Volume 208 — Missouri Reports

— Now. N. N. Eby, Judge. (1) The demurrer to plaintiff’s evidence should have been sustained. If plaintiff has failed to prove by substantial evidence any one or more of the necessary allegations of her petition, she has failed to make a case. In a case of this kind a verdict and judgment may not stand upon mere conjecture or guess. Moore v. Railroad, 28 Mo.

— Hon. Shannon ■ G. Douglass, Judge. (1) Upon the face of the record the judgment is erroneous. There was no finding of facts upon which to base the judgment. It is well settled that the facts upon which a decree in equity is based must be found by the court. Labarge v. Chanvin, 2 Mo. 177; Robertson v. McCune, 128 Mo. 577. (2) Plaintiffs are not entitled to maintain a multiplicity of suits for the same subject-matter.

Louis City Circuit Court. — Row. O’Neill Ryan, Judge. (1) Plaintiff’s position is that the street in question was, at the time of the passage of the ordinance relied upon by defendant, a public highway, the property of the State, and held by the city of St. Louis only as trustee; that the provision of the charter, giving to the Municipal Assembly the power to “vacate, alter, widen, extend, or pave,” was only intended for the improvement of the use of the street for public…

Louis City Circuit Court. — Ron. Warwick Rough, Judge. The contract sued on is a written one. Our action 7 is not based on any promise of Mr. Clark to' the agent v Bates~made verbally to pay the debt to the Beattie Manufacturing Company, or rather to pay an amount X, of this debt equal to $10,000, the deposit in his hands. Our cause of action is based on the written contract en- 1 ,tered into by Clark and the Gerardis.

— Row. A. R. Waller, Judge. Cl) The trial court erred in admitting in evidence, over plaintiff’s objections and exceptions, the quitclaim deed from Jas. W. Green, to Margaret J. Kimball. This deed had never been recorded, not even at the time of the trial, and it was, therefore, no notice whatever to plaintiff.

Habeas Corpus.. (1) It appears from the petition and return that petitioner was convicted' without a hearing. The petition alleges that petitioner was denied a hearing, and the judgment fails to recite a hearing. Every valid judgment recites a hearing, and the validity of the commitment depends entirely upon the judgment. There can be no commitment without a valid judgment. Ex parte Arnold, 128 Mo. 256; Ex parte 0 ’Brian, 12.7 Mo. 477; People ex rel. v. Baker, 891 N. T. 460.

Mandamus. It is the contention of relators that the General Assembly of 1907 created and established the “Missouri State Sanitarium Fund,” and made proper appropriation for the support of this institution by section 27a, Laws 1907, page 37.

— Hon. A. D. Burnes, Judge. Information acquired by a physician or a surgeon from a patient while attending him in a professional character, and which information is necessary in order to enable him to prescribe for such patient, is incompetent evidence when objected to by the plaintiff. R. S. 1899, sec. 4659; Smoot v. Kansas City, 92 S. W. 363; Hayworth v. Co., 94 Mo. App. 215; Weitz v. Co., 53 Mo. App. 39.

— Roto. Louis Hoffman, Judge. (1) (a) It is a uniform, inflexible rule of law that all combinations, the effect of which is to stifle competition in bidding at public or private sales or in the letting of public works, and on principle, in the letting for hire of public moneys, are immoral, vicious and void. In re Salmon, 145 Fed. 652.

<p>Appeal from Pettis Circuit Court. — Row. Louis Hoffman, Judge.</p>

— Hon. H. W. Johnson, Judge. The trial court committed error in granting plaintiffs a new trial because under the pleadings and undisputed evidence in the case the judgment for defendants was for the right party. (1) The undisputed evidence shows that Island No. 63 in the Missouri river, in section 6, township 45', range 3 west, in Warren county, Missouri, did not, at the date of the trial of this case, contain- more than 75' acres.

— Ron. Samuel Davis, Special Judge. (1) The court erred in admitting in evidence the sheriff’s deed in partition to Firmin Desloge, through whom defendants claim title. Benton County v. Morgan, 163 Mo. 675; Westmeyer v. Gallenkamp, 154 Mo. 28; Warner v. Manwaring, 173 Mo. 38; Evans v. Snyder, 64 Mo. 516; Hughes v. Hughes, 72 Mo. 138; Carson v. Hughes, 90 Mo. 173; Stafford v. Adams, 113 Mo.

— Bo». D. B. Eby, Judge. (1) Was the legal existence of defendant school district put in issue? It demanded to be, and was made a party defendant on its application against plaintiff’s consent. It asserts the facts in detail of its organization and legality of it. Plaintiffs must admit or deny it and make the issue by reply. They made the issue under the provisions of section 746, Revised Statutes 1899. School District v. Wallace, 75 Mo. App. 317.

Louis City Circuit Court. — -Sow. John A. Blevins, Judge. (1) The prima-facie case, made out by appellant, wa,s never overthrown by any substantial evidence introduced or offered by the respondents.

— No». A. F. Evans, Judge. (1) Plaintiff, upon the issues as made by the pleadings, was entitled to a jury trial. Constitution, art. 2, sec. 28; R. S. 1899, sec. 691; Kitchen v. Railroad, 59 Mo. 514; Earl v. ITart, 89 Mo. 263; 'Briggs v. Railroad, 111 Mo. 168; Benoist v. Thomas, 121 Mo. 661.

— Now. Charles D. Stewart, Judge. The information shows on its face that it is not signed by the prosecuting attorney, nor by any person for him. The record shows that leave to file the information was asked and obtained by the attorneys for the relator. The prosecuting attorney is on record saying that he will not lend the use of his name for the further prosecution of this suit.

<p>1. NEGLIGENCE: Prima-Facie Case. Where the evidence makes out a prima-facie case, it is the duty of the court to submit the case to the jury.</p> <p>2. -: -: Escaping Steam: To Frighten Children. Where the evidence shows that the engineer permitted steam to escape from his engine for the purpose of scaring children standing on a cinder platform near by, thereby scattering steam and cinders over them and causing them to move backwards, and plaintiff, a child, less than ten years old, in backing away, stepped upon a side track, and was struck by a loose freight car moving thereon, which she did not hear or look to see, a primafacie case is made out for her.</p> <p>3. -: Instruction: In Harmony With Appellant's. A party cannot complain of an instruction which is in harmony with one given at his own request. Appellant cannot complain that plaintiff’s instruction authorized the jury to find for her if they believed that the injury was caused by a defective brake, while the evidence discloses no evidence upon which to base the instruction, if by its own instructions asked and given the same issue is submitted to the jury.</p> <p>4. -: Departure: Wantonness in Petition: None in Instruction. Where there are extravagant statements in the petition, which defendant claims amount to a charge of wantonness, recklessness, etc., yet if the petition in terms also charges negligence, an instruction for plaintiff which bases her right to recover on negligence alone is no departure from the petition.</p> <p>5. -: -: Cured by Defendant’s Instruction. An omission of the element of wantonness, charged in the petition, from plaintiff’s instruction, is cured by instructions given for defendant in which is clearly set forth the element of wantonness.</p> <p>6. -: Trespasser: Wantonness. Where plaintiff, a school girl less than ten years old, went to the station to see her teacher depart on a passenger train, and after the train left continued to stand on the cinder sidewalk, and, when the freight engine on the same (or main) track came down and began to emit steam, retreated backwards to the side track, as the engineer, in amusing himself, expected her to do, and, as a result, was there struck by a loose freight car, she was no trespasser; and, being seen by all the train crew, it is useless, under the circumstances, to consider whether she was injured by the wanton and reckless conduct of the brakeman on the freight car in not sooner stopping the car, or of the engineer in unnecessarily letting off the steam.</p> <p>7. -: Instruction: In Place of Danger. An instruction which tells the jury that if the brakeman “saw the plaintiff on said side track in front of said car in time to have stopped it,” etc., contains words equivalent to “in a place of danger.”</p> <p>8. -: Contributory: Omitted from Instruction. An instruction for plaintiff which ignores the question of contributory negligence is cured by one given for defendant which embraces that issue.</p> <p>9. -: -: Instruction: Comment on Evidence. Instructions which tell the jury that if they find the facts therein stated as constituting defendant’s negligence to be true, then they may take them into consideration in determining whether or not plaintiff was guilty of contributory negligence, are not comments on the evidence.</p> <p>10. -: -: Embraced in One Instruction. It is better practice to submit in one instruction the facts pleaded which constitute plaintiff’s contributory negligence, but there is no valid legal objection to submitting them in different instructions, especially where they do not tell the jury that the recited facts constitute contributory negligence, but that the jury should take them into consideration in passing upon that question.</p> <p>11. -: -: Of Child. The jury should be told that in passing upon the contributory negligence of the injured child, they should take into consideration its age, intelligence, understanding, experience and surroundings. But it is not absolutely necessary that that be done in one instruction.</p> <p>12. -: -: Frightening Child. Where one person negligently frightens another, and such other, while so frightened, is injured, the jury should consider that fact in passing upon the contributory negligence of the injured person.</p> <p>13. -: Measure of Damages to Child. An instruction which tells the jury that in estimating her damages, they should, among other things, “consider to what extent, if any, plaintiff’s capacity for earning a livelihood, after her majority, will be impaired by said injuries, and return a verdict for her in such sum as you believe to be just and reasonable, not exceeding,” etc., does not leave it to the jury to fix the amount of her damages as they may deem just and proper, and is not erroneous.</p>

Transferred from Kansas City Court of Appeals. (1) The letter of March 14, 1900', was not an order for dimension stone. Unquestionably this letter had to do with the contract. It was either an order for stone under the contract, or it was a modification of the contract, either as a matter of law, or as a matter of fact, by the understanding (or the mutual misunderstanding) of both the parties. It was not an order independent of the contract.

— -Non. Jas. H. Slover, Judge. (1) The plea of res judicata was not sufficient under any rule of pleading. One suit in ejectment does not bar a second. Demurrer thereto should have been sustained. (2) In this action the issues were those of the legál title, and right of possession. Plaintiffs were entitled to a jury trial. E. S. 18991, sec. 691. There was no waiver of jury trial. (3) The deed of trust to Case was void as to the children of I). A. N. Grover and Latitia Grover.

— lío». A. F. Evans, Judge. (1) The quitclaim deed was as effectual to convey the title as a warranty deed. It only differs from a warranty deed in affecting the liability of the grantor on his covenants. Chew v. Keller, 171 Mo. 225; Bartlett v. Brown, 121 Mo. 353; Munson v. Ensor, 94 Mo. 504.

— How. PL. G. Pepper, Judge. (1) In suits in equity, the appellate court is not bound to follow the findings of the lower court, but where the evidence is all before the appellate court, it will review such evidence and arrive at its own conclusions, upon the facts. Courtney v. Blackwell, 150’ Mo. 245: Parker v. Vanhoozer, 142 Mo. 621; State ex rel. v. Jarrott, 81 S. W. 879.

Louis City Circuit Court. — Ho». Moses N. Sale, Judge. (1) A stipulation in a renewable lease, calling merely, in general terms, for the insertion in the new lease of “all the covenants” contained in the old, without specific enumeration of the particular covenants, is insufficient to compel the insertion of a covenant for renewal in the new lease, there being a presumption (arising from failure to refer specifically to that covenant), that it was not included in the mere…

<p>Appeal from Vernon Circuit Court. — Row. E. G. Timmonds, Judge.</p>

(1) Upon request made by plaintiffs that the lower court should state in writing the conclusions of fact found separately from the conclusions of law, such request should have been granted. On this subject the statute is-entirely plain and it is mandatory; it applies by its express terms to eases in equity as well as to cases at law. Cochran v. Thomas, 131 Mo. 268; Lawyers’ Co-op. Pub. Co. v. Cordon, 173 Mo. 152; Blount v. Spratt, 113 Mo1. 53.

— No». J. C. Shep-. pard, Judge. (1) The court erred in refusing to give to the jury instruction 1 requested hy defendant. It was the duty of plaintiff to prove that the derailment of- the engine resulted in consequence of the specific negligence charged in the petition. McGrath v. Railroad, 197 Mo. 104; Brown v. L. & Co., 65 Mo. App. 163; Trigg v. Land & Lumber Co., 187 Mo. 227; Harper v. Terminal Co., 187 Mo. 575; Breen v. Cooperage Co., 50 Mo.

<p>Appeal from Butler Circuit Court. — Eon. J. L. Fort, Judge.</p>

— No». Jas. E: Ha-sell, Special Judge. Plaintiff’s right of action was not barred by limitation. See. 4272, R. S. 1899 ; Martin v. Knapp, 45' Mo. 48; Henoch v. Chaney, 61 Mo. 129; Nelson v. Barnett, 123 Mo. 564; Miner & Frees v. Howard, 93 Mo. App. 569. (1) A petition which shows on its face that the action brought is barred by the Statute of Limitations is bad on demurrer.

Louis City Circuit Court.— Hon. H. D. Wood, Judge. (1) The State Board of Equalization had jurisdiction under the provisions of article 8, chapter 149, Revised Statutes 1899, to assess defendant corporation if it was operating a railroad. 1. Section 1163, Revised Statutes 1899, defines a railroad corporation to mean “all corporations, companies or individuals owning or operating a railroad.” 2.

— Row. Jas. T. Ne-ville, Judge. (1) The right to have specific performance of a contract decreed is not a matter of right in either party, but a matter of discretion with the court. 2 Story, Eq., sec. 742; Pomeroy v. Fullerton, 131 Mo. 581; Yeth v. Giertli, 92 Mo. 104. A court will not decree specific performance of contract unless the contract is clearly established. Yeth v. Gierth, 92 Mo. 97; Paris v. Haley, 61 Mo. 453; Taylor v. Williams, 45 Mo. 80.

<p>1. APPELLATE JURISDICTION: Constitutional Question: Lodged in Reply. The constitutionality of section 23 of article 9 of the charter of Kansas City, providing that no objections shall be pleaded or proved in a suit on a special taxbill for a public improvement other than those that have been made in a writing filed with the Board of Public Improvements within sixty days after the issue of the taxbills, was properly raised in plaintiff’s reply to defendant’s answer, although not raised in the answer, instructions or plaintiff’s .motion for a new trial, if the validity of that part of the charter is necessarily involved in a decision of the case.</p> <p>2. -:-: Already Settled. Where the constitutional question has been settled by decisions of the Supreme Court before the appeal was taken, that question does not any longer remain in the case and the Supreme Court has no jurisdiction of the appeal. The Supreme Court will not, in determining to which court the appeal is to be taken, assume jurisdiction of a case on the ground that a constitutional question is involved, where the exact question has been finally settled by its prior decisions. And so, where the suit is on a special taxbill, and the validity of section 23 of article 9 of the charter of Kansas City, providing that no objection to its validity shall be pleaded or proven in court unless incorporated in a written statement filed with the Board of Public Works within sixty days after the taxbill was issued, is properly lodged in the case, and the constitutionality of that section of the charter is the only ground upon which the Supreme Court can take jurisdiction of the appeal, it will transfer the case to the proper court of appeals, since that section had repeatedly been held to be unconstitutional before the appeal was taken.</p>

<p>Appeal from Jackson Circuit Court. — Hem. John G. Park, Judge.</p>

Transferred from Kansas City Court of Appeals. (1) In a proceeding to condemn lands for public use, the title to the property remains in the owner, until the assessed damages are paid to the owner, or into court for the person entitled thereto. Ross v. Kendall, 183 Mo. 347; Kansas City v. Ward, 134 Mo. 172; Thompson v. Railroad, 1101 Mo. 147; State ex rel. v. Lubke, 15 Mo.

Louis City Circuit Court.— Eon. Jas. R. Kinealy, Judge. (1) Defendant can claim no more, at the farthest, than that there was an agreement arrived at on September 5', 1900, based upon a mutual mistake of facts; that is, that the child Bessie Williford was the sole heir of decedent, Cornelius P. Donahoe, and that it was not supposed that the plaintiff was an heir to an undivided one-half interest in the Montgomery street lot in question.

<p>1. COUNTY COLLECTOR. The office of county collector is of statutory, not constitutional, origin.</p> <p>2. -: Expiration of Term. By statute the term of the county collector expires on the first Monday in March.</p> <p>3. -: Vacancy: Tenure. Under section 7028, Revised Statutes 1899, a person appointed hy the Governor to fill a vacancy in the office of county collector, holds the office until the first Monday in March -after the last preceding general election at which his successor is required to he elected.</p> <p>4. CONSTITUTIONAL STATUTE: Sec. 7028, R. S. 1899: Title: Vacancy in Office. The title to the Revised Bill of 1879 on Elections, of which section 7028, Revised Statutes 1899, is a part, entitled, “An act to amend and revise chapter 2, title 2 of the general statutes of Missouri concerning popular elections,” is sufficiently comprehensive to embrace an amendment to said section 7028 giving to the Governor power to fill vacancies in county offices and fixing the tenure of his appointees.</p> <p>5. -: -: -: -: Revised Bill. Nor is said section unconstitutional because said changes and amendments in the existing law were made by a revised bill which embraced the whole article of which section 7028 was a part. The title to the act being sufficiently comprehensive to embrace the congruous subject of filling vacancies in county elective offices not theretofore provided for in the chapter on elections-, it is immaterial that the changes were made by a revised bill.</p> <p>6. -: Amendment: Setting Out Words Added, In amending a statute it is not necessary that the amendatory act designate the words which constitute the amendment. It is sufficient if the statute be set out in full as amended.</p> <p>7. VACANCIES: County Collector: Tenure of Appointee: Constitutional Provision. The Constitution, section 11, article 5, provides: “When any office shall become vacant, the Governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected or appointed and qualified according to law.” Held, that the person appointed by the Governor to fill the vacancy in the office of county collector, held the office until the first Monday in March next after the next general election for the election of county collectors, and not simply until the qualification and demand for the office by the person elected at such next general election.</p> <p>8. -: Natural Meaning: Rest of Term. The natural significance of the word “vacancy” when understood with reference to the context in said section of the Constitution, is that the Governor’s appointee will hold the office for the rest of the term in which the vacancy occurs.</p> <p>9. -: County Collector: Legislative Office. The office of county collector is a legislative office, created by statute, and the General Assembly had power, under section 14 of article 9 of the Constitution, to provide for his election or appointment, and to prescribe the term which the person elected, or the person appointed to fill a vacancy in the term, might hold. Under that constitutional provision the General Assembly had power to authorize the Governor or some other public functionary to fill the vacancy in such county office, and as it authorized the Governor by section 7028, Revised Statutes 1899, to fill the vacancy, he derived his power from that statute, and the person appointed by him holds for the time designated therein, which is, in case of county collector, until the first Monday after the next géneral election at which his successor is elected.</p> <p>10. -: Election to Two Terms. Where relator was simply elected to the office of county collector at a general election held in 1906, it cannot be held that he was elected both for the unexpired term and the ensuing regular term, but the natural inference, where nothing to the contrary appears, is that he was elected for the ensuing regular term.</p>