Volume 179 — Missouri Reports

Louis City Circuit Court. — Rim. R. D. Fisher, Judge. (1) _ The humanitarian doctrine prevailing in this State, defendant is liable under the evidence and the case should have gone to the jury. Morgan v. Railroad, 159 Mo. 262; Hutchinson v. Railroad, 161 Mo. 246. The case should have gone to the jury even • had deceased been a trespasser on defendant’s track.

Louis Court of Criminal Correction.— Hon. Willis H. Clark, Judge.

— How. Henry C. Riley, Judge. (1) For the purposes of demurrer the averments of the petition are to be taken as true. It is alleged that the deed of trust was voluntary and without consideration, that the note secured by it was fictitious, and that the sale sought to be enjoined was to be made at the instance and for the benefit of Benjamin R. and Bettie D. Hempstead, for whose interest plaintiff paid full value at the partition sale.

Louis City Circuit Court. — Hon. W. B. Douglas, Judge. Appellant, as a passenger on the respondent’s car, was entitled to be carried to her destination in safety, and to be given a reasonable opportunity there to alight in safety, and if she was carried beyond her destination by the carelessness and negligence of the respondent or its agents, to a point in returning from which to her destination she encountered obstructions and dangers, and thereby sustained injuries, the…

Louis County Circuit Court.— Eon. Jno. W. McElMnney, Judge. (1) The establishment; of a general drainage system, and the determination of when and where sewers should be constructed, and of what size, capacity and material are matters that have always, under the city charter, been entrusted for determination to the legislative branch of the municipality.

— H,on. Geo. F. Longan, Judge. (1) The deed of trust is fraudulent and void because made and contrived with the intent to hinder, delay and defraud the creditors of Jonathan R. Barrett, the maker thereof. Barrett' was insolvent when the deed of trust was executed. It covered and included his whole estate and was of far less value than the indebtedness secured.

Transferred from St. Louis Court of Appeals. (1) The petition does not state a cause of action, and there was no evidence tending to show any negligence in sending the plaintiff after the Texas steer as alleged in the petition. The court should, therefore, have sustained the demurrer to plaintiff’s evidence. Moreover it is not alleged that defendant failed to notify or warn plaintiff of the dangerous character of the steer, if it was necessary to do so.

— Hon. B. J. Casteel, Judge. (1) The trial court erred in excluding the evidence of defendant himself from the hypothetical question propounded by the defense to the expert, Dr. Dunsmore, and in not permitting the witness to answer the first hypothetical question in which were assumed material facts testified to by defendant.

— Hon. Jas. E. Harnett, Judge. (1) Defendant’s motion to strike out should have been sustained. Pier v. Henrichoffen, 52 Mo. 333; Lanitz v. King, 93 Mo. 513. (2) It was error to admit evidence tending to show that deceased was delirious and unconscious during his last illness. This condition was no legal excuse for non-payment of dues and assessments. 2 Beach on Insurance, sec. 981; Thompson v. Insurance Co., 104 U. S. 766.

<p>Appellate Jurisdiction: amount in dispute. Where plaintiff recovers judgment for the sum of $678.75, the answer to the petition being a general denial, an appeal by defendant is to the proper Court of Appeals.</p>

— How. John A. Rich, Judge. (1) It was error to allow the prosecuting attorney to file three amended informations. It is an abuse of his power. All amended informations being filed during the term of court and on day set for trial, one while jury was being examined on voir dire caused a continuance. Defendant being unable to give bail, it worked great hardship on him. It was repugnant to bis rights. R. S. 1899, sec. 2641; Const., art. 2, sec. 22; Const. U. S., art. 6.

Prohibition. (1) There is no primary equity m the petition for injunction, and no existing controversy as to present existing property rights. State ex rel. v. Ross, 122 Mo. 457; State ex rel. v. Moore, 155 Mo. 445. (2) The writ of prohibition in Missouri is one of common-law and statutory right, and lies to restrain an inferior court from unauthorized acts, in cases of which such court has jurisdiction, as well as in those of which it has none.

— Hon. Gallatin Craig, Judge. (1) The court erred in holding that the description of the cattle in the mortgage was not sufficient. 5 Am. and Eng. Ency. Law (2 Ed.), 956; Jones on Chattel Mortgages (3 Ed.), sec. 53; 1 Cobbey on Chattel Mortgages, sec. 188; Elliott v. Long, 77 Tex. 467; Interstate G alloway Cattle Co. v. McLane, 42 Kan. 680; Jones v. Workman, 27 N. W. 158; Bank v. Bank, 19 S. W. 517; Bank v. Taylor, 98 Iowa 631; Holmes v. Commission Co., 81 Mo.

<p>1. Negligence: safe place to work: qualification of rule. The rule that the master must furnish the servant a reasonably safe place to work, is subject to the qualification that regard must be had to the character of the work the master is engaged in and which the servant is employed to do. Some work, like mining and the use of dynamite, is necessarily dangerous, depending somewhat, but not entirely, upon the care that is taken by the servants, as well as by the master.</p> <p>2. -: -: mining: fellow-servant. Plaintiff was injured while assisting a drillman in drilling holes in a mine drift, by the explosion of a charge of giant powder in a hole which had on the day previously, before plaintiff’s employment, been placed in the drift by the same drillman, but which had not then exploded, but was exploded on this day by the drill coming in contact with the powder. It was the duty of the drillman with whom plaintiff was working as a helper, to examine after every shot • to ascertain whether or not all the shots had exploded, and it was a part of the duty of the helper to assist the drillman in that examination, and if it'was discovered that any shot had not exploded it was their duty to work somewhere else, and this was the usual and customary way of the business. The place was otherwise a reasonably safe place in which to work, and the drill was a safe appliance, but plaintiff did not know that there was an unexploded charge in the drift, neither did the master nor foreman, or the drillman with whom he was working. Reid, that the duty of inspecting thé drift after the discharge of the shots to ascertain whether or not there was an unexploded charge of powder therein, was not a personal duty of the master which he could not delegate to the drillman, hut that being a duty which could have been safely performed by the drillman or the helper, their neglect to make the examination was not the negligence of the master, but that either of a fellow-servant, or was contributory negligence, and hence plaintiff can not recover.</p> <p>Reid, by Valliant, J., dissenting, that the duty of the master to furnish the servant a reasonably safe place in which to work, if cast upon a servant, does not relieve the master of liability for its negligent performance, but that negligence is the master’s negligence; and the duty being cast upon the drillman to look out for unexploded shots, he as to that duty stood in his master’s shoes, and his neglect to do so was not the negligence of a fellow-servant, of the drillman’s helper, but the negligence of the master. Held, also, that the only risk the servant assumes is the risk incident to the business unmixed with the master’s negligence.</p>

— Hon. R. A. Anthony, Judge. (1) Liberty includes tbe right to acquire property, and that means and includes the right to make and enforce contracts. State v. Loomis, 115 Mo. 307; Ritchie v. People, 155 111. 98; Forer v. People, 141 111. 171; Commonwealth v. Perry, 155 Mass. 117; In re Jacobs, 98 N. Y. 98; Leep v. Railroad, 58 Ark. 407.

— Row. A. D. Burnes, Judge. (1) The indictment is sufficient. State v. Megraw, 87 Mo. 161; State v. Shields, 89 Mo. 252; State v. Taylor. 136 Mo. 66; Kelly’s Criminal Law, sec. 609; R. S. 1899, sec. 1886. (2) At common law, the breaking to constitute burglary was confined to the dwelling or mansion house of another, but our statute is broader than the common law and under it it is burglary to feloniously break into almost any kind of structure which is used by man.

<p>Appeal from Wayne Circuit Court. — Eon. F. B. Bearing, Judge.</p>

— Hon. J. L. Fort, Judge. (1) The record shows that this case was continued at the March term, 1902, at the September term, 1902, and at the March term, 1903. The March term, 1903, came to an end on June 13th, when it was adjourned to court in course; hence, defendant was entitled to be discharged under the statute. Sec. 2642, R. S. 1899.

- — Hon. H. G. Riley, Judge. In his motion in arrert of judgment defendant moved tlie court “to arrest the judgment, and that no judgment he entered on the verdict of the jury” because the assault alleged in the second count is the same set out in the first count upon which defendant was acquitted, and such acquittal entitles defendant to a discharge from further prosecution.

— Horn. Jno. P. Butler, Judge. (1) Constructive possession of the piece of goods is not sufficient to hold defendant to a criminal liability, nor can he he required to account, for its presence in his house until he' is shown to have had actual knowledge of its presence there. State v. Castor, 93 Mo. 242.

— Eon. Jas. J. Gideon, Judge. (1) The instruction in regard to verbal statements or any statements having been made by the defendant should not have been given because it was calculated to raise in the mind of the jury or some member thereof the belief that some such evidence had been given or the court would not have commented upon it, when, in fact, no such evidence had been offered by the State, much less admitted by the court.

— Ho». Wm. L. Jarrott, Judge. Tie gravamen of the offense is the purpose or intent with which the female is taken away from her parent. Therefore before the defendant could be convicted under the information, his intention when leaving Cass county must have been to make Della Oram his concubine.

Louis City Circuit .Court. — Ho». W. B. Douglas, Judge. (1) The eyidence shows a complete identification of the defendant, and completely connects him with the commission of the crime. It was a question for the jury to pass upon under the instructions of the court. State v. Kenney, 81 Mo, 101; State v. Green, 117 Mo. 298.

<p>Appeal from Greene Circuit Court. — Ho». Jas T. Neville, Judge.</p>

— How. J. L. Fort, Judge. (1) The prosecutrix is corroborated completely by the testimony of witness Jines, who said he overheard the entire transaction between defendant and the girl on the night in question. This evidence is sufficient to convict. (2) It is not essential that the record show the presence of defendant at each hour of the day. If it shows his presence at the beginning of the day, it will be presumed that he was present during the entire day.

— lion. W. W. Graves, Judge. (1) A motion to quash a levy can not be sustained when the execution and levy is not introduced in evidence. There is nothing upon which -the court can act. Blanton v. Martin, 50 Mo. App. 114; Catron v. Lafayette Co., 125 Mo. 67. (2) There is no eveidence in the record that the deed of Bybee was ever filed for record or that he ever had a deed to the land referred to in the testimony.

— Hon. Jno. A. Hockaday, Judge. (1) The circuit court of Boone county convened in February, 1901, and it seems that the court was under the impression that section 3770a, Laws 1901, page 192, was in force at that time. It seems, however, that this act was approved on March 19,1901. The record discloses that on the 2d day of the February term of the court the judge made an order and spread the same upon his records, that the sheriff select and summon a grand jury.

— -Ho». W. A. Evans, Judge. (1) When the evidence on issues at law is documentary, or contained in depositions, and there is no-conflict- in regard thereto, and nothing in the surrounding circumstances discrediting the testimony of deponents, a finding in opposition to it will be reviewed on appeal. Efron v. Car Co., 59 Mo. App. 641; Bank v. Lawson, 87 Mo. App. 42. (2) This verdict ought to be reversed and set aside, because it is manifestly against the law and the evidence.

— Hon. W. B. Teasdale, Judge. (1) A party becomes a plaintiff only by his own choice and consent and there is no right or procedure known to the law by which a party may be forced into a suit as a plaintiff. R. S. 1899, sec. 544; Kirschman v. Scott, 166 Mo. 214. (2) Suits by infants may be commenced and prosecuted by general guardian or curator, but not by guardian ad litem.

— Now. James Gibson, Judge. (1) The passage of an ordinance by a municipality providing for the laying of a sidewalk on a street is a recognition by the city of the street as a public street of the city which it is bound to keep in repair. Hill v. Sedalia, 64 Mo. App. 494; Byerlv v. Anamosa, 79 Iowa 204; Seymour v. Salamanca, 137 N. Y. 364. And this is true whether the highway was inside or outside the city limits, provided it was. not more than five miles outside.

<p>1. Bond; taken after adjournment of court. A bond taken by the judge of the court in which a case is pending after its adjournment for the day, is valid and binding. (Following State v. Eyermann, 172 Mo. 294.)</p> <p>2. -:--: “in vacation.” The statute (sec. 4160, R. S. 1899), providing that the words “in vacation” shall be construed to include any adjournment of court for more than one day, is intended to apply wherever those words are expressly used. It does not limit the power of the judge of a court in which a case is pending to take a bond during a recess of the court.</p>

— Now. J. L. Fort, Judge. There can be. no controversy over the point that if plaintiff had remained passive at the sale of his property for back taxes, and had stood silently by and seen it sold as the property of another, he would not have been estopped from setting up his title to the same thereafter. By the testimony of Renfro, the defendant, Spence was a bidder at the sale, the next highest bidder to himself.

— ¿Tím. Wm. L. Jarrott, Judge. (1) On dissolution of corporation creditors may sue one or all of the stockholders for debts owing by corporation, and each stockholder is liable to the extent of his unpaid stock. Sec. 2519, R. S. 1899; Wag. Stat. p. 293, sec. 22; see. 745, R. S.T879; Bank v. Gallaher, 43 Mo. App. 482; McGinnis v. Barnes, 23 Mo. App. 413; Choteau v. Dean, 7 Mo.

— Ho». Jno. A. Hockaclay, Judge. (1) The statute of .1865 was the first law on the subject of the vacation of streets and alleys in municipal corporations, and the removing of the statute of limitations against such corporations. (2) There was not only a failure of affirmative proof on the subject of adverse possession but the evidence affirmatively showed that no claim whatever was made by any of the former owners to a part of this street.

Louis City Circuit Court. — lion. Franklin Ferriss, Judge. (1) Ordinance 15,785 is void because (a) it does not prescribe tbe width of the sidewalks provided for, nor (b) the size, kind or quality of the brick to be used, which can be fixed only by ordinance and not delegated to an officer nor the contractor. Charter, art. 6, sec.' 15; Welty on Assessments, sec. 283; Elliot on Streets, p. 381.

— Rom. Jno. A. II och-ad ay, Judge. (1) (a) The petition to the county court, which is the first jurisdictional prerequisite, is fatally defective. Section 9414 has not been complied with.

Louis City Circuit Court. — Ho». W. B. Douglas, Judge. (1) The general rule that neither contribution nor indemnity will be given to one of several tortfeasors against the others is only applied in cases of intentional and conscious wrongdoing; if the tortious act was committed without guilty intent, or if the plaintiff without personal fault has been exposed to liability, because of his responsibility for the acts of the actual wrongdoer, he can recover contribution from…

Louis City Circuit Court.— Hon. Jno. A. Tatty, Judge. • (1) An officer of St. Louis can be removed from office only for cause on a trial with, notice and an opportunity to be heard and defend, and one having an annual salary or a definite term of service is an officer of the city of St. Louis, and it makes no difference whether the office is created by the charter or by an ordinance.

Louis County Circuit Court. — How. Jno. W. McElhinney, Judge.

— How. David H. Way, Judge. (1) Plaintiff failed to show title in himself to the piece of ground in controversy. Plaintiff must recover, if at all, on the strength of his own title, or right to possession, and can not recover on the weakness of defendant’s title.

— -Row. E. M. Hughes, Judge. (1) Plaintiff is not barred from contesting the will after tbe lapse of a period of five years, for the reason tbat sbe is a married woman. Sec. 4624, R. S. 1899; Linville v. Greer, 165 Mo. 380; Rosenberger v. Mallerson, 92 Mo. App. 27. Section 4622 confers tbe right to contest and section 4624 limits this time to five years, except as to married women, giving them until tbe disability of coverture is removed. Hughes v. Burriss, '85 Mr. 660.

— How. Henry G. Riley, Judge. Transferred to st. louis court of appeals. The judgment against Flora C. Gawronski being rendered against her while a minor, without a guardian, is voidable, and with the allegation of the guardian that she had a good defense, should have been vacated by the court. The court will establish or vacate a voidable judgment at the option of an infant. Townsend v. Cox, 45 Mo. 401. The judgment rendered in this case was irregular.

Appeal-from Jackson Circuit Court. — if on. Echo. P. Gates, Judge.

— Hon. Jps. D. Perkins, Judge. (1) Tlie occupancy of the premises involved in this suit by defendant without any objection on the part of plaintiff did not constitute him a tenant at will of plaintiff. It was not the duty of plaintiff to protest against the wrongful entry of defendant upon its lands, and even though plaintiff may have endeavored to collect rent from defendant and failed, that would not constitute him a tenant at will of plaintiff.

Louis County Circuit Court. — How. Jno. W. McElhinney, Judge. (1) The city is not an insurer of the safety of travellers on the streets. It is not liable unless the street was in a condition unsafe to be used by persons exercising ordinary care in traveling thereon. Buckley v. Kansas City, 156 Mo. 16; Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 115 Mo. 317.

Louis City Circuit Court. — Eon. O’Neill Ryan, Judge. (1) There was no evidence of negligence upon the part of defendant’s employees. There was no reliable evidence that the rate of speed was excessive. Guyer v. Railroad, 73 S. W. 584. The motorman could not see the pole extending behind-the wagon. No causal relation is shown between the alleged defect in the brake and the injury.

— Ho». Jno. W. Mc-EThinney, Judge. (1) The facts stated in the petition show a trust created in 1882 by plaintiff, C. W. Holtschneider and his wife Regina as trustees. Padfield v. Padfield, 72 111. 322. Where a person arranges with his debtor to hold the money for a specific purpose a trust is created. Eaton v. Cook, 25 N. J. Eq. 55; In re Soulard, 141 Mo. 659; Pitts v. Weakly, 155 Mo. 134.

— Now. Gallatin Craig, Judge. Transferred to Kansas citt court of appeals. (1) The court erred in sustaining defendant’s motion to dismiss for the reason that the ordinance upon which suit was brought was a valid ordinance, notwithstanding the exception contained therein. City of Lamar v. Weidman, 57 Mo. App. 507; R. S. 1899,' sec. 5978; City of Aurora v. McGannon, 138 Mo. 38.

— Hon. J. H. Slover, Judge. The contract as brought back by McLaughlin to appellant was not the contract that left appellant to be taken by McLaughlin to Mrs. Cable to be signed. If that was all the contract that Mrs. Cable would agree to and sign, then there was no agreement between Jones and Mrs. Cable for the sale and purchase of the lot. The minds of the parties never met on this transaction.

Louis City Circuit Court. — Non. O’Neill Ryan, Judge. Common sense and not rules of grammar is what is wanted in the interpretation of wills. Held: that the word “between” was a mistake of the writer of the will, and that the true intent and meaning of the testator would be carried out notwithstanding the inaccuracy.

Louis City Circuit Court. — Ho». Se'lden P. Spencer, Judge. (1) Where there is evidence to support the referee in his finding of facts, this court will not disturb such finding. Tufts v. Latshaw, 172 Mo. 359; Bank v. Donnell, 172 Mo. 384. (2) The court properly overruled plaintiff’s second exception to the referee’s report, relative to the authority of the architect.

— No». J. H. Slover, Judge. (1) There is no misrepresentation of fact in the statement of defendant upon which this action is founded. The language relied upon as constituting the fraud for which defendant should respond in damages, namely, “a note is secured by chattel mortgage on certain stuff, ” is probably as common an expression as any used by persons engaged in trade.

Louis County Circuit Court. — Soto. ■Jno. W. McElhinney, Judge.

— No». Jas. T. Neville, Judge. (1) A sale before the debt is due is void. Long v. Long,- 79 Mo. 644; Eitelgeorge v. Assn., 69 Mo. 55. By a foreclosure of a deed of trust the legal title passes to the purchaser, although the sale thereunder may be irregular as not to extinguish the mortgagor’s equity of redemption. Long v. Long, 141 Mo. 352.

—Hon. N. M. Shelton, Judge. (1) The petition avers plaintiff is a “creditor” and states the facts out of which the indebtedness arose. It also states the facts that as plainly show that now she is also a “purchaser subsequent” under a deed confirmed by the will of her father, deceased. The petition shows she is a daughter, but bases no claim to relief on that fact as an heir.

Louis City Circuit Court. — No#. N. D. Wood, Judge. (1) Abutting owners are entitled to compensation for damages to their property, occasioned by the construction and operation of railroads.in public streets, when the railroad is not constructed upon the grade of the street. Sherlock v. Railroad, 142 Mo. 183; Tate v. Railroad, 64 Mo. 158; Cross v. Railroad, 77 Mo. 322; Smith v. Railroad, 89 Mo. 24; Knapp-Stout & Co. v. Railroad, 126 Mo. 135.