Volume 213 — Missouri Reports

<p>Appeal from St. Louis City Circuit Court. — -Row. Jesse A. McDonald, Judge.</p> <p>Transferred to St. Louis Court of Appeals.</p>

<p>1. NEGLIGENCE: Recovery Notwithstanding Contributory Negligence: Crossing Street. Notwithstanding a pedestrian in crossing a street, in front of an approaching street car, which she-neither saw nor looked for, was guilty of contributory negligence, yet if the motorman by the exercise of ordinary care could have seen her and stopped the car in time to have avoid-' ed injuring her, and there was substantial evidence that he was not looking and that the car could have been stopped, after her danger should have been discovered, in time to avoid striking ■ her, no demurrer to the evidence should be sustained.</p> <p>2. -: Instruction. Where the instruction given by the court fairly presented the question whether, after the appearance of' danger to plaintiff, the opportunity to stop the car was lost on account of her proximity to the car, it is not error to refuse a clear-cut instruction for defendant on the same point.</p> <p>3. -: -: Measure of Damages: General. The instruction authorized the jury to assess plaintiff’s damages “at such a sum as would be a reasonable and just compensation for the-injuries sustained by her, if any, as shown by the evidence, not. exceeding, however, the sum of ten thousand dollars.” Held, that the instruction is not subject to the criticism that it does, not limit the damages to the injuries set forth in the petition, and gives a roving commission to the jury to establish their own standard of damages. It is not so broad as to be-error, and if defendant was not satisfied with it it was its duty to ask such modifications thereof as would restrict it to-the proper elements of damages as stated in the petition.</p> <p>4. EXCESSIVE VERDICT: $6,500. Plaintiff, aged seventy-five,, in good health, active and assisting her daughters in their housework and at times her son in his store, was struck by a. street car and rendered unconscious for fifteen minutes. There-was a cut over the eye, but no bones were broken. One limb was bruised and discolored, and her face was so swollen the next day that one eye could not be seen., In about five weeks she-was able to get around on crutches for a time, and thereafter got worse and again became bed-ridden. Her physician testified that the leg had become dropsical, that she suffered with, pain in the knee and hip, that her mind wandered, that she had suffered all the time from mental fear of further' injury, ' and that her physical and mental condition might reasonably-result from her injuries. Other physicians testified that her mental condition was normal and due to feebleness from old age. At a former trial on practically the same evidence the-verdict was $2,000. Held, that a verdict for $6,500 was excessive by $1,500.</p>

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The remedy resorted to in this action is wrong. On plaintiff’s theory it should have proceeded by mandamus. The petition alleges a valid contract, fully performed by .plaintiff, an appropriation unexpended sufficient to cover the contract price, approval and certificate (voucher) of City Register, (a) Such facts, if established, entitled the plaintiff to a writ to compel the Auditor to draw his warrant.

— Hon. B. J. Casteel, Special Judge. (1) The court erred in refusing to permit D. M. McWilliams, Luke Grogan and Jesse Albright to testify to statements made by defendant immediately after the tragedy. These statements were part of the res gestae, and besides they tended to show the mental ■condition of defendant at the time of the shooting. Defendant may show his physical and mental condition at the time of the homicide. 6 Ency.

Louis City Circuit Court. — Hon. O’Neill By an, Judge. (1) On all the evidence before the court, the case should have been submitted to the jury. State to use v. Beming, 74 Mo. 96; Hamilton v. Berry, 74 Mo. 176; McDermott v. Railroad, 73 Mo. 516; State ex rel. v. Matson, 44 Mo. 305; State ex rel. v. Thornton, 56 Mo. 325; Stagg v. Greene, 47 Mo. 500; Chandler v. Stevenson, 68 Mo. 450; Scarritt v. Jackson County, 89 Mo.

<p>1. NEGLIGENCE: Perilous Position: Moving Towards Track: Instruction: Variance. When a motorman in charge of an electric car, moving from fifteen to twenty miles an hour along a street, sees a child leave the curb and start diagonally across the street in front of the car, he sees that child in a perilous position. And so where the petition charged that the motorman saw or could have seen the child’s “dangerous and perilous condition,” it was not error to instruct the jury that if he saw or could have seen her “moving towards and upon said tracks in time,” etc. There is no vital or .fundamental difference between the allegation and the facts submitted by the instruction.</p> <p>2. -: -: Child. The doctrine that an adult standing near a street-railway track is in no peril, and is not actually in a perilous position until standing on. the track or near thereto, has no application to a young, inexperienced child. Such a child is in peril and in a perilous situation when it begins to move towards the track in front of an approaching car, and the motorman who sees it moving towards or upon the track in front of his car, is chargeable with notice of its peril, as he is also if by the exercise of ordinary care he can see it but does not.</p> <p>U. -: Instruction: General Words: Agent: Restricted to Motorman. The general words in plaintiffs instruction that if “the agents, servants and employees in charge of and operating said car, either saw, or by the exercise of ordinary care on their part could have seen, plaintiff moving towards or upon said track in time to have checked the speed of said car,” etc., were made sufficiently specific and cured of their too general character, by an instruction for the defendant which told the jury that if the “motorman” saw, or could have seen, etc. The instructions are not in conflict, but defendant’s simply made definite and specific the general language of plaintiff’s.</p> <p>4. -: Injury to Child: Wantonness. Where a child of tender years is seen moving towards or upon the tracks in front of an approaching car, and is struck by the car, it is not necessary to show that the acts of the motorman were wilful or wanton in order for plaintiff to recover. Wherever the language of the opinions in other cases indicates that the acts of the servants must amount to wilfulness or wantonness, it was used with reference to adults in the full possession of their faculties, who the motorman had a right to presume would not go on the track in front of his car.</p> <p>'5. -: Different Acts: Consistent Allegations. Negligence in failing to discover plaintiff approaching and going upon- defendant’s tracks in time to have checked the speed of the car; negligence in failing to keep a vigilant and reasonable lookout for children upon the track or approaching the same, and whether the motorman in the exercise of ordinary care could have discovered plaintiff in the act of approaching the tracks, etc., and negligence in failing to approach the crossing with said car under reasonable control, are consistent allegations, ^.nd each might have contributed to the injury of plaintiff.</p>

Louis Court of Criminal Correction.— lion. Hiram N. Moore, Judge. (1) By solemn instrument, in pursuance of constitutional provision, the State has granted to. the city of St. Louis broad and extensive police powers for the regulation of its local affairs. St. Louis v. Liessing,. 190 Mo. 480; Railroad v. Railroad, 148 Mo. 676; Ex parte Lucas, 160 Mo. 236; State v. Tower, 185 Mo. 95; State v. .Cafferata, 24 Mo. 94.

Louis Court of Criminal Correction.— Ron. Hiram N. Moore, Judge. (1) With respect to the acts of the Legislature passed in 1907 while these cases were pending in the Supreme Court, section 1327 of the general ordinances of the city prevents a legislative appeal from abating a suit to collect the penalties provided.

<p>MILK: Illegal Sale. Where defendant was charged with selling “whole milk” in violation of the ordinance prohibiting the sale of “whole milk showing on analysis less than three per cent of butter fat,” and the evidence sustains that charge, an order of the trial court quashing the information on the ground that the ordinance was in violation of the statute, which was error, will be reversed on appeal, and the case remanded for new trial.</p>

— Row. John G. Park, Judge. (1) Tte contract of the appellant United States-. Fidelity & Guaranty Company sued on herein is a contract of guaranty. 14 Am. and Eng. Ency. Law (2' Ed.), 1128, 1130; 20 Cycl. of Law & Prac., 1397; Bank v. Libbey, 101 Wis. 193.

Mandamus. (1) The Supreme Lodge Knights of Pythias is a fraternal beneficiary association. This court has so adjudged and the pleadings expressly admit it. Westerman v. Supreme Lodge Knights of Pythias, 196 Mo. 670; Tice v. Supreme Lodge Knights of Pythias, 204 Mo. 349.

— Hon. Hugh Babbs, Judge. (1) Plaintiff was entitled to the $65 for concrete pillars put in the Jones Creek bridge in order that the bridge might be set out of and above the water.

— Boto. A. B. Waller, Judge. (1) The trial court was right in excluding an answer by. Dr. Hixon (an attending physician) to the question as to plaintiff’s condition when he was first called to treat her.

-Transferred from St. Lonis Court of Appeals. (1) The deed of adoption could not he attacked in this, a collateral proceeding. Williams v. Carpenter, 35 Mo. 52; Brown v. Brown, 101 Ind. 340; Hannon v. Steinman, 9 Iowa 112; Eailroad v. Land Co., 175 Pa. St. 95. The motive which may have prompted the making of the deed cannot be inquired into. Kemp v. N. Y. Exch., 34 App. Div. 175. (2) The beneficiary in a fraternal benefit certificate has no vested interest therein.

Louis City Circuit Court. — Row. Daniel G. Taylor, Judge. (1) Costs are the creatures of statutes, at common law no costs being allowed. Such statutes are in derogation of the common law, and must he strictly construed. Baldwin v. Boulware, 82 Mo. App-. 321; Jackson County v. Stone, 168 Mo. 577; Jackson y. Pulton, 87 Mo. App. 226; Ring v. Vogel Paint Co., 46 Mo. App. 374. (2) Attorneys’ fees cannot be allowed as costs under tbe general provision of the statutes.

— Hon. Geo. W. Wanamaker, Judge. (1) Injunction will not lie to prevent defendant, from continuing in possession nor to restrain Mm from preventing plaintiff from fencing or exercising any other control over the land. Smith v. Jameson, 91 Mo. 13; Echelkamp v. Schrader, 45 Mo. 505; Weigel v. Walsh, 45 Mo. 560; Crenshaw v. Cook, 65 Mo. App. 264; Graham v. Womach, 82 Mo. App. 624; PovMl v. Canaday, 95 Mo. App. 513; Jerome v. Ross, 7 Johns.

<p>' 1. APPEAL: Judgment for Right Party: Demurrer. Where plaintiff’s case in a negligence suit did not make out a prima-facie case for her, and the judgment was for defendant, and defendant’s demurrer to the' evidence, which was overruled, should have been given, the judgment will be affirmed, and other assignments of errors committed by the court in the progress of the trial will not be considered.</p> <p>2. NEGLIGENCE: Assumption of Risks. If the place which the master, an ordinary industrial corporation, furnishes his servant in which to work is reasonably safe for that purpose, then the master has performed his full duty towards the servant, and he is not liable for injuries to the servant caused by dangers created by the servant in the performance of his duties.</p> <p>3. -: -: Dangerous Place. Where the duties of the servant and his assistant were more or less dangerous, but depending solely upon the manner and care with which they were performed, and not upon any danger connécted with or incident to the place in which they were performed, and the servant’s knowledge of the dangerous situation was better than that of the master, the master is not liable in damages for injuries sustained by the servant.</p> <p>4. -: -: Falling Piles of Coffee Sacks. Coffee sacks, weighing from 200 to 250 pounds, were stored on the first floor of defendant’s building, and piled up in parallel rows'ten or twelve feet in height and extending about twelve feet from the wall, and among other duties plaintiff’s husband, who was an experienced man at the work, was to perform, was to select from the stock certain grades and kinds of coffee, and carry them to an upper floor and there mix them and make certain blends for the trade. Often when one pile was removed the one next to it would settle more or less and bulge out in the center, and if the bulge was so great as to likely result in the pile falling, he or some other employee would right it, but if the bulge was slight no attention was paid to it. For a few days prior to the accident he was in attendance upon the court as a juror, and on the day prior to his return the foreman and another employee partially removed one of the middle rows of sacks, which caused the next row to bulge or lean somewhat, but not sufficient to cause them to conclude that it would fall, and when plaintiff’s husband returned to his work he went to the row which had been partially removed, without having been informed as to the leaning condition of the adjoining row, and began to remove other sacks therefrom, when, without warning, the leaning row fell upon him and broke his back. Held, that the danger was created and arose, not because defendant furnished him an unsafe place in which to work, but solely out of the fact that plaintiff’s husband and the other servants removed the sacks from the row next to the one which fell; and there being no charge or evidence that the defendant was negligent in the selection of his co-employees, his widow cannot recover damages for his death. He assumed the risks, and the master is not liable.</p>

<p>1. WILL: Undue Influence. The testator notified the cashier of a bank that he wished him to draw his will, and thereafter, eight years before his death, he appeared at the bank, and gave specific directions and memoranda as to how he wished to dispose of his property, and the cashier, using a form in a book or an old will as a guide, drew up the will as testator directed, disinheriting plaintiff, for that, as the will recites, “she having married contrary to my express wishes.” Before it was made testator told others that he intended to make it as it was made, and after it was made he told others that he had made it as it. turned out to be. Two years later he had the same cashier to make a codicil, changing the executor, and afterwards he told others that he had changed the codicil as it turned out to be changed. The will and codicil were left in the keeping of the cashier, and six years after the codicil was made the testator died. Held,, that the court properly instructed the jury to find that the will was not the result of the undue influence of the cashier.</p> <p>2. -: Incapacity: Erroneous Opinion: Joining Church. The fact that testator in his old age stated to a minister when his grandchild joined the church that he had never sworn an oath prior to his uniting with the church at the age of eighteen and thereafter he became very profane, and the fact that he argued, from his own experience, that joining the church tended to a lowering of moral standards, etc., is no evidence that he was incapacitated to make a will. Faulty reasoning now and then is no evidence of testamentary incapacity.</p> <p>3. -: -: Insane Delusion: Definition. This definition is approved: “An insane delusion is an unreasoning and incorrigible belief in the existence of facts which are either impossible absolutely, or, at least, impossible under the circumstances of the individual. It is never the result of reasoning and reflection; it is not generated, by them, and it cannot be dispelled by them; and hence it is not to be confounded with an opinion, however fantastic the latter may be.”</p> <p>4. -: -: -: Wrongful View of Son-in-Law: Explosive Temper. The fact that testator was violently opposed to the clandestine courtship and marriage of the daughter whom he disinherited; that he considered the man she married was “a drunkard, a gambler and a morphine fiend;” that his belief was unfounded, yet was based on statements made to him by others; that he had an explosive and violent temper, and when the daughter married, he was deeply wounded, and went into a violent rage and in the height of his bitterness determined he would disinherit her, which he did by will ten days later; that they subsequently became reconciled and she was again received into the bosom of the family, and that thereafter he caused to be added to the will a codicil, changing the executor and otherwise ratifying and confirming the will, which clause was read over to him, and that the codicil was added on the next day after he had been urged to change the will so as to restore the daughter to a child’s share, are not evidence of an insane delusion or of senile monomania, where there is no evidence that he was in a paroxysm of temper and rage when the will was made, and there was evidence that after the codicil was added he told others what changes were made by it and after his death the changes were found to be exactly as he said they were.</p>

— Hon. A. D. Burnes, Judge. (1) All persons must use ordinary care in going over a sidewalk. This applies to the parents as well as to children when the child is being guarded by the parent. The city of Cameron was only required to keep its sidewalks in a reasonably safe condition for ■persons whom they might reasonably expect would use such walk. They are not insurers against accident to -children, no more than they are to adults.

<p>1. NEGLIGENCE: Demurrer: Conflict of Testimony: Car-Repairer: Flag on Switch Track. Where two witnesses swore positively that a flag was on the switch track, between the switch entrance and the stationary car under which deceased was working, and defendant’s witnesses swore equally positively that no flag was there, as the rules of the company required, the settlement of the conflict in the testimony was for the jury, and the court cannot sustain a demurrer to the evidence on the ground that deceased was guilty of contributory negligence in not placing a warning flag on the track.</p> <p>2. -: ———: Actual Notice: Unreasonable Evidence. It is unreasonable that a car-repairer, at work under the second of two stationary cars, after he had placed his flag on the switch track, as the rules of the company required, and after one car had been kicked in on the track and he had' been told by one of the switching crew that other cars would soon be pushed in on the track, would have remained in the place of danger under the car until he was killed within five minutes of the alleged warning. And where the member of the crew who swore he so notified him is contradicted on every other material point, even upon the point that a car had been kicked in on that particular track prior to the ones which caused the car-repairer’s death, and that too by two others of the train crew, the reasonableness of the testimony of that one witness is to be passed upon by the jury, although he was not contradicted on the point that he gave deceased actual notice.</p> <p>3. -: Instruction: Preponderance: Evenly Balanced. Where' the jury were told in two instructions given that the burden rests upon plaintiff to prove her case fry a preponderance of the evidence, it was not error to refuse a third which told them that if they find the evidence evenly balances or that it preponderates in favor of defendant, plaintiff cannot recover.</p> <p>4. -: -: Wrong Theory: Contradictory of Defenses. Where defendant throughout the trial made two defenses, namely, that there was at no time a flag on the switch track between the switch entrance and the car under which deceased was working, and that one of its train crew notified deceased, after a car had been kicked in, that other cars would be switched' on to the track, it was not error to refuse to instruct the jury that if deceased had placed a flag in front of the cars on the track, yet if said flag was knocked down by the car kicked in, and deceased with knowledge of that fact placed himself under said stationary car without again putting up a' flag to warn the train crew that he was working about the car, plaintiff cannot recover, provided he knew they intended to switch other cars upon said track — -the proviso being covered by another instruction given.</p> <p>5. NEW TRIAL: Newly-Discovered Evidence. Affidavits by witnesses who were present and testified, to the effect that a material witness for plaintiff was not present at the place of the accident, do not show diligence. Ordinary prudence would have prompted counsel to inquire of affiants who were present at the accident, and if the particular witness was there.</p>

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) The court erred in declaring that under the law and the evidence plaintiff was not entitled to recover against the city, because plaintiff’s appointment was for a definite period, and at an annual salary; therefore he was and became under the charter and ordinance provisions of the city an officer and entitled as snch and conld be dismissed only for canse. State ex rel. v. Police Commr., 14 Mo.

<p>Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.</p>

<p>Appeal from St. Louis City Circuit Court. — How. Jesse A. McDonald, Judge.</p>

<p>Appeal from St. Lonis. City Circuit Court.— Eon. Jesse A. McDonald, Judge.</p>

<p>1. JURY TRIAL: What Cases. All issues triable by a jury prior to the adoption of the Constitution of 1875, are still triable by a jury. That is the meaning of section 28 of article 2 of the Constitution which says that “the right of a trial by jury, as heretofore enjoyed, shall remain inviolate.”</p> <p>2. -1-: Quieting Title under Section 650. In a suit brought under section 650, Revised Statutes 1899, to ascertain and determine title to land, if the issues joined entitle the parties to an ordinary judgment at law, then the parties are entitled to a jury trial; but if the issues tendered are equitable in their nature and call for equitable relief, the cause is triable before the chancellor.</p> <p>3. -: -: Accretions. Suits involving questions of ac’cretions to lands are possessory actions and are for the re- . covery of specific real estate, and long prior to the adoption of the present Constitution and ever since, the issue of accretion or no accretion has been triable by a jury. So that where the » suit was brought by plaintiff, under Section 650, Revised Stat-I utes 1899, to ascertain and determine the title to certain lands, and defendant answers that the plaintiff bases his right thereto on the issue that they were accretions to certain of plaintiff’s shore lands, and denies they are such accretions, and affirmatively alleges that they were accretions to a certain island formed in the Mississippi prior to the law of 1895, and that defendant bought them from the county, the only issue is whether the land was an accretion to the shore or to the island, and is an ordinary one at law, and is triable by a jury, and if a jury is demanded it cannot be denied.</p> <p>4. ACCRETIONS: Evidence: Prior Application to County to Purchase. Evidence that prior to bringing his suit, in which he claimed that the land sued for was accretions to his shore land, plaintiff had made formal application to the county court to purchase the land, is competent evidence for the purpose of affecting plaintiff’s credibility as a witness. If the lands were accretions to plaintiff’s shore lands, there seems no good reason why he should have desired to purchase them from the county.</p>

Louis City Circuit Court. — Row. Bobt. W. Foster, Judge. (1) (a) The evidence shows without contradiction that defendant promised to pay plaintiff $25,000 in bonds and $50,000' in stock of a railroad company to be organized by him to build a line of railroad between Cape Girardeau and Perryville in Missouri, if plaintiff would place the bonds of the company at eighty cents on the dollar, so as to enable defendant to build the road, and that plaintiff accepted the offer by…

<p>1. ABSTRACT: No Index. Where the abstract, printed in fair type, consists of only five pages, an index is unnecessary. The rule ends with the reason of it.</p> <p>:2. -: No Exceptions. Where the abstract shows that a bill of exceptions was allowed, signed and filed, but does not show a single thing identified as set forth in the bill, not even any testimony or any exception to any ruling, or any instruction, there is nothing before the court but the record proper.</p> <p>•3. QUIETING TITLE: General Denial. Where the petition alleges that plaintiff is the owner of the land in “fee simple absolute,” and the answer denies that plaintiff has any interest in the land and avers that defendant has none adverse to plaintiff and claims- no interest in himself, it cannot be seen how defendant is much damaged by a judgment decreeing title in plaintiff, in the absence of any testimony that may be con- ' sidered on appeal.</p>

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The court erred in overruling defendant’s-motions to require plaintiff to elect upon which assignment of negligence he would proceed to trial, made-at the opening of the trial, and renewed at the close of plaintiff’s evidence in chief.

.Appeal from Gentry Circuit Court. — Now. W. C. Ellison, Judge.

— Hon. Henry M. Barney, Judge. (1) It was error to exclude evidence showing that the railway company had laid its tracks in the street without any authority from the city to do so, and that they were trespassers in said street.

— Hon. John G. Park, Judge. (1) The petition does not allege that plaintiffs were all of the children that deceased left surviving him at the time of his death, and it cannot he contended that it was not absolutely necessary that all of his children should join in this suit. Any less number could not maintain it, as it can he maintained by no one except those coming strictly within the terms of the statute.

Louis City Circuit Court. — lion. Walter B. Douglas, Judge. (1) Tlie city of St. Louis is not liable for ‘ ‘ extras, ’ ’ under charter provisions requiring work to be let by competitive bidding; particularly in view of other provisions of the charter and law prohibiting payment •under the contract in excess of the appropriation therefor. Charter, secs. 15, 18, 24, 27, 28, art. 6; O’Brien v. New York, 139 N. Y. 596; Gage v. New York, 110 App. Div. 419.

— Hoot. Chas. D. Stewart, Judge. Tlie purported “abstract of tbe record” filed in tbis cause does not comply with section 813 of tbe statute and rules 11 and 13 of tbis court and presents nothing for review. Tbe cause should be dismissed for the following reasons: Tbe abstract does not show a single record entry in tbe cause. That is to say: (1) Does not show any bill of exceptions was ever filed in tbe cause.

— Ho». Jas. T. Ne-ville, Judge. The sheriff’s deed attempting to convey Carlton’s interest is absolutely void because of lack of jurisdiction in the court to render judgment in the so-called garnishment proceeding against Carlton. Norvell v. Porter, 62 Mo. 309; Gates v. Tusten, 89 Mo. 13; Malsby v. Farr, 3 Mo. 430; Coal Co. v. Adams, 991 Mo. App. 482; Huffman v. Sisk, 62 Mo.

Transferred from St. Lonis Court of Appeals. (1) A bill of exceptions, when filed, constitutes a part of tbe record, and may be amended by tbe court at tbe term, or any subsequent term, as any other part of tbe record may be amended, to correspond with wbat, in fact, occurred. Elliott, App. Proc., sec. 825.

— Eon. J. E. Slover, Judge. (1) If the testator devise a fee simple or generally to the first taker with an absolute power of disposal in him, and there is neither by express words or implication a mere life estate created in the first taker, all subsequent grants in the will must fail, because repugnant to the first grant and because it conflicts with a settled rule of law.

— Now. David N. Eby, Judge. The county court made the order opening the road February 15> 1904. Jett filed his affidavit and took his appeal from the order May 2, 1904, seventy-six days thereafter. The appeal was not taken within proper time. Secs. 1788, 4060, R. S. 1899; St. Louis v. Gunning Co., 138 Mo. 355; Robinson v. Walker, 45 Mo. 117; Kelm v. Hunkier, 491 Mo. App. 664; Moulder & Simpson v. Anderson, 63 Mo.- App. 34; Devore v. Staeckler, 491 Mo. App. 547.

— Hon. Wm. H. Martin, Judge. (1) A publication of all the proceedings concerning the extradition proceedings in the case of the State of Missouri against William Ziegler was privileged, if fair and impartial. 22 Cyc. Libel and Slander, p. 411; 18 Am. and Eng. Ency. Law (2 Ed.), 1043, 1045 and 1046; Booglier v. Knapp, 97 Mo. 122; Beiser v. Scripps-McRae Pub. Co., 113 Ky. 383; McBee v. Fulton, 47 Md. 403; Barrows v. Bell, 7 Gray 301; Wason v. Walter, 4 Law Rep.

<p>Appeal from Cole Circuit Court'. — Hon. Wm. H. Martin, Judge.</p> <p>(1) The publication sued upon is not libelous because it is, and appears upon its face to be, part of the report of a legal proceeding, in which the epithets complained of as libelous were applied by counsel to tbe plaintiff under circumstances, as disclosed by tbe publication itself, which showed them to be mere invective and unwarranted by the facts upon which they were predicated. Newell on Slander and Libel, pp. 33, 34; Bridgman v. Armer, 57 Mo. App. 528; Ritchie v. Stenius, 73 Mich. 563; Haynes v. Haynes, 29 Me. 247; Young v. Bridges, 34 La. Ann. 333; Zuekerman v. Sonnenschein, 62 111. 115; Yan Rensellear v. Dole, I John. Cas. 279; Ayers v. Crider, 15 111. 37; Williams v. Cawley, 18 Ala. 206; Kirksey v. Pike, 29 Ala. 206; Kidd v. Ward, 91 la. 371. (2) Even though words are used which in themselves impute a crime, still if accompanied with a specification of acts upon which the imputation is based, which shows that no such crime was committed, they are not libelous. Trimble v. Poster, 87 Mo. 49; Hall v. Adkins, 59 Mo. 144; Pasley v. Kemp, 22 Mo. 409; Ogden v. Riley, 14 N. J. L. 186; Allen v. Hillman, 12 Pick. (Mass.) 101; Hollenbeck v. Hall, 72 N. W. 518; Divens v. Meredith, 47 N. E. 143; Yan Yactor v. Walkup>, 46 Cal. 124; Morehead v. Jones, 41 Ky. (2 B. Mon.) 210; Barnes v. Crawford, 115 N. C. 76; Cramer v. Noonan, 4 Wis. 231; Randall v. News Ass’n, 101 Mich. 561; Hanaw v. Patriot Co., 57 N. W. 734. (3) Where corrupt intent is an essential element of an offense, a charge of the act under such circumstances as negative the corrupt intent is not a charge of the offense. Church v. Bridgman, 6 Mo. 190; Trimble v. Anderson, 79 Ala. 514; Atkinson v. Scammon, 22 N. H. 40. (4) An accusation of perjury is not made by the publication sued upon, because the entire statement shows there was no perjury. Bundy v. Hart, 46 Mo. 460; State v. Higgins, 124 Mo. 640; Nelson v. State, 32 Ark. 192; Gibson v. State, 15 S. W. 118; Alderson v. Auerswald, 80 Mo. App. 370; Pegram v. Styron, 1 Bailey (S. C.) 595; Harris v. Woody, 9 Mo. 115; Schmidt v. Witherick, 29 Minn. 156; Sherwood v. Chace, 11 Wend. 38. (5) The publication was the report of a legal proceeding made fairly and impartially and without malice and therefore was not actionable. 18 Am. and Eng. Ency. Law, 1043; Newell on Slander and Libel, 544; Kimber v. Press Ass’n (1893), 1 Q. B. 65. (6) The subject-matter of the publication being one of qualified privilege, malice must be expressly shown. Newell on Slander and Libel, 391. (7) Failure to justify the charge of perjury, when it was denied that the charge of perjury was made, does not admit the falsity of all other matters in the publication which the plaintiff may hold to be defamatory. Walford v. Herald Co., 133 Ind. 372. (8) Mere negligence in making report of a trial would not warrant the infliction of punitive damages. Parsons v. Railroad, 94 Mo. 286; Leahy v. Davis, 121 Mo. 227. (9) The verdict is so excessive that it is manifestly the result of passion and prejudice. (10) The verdict is plainly against the law and the evidence.</p> <p>(1) 1. It is sufficient to make a written or printed publication libelous and actionable per se that it is false and tends to expose one to public hatred, contempt and ridicule or to blacken his reputation. It is not necessary that the publication should charge a crime or indictable offense. The distinction between oral slander and written slander or libel in the foregoing respect is well recognized in this State. Nelson v. Musgrave, 10 Mo. 648; Price v. Whitely, 501 Mo. 439; McGinnis v. Knapp & Co., 107 Mo. 131; Ukman v. Daily Record Co., 189 Mo. 378; Manget v. O’Neill, 51 Mo. App. 26. 2. A newspaper is responsible for what it publishes, the same as an individual. Johnston v. Post-Dispatch Co., 65 Mo. 539; Arnold v. Saying Co., 76 Mo. App. 159; State ex inf. v. Sheppard, 177 Mo. 244; Shekell y. Jackson, 10' Cush. 25; Haynes v. Press Co., 169’ Mass. 512; McDonald v. Woodruff, 2 Dillon 214; 2 G-reenleaf on Evidence (16 Ed.), sec. 398; Fitzpatrick v. Publishing Co., 48 La. Ann. 1135. That the name of the author of the publication was given does not relieve the paper. Dole v. Lyon, 10 Johnson (N. Y.) 447; Hotchkiss v. O'liphant, 2 Hill 510. To repeat or publish a slanderous statement is to indorse it as genuine. Bee Pub. <3o. v. Shields, 94 Neb. 1029; Meyer v. Adams, 1 Mo. App. 3291. Nor does the want of intention to vilify or defame render an objectionable publication any the less a libel. Curtis v. Mussey, 6 Gray 261. Though the want of such intention may be shown in mitigation of exemplary damages. Jones v. Murray, 167 Mo. 25. (2) Words charging one with having committed perjury are actionable per se. Newell on Slander & Libel (2 Ed.), p. 124; Perselly v. Bacon, 20 Mo. 331; Holt v. Turpin, 78 Ky. 433; Bricker v. Potts, 12 Pa. St. 200; Cooley on Torts (2 Ed.), p. 233 (note); Harris v. Purdy, 1 Stewart (Ala.) 351. Perjury can be assigned when the affidavit of a person making it is based simply on information and belief. Herring v. State, 46 S. E. 877; Fitch v. Commonwealth, 92 Ya. 824; Hughes on Criminal Law, sec. 1588. - That words are slanderous per se does not depend upon the laws of the State where they are spoken, but upon the law of the State in which the act is alleged to have taken place. Dufresne v. Weise, 46 Wis. 296; Yan Anken v. Westfall, 14 John. (N. Y.) 233. (3) The publication complained of in this case is not non-libelous on the theory that “it carries the antidote with the poison.” That the defendant may be within the protection of the foregoing principle, the publication must show on its. face that the charge is palpably unfounded. Perselly v. Bacon, 20' Mo. 331; Deford v. Miller, 3 Penn. & lYatts (Pa.) 103; Fowle v. Robbins, 12 Mass. 498; Carter v. Andrews, 16 Pick. 1. Where a slanderous charge is made which the unlearned woul'd understand as imputing a crime, the action of slander lies, although in the nature of things such crime could not have been committed. Kennedy v. Gifford, 19 Wend. 296; Goodrich v. Wolcott, 3 Cowen 239; Morgan v. Rice, 35 Mo. App. 591; Johnson v. Dispatch Co., 2 Mo. App. 565 (affirmed in 65 Mo. 593); Carpenter v. Hamilton, 185 Mo. 603.- (4) The quotations from the brief of Mr. Bowers and his associates, filed in the Ziegler extradition proceeding before the Governor of New York, are not privileged matter. A statement in a newspaper of the circumstances of a cause tried in a court of justice given as from the mouth of counsel, instead of being accompanied or corrected by the evidence, is not such a report of the proceedings of a court of justice as a newspaper is privileged to make. Saunders v. Mills, 6 Bingham 213; Rex v. Carlile, 3 B. & A. 167; Rex v. Creevey, 1 M. & S. 273; Com. v. Godshalk, 13 Phila. 875; Hawkins v. Prtg. Co., 10 Mo. App. 174; Edsall v. Brooks, 17 Abb. Prac. 379; Post Pub. Co. v. Moloney, 50 Ohio St. 71; Stanley v. Webb, 4 Sandf. 21; Cooley, Con. Lim. (7 Ed.), p. 637. The public is not regarded as having such an interest in proceedings embodying defamatory matter as will outweigh the necessity of protecting the character of individuals unless the proceedings are of á legislative or judicial character. Belo v. Wien, 63 Tex. 686'. The publication of a report of a judicial proceeding is not privileged .where (as here) it contains intrinsic evidence that it was not published for good motives or justifiable ends. Saunders v. Baxter, 53 Tenn. 369; Fudering v.. Cramer, 53 Wis. 193; White v. Nichols, 3 How. (U. S.) 266. A person may publish a correct account of the proceedings in a court of justice, yet if he discolors or garbles the report or adds comments or insinuations of .his own, aspersing the character of the parties concerned, he exceeds his privilege and his publication becomes a libel. Thomas v. Oros swell, 7 Johns. (N. Y.) 264; Dorr v. United States, 195 U. S. 138; Newell on Slander and Libel (2 Ed.), sec. 163. To state that criminal proceedings are about to- be taken against the plaintiff, e. g., that the Attorney-General had directed a certain attorney to prosecute him for perjury, is actionable, although the speaker does not expressly assert that plaintiff is guilty of the charge. 13 Am. and Eng. Eney. Law (1 Ed.), 390, note; Roberts v. Camden, 9 East 93; Tempest v. Chambers, 1 Starke 67. In publishing an affidavit filed in a criminal proceeding, a newspaper made comments which would give an impression that the matters sworn to were probably true. Held not privileged. Cass v. Times, 27 La. 214. Garbled extracts and false reports of a privileged communication are not protected by the law under the guise of the freedom of the press. Arnold v. Sayings Co., 76 Mo. App. 159; Metcalf v. Times Co., 21 R. I. 674; 18 Am. and Eng. Ency. Law (2 Ed.), 1045; Bathrick v. Post Co., 50 Mich. 644; Maclean v. Scripps, 52 Mich. 253; State v. Wait, 44 Kan. 317; Barner v. Dispatch Co., 3 Mo. App. 377; Cowley v. Pulsifer, 137 Mass, 392. Privilege is a question of law when the facts as to same are undisputed. Callahan v. Ingram, 122 Mo. 355; Sullivan v. Com. Co., 152 Mo. 268; Jones v. Brownlee, 161 Mo. 258; Wagner v. Scott, 164 Mo. 289; Klinck v. Kalby, 46 N. Y. 431; Parley v. Thalkimer, 49 S. E. 644; Newell on Libel and. Slander (2 Ed.), p. 391, sec. 9. (5) The damages were a proper matter for the jury, and were- not excessive. The extent of the injuries to the person libeled, as well as the malice, need not be specially proved, but may be inferred from the wrongful charges. Price v. Whitely, 50 Mo. 439; Herman v. Bradstreet, 19 Mo. App. 227; MeClosksy v. Pub. Co., 152 Mo. 339. The condition in life of plaintiff, and the number of the members of his family, were proper subjects for the consideration of the jury on the question of damages. Polston v. See, 54 Mo. 291; Clements v. Maloney; 55 Mo. 352; Enos v. Enos, 135 N. Y. 609. So the evidence showing defendant’s wealth was a proper matter for the consideration of the jury. Buckley v. Knapp, 48 Mo. 162. Shame and mortification may constitute grievous mental suffering, and are elements of actual damages. G-raybill v. DeYoung, 140 Cal. 323; Baldwin v. Boulware, 76 Mo. App. 5; Brown v. Railroad, 99 Mo. 3101. Where words impute an indictable offense, no special damages need be alleged. Rammell v. Otis, 60 Mo. 365; Lewis v. McDaniel, 82 Mo. 577. There is no scale for damages in a libel suit; the matter rests wholly with the jury. Minter v. Bradstreet Co., 174 Mo. 447; Sanderson v. Caldwell, 45 N. Y. 406; G-ambil v. Schooley, 93 Md. 65. The fact that a publication libelous per se was made without any attempt to ascertain its correctness is sufficient to justify a finding that it was wanton or reckless publication. Van Ingen v. Star Co., 37 N. Y. Supp. 114; Rose v. Company, 110 App. Div. (N. Y.) 437. The fact that a libel may not he believed does not excuse the party who publishes it, nor deprive the plaintiff of all recovery except for nominal damages. Bishop v. Journal Co., 47 N. E. 121. “ Injury to the feelings as a matter of common experience is one of the most immediate as it is one of the keenest results of libelous’ article, and may he taken into consideration by jurors, simply from their general knowledge.” Butler v. Barrett, 130 Fed. 909; Van Ingen v. Star Co., 37 N. Y. Supp. 114; Merrill on Newspaper Libel, p. 136; Long v. Prtg. Co., 106 Mich. 215.</p>

<p>Appeal from St. Louis City Circuit Court. — Hoot. O’Neill Ryan, Judge.</p> <p>(1) Tire court erred in refusing to give the peremptory instruction asked by defendant at the close of all the evidence, (a) There was no evidence of any negligence on the part of defendant in connection' with the use of the emery wheel mentioned in the evidence, because the testimony showed that it was the kind of wheel in general and almost universal use at the time of the accident. This is the conclusive test of the question of negligence. Minnier v. Railroad, 167 Mo. 99; Chrismer v. Tel. Co., 194 Mo. 189; Higgins v. Famming, 195 Pa. St. 599; Service v. Stoneman, 196 Pa. St. 63; Shadford v. Railroad, 111 Mich. 390; Omaha Bottling Co. v. Theiler,. 59 Neb. 257; Iron Ship Building Works v. Nut-tall, 119 Pa. St. 149; Schroeder v. Car Co., 56 Mich. 132; Demers v. Marshall, 178 Mass. 9; Hale v. Cheney, 159 Mass. 268; Rooney v. Sewall, 161 Mass. 163; Breig v. Railroad, 98 Mich. 222; Allison Mfg. Co. v. McCormick, 118 Pa. St. 519'. (b) Plaintiff alleged in his petition that defendant, in spite of having actual knowledge of the fragility of said emery wheel, failed to notify plaintiff of the danger of working near same. There was no testimony that said wheel was fragile and none that defendant had either actual knowledge thereof, and no testimony of any negligence on the part of defendant in failing to give plaintiff notice. (2) The court erred in allowing plaintiff’s witnesses Kerr and Schott to testify as experts in reference to the likelihood of emery wheels to break. Said witnesses were not properly qualified as experts' to testify in reference to the wheel in question.</p> <p>(1) There was evidence on each charge of negligence from which the jury were authorized to find the ultimate fact of the negligence of defendant causing the injury to plaintiff; in such case the settled rule of decision in this State is that a demurrer to the evidence could not he sustained; indeed, if there is any evidence tending to prove either ground of negligence constituting a cause of action, it is error to sustain a demurrer to the evidence. Eckhard v. Railroad, 190 Mo. 611; Powers v. Railroad, 202 Mo. 280. (2) The court did not err in allowing witness Schott to express an opinion as to the liability of emery wheels to explode and break to pieces. Appellant urges as a reason that he did not know the ingredients of which the wheel 'was composed. This may be true, and yet experience may teach that it will explode. Probably no one except the proprietor knew the secret of the composition of which the wheel was constructed. But nevertheless, a man acquainted with its use and construction, an experimental machinist who has given study to the subject, was competent to express an opinion upon the question. Helfenstein v. Medart, 136 Mo. 615. The same may be answered to the contention of appellant that witness Kerr was not qualified to express an opinion on the liability of emery wheels to explode. (3) Appellant is mistaken in saying there was no evidence that the wheel was liable to break and explode. We call attention to plaintiff’s witnesses Schott and Kerr, on this point, and the evidence and action of defendant’s witnesses and foreman, Ahring. If these witnesses are to be believed, there was ample evidence on that issue given both for defendant and plaintiff.</p>

— Eon. Jas. II. Stover, Judge. The court erred in instructing the jury to the effect that if the fire was set by an engine belonging to one of the other railroads, using defendant’s tracks, plaintiff could not recover.