Volume 222 — Missouri Reports

— Hon. Hermann Brumback, Judge. (1) The court erred in granting separate trials upon the separate counts of the petition. Peters v. Berkmeier, 184 Mo. 400; Graves v. Ewert, 99 Mo. 18; Davis v. Sloan, 95 Mo. 552; Stark v. Kirchgraber, 186 Mo. 633; Pitts v. Sheriff, 108 Mo. 116; R. S. 1899, sec. 4589; Bedford v. Sykes, 168 Mo. 15; Sidell v. Cornwell, 166 Alo. 54; Lane v. Dowd, 172 Mo. 167; Morrison v. Herrington, 120 Mo. 665; Ball v. Woolfolk, 175 Mo. 285.

<p>APPELLATE JURISDICTION: Title to Real Estate: Replevin. To give the Supreme Court jurisdiction of the appeal on the ground that title to real estate is involved, the record must show that the title to the real estate mentioned in the pleadings will he directly affected hy the judgment rendered. So that where plaintiff sued in replevin for wheat, whose value the jury found to he $82.50, and defendant pleaded that he bought the land on which the wheat was then growing and received a warranty deed from plaintiff, the Supreme Court does not have jurisdiction, for the judgment rendered will not affect the title, and the judgment may be satisfied by paying the $82.50.</p>

— Hon. Henry L. McGune, Judge. (1) The Supreme Court has not jurisdiction of this suit and it should be referred to the Kansas City Court of Appeals. The plaintiffs joined in the suit because they had a common interest in the questions of law involved and to avoid a multiplicity of suits and to save costs.

Louis City Circuit Court. — Hon. W. M. Kinsey, Judge. (1) The charter provisions under which this action was instituted having' been repealed and there being no saving clause providing for the continuation of suits pending at the time of the adoption of the amendment, the proceedings must fail.

— Hon. John G. Park, Judge. (1) The court erred in setting aside the verdict and granting a.new trial in this cause, on the ground that instruction 5 was error; said instruction correctly-declared the law. Boyd v. Railroad, 10'5 Mo. 371; Bartley v. Railroad, 148 Mo. 124; Holwerson v. Railroad, 157 Mo. 216; Moore v. Railroad, 176 Mo. 528; Hesselbach v. St. Louis, 179 Mo. 505; Felleny v. Railroad, 106 Mo. App. 154; Ross v. Railroad, 113 Mo.

— Hon. Jos. J. Williams, Judge. The court erred in admitting the sheriff’s tax deed in evidence for the following reasons: (a) Because the judgment in the tax proceeding on which it depends for its validity was not against the record owner of the land, (b) Because it purported on its face to convey the interest of “Mike Ohlman” when “Michael Ohlman” was shown by the evidence to be the record owner of the land on the date of the institution of the tax proceedings, (c) Because…

— Hon. Hugh Dabbs, Judge. (1) The trial court erred in holding that a divorce between plaintiff and her husband should be presumed on account of subsequent… Held: not to destroy the prima-facie validity of the second marriage. In such cases it has been presumed that the first marriage has been dissolved by divorce, and the burden to show that it has not rests on the person seeking to impeach the last marriage, notwithstanding he is thereby required to prove a negative.

<p>DIVORCE: Presumed Dower. For, the reasons stated in Maier v. Brock, reported at page 74 of this Report, it is held that the law presumes that the deceased testate, who was married in 1865 and married another woman in 1872, was legally divorced from the first wife prior to his subsequent marriage; and, therefore, in the absence of a contrary showing, the first wife, upon his death, was not entitled to dower in his estate.</p>

— lion. Jas. E. Goodrich, Judge. (1) Tlie court erred in not instructing tlie jury to find tlie issues in favor of defendant. Hoffman v. Railroad, 45 N. Y.' App. Div. 586; Allen v. Railroad, 183 Mo. 433; Yarnell v. Railroad, 113 Mo. 580 ; Keller v. Railroad, 149 Pa. St. 65; LeBarron v. East Bottom Ferry Co., 11 Allen (Mass.) 312; Farley v. Railroad, 132 Pa. St. 58; Hayman v. Railroad, 118 Pa. St. 508; Fern v. West Jersey Ferry Co., 143 Pa. St. 122; Orcntt v. Century Bldg.

— How. H. L. McGune, Judge. (1) The petition does not state a cause of action against defendant, (a) Because it does not allege that the accident happened in a public street of defendant; (b) because it does not state that defendant, after actual or constructive notice of the alleged defective condition, had a reasonable opportunity to repair said street before the accident and failed so to do.

Transferred from St. Louis Court of Appeals. (1) A proceeding for a rescission of a contract is a different thing from one which is based npon a rescission. In a proceeding as for a rescission, a party may offer in Ms complaint to restore, unless he shows he is entitled to retain what he has received.

— Eon. J. L. Fort, Judge. (1) The county court of 1891 could not have made an order for the sale of this land until a petition of householders had been filed as required by Sec. 8161, R. S. 1899. McDonald v. Mangold, 61 Mo. App. 293; Eaton v. St. Charles County, 76 Mo. 492.

Francois Circuit Court. — Eon. Bobt. A. Anthony, Judge. (1) (a) The petition does not describe the land with snch certainty that a writ of possession would enable the officer to execute it. (b) It does not define the interests of defendants.

— Hon. N. M. Bradley, Judge. The principal question involved in this case is whether or not an administrator, in the first instance and before judgment, can maintain an action, in a death case for $5,000, under section 2864, as said section stood on October 10, 1904, the day of the Ragels ’ death. (1) A personal right of action dies with the person. Broom’s Legal Maxims (4 London Ed.), p. 667; Mobile Life Ins.

Mandamus. (1) Each relator has a binding statutory contract by which it is entitled to a renewed certificate by complying with section 7888, and which cannot be impaired. The Act of 1907, if applicable to it, is unconstitutional. 6 Thomp., Corp., sec. 7902; State v. Root, 83 Wis. 667. Upon the faith of these statutes each relator acted, making large investments and building up an extensive business.

Quo Warranto. (1) The Senate of the Forty-fourth General Assembly, in extra session, was empowered to advise and consent to the appointment of relator. T. Action at an extra session may be' taken upon matters presented by the Governor in special message. Const., 1875, art. 4, secs. 9, 55; St. Louis v. Withaus, 16 Mo. App. 247. 2.

— Ron. L. B. Woodside, Judge. (1) Defendant’s instruction in the nature of a demurrer should have been given and the case taken from the jury, (a) Because plaintiff was a trespasser in defendant’s private switchyards. R. S. 1899, sec. 1105; Jackson v. Railroad, 157 Mo. 621.

<p>1. ABSTRACT: No Recital of Record Matters. Record entries, as such, cannot be preserved in a bill of exceptions for appellate purposes, and if they appear in the bill and nowhere else it is the same as if they did not appear at all. So that where there is no recital in the record proper at what term of court (if any) the motion for a new trial was filed or overruled, or the affidavit for an appeal was filed and the appeal granted, or at what term an order was entered granting plaintiff leave to file a bill of exceptions, the abstract is fatally defective, though the bill of exceptions contains a recital of some of these things.</p> <p>2. -: Transcript. A manuscript full transcript on file with the court is not an abstract. Absent conflicting abstracts, the court will not go to that transcript to spy out those things essential to perfecting an appeal and to give it jurisdiction of a concrete case, nor for matter essential to an understanding of points to be decided. Those things must be abstracted in a printed abstract, and an abstract is what its name imports —it does not mean (except by grace) a full record, and it means something more than an analytical index.</p>

Louis City Circuit Court. — Hon. Warwick Hough, Judge. (1) The court should have given the peremptory instruction asked by defendant at the close of the whole case, because there was no evidence tending .to show that the car, while running at a speed it was shown to be running at the time of the accident, to-wit, fifteen miles per hour, could have been stopped or checked in time to have avoided the death of deceased after her danger was apparent — the last-chance doctrine…

Louis City Circuit Court. — Hon. G. Orrick Bishop, Judge. (1) Plaintiff’s instruction 1, which directed the jury to return a verdict for plaintiff, if they believed the car was started with a sudden movement while plaintiff was alighting therefrom, is erroneous: (a) Because it did not require the jury to further find that the car was not stopped a sufficient length of time to permit plaintiff to alight. Clotworthy v. Railroad, 80 Mo. 220; Jackson v. Railroad, 118 Mo. 224.

— Eon. Frank P. Walsh, Special Judge. (1) The court erred in compelling Wear to answer to the amended petition. The petition does not state a cause of action. Pier v. Heinrichoffen, 52 Mo. 333; Gamage v. Bushel!, 1 Mo. App. 418 ; Sid-way v. Mo. Land & L. S. Co., 163 Mo. 374; Hoester v. Sammelman, .101 Mo. 624. (2) The court erred in overruling the objection to the introduction of any testimony under the amended petition.

— Ron, R, L. Mc-Cwne, Judge. (1) The objection to the introduction of any evidence under the petition should have been sustained, (a) It failed to state either in so many words or facts showing that deceased would have had a cause of action against appellant had he lived. This point was duly raised by special demurrer. Lee v. Railroad, 195 Mo. 415. (b) Plaintiff lived in Kansas; the injury occurred in Kansas.

— Hon. G. O. Tichenor, Special Judge. (1) The deed from James Chambers and wife to the Board of Publication of the Cumberland Presbyterian Church of Nashville, Tennessee, was inoperative to convey the title of the land in controversy to the grantee therein named for the following reasons; (a) Because the deed was not delivered in the lifetime of the grantor.

— Hon. Henry G. Riley, Judge. (1) “Whether requested or not the court must instruct the jury in writing upon all questions of law arising in the ease, which are necessary for their information in giving their verdict. ’ ’ Laws 1901, p. 140; State v. James and Johnson, 216 Mo. 394.

— Son. Jno. P. Butter, Judge. (1) Defendant was not the insurer of the safety of plaintiff’s husband on the occasion here described. Turner v. Haar, 114 Mo. 346; 1 Labatt on Master and Servant, p. 306; Flori v. St. Louis, 69 Mo. 341; Fuchs v. St. Louis, 167 Mo. 621; Gulath v. St. Louis, 179 Mo. 38; Cox, Admr., v. Railroad, 102 Iowa 711; Stock-well v. Railroad, 106 Iowa 63; Kinzel v. Railroad, 137 Fed. 489.

— Eon. E. C. Riley, Judge. (1) Ejectment was not the remedy of plaintiff in this case. Defendant entered by the consent of plaintiff, granted it as early as October 18, 1902, and began at once the construction of the connecting track which in part crossed the land sued for by plaintiff. Ejectment will not lie against a railroad in such eases.

— Eon. G. A. Mosman, Judge. (1) The duty of the master to use ordinary care to furnish his servants with reasonably safe appliances is not a contractual obligation. It is a duty imposed by law. It arises by operation of law, because of the relation of master and servant, and not by virtue of the contract of employment.

— Hon. L. W: Shafer, Judge. (1) The evidence as to defendant’s negligence was not sufficient to warrant the submission of this case to the jury, (a) The necessary elements were not established by the evidence. Bowen v. Railroad, 95 Mo. 268; Hamilton v. Railroad, 123 Mo. App. 619; Bnrnes v. Railroad, 129 Mo. 53; Glasscock v. Dry Goods Co., 106 Mo. App. 663; Hester v. Dold Packing Co., 84 Mo. App. 451; Bennett v. Lumber Co., 116 Mo. App. 710; Kelly v. Railroad, 105 Mo.

Louis City Circuit Court. — Eon. Moses N. Sale, Judge. (1) Whatever the covenants, they were those of the covenantors individually. Murphy v. Price, 45 Mo. 249; Foote v. Clark, 102 Mo. 401; Donahoe v. Emery, 9 Met. (Mass.) 66. (2) ■ The deed of trust attempted to convey a fee within Sec. 907, R. S. 1899. McCulloch v. Holmes, 111 Mo. 447; Ewing v. Shanna-ban, 113 Mo. 193.

<p>1. LIBEL: Privileged Communication. If the words complained of were written by defendant in the discharge of some duty, public or private, legal or moral, or with the view of protecting some interest pertaining to defendant’s business, and were relevant and proper in that connection, and were made in good faith upon- a proper occasion, with a proper motive based upon a probable cause, and in the honest belief that they were true, they are a privileged communication.</p> <p>2. -: -: Fraternal Society to Agent. Plaintiff was the agent of defendant fraternal-beneficiary association, and demanded larger compensation than defendant considered him entitled to under his contract, and held back moneys collected by him which defendant and his contract required him to remit, and had in some of his letters threatened suit against defendant if it did not accede to his terms, and avowed that if it did not accede he would leave defendant’s employ and that when he left he would take two-thirds of defendant’s members with him. Thereupon, after an attempt to amicably adjust the matters with plaintiff, without success, defendant wrote its members in the community where he was agent that plaintiff had been discharged, that he had collected the dues due from members for two months and reported the amounts collected and the names of members who had paid, but had remitted none of the moneys collected by him, and notifying the members that they would not lose standing in the association, and asking them to remain. The evidence strongly tends to prove those assertions to be true. Held, that the letter was a qualified privileged communication, and in the absence of a showing by plaintiff of some sort of express malice the court should have sustained defendant’s demurrer to the evidence.</p> <p>3. -: -: Malice. Where the letter was a qualified privileged communication, it is essential that plaintiff show that the exigencies of the situation did not call for the use of the language employed, and that it amounts to an abuse of the privilege,, ánd was therefore actuated by express or actual malice. A privileged communication is an exception to the rule that every defamatory publication implies malice.</p> <p>4. -: -: -: Burden. It is the duty of the court to determine whether or not the communication is a privileged one, and if it is privileged the burden' shifts to plaintiff to show malice, and if there is no substantial evidence of express or actual malice then the court should sustain a demurrer to' plaintiff’s case.</p> <p>5. -: -: Untrue Statement. A statement made by a fraternal association to its members that plaintiff, its agent, had not remitted the moneys he had collected for two months, when in fact he had retained all those collected for one month and a part of those collected the previous month, was substantially true.</p>

— Mon. Samuel Davis, Judge. (1) The publication was not ambiguous or of doubtful import and evidence of witnesses as to its meaning was therefore improperly received. Newell on Slander and Libel, 290. (2)’ The court held the article to be plain and unambiguous and so was bound to declare its meaning as matter of law and erred in submitting it to the jury as a question of fact. Pleller v. Pulitzer Pub.

— Eon. Kendall B. Randolph, Special Judge. The Supreme Court has no jurisdiction of this case for the reason that appellant never perfected his appeal within the time required by the statute authorizing appeals in such cases. The only provision for appeal in cases under this act is provided in section 9. There was no such thing as an appeal known to the common law. Schroeder v. Jabin, 94 Mo.

— lion. Wm. H. Martin, Judge. (1) From the year 1810 the “Cumberland Presbyterian Church” has been an independent ecclesiastical body or society whose spiritual and temporal existence was presumed and intended to continue on and on throughout time, and its organizations and government were formed and established with that aim and to that end, as best its founders could devise.