Volume 218 — Missouri Reports

Quo Warranto. (1) The ownership by the Standard Oil Company of New Jersey of the stock of the Republic Oil Company and the Standard Oil Company of Indiana, and over two-thirds of the stock of the Waters-Pierce Oil Company, tends to show the existence of a trust, combination, understanding and agreement among respondents, and also shows the method or form in which such a trust, combination, understanding and agreement was accomplished and by which it was made effective.

Louis City Circuit Court. — Ron. Jesse A. McDonald, Judge. (1) The relation of trust and confidence existed between the grantor and the grantees in the deeds here in controversy, and the burden of proof is on defendants.

<p>1. NEGLIGENCE: Boarding Street Car: Passenger: Refusing Instruction. The instruction given told the jury in effect that if plaintiff had offered himself as a passenger on the street ear whilst the same was stopped for that purpose, and that defendant had not permitted the car to remain standing for a sufficient time to allow plaintiff to board the same, and further that whilst plaintiff was in the act of boarding the same said car was negligently and carelessly started, and plaintiff was thereby injured, then the finding should be for plaintiff. Held, that this instruction made it the imperative duty of the jury to find for plaintiff if they found (1) certain facts which in law made him a passenger and (2) if they found certain other facts which evidenced a failure of defendant to perform the high duty required of a carrier to its passenger; therefore, the court did not err in refusing an instruction for plaintiff which told the jury that “if you find and believe from the evidence that the cable car in question came to a standstill at the usual stopping place at the junction where passengers were let off and on, and that while said car was standing the plaintiff attempted to board the same with the intention of becoming a passenger thereon, then you are instructed that the defendant was bound to exercise towards him the utmost care and skill for his safety that prudent men would have exercised while engaged in the same business under the same or similar circumstances;” for, at most, this instruction was an abstract proposition of law, and submitted no issue not submitted by the one given.</p> <p>2. -: -: -: Stopping Reasonable Length of Time. Where the signal to start the street car was given prior to the .start, it was not error to instruct the jury “if the car which plaintiff attempted to board stopped at the usual stopping place where plaintiff claims to have been injured a reasonable length of time to enable plaintiff to board the same in safety, by the exercise of ordinary care on his part,” then he could not recover. It but goes to the contributory negligence of plaintiff in not using reasonable expedition in boarding the car after it had stopped for the reception of passengers.</p> <p>3. -: -:-: Invitation to Board. When a street car has been stopped for the reception of passengers for a reasonable length of time, the invitation to enter has closed when the signal is given to start.</p> <p>4. -": --: -: Releasing Handhold: Jerk. Plaintiff had both feet upon the steps of the car and both hands holding the guardrail, and rode in that position a short distance until a lady discovered her six-year-old son had not entered the car and began to scream. He thought she was going to jump off and told her not to jump, but about the same time released the hold on one guardrail, and by a jerk was thrown off. The alleged jerk is not shown to be out of the usual for the place and surroundings. Held, that the release of his hold was not occasioned by defendant, but by the acts of the woman, and the court did not err in telling the jury that “if plaintiff got upon the car before it started, or while it was in motion, and rode upon it for some distance with each hand holding to the guardrail, in a reasonably safe position and place upon said car, and thereafter he let go of one of said guardrails and fell from the car,” he could not recover.</p> <p>5. -: Instruction: Against Interest: As In a Criminal Case. An instruction telling the jury that plaintiff is a competent witness in his own behalf, that in determining the credibility of his testimony the jury should consider his interest in the result of the trial, that what he said against his interest the law presumes to be true, and what he said in his own behalf may be treated as true or false, etc., is erroneous and prejudicial. But, in spite of that error a verdict for defendant will not be disturbed, if the evidence is such that the court should have sustained a demurrer to plaintiff’s case.</p> <p>6. -: Reading Stenographer’s Notes to Jury: By Consent. Where both sides consented, upon the request of the jury, that the stenographer might go to their room, and read all his notes to them, and he went before them, the appellant is not chargeable with an interruption in the reading by the jury informing the stenographer that they had heard all they wished to hear. Besides, the report that the stenographer made of what occurred in the jury room is no proper part of the bill of exceptions.</p> <p>7. -: Boarding Street Car: Independent Cause: No Case. The car stopped at the usual place and the usual time, and plaintiff had notice of its starting before it started. He got on the steps and seized both handholds, and was in a place of reasonable safety, and rode in that place until another passenger began to scream that her six-year-old son had not boarded the, car, and thinking she was going to jump off he voluntarily released one handhold, and then fell off as the car was crossing other tracks. He says his fall was caused by a jerk -of the car, but his evidence shows there was nothing unusual in its movement when the place and circumstances are considered. Meld, that the accident was the result of his own, voluntary act, superinduced by an independent cause, and a demurrer to his case should have been sustained, and therefore' a verdict for defendant will not be reversed, though an erroneous instruction was given at defendant’s request.</p>

<p>1. APPELLATE JURISDICTION: Constitutional Question: Not Timely Raised. If the constitutional question is not timely raised, it is not raised at all. If it could in due course of orderly procedure have been put into the case by the answer, or in the instructions, or in other timely ways, and was not, it cannot be raised by being injected into the motion for a new trial.</p> <p>2. -: -: -: Amendment to Damage Act. The defendant, after a verdict for $4,000, in its motion for a new trial, assigned that the amendment of 1905 to the Damage Act, allowing to the husband the right to recover as much as $10,000 for the wrongful death of the wife, was unconstitutional in certain respects specified, and that the trial court in giving certain instructions in harmony with said statute denied to defendant the protection afforded by certain specified sections and clauses of the Constitution. Held, that the unconstitutionality of the statute could have been raised sooner than by the motion for a new trial, and hence was not raised at all by that motion.</p> <p>3. -: -: -: Abandonment. -The point that an act of the Legislature is unconstitutional, assigned as a ground for a new trial and set out in the briefs, but not discussed nor reasoned, will be considered abandoned on appeal; but whilst an abandonment of a constitutional question once timely put into the case will not destroy the jurisdiction of the court over the case, yet its abandonment does help to soften the disposition of the case when it is apparent that the question was not timely lodged in it.</p>

<p>1. APPELLATE JURISDICTION: Constitutional Question: Pertinent to Issues. The raising t>f a constitutional question in due time and by proper specification is not the only requisite for giving the Supreme Court jurisdiction of the appeal on the idea that a constitutional question is lodged in the case. There must also be some rational connection between the facts of the case and the section of the Constitution invoked. A mere statement that the judgment is in violation of a particular section of the Constitution does not of itself raise a constitutional question.</p> <p>2. -: -: -: Injunction: Attorney’s Fees. Tour-ville was an employee of a railroad, which owed him $81.98, and Flannigan sued him before a justice of the peace in Illinois, and obtained judgment against him and also judgment against the railroad as garnishee. Afterwards Tourville sued the railroad in Missouri before a justice of the peace for the same debt, obtained judgment and assigned it to Rule. Then the railroad filed in the circuit court its bill of interpleader against Flannigan and Rule, praying to be allowed to pay the money into court and let these two interplead for it; praying also for an injunction against Rule to restrain him from levying the exetion. The suit was contested and after the injunction was dissolved, upon motion filed to assess damages on the injunction bond the court assessed $200 in favor of Rule as for attorney’s fees, and from that judgment the railroad appeals, assigning as one ground for its motion for a new trial that the judgment deprived it of its property without due process of law, in violation, etc. The case turned in the circuit court on the question of fact whether any attorney’s fees were paid or liability incurred, and on the question of law whether attorney’s fees could be assessed in such a case. Held, that the first question is one of fact, to be determined by the evidence in the case, and the other one of law, for a proper answer to which resort is to the common law or the statute law of the State, and both questions can be decided without going to the Constitution, either State or Federal, and there being no constitutional question in the vitals of the case the Supreme Court does not have jurisdiction over the appeal.</p>

— Hon. Howard Gray, Judge. (1) The court committed error prejudicial to defendant in giving instruction 2 at the request of plaintiff and over the objection of defendant. Plaintiff’s evidence tended to prove that after the accident the pieces of the shaft disclosed a hole therein without any showing of what caused the hole — whether the fall down the shaft or something else. From this plaintiff deduced that the hole existed before the accident.

— Hon. Alex. H. Waller, Judge. The heirs of W. R. Wilhite deceased were necessary parties to this action to obtain a conveyance of the land, and hence the plaintiffs petition against the administrators alone wholly fails to state a case for specific performance. Schoulter v. Bockwinkles ’ Admr., 19 Mo. 647; Moore v. Murrah, 40 Ala. 573; Duncan v. Wieldiffe, 5 111. 452; Craig v. Johnson, 3 J. J. Marsh.

— Hon. J. W. Alexander, Judge. (1) The demurrer to the second defense and the motion to strike the same out should have been sustained for the reason that the thirty-year Statute of Limitations does not apply. That statute was adopted in 1889. Hunt v. Searcy, 167 Mo. 184; Hall v. French, 165 Mo. 430; Howell v. Jump,, 140 Mo. 441; Shumate v. Snyder, 140 Mo. 77; Pryor v. Winter, 83 Pa. St. 202. (2) The power of attorney was insufficient to convey after-acquired title.

Louis City Circuit Court. — Eon. D. D. Fisher, Judge. (1) The referee erred in his finding that plaintiff did not accept deeds to the two Westminster Place houses. (2) The referee’s method of calculating interest is illegal. Darling v. Potts, 118 Mo. 528. Especially as he has allowed compound interest which is not lawful unless specially contracted for in writing.

Transferred from Kansas City Court of Appeals. (1) Personal property is taxable at tbe domicile of tbe owner, and in tbe scbool district in wbicb owner resides or bas bis domicile. Stephens v. Mayor of Boonville, 34 Mo. 323; State ex rel. v. McCausland, 154 Mo. 189; State ex rel. v. Brown, 172 Mo. 374; School Dist. v. Wickersham, 34 Mo. App. 340. (2) If the tax herein is levied and extended against defendant in the wrong school district then plaintiff cannot recover.

<p>1. APPELLATE JURISDICTION: Constitutional Question: Raised in Reply: Timely. Where defendant in a divorce suit pleads a judgment and decree of divorce rendered by a court of another State, as an abatement or res a&jii&ieata, a plea in plaintiffs reply to the effect that the judgment of the foreign court upon service by publication was void, because in violation of certain constitutional provisions specified, is timely made, for it could not have been raised sooner; and whether there is merit in the plea or not, having been timely raised, a constitutional question is involved, and the appeal is to the Supreme Court.</p> <p>2. BILL OF EXCEPTIONS: No Filing. Where the abstract contains no recital that a bill of exceptions was filed, .or any record entry of the filing thereof, the appellate court cannot consider the bill or any evidence contained therein.</p> <p>3. -: Dismissing Appeal. Although there is no bill of exceptions in the case, yet if the pleadings are properly abstracted, and there is on file with the clerk a certified copy of the judgment and order granting the appeal, the court will not dismiss the appeal, but will consider those parts of the record proper and reverse or affirm the judgment.</p> <p>4. JUDGMENT OF ANOTHER STATE: Pleaded as Res Adjudicata: Sufficiency of Plea: Contradicted by Exhibits Attached. Where, in answer to plaintiffs bill for divorce, defendant pleads that a court of competent jurisdiction in another State had previously rendered judgment of divorce in her behalf and avers that defendant in that suit (plaintiff in this) was “duly and legally served,” that allegation cannot be controverted by an exhibit “attached to the answer and made a part thereof,” where there is no bill of exceptions. The exhibit is no part of the answer, and there being no bill of exceptions it cannot be considered, and there being no evidence to the contrary that can be considered it will be presumed that there was evidence to support the allegation that plaintiff “was duly and legally served” in the court of the other State.</p>

Appealfrom Jasper Circuit Court. — Hon. Hugh Dabbs, Judge. (1) The land being admitted and proved to be swamp land, originally the title vested in Barton county prior to 1856. Clarkson v. Buchanan, 53 Mo. 569; Bailroad v. Smith, 9 Wall. 95 ; Campbell v. Wortman, 58 Mo. 259; Foster v. Evans, 51 Mo. 40. (2) The certificate of title to Parry in 1856 conveyed no title to him. Campbell v. Wortman, supra; Hendrickson v. G-rable, 157 Mo. 45.

<p>ESTABLISHING LOST DEED: Useless Suit: Dower. Equity does not require useless things to he done, and ought not to do them. Where plaintiff brings suit to establish a lost or destroyed deed, and alleges that if said deed is re-established it will show that defendant has no dower in the land which she asserts, and the facts show that her husband never owned an estate of inheritance in the land and in consequence that she has no dower and would have none even if the deed were re-established, a judgment of the trial court adjudging the plaintiff “take nothing by his bill” will not be disturbed. Especially should that he the ruling where the record discloses that there is a suit pending between the same parties for the assignment of dower to defendant in the same land, and that suit, when disposed of in accordance with another decision of this court in which upon the same facts it was held she had no dower, will settle the rights of the parties in the subject-matter of this litigation.</p>

— Hon. J. W. Alexander, Judge. (1) The petition of plaintiffs herein does not contain allegations of fact sufficient to constitute a cause of action, or to warrant the decree rendered thereon in this cause.