Volume 211 — Missouri Reports

— Hon. J. W. Alexander, Judge. (1) The court committed error in refusing to give the demurrer to the evidence and defendant’s instruction in the nature of a demurrer to the evidence, (a) It was the act of the deceased in leaving a place of safety and getting against the tender or against the drive wheel of the engine that was. the proximate cause of the accident.

Louis City Circuit Court. — Boot. Daniel G. Taylor, Judge. (1) The ruling of the court, in sustaining plaintiff’s motion for a new trial, on the ground that the court had committed error in the admission of the testimony of physicians, inasmuch as the court concluded that their testimony was privileged, was erroneous. The .communication testified to was not privileged. Brown v. Bailroad, 45 Hun 439; People ex rel. v. Abrahams, 96 App.

<p>Appeal from St. Louis City Circuit Court. — Now. Jno. W. McElhinney, Judge.</p>

— Row. B. A. Anthony, Judge. (1) Whenever any dwelling-honse, outbuilding and the lands in connection therewith, in which a homestead shall exist, shall exceed the respective value mentioned in section 3616, and a severance of such homestead would greatly depreciate the value of the residue of the premises, or be of great inconvenience to the parties interested either in such residue or in such homestead, either party may apply to the circuit court, by petition, setting…

<p>Transferred from St. Louis Court of Appeals.</p>

— Hon. W. B. Teasdale, Judge. (1) Tke court erred in the admission in evidence, on the part of plaintiff, of the petition, answer and amended answer of W. B. Reaburn v. this defendant and J. M. Capps: (a) There was no proof that the plaintiff in the Reabnrn ease was the conductor on the car which was derailed, and in which respondent was a passenger, (b) The petition in the Reaburn case could not possibly have been competent for any purpose, since it in no way bound the…

Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge. (1) The right of a person to carriage as a passenger on a street car rests on a contract, the essential ingredients of which are, that the person must signify his intention to take passage, either by words or conduct, and the car-men must assent, by words or conduct, to his becoming a passenger. Ornara v. Railroad, 102 Mo.

<p>BRIEF: Failure to Obey Rules. A total disregard by appellant of the rules of the court, in reference to separate statement of points and legal propositions relied upon, and the citation of authorities in support thereof by names of parties and number and page of volume in which found, amounts to a failure to file a brief; and where appellant’s testimony is presented to this court in 26 pages of disjointed “Argument,” and a review of the testimony and pleadings reveals the fact that the case is without merit and the judgment clearly correct, the case affords a good occasion to enforce the rules and affirm the judgment for failure to comply with such rules.</p>

Louis City Circuit Court. — No». Daniel G. Taylor, Judge. (1) Plaintiff was invited to come upon the premises of defendant, not for her pleasure, hut in the performance of a sacred duty, in the performance of which both parties were to be benefited, and she fell into a trap, a pitfall, and was seriously injured. Heaven v. Pender, 11 Q. B. D. 506; Welch v. McAllister, 15 Mo. App. 492; Thompson on Negligence, sec. 8 ; Webb’s Pollock on Torts-(Am.

'.Appeal from St. Louis City Circuit Court. — Hon. Matt. G. Reynolds, Judge. (1) An assignment of a void patent or a license under a void patént is not' a legal consideration for a promise to pay for same. Applicable to the second defense: Shepherd v. Jenkins, 73 Mo. 5-10; Jollife v. Collins, 21 Mo. 343; Keith, v. Hobbs, 69 Mo. 84.

Louis City Circuit Court. — Now. Warwick Hough, Judge. (1) It is not negligence, as a matter of law, for a passenger on a street car to protrude a part of Ms. body out of the car, but the question is one of fact to-be determined by the jury; the test being whether an ordinarily prudent man would do the same act under the same or similar circumstances. Smith v. Railroad,. 120 Mo. App. 328; Allen v. Railroad, 183 Mo. 411; Kreimelmann v. Jourdan, Receiver, 107 Mo..

Louis City Circuit Court. — Ron. Moses N. Sale, Judge. (1) The assignment and delivery of the policy to the company was a pledge of the reserve value of the policy for payment of the loan, under a distinct and separate contract of pledge, valid and enforcible both under the laws of New York and Missouri, and the non-forfeiture provisions of the Missouri statutes are inapplicable.

— Eon. W. B. Teasdale, Judge. (1) Sections 8978 and 8979 are properly within the exercise of the police power of the State, and are not in violation of the State or Federal Constitution. State ex rel. v. Firemen’s Fund Ins. Co., 152 Mo. 1; Finch v. Granite Co., 187 Mo. 244; State ex rel. v. Standard Oil Co., 194 Mo. 124; Walsh v. Master Plumbers Asso., 97 Mo. App. 280; State ex rel. v. Brew-ing Co., 104 Tenn. 715; Waters-Pierce Oil Co. v. State of Texas, 19 Tex. Civ. App. 1.

Louis Comity Circuit Court. — No». Jno. W. McElhinney, Judge. (1) The circuit court of St. Louis county was without jurisdiction of the case, the cause of action, if any, having accrued in the city of St. Louis. (2) The publication complained of in the petition was not the publication shown to have been made by defendant. The proof, therefore, did not sustain the allegations of the petition.

— How. Frank B. Bearing, Judge. . (1) That the engineer, the conductor and the operator were fellow-servants, engaged in a common service, will appear from the decisions in the following cases: McDermott v. Bailroad, 30 Mo. 115; Bohback v. Bailroad, 43 Mo. 187; Gibson v. Eailroad, 46 Mo. 163; Brothers v. Carter, 52 Mo. 372; McGowan v. Eailroad, 61 Mo-. 528; Marshall v. Schricker, 63 Mo. 308; Smith v. Eailroad, 92 Mo. 359; Higgins v. Bail-road, 104 Mo. 413; Schaub v.…

Mandamus. (1) The judges wlio conducted the bond election •were officers de facto at least, and no mere irregularities in their appointment or qualification can invalidate an otherwise fair and proper election, in the absence of any statute attaching such a consequence. Sanders v. Lacks, 142 Mo. 255; Lebanon Light Co. v. Lebanon, 163 Mo. 246; Wilson v. Kimmel, 109 Mo. 261.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) Instruction 1, given at the request of plaintiff, is erroneous because it authorized the jury to return a verdict for plaintiff, if they found that there was any negligence on the part of defendant, instead of limiting them to the particular act of negligence counted on in the petition. Wolfe v. Supreme Lodge, 160 Mo. 675; Abbott v. Railroad, 83 Mo. 278; Price v. Railroad, 72 Mo. 419.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) As between public and private interests tbe construction of ordinances or charter provisions will be taken most strongly in favor of the public. Stein v. Bienville, 141 IT. S. 67; Philadelphia y. W. IT. Tel. Co., 11 Phila. 327; McQuillin on Municipal Ordinances, sec. 578; Coosaw v. So. Car., 144 IT. S. 562; Louisville Trust Co. v. Cincinnati, 73 Fed. 726.

<p>1. MOTION IN ARREST. In certain .phases the precise, technical office of a motion in arrest has become somewhat obscure. But speaking with precision, it is not a motion for a rehearing. If granted it does not necessarily result in a new trial. It is no essential element in an appeal. It is not infrequent practice to appeal without one. The most to be said of a motion in arrest is that, if one be not filed, the appellate court . will not consider matters of error to which the trial court’s attention could only be called by a motion in arrest.</p> <p>2. -: Final Judgment. A final judgment can be entered in a cause while a motion in arrest is pending.</p> <p>3. -: Overruled at Subsequent Term. The overruling of a motion in arrest, at a subsequent term, without a continuance, without the presence of the necessary conditions authorizing a nunc pro tunc entry, is a nullity, and a recital on the record at such subsequent term that it was then overruled is also a nullity.</p> <p>4. -: Premature Appeal. After judgment, appellant filed motions for a new trial and in arrest. Neither of them being disposed of, the cause was continued to the next term, at which the motion for a new trial was overruled, and appellant filed its affidavit and bond for appeal, and the bond was approved, the appeal allowed, and time given to file a bill of exceptions, and within proper time a certified copy of the judgment and order of appeal was filed in this court. At the next term after the motion for a new trial was overruled, the record shows the motion in arrest was. overruled. Later in the same term and within the time extended, the bill of exceptions was allowed, signed, filed, and made a part of the record, and it recites that at the preceding term the court overruled appellant’s “motion for a new trial and motion in arrest - of judgment,” to which exceptions were saved. EelcL, that, there was a final judgment, and the appeal was not premature,, and will not be dismissed.</p> <p>5. -: -: Recitals in Bill of Exceptions. The bill of' exceptions having been allowed, signed, filed and made a part of the record, and reciting that the. motions for new trial and in arrest were overruled and exceptions saved, must for some purposes be reckoned with, although the record entry shows no entry of the overruling of ' the motion in arrest until a. subsequent term after the motion for a new trial was overruled and appeal taken. Where there is no record entry pertaining to the motion in arrest at the term when the motion for ,a new trial was overruled and an appeal was taken, it cannot be said that there is any conflict in the recitals in the bill and the record, the true record proper being silent as to the motion in arrest.</p> <p>6. -: Abandonment: What Points Considered. Where motions for a new trial and in arrest were timely filed and the record shows no ruling on the motion in arrest, but does show the motion for new trial was overruled and an appeal taken and allowed, it will be held on appeal that the motion in arrest was abandoned, and the case will be heard on the points raised by the motion for a new trial.</p> <p>7. APPEALS: Liberal Construction. An appeal is the creature of the statutes, and the object to be subserved is to get at the right of the cause, and statutes pertaining to appellate procedure are entitled to a liberal construction.</p>

<p>1. RAILROAD HOSPITAL: Public Charity: Liability. A hospital association, organized by a railroad company, having for its incorporators and officers chief officers of the railroad, who make its rules and regulations, having for its , object to provide medical and surgical treatment and care for the employees of the railroad exclusively, and maintained by a monthly deduction from the wages of said employees without their consent thereto, and requiring notice to the railroad company’s chief surgeon and claim agent whenever an employee is removed to its hospital, and making the chief surgeon and the other surgeons of the association the chief surgeon and division surgeons of the railroad company, is not a public charity or a charitable institution.</p> <p>2. -: Alter Ego of Railroad. Such an association, though having a separate corporate charter, is the railroad company itself, its alter 'ego. At least it is its agent, and the negligence of the agent is the negligence of the railroad company.</p> <p>3. -: -: Negligence: Evidence: Letter from Chief Surgeon. Plaintiff’s husband had been an employee in defendant railroad’s auditor’s department, and from his monthly wages defendant had taken out a small fee which entitled him to be received at a hospital maintained by defendant for the care and treatment of its employees. The hospital was owned and managed by a separate corporation, which was defendant’s alter ■ego, at least its agent. He lived in St. Louis, and on a round-trip ticket went to the hospital at Springfield, and was treated for a time, and then on the return part' of the ticket returned to St. Louis, arriving there about seven o’clock in the evening, and left the train unattended, and about nine . o’clock a man partly dressed in a condition to retire for the night, was lying across one of the street car tracks and was run over and killed by a passing car, and it was afterwards shown that the man was plaintiff’s husband. One of the rules of the defendant company, promulgated for the government of the hospital, forbade treatment for insane employees, and another required the chief surgeon of the hospital, who was also the defendant’s chief surgeon, to notify the auditor’s department that plaintiff’s husband could no longer be kept. Held, that a letter written by the chief surgeon to the assistant auditor two days after the death of deceased, but at a time when neither knew he had been killed, in which it was stated that deceased “was in the asylum and is mentally unbalanced,” was erroneously excluded from evidence. Being an admission made by defendant’s agent pertaining to things occurring and being done by the agent in the course of the performance of his duties, it was an admission of defendant that it had knowledge that plaintiff’s husband was mentally unbalanced.</p> <p>4. '■-: -: -: -: -: Res Gestae. Said letter was in the nature of a report made by one official to another, contemplated by defendant’s rules, and is not in the same line as a statement made, after an accident, but too late to he recognized as a part of the res gestae.</p> <p>5. -: Negligence: Placing Insane Patient On Train: Proximate Cause. Where defendant’s chief surgeon had knowledge that plaintiff’s husband, who had been treated in its hospital, of which he had charge, was insane, and permitted him to be placed on a train, unattended and without notice to his family, knowing that he would have to find his home in St. Louis to which he was going, it was for the jury to say, under properly guarded instructions, whether or not the chief surgeon, and therefore defendant, might have reasonably expected that when the man reached St. Louis he i would place his practically undressed body across a street railway track and be killed by an oncoming car. If the injuries are the natural, though not the necessary and inevitable result, of the negligent fault — such injuries as,are likely, in ordinary circumstances, to ensue from the omitted care — the defendant is liable. The jury must find that the deceased was insane, that defendant knew that fact, and that his placing of his practically undressed body across the street railway track in front of the car was occasioned by reason of his insane condition.</p>

Louis City Circuit Court. — Rom. Warwick Hough, Judge. (1) A representation, to authorize the rescission 'of a contract; must be shown: 1, to have been false, :and known to be false, when made; 2, to have related to some past or existing fact; 3, to have been relied on by the complainant; 4, to have been material; and, 5, to have been made with the intent to deceive. Hamlin v. Abell, 120 Mo. 188; Edwards v. Noel, 88 Mo. App. 434; 14 Am. and Eng. Ency. Law, 63.

— Ron. N. M. Bradley, Judge. (1) As J. W. Aley was a non-resident of Missouri, the clerk had no legal right to appoint him as next friend, nor can he legally prosecute this suit, and especially on account of having given no bond as required by section 554, Revised Sta'tutes 1899'. (2) At common law, a personal right of action died with the person.

— No». Nat. M. Shelton, Judge. Under the will of P. II. 'T. Dickerson, George B. Dickerson, his son, took a vested remainder in the land in question in this suit that he could convey at pleasure, and his deed, dated March 7, 1902, passed the title to said land to the parties therein. • The courts favor strongly that construction which makes a remainder a vested rather than a contingent remainder.

— Now. 'W. B. Teasdale, Judge. (1) The court erred in permitting plaintiff to amend his petition after going to trial. (2) The court erred in overruling defendant’s application for a continuance on account of the amendments to plaintiff’s petition. The amendments were material and made radical changes in the allegations of negligence.

Louis City Circuit Court. — How. Moses N. Sale, Judge. (1) (a) The provisions of the amended charter making three-fourths of the cost of street improvements a charge upon all the property in a district defined and established according to certain general rules therein laid down, are to be construed in the light of the general principles underlying and limiting the power to levy special taxes for local improvements.

— Now. N. M. Shelton, Judge. (1) Defendants’ objection to tbe introduction of evidence should have been sustained. The petition was self-contradictory, as to first count. The second count failed to state a cause of action — showed misjoinder of five different actions without mutuality of parties, subject-matter or remedy. Such defects were properly raised by objection to evidence. Murphy v. Ins. Co., 78 Mo. App. 79; Malone v. Fidelity & Casualty Co., 71 Mo.

Mandamus. The amendment of 1906 provides that there shall he elected by the qualified voters in each county on the first Tuesday next following the first Monday in 'November, A. D. 1908, and thereafter every four years, a sheriff and coroner. They (those elected in 1908) shall serve for four years and until their successors be duly elected and qualified, unless sooner removed for malfeasance in office.

Mandamus. (1) It was the intention of the framers of the ■amended charter of St. Louis that the boundary of the taxing district should be placed at a line midway between the street improved and the next parallel street, wherever that is practicable. Collier v. Western P. & 'S. Co., 180 Mo. 283.

— Eon. Edward P. Gates, Judge. (1) Considered as a general tax, or tax for general purposes, this levy is void: 1. Because the city levy of 10 mills on each dollar of the assessed valuation “for general purposes,” which was duly paid by plaintiffs, was the maximum of the constitutional limit; and this additional levy of two and a half mills' on the dollar is in excess of that limit. Constitution, art. 10, sec. 11. 2.

<p>PARK BOULEVARDS: Maintenance. A park boulevard is an ap: purtenance of a park. Kansas City, under its charter, has authority to charge, with park maintenance taxes to maintain and keep in repair, private property within the park district, abutting on a street but not on the boulevard, although the owners of property abutting on the boulevard would not be charged with any more of the cost of maintaining the boulevard than the value of their property bears to the value of all the property in the district, while those whose property abuts on a street in the district, would be charged, not only with the cost of constructing and keeping in repair the street, but also with their proportional share of the cost of constructing and maintaining the park boulevard.</p> <p>Held, by WOODSON, J., in a dissenting opinion, in which BURGESS and GRAVES, JJ., concur, that to charge all property in the park district alike with the cost of constructing and maintaining the boulevard, and in addition to charge the costs of other streets against the abutting property, is to deny equal protection of the laws, and the charter is for that reason violative of the Fourteenth Amendment. Such a boulevard is a street, and if , the costs of other streets in the park district are charged against the abutting property, so should the costs of the boulevard be taxed against the property abutting on it; or, if the costs of the boulevard are to be apportioned against all property in the district, so should the costs of other streets.</p>

Louis County Circuit Court. — if o». Jno. W. McElhinney, Judge.