
is legislative and continuing, subject to such restraints as may 
be imposed by valid charters; and the power being conferred by 
charter, and the charter provision being in harmony with con- 
stitutional and statutory authorization, the courts will not inter- 
fere, either directly or collaterally, with municipal action, in the 
absence, of fraud. The governing body of the city, and not the 
courts, is the judge of the necessity and expediency of the ex- 
ercise of the power conferred, and the fraud that will authorize the 
courts to interfere with municipal action is not that it has resulted 
in individual hardship, or that in working out a general scheme an 
individual burden without corresponding benefit is imposed, but 
only an act so unreasonable, oppressive and subversive of the 
rights of citizens in the general purpose declared, as to clearly 
indicate an attempted abuse rather than a legitimate use of the 
power conferred. 

4. : Part of Street: Inequality of Non-Uniformity. A city hav- 
ing charter power to improve or repair streets, and to ••pay for 



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Vol. 279 APRIL TERM, 1919. 405 



Collins y. Jaicks Co. 



such improvement or any part thereof out of its general funds 
or by special assessments against abutting property, may pay for 
repaying a portion of a boulevard out of its general fund, and 
at a later time provide that the cost of repaying another portion 
shall be paid by special assessments; and in the absence of fraud, 
it will not only be presumed that the city authorities had good 
and sufficient reasons for proceeding by difterent methods in 
the two proceedings, but there was no such inequality or lack 
of uniformity as denied to the abutting property owners the equal 
protection of the laws. 



5. : Exemption from Subsequent Taxation: Contractual Right. 

The charter and ordinance under which a street was improved do 
not constitute a contract with abutting property owners who paid 
taxes therefor, that their property will not be burdened with 
taxes to pay for subsequent repairs or repaying. The statute, or 
a charter in harmony therewith, conferring upon a municipality 
power to provide for the construction, repair and maintenance of 
streets, may be changed, so as to provide a different method of 
paying for the improvement, or so as to repair an improvement 
already made, and such change in the law does not constitute an 
impairment of any supposed contract between the city and the 
abutters, who paid for an earlier improvement, that their property 
will not be sujected to taxes to pay for a later improvement or 
repairs. 

6. : Maintenance: Tax Bills Prima-Facie Begular. Special 

tax bills issued for the improvement of a boulevard import 
prima-facie validity under the charter of Kansas City, and aro 
evidence of the liability of the property for the amount thereof; 
and an allegation in the petition that the resolution authorizing 
the improvement provided that the boulevard shall "be paved 
the full width thereof with bituminous pavement macadam" does 
not justify the conclusion that the tax bills were issued for 
maintenance work. Besides, the charter provides for the main- 
tenance of a boulevard by special assessments. 

7. : Change in Charter: Omission of Exemption Bight: Impair-^ 

ment of Contract. A provision in the city's charter at the timo 
the boulevard was paved, to the effect that when a boulevard has 
been constructed at the expense of the adjoining property it shall 
thereafter be maintained at the expense of th^ park district in 
which it is situated or out of the general park fund, did not 
create a contract right with abutting owners that their property 
would be exempt from special assessment for improvements made 
after the charter provision was annulled, or inhibit the annull- 
ment of such provision; nor was such exemption kept alive by 
a clause in the subsequent charter that "the repeal of any law 
by the provisions of this charter shall not in any wise affect 



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406 SUPREME COURT OF MISSOURI. 

Collins V. Jaicks Co. 

any right acquired or accrued thereunder, nor shall this charter 
In any wise affect the right acquired or accrued under the previous 
charter." The operative force of the provision in the original 
charter prevailed so long as that charter was in existence, but 
no longer, and "the right acquired thereunder" did not prohibit the 
city, by a new charter, to provide a different method for paying 
for street improvements. 

Appeal from Jackson Circuit Court. — Hon. Joseph A. 
Guthrie, Judge. 

Affirmed- 

Griffln & Orr and R. B. Middlebrook for appellants. 

(1) The allegations in plaintiffs' petition specifically 
set up that the work in controversy is maintenance and 
repair and defendant by demurring to this admits the 
correctness of this statement for the purposes of this 
argument. (2) The city had no power to issue special 
tax bills for maintenance work. Payment for mainte- 
nance work should be paid for solely out of the main- 
tenance fund of the park district in which Linwood 
Boulevard is located, which fund is generously provided 
for by the charter, and the abutting property should not 
bear the expense of maintenance and repairs. Section 
31, Article 13, Charter of 1909, authorizing the issue of 
special tax bills, is general in its nature, covering every 
conceivable kind of work, including even bridges and 
culverts, while Sections 33 and 34 of said article are 
special in their nature, being expressly and specifically 
designed to regulate and provide for the raising and ex- 
pending of a maintenance fund to take care of the 
maintenance and repair of boulevards and to set bounds 
upon its size. In the case at bar the city proposes to 
ignore all these special restrictions and maximums and 
just issue special tax bills to cover the entire cost of 
repairs. (3) A special provision applicable to a par- 
ticular subject shall prevail over a general provision 
that may be inconsistent therewith. Roth v. Gabbert, 
123 Mo. 32; Poor v. Watson, 92 Mo. App. 96; Ruchen- 



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Vol. 279 APRIL TERM, 1919. 407 



Ck>llins y. Jalcks Co. 



berg V. Railroad, 151 Mo. 85; City of Springfield v. 
Stark, 93 Mo. App. 76; Camp v. Wabash Railroad, 94 
Mo. App. 280; State ex rel. v. Roach, 258 Mo. 552; 
State ex rel. Lindell Hotel Co., 9 Mo. App. 453. (4) If 
the charter confers the power to impose special tax 
bills on some abutting land and to entirely relieve other 
abutting land similarly situated of that burden as con- 
tended by respondent, then the owners of the burdened 
land are denied the equal protection of the laws within 
the meaning of Section One, Article 14, Federal Con- 
stitution. 8 Cyc. 1073; Cotting v. K. C. Stock Yards, 
103 U. S. 107. (5) The charter of 1889, as amended in 
1895, contained the following section: ** Provided fur- 
ther, that when any parkway or boulevard has been con- 
structed at the expense of the adjoining property, such 
parkway or boulevard shall thereafter be maintained 
at the expense of the Park District in which the samo 
is situated or out of the general park fund.'' Charter 
1889, art. 10, sec. 31. While this charter was in force, 
plaintiffs relying on this section, invested in boulevard 
land and expended large sums for originally constructing 
this boulevard (said expenditures being set forth in their 
petition) and tax bills were issued therefor and duly 
collected by the city and paid by the abutting property. 
The present city charter,'as adopted in 1908, omitted the 
proviso above quoted, and plaintiffs contend that tho 
attempt in the case at bar to burden their adjoining 
property with special tax bills for maintenance of a 
boulevard already constructed, is violation of their con- 
stitutional right. Art. 12, sec. 19, Mo. Const. To sub- 
ject these lands to the cost of maintenance and repairs 
is to '* impose a new liability in respect to considerations 
already past,'' and the same can not lawfully be done 
by adopting a new charter, any more rightfully than it 
could be done by the Legislature. R. S. 1909, sec. 9710. 

Clarence S, Palmer for respondent. 

(1) The provisions of the present charter authorizing 
the re-pavement of a boulevard and assessment of cost 



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408 SUPREME COURT OF MISSOURI. 

Collins V. Jaicks Co. 

against abutting property, is not nullified by reason of 
the fact that the prior charter gave no such right. 
The provision of the former charter did not constitute 
a contract right of plaintiffs: (a) because there was 
lack of a consideration; (b) because such a contract 
would have been contrary to the provisions of the Con- 
stitution of 1875, relating to the exemption of property 
from taxation. 4 Dillon on Mun. Corp. (5 Ed.) 2581; 
Ladd V. Portland, 32 Ore. 272; State v. Mayor of New- 
ark, 37 N. J. L. 424; Carstens v. Fon du Lac. 137 Wis. 
465; Tilden v. Mayor, 56 Barb. (N. Y.) 361; Bradley 
V. McAtee, 7 Bush (Ky.) 667; Rochester v. By. Co., 182 
N. Y. 99; Houck v. Drainage District, 248 Mo. 394; 
Miners Bank v. Clark, 252 U. S. 20; Wisconsin & 
Michigan Ry. Co. v. Powers, 191 U. S. 379; Grand Lodge 
v. New Orleans, 166 U. S. 143; Paige & Jones, ^^ Taxa- 
tion by Assessments,'^ sec. 172. (2) The improvement 
in question was not maintenance but repaving. Jones v. 
Plummer, 137 Mo. App. 337; Bliss on Code Pleading 
(2 Ed.), sec. 418; Kleekamp v. Meyer, 5 Mo. App. 444. 
(3) Plaintiffs waited until the work was completed and 
they had received its benefits, and are, therefore, es- 
topped from proceeding in equity to ask that the con- 
tractor shall receive no pay for his work. The Planet Co. 
V. Ry. Co., 115 Mo. 620; Jaicks v. Merrill, 201 Mo. 91; 
Gibson v. Owens, 115 Mo. 258 ; Hellenkamp v. Lafayette, 
30 Ind. 192; Palmer v. Stump, 29 Ind. 329; Lafayette 
V. Fowler, 34 Ind. 146. 

WALKER, J. — This is an action brought by prop- 
erty owners against a contractor for the cancellation of 
certain tax bills issued by Kansas City for paving Lin- 
wood Boulevard from Troost Avenue to Prospect Ave- 
nue. The pleadings consist of the petition, the answer 
and the reply. At the trial, the defendant filed a motion 
for judgment on the pleadings, which was sustained; 
and plaintiffs appealed. As the reply denied the allega- 
tions of the answer, the sole question was whether the 



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Vol. 279 APRIL TERM, 1919. 409 



Collins y. Jaicks Co. 



petition stated a cause of action entitling the plaintiffs 
to the relief asked. 

The petition, after pleading the cori>orate existence 
of certain parties plaintiff, alleges their respective own- 
ership of certain tracts of land therein described, and 
that tax bills have been issued to the defendant in pay- 
ment of improvements made on Linwood Boulevard. The 
date of the issue of these tax bills is not stated, nor 
their respective numbers or amounts. The existence 
of Linwood Boulevard from Troost Avenue to Prospect 
Avenue, the portion. of the boulevard paved, is alleged 
to haVe been at all times under the control and manage- 
ment of the board of Park Commissioners of Kansas 
City; that, in 1900, the city authorized the pavement of 
Linwood Boulevard from Troost Avenue to Michigan 
Avenue, and, in 1909, provided for the pavement of Lin- 
wood Boulevard from Michigan Avenue to Benton Boule- 
vard (a point farther east than Prospect Avenue), and 
that said work was done and tax bills issued in pay- 
ment thereof, which were paid by the owners of land 
fronting on the boulevard. Section 31 of the Charter 
of 1899, as amended in 1895, which authorized the im- 
provements made in 1900 is set out; that on August 
4, 1908, Kansas City adopted a new charter. Certain 
provisions of this charter are pleaded; among others, 
Section 33, Article XIII, which provides that the 
maintenance fund for parks and boulevards may be as- 
sessed against all the land, exclusive of improvements 
in the respective park districts, and that all vehicle 
taxes collected in Kansas City shall be used exclusive- 
ly for the construction, maintenance, repairs, etc., of 
parks, boulevards, etc., under the control and manage- 
ment of the Board of Park Commissioners. 

Section 34, Article XIlI, of the Charter, is also 
s^et out, which provides for a maintenance fund of ten 
cents per front foot on all the land fronting on boule- 
vards or parkways. 

It is further pleaded that the levy of two and a 
half mills upon each dollar of valuation of .the real 



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410 SUPREME COURT OF MISSOURI. 

Collins Y. Jaicks Co. 

estate in Kansas City was levied for the year 1914; 
that certain sums from the vehicle license were re- 
ceived for that year, and that a special assessment of 
ten cents per front foot on the land fronting upon all 
boulevards was levied, and in addition, that the Com- 
mon Council for the year 1914 appropriated the sum of 
$62,980 for improving parks and boulevards for the 
year 1914, and for general expenses, as provided by 
Section 35, Article 13, of the Charter, and that the 
maintenance tax and the ten-cent tax and the general 
taxes were all contributed to by the plaintiffs, as own- 
ers of real estate. This is followed by a conclusion of 
law that the funds specified were the only funds avail- 
able for the improvement of Linwood Boulevard. 

Plaintiffs then allege that in violation of the Char- 
ter of 1908, the Board of Park Commissioners adopted 
a resolution, April 27, 1914, providing *Hhat Linwood 
Boulevard from a line eighteen inches east of the 
east line of the street car track in Troost Avenue, to 
a line eighteen inches west of the west rail of the 
street car track in Prospect Avenue, be paved the 
full width thereof with bituminous pavement macadam, 
and that the approaches to the cross streets be paved 
with asphalt," and that said work be paid for by the 
issue of special tax bills; that the Common Council, by 
Ordinance No. 11918, approved June 23, 1914, ordained 
that Linwopd Boulevard should be paved as provided 
in said resolution, and that the work be paid for by 
special tax bills; that Section 12, Article 18, of the 
Charter of 1908, relating to the effect of the adoption 
of the new charter upon existing rights or liabilities, 
and that the issue of tax bills against plaintiffs' prop- 
erty was in violation of said Section 12, and further 
alleges that plaintiffs purchased their property relying 
upon the rights, privileges and exemptions supposed to 
be contained therein. 

That the work as actually done ''consists of putting 
a top dressing on said boulevard," and that this is what 
is properly, ordinarily and regularly known and desig- 



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Vol. 279 APRIL TERM, 1919. 411 



Collins Y. Jaicks Co. 



nated as maintenance and repairs, as that term is used 
in the charter and in ordinary parlance; but that said 
work, though done in accordance with plans and specifi- 
cations therefor, was, in reality, a maintenance or re- 
pair of said thoroughfare. 

That a portion of Linwood Boulevard, extending 
from Prospect Avenue east to Benton Boulevard, had, 
at some time prior to the work under Ordinance No. 
11918, *^been maintained and repaired with identically 
the same material and in precisely the same manner as 
the work done under Ordinance No. 11918, on that por- 
tion of said Linwood Boulevard hereinbefore described, 
upon which plaintiffs' properties do abut,'' and that 
this act of the city constituted a discrimination in viola- 
tion of the charter and of the Constitution of the United 
States. 

The petition then alleges that plaintiffs' property 
could not be lawfully assessed for this work, and that 
the imposition of the tax was contrary to the provisions 
of the Charter of Kansas City in force when the boule- 
vard was originally paved (in 1900), and contrary to the 
spirit of the provisions of the Charter of Kansas City 
now in force. 

The acceptance of the work by Kansas City through 
its proper oflScials and the apportionment and issue of 
the special tax bills to the defendant is stated, and that 
said tax bills purport to be liens against the plaintiffs' 
respective properties. 

Article 12, Section 19, of the Constitution of Mis- 
souri, is then quoted, which prohibits the General As- 
sembly from passing retrospective laws or imposing on 
the people of any county or municipal subdivision a new 
liability in respect to transactions or considerations al- 
ready passed. 

Finally, it is alleged that plaintiffs are denied the 
equal protection of the law, in violation of the Constitu- 
tion of the United States, and are deprived of their 
property without due process of law, in violation of the 



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412 SUPREME COURT OF MISSOURI. 

Collins V. Jalcks Co. 

Constitution of Missouri,, and judgment is asked for 
the cancellation of the tax bills. 

I. The burden of this petition, upon which appel- 
lants' right of action depends, is that the work in con- 
troversy was that of maintenance and repair, and that 
the city had no power to issue special tax bills for 
this character of work, which should have 

&S«!et^ ^' ^^^° P^^^ ^^^ ^^* ^^ *^^ maintenance fund 
of the Park District in which Linwood Boule- 
vard is located, and not by a levy upon the abutting 
property. 

A portion of Linwood Boulevard between Prospect 
Avenue and Benton Boulevard had theretofore, under 
a former charter (Sec. 31, Art. X, Kansas City Char- 
ter of 1889, as amended in 1895), been paved. This 
section had a limitation on assessing the cost of boule- 
vard, avenue, or street improvements against abutting 
property owners, and provided that after having once 
been paved, they should thereafter be maintained at 
the expense of the Park District, or the improvement 
was to be paid for out of the general park fund. 

The tax bills, the payment of which is here con- 
tested, were issued to pay for the paving of Linwood 
Boulevard from Troost to Prospect Avenues. An 
ordinance authorizing this improvement had thereto- 
fore been passed, under Section 31 of Article 13 of the 
present charter of Kansas City. The portions of said 
section of the charter having reference to the matter at 
issue, are as follows: '*The Board of Park Commis- 
sioners shall have power to cause any road, parkway, 
boulevard or avenue, or part thereof, which may be 
under its control and management, to be graded, re- 
graded, paved, re-paved, curbed, re-curbed, guttered, 
re-guttered, or otherwise improved, repaired and main- 
tained . . . with such material as the said board 
may determine, and may pay for such work or im- 
provements, or any part thereof, out of the funds 
not otherwise appropriated, belonging to the park dis- 



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Vol. 279 APRIL TERM, 1919.. 413 



Collins y. Jaicks Co. 



trict in which said work or improvement is done or 
made, or out of .the general park fund ; Provided, how- 
ever, That if the Board of Park Commissioners shall, 
by resolution, determine that any such work shall be 
done, and that the payment of the whole or any part 
thereof be made in special tax bills, the Common Coun- 
cil shall have the power, by ordinance, to ratify and 
confirm the action of said board, and authorize such 
work to be done, in which case and when so ratified 
the Board of Public Works of said city shall apportion 
or cause to be apportioned the cost of said work or im- 
provements, and issue special tax bills therefor, or 
for any portion thereof, so ordered to be paid in tax 
bills, in the same manner and with the same effect as 
the cost of similar work or improvements is apportion- 
ed and tax bills in payment therefor issued in such city 
for public improvements or work upon streets not 
under the control or management of such Board of 
Park Commissioners.'^ 

It will be seen that this section does not contain 
the limitation found in the former charter (Sec. 31, Art. 
X, Charter of 1889, as amended 1895), in regard to 
the manner of payment of the cost of street improve- 
ments, but provides that such cost may, as determined 
by the Board of Public Improvements, be paid out of 
the Park fund or by the issuance of special tax bills, if 
so authorized by a resolution of the board. Incidentally 
it may be stated that there was a compliance with this 
requirement. The comprehensive nature of this section 
is apparent from its use of all of the terms employed 
in designating the streets of a city, viz. : avenues, boule- 
vards, roads and parkway^. 

The power of the board to thus provide the manner 
in which the cost of such improvements may be paid 
for having been defined by the charter, it remains to be 
determined whether its provisions relative thereto, are 
valid. 

Preliminary to a discussion of the immediate 
question here seeking solution, It is not inappropriate 



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414 SUPEEME COUET OF MISSOUEL 

Collins V. Jalcks Co. 

that reference be made to the general power of the city 
through its proper in strnmen tali ties to make such im- 
provements as are here contemplated. Under the pres- 
ent charter, it is provided that: **The city shall have 
power to acquire and cause to be made all public im- 
provements designated in this article, to pay therefor, 
in whole or in part, out of the general fund, or in whole 
or in part by special assessments, and to make and levy, 
assess and collect special assessments to pay there- 
for, and to issue special tax bills to evidence such 
assessments/' [Sec. 1, Art. VIII, bot. p. 308^ present 
charter of Kansas City.] 

The trend of judicial construction is that in the 
exercise of a power of this character, the courts should 
not either directly or collaterally interfere with munici- 
pal action in the absence of fraud. A general declara- 
tion of this rule is found in McCormack v. Patchin, 53 
Mo. 33, in which it is held that the power to grade an»l 
improve streets is a legislative and continuing' power, 
subject to such restraints as may have been imposed 
by the charter. It may be exercised from time to time 
as the wants of the municipality may require ; and as to 
the necessity or expediency of the exercise of this power, 
the governing body of the municipality, and not the 
courts, is to be the judge; that the power to compel 
property owners to pave generally extends to requiring 
them to repave when so directed by the proper munici- 
pal authority. The rule as thus announced was reaffirm- 
ed in Farrar v. City of St. Louis, 80 Mo. 379, where it 
was hold, that the power to pave the streets of the City 
of St. Louis and to charge the cost of such improve- 
ments against abutting property, conferred by certain 
sections of the charter of that city, and the mode of the 
exercise of this power under a designated ordinance, 
was not in conflict with the State Constitution. 

The Farrar case is especially rich in its references 
to earlier Missouri cases discussing and defining the 
powers of municipalities in the exercise of the taxing 
power for the improvement of streets subject only 



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Vol. 279 APRIL TERM, 1919. 415 



Collins V. Jalcks Ck>. 



to the limitations stated, viz.: those forbidden by the 
Constitution or the general laws of the State. 

The later case of Skinker v. Heman, 148 Mo. 349, 
reasserts the doctrine of the freedom of action, in the 
absence of fraud, of municipal authorities in providing 
by ordinance in compliance with the charter, for the 
issuance of tax bills for a new sidewalk. 

In no case have we found the rule more clearly 
and conclusively stated than in Heman v. Schulte, 166 
Mo. 409. This was a suit on a sewer tax bill. Defend- 
ant objected to its payment on the ground that his prop- 
erty had no immediate access to the sewer, and hence 
should not have been included in the benefit district. 
In holding that the action of the city council was con- 
clusive in including the property in the district, the 
court said, at page 417: *'Not only is it the rule in 
this State . . . Hhat when the matter of establish- 
ing sewer districts is intrusted by the Legislature to the 
common council, its action in the premises is conclusive 
in a collateral attack,' but the rule generally stated is, 
that where a municipal body vested with the exercise 
of a power, acts, its acts under that power, in the ab- 
sence of fraud, are conclusive upon the courts, whether 
the attack made thereon is collateral or direct, and 
the fraud that will authorize the court's interference in 
the matter of municipal action, is not that the power 
exercised or the ordinance passed has resulted in an 
individual hardship in its execution, or that in the work- 
ing out of the general scheme designed by an ordinance 
an individual burden is imposed without a corresponding 
benefit conferred (a necessary incident to any system of 
general taxation or special assessment yet devised for 
governmental maintenance and support) ; but only in 
those cases where the act of the municipal body is so 
unreasonable, oppressive and subversive of the rights 
of the citizen in the general purpose declared, as to 
clearly indicate and leave but one inference, that of an 
attempted abuse rather than the legitimate use of a 
power enjoyed ; and of this qualified and limited as- 



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416 SUPEEME COURT OF MISSOURI. 

Collins V. Jalcks Co. 

sertion of right in the courts to interfere with municipal 
legislation, much doubt is felt." 

A parallel ruling is found in Jennings Heights 
•Co. V. St. Louis, 257 Mo. 291, which was an action to 
cancel tax bills for sewers on the ground of fraud, 
and that the sewers as constructed were larger than 
necessary. In ruling on these contentions, the court 
said: ^*It has been uniformly held that the action of 
the city legislature in pursuance of charter powers, 
in establishing a district to be benefited by sewers or 
other public improvements so as to justify a special 
assessment against the property lying within the dis- 
trict, is conclusive, in the absence of any evidence that 
it was procured by fraud or proof that it is manifestly 
arbitrary or unreasonable, or that the assessment is 
palpably unjust or oppressive." 

The following cases announce the same general 
doctrine: Moberly v. Hogan, 131 Mo. 19; McGhee v. 
Walsh, 249 Mo. 266; French v. Barber Asphalt Co., 
181 U. S. 324. 

We had occasion in St. Louis v. United Railways, 
263 Mo. 1. c. 455, in what is sometimes designated as the 
^^Mill Tax Case,'' to discuss somewhat elaborately 
the reasonableness of municipal enactments and, as 
necessarily incident to that discussion, the extent of 
the power of municipalities in regard thereto. The 
conclusion deduced from a review of numerous authori- 
ties was that, if an ordinance, as in the case at bar, 
was enacted authorizing a tax under a power conferred 
by a city's charter, and not in contravention of organic 
law, it will be held valid and the courts will be slow to 
interfere with its operative force; that municipal cor- 
porations are primarily the sole judges of the necessity 
of ordinances and the courts are loth to review their 
unreasonableness, if passed in strict accord with an 
express grant (p. 456). 

n. The presumption attending the acts of city 
oflScers in the exercise of the power here in question is 



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pertinent in this connection. We said, most recently 
ineqwaity. ^ McGhee V. Walsh, 249 Mo. 1. c. 294, that 
^*we must, prima-facie, presume that they 
[the city officers] acted rightly, and we must presume 
that, in the future, they will so continue to act, and 
that they will promptly do and perform their several 
duties, under the charter of the city." 

The foregoing was but a reaffirmance of the earlier 
case of Seaboard Nat. Bank v. Woesten, 147 Mo. 1. c. 
481, where we said: **It may be said here, that munici- 
pal officers, under the charter of St. Louis are selected, 
presumably, on account of their fitness and integrity. 
They have no private ends to subserve. We should, 
therefore, presume that their intentions are honest, and 
that, in the performance of their public duties, they 
deal fairly and* justly with the citizen and property 
owner." 

While in terms this has reference to a particular 
municipality, the general application of the rule is 
beyond question. 

Despite the general power thus conferred upon 
municipalities, the latitude of its exercise and the re- 
luctance of courts to interfere with same, it is never- 
theless contended by appellants that their property 
should not be assessed because owners of property on 
another part of the street previously improved had not 
been assessed, and that the burden of taxation was 
therefore not equalized, and that the ordinance autho- 
rizing same was consequently invalid as a denial of the 
equal protection of the laws, within the meaning of 
Section 1 of Article XIV of the Federal Constitution. 
The ruling of the St. Louis Court of Appeals, in 
Kemper v. King, 11 Mo. App. 1. c. 127, 129, is apposite 
in determining whether the contention here made is 
sound. In the Kemper case, a portion of a street had 
been paved and the abutting property assessed there- 
for. Later another portion — that involved in the opin- 
ion — ^was paved. The abutting owners in the second 
improvement contended that their assessments should 

27—279 Mo. 



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418 SUPREME COURT OF MISSOURI. 

Colliiis ▼. Jalcks Ck>. 

be equalized with assessments made on other portions 
of the street, since the street was an entirety, and that 
owners of property thereon should be treated alike, and 
should pay at the same rate. The court refused to 
sustain this contention, since the two sections of the 
street had been improved at different times, and were 
therefore different and distinct improvements which 
might be separately considered, as to the council 
seemed best. In ruling upon the question (p. 127) the 
court said: ''We hold that when a municipal corpora- 
tion is clothed with a general power to improve its 
streets, it is a matter of discretion, judicial or legislative 
in its nature, for the city council to determine when, 
in what manner, and to what extent any street improve- 
ment shall be made; that in the exercise of this dis- 
cretion the city council is not bound to contract for 
the improvement of an entire street in order to acquire 
the right to charge the cost of such improvement upon 
the abutting property owners; but that they may, in 
their discretion, contract for the improvement of the 
street for any number of blocks, or for the length 
of a single block; and that this is a discretion which 
can not be revised by the judicial courts, unless possibly 
in extreme cases where there has been manifest abuse. '^ 
And at page 129: ''Public improvements must go on; 
and if the courts of justice, in their anxiety to protect 
property owners from a reckless or oppressive exercise of 
this power, hamper its exercise with unreasonable or 
impracticable rules, it will result that municipal corpora- 
tions will not be able to let out contracts for such im- 
provements, at a cost which fairly represents their 
value, and that none will bid for such contracts except 
at prices at which they can afford to assume the 
speculative chances of unfriendly litigation." 

Rulings of courts of last resort in other jurisdic- 
tions affirm the doctrine announced in the Kemper case. 

The case of McChesney v. Chicago, 152 111. 543, 
38 N. E. 767, identical in principle with the case at bar, 
gives affirmative expression to the rule. There the city 



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had previously extended certain water mains and paid 
for same out of general water department funds. They 
now propose to make further extensions to be paid for 
by assessments against abutting property. An appeal 
was taken from the confirmation of such assessments, 
but the court supported them and held that such a 
change in the method of paying for extensions was 
not discriminative or oppressive. 

In Murphy v. People, 120 111. 234, 11 N. E. 
202, a sewer system had been paid for out of general 
city funds. The cost of the present extension was 
assessed against abutting property. The objection 
that this was not uniformity was rejected by the court. 

In Shelby v. Burlington, 125 Iowa, 1. c. 352, suit 
was brought to enjoin the city from improving a 
street out of general funds because previously such 
improvements had been paid for by assessments against 
abutting property. The court held that: '* Appellant's 
argument, carried to its logical end, would tie the 
hands of the Legislature for all time. That is to say, 
having adopted the theory of special assessments, it 
could never depart therefrom; and, vice versa, if it 
authorized payment for street improvements out of 
the general city funds, it could never resort to special 
assessments. This, of course, cannot be the law.'' 

In the case of Ottumwa Brick Construction Co. v. 
Ainley, 109 Iowa, 386, 80 N. W. 1. c. 511, the city 
provided for paving a certain street to be paid for by 
special assessments. Some of the property on the 
street not being worth anything, the city guaranteed 
the tax bills issued against such property, and this in 
effect amounted to payment by the city for that portion 
of the improvement. This was objected to by the other 
property owners assessed for this improvement. It 
was held that the city may thus pay part of the cost 
of the improvement out of its general funds. In so ruling, 
the court said: '* There is nothing in the law to prevent 
a city, whose finances will admit of so doing, from 
pajring for improvements like that in question out of 



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420 SUPREME COURT OF MISSOURI. 

Collins y. Jalcks Co. 

the general fund. If it can lawfully pay for a whole, 
it can for a part/' 

In the case at bar, Kansas City had previously 
provided for the repaving of a portion of Linwood 
Boulevard and paid for the same out of the general 
fund. At a later time, in an entirely different pro- 
ceeding, it provided for repaving another portion of 
the Boulevard to be paid for by special assessments 
against the abutting property. The city had been given 
specific power to proceed by either method. No show- 
ing of fraud was made or suggested, and it must be 
presumed that the city authorities had good and 
suflScient reasons for proceeding by different methods 
in these two different proceedings. Their decision 
in the matter should be conclusive, for any other rule 
would tie the hands of the city and impede, if not pre- 
vent, public improvements. 

in. It is further contended by necessary implica- 
tion from the allegations of the petition, although not 
definitely so stated, that the ordinance and charter 
provision under which it was enacted, by virtue of 

which the earlier improvement of a portion 
Bx^ptton. ^^ Linwood Boulevard was made, constituted 

a contract with abutting property owners 
who had paid taxes therefor, which will be impaired 
if the same property is burdened with taxes for the 
present improvement. The difficulty confronting appel- 
lants in attempting to sustain this contention is that 
a statute conferring power upon a municipality to pro- 
vide for the construction, maintenance or repair of 
streets does not constitute a contract. In Dillon on 
Munic. Corp. (5 Ed.) p. 2581, the rule is thus declared: 
*' Charter provisions, which only confer authority upon 
the municipality to make original construction or pav- 
ing of the city streets at the expense of the abutters, 
and which require the city to bear the expense of 
reconstruction and repaving, do not constitute a con- 
tract with an abutter who has paid an assessment for 



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Vol. 279 APRIL TERM, 1919. 421 



Collins y. Jaicks Co. 



original construction or repaying, that his property 
shall be exempt from assessment for repaying or 
reconstruction, and the legislature may repeal or amend 
such proyisions at pleasure without impairing any 
contract right of the abutter or affecting any yested 
right/' 

Our own court follows the unbroken current of 
authority, as thus announced. In Houck y. Drainage 
Dist., 248 Mo. 1. c. 394, a statute in force at the time of 
the original organization of the district proyided for 
an assessment to be made and determined according to 
benelBts found. Later, the law was changed so as to 
authorize a board of superyisors to leyy on each aero 
of land in the district not to exceed twenty-fiye cents 
per acre. In discussing the yalidity of the change 
thus made, the court said: **It is contended that the 
section in question is yoid because it creates a rule 
of taxation not in existence at the time the defendant 
drainage district was organized* and the plaintiffs be- 
came members of it, and it is therefore retrospectiyo 
as to them and impairs the obligation of contracts con- 
stituted by its charter . . . We do not hesitate, how- 
eyer, to say that the charter of a public corporation 
does not constitute a contract with its members that 
the laws it was created to administer will not bo 
changed; and the State is still at liberty, as to them 
and the corporation, to continue its efforts to improyo 
its methods of taxation with respect to these subjects.*' 

Further, to the same effect, in Miners Bank v. 
aark, 252 Mo. 20, 1. c. 32, we said: ''Did the city, by 
accepting the deed from Clark in 1901, contract away 
its right to later order said street improyed at the 
expense of the abutting property, owner, eyen though 
the grantor in said deed be the property owner when 
the improyement is later made? Unless the law con- 
stituting its* charter giyes such right, a city cannot con- 
tract away its right and power to leyy special assess- 
ments for street improyements, and thereby create 
an exemption from such assessments. . . . The 



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422 SUPEEME COURT OF MISSOURI. 

Collins T. Jaickfl Co. 

charter of cities of the third class does not give such 
power. In fact the legislative right to give such power 
might well be doubted— a point however, which we do 
not decide. It is true, as asserted by appellant, that a 
city of the third class may acquire title to land for 
street purposes; but we know of no rule which autiior- 
izes the city to surrender, as the purchase price of a 
street, its right to order that street improved in any 
manner authorized by law. If, therefore, the city did 
dispose of its right to order the street improved in 
the manner exercised in the present suit, it could by 
properly exercising that power issue valid special tax 
bills.'' 

In Tilden v. .Mayor, 56 Barb. (N. Y.) 1. c. 361, the 
Court of Appeals of New York said; *'The supposed 
contract lacks one essential element of a valid agree- 
ment, viz., a consideration. By the statute .of 1813, the 
mayor, aldermen and commonalty were authorized, 
among other things, to direct the paving of streets, 
and to assess the expense upon the property owners 
or occupants of houses and lots benefited. Under this 
provision the owners could have been compelled to pay 
the expense of the pavement laid down in 1824, and 
therefore the promise of the corporation to bear the 
expense of future repairs and pavements was without 
consideration. The owners lost nothing by what oc- 
curred; they simply paid what by law they could have 
been obliged to pay, and it has never b^en held that 
the performance of a legal duty, or the payment of a 
legal liability, furnished any consideration to support 
a promise. '^ 

In Ladd v. Portland, 32 Ore. 271, 51 Pac. 654, 
under a state statute, it was provided that after a 
street in East Portland had been improved, under and 
by virtue of the provisions of the chapter in which 
that section appeared, thereafter that street or any 
part thereof should not be subject to be again im- 
proved, but might be repaired. A street in East 
Portland was improved under that law, and the cost 



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Vol. .279 APKIL TERM, 1919. 423 



Collins y. Jalcks Co. 



charged against abutting property owners. Afterwards 
East Portland was consolidated with the City of Port- 
land. In 1893 the consolidated city was given a new 
charter, all vested rights being preserved. Under the 
new charter the council was authorized to improve any 
street, or part thereof, and assess the cost on the 
abutting property owner. The street in question was 
improved under this provision of the charter and plain- 
tiff sought to enjoin the collection of assessments on 
account thereof, relying on the provision of the old 
charter of East Portland under which the original 
improvement was made. The Supreme Court of Oregon 
in sustaining a judgment of the lower court refusing an 
injunction, said, at page 275; *'The power to assess 
the costs of the improvement of a street upon abutting 
property is embraced within the sovereign power of 
taxation primarily in the Legislature, but which it 
may constitutionally delegate to local municipal govern- 
ments, with or without restraints or limitations; but 
it is never presumed to be relinquished unless . the 
intention to relinquish is declared in clear and un- 
equivocal terms. [Railroad Co. v. Maryland, 10 How. 
304.] And even then, if the exemption is not supported 
by some consideration, it may be revoked at any time. 
[Rector of Christ Church v. County of Philadelphia, 
24 How. 300.] The charter of East Portland, under 
which the first improvement was made, was a partial 
delegation of such power to the city, and, when once 
exercised, was exhausted — not, however, by reason of 
any contract between the public and the lot owner, 
nor because the power of taxation in the State was not 
adequate to require an assessment for their reimprove- 
ment of the street, but because the power delegated to 
the city had by its express terms ceased- to exist. And 
how can this provision of the charter be tortured into 
a contract? It does not purport to be one, for it makes 
no offer of exemption to the landowner, either ex- 
pressly or impliedly, in consideration of the performance 
of some voluntary act on his part; nor does it ask or 



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424 SUPREME COURT OF MISSOURI. 

Collins V. Jaicks Co. 

agree to accept anything from him which the State 
could not have unconditionally exacted. The assess- 
ment of the cost of improving the street in front of 
his property was an exercise of soveignty, and a pro- 
ceeding in invitum. He was simply required to dis- 
charge a duty which he owed to the public, and the 
performance of which cannot by any show of reason bo 
construed into a consideration moving from him to the 
State upon which a contract can be supported. The 
validity of assessments for local improvements is sus- 
tained on the theory of special benefits corresponding 
in value to the cost of the improvement, and so the 
property owner receives, in theory at least, full value 
for the money exacted of him; and therefore, plain- 
tiffs' predecessor, in paying the assessments made 
against his property for the first improvement of the 
street, sacrificed no legal right, nor did he make any 
extraordinary or unusual contribution to the public. 
He simply paid for the special benefits conferred. The 
manifest purpose of the provision of the charter un- 
der consideration was to define the mode and extent of 
the power of the council in the matter of street im- 
provements, and the limitation on the exercise of 
such power was a mere concession to the citizen, and 
an act of grace, and not a contract by which the State 
forever relinquishes the sovereign power of taxation. 
It was a limitation voluntarily imposed by the Legis- 
lature upon the powers of the city, which that depart- 
ment of the State government could remove at any 
time public policy or the interests of the municipality 
might seem to demand, and bound the State only so 
long as the statute remained unrepealed." 

In Carstens v. Fon du Lac, 137 Wis. 465, 119 N. 
W. 117, property owners sought to enjoin the city from 
selling assessment certificates against property abut- 
ting on a street, which certificates had been issued for 
paving thereon. The law under which the paving was 
done provided for the charging of two-thirds of the 
cost to abutting property, and one-third to the city, and 



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Vol. 279 APRIL TERM, 1919. 425 



Collins T. Jalcks Co. 



added: ** Provided, however, that the provisions of 
this sub-division shall not apply to a second or sub- 
sequent repaving, macadamizing or graveling of any 
street which has been heretofore or which shall bo 
hereafter pavfed, macadamized or graveled, and the 
whole or any portion of the exi>ense of such improve- 
ment shall have been borne directly by the lots or 
parcels of land fronting or abutting on the portion of 
the street so improved.'* Subsequently, under a gener- 
al charter law, the city repaved the street and at- 
tempted to charge it to the property owners. In sus- 
taining the dissolution of a preliminary injunction, the 
Supreme Court at page 470, said: '*The compliance 
with a statutory duty enjoined upon the lot owners 
did not create a contract by operation of law which 
exempted the plaintiffs from further special assess- 
ments for the cost of street paving. [City of Roches- 
ter V. Rochester Ry. Co., 182 N. Y. 99, 70 L. R. A. 773J 
Neither did the 1885 statute give any vested right 
to exemptions from further special assessments on ac- 
count of repaving. At best, all the law did was to pro- 
hibit such assessments as long as it remained in force. 
It was subject to amendment in this regard, and was 
amended by the adoption of the portion of the general- 
charter law which related to street improvements in 
lieu of the provisions of the special charter." 

The rule announced in the cases cited and abstract- 
ed, that the charter of a municipality does not consti- 
tute a contract with its members that the laws it was 
created to administer will not be changed, is stated 
with sufficient definiteness and declared with such 
unanimity of opinion, that it is unnecessary to do more 
than cite, in addition, some of the numerous cases 
from other courts in which it has been approved; and, 
as a corollary thereto, that a municipality may by ap- 
propriate legislation continue its efforts to improve 
methods of taxation with respect to the subject here 
under consideration: State v. Mayor of Newark, 37 
N. J. L. 415; Bradley v. McAtee, 7 Bush (Ky.) 667; 



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426 SUPEEME COURT OP MISSOURI. 

Collins ▼. Jalcks Co. 

Wis. & Mich. Ry. Co. v. Powers, 191 U. S. 379; Grand 
Lodge V. New Orleans, 166 U. S. 143. 

IV. It is further contended that this improvement 
is maintenance work, and that it should have been paid 
for out of the funds of the Park District for that pur- 
pose, in which the boulevard is located. 

Maintenance. v-,, . , . , , . . . . 

This, plainly put, is an assumption not 
justified by the record. The petition alleges that the 
special tax bills were issued to pay for the improvement 
of Linwood Boulevard. These tax bills import prima- 
facie validity, and are evidence of the liability of the 
property for the charges made therein. It is expressly 
provided in Section 24 of Article VIII of the present 
city charter (compilation of 1909, bot. p. 339) '*that 
every tax bill shall in any suit thereon be prima-facie 
evidence of the validity of the bill, the doing of the 
work and of the furnishing of the material charged for, 
and of the liability of the land to the charges stated 
in the bill.'' This authorizes the presumption that the 
proceedings leading up to and consummating in the 
issuance of the tax bills were regular and proper. If 
we look to the resolution under which the work was 
authorized, as disclosed by the petition, we find it is 
expressly alleged that the boulevard shall '*be paved 
the full width thereof with bituminous pavement mac- 
adam, and the approaches to the cross streets with 
asphalt;" and that the ordinance for the work should 
provide, as it did, for the doing of same as provided 
in the resolution. In the presence of these allegations, 
it must be presumed that the charter provision requir- 
ing plans and specifications of the work as thus in- 
dicated, was, in the absence of any allegation of failure, 
adopted, or in other words, that the procedure con- 
formed to the requirements of the law. This being 
true, the conclusion follows that this constituted an 
improvement or repaving of the boulevard rather than 
a mere maintenance, and that the contention of ap- 
pellants is more of a conclusion of the pleaders, not 



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Vol. 279 APRIL TERM, 1919. 427 



Collins T. Jaicks Co. 



admitted by the motion for a judgment on the pleadings, 
than a statement of a fact. It is elementary that only 
facts well pleaded are admitted by a demurrer or mo- 
tion which raises an issue of law. [State ex rel. U. S. 
Fidelity Co. v. Harty, 208 S. W. 835; Brennan v. 
Cabanne Avenue M. E. Church, South, 192 S. W. (Mo. 
Sup.) 982; Novinger Bank v. St. Louis Union Tr. Co., 
189 Mo. App. 826.] 

Furthermore, the only allegation of fact in the 
petition in regard to the character of the work is that 
wherein it is stated that it consisted of *' putting a 
top dressing on said boulevard. '^ This, according to 
the usual signification of the words employed, means 
resurfacing, which is a paving or repaving, and not 
maintenance. [Jones v. Plummer, 137 Mo. App. 337. J 
However, a complete answer to this contention is that 
whether this work be classified as maintenance or a 
paving or repaving, the city has the same authority in 
one case as in the other. Under Section 31 of Article 
13 of the charter, supra, the payment of the cost of one 
may be provided for in the same manner as the other, 
viz.: by special assessment. 

V. A resume of the contentions here made against 
the validity of this proceeding is, that under 
iS^^ Article 10, Section 31, of the Charter of Kan- 
sas City of 1889, a boulevard, after construction, 
can only be maintained at the expense of the park dis- 
trict. This section is as follows: '* Provided, further, that 
when any parkway or boulevard has been constructed at 
the expense of the adjoining property, such parkway 
or boulevard shall thereafter be maintained at the ex- 
pense of the park district in which the same is situated 
or out of the general park fund." In support of this 
contention, it is urged that the former work upon the 
boulevard having been done under this section, a con- 
tract right was thereby created with abutting prop- 
erty owners that all subsequent work would be done 
under the same authority; and despite the fact that 



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428 SXJPEEME COURT OF MISSOURI. 

Collins y. Jalcks Co. 

other means for paying for like work were provided 
for by a subsequent charter, that said section remained 
operative and exclusive as to improvements on the 
boulevard. We have shown that this section did not 
create a contract right, and that such a right was not 
impaired by the adoption of the new charter ; and that 
the operative force of the section only prevailed so 
long as the charter of which it was a part was in 
existence, no longer. This being true, the provisions 
of the present charter. Section 12, Article 18, Charter 
of 1909, bot. p. 482, does not admit of the construction 
given it by appellants in that no such '* right or lia- 
bility was acquired or accrued" under the former char- 
ter, as is meant by this section, which is as follows: 
**The repeal of any law by the provisions of this 
charter shall not in anywise be so construed as to affect 
any right or liability acquired or accrued thereunder 
by or on the part of the city or any person or body 
corporate. And this charter shall not in any manner 
affect any right, lien or liability accrued, established or 
subsisting under and by virtue of the previous charter 
or any amendments thereto . . . Nor shall this 
charter be in any wise so construed as to affect the 
right or liability acquired or accrued under the previous 
charter and amendments thereto, or on the part of the 
city or any person or body corporate. '^ 

The interpretation sought to be given Section 31 
of Article X of the former charter, and the application 
thereto of Section 12 of Article 18 of the present char- 
ter, would absolutely prevent any change in the new 
charter which imposed any other or different obligations 
upon persons or property of a city, than those thereto- 
fore existing. This is foreign to any reasonable con- 
struction of the law on this subject. The right of cities 
to frame their charters and, as a consequence, to change 
them, is a continuing right (Morrow v. Kansas City, 
186 Mo. 675), which would be nullified under appellants' 
construction. 



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VoL 279 APEIL TEEM, 1919. 429 



state ex rel. McBride v. Sheetz. 



We find no further contentions entitled to our 
consideration. 

For the reasons stated, we are of the opinion that 
the petition does not state a cause of action, and the 
judgment of the trial court is affirmed. 

It is so ordered. All concur, except Woodson, J., 
absent. 



THE STATE ex rel. G. A. McBRIDE v. FRANK 
SHEETZ, Appellant. 

Division One, July 9, 1919. 

1. DRAINAOE DISTRICT: Sni&ciency of Petition. It was unneces- 
sary for the petition praying for the organization of a drainage 
district under the Act of 1905, to state whether the ditch was to 
be open or closed. 

2. : Report of Viewers: Actual View. The Act of 1905, did 

not require the report of the first board of viewers of a drain- 
age district to show an actual view of the proposed improve- 
ment. However, the report in this case, when fairly construed, 
does show an actual view. 

3. : Notice. If the first notice to the landowners described 

the proposed ditch exactly as it was described in the report of 
the first viewers and in the petition, and gavo notice that the 
report had been filed, it was sufficient. 

4. : : Description of Lands. The second notice to land- 
owners, required by Section 5587, Revised Statutes 1909, is not 
required to describe the lands to be affected by the organization 
of the drainage district by the county court. The report men- 
tioned in that section is that of the second board of viewers pro- 
vided for by Section 5584, which requires the report to be ac- 
companied by a plat showing the separate tracts affected and 
the names of their owners, and if the plat correctly describes the 
lands a misdescription In the second notice of certain lands is 
immaterial, especially if the misdescription consisted of an error 
giving a township number as 56 instead of 57, which error, being 
clerical, was subject to correction upon the face of the report 

5. : Estimate of Costs. The estimate of the costs of the im- 
provement can be shown by the plat and profile filed with the 
viewers' report. 



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430 SUPREME COURT OF MISSOURI. 

State ex rel. McBride v. Sheetz. 

6. : Notice of Hearing Before Viewers: Due Proceas. A special 

notice to the landowners of their right under Section 5585 to 
"appear before the viewers and freely express their opinions on 
all matters pertaining thereto" is not required, where the land- 
owners are in court by proper notice when the viewers are ap- 
pointed and notice is given of a hearing after their report Is filed. 

7. : Notice of Bond Issue. The statute does not require specific 

notice that a bond issue is contemplated as a method of securing 
funds; and if the petition contained a prayer for the issuance of 
bonds in statutory form and notice of the pendency of the petition 
was given, that was all that was required. Besides, a lack of 
authority to issue bonds is no defense to a suit to collect an 
installment tax. 

8. : Organisation: Collateral Attack. The validity of the in- 
corporation of a drainage district is not open to collateral attack; 
and where there has been a colorable effort, in good faith, under 
a valid law, to incorporate the district, and it has been and Is 
exercising powers vested in such public corporations and the 
State has not attempted to inquire into the legality of its organiza- 
tion, the illegality of its organization cannot be shown as a defense 
in a suit for taxes levied by it. 

9. : Assessor's Book: Collection of Tax. There can be no 

valid drainage district tax without a valid assessment; but the 
ditch assessment book required by Sec. 5602, R. S. 1909, has no 
relation to the assessment of drainage taxes. Under the Act of 
1905 the assessment is made by the county court, and its basis 
is the report of the viewers and engineer confirmed by the court; 
and its validity is in no way dependent upon the ditch assess- 
ment book, which the clerk is required to make up, but his failure 
to perform that duty does not render the tax uncollectable. 

10. : Taxes: Limitations. The plea of the Statute of Limita- 
tions to a suit brought in October, 1914, for the drainage taxes of 
1910, 1911, 1912 and 1913, is unavailing. 

Appeal from Livingston Circuit Court. — Hon. Fred 
Lamb, Judge. 

Affikmep, 

S. L. Sheetz for appellant. 

(1) Where the proceedings establishing a drainage 
district are void, they may be attacked collaterally. 
Drainage Dist. v. Aekley, 270 Mo. 172; State ex rel. v. 
Arcadia Timber Co., 178 S. W. (Mo.) 93; Donner w 



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Vol. 279 APRIL TERM, 1919. 431 



state ex rel. McBride y. Sheetz. 



Board, 278 111. 189; Gibson v. Drainage Dist., 191 S. W. 
(Ark.), 908; WilUams v. Osborne, 104 N. E. (Ind.), 
27. (2) Every fact essential to the jurisdiction of the 
county court to establish a drainage district must be 
shown aflSrmatively on the re<;ord. State ex rel. v. 
Wilson, 216 Mo. 277; Wayne City Drainage Dist. v. 
Boggs, 262 111. 338; Railway Co. v. Young, 96 Mo. 42; 
State ex inf. v. Colbert, 273 Mo. 208. (3) Where the 
petition, as here, is to construct a ditch to drain lands, 
such petition is insufficient to confer jurisdiction to 
straighten a water course. Where the word *' ditch" 
is defined by the statute to include both covered and 
open drains, the petition must set forth whether the 
ditch is to be open or closed to confer jurisdiction. 
Wayne City Drainage Dist. v. Boggs, 2G2 111. 338; 
People V. McDonald, 264 111. 514. (4) Where the 
statute requires an actual view of the lands along an»l 
adjacent to the proposed ditch, the record must shew 
that fact. Marsh v. Supervisors, 42 Wis. 502. (5) 
Presumption of right acting is not indulged to support 
special statutory proceedings in invitum. Mechem on 
PubUc Officers (1 Ed.), sec. 581; Ellis v. Pac. Kail- 
road Co., 51 Mo. 200; Zimmerman v. Snowden, 88 Mo. 
218; Drainage Dist. v. Campbell, 154 Mo. 157. (6) 
The first notice to landowners did not set forth the 
report of the engineer and viewers as required by the 
statute, and the description of the proposed location 
of the ditch is so indefinite as to render the subsequent 
proceedings based thereon void. State ex rel. v. Wiet- 
haupt, 254 Mo. 319. (7) The fact that all the land in 
one township was misdescribed in the second notice to 
landowners, being about 1200 acres out of a total of 
7573.96 acres, renders all proceedings herein yoid, and 
the assessments sued on invalid. State ex inf. v. Col- 
bert, 273 Mo. 198; Paschal v. Swepston, 179 S. W. 
(Ark.) 339; Keystone Drainage Dist. v. Drainage Dist. 
180 S. W. 215; Norton v. Bacon, 158 S. W. (Ark.) 
1088; McRaven v. Clancy, 171 S. W. 88. (8) Where 
resort is had to constructive service o( notice, a sub- 



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432 SUPREME COUET OF MISSOURI. 

State ex rel. McBride v. Sheetz. 

stantial, even rigid observance of the law is required, 
otherwise the judgment will be void. No notice was 
given that the proposed improvement would be paid 
for by a bond issue. Bobb v. Woodward, 42 Mo. 489; 
Winningham v. Trueblood, 149 Mo. 586; Stewart v. 
Allison, 150 Mo. 346; Turner v. Gregory, 161 Mo. 100; 
Leslie v. St. Louis, 47 Mo. 474. (9) The statute re- 
quires an estimate of the cost of location and con- 
struction of the improvement; and an apportionment 
of the same to each tract. No estimate was ever made 
so far as any record thereof can be found, and the 
county court acquired no jurisdiction of the proceed- 
ings. Hamilton on Special Assessments, sec. 524; 
Morgan Creek Drainage Comm'rs. v. Hawley, 240 111. 
465. (10) There must be a valid assessment, its entry 
upon the tax book and failure of the owner to pay, to 
make a good cause of action. State ex rel. v. Wilson, 
216 Mo. 287. No assessments were entered in a ditch 
assessment book as required by Sec. 5602, R. S. 1909. 
(11) The drainage law, *4s a code unto itself, '^ and the 
special Statute of Limitations therein of six months 
should be upheld. Drainage Disl. v. Ackley, 270 Mo. 
173. (12) There was no notice given landowners that 
they could appear before the viewers at any time or 
place, as provided by Sec. 5585, R. S. 1909. Hamilton 
on Special Assessments, sec. 354; State v. Road 
Comm'rs., 41 N. J. L. 83. 

W. T. Rutherford, Forrest M. GUI and Paul D. Kitt 
for respondent. 

(1) This suit is for the collection of delinquent 
assessment for drainage tax, and the legality of the 
proceedings leading up to the incorporation of the 
drainage district cannot be inquired into in this col- 
lateral proceeding. State ex rel. v. Eicher, 178 S. W. 
171 ; State ex rol. v. Wilson, 216 Mo. 215. (a) The tax 
bill in tJiis case was prinia-facie evidence of the amount 
due and t)ic liability of appclLonl's laud for tlie taxes. 



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Vol. 279 APRIL TERM, 1919. 43S 



state ex rel. McBride v. Sheetz. 



Sees. 5599-5600, R. S. 1909; State ex rel. v. Birch, 
186 Mo. 205. (b) A drainage district is a municipal 
corporation, a public corporation, and the legality of 
its incorporation cannot be inquired into collaterally in 
a suit to collect back taxes ; qtu) warranto is the only pro- 
ceeding to question the legality of public corporations. 
State V. Fuller, 96 Mo. 165; Church v. Tobbein, 82 
Mo. 418; Burnheim v. Rogers, 167 Mo. 171; School 
Dist. V. Hodgins, 180 Mo. 70; Barnes v. Construction 
Co., 257 Mo. 192; State v. Colbert, 273 Mo. 209; State 
V. West, 272 Mo. 317; State v. Young, 255 Mo. 637; 
State V. Blair, 245 Mo. 680; Bonderer v. Hall, 205 S. 
W. 542; State v. Bicher, 178 S. W. 174; Drainage 
Dist. V. Ackley, 270 Mo. 157. (c) The proceedings in 
the organization of this district are legal and fully 
comply with the statute under which said district was 
organized. Sees. 5578-5592, R. S. 1909. (2) Appellant 
was duly notified by publication, as required by statute 
(Sec. 5587), of the filing of the report of the viewers 
assessing benefits against his land and of the time set 
for hearing thereon. The court acquired jurisdiction 
of the person of the appellant and of the subject-matter. 
Sees. 5587-5592, R. S. 1909; State ex rel. v. Blair, 245 
Mo. 680; Barnes v. Construction Co., 257 Mo. 192; 
State ex rel. v. Wilson, 216 Mo. 274; State v. Eicher, 
178 S. W. 171; State ex rel. v. Neville, 110 Mo. 348. 
(a) The county court, by its judgment, found that the 
appellant was duly served with notice of the assess- 
ment of benefits on his land. This judgment is con- 
clusive on appellant, and is not subject to attack in 
this proceeding. State ex rel. v. Eicher, 178 S. W. 
173; State ex rel. v. Wilson, 216 Mo. 215. (3) The 
report of the first set of viewers conforms in all re- 
spects to the provisions of Sec. 5580, R. S. 1909, and 
shows that the viewers complied with the provisions of 
that section. (4) The first notice to landowners, given 
under the provisions of Sec. 5581, R. S. 1909, complies 
with all the essential requirements of Section 5581 ; 
the place of beginning, route and terminus of the pro- 



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434 SUPREME COURT OF MISSOURI. 

state ex rel. McBride y. Sheetz. 

posed ditch and the time fixed by the court at which the 
petition and report would be heard are set forth in the 
notice. (5) The lands of the appellant are located in 
Sections 18 and 7, Township 56, Range 24. The notice 
to landowners of the report of the viewers assessing 
benefits on appellant's lands names appellant and cor- 
rectly describes appellant's lands, and appellant has 
no grounds for complaint that the notice misdescribes 
his land. Appellant was duly notified of the assess- 
ment of his lands in this district and was notified of 
the date of hearing thereon. Sec. 5587, R. S. 1909; 
State ex rel. v. Blair, 245 Mo. 680; Barnes v. Con- 
struction Co., 257 Mo. 192. (6) It makes no diflference 
whether notice of the issuance of bonds was made, 
appellant was not injured by the issuance of bonds. 
The petition asked for the issuance of bonds. Sec. 5579, 
R. S. 1909. The issuance of the tax bill in this case 
was authorized, and all assessments on appellant's 
lands drew 6 per cent from the date of the confirmation 
by the court until paid, and it could make no difference 
whether the money collected from the assessments is 
paid in discharge of the debt evidenced by bonds, or by 
the contract of construction without the bonds or by 
warrants issued. The amount in either event would be 
the same and the issuance of bonds could not prejudice 
or injure the appellant in any way. Sees. 5598-5599- 
5600, R. S. 1909; State v. Eicher, 178 S. W. 173. (7) 
An estimate of the cost, location and construction of 
the improvement was made by the viewers as is shown 
by the report of the viewers. (8) The statute (Sec. 
5579) does not require that the petition shall state 
whether the ditch is to be an open or closed ditch. State 
ex rel. v. Taylor, 224 Mo. 453. (9) The taxes in ^question 
were not barred by the Statute of Limitations. Sec. 5599, 
R. S. 1909; Drainage Dist. v. Bates Co., 269 Mo. 78; 
State V. Wilson, 216 Mo. 291. 

BLAIR, P. J. — Defendant appeals from a judg- 
ment rendered by the livingston Circuit Court in a 



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Vol. 279 APRIL TEEM, 1919. 435 



state ex rel. McBride v. Sbeetz. 



suit for drainage taxes. The district was organized in 
1999. 

I. (1) It was unnecessary for the petition praying 
for the organization of the drainage district to state 
whether the ditch was to be open or closed. The stat- 
ute then in force (Sec. 5579, E. S. 1909) required no 
such allegation. [State ex rel. v. Taylor, 224 Mo. 1. c. 
415, 416 et seq., and cases cited.] The cases cited 
from other states were decided under 
rg a on. jj^^^iQ^ig^Wj different statutes. (2) The re- 
port of the first board of viewers (Sec. 5580, E. S. 1909), 
when fairly construed, shows it was the result of an 
'* actual view" of the proposed improvement. It shows 
a ** thorough examination" of the proposed drainage 
system from end to end and was accompanied by a plat 
showing *'the line examined by" the viewers. Further, 
the statute does not require the report to show an 
actual view. We think it does so, nevertheless. The 
point is ruled against appellant. The case of Mar&li 
et al. V. Supervisors, 42 Wis. 1. c. 514, et seq., was 
decided under an assessment statute which specifically 
required the assessor to make afl&davit that he had ac- 
tually viewed all real estate assessed. No affidavit of any 
kind was made. The principle of that decision is not 
relevant to the question here. (3) The first notice to 
the landowners described the proposed ditch exactly 
as it was described in both the report of the first view- 
ers and the petition. It also gave notice that the report 
had been filed. The decision in State ex rel. v. Wiet- 
haupt, 254 Mo. 319, turned upon the fact that the de- 
scription of the proposed improvement in the first 
notice and the description in the report of the viewers 
were materially different. That decision announces no 
principle which condemns the notice in this case. Notice 
of the report is required and in this case was given by 
stating that it was filed, and, among other things, recom- 
mended the establishment **of said ditch. ^' The **said 
ditch '^ was described in the notice just as in the peti- 



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436 SUPREME COURT OF MISSOURI. 

state ex rel. McBride t. Sheetz. 

tion and in the report. The objection is untenable. 

(4) It is contended the second notice to lando\niers 
misdescribed several hundred acres of the land in the 
district. This notice was prescribed by Section 5587, 
Revised Statutes 1909. The statute required the notice 
to be ''directed by name to every person returned by 
the engineer and viewers as the owner of every lot and 
parcel of land affected by the proposed improvement or 
of any interest therein, and also by name, to all others, 
who it may be ascertained own such land or any part 
thereof, and also generally to all other persons, with- 
out mentioning their names, who may own such land, or 
any part thereof, or any interest therein, notifying them 
of the general object and nature of the petition and re- 
port of the engineer and viewers, and that, on the day 
so fixed, the county court will hear said petition and 
report of the engineer and viewers," etc. There is no 
requirement that the notice describe the lands at all. 
Notice of the pendency of the petition and of the 
report of the first viewers had already been given, and 
all interested parties were affected thereby. The re- 
port mentioned in Section 5587 is that of the second 
board of viewers, provided for by Section 5584, Revised 
Statutes 1909. That section required the report to in- 
clude or be accompanied by a plat, which was required 
to show the separate tracts affected and the names of 
the owners thereof. No other report of the lands af- 
fected was required by this section. There is no con- 
tention this plat did not correctly describe the lands. 
Further, the point that a misdescription occurred is 
based upon an order of the county court requiring town- 
ship ''57'^ to be substituted for ''56'' on "page 1.38 
thereof (of the report), and nothing appears to show 
how this affected the description of any of the lands in 
the district or that it in any way affected appellant's 
land. It was apparently a clerical error which was 
subject to correction from the face of the report itself, 
for the reasons given this contention must be overruled. 

(5) The report shows a plat and profile showing the 



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Vol. 279 APRIL TERM, 1919. 437 

SU.^e ex rel. McBride v. Sheetz. 

estimated cost of the improvement were filed with the 
report, and the court found these estimates correct. The 
objection that no estimate was made is not sustained by 
the record. (6) Section 5585, Revised Statutes 1909, 
provides that any landowners affected ''may appear 
before the viewers and freely express their opinions 
on all matters pertaining thereto." It is argued that 
notice of this right should have been given. The act 
required no special notice thereof. The parties were in 
court when the viewers were appointed and ordered to 
view the proposed improvement and mark out its line, 
etc. They were at liberty to appear before the viewers. 
Notice was required and given of the hearing on the 
report and full opportunity afforded to except to the 
report. This notice satisfied the due process of law 
clause so far ag the report is concerned. (7) It is 
urged that no notice advised appellant that a bond issue 
was contemplated as a method of securing funds. The 
statute did not require specific notice of this intention. 
Notice of the pendency of the petition was given, and 
the petition contained a prayer for the issuance of bonds 
in statutory form. This was all that was required. 
Further, this court has held that even if there was no 
authority to issue bonds at all this would be no defense 
to a suit for the collection of an installment of the tax. 
[State ex rel. v. Eicher, 178 S. W. 1. c. 174.] 

n. There is another adequate, single reason for 
tlie conclusion that the questions discussed in Para- 
graph 1 cannot aid appellant. 

TJiere can be no doubt there was at least a color- 
able effort, in good faith, under a valid, existing law, 
to incorporate the drainage district; that the district 

has been and is exercising powers invested 
5|^|^^ in such corporations, and that the State has 

not attempted to inquire into the legality of 
its organization. The validity of the incorporation is 
not open to collateral attack in a suit for taxes. [Kayser 
V. Trustees of Bremen, 16 Mo. 1. c. 90; Stamper v. 



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438 SUPREME COURT OF MISSOURI. 

state ex rel. McBride v. Sheetz. 

Roberts, 90 Mo. 683; Orrick School District v. Dorton, 
125 Mo. 1. c. 443; City of St. Louis v. Shields, 62 Mo. 
1. c. 251, 252; State ex rel. v. Blair, 245 Mo. 1. c. 687; 
Burnham v. Rogers, 167 Mo. 1. c. 21; State ex rel. v. 
Birch, 186 Mo. 1. c. 219.] 

III. It is contended no ditch assessment book was 
made up as provided in Section 5602, Revised Statutes 
1909, and, for that reason, the judgment cannot stand. 
Under the general revenue law the assessor's book 
(Sec. 11370, R. S. 1909) embodies the result of the 

assessor's action, and ''a fair compliance 
Ditch Assess- with" the statutory provisions respecting it 
ment Book, ig essential to the validity of the tax ; this 

is true because ''an assessment is indispensa- 
ble to the levy of a valid tax" (State ex rel. v. Schooley, 
84 Mo. 1. c. 452), and the assessor's book, as corrected 
by the boards of equalization, is the very foundation of 
the assessment made for general taxes. [Sec. 11407, 
R. S. 1909.] It is quite as true that there can be no 
valid drainage tax without a valid assessment. In the 
case of drainage taxes in suit, however, the ditch as- 
sessment book had no relation to the assessment itself. 
That assessment was made by the county court (Sees. 
5599 and 5601, R. S. 1909) and became a lien upon the 
lands in the district in the proportion the sums assessed 
bore to the total benefits assessed. The basis of the 
assessment was the report of the viewers and engineer 
as confirmed by the court. The ditch assessment book 
required by Section 5602, supra, could be only a tabula- 
tion of assessments already made and already a lien 
by express statute. It was enacted (Sec. 5600, R. S. 
1909) that the general law should apply. Under that 
law informalities even in the assessment do not invali- 
date the tax. [Sec. 11383, R. S. 1909; State ex rel. v. 
Wilson, 216 Mo. 1. c. 287.] The assessment of the drain- 
age tax under the Act of 1905 (Sec. 5602, R. S. 1909) 
was wholly independent of the ditch assessment book. 
The validity of the assessment in no way depended upon 



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Vol. 279 APRIL TERM, 1919. 439 



Ammerman y. Linton. 



the book. The clerk should have performed his duty 
and made up the book, but if he did not that does not 
render the tax uncoUectable. It falls within the rule 
that regulations designed to secure order, dispatch or 
system in proceedings for the assessment and enforce- 
ment of taxes are not mandatory in the sense that dis-. 
regard of them invalidates the tax or prevents its 
recovery. [State ex rel. v. Phillips, 137 Mo. 1. c. 265.] 

IV. This suit was brought October 7, 1914, for the 
taxes of 1910, 1911, 1912 and 1913. The plea of the 
Statute of Limitations is unavailing. [Drain- 
age Dist. v. Bates Co., 269 Mo. 1. c. 91.] 
The judgment is aflSrmed. Graves, J., concurs; 
Bond, J., concurs in Paragraph 2 and the result; Wood- 
son, «/., absent. 



J. B. AMMERMAN V.WILLIAM LINTON, CHARLES 
W. KIRBY and ADDA KIRBY; C. W. DURRETT, 
Intervener, Appellant. 

Division One, July 9, 1919. 

1. SHERIFF'S DEED: Bedtals: Judgment as Evidence. The re- 
citals in a sheriff's deed are prima-facle evidence of the facts therein 
set forth, and in ejectment the introduction in evidence of the 
judgment under which the execution sale was made is not neces- 
sary to establish title in the purchaser. 



2. : Bedtal of Levy. A sheriff's deed is not required by the 

statute to recite a levy upon the lands sold. 

3. APPEAL: Printing Evidence Omitted at TrlaL The printing in 
the abstract of a judgment rendered at a former trial of the case, 
which was not offered by either party at the trial which resulted 
in the judgment appealed from, does not put such judgment in 
the record, and all contentions based on such former judgment are 
eliminated from the case. 

4. SHEBIFF'S SALE: Pending Appeal: Subsisting Judgment Against 
KoQ-Appealing Defendant. A sale upon special execution issued 
upon a judgment agalnat a mortgagor who did not appeal aad 



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440 SUPEEME COURT OF MISSOURI. 

Ammerman v. Linton. 

which was never disturbed as to him, made during the pendency of 
the appeal which resulted in reversing the Judgment rendered in 
behalf of the other defendant, was a sale, as to such non-appealing 
defendant, under a subsisting judgment 



5. : At Second Term: Written Stipulation. A sheriff's sale is 

not invalid because made at the second term after the issuance of 
special execution, rather than at the first. Besides, it is in poor 
grace to^urge any infirmity in the sale on the ground that it was 
made at the second term where the parties have entered into a 
written agreement postponing the sale to that term in order that 
defendants might have longer time to redeem under the mortgage 
which was the basis of the judgment. 

6. : Collateral Attack: Misleading Notice. A lack of proper 

notice of a judicial sale is an irregularity which renders the 
sale voidable, but not void; and being only voidable, the sheriff's 
deed, made under execution, cannot, because of an infirmity in 
the notice, be attacked in a collateral proceeding, such as an 
ejectment brought by the purchaser. So Jwhere the special exe- 
cution recited that the debt and costs were declared a lien upon 
the land, and the sheriff's deed contained the same recitals, the 
deed cannot be attacked in ejectment on the ground that the notice 
of sale stated that one of the defendants owned all the lands as 
tenant by the entirety jointly with the other defendant and that it 
was the interest of such tenant that would be sold. 

7. ACKNOWLEDGMENT: Regular on Face: Hidden Defects: Becord. 
If a deed of trust contains a certificate of acknowledgment in 
proper and regular form, it is the duty of the recorder to receive 
the instrument and place it upon record, and if so recorded it 
imports constructive notice to all subsequent purchasers; and 
though, upon a trial in court, it is adjudged that the deed had 
not been acknowledged, because the notary's recitals in his cer- 
tificate were false, its record nevertheless imported' notice to 
such subsequent purchaser. 

Appeal from Knox Circuit Court. — Hon. Charles D^ 
Stewart, Judge. 

Affikmed- 

J. C. Dorian, Boyd d McKinley, O'Earras, Wood 
& Walker, and C. W. Durett for appellant. 

(1) The plaintiff has failed to establish a consecu- 
tive chain of title indicating a legal title to the prem- 
ises in question. Had he introduced the judgment se- 



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VoL 279 APRIL TERM, 1919. 441 



Ammennan y. Lilnton. 



cured in the first foreclosure proceedings, on which his 
execution and deed is based, it would have shown on its 
face that the judgment was void, (a) The judgment 
and decree in the first suit brought by the First National 
Bank of Stronghurst, Illinois, on April 12, 1911, was 
based upon the fact that Charles W. Kirby was the 
owner of an estate by the entirety and it authorized the 
sale of such an estate and that was the estate that was 
attempted to be sold under that judgment. First Nation- 
al Bank v. Kirby, 175 S. W. (Mo.) 926; First National 
Bank v. Kirby, 190 S. W.(Mo.) 600. (b) The Grcuit 
Court of Knox County was without jurisdiction to au- 
thorize the sale of a tenant's interest in an estate by the 
entirety and its action in authorizing the sale of Kirby 's 
interest as such a tenant by the entirety in that judgment 
and decree was void. Otto F. Stifel's Union Brewing Co. 
y. Saxy, 201 S. W. (Mo.), 67; Ashbaugh v. Ashbaugh, 201 
S. W. (Mo.), 72. (c) Had plaintiff introduced the judg- 
ment in the original foreclosure proceedings, it would 
have shown that the judgment was void for the reason 
that there was no definite amount found to be due at the 
date of the judgment, which the defendant in that cause 
was entitled to have an opportunity to pay in order 
to prevent a sale. Rumsey v. People's Railway Co., 144 
Mo. 175; Black on Judgments (2 Ed.), sec. 3, p. 8; 
Black on Judgments (2 Ed.), sec. 118, p. 168; 24 Cyc. 
10; Railway Co. v. Fosdick, 106 U. S. 47; 5 Am. & 
Eng. Ency. Law, p. 376 ; Boone on Mortgages, sec. 189 ; 
Milhim v. Hawkeye Ins. Co., 171 111. App. 262; Thomp- 
kins V. Wiltberger, 56 111. 385. The judgment in question 
did not conform to the statute. Sec. 2834, 2836, 2837, 
R. S. 1909; Fithian v. Monks, 43 Mo. 520. (d) The 
effect of a general and unqualified setting aside of a 
judgment, order or decree is to nullify it completely and 
to leave the case standing as if such judgment or decree 
had never been rendered. Campbell v. Kauffman, 127 
Mo. App. 287; Moore v. Damon, 4 Mo. App. Ill; At- 
kison V. Dixon, 96 Mo. 577; 3 Cyc. 460; 4 Corpus 
Juris, p. 1204. (e) No title passes under or by virtue 



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442 SUPREME COURT OF MISSOURI. 

Ammerman v. Linton. 

of an execution and sale following a void judgment. 
Janny v. Speldon, 38 Mo. 395; McNair v. Biddle, 3 
Mo. 264; Otto F. StifePs Union Brewing Co. v. Saxy, 
201 S. W. (Mo.), 67; Knapp, Stout & Co. v. City of 
St. Louis, 156 Mo. 343; Maoke v. Bird, 131 Mo. 682. 

(2) The special execution issued on the judgment re- 
covered in the first suit brought by First National Bank 
V. Kirby was issued on the 6th day of November, 1913, 
and it provided that a return should be made ''before 
the judge of our said court on the second Monday in 
December next,'' and was, therefore, dead or functus 
officio on the date of the sale to plaintiff, June 3, 1914. 
Sees. 2175, 2195, 2199, R. S. 1909; City of Aurora v. 
Lindsey, 146 Mo. 509; Jones v. Howard, 142 Mo. 117; 
St. Louis Brewing Assn. v. Howard, 150 Mo. 445; 
Stewart v. Severance, 43 Mo. 331; Bank v. Bray, 37 
Mo. 194; Lackey v. Lubke, 36 Mo. 124; Wack v. 
Stevenson, 54 Mo. 485; Butler v. Imhoff, 238 Mo. 598. 

(3) A levy was essential, as the instrument sued on was 
not acknowledged and hence not entitled to record. Its 
record was unauthorized. Sees. 2794, 2797, 2798, 2809, 
2810, 2811, 10381, R. S. 1909; Rivard v. Mo. Pac. Ry. 
Co., 257 Mo. 135 ; German v. Real Estate Co., 150 Mo. 
570; Williams v. Butterfield, 182 Mo. 181; Bishop v. 
Schneider, 46 Mo. 472; Stierlin v. Daley, 37 Mo. 484; 
First National Bank v. Kirby, 175 S. W. (Mo.) 926; 
First National Bank v. Kirby, 190 S. W, (Mo.) 597; 
Sec. 2228, R. S. 1909; Butler v. Imhoff, 238 Mo. 598. 

W. C. Ivins and F. H. McCidlough for respondent. 

(1) In ejectment, the right of possession alone ts 
determined, and that is settled by the record title, or by 
title by limitation based upon possession. McAnaw v. 
Clark, 167 Mo. 443; Richardson v. Dell, 191 S. W. 
64. (2) The recitals in the deed of the sheriff con- 
veying the land to respondent, are presumptive evidence 
of the existence of the judgment and execution and the 
other facts recited in the deed, and in an action of eject- 
ment the plaintiff need not produce the judgment and 



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VoL 279 APRIL TERM, 1919, 443 



Ammerman v. Ldnton. 



execution. R. S. 1909, sec. 2231; McCormick v. Fitz- 
morris, 39 Mo. 24; Samuels v. Shelton, 48 Mo. 445; 
Jordan v. Surghnor, 107 Mo. 520 ; Scharff v. McGaugh, 
205 Mo. 344; Butler v. Imhoff, 238 Mo. 584. (3) Mere 
irregularities or defects are not suflScient to invalidate 
a sheriff's deed. Emory v. Joice, 70 Mo. 537; Dunn v. 
Miller, 8 Mo. App. 467. (4) Irregularities in the judg- 
ment, sale or sheriff's deed cannot be taken advantage 
of in a collateral proceeding, but only in a direct appli- 
cation for that purpose. Reed v. Austin's Heirs, 9 Mo. 
722; Waddell v. Williams, 50 Mo. 216. (5) Under the 
statute, where a sale is not made at the first term of 
the court after the issue of the execution, said execution 
continues in force until the end of the second term 
thereafter. R. S. 1909, sec. 2228; Lackey v. Lubke, 36 
Mo. 122; Butler v. Imhoff, 238 Mo. 584. (6) The real 
estate was charged with the lien of the judgment, hence 
no notice of levy or other proceeding was necessary. 
The execution was simply a direction to the sheriff to 
foreclose that lien. R. S. 1909, sec. 2199; Smith v. 
Thompson, 160 Mo. 553; Brewing Assn. v. Howard, 
150 Mo. 445. (7) A judgment may be erroneous or 
defective as a personal judgment and yet be valid as a 
judgment of foreclosure. Trumbo v. Floumoy, 77 Mo. 
App. 324; Hoskinson v. Adkins, 77 Mo. 537; Hager- 
man v. Sutton, 91 Mo. 519. (8) The question of interest 
of tenant by entirety does not enter into this case, be- 
cause appellant Adda states in her answer, filed in this 
cause, that she only owns inchoate dower in the lands. 
(9) As between the judgment creditor and appellant, 
Charles W. Kirby, and those claiming under him, the 
judgment in Case No. 6901 was conclusive. It was final 
and no appeal was taken. Murphy v. De France, 101 
Mo. 151. (10) The validity of the sheriff's deed de- 
pends, only, upon whether or not it contains all essen- 
tial recitals; it recites the names of the parties to the 
execution, the date the execution issued, the date of 
the judgment, the* description of the land, and the time, 
manner and place of the sale. The above are the only 



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444 SUPREME COURT OF MISSOURI. 

AmmermaA v. Linton. 

essential recitals; all others are simply directory. Wil- 
hite V. Wilhite, 53 Mo. 71 ; Gaines et al. v. Fender, 82 
Mo. 507; Davis V. Kline, 76 Mo. 312; Sec, 2231, R. S. 
1909. 

GRAVES, J. — ^Action in ejectment, by petition in 
ordinary form. Defendant Adda Kirby answered: (1) 
by a general denial; (2) she avers that the right of 
possession is in one C. W. Dirrett, stating the facts 
from which such conclusion is drawn. Defendant Charles 
W. Kirby, answers (1) by a general denial as to all 
matters not expressly admitted, and (2) admits that 
he was the former owner in fee of the land, but avers 
that C. W. Durrett is now the owner and entitled to the 
possession thereof. Defendant Linton was a tenant of 
Charles W. Kirby, and so answers, stating the terms 
of the tenancy. 

C. W. Durrett, by leave of court, filed an inter- 
vening petition, by which he claimed title and the right 
of possession to said land by and through a trustee's 
deed under a foreclosure of a deed of trust executed 
by Charles W. Kirby, to Calvin Carder, trustee, of 
date March 22, 1911. The answer to Durrett, and 
replies to answers of defendants, were general denials. 
Plaintiff had judgment and the intervening petitioner. 
Durrett, has appealed. 

Actions touching the issues involved in the instan*": 
case have been in this court heretofore. [Bank '\. 
Kirby, 175 S. W. 926; Bank v. Kirby, 190 S. W. 597.] 
The records and judgments in these two eases are inter- 
woven in the facts of the instant case. They are also, 
in a way, injected into the pleadings of this case. A 
historical review of the whole transaction will not be 
\vithout good purpose. 

Charles W. Kirby and his wife, Adda Kirby, lived 
at Stronghurst, Illinois, October 15, 1909, they executed 
and delivered to Elmer E. Taylor, notes aggregating 
$7500, which they attempted to secure by mortgage on 
200 acres of land in Knox County, Missouri, the land 



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Vol. 279 APRIL TEEM, 1919. 445 



Ammerman y. Linton. 



involved in the instant suit. Taylor assigned the notes 
and mortgage to the First National Bank of Strong- 
hurst, April 12, 1911, and said bank brought suit in the 
Circuit Court of Knox County to foreclose this mort- 
gage, and Kirby and wife, supra, were the defendants. 
This was Cause No. 6901 in the Circuit Court of Knox 
County, and upon appeal here, by plaintiff, it was 
this land as an estate by the entirety. So it seems to 
have been tried below, and so it was treated here. [175 
Cause No. 16935 in this court. [175 S. W. 926.] In 175 
Southwestern it is erroneously stated to be Cause No. 
16835, but our files show it to be No. 16935. In this 
Cause No. 6901, Adda Kirby, by verified answer, averred 
among other things that she and her husband held 
S. W. 926, supra.] We find upon looking at the old 
abstract it was admitted to be an estate by the entirety. 
When here we ruled that the circuit court properly 
found that the mortgage had not been acknowledged, 
but as the estate was one by entirety the mortgage was 
good as between the parties, and could be foreclosed. 
We also ruled that there was no final judgment against 
Adda Kirby and that the suit was prematurely brought. 
The cause was reversed and remanded. But it must be 
borne in mind that Charles W. Kirby not only failed 
to plead in said Cause No. 6901 in Knox County (No. 
36935 in this court), but did not appeal from the judg- 
ment of foreclosure as to his interest in the land. 

Whilst Cause No. 6901 from the Knox Circuit Court 
was pending here upon appeal, the plaintiff therein 
caused special execution to be issued as against Charles 
W. Kirby and his interest in the land, and it is under 
the sale and deed from the sheriff under this special 
execution that plaintiff claims title. This special exe- 
cution was issued November 6, 1913, and sale was had 
thereunder in June, 1914. 

March 23, 1915, after the reversal of the judgment 
as to Adda Kirby said Cause 6901 from Knox County 
Circuit, the First National Bank of Stronghurst brought 
another suit of foreclosure against Charles W. and 



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446 SUPREME COURT OF MISSOURI. 

Ammerman v. Linton. 

Adda Kirby, in the Circuit Court of Enox County. Thin 
was Cause No. 7272 of that court. In this cause Charles 
W. Kirby plead that the judgment in Cause No. 6901 
was res adjudicata, and a bar to Cause No. 7272, as to 
him. The circuit court upon trial so held, and again 
he did not appeal. In Cause No. 7272, the defendant 
Adda Kirby disclaimed that the estate was one by en- 
tirety (in 175 S. W. 926, we had held that with such an 
estate her mortgage was good although not acknowl- 
edged), but averred that her husband Charles W. Kirby 
was the owner in fee and she only had an inchoate right 
of dower. Notwithstanding this answer and evidence 
tending to prove it, the trial court held (in Case No. 
7272) that the unacknowledged mortgage was binding 
upon Adda Kirby, and her inchoate right of dower. As 
said above, the court, in Case No. 7272, ruled that the 
judgment in No. 6001 was res adjudicata as to Charles 
W. Kirby, and he went no further. Adda Kirby appeal- 
ed to this court, and Case No. 7272 in Knox Circuit 
Court became Case No. 19027 in this court. [190 S. W. 
597.] In this cause this court held that whilst an un- 
acknowledged deed of trust would (as between the par- 
ties) bind both husband and wife as owners of an estate 
by the entirety, yet such an unacknowledged instru- 
ment would not convey (even as between the parties) 
inchoate dower. We therefore reversed that judgment, 
and directed the circuit court to set aside its judgment 
so far as it affected the appellant Adda Kirby, and to 
dismiss the cause as to such appellant. 

The record in this case would tend to show that Adda 
Kirby falsified when, in her verified answer in Case No. 
6901, she averred that she and her husband held the 
lands as an estate by the entirety. The verification of 
the answer no doubt prompted the admission of record 
in the first case. This record shows the common source 
of title to be John M. Harkness. It then shows a 
warranty deed from John M. Harkness and wife to 
Charles W. Kirby. But be this as it may, plaintiff 
claims under the sheriff's deed aforesaid. 



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Vol. 279 'APRIL TEEM, 1919. 447 



Ammerman y. Linton. 



Now for Durrett's claim of title and possession. 
On March 22, 1911, Charles W. Kirby (not joined there- 
in by his wife) made and executed to Calvin Carder, as 
trustee, a deed of trust on the lands in question, to 
secure the payment of two notes (aggregating $6500) 
given by Kirby to his wife Adda Kirby. On October 
21, 1915, the sheriff of the county, as successor trustee, 
sold the lands under this deed of trust, and executed 
a trustee's deed to Durrett, as the purchaser at such 
sale. The intervener, Durrett, claims title and the right 
of possession under this deed. This sufficiently outlines 
the case. 

I. There are some harsh features in this case grow- 
ing out of the false averment in Adda Kirby 's answer 
in Cause No. 6901, to the effect that she and her husband 
held the land as an estate by the entirety. The case 
seems to have proceeded nisi, and here, on that theory. 
[Bank V. Kirby, 175 S. W. 926.] 

In the instant case (a possessory action in eject- 
ment) plaintiff showed: (1) a conveyance from the ad- 
mitted common source of title to Charles W. Kirby; (2) 
a deed of trust from Kirby and wife to Taylor; (3) an 
assignment of notes and deed of trust to First National 
Bank of Stronghurst by Taylor; (4) the judgment of 
reversal by this court of the judgment in No. 6901, so 
far as Adda Kirby was concerned (she being the only 
appellee), but with a holding that the deed of trust was 
good bet\<^een the parties; (5) special execution as 
against the interest of Charles W. Kirby 's interest in 
the land; and (6) the sheriff's deed under such special 
execution to the plaintiff in this case. 

The right of plaintiff to recover is dependent upon 
the validity of that deed. The appellant urges that the 
failure of the respondents to introduce in evidence the 
judgment upon which the special execution was is- 
sued creates a break in plaintiff's chain of title, and 
for that reason the plaintiff should not have been per- 



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448 SUPREME COURT OF MISSOURI. 

Amraerman v. Linton. 

mitted to recover. There is no substance in 
Deed. ' ^^^ contention of the appellant. It has long beon 

held that the recitals in the sheriff's deed arc 
prima-facie evidence of the facts therein set forth, 
and that the introduction of the judgment under which 
the sale was made is not required to make a case. [Mc- 
Cormick v. Fitzmorris, 30 Mo. 1. c. 32 ; Samuels v. Shel- 
ton, 48 Mo. 1. c. 449; Jordan v. Surghnor, 107 Mo 1. c. 
524; Seharff v. McGaugh, 205 Mo. 1. c. 357. See also R. 
S. 1909, sec. 2231.] 

If the opposite party desires to impeach the recital 
of the sheriff ^s deed, he has the right and privilege of 
so doing, but if the deed is a valid one on its face, the 
plaintiff makes out a case by the introduction of the 
deed, without the judgment out of which the sale and 
deed grew. When we say above that the party has the 
privilege to attack a deed, regular and valid upon its 
face, we do not naean that it can be done in a collateral 
proceeding, as in this proceeding. But of this subject 
later. 

II. The deed does not recite a levy upon the lands 
sold. The statute (Section 2231, Revised Statutes 1909,) 
requires no such recitation. We have so held for many 
years. [Hunter v. Miller, 36 Mo. 1. c. 147: Shelton v. 
V. Franklin, 224 Mo. 1. c. 367; Butler v. 
52^ ""' Imhoff, 238 Mo. 1. c. 595.] The deed does re- 
cite the date of the judgment, the parties to 
the judgment and the execution, the date of the execu- 
tion and its receipt by the sheriff. It also avers that 
the special execution recited that such judgment is 
a lien and charge upon the real estate. It recited fully 
the particulars of the execution, as also the description 
of the land, and the manner of notice and all details as 
to the sale. In fact under the rulings, supra, as well as 
under others that might be cited, the deed is valid 
upon its face. 

m. The judgment in Cause No. 6901 was not in- 
troduced in evidence by either party. Counsel for ap- 

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Vol. 279 APRIL TERM, 1919. 449 



Ammerman v. Linton. 



pellant have printed it in their hrief , but that does not 
put it in the record. The special execution 
N^'off"^ is in the record, as is also the notice of 
At Trial. Sale. Among other things the special ex- 

ecution recites ''which said debt and costs 
were declared a lien and charge upon the following 
described property.'^ The property described was the 
land sold, and the party named as execution debtor was 
Charles W. Kirby, the non-appealing defendant in Cause 
No. 6901. 

Several of appellant's contentions are eliminated by 
reason of the absence of this judgment from the record. 
Charles W. Kirby did not appeal from this judgment, 
but when the bank instituted another suit of foreclosure, 
(Cause No. 7272) he did appear, and plead the judgment 
in Cause No. 6001 as res adjudixita, and got the court 
to so hold. This judgment he abided, as did also the 
bank, but Adda Kirby appealed, and secured a reversal 
of the jugment as to her. [Bank v. Kirby, 190 S. W. 
597.] 

An examination of our opinion (175 S. W. 597) 
when the bank case was first here indicates that the 
appeal was as against Adda Kirby only. We then 
said: ''While the attack made by this appeal is found- 
ed exclusively upon the alleged error of the 
jSS^nt circuit court in giving judgment for the de- 
fendant Adda Kirby, there is in fact no such 
judgment..'' Going to the old files in that case we find 
this statement in the abstract of record : ' ' This appeal 
was taken as to the interest of defendant Adda Kirby, 
only." The whole proceeding so shows. No additional 
abstract was filed. There was no reason for the plain- 
tiff in Case No. 6901 to disturb the judgment as to 
Charles W. Kirby, for thus far it was in its favor. 
Charles W. Kirby recognized that it had not been dis- 
turbed as to him when in Case No. 7272, he plead as 
res adjudicata the judgment in Case No. 6901. So that 
it can be said that there was a subsisting judgment 

29—279 Mo. 



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450 SUPREME COURT OF MISSOURI. 

Ammerman v. Linton. 

against Charles W. Kirby at the date of the special 
execution under which the sale was made. So far as 
the showing made in the present record is concerned, 
it was not a void judgment. 

IV. As a fact the sale under the special execution 
was not made at the first term of court after its is- 
suance, but was made at the second term of the court 
after its issuance. The land was advertised 
gjj^ ^^ for sale at the first term after the issuance of 
Second the special execution, but the parties stipulated 
^®™- that the sale should be called off in view of a 
possible settlement of the matter. The last clause of 
the agreement reads : 

'^7. It is expressly stipulated that February 1, 
1914, shall be fixed as the limit of time allowed for the 
performance by said Adda Kirby and Charles W. Kirby 
of the stipulations herein made on their part to be per- 
formed, and in the event that said stipulations are not 
fully performed by that date, then the plaintiff has 
the option to again advertise and sell the interest of 
said Charles W. Kirby in said real estate, and in that 
event, the said Charles W. Kirby hereby expressly 
waives his right of redemption from such sale, and also 
his right of appeal, by writ of error, or otherwise, from 
the decree in said cause rendered. 

''Date this 5th day of December, A. D. 1913.'^ 

The previous portions of the stipulation and agree- 
ment set out the things to be done by Charles W. Kirby 
and Adda Kirby to effect the proposed settlement. This 
agreement was signed by both Charles W. Kirby and 
Adda Kirby and by counsel for the bank, the opposing 
party. The parties are in ,poor grace urging this point. 
But in our judgment the law is well settled. The sale 
was not invalid because made at the second term of the 
court. The statute contemplates such a sale. [R. S. 
1909, sec. 2228.] We have so expressly ruled. [Huff 
V. Morton, 94 Mo. 1. c. 409. See also Lackey v. Lubke„ 
36 Mo 1. c. 122, and Butler v. Imhoff, 238 Mo. 584.] 



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Vol. 279 APRIL TERM, 1919. 451 



Ammerman y. Linton. 



This contention of the appellant cannot be sus- 
tained. 

V. Whilst neither the plaintiff nor the defendants 
nor intervener introduced the judgment under which the 
sale was made, the plaintiff did introduce the special 
execution, the notice of sale, and the sheriff's 
S^aSe. ^^^^' These are therefore in the record. This 
notice says that the sheriff will sell ''all of the 
undivided interest of the above named defendant, Charles 
W. Barby, in and to the following described lands.'' 
(Here follows the description of the lands.) Then 
follows in the notice the following paragraph: 

''The said defendant, Charies W. Kirby, owns all 
the above described lands, as tenant by the entirety, 
jointly with the above named defendant, Adda Kirby, 
and the interest of the said defendant, Charles W. Kirby, 
in and to all the lands above described will be sold to 
satisfy a judgment or decree of foreclosure rendered 
against him by the said Knox County Circuit Court." 

The execution contains no such recital, nor does the 
deed made by the sheriff contain such a recital. The 
execution says the debt and costs were declared- a lien 
upon the land, and directs that the debt and costs be 
made out of such land. The recitations of the deed follow 
those of the execution. Appellant contends that this 
notice shows that the interest in the lands sold was not 
the interest conveyed by the deed, as we gather their 
point. 

By way of parenthesis it should be said that the 
appellant in the brief has made no formal assignment 
of error, but under the head of "Points and Authorities" 
has engaged in a running fire of points, authorities and 
arguments. This is no doubt the result of having coun- 
sel from other states in the case. In fact, it is a close 
question as to whether or not we should not dismiss the 
appeal for failure to comply with our rules. However, 
we have attempted to get the points made as best we 
could. Now grant it that this notice of sale is irregular, 



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452 SUPREME COURT OF MISSOURI. 

Ammerman v. Linton. 

the deed (which is regular and valid upon its face) can- 
not be thus attacked in this collateral proceeding. Thus 
in 24 Cyc. 21, it is said: ^^The fact that proper notice 
of a judicial sale has not been given is always a suffi- 
cient ground for refusing to confirm or setting aside the 
sale; but according to the weight of authority it is a 
mere irregularity which renders the sale voidable only 
and not void.*' 

A voidable sale or a voidable deed cannot be at- 
tacked in a collateral proceeding. This must be done in 
a direct proceeding. Only void deeds or void proceed- 
ings are available for collateral attacks. 

The rule above from Cyc. has long been the rule in 
this State. In the early case of McNair v. Hunt, 5 Mo. 
1. c. 309, it is said: *'It appears from the cases cited 
that, in Spain, thirty days notice were at some remote 
period required, and probably still are, but for what 
reason the crown of Spain could require thirty days' 
notice to be given in this then colony, I am unable to see. 
But even if that were the law, I should say that the act 
of the sale was merely voidable, and could not be now 
questioned in a collateral suit.*' 

No notice could be much more defective than one 
not given for the required time. The rule in the Mc- 
Nair case is reannounced in Bobbins v. Boulware, 19<) 
Mo. 1. c. 48, whereat the McNair case, supra, and other 
Missouri cases are cited and discussed. The result 
of the rule is that the deed is not void, but at most 
only voidable, and being only voidable must be attacked 
in a direct proceeding, and can not be attacked in a 
collateral proceeding. 

VI. Another contention is, that inasmuch as the 
deed of trust from the Kirbys to Taylor was not ac- 
knowledged it was not entitled to record, and its record 
imparted no notice to Carder, the trustee in the deed 
of trust made by Kirby to secure alleged notes to his 
wife, nor notice to Durrett, the purchaser at the fore- 
closure. This calls for further facts. The deed of trust 



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Vol. 279 APRIL TERM, 1919. 453 



Ammerman y. Linton. 



from Charles W. Kirby and wife, Adda Kirby, had 
this certificate thereon: 



state of Illinois 

County of Henderson. ^ 



^} 



On this 20th day of October, 1909, before me personally 
appeared Charles W. Kirby and Adda Kirby, his wife, to me 
known to be the persons described in, and who executed the 
foregoing instrument, and acknowledged that they executed the 
same as their free act and deed. 

Witness my hand and official seal. My Term expires 

190—. 

J. F. McMillan, 
Notary Public Henderson County, Illinois. 

My commission expires 

Feb. 14, 1913. 

This is a good certificate and regular upon its 
face. It entitled the instrument to record. What aj)- 
pellant has in view, is, that in Case No. 6901 the trial 
court found that, notwithstanding this certificate of ac- 
knowledgment, as a matter of fact the notary public 
did not in fact take the acknowledgment of the parties. 
This alleged and afterward established defect was hid- 
den and did not appear upon the instrument. Under 
the Missouri rule it was not only the duty of the recorder 
to record this instrument, which was fair upon its face, 
but it (when recorded) imparted notice to subsequent 
purchasers. 

In Stevens v. Hampton, 46 Mo. 1. c. 408, Juds: 
Bliss, thus states the rule: '^In view, then, of the ao 
knowledgment as affecting the right of record and the 
question of constructive notice, the following would 
seem to be a reasonable rule; that when the recorded 
instrument shows upon its face that the acknowledgment 
waa taken by a party, or party in interest, it is im- 
properly recorded, and is no constructive notice; but 
when it is fair upon its face it is the duty of the regis- 
ter to receive and record it, and its record operates as 
notice notwithsta/nding there may be some hidden de- 
fect." The italics are ours. 



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454 SUPREME COURT OF MISSOURI. 

Ammerman v. Linton. 

To like effect the rule is stated in 1 Cyc. p. 530, 
whereat it is said: '*But where an instrument bearing a 
certificate of acknowledgment or proof which is regular 
upon its face is presented to the recording office, it be- 
comes his duty to record it, and the record thereof will 
operate as constructive notice, notwithstanding there 
be a hidden defect in the acknowledgment.*' The cases 
bearing upon the rule are collated by the learned au- 
thor, and among them is Stevens v. Hampton, 46 Mo. 
404, supra. In 1 C. J. 773, the same rule is announced, 
and a further collation of authorities given. 

The rule is a sensible one. The recorder of deeds 
cannot hold inquiry as to defects not apparent upon the 
face of the instrument. It follows that the recording 
of the deed of trust from Kirby and wife to Taylor was 
notice to the world. The contention of appellant must 
be ruled against him. He not only bought with notice 
of the prior deed of trust, but he bought after the fore- 
closure of Kirby's interest, and after the sale to plain- 
tiffs herein, and after plaintiff's deed was of record. He 
was not a purchaser without notice, nor was the trustee 
from whom he bought. 

VIII. The foregoing cover the substantial conteu 
tions of appellant, as we have been able to sort them 
from a mass of irrelevant matter. From it all, the judg- 
ment below was well founded in law, and most certainly 
(from the stand point of good morals) for the right par- 
ty. The conduct of Kirby and wife has not been such as 
to appeal to a court. 

The judgment is affirmed. Blair, P. J., and Bond, 
J., concur; Woodson, J., absent. 



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Vol. 279 APRIL TERM, 1919. . 455 

state ex rel. Pub. Senr. Com. v. Mo. South. Ry. Co. 



THE STATE ex rel. PUBLIC SERVICE CGMMIS- 
SIGN V. MISSOURI SOUTHERN RAILROAD 
COMPANY, Appellant. 

Division One, July 9, 1919. 

1. BAHiBOAD: Mandamus: Ck>mpelled Operation. A railroad com- 
pany in possession of Its road may be compelled by mandamus to 
operate its road in accordance with the positive requirements of 
Its charter, and mandamus is the proper remedy to compel a rail- 
road to perform a definite duty to the public. 

2. : Abandonment of Spur Track: Without Permission. Since 

the enactment of the Public Service Commission Act of 1913 a 
railroad company, engaged in operating a spur or branch line, 
cannot determine for itself the question of its right to abandon 
such line, but it must apply to the Public Service Commission for 
leave to abandon, and may be compelled by mandamus to continue 
operating such spurs or branches until the Commission has acted 
and its order has become final. 

3. : : : Decrease in Freight Bates. And notwith- 
standing the Public Service Commission refused tc permit the rail- 
road company to charge increased freight rates nsked for over the 
spur tracks it was operating in submission to the Commission, it 
cannot, without the permission of the Commission, abandon the 
operation of such tracks on the ground that they cannot be operated 
profitably at the rates permitted, but its duty is to apply to the 
Commision for such permission or for such adjustment of the rates 
over its entire line as will not work a hardship. 

4. : : Operated at Loss: Confiscation. That an order of 

the Public Seryice Commission or a judgment of court concerniug 
a particular facility or a portion of the line of a railroad com- 
pany may result in some financial loss does not necessarily bring 
it in to conflict with the provisions of the Constitution relating 
to due process of law and equal protection of the laws. 

5. : : Confiscation: Baised in Mandamus. In a mandamus 

brought by the Public Service Commission against a railroad com- 
pany to compel it to operate certain spur tracks which it has 
abandoned without permission, the question of whether the order 
to operate, if obeyed, may result in financial loss to the company 
and therefore be in confiict with the Constitution, has no place. 



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456 . SUPREME COURT OF MISSOURI. 

State ex rel. Pub. Serv. Com. v. Mo. South. Ry. Co. 

Appeal from . Jefferson Circuit Counrt. — Hon. E. M. 
Bearing, Judge. 

Affirmed- 

J. B. Daniel for appellant. 

(1) The trams in question are not railroads or 
parts of the railroad of appellant within the meaning of 
the Public Service Act or any other Missouri statute. 
Pahn V. New Haven & Hartford Railroad Co., 17 N. Y. 
Supp. 471. (2) Neither the Public Service Commission 
nor the courts have power to require appellani to 
furnish transportation not included in the exercise of 
its franchise. Palm v. Railroad Co., supra; Northern 
Pacific Railway v. Teratone, 142 U. S. 492; Elliott on 
Railroads (2 Ed.), sec. 457; People ex rel. Van Dyke 
V. Colorado Central Railway, 42 Fed. 638; State ex rel. 
United Railways Co. v. Public Service Commission, 270 
Mo. 429. (3) Mandamus is a discretionary writ, and, 
if the law would warrant its issue in any case to compel 
a railroad company to perform an act not included in 
the exercise of its franchise, the granting of the writ 
in this ease was a gross abuse of the discretion of the 
court. State ex rel. Caster v. Kansas Postal Tele- 
graph-Cable Co., 150 Pac. Rep. 549; State ex rel. Lyons 
v. Bank, 174 Mo. App. 593; State ex rel. Crow 
V. Bridge Co., 206 Mo. 74; Merril on Mandamus, sec. 
62; State ex rel. Railroad Co., 199 Mo. App. 671. 
(4) The judgment rendered herein confiscates the prop- 
erty of appellant in violation of Section 1 of Article 
14 of the Constitution of the United States and In 
violation of Section 20 of Article 2 of the Constitution 
of Missouri. 

A. Z. Patterson, General Counsel, and J. D. 
Lindsay, Assistant Counsel, for Public Service Com- 
mission. 

(1) The railroad company's conduct in assuming 
the functions of a chartered common carrier in the 



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Vol. 279 APRIL TERM, 1919. 457 

state ex rel. Pub. Serv. Com. v. Mo. South. Ry. Co. 

operation of its branch lines or tracks fixes its responsi- 
bility and obligations, and determines its duty to obey 
the laws applicable to chartered common carriers. 
Terminal Taxicab Co. v. District of Columbia, 241 U* 
S. 252 ; Diamond v. Northern Pac. Railroad Co., 6 Mont. 
580; 33 Cyc. 651. (2) A company will be held to be 
''operating" a railroad within the meaning of regu- 
latory statutes if it runs trains on a track for any 
purpose. Webb v. South. Mo. Ry. Co., 92 Mo. App. 53. 

(3) The Public Service Act has conferred upon the 
Public Service Commission the power to determine 
whether a railroad branch line or track, long established 
and operating, should be abandoned. State ex rel. 
Caster v. Kansas Postal Tel. Co., 150 Pac. 544, P. U. R. 
1915E, p. 222; Articles 2 and 3, Mo. P. S. C. Law. 

(4) Though appellant's operation of its branch linos 
and spur tracks was conducted at a loss, it should have 
applied to the Public Service Commission for permis- 
sion to discontinue such operation, and it was unlawful 
to c^as^ operation uirtil such permission had been 
granted. State ex rel. Caster v. Kansas Postal Tel. Co., 
supra. 

BLAIR, P. J. — Upon entry of the order considered 
in Missouri Southern Railroad v. Public Service Com- 
mission, a companion case, appellant attempted to 
abandon the operation of the spur tracks to which the 
Commission's order applied. Complaint was made, 
and the Commission ordered its counsel to institute 
such legal proceedings as might be effective to compel 
a continuance of the carriage of freight over the spurs. 
Counsel thereupon instituted this proceeding by manda- 
mus, and, upon the filing of the return, relator filed 
its motion for judgment, which was sustained and 
a peremptory writ awarded. This appeal followed. 

The return makes numerous formal admissions 
and then admits appellant's ownership and operation 
of its main line, and 'Hhat for several years prior 
to July 23, 1917, respondent [appellant here] main- 



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458 SUPREME COURT OF MISSOURI. 

state ex rel. Pub. Serv. Com. v. Mo. South. Ry. Co. 

tained and operated two lateral spur tracks, known 
respectively as Industrial Spur Tracks Nos. 1 and 2," 
giving their lengths, ''on which spur tracks respondent 
has, up to July 23, 1917, supplied cars to shippers at 
various points along said industrial spur tracks for 
the shipment of lumber, ties and other commodities 
in carload lots, other than live stock and perishable 
freight, and that respondent offered said service, so 
long as furnished, as aforesaid, to the public generally, 
on equal terms;" admits that in May, 1916, it filed 
with the Commission tariffs applying to the spur tracks, 
and that '* these tariffs provide that all carload traffic, 
except live stock and perishable freight, will be switched 
between main line stations and loading yards on such 
spur tracks at a charge of $7.50 per car;" admits that 
on July 23, 1917, it abandoned all freight service on 
the spur tracks. The return then avers that the spurs 
were constructed in 1900 by an incorporated saw-mill 
company, owning timber near the spurs, and operating 
saw and planing mills at Leeper, and were con- 
structed to transport that company ^s timber to appel- 
lant's railroad; that the saw-mill company had no 
tie^ switches, track fastenings and bolts in said" spur 
until it completed its work, a