Volume 198 — Missouri Reports

— Row. R. W. Johnson, Judge. (1) The demurrer to plaintiff’s evidence should have been sustained, (a) There was no evidence of the appointment or qualification of a curator to maintain the suit, or that the suit was prosecuted by a curator. Porter v. Railroad, 60 Mo. 160; Casler v. Chase, 160 Mo. 424; Cohn v. Railroad, 382 Mo. 577. (b) If plaintiff or his fellow-servant, Davis, had looked or listened for the car it could have been seen and the injury would have been averted.

Louis County Circuit Court . — Hon. ■ Jno. W. MoElhin/ney, Judge. (1) The State failed to indorse upon the indictment the names of twenty-nine of its important witnesses, most of whom were known to it before the indictment was found. These witnesses were persons who swore to the strongest, and most fundamental and primary, of the facts involved in this case.

— Hon. W. N. Evans, Judge. (1) Section 8 of article 8 of the Constitution should not be construed to disqualify the inmates of a Soldiers.’ Home, but the disqualification should be confined to persons “kept at a poor house,” or some “other asylum” of the same class as a “poor house,” at public expense, upon the principle of ejusdem generis; in other words, the term “other aslyum,” being a general term, following particular words, will be confined in its application to…

Mandamus. An examination of sections 2594 to 2597, as amended, will show that the issue of law herein is reduced to the single proposition: is the St. Louis Court of Criminal Correction a criminal court within the meaning of the statutes?

Louis City Circuit Court.— Hon. II. D. Wood, Judge. (1) The authority of plaintiff, as public administrator, to administer the estate and to maintain this action, is not open to collateral attach; the probate court alone has jurisdiction-in a direct proceeding to question his power. Leeper v. Tayior, 111 Mo. 312; Vermillion v. Le Clare, 89 Mo. App. 55. (2). Letters of administration have no extra-territorial force.

<p>Appeal from St. Lonis City Circuit Court. — Ho». Franklin Ferriss, Judge.</p>

<p>APPELLATE JURISDICTION: Constitutional Question. Tbe Supreme Court does not obtain jurisdiction of an appeal by an averment in the pleadings that a former decision of the Court of Appeals in the same cause, in construing certain statutes, was in violation of the Federal and State constitutions. A constitutional question cannot be raised in that way.</p>

Louis City Circuit Court. — Eon. Jesse A. McDonald, Judge. The court erred in overruling appellant’s demurrer to the evidence, (a) Because there was no case made by merely showing the happening of the accident, as the doctrine of res ipsa loquitur does not apply in this case. Kimmer v. Webber, 151 N. Y. 417; Bowen v. Railroad, 95 Mo. 268.

— Hon. F. G. Johnston, Judge. (1) The verdict is so clearly against the weight of the evidence, and is so manifestly the result of prejudice and passion, that this court is fully warranted in reversing the judgment and remanding the cause for a new trial. State v. Patrick, 107 Mo. 147; State v. Huff, 161 Mo. 459; State v. Prendible, 165 Mo. 329; State v. Nesenhener, 164 Mo. 461.

— -Now. J. W. Alexander, Judge. (1). The court erred in refusing to grant defendant a continuance, on the ground that the names of the witnesses, Frank Hottman, Nettie Hottman, Bertha Hottman, Ella Hottman and John Hottman, were not indorsed upon the information, and defendant was not otherwise notified that such witnesses were to be used against her till after the jury was impaneled and sworn to try the cause.

— Eon. E. B. McKee, Judge. The court had no jurisdiction to grant the divorce in favor of the defendant against her husband Alonzo H. Gray, and had no jurisdiction to inquire of its jurisdiction in such case, for the reasons: 1st. The order of publication made by the clerk was not signed or attested by him. This is a judicial act and must be attested by the clerk. Wade on Notice, sec. 1062; Hays v. Lewis, 21 Wis.. 667; Charles v. Kelley, 120 Mo. 141; 20 Ency.

— Row. R. C. Timmonds, Special Judge. (1) Wills are ambulatory in character, and every will may be revoked by the maker thereof. Two persons may by contract bind each other to devise or bequeath his property to the other, but such compact is not a will. Edson v. Parsons, 50 N. E. 265.

— Bow. E, B. McKee, Judge. (1) As to right of partition: Hutson v. Hutson, 139 Mo. 229; Hays v. McReynolds, 144 Mo-. 348; Estes v. Nell, 140 Mo. 650; Wo'mack v. Whitmore, 58 Mo. 448; Shaw v. Gregoire, 41 Mo. 407. In order to defeat a partition there must be an ouster or facts showing an ouster. It is not necessary, however, that such adverse possession should have continued the statutory period of ten years. Hutson v. Hutson, 139 Mo. 236.

— Sc». George F. Longcm, Judge. (1) Relator having compromised his claim for fees under the general law relating to fees of justices of the peace, and the compromise having been fully effected, relator cán not now claim fees that were earned prior to February 4' 1902, the date of such compromise. (2) A public officer may accept as full payment less than the amount due under the law for fees for past services and is bound by such acceptance.

— Hon. E. R. McKee, Judge. (1) The law authorizes a man who is compos mentis to make such disposition of his property as he pleases, subject to his debts, if any. The sole issue here is: Was the grantor, Waterman Reed, at the time the conveyance in question was made, mentally incapable of, making it? The burden of proving that issue was upon plaintiffs.

— Eon. R. E. Ball, Special Judge. (1) (a) The will was properly executed and attested. No formal request of witnesses to attest, nor formal declaration by testator that it was his will, was necessary. Testator dictated the will, requested that witnesses be procured, and in their presence signed it, and they attested it in his presence. This was sufficient. Hughes v. Rader, 183 Mo. 701; Martin v. Bowdern, 158 Mo. 389; Schierbaum v. Schemme, 157 Mo. 6.

— Now. Henry C. Riley, Judge. (1) The assessment is invalid for the following reasons: 1st. It was not made at the first annual assessment to he made under the general revenue laws of the State after the district was organized. R. S. 1899, sec. 8441. 2nd.

— lion. Henry G. Riley, Judge. (1) The refusal of the court to give instruction ■3 asked by appellant was error. This instruction directed the jury to disregard plaintiff’s claim for. a ten per cent penalty as damages, and was, in effect, the opposite of instruction 2 given on behalf of respondent.

— Ron. J. W. Alexander, Judge. (1) Statements of ~W. O. Barbee, made in tbe absence of W. L. and Martba J. Barbee, that they had delivered to him a deed to the premises in controversy, were hearsay, and inadmissible in favor of plaintiff, who is privity in' estate with W. O. Barbee.

— No». E. O. Riley, Judge. (1) The right of the surviving partner to settle up the partnership estate existed at common law and has never been taken away from him by statutes of this State; consequently, it remains in full force, and he may proceed to wind up the partnership estate without administration or any action of the probate court. At common law the title to all partnership property is invested in the surviving partner for this purpose.

— Hon. Wm. A. Davidson, Judge. (1) The court erred in overruling defendant’s demurrer, offered at the close of the plaintiff’s evidence and renewed again at the close of all the evidence. When a petition charges negligence specifically, the acts, or some one of them, constituting the charge of negligence, must be proven, and, unless proven, the verdict, for the plaintiff cannot stand, even though the petition be founded on the relation of carrier and passenger.

— lion. Frank R. Bearing, Judge. (1) The case falls under section 2864, Revised Statutes 1899. Miller v. Railroad, 109 Mo. 361; Sullivan v. Railroad, 97 Mo. 113; Rinard v. Railroad, 164 Mo. 270. (2) The right to bring an action of this sort is founded upon the relation of parent and child and not that of master and servant; it is the right of the father and mother or father or mother to recover damages which the son might have recovered had he survived the injury.

Louis City Circuit Court. — Row. Jesse, A. McDonald, Judge. (1) The court below having found that the deed of trust to defendant Braske was given to secure a bona-fide debt, it was error to set it aside unless actual fraud on part of defendant Braske was shown. Nat. Tube Works v. Ring, 118 Mo. 365; Bank v. Worthington, 145 Mo. 99; Ridge v. Greenwell, 53 Mo. App. 479; Runbolds v. Parr, 51 Mo. 592; Steinwender v. Creath, 44 Mo. App. 363; Peering v. Collins, 38 Mo.

Louis County Circuit Court. — No». Jno. W. MeElhinney, Judge. (1) The court erred in refusing to give defendant’s instruction in the nature of a demurrer to the pleadings and evidence, which was offered by defendant at the close of plaintiff’s evidence, and again at the close of all the evidence in the ease.

Louis City Circuit Court — Now. Walter B. Douglas, Judge. (1) One who testifies as a witness in his own behalf is conclusively bound by his deliberate admissions from the witness stand. Cogan v. Railroad, 73 S. W. 738; Shirts v. Overjohn, 60 Mo. 305. Where the facts showing the contributory negligence are testified to or admitted by plaintiff himself, the question is not one for the jury. Davis v. Railroad, 159 Mo. 1.

<p>1. NEGLIGENCE: Perilous Position: Boy on Track: Vigilant Watch: Stopping Car: Warning. A boy, seven years old, approached from the north a street car track at a street crossing, and seeing an east-bound car coming, stopped on the westbound track for it to pass, and remained standing on the westbound track until the car had stopped, discharged and received passengers, and started, and just as it got by, a west-bound car struck him and threw him over on the east-bound track, where he was found 20 or 25 minutes later. There was a good light near by, and besides the time was about 6:30 of an October evening. Meld, first, that there was ample evidence that the boy was in a position of peril for sometime before he was struck, that defendant’s servants failed to keep a vigilant watch, and that the motorman either saw or by the exercise of ordinary care could have seen the boy on the track in time to have stopped the car, running eight or ten miles an hour, before striking him; second, the failure to ring the bell or give other warning was negligence and a lack of ordinary care; and, third, the court properly overruled a demurrer to the evidence.</p> <p>2. -: Contributory: Not Pleaded. Contributory negligence must be pleaded to be of any avail as a defense.</p> <p>3. -: : -: Instruction: Humanitarian Doctrine. If the facts upon which an instruction correctly embodying the humanitarian doctrine was based were found by the jury, contributory negligence was immaterial and no defense.</p> <p>4'. -: Instruction: Inapplicable. An instruction asked by defendant explaining the meaning of the Vigilant Watch ordinance, wholly inapplicable to facts of the case, should be refused.</p> <p>5. -: -: Accident: No Evidence. Where there was no evidence of mere accident or misadventure, but the whole case tendered by the pleadings and the evidence was whether or not the defendant was negligent, the court should refuse an instruction, asked by defendant, to the effect that if the jury believed that the plaintiff’s injuries were due to mere accident or misadventure, for which neither party was responsible, then they must find for the defendant. Instructions should be confined to the issues and the evidence.</p> <p>6. -: Loss of Earnings: Seven-Year-Old Child: No Evidence. The evidence shows that the plaintiff was a seven-year-old boy; that both bones of his right leg were broken; that his leg was permanently crooked as a result of the injuries; and that he had suffered concussion of the brain, which rendered him unconscious for nine days and affected his nervous system. Held, that there was evidence that his earning capacity had been impaired, and that it was for the jury to determine whether or not, under a carefully-drawn instruction which directed an award for loss of earnings after plaintiff should reach twenty-one years of age, plaintiff would be able to perform certain kinds of labor, and what his loss from that inability would be.</p>

Louis City Circuit Court. — Row. John A. Blevins, Judge. (1) The requirements of the Code, section 592, that a plaintiff’s petition shall contain a plain and concise statement of the facts constituting his cause of action, does not affect the fundamental requirements of good pleading, but only the form of such pleading. Sid-way v. Stock Co., 163 Mo. 372; Ruebsam v. Railroad, 108 Mo. App. 437.

— How. Samuel Davis, Judge. (1) Plaintiff’s instructions 1 and 2 are not supported by the evidence. They assume as a fact proven a fact which is in controversy, and are erroneous. Thompson v. Botts, 8 Mo. 710; Comer v. Taylor, 82 Mo. 347; Siegrist v. Arnot, 10 Mo. App. 209; Dowling v. Allen & Co., 88 Mo. 296; Bank of North America v. Crandall, 87 Mo. 212; Kenney v. Railroad, 74 Mo. App. 310.

<p>APPELLATE JURISDICTION: Title to Real Estate: Execution Against Land. A suit to enjoin a sale of real estate under execution, upon the ground that- such a sale would east a cloud upon the title, is not a case involving title to real estate within the meaning of the clause of the Constitution which gives the Supreme Court jurisdiction of appeals in cases involving title to real estate.</p>

Louis City Circuit Court.— Hon. Jesse A. McDonaldJudge. (1) There is not a single word in the title that would direct the mind to- the question of making such a contract lawful.

— Hon. E. B. McKee, Judge. (1) It is the duty of the trial court, when a summons has been issued and returned, and the return shows that part of the defendants have not been served, but the officer returns his summons non est, to make an order for publication notifying such defendants as required by law. R. S. 1899, sec. 577.

Transferred from Kansas City Court of Appeals. (1) Instruction 1 for plaintiff is misleading, does not declare the law, and was not based upon the evidence. It proceeds entirely upon the theory that the company is liable unless it maintained a gate at the alleged farm crossing, fastened by a latch or hook.

Louis City Circuit Court.— Hon. John A. Blevins, Judge. (1) The petition states a good cause of action under the' law as laid down in the rule, and the proof supports the allegations. It is alleged that the defendant could have readily foreseen the danger they were subjecting plaintiff to and also that the defendant’s agents and servants took no steps to prevent the injury to plaintiff. The proof supports this allegation.

— How. Argus Cox, Judge. (1) Evidence of Mrs. Sally’s pecuniary condition at and prior to tbe time of the trial was erroneously admitted. Bice v. Sally, 176 Mo. 140; Bitter v. Bank, 87 Mo. 574; State v. Brassfield, 81 Mo. 151; Hold-berg v. Hahn, 76 Mo. App. 501; Gorham v. Auerswald, 53 Mo. App. 131. (2) Instruction 1, given for the interpleader, was erroneous: (a) Because it assumes the truth of a controverted fact.

Louis County Circuit Court. — Eon. John W. McElhinney, Judge. (1) It is error to admit testimony of a witness as to the value of land taken, or the amount of damages to the land not taken, where it appears that the witness does not know the market value of the land in question. Railroad v. Stewart, 50 Kan. 33; Gorgas v. Railroad, 114 Pa. St. 1; Railroad v. Gilchrist, 4 Wash. 509; Railroad v. Easley, 26 Pac. 731; Railroad v. Pearson, 35 Cal. 260.

Louis City Circuit Court.— Hon. John A. Blevins, Judge. (1) Plaintiffs cannot recover under the 1st section of the Attorneys’~Lien act, beeaust it is neither alleged nor proved that the suits compromised hy this defendant had been reduced to a verdict or judgment,' as the lien given by that section is not perfected until the cause of action has been reduced to a verdict, report, decision or judgment.