Volume 217 — Missouri Reports

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) There was ample evidence given in favor of plaintiffs’ cause of action tending to prove each material averment of the petition, and if the petition states a cause of action plaintiffs’ evidence entitled them to have their cause submitted to the jury and a verdict thereon.

Eon. A. D. Bwnes, Judge. • (1) The lease was duly recorded and was notice to plaintiff. Laws 1887, p. 183; Geer v. Lumber Co., 134 Mo. 94; Pike v. Martindale, 91 Mo. 268. (2) If the lease gave defendant a right to purchase the fee from the heirs, then plaintiff cannot recover. It was beyond the power of the grantor to alienate, his right from him. It was a solemn instrument which all parties must respect.

Louis City Circuit Court. — How. Matt. G. Reynolds, Judge. (1) The petition fails to state any cause of action. In charging the defendant city with negligence in not enforcing the ordinances pleaded, the petition states no cause of action. A municipal corporation is not liable for failure to enforce its police regulations.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The taking of the notes, executed by Fields & Keys, Jr., for the money advanced by C. ,M. Keys & Co. did not extinguish the original cause of action, but o.nly suspended the right of action during the time of the running of the note or notes, and after the maturity of the same, if not paid, an action can be maintained on the original cause of action, upon surrender of the note, if in the possession of C. M. Keys…

Louis City Circuit Court. — lion. W arwick Hough, J udge. (1) When a grantor in an absolute deed at the same time takes from the grantee a written contract giving the former a certain length of time in which to redeem the premises by paying the amount of the debt or consideration of the deed, and binding the latter to reconvey on such redemption, the two papers together constitute a mortgage.

— Hon. G. A. Den-ton, Judge. (1) The sheriff’s tax,deed, which is the foundation of defendants’ title, did not convey any title, because the judgment was not against the owner of the land, and the trial court found that the proceedings resulting in the tax deed, which is the foundation of plaintiff’s title, were regular. Graves v. Ewart, 99 Mo. 17; Schulenburg v. Hayden, 146 Mo. 597.

Mandamus, (1) Notice of the election given for fifteen days previous to such election by publication in a newspaper published in the municipality is in compliance with the statute (R. S. 1899', sec. 6351), and is therefore sufficient. Where the statute is complied with, the notice is sufficient. Hamilton v. Detroit, 85 N. W. 933; see. 6351, supra.

Prohibition. On October 23,1908, the circuit court of the city of St. Louis had no jurisdiction over either the person of relator or the subject-matter of the decree. “Jurisdiction in the court is the power to hear and determine the particular case’ involved. If this power to hear and determine the particular case does not exist in the court in point of law, then there can be no jurisdiction in the case.” People v. Dist.

— Hon. Nat. M. Shelton, Judge. (1) The court erred in refusing to admit parol evidence to show the conditions and circumstances surrounding the parties prior to and at the time the contract was executed, for the purpose of showing what the parties intended by the contract. 17 Cyc. 673; Laclede Cons. Co. v. Moss Tie Co., 185 Mo. 25; Liebke v. Knapp, 79 Mo. 22; Minn. Lumber Co. v. Coal Co., 160 111. 85; Fire Ins.

<p>Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.</p> <p>(1) The St. Louis Circuit Court had no jurisdiction to entertain the bill of intervention of Supervisor Watkins. State ex rel. v. Renick, 157 Mo. 292; Lovitt v. Russell, 138 Mo. 474; State ex rel. v. Wells, 113 Mo. 42; Jackson v. Railroad, 891 Mo. 104; Danforth v. Lowe, 53 Mo. 217. (2) Only by a direct proceeding in equity can a judgment be set aside after the term has passed at which it was rendered. Smith v. Hauger, 150 Mo. 437. (3) The statute under which the supervisor and the court assumed to .act in appointing Watkins receiver is penal in its nature and should be strictly construed. Sec. 3, Laws 1903, pp. 110-113; K. O. L. & Gr. Co. v. Kansas City, 200 Mo. 159: (4) The statute under which the supervisor and the court assumed to act should be strictly construed because it is in derogation of the common law. Johnson v. Pleutsch, 176 Mo. 452; Zartman v. Reid, 99 Mo. App. 4155. (5) The statute under which the supervisor and the court assumed to act prescribes that the supervisor shall, in having himself appointed receiver of co-operative companies, proceed under the law for the winding up and dissolution of Building & Loan Associations. His appointment is invalid because he ignored the Building and Loan Law and proceeded in equity. Section 1392, R. S. 1899, as amended Laws, 1901, p. 94. (6) The statute under which the supervisor and the court assumed to act also prescribes that the supervisor, in an action to have himself appointed receiver, shall proceed under the statute for the winding up and dissolution of insurance companies. This he did not do but proceeded under an attempted equitable intervention and his appointment was therefore unauthorized. Sec. 9, Laws 1903, p. 113; secs. 8021 and 8023-8027, R. S. 1899. (7) The provisions of the statute for the appointment of receivers of co-operative companies, Laws-1903, pp. 110-113, being purely of legislative creation, the supervisor in seeking to have himself appointed as such receiver is possessed of no power nor can courts adopt any procedure not expressly authorized by such statute. (8) The laws for the winding up and dissolution of Building & Loan Associations and for the winding up and dissolution of insurance companies are dissimilar and many of their provisions are conflicting. The supervisor, before proceeding in each case to have himself appointed a receiver, must determine under which statute he will proceed. This is an attempt to vest him with legislative discretion in the enforcement of the law, which renders it invalid. Sec. 1392, R. S. 1899, as amended Laws 1901, p. 94; secs. 8021, 8023-8028, R. S. 1899; St. Louis-v. Packing Co., 141 Mo. 375; State ex rel. v. Ashbrook, 154 Mo. 375. (9) The court was unauthorized to entertain the bill in equity of the supervisor to have himself appointed receiver for the reason that the act does not contemplate, if valid and operative in other respects, that the supervisor shall be appointed receiver of a co-operative company which is not engaged in business and the affairs of which are being administered in a court of equity. Secs. 1, 2 and 8, Laws 1903, pp. 110-113. (10) There is nothing in the act (Laws-1903) preventing a court of equity from appointing-a receiver for a co-operative company, and when the jurisdiction of such a tribunal once attaches, it mil continue until the matter involved is finally adjudicated. Equity jurisdiction existed to appoint a receiver before the enactment of the law authorizing, under-proper circumstances, the appointment of the supervisor as receiver, and such jurisdiction will continue-after the enactment of this statute, unless it has been abolished by prohibitory statutory enactment. There-is no such prohibitory statutory enactment. Herring-ton v. Utterback, 57 Mo. 519; Penn v. Penn, 39 Mo.. App. 282. Where a court takes jurisdiction of the-subject-matter it may retain jurisdiction until a complete disposition has been made of the case and adjust all equities arising therein. Reyburn v. Mitchell, 106 Mo. 365; Woodward v. Mastin, 106 Mo. 32; Jordan v. Harrison, 46 Mo. App. 172. (11) The Act of 1903 is invalid as a further attempted delegation of legislative power to the supervisor in vesting him with absolute and unrestricted power in prescribing the methods of business and terms of contracts which may be used. This is a discretionary power and not reviewable by any court. The functions of the supervisor are both legislative and judicial. This point was raised in regard to this law in State ex rel. v. Mer. Co., 184 Mo. 169; but was not passed on by the Supreme Court. St. Louis v. Packing Co., 141 Mo. 315; Barthet v. City of New Orleans, 24 Fed. 563; Tel. Co.-v. Myatt, 98 Fed. 335; State v. Johnson, 61 Kan. 803.</p>

— No». D. E. Eby, Judge. The court should have set aside and declared null and void the deed in controversy, under all the evidence. Where one stands in relations of trust and confidence with another who is old and failing in mind, the law will presume a contract between them to have been the result of undue .influence emanating from the stronger party.

— How. Henry M. Ramey, Judge. (1) The fact that the judgment debtor separated by calculation the land described in the petition from the land retained as his homestead, and deeded that portion not retained to defendant, constituted an abandonment of the homestead in the portion conveyed away, and, the cover of the homestead having been removed, plaintiff’s judgment lien attached.

Mandamus. (1) Relator submits that respondent’s first contention, “that the sewers hereinbefore described are not public sewers but are district sewers,” is without merit. To sustain' their point counsel seem to rely upon the case of South Highland and Improvement Co. v. Kansas City, 172 Mo. 523. But an analysis of this case will show that it does not support their position, because it does not decide that a sewer such as ’ contemplated would not be a public sewer.

<p>1. NEGLIGENCE: Humanitarian Doctrine: Child Suddenly Putting Himself In Danger. Where there was positive evidence that the child, in crossing the railroad track, crossed over, saw a train coming on an adjoining track fourteen feet away, suddenly stepped back onto the main track, and was struck by a train on that, and plaintiff puts the case to the jury on the last-chance doctrine, the court should not refuse an instruction for defendant to the effect that, if these facts were'found by the jury, plaintiffs could not recover if it was impossible to have stopped the train in time to avoid striking him after he was seen to turn back, although the train was being run in excess of the maximum speed fixed by ordinance.</p> <p>2. -: -: Contributory Negligence. The humanitarian doctrine has its origin in conceded negligence on the part of the injured party. If the negligence of defendant and of the injured party operate together to produce the injury, there is usually no liability except under that doctrine; by which is meant that, although the injured party may have been guilty of negligence in placing himself in a position of peril, yet if the railroad company by the exercise of ordinary care saw him in such position, or by the exercise of ordinary care could have seen him in such position, in time to have averted the injury, and did not, then defendant is liable.</p> <p>3. PRACTICE: Demurrer: Not Asked at Close of Case: Considered on Appeal. Where plaintiff’s case is not aided by defendant’s evidence,-a demurrer offered at the close of plaintiff’s ease and not renewed at the close of the whole case, will be considered on appeal, if urged as a ground in the motion for a new trial. And besides, where the sufficiency of the whole evidence is challenged in the motion, the appellate court must examine the evidence and pass upon its probative force.</p> <p>4. NEGLIGENCE: Humanitarian Doctrine: Judgment Reversed. The little boy separated from his companions, crossed defendant’s track, proceeded towards another railroad track fourteen feet further on, and there unexpectedly saw a freight train going west, and suddenly turned back on the defendant’s track or near to it and was struck by a passenger train going east. Held, that, even under the humanitarian doctrine, his parents cannot recover for his death. It was an accident.</p> <p>5. -: -: Two Minutes on Track. A little boy testified that deceased bad been, on defendant’s track “just about two minutes” after stepping back on it before tbe train hit bim, but tbe context shows that be really did not mean that, but meant that it was about that long after deceased and bis companions separated and deceased walked along tbe track, passed off towards another, and seeing a train on that suddenly turned back to defendant’s track, before be was immediately struck by tbe train. Held, this evidence is not sufficient to submit to tbe jury tbe question of whether by tbe exercise of ordinary care tbe trainmen could have stopped tbe train after discovering bim on tbe track before bitting bim.</p>

— -Row. Wm. R. Martin, Judge. (1) The court committed error in refusing to grant the continuance'prayed for by defendant. There was no reason why defendant should have been forced to go to- trial at that time. He had only been arraigned at the regular March term, 1908, of said court, the information having been filed in February. The law does not look with favor upon such haste as was had in this case.

— How. A. W. * Lincoln, Judge. (1) On the evidence of the State the court should have directed a verdict of acquittal, because, first, there was no evidence offered to prove that the St. Louis and Suburban Railroad Company was a corporation. Sec. 995, R. S. 1899; Sch. Dist.'v. Dorton, 125 Mo. 439. The existence of a corporation is proved by showing a valid instrument of incorporation and of uses -thereunder. 10 Cyc. 235.

Louis Court of Criminal Correction.^ i Hon. Wilson A. Taylor, Judge. A constitutional question cannot be raised by a general statement that an act is void and unconstitutional. The specific clause in the Federal or State Constitution which the law impinges must be set out, in order to invest the Supreme Court with jurisdiction. Shaw v. Goldman, 183 Mo. 461; Ash v. Independence, 169 Mo. 77; State v. Brockmiller, 107 Mo. App. 599; St. Joe v. Ins.

<p>Appeal from Perry Circuit Court. — No». Jos. J. Williams, Special Judge.</p> <p>(1) Either the instrument used to inflict the injury must be a dangerous weapon, or the wound inflicted must be dangerous. If the first instruction given by the court is correct law, then there can be no such offense as a common assault and battery in any case where the skin is broken; even if it is done by a scratch with the finger nails; and the court makes this clear in its second instruction given to the jury, which tells them, “that if defendant struck Maggie Shine with a whip, or burned her with a hot iron stove-lid lifter, with such severity as to break, cut, or bum entirely through the skin upon said Maggie Shine’s body, and to her flesh, then said Maggie Shine was wounded by defendant within the meaning of these instruct tions.” It is elementary law that every wound in-eludes the breaking of the skin, whether it be given in a felonious assault or a common assault and battery, and whether it is produced by a stroke, a cut or a burn. There was not a scintilla of evidence that the stove-lid lifter or the riding whip with which the prosecutrix claimed that she was burned and whipped was a deadly or dangerous weapon, or that any of the wounds was dangerous; on the contrary, the evidence shows that neither the instruments alleged to have been used nor the injuries inflicted were dangerous.' This being the case, the 1st, 2d and 3d instructions on the part of the State should not have been given, as there was no evidence on which to base them. Carrice v. State, 11 Mo. 579; Jennings v. State, 9 Mo. 862; State v. Bailey, 21 Mo. 484. (2) Appellant contends that the court erred in refusing the second instruction asked by defendant, telling the jury that they could not find defendant guilty of any greater offense than a common assault, as the evidence failed to show a dangerous wound or a dangerous weapon used. (3) There is nothing in the evidence which warranted a finding that prosecutrix had been “disfigured” by the act of defendant. In the first place, there was no injury to prosecutrix on any part of her body except that part which law and decency require her to keep concealed from the vision of others; in the next place the so-called “scars” were nothing but red and white spots, which Dr. Vessels testified that time would probably obliterate. But appellant contends that even if these spots or so-called “scars” would come within the definition of “disfigure” in its ordinary meaning, yet, unless they were produced by an assault made with a deadly or dangerous weapon, or were the result of dangerous wounds, they would not amount to a disfigurement within the meaning of the law as construed by repeated decisions of this court. Authorities cited in point 1. (4) The court erred in pi*eventing defendant’s counsel from cross-examining prosecutrix as to her habit of lying, and as to her being’ whipped on the occasion complained of for lying. Defendant stood in the place of a parent to the prosecutrix, and had a right to administer reasonable corporal punishment to correct her faults. ’Deskins v. Gese, 85 Mo. 485; Hay-craft v. Grigsby, 88 Mo. App. 354; 1 Bish. Cr. Law (7 Ed.), sees. 881 and 882. (5) The court erred in permitting Theresa Moranville and Martina Tucker, two witnesses for the State, to testify over the objection of defendant as to the probable instruments with which the welts and sores on Maggie Shine were inflicted, and as to how the instrument with which Maggie was burned was probably held and used. This was not a subject for expert testimony, and the court should not have permitted it. Gavisk v. Railroad, 49 Mo. 274; Gregory v. Chambers, 78 Mo. 294; Allen v. Railroad, 183 Mo. 411. Neither of these two witnesses was qualified to testify as an expert in relation to acid and solid bums; yet the court, over the objection of defendant’s counsel, permitted them to give their opinions as to the difference between these two kinds of burns, and to express their opinion that the burns on Maggie Shine were caused by a heated solid. Appellant insists that the admission of this testimony was prejudicial and reversible error. Boring v. Railroad, 194 Mo. 541; White v. Fire Ins. Co., 97 Mo. App-. 590; Graney v. Railroad, 157.Mo. 666. (6) The indictment charges that the prosecutrix received great bodily harm as the result of injuries inflicted by defendant, and section- 1849, under which the indictment was drawn, as construed by the Supreme Court in the cases of Carrice v. State, 11 Mo. 579; Jennings v. State, 9 Mo. 862, and State v. Bailey, 21 Mo. 484, says that danger to life is involved in a prosecution thereunder; yet the trial court ruled that these issues of great bodily harm and danger to the life of the prosecutrix were not involved in this case, and refused to permit defendant to introduce testimony as to said issues. Moreover, the court refused instructions 3, 4, 5 and 10, asked by defendant relating to these issues. Appellant submits that the lower court tried this case upon the erroneous theory that any wound, however slight, made in any manner whatever, whether made with a deadly or dang’erous weapon or not, would be sufficient to make a case under section 1849'. Under the instructions given by the trial court to the jury, defendant would have been amenable to the provisions of section 1849 if she had in a struggle broken the skin of the prosecutrix by a scratch with her finger nail.</p> <p>The indictment is sufficient in form and substance. It fully informed defendant of the nature and cause of the accusation against her. R. S. 1899', sec. 1849’; State v. Freeman, 21 Mo. 481; State v. Bailey, 21 Mo. 484; State v. Bohannan, 21 Mo. 490'; Kelley’s Crim. Law, secs. 580’, 581; State v. Yan Zant, 71 Mo. 543; State v. Moore, 65 Mo. 606. (a) Defendant’s brief urges that “the indictment is fatally defective in that two separate and distinct, felonies are charged in one count.” The basis for this point, defendant declares, is the fact that two assaults are alleged, one with a rawhide whip and one with a hot iron stove-lid lifter. The offense charged is the maiming, wounding and disfiguring of a person. It is a single offense; for, while either maiming, wounding or disfiguring may by itself constitute an offense, all • of them together do no more when they are component parts of a single transaction, as in this case. It is also an offense which may be committed by many means. In this case the indictment alleges that it was committed by means of a rawhide whip and also by means of a hot iron stove-lid lifter. These allegations are not repugnant, and the count is not double. Bishop’s New Grim. Proc. (4 Ed.), secs. 434, 438; Joyce on Indictments, secs. 399, 400, 401; State v. Myers, 198 Mo. 232; State v. McDonald, 67 Mo. 18. (b) Defendant is too late in now for the first time raising objection to the indictment on the ground that it,is duplicitous. Defendant did not demur to the indictment, she did not move to quash it, she did not move to require the State to elect upon which one of the offenses alleged therein (if more than one) it would proceed to trial. Duplicity in an indictment is a defect which is cured by verdict. State v. Fox, 148 Mo. 524; Bishop’s New jOrim. P'roc. (4 Ed.), sec. 443; State v. Wilson, 143 Mo. 344; State v. Nagel, 136 Mo. 49; State v. Blakely, 184 Mo. 187. (c) It is not necessary that the indictment charging the offense of maiming, wounding and disfiguring should allege that the act was done with a deadly or dangerous weapon, or that the wounds inflicted were of a dangerous character. State v. Moore, 65 Mo. 606; State v. Freeman, 21 Mo. 481. And a verdict of guilty of wounding under such an indictment is sustained by evidence showing an injury to the person by which the skin is broken. Especially is this true if “there is a scar left still,” made by the wound. State v. Leonard, 22 "Mo. 450'; 8 Words and Phrases, 7528. And as to disfiguring, proof of an injury which impairs the beauty, symmetry or appearance of a person, or renders a person unsightly, should be sufficient under the "dictionary definition of “disfigure.”</p>

— No». Argus Cox, Judge. The Statute of Limitations will not commence to run against remaindermen until intermediate estate is terminated; in this case, the intermediate estate was not defeated until the death of Mary Ann Durbin. Thomas ,v. Black, 113 Mo. 66.

— Now. J. L. Fort, Judge. (1) In an equity case the appellate court will review the finding of the chancellor on questions of fact. Hoeller v. Haffner, 155 Mo. 589; Kinney v. Murray, 170 Mo. 707; State ex rel. v. Jarrott, 183 Mo. 219; Myers v. Schuchman, 182 Mo. 177; Bell v. Campbell, 123 Mo. 20. (2) And will enter final judgment for the party entitled to judgment. Mill Co. v. Sugg, 169 Mo. 135.

— Ho». J. L. Fort, Judge. (1) The election contested was held in utter disregard of the law in force at the time, governing the holding of elections and commonly known as the Australian Ballot Law, and was therefore invalid. State ex rel. v. Seibert, 116 Mo. 415; Hall v. Schoenecke, 128 Mo. 661. (2) The controlling object of the Australian Ballot Law is to secure an absolutely secret ballot.

<p>1. MOTION FOR NEW TRIAL: Sustained and Set Aside: Continuance: Appeal at Subsequent Term,. Where a motion for new trial was filed and sustained, and within four days appellant filed a motion to set that order aside, and the cause was continued to the next term, and the motion to set aside was then sustained on condition that appellant file a remittitur within a prescribed time and that was done, but the motion for a new trial was later at the same term sustained, and appellant again filed his motion to set aside the order and the cause was continued to the next term, and then the motion to set aside was overruled, and appellant was allowed to and did withdraw his remittitur, and the motion for new trial was sustained, and appellant appeals from that order, his bill of exception is due at this last term, and his appeal if taken at that term is timely.</p> <p>2. -: --: -: Delayed by Motion to Set Aside. The court can retain its jurisdiction of a cause after a ■ timely motion for a new trial has been filed, by continuing it to the next term, and can legally pass upon the motion at that term. And it may at such subsequent term set aside its order sustaining the motion, or continue the motion to set aside till the next term, and all the time it has jurisdiction of the cause, and appellant is not required to take his appeal at the term at which the motion for a new trial is first sustained,- but it is timely if taken at the term at which the motion to set aside that order is overruled.</p> <p>3. -: Grounds Assigned: Grounds on Appeal. Where the trial court sustained defendants’ motion for a new trial on the ground that it had erred in refusing a peremptory instruction to find for them, they are not precluded from showing on plaintiff’s appeal that, even if that ruling was wrong, they were entitled to a new trial on other grounds assigned.</p> <p>4. NEGLIGENCE: Of Servant: Liability of Master. If a servant, acting in the execution of his master’s orders, by his negligence causes an injury to a third party, the master will be responsible, although the servant’s act was not necessary for the proper performance of his duty to his master, and although the servant, in the particular instance, exceeded his instructions and acted without authority. .</p> <p>5. -: -: -: Public Policy. The liability of the master for his servant’s torts is not based upon any presumed authority to do the negligent act, but upon public policy. The rule of law is that it is more reasonable, when one of two innocent persons must suffer from the wrongful act of the master’s servant, that the master, who has employed the servant in a position of confidence and trust, should suffer than that a stranger should do so.</p> <p>6. -: -: -: Scope of Employment: Falling Into Pitfall. A gas company had constructed an iron track about six feet high upon which small dump cars were run for bearing away cinders from its factory, the space under the track being filled with cinders as the dump progressed. Defendants were owners of a near-by lumber yard, and told their servant to get a load of cinders from the gas company for use in making walks in their yard, and the gas company’s superintendent told him to get the cinders from the end of the dump. The servant loaded his wagon at the end of the dump, but his team being unable to pull the load from the deep depression there, he unloaded the wagon and moved further up the track, where the surface was level, and loaded the wagon, just at night fall, by digging the cinders from under the track, thereby making a deep hole, and during the night plaintiff, who was.an employee of the gas company and who knew nothing of the excavation, in unloading a car came to the hole, fell through, and was injured. The servant testified that he loaded the wagon at the place of the excavation on His own responsibility, and all the evidence is to the effect that he was instructed to load the wagon at the end of the dump, and that defendants knew nothing of the place at which the cinders were usually loaded éxcept such knowledge as they were chargeable with.from the knowledge of the servant, and he testified that he had never hauled cinders from the dumps except in day time and had never seen cinders rolled out upon the track except in day time. There was evidence that it was customary to roll out the cinders during the night time. Held, that the digging of the excavation by the servant was within the scope of the employment of defendants’ servant to go to the gas company’s premises and get a load of cinders for them, and they are responsible to plaintiff for the injuries resulting from their servant’s unauthorized act in digging the pitfall into which plaintiff fell, without contributory negligence on his part.</p> <p>7. -: -: -: -: -: Contributory Negligence: Failing to Light Lamp. Where, under the testimony, it was the duty of the court to submit to the jury the question of whether or not plaintiff was guilty of contributory negligence in not lighting a lamp, maintained by the gas company, to light the track upon which plaintiff rolled the dump cinder car, and the court submitted the question under a most favorable instruction, a new trial cannot be granted to defendants on the ground of plaintiff’s contributory negligence in failing to light the lamp.</p> <p>8. -: Pleading: Knowledge: Proof. Where the substantial averment is that defendants’ servant was negligent in digging an excavation under a gas company’s cinder track upon which by slight inquiry he could have ascertained that its servants passed at night in unloading the cinder cars, plaintiff’s cause of action is not to fail because he also alleged that the servant had knowledge that the company’s servants rolled cars on the track at night, and there was no proof of such knowledge.</p> <p>9. EXCESSIVE VERDICT: Remittitur. Where the trial court at one time, as a condition for overruling defendant’s motion for a new trial, required plaintiff to remit a part of his judgment, and he accepted that condition, and this court is of the opinion that if such remittitur is now required, as of the date of the judgment, approximate justice will be done for the injuries sustained, the remittitur in the same amount will be required.</p>

au.an Circuit Court. — Eon. G. A. Mosman, Judge. (1) Mental incapacity to invalidate a will may be shown by taking into consideration the testator’s physical condition, his age, the nature of his will and disposition of his property, and the surrounding facts and circumstances. It is not necessary that insanity actually exist. It is sufficient if, upon the whole case made, the evidence tends to show lack of testamentary capacity. Chappell v. Trent, 19 S. E. (Va.) 304.

<p>Appeal from Reynolds Circuit Court. — Hon. Jos. J. Williams, Judge.</p>

Louis County Circuit Court . — Hon. Jno. W. McElhinney, Judge. (1) Where the servant has apprehensions of the danger of the place where he is required to work hut relies upon the assurance of the foreman, in charge of the work and in charge of the servant, that it is safe, and the servant is injured, the master is liable for such injuries.

Transferred from St. Louis Court of Appeals. (1) Appellant insists that the trial court did not have jurisdiction over the person of defendant, because of the defect in the sheriff’s return. Counsel for respondent insist, however, that the “principal office” contemplated by Sec. 8092, R. S. 1899', is the same as the “usual office,” which the sheriff certifies was the place where he served the summons .on J. W. Daugherty, secretary of defendant corporation.

— Root. John G. Park, Judge. (1) An exhibit is no part of a petition, even though it is attached to and the petition states that it is made a part thereof. Vaughan v. Daniels, 98 Mo. 280; Moore v. Dixon, 50 Mo. 424; Poulson v. Collier, 18 Mo. App. 538.

— Hon. J. L. Fort, Judge. (1) The trial court committed reversible error in ' holding that the circuit court of Stoddard county was not in vacation from and after March 20,1884, to June 16, 1884; and in holding that the clerk of said circuit court during that interim of time was without legal power to make an order of publication. June 12, 1884, was in the vacation of the court. Sec. 575, E. S. 1899.

Louis City Circuit Court. — So». Daniel G. Taylor, Judge. (1) The third ground of demurrer is ‘ ‘ that plaintiff in his petition attempted to state a number of alleged causes of action in one count. ’ ’ To this we reply: 1. That the petition states but a single cause, and that a good one, against defendants. Ross v. Mineral Land Co., 162 Mo. 331; Mosby v. Commission Co., 91 Mo. App. 507; McManus v. Lee, 43 Mo. 206; State v. Walker, 98 Mo. 104. 2.

<p>EJECTMENT: Outstanding Title. An attempt to establish an outstanding title upon pure hearsay that a former owner of the land had executed a deed of trust upon a part of the land to secure a debt which remains unpaid, where no deed of trust was offered in evidence, and it is not shown what amount is secured, nor when executed, nor when the debt was due, is • utterly groundless and the judgment in favor of a defendant, based upon such evidence, in the face of a clear record title in plaintiff, will be reversed.</p>

— Hon. J. G. Sheppard, Judge. The verdict of the jury and judgment based thereon attempting to settle the question of the value of the improvements made by defendants in- good faith was erroneous and should have been set aside. Henderson v. Langley, 76 Mo. 226; McClannahan v. Smith, 76 Mo. 428; Russell y. Defrance, 39 Mo. 506; Malone v. Stretch, 69 Mo. 25; Railroad v.- Shortridge, 86 Mo.-665; Koch v. Hawkins, 40 Mo. App. 684; Pierce v. Rollins, 60 Mo.

— Non. .J. L. Fort, Judge. (1) The assignment of T. Cole Powell, Jr., and J. H. Powell by T. C. Powell, Sr., was merely for collection, and was therefore revocable, and was revoked. Bnrke v. Priest, 50 Mo. App. 310; Creen v. Cole, 103 Mo.' 70. (2) There was and is no warrant in law for the attempted subrogation of respondents herein to the rights of appellants herein, in and to the judgment obtained by appellants against Canaday.

— Roto. J. L. Fort, Judge. (1) The petition in the suit in ejectment in the United States court filed by plaintiffs’ grantor, W. B. Stone, avers that defendant, Perkins, and one John Ware went into actual possession of the land on the 4th day of January, 1893.

<p>CONVEYANCE: “Lands Belonging to Deceased.” In 1856 Thomas Stockton conveyed the twelve-acre tract in dispute with other lands, to Linn, and in 1866 Linn conveyed to Thomas Jefferson Stockton, a son of the other Thomas. In 1867 the heirs of Thomas Stockton, Thomas Jefferson Stockton joining, conveyed “all our interest in the real estate of Thomas Stockton, deceased, contained in the following described lot, tract or parcel of land.” Then follows a description of 120 acres, of which tract the twelve acres in dispute were a part. Held, that the last deed did not convey, nor did it attempt to convey, the land that had previously been conveyed to Linn; and plaintiff,' who claims under this deed of the heirs, did not acquire the interest of Thomas Jefferson Stockton in the twelve acres. The deed of the heirs conveyed only so much of the 120-acre tract of which Thomas Stockton died the owner.</p>

— Ron. F. G. Johnston, Judge. (1) The land being described in the will as in section 33, it was error for the court to admit extrinsic evidence to show that the testator intended to convey land in section 28, other and different land from that described. Even a court of equity cannot reform a will or a gratuitous devise therein upon the ground of mistake. It does not stand upon the ground of mistake in executing or making a contract for a valuable consideration.

- — Ron. Edw. P. Gates, Judge. (1) The court committed error in permitting the plaintiff to read depositions of non-expert witnesses, in which they expressed opinions as to her physical condition. Sharp v. Railroad, 114 Mo. 94; Railroad v. Demsey, 89 S. W. 786. (2) The court committed error in giving plaintiff’s instruction 5, on the measure of damages. 1.

— How. Louis Hoffman, Judge. The court erred in that, at the close of plaintiff's evidence, at the instance of defendants and over the objection of plaintiff, it gave a peremptory instruction in nature of demurrer to plaintiff’s evidence, directing the jury to find for defendants.

<p>1. NEGLIGENCE: Electric Shock: Circuit: Instruction: No Evidence. The instruction told the jury that if plaintiff attempted to walk from the rear vestibule of the street car into the body or inclosed part thereof, “and that while doing so he stepped upon said metallic cover of said sand receptacle and upon the metallic sill of the door connecting the vestibule with the body of said car and received from said metallic cover of said sand receptacle and said metallic sill of said door or either of them an electric shock and was thereby injured, then your verdict should be for plaintiff.” Held, that evidence that plaintiff received one shock while he was standing with his right foot upon the floor of the vestibule and with his left foot upon the metallic cover of the sand receptacle, and that the electricity glued his left foot there and with great effort he forced it therefrom, and that he .received the second shock when passing from the vestibule to the interior- of the car when he stepped with his right foot upon the metallic sill of the door, did not support the instruction. The first part of the instruction is drawn upon the theory that by placing one foot upon the metallic cover of the sand receptacle and the other upon the metallic door sill his body completed the electric circuit between the cover and the sill, and thereby the injury was caused.</p> <p>2. -: -: -: -: Departure. The second part of said instruction .was a departure from the petition, which charged that plaintiff “stepped one foot upon said metallic cover of said sand receptacle and the other upon the metallic part of the sill of the door, and immediately' received a powerful electric shock,” for the petition thereby charged that the electric circuit was completed by plaintiff’s putting one foot upon the cover ana the other upon the sill, and the instruction authorized a recovery if he was standing upon only one of them.</p> <p>3. EXCESSIVE VERDICT: Simulated Injuries. Where plaintiffs evidence, if true, shows his injuries were severe and serious, a verdict for $8,500 will not be disturbed; but if he was simulating, he was not entitled to anything.</p> <p>Held, by GRAVES, X, that the verdict is grossly excessive, and the cause should .be remanded for new trial.</p> <p>4. NEGLIGENCE: Passenger: Specific Acts: Instruction. Held, by GRAVES, X, in a separate concurring opinion, that plaintiff, being a passenger, was under no necessity of alleging in detail the exact manner in which he was hurt, for the doctrine of res ipsa loquitur applies; but having alleged certain specific negligence, he can prove no other, and the instruction was broader than the petition, and so were the facts, but no leave having been taken to amend the petition in accordance with the facts, he is bound by the issues he made, and a new trial should be awarded.</p>

Louis City Circuit Court . — Hon. G. Or rich Bishop, Judge. (1) Evidence tending to show a large population residing in the locality in question and making use of this street was admissible. Ely v. St. Louis, 181 Mo. 729. (2) Evidence showing that the city had done work upon this street at this particular point was admissible. Dinsmore v. St. Louis, 192 Mo. 265.

<p>1. APPEAL: Dismissal: No Order Granting Appeal. Where the case is brought to the appellate court by the short method, and there is on file with the clerk a certified copy of the judgment and of the order granting the appeal, although the abstract does not show the order, the court will not dismiss the appeal. The abstract should show the order, but it would be sacrificing justice to hold that there is no such order simply because the abstract does not show it, when the clerk’s files do.</p> <p>2. -: -: Motion for New Trial: Set Out in Record Proper. It is a useless trouble and expense to print the motion for a new trial twice in the same abstract. And while the motion has no lawful place in the record proper, and if it is printed as a part thereof, and is not in fact set out or called for in the bill of exceptions, it will avail appellant nothing, yet if the bill of exceptions contains a recital that on a certain timely date appellant “filed its motion for a new trial, as follows: (Printed on page 17 of this record),” and the motion is found printed on that page of the abstract, it was-for all purposes of appeal printed as a part of the bill of exceptions.</p> <p>3. NEGLIGENCE: Railroad Company: Liability for Acts of Another. It is not every use that a railroad company may permit another company to make of its track that will render it liable for the act of the other, but only an unauthorized act involving an abuse or a misuse of its franchise.</p> <p>4. -: -: -: Use by Leave. A railroad company that holds a franchise from the State is under obligation to the State to use that franchise, and is liable for its misuse, even if the misuse is the act of another company by its leave, unless the same high authority which granted the franchise grants also the right to assign or lease it.</p> <p>5. -: -: -: Character of Use: No Showing. When a railroad company is sued by the servant of another company for injury alleged to have been inflicted through the negligence of such other company in operating its train on the defendant company’s track, and plaintiff in such case does not show by what authority the other compay was using the track and will not permit defendant to show it, it will not be assumed that the use permitted was in violation of law or under conditions that rendered the owner of the track liable for the torts of the user.</p> <p>6. -: -: -: -: -: This Case. Plaintiff was in the employ of the Missouri Pacific Railway Company as brakeman on a freight train, and the train was passing over a switch track belonging to the Iron Mountain Railway Company in a city,' in which was a track of a street railway company, whose cars were propelled by electricity through the medium of a trolley overhead wire, and whose tracks crossed the railroad tracks. Plaintiff, a tall man, was on the top of an unusually tall car in a freight train belonging to and operated by the Missouri Pacific, and while in the usual performance of his duties in that position was struck on the neck by the trolley wire as the freight train passed under it. Held, in the absence of any showing upon what condition the Missouri Pacific used the Iron Mountain track, the Iron Mountain Company is not liable for plaintiff’s injuries alleged to be due to the negligence of the Missouri Pacific Company.</p> <p>7. -: -: -: Trolley Wire: Twenty-Two Feet Above Track. The said Iron Mountain Railway Company was not negligent on the ground that the street railway company’s trolley wire was not maintained at a height of twenty-two feet above the railroad tracks, under the statute (Sec. 1179, R. S. 1899) which requires a street railway company to maintain its electric wires at a height of not less than twenty-two feet above the rail of the railroad track crossed by the street railway.</p> <p>8. -: -: Trolley Wire: Erected by Permission. A railroad company does not permit, and has no authority to permit, a street railway company to maintain a trolley wire over -its tracks laid in a public street of a city. Neither the railroad company nor the street railway company has the exclusive right to the use of the street, and the railroad company cannot lay its tracks, nor the street railway company stretch its wires, in the public street, without permission from the city. The part of the street occupied by the railroad company’s tracks is, in a limited sense, its right of way, but that does not give it control of the street railway company’s wire stretched over and across its tracks in the public street, nor is the railroad company responsible for the height at which the wire is maintained.</p> <p>9. -: -: -: Reasonable Height. In a suit against a railroad company, for injuries received by plaintiff who was a brakeman and who standing on ■ a moving freight car was struck in the neck by an overhead trolley wire of a street railway, the standard of reasonable height for such trolley wires is not the 22 feet at which the statute requires street railway companies to maintain said wires, for that statute, while it might apply to the suit if brought against the street railway company, does not apply to a suit brought against the railroad company. A trolley wire may be at a reasonably safe height for trains passing under it, although not twenty-two feet high. And where the evidence shows that the trolley wire was nineteen feet and five inches above the railroad rails, that the freight car on which plaintiff was standing was two and a half feet taller than the ordinary car, that he was an unusually tall man, that the wire struck him in the neck, that he had been passing under the wire almost daily on freight cars for eighteen months and had not been hurt, and that no other trainman had ever been struck by the wire, whether or not the wire was maintained at a reasonably safe height is at most a question for the jury, but the facts would seem to put that question at rest.</p>