Volume 190 — Missouri Reports

— Hon. Jos. D. Perkins, Judge. (1) The court erred in overruling defendants’ demurrer to the evidence. The case alleged was not proved.

— No». E. B. McKee, Judge. (1) The administrator’s sale was void. No petition for the order of sale was ever presented to the probate court. The pretended petition presented was the same as no petition and was not legal and was null and void as the same was not sworn and subscribed to, and no jurat affixed, and no seal affixed. Sec. 147, R. S. 1899 ; Jarvis v. Russick, 12 Mo. 63; Bompart v. Lucas, 21 Mo. 598; Pryor v. Downey, 50’ Cal. 388.

— Eon. W. W. Graves, Judge. (1) Appellant’s demurrer to the evidence should have been sustained, (a) There is no proof that the place in question was a public street of tbe city. Down-end v. Kansas City, .156 Mo. 60. (b) Even if it was a public street, the undisputed evidence shows that there was a perfectly safe sidewalk and crossing, at the proper and ordinary place, and within a few feet of the place where the plaintiff desired to cross.

<p>1. INSANE PERSONS: County Charge: Recovery By County. Where a person has been adjudged insane and indigent and therefore supported by the county at an eleemosynary institution, and the guardian and curator of such person, while she is so supported by the county, recovers for her and in her name certain property, the county cannot recover from her curator and guardian; nor from her estate, the amount of the property by him so recovered, in payment to the county for money by it spent in her maintenance. An action of that character can be maintained only against the parent responsible for her support.</p> <p>2. -: -: -: From Curator: Statute. Neither at common law nor under 'the statute can the county recover from the guardian and curator of an insane person, personally or as the representative of her estate, money by it expended in maintaining the ward at a poor farm or an asylum, unless that curator is her parent and she a minor. The statute allowing a recovery by the county “from any person who, by law, is bound to provide for the support and maintenance of such person” has reference to parents of minor insane children.</p>

<p>1. SCHOOL: Organization of District: Incorporated Village. It is not necessary for the organization of a village school district that the village be incorporated. The statute no longer so requires.</p> <p>2. -: -: Plat. It is not necessary in order to organize a common school district into a village school district that there be a recorded plat of the village. '</p> <p>3. -: -: Withdrawing Notice. Where proper petition was filed and legal notice given to the voters for the organization of a common school district into a village school district, the legality of the organization of the village school district by the voters who responded to the notice, elected a chairman, voted “for organization,” elected directors, etc., is in nowise affected by the fact that two of the directors after the notices had been posted met and ordered the notices withdrawn and put up other notices to that effect, and took down the prior notices. Upon the filing of the proper petition, the law imposed on the board the purely ministerial duty of ordering an election and giving notice thereof, and in the performance of that duty they were invested with no discretion, and having given it the matter passed into the hands of the voters of the district.</p>

Louis County Circuit Court.— Hon. John W. McElhinney, Judge. (1) The court erred in. overruling the several motions to elect filed by appellant. The petition being in a single count, contains two distinct causes of action. Post v. Campan, 42 Mich. 96.

— Ho». Wm: L. Jarrott, Judge. (1) The failure to give the statutory signals at the street crossing entitled plaintiffs to recover, unless their child was guilty of contributory negligence. Hanlon v. Railroad, 104 Mo. 381; Lloyd v. Railroad, 128 Mo. 595; Lamb v. Railroad, 147 Mo. 171; Sehmett v. Railroad, 160 Mo. 43; Reed v. Railroad, 80 S. W. 921.

<p>1. WILL: Undue Influence: Proof. Undue Influence need not be shown by direct proof, but may be inferred from facts and circumstances. It may be shown by the relations of the parties, the mental condition of the testator, the character of the transaction, and the interest in the will of the party charged with exercising it.</p> <p>2. -: -: -: Question for Jury. It is held in this case that the question of whether the will was the result of undue influence exercised upon the testatrix by the trustee should have been submitted to the jury.</p> <p>3. -: -: The Evidence. The defendant, a weak, delicate woman, very deaf, suffering at times with nervous exhaustion, possessed of about $350,000 worth of property, advised with defendant about her important business affairs and always in private. She had seven years before made another will, in which she made the defendant and another, who died four years later, trustees, and by which she gave one-half her property to her son absolutely and the other half to her daughter absolutely, with the reservation for cross-remainders to the children of the other in ease either died without issue. By this, she gave her entire estate to the defendant as trustee, not only for her children, but for their children and grandchildren that might be born during their lives, to act without bond, and with full power to' appoint his successor by deed or will, and unlimited power of disposition and reinvestment of the fund. The will was prepared by defendant’s lawyer from memoranda furnished by defendant and written by defendant, and there is no evidence that testatrix ever saw the memoranda. The lawyer, guided thereby, drew the will, and upon that draft defendant wrote material alterations, which were incorporated in the final draft. The lawyer had never seen the testatrix, and defendant at the time told him that she had no confidence in her son or son-in-law, and wanted a spendthrift trust as to both of them, whereas the evidence shows that she was very fond of her children and their children. Defendant further told him that in case the son died unmarried and without children he wanted the property to go to defendant’s wife. When the will was to be executed defendant and testatrix came to the lawyer’s office together, she produced the will, defendant retired, testatrix signed it and it was witnessed by the lawyer and his stenographer, then defendant returned, and he and testatrix went away together. The material differences between the will and the one executed by testatrix seven years before, when she was stronger in mind'and body, were suggested by defendant’s memoranda. There was no evidence that testatrix ever read the will or that she ever spoke to either of her children or to any other friend about .having made it, and defendant did not testify. Beginning three years prior to the execution of the will and till her death five years thereafter, she became appreciably less able each year to follow her own inclinations. Held, that this was substantial evidence that the will was not her will, and that it was obtained by the undue influence of defendant, and the court erred in directing a verdict for proponents.</p> <p>4. -: -: Explanation. Where such facts are proved as will authorize a jury to find the existence of undue influence, the burden shifts to the person who exercised it, and it devolves upon him to exonerate himself from the charge, in like manner as in case of fiduciary or confidential relations.</p>

Charles Circuit Court. — Hon. E..M. Hughes, Judge. (1) The motions to elect should have been sustained. The petition blends causes of action arising ex delicto with causes of action arising ex contractu. The Vigilant Watch Ordinance could only be passed under the power of the city to contract. City charter, art. 10, secs. 1,2. It could not be passed under its power to legislate. City charter, art. 3, sec. 26; Fath v. Eailroad, 39 Mo.

— No». IS. C. Timmonds, Judge. (1) It was originally a question whether county warrants ever drew interest or not. And the authorities are not now unanimous that they do. 1 Dillon’s Mun. Corp. (4 Ed.), sec. 506; 4 Am. and Eng. Ency. Law (1 Ed.), 362.

<p>Appeal from Barton Circuit Court. — Now. N. G. Timmonds, Judge.</p>

— ífo«. A. M. Woodson, Judge. (1) Pull faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. U. S. Constitution, art. 4, sec. 1; Hanley v. Donaghue, 116 U. S. 1; Huntington v. Attrill, 146 Ü. S. 657; Harbin v. Chiles, 20 Mo. 314; Crim v. Crim, 162 Mo. 544. (2) It is proper for a trial court to render judgment on the opening statements of counsel where such statements contain admissions warranting such action.

— Son E. M. Hughes, Judge. (1) The price paid was grossly inadequate. Judge Kendall’s testimony would place the value of the farm at $6,600. Mr. Mudd himself says he would not take $6,000 for it. Wanted it, he said, for his grandson.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. (1) The uncontradicted testimony shows that the so-called “Sidewalk,” which plaintiff alleges was out of repair at the point where he was injured, is no city sidewalk at all, but a mere foot-worn dirt pathway running along the uneven surface of the soil; it was never undertaken to be graded, altered or improved by the city, but left in its original state of nature.

— .How. J'no. P. Butler, Judge. (1) Notwithstanding appellant was a trespasser and guilty of contributory negligence, the railroad company is still liable for the injury, if it saw, or by the exercise of ordinary care could have seen, the dangerous position he was in, in time to have averted the calamity. The law is well settled in this State that the party who has the last fair opportunity of avoiding the accident is not excused by the negligence of any one else.

<p>1. APPEAL: Dismissal: Abstract. Where appellant wholly fails to file an abstract of the record and the purported complete transcript does not contain all the evidence adduced before the referee and the trial court, the appeal will be dismissed for failure to comply with Rules 13 and 14.</p> <p>2. -: -: Transcript: Books. In a suit for an accounting between partners, if the complete record does not contain the books and documentary evidence introduced at the hearing before the referee, the appeal will be dismissed.</p> <p>3. -: —;-: -: Abstract. Even though there were a complete transcript a failure to comply with Rules 12 and 13 which require appellant to prepare an abstract of the record in which is set forth so much of the record as is necessary to a full understanding of all questions presented to this court for decision, will result in the dismissal of the appeal. Appellant cannot proceed upon the theory that the Supreme Court will read the complete transcript when no abstract of the record has been furnished it.</p>

Louis City Circuit Court. — How. Franklin Ferriss, Judge. (1) No one can gain title to plaintiff’s property through, or because of a lack of defendant’s diligence in protecting it. Adverse possession of it gives no title to it. Railroad v. Totman, 149 Mo. 657. Plaintiff can not dedicate its railroad ground to the city and keep it at the same time. A dedication of the whole system would be void.

— Hon. Jno. W. Wofford, Judge. (1) All of the evidence concerning Bailey’s relations with the Biggs woman, concerning the difficulties with other men previous to the shooting, and concerning Bailey’s statements in regard to the proper management of the strike, was incompetent and the court erred in admitting it. 1 Bish. New Or. Proc. (4 Ed.), sec. 1120; State v. Spray, 174 Mo. 569.

— Ron. Jno. W. Wofford, Judge. (1) The court erred in not sustaining the motion to quash because the information is not legally verified, the purported affidavit being without venue and without seal. Barhydt v. Alexander, 59 Mo. App. 192.

— How. Benj. J. Casteel, Judge. (1) There being no evidence of murder in the first degree, the giving of instruction upon that offense was .tantamount to the court’s telling the jury that there was some evidence of murder in the first degree which necessarily would have the effect of prejudicing the defendant’s rights. Bishop, Criminal Procedure (3 Ed.), 980; Parker v. State (Tex.), 3 S. W. 100. (2) The admission of the alleged dying declaration was fatal error.

Louis City Circuit Court. — Eon. E. D. Wood, Judge. (1) “In trials at common law, the jury are the proper judges of damages, and where there is no certain measure of damages, the court, ordinarily, will not disturb their verdict, unless on grounds of prejudice, passion or corruption in thé jury.” 2 Greenleaf on Evidence, sec. 255; Boggess v. Railroad, 118 Mo. 338; Dowd v. Air Brake Co., 132 Mo. 579'; 1 Graham & Waterman’s New Trials, 452.

— Row. Frank R. Bearing, Judge. (1) Without the plats this court cannot intelligently decide this case, and will not place the trial court in the wrong unless all the evidence necessary to a complete determination of the cause has been preserved and incorporated by appellant in his abstract. The cause should be dismissed for the further reason that no assignment of error is made in their brief as required by Rule 15 of this court.

— Hon. Jno. T. Moore, Judge. (1) The information does not charge that the alleged burning was done in the State of Missouri. This must be done, if for no other purpose than to show that the situs of the offense is within the jurisdiction of the court. Collins v. State, 6 Tex. App. 647; Robins v. State, 9 Tex. App. 663; State v. Conley, 39 Me. 78; Cook v. State, 20 Fla. 802; Thompson v. State, 51 Miss. 353; State v. Ames, 10 Mo. 743; State v. Walker, 14 Mo. 398.

— Horn. Jno. P. Butler, Judge. (1) It is the well-settled law of this State that one tenant in common cannot purchase an outstanding title or encumbrance and thereby acquire title to the whole against his cotenants. The purchase of such outstanding title by one tenant in common will be deemed to have been made for the benefit of all the cotenants.

— Hon. Jno. P. Butler, Judge. (1) The court erred in refusing to sustain the demurrer to the evidence at the close of plaintiff’s case. Garvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Matthews v. New York, 78 App. Div. 422; Hanscom v. Boston, 141 Mass. 242; Rushton v. Allegheny, 192 Pa. St. 574; Cooper v. Milwaukee, 97 Wis. 458. (2) The court erred in modifying and giving defendant’s instruction 5.

— Hon. W. B. Teasdale, Judge. (1) Tke court erred in giving.defendant’s instructions 2 and 3. If a false representation is made and is relied upon and is a material inducement, it makes no difference that other motives or causes contributed.

— Hon. Geo. F. Longan, Judge. (1) Tlie contractors having invested their money and labor and the Sedalia National Bank, the present owner of the taxbills in suit, having bought the same on the faith of the case of Nevada to use v. Morris, 43 Mo.

— Hem. Jas. II. Slover, Judge. (1) Plaintiff’s own. carelessness created the necessity for stopping the car. If plaintiff had been giving proper attention to the work he was engaged in performing, he would not have uncoupled the car from the engine and kicked it down the track until he knew that the track was ready to receive it, and the situation would never have arisen calling on him to decide whether he would chase the car and recouple it to the engine.

Louis City Circuit Court.— Hon. Jesse A. McDonald, Judge. Section 2637, Bevised Statutes 1899, provides, among other things, that no person on trial shall he required to testify; that any such person may at his option testify in Ms own behalf, and ‘ ‘ shall be liable to cross-examination as to any matter referred to in his examination in chief and may be contradicted and impeached as any other witness in the case. ’ ’ If ever a record filed in this court presents a flagrant…

Louis Court of Crimina] Correction.— Eon. Hiram N. Moore, Judge. (1) The production, sale and distribution of dairy products is a legitimate and lawful occupation or business, conducted as a matter of right and not as a privilege.

Louis Court of Criminal Correction. — Row. Hiram N. Moore, Judge. (1) No motion was filed to require the information or statement to charge separately the various grounds upon which it alleges that defendant violated the several and severable provisions of section ten of ordinance 20808; nor was any objection taken that they were commingled in one count; and the motion to quash and the order sustaining the same go to the statement as an entirety.

Louis Court of Criminal Correction. — How. Hiram N. Moore, Judge.

<p>CREAM: Percentage of Fat: Police Regulation. Following the reasoning and conclusions reached in St. Louis v. Liessing, ante, page 464, it is held in this case that ’an ordinance of the city of St. Louis which imposes a fine upon any vendor of cream which contains less than twelve per cent butter fat, is a reasonable police regulation, and does not violate any provisions of the State or Federal Constitution.</p>

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. Ordinace 20808 is unconstitutional and void in that it violates sec. 4, art. 2, and sec. 30 of art. 2 of the Constitution of this State, and deprives defendant of his natural right to life, liberty and the enjoyment of the gains of his own industry, and of his property and liberty without due process of law.

Louis Court of Criminal Correction.— Hon. Hiram N. Moore, Judge. (1) The production, sale and distribution of dairy products is a legitimate and lawful occupation or business, conducted as a matter of right and not as a privilege. Unusual and arbitrary restrictions cannot be lawfully imposed upon it by ordinance.

Prohibition. (1) The attempt of respondent to restrain or coerce the action of the common council upon the ordinancesin questionis a plain usurpation of the legislative functions of government, contrary to the provisions of the Constitution. A clear line of demarcation between the several departments of government has been drawn by numerous decisions of our Supreme Court, and any attempt of one to impinge upon another has been readily and severely denounced.

Mandamus: (1) The Constitution recognizes preferred stock, hut provides that it shall not he issued without the- consent of all the stockholders. Art. 12, sec. 10. This requirement is complied with in the case at har. (2) At common law, it was well recognized that the voting power might he withheld from the preferred stock and vested exclusively in the common stock.

Prohibition. The acts of judges of primary election in receiving and counting ballots are ministerial. “The writ of certiorari is appropriate only to review the judicial… Held: in a dramshop license case, that although no remonstrance was filed in the county court, tax-paying citizens who did not sign the petition for the license, should, in the sound discretion of the court, be permitted to make application for a writ of certiorari to test the legality of the license.

Louis City Circuit Court. — Hon. D. D. Fisherf Judge. The court below erred in not giving the instruction asked by defendant at the close of the plaintiff’s evidence in chief, directing a verdict for the defendant. It sufficiently appeared from the evidence offered on behalf of plaintiff that the only negligence shown against the defendant was excessive speed and the failure to ring the bell.

Louis City Circuit Court. — Hon. Franklin Ferriss, Judge. The court erred in overruling defendant’s demurrer to plaintiff’s evidence in chief.

— Hon. P. G. Stepp, Judge. (1) This is an equitable proceeding. Miller v. Ins. Co., 68 Mo. App. 19. (2) The court erred in its conclusions of law. Neither the indorsement of the certificate nor any other fact in evidence warranted the conclusion that Burlinggame held it in trust for Mrs. Miller, or that said deposit belonged to Mrs. Miller or was held in trust for her by said bank or said Burlinggame.

<p>Transferred from Kansas City Court of Appeals.</p> <p>The court erred in giving interpleader’s tlireefonrths verdict instruction. Grirdner v. Bryan, 67 S. W. 699; R. S. 1899, sec. 1657; Boling v. Railroad, 67 S. W. 937; Watkins v. Edgar, 68 S. W. 87; Const., art. 15; Edwards v. Lesueur, 132 Mo. 433; 6 Am. and Eng. Ekcy. Law (2 Ed.), 904; State ex rel. v. Powell, 77 Miss. 571.</p> <p>There was no constitutional question raised or passed upon by the trial court in any manner whatever, and the question cannot be raised for the first time in the appellate court by brief of counsel. Town of Kirk-wood v. Johnson, 148 Mo. 632; Hulett v. Railroad, 145 Mo. 35; Browning v. Powers, 142 Mo. 322; Long v. Callaway, 134 Mo. 491; Turley v. Barnes, 130 Mo. 548; Bennett v. Railroad, 105' Mo. 642; Baldwin v. Pries, 103 Mo. 286; Railroad v. Seifert, 41 Mo. App. 35; Van Sandt v. Hobbs, 153 Mo. 655; , St. Louis v. Brown, 155 Mo. 545; Coleman v. Cole, 158 Mo. 258; Parlin & Orendorff Co. v. Hord, 145 Mo. 119'; Kirkwood v. Meramec Highlands Co., 160 Mo. 118; Clark v. Porter, 162 Mo. 523; Kansas City v. Baird, 163 Mo. Í96.</p>

— Hon. W. K. James, Judge. (1) Insanity is shown by proof of acts and conduct inconsistent with the character and previous habits of the party. McCurry v. Hooper, 12 Ala. 823. (2) Senile dementia is a distinctive form of insanity which incapacitates the party to such an extent as to destroy his capacity to make a will.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The court erred in refusing to give appellant’s requested instruction in the nature of a demurrer to the whole evidence, (a) The evidence tended to show that, if guilty at all, appellant was guilty of another and different offense than that with which he stood charged.