Volume 224 — Missouri Reports

Clair Circuit Court. — Hem. C. A. Den-ton, Judge. (1) Henry, at any time after the conveyance to him, could have brought suit upon the covenant therein and the measure of damages could then have been ‘'the value of the land as fixed by the parties themselves in the price given and received.” Dickson v. Desire, 23 Mo. 166.

Appeal' from Jackson Circuit Court. — Hon. Jas. E. Slover, Judge. (1) An agent of a principal is never liable to a third party except where the case reveals on the part of the agent facts and circumstances of actual, positive and intentional fraud and deceit. There is not a particle of evidence in this case to show actual fraud or deceit on the part of defendant Hutton. O’Neill v. Young, 58 Mo. App. 628; Thompson v. Irwin, 76 Mo.

Louis City Circuit Court. — Eon. Wm. M. Kinsey, Judge. (1) It was error for tbe court below to render judgment dismissing the suit on judgment on the plea in abatement and refusing plaintiffs leave to file amended petition. (2) The suit involving one entire undivided tract, United States Survey No. 1583, plaintiffs had the right to join in one suit all persons who claimed any part, parcel or interest therein.

Quo Warranto. (1) The term “perpetual succession,” as used in the special act creating respondent insurance company, implied nothing more than a continuance of succession during the existence of said insurance company, which was fox twenty years, as provided by the general corporation laws then in force. ■ R. S. 1855, sec. 1, p. 369 (Now sec. 971, R. S. 1899.); State ex rel. v. Road Co., 207 Mo. 73, 101; State ex rel. v. Payne, 129 Mo. 468; State ex rel. v. Ladies of Sacred…

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The court erred in refusing to give, at the close of the case, an instruction in the nature of a demurrer to the evidence, at the request of the defendant. (a) Because plaintiff did not prove that defendant’s negligence, if any, was the proximate cause of his injuries. Haley v. Railroad, 179 Mo. 30'; Railroad v. Kellogg, 94 U. S. 469; Fairbanks v. Kerr, 70 Pa.

— Row. Wm. C. Ellison, Judge. (1) The administrator of the estate of Susanna Downing, deceased, was a necessary party plaintiff to the action. McMillan v. Wacker, 57 Mo. App. 220; Adey v. Adey, 58 Mo. App. 408; Butler v. Lawson, 72 Mo. 227. (2) Plaintiffs’ cause of action, if any existed, was barred by the Statute of Limitations. Sec. 4281, R. S. 1899; Rosenberger v. Mallerson, 92 Mo. App. 27.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The court erred in admitting portions of the dying declaration objected to by defendant on tbe ground that they were not a part of tbe res gestae. Those portions all tended to prove facts anterior to tbe homicide and not “the act of hilling, and the circumstances immediately attending it, and forming a part of the res gestae” of the homicide.

Won. H. Wallace, Judge. (1) The court erred in giving instructions 1 and 5. State v. Harney, 101 Mo. 470; State v. Riseling, 186 Mo. 531; State v. Owsley, 102 Mo. 678; State v. Priestley, 74 Mo. 24. (2) The court erred in admitting the evidence of Eunice Swift and Ethel Kelso for the reason that they were so young that they did not know the nature and obligation of an oath. 1 Stark. Evidence, sec. 22.

Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge. (1) On the marriage of John Huser and Mathilde Pfeiffer, widow of Edward Pfeiffer, said will vested an absolute equitable title to said premises in the widow Mathilde Pfeiffer (now Rothenberger), his daughter Julia, and his son Gustav, in equal parts. Corn-well v. Wulff, 148 Mo. 542.

Louis City Circuit Court. — Hon. Robert M. Foster, Judge. (1) The old common-law precept which required the court to construe a pleading most strongly against the pleader has been overthrown by the statute of Missouri, which requires that, in the construction of the pleading, for the purpose of determining its effect, its allegations shall he liberally construed., R. S. 1899, see. 629; Butts v. Long, 94 Mo.

<p>X. MOTION FOR NEW TRIAL: Appeal: Other Grounds. The Supreme Court is not confined to the grounds assigned by the' trial court for granting a new trial. If the order can he sustained on any of the grounds assigned in the motion it will he upheld.</p> <p>2. DEMURRER: Waiver. Where the court refused to sustain a demurrer offered to the evidence at the close of plaintiff’s case, the defendant by thereafter putting in testimony does not waive its right to have a demurrer considered offered at the close of the whole case.</p> <p>3. LESSOR: Lessee’s Torts: United Railways Company. The United Railways Company, being the lessor of its railway system to the Transit Company, is not, under the lease, set out in Moorshead v. United Railways Co., 203 Mo. 121, liable for the torts of the lessee in operating a street car.</p> <p>4. -: -: —-: Assent of City. Where plaintiff offered the lease in evidence, the lessor, in order to evade liability for the lessee’s torts, is not required to make it appear that it complied with the Constitution by obtaining the assent of the city to the lease of the street railways and that it accepted the provisions of the legislative act of 1899 by filing a resolution of its hoard of directors with the Secretary of State. In the absence of proof, the presumption is that both companies complied with the constitutional and statutory requirements.</p> <p>5. NEGLIGENCE: Instruction: Based on Conjecture. An instruction permitting plaintiff to recover upon mere conjecture should not be given. Where plaintiff in attempting to board a moving car lost his balance and held to the handhold with one hand and was dragged while the car ran thirty-five to forty-five feet before being stopped, an instruction should not he given authorizing a recovery if the motorman, after he discovered' plaintiff’s peril, omitted to exercise proper diligence to stop the car, and the injury was inflicted after said discovery,, there being no evidence of when he discovered plaintiff’s perilous position; for, under the circumstances, it was impossible for the jury to determine, except by mere conjecture or guess, just When the negligence arose, or whether there was any negligence at all, or when plaintiff received his injuries, whether within the distance reasonably required to stop the car by the exercise of ordinary care, or whether after the negligence arose of permitting the car to run beyond such reasonable distance, if the plaintiff attempted to hoard the moving car after being warned by the motorman not to do so, as the instruction assumes, and said ear was stopped within thirty-five to forty-five feet, and could not have been by the exercise of ordinary care stopped within a less distance, the defendant would not he liable for plaintiff’s injuries received while being dragged that distance, hut would he liable only for injuries thereafter received.</p> <p>6. -: -: Recovery on Defendant’s Evidence. A plaintiff will not be permitted to repudiate his own allegations and evidence, and recover on defendant’s evidence which, if true, disproves his own case. Nor should an instruction he given authorizing a recovery on a theory antagonistic to an instruction based on plaintiff’s cause of action as stated in his petition and his proof in support thereof.</p> <p>7. -: Concurrent: Contributed. The negligent act of defendant cannot he connected with plaintiff’s negligence as a contributing cause of the injury. Concurring or co-operating negligence has reference to joint or several negligent acts by persons other than the injured party. In this case, either defendant’s negligence in not stopping the car after plaintiff was in a perilous position was the sole and proximate cause of his injury, or its failure to stop the car was not negligence at all. It cannot he held that defendant’s negligence in failing to exercise ordinary care to stop the car after it discovered plaintiff’s peril contributed with his. own negligence in attempting to board the moving car after he had been warned not to üo so, to cause the further injury.</p> <p>8. -: Elements of Damage. An instruction which directs the jury to assess compensation “on account of such injury or injuries as you find from the evidence defendant is liable for under the other instructions of the court” should not be given, unless the other instructions point out the injuries for which defendant is liable.</p> <p>9. -: -: Nursing: No Evidence of Value. Where there is no evidence of the time plaintiff was nursed by trained nurses, or the value of their services, or who employed them, or what they were promised or paid, the instruction should not include compensation for nurses.</p>

— Hon. Hugh Babbs, Judge. (1) The court erred in permitting the defendants, Ellen Nicholas and Thomas R. Nicholas, to testify, the plaintiffs having objected to their testimony on the ground that they were parties to the transaction, or cause of action, in controversy while the other party, Mrs. Burlingame, was dead.

- — Hon. Henry G. Riley, Judge. (1) Plaintiff failed to show that he ever had any title to the land!. Under the evidence the title is still in the Government. He introduced certain entries in ‘ ‘ Carleton’s Abstract, ’ ’ but these entries do not prove that plaintiff ever had any title, for these reasons: (a) The act authorizing “Carleton’s Abstract” to be received in evidence, approved March 28, 1901, was the only foundation on which the entries were offered.

— How. G. A. Mosman, Judge. (1) The petition did not state a cause of action, (a) The ordinance “fixes” the time at ten months. This is definite and obeys-the mandate of the statute requiring the ordinance to “fix” the time within which such, work shall he completed, etc. Then follows in the ordinance, a proviso clause extending the time (for the completion of the work) under certain conditions that may happen. Does this proviso nullify the main text?

Certiorari. (1) The petition should show all jurisdictional facts. Held: as relators contend it should be, that that part of article 4, chapter 122, which provides that the county court shall pay all the costs, except of construction and collection of delinquent assessments or installments not taxable to petitioners, remonstrators or appellants, out of the county treasury and the county treasury shall be…

Mandamus. (1) The taxation of merchants and manufacturers in Missouri though in form license taxation is in fact property taxation in the form of a license. State v. McKinney, 48 Mo. 373; Cape Girardeau v. Reilly, 72 Mo. 220; State ex rel. v. Tracey, 94 Mo. 217; Aurora v. McGannon, 138 Mo. 38; State ex rel. v. Ashbrook, 154 Mo. 375.

(1) The mayor and council of Webb City, when proceeding with the bearing of the charges against the marshal, even though they were performing acts which were judicial in their nature, constituted no part of the judiciary of the State and the circuit court of Jasper county had no right or authority to interfere therewith or to undertake to substitute its judgment or discretion for that of the mayor and council.

Mandamus. (1) The proceedings instituted by relators were not for the purpose of constructing new ditches, hut as is admitted by the return and as is alleged in the petition, for the express purpose of “altering, deepening and widening” the ditches, which had been constructed, and which were known as drainage district No. 3. Meranda v. Spurlin, 100 Ind. 383; Rodgersjv.

Francois Circuit Court. — Hon. Chas. A. Killian, Judge. 1 (1) A clear case of contributory negligence on part of tbe deceased was shown by tbe evidence, and tbe case should not have been submitted to tbe jury: Evans v. Railroad Co., 178 Mo. 512; Davies v. Railroad, 159 Mo. 1; Wheat v. Railroad, 179 Mo. 572; Riccio v. Railroad, 189 Mass. 358; Aerkfetz v. Humphreys, 145 U. S. 418; Clancy v. Railroad, 192 Mo. 615; McG-rath v. Railroad, 197 Mo. 97; Cahill v. Railroad, 205 Mo.…

— Hon. Henry G. Riley, Judge. (1) No plaintiff is entitled to a decree declaring the claim of another invalid until he has first shown that he himself has a better claim. This is true in equity as in law. If, therefore, the defendant’s proof goes no further than to show that the plaintiffs’ title is invalid!, the plaintiff is not entitled to a decree. Wheeler v. Reynolds Land Co., 193 Mo. 291.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) Tire evidence is conclusive that tire omission to include the replication in the report of the proceedings in court was not malicious hut by inadvertence. (2) The replication was in no sense material to a proper understanding of the judicial proceedings. Blondeau v. Sheridan, 81 Mo. 54'5; Sheehan v. Sims, 36 Mo.

— Hon. Nat. M. Shelton, Judge. (1) Every will shall be in writing. R. S. 1899, sec. 4604. We gather from a reading of the above-section that the will, the whole of it, must he in writing. Had the lawmakers intended that a will should rest part in writing and part in parol, or extrinsic matters, it is fair to presume that they would have said so; having said that it should he in writing, then, parol evidence cannot he admitted to add to.

— Hon. Louis Hoffman, Judge. (1) The court erred in excluding legal evidence offered by the defendant. 1st. The declarations of Harryman, while still in the possession of the plaintiff’s forty, to the defendant, as to the boundary line between the two tracts were admissible. Declarations of those in possession of land, in respect to the boundary lines or the extent of their occupation are admissible in evidence as part of the res gestae.

<p>DOWER: Appeal: Jurisdiction: Monetary Judgment. In a suit to admeasure dower in land and praying for and resulting in a monetary judgment in tlie widow’s favor, and made a special lien on the land, title to real estate is not so involved as to give the Supreme Court jurisdiction over the appeal by defendants, although the question of whether or not she was entitled to dower was an issue in the case. Although title to real estate is put in issue by the pleadings and is incidentally involved yet as the trial resulted in a monetary judgment, and was the only judgment prayed for and appealed from, it can he satisfied by the payment of money, and title is not so involved as to vest the Supreme Court with jurisdiction.</p>

— Hon. Henry C. Riley, Judge. (1) The unpaid taxes for the years 1890 and 1892 constituted a lien on the land, prior and paramount to all others, of which Bader was hound to take notice when he took the quitclaim deed from Erwin, and of which Griffin was bound to take notice when Bader quit-claimed to him.

— Hon. J. H. Slover, Judge. (1) The conrt erred) in overruling demurrer of defendants at the close of plaintiff’s testimony and at the close of all the testimony, for the reason: (a) The fall of deceased occurred in broad daylight and the obstruction which plaintiff claims .caused' the fall, was in plain view of the deceased. There was nothing to distract his attention therefrom, and his action in stumbling over said obstruction, if he did stumble, was negligence yer se.

<p>1. ELEVATOR: Common Carrier. The company owning an office building in which is a passenger elevator for the use of persons doing business therein, is, as to such elevator and persons, a common carrier of passengers.</p> <p>2. NEGLIGENCE: Passenger: Pleading: General and Special: Proof. Where a passenger is injured through the negligence of the carrier, it is not necessary to plead the specific acts of negligence which caused the injury, hut the petition will be sufficient if it charges negligence in general terms. Under such a petition, all that is required of plaintiff to make out his ease, is to show that the defendant was a common carrier, and that the injured party was a passenger and was injured while being carried. But where the petition charges the specific acts of negligence, namely, in this case, that there was no operator in the passenger elevator when the plaintiff entered it through an open door, and that the machinery provided for its operation and control was out of repair, in consequence of which it began suddenly to descend, those acts must be proved as alleged, or plaintiff cannot recover.</p> <p>3. -; stepping in Stationary Elevator: Defective Lever. The elevator, had in the evening been run up to the tenth floor, to what is called the automatics, by which it was automatically stopped, and there it remained during the night, its door open, and its floor a little above the level of the floor of the building. The elevator was operated by means of a lever, pushed back and forth; when pushed to one side the elevator would ascend, and when pushed to the other side it would descend. The elevator was originally provided with a tangent along which the lever worked, and the lever was intended to be held in place by a pawl, which fitted into a notch in the tangent, thereby constituting a catch or lock, which held the lever in a stationary position, and it in turn held the car stationary. But this tangent had been removed, and the pawl had been tied up with a piece of wire, thereby liberating the lever, and leaving it to oscillate according to the motion of the car, and instead of controlling the car’s movement the car might control its motion; and so evenly balanced was the car and its counter-weights and hydraulic pressure that, in order to keep the car stationary, the lever had to be kept in constant motion, back and forth across the center. Plaintiff, who had operated a telephone exchange through the night, about 7 a. m. stepped into the elevator, not knowing there was no operator present; it began to descend, she became frightened, and in trying to get -out was injured. Held, that the stepping of the ■girl into the car overcame the even balance of the car and its counter-weights and caused it to descend; that she was a passenger, was not guilty of contributory negligence, and a demurrer to her case should not have been sustained.</p> <p>4. -:-:-:-: Proof of What Might Have Caused the Accident. The law did not require plaintiff to show that none of the car’s counter-weights had been removed. She was not required to show what might have caused it to descend; nor that certain things did not cause it to descend. All she was required to do was to show what did cause its descent, and that she did by showing it began to descend when she stepped upon it.</p> <p>5. -: -: -: -: Not Pleaded. If by manipulating the lever or some other act of negligence she caused it to descend and therefrom received her injuries, then defendant should have both pleaded and proved contributory negligence on her part.</p> <p>6. -: Contributory: Instruction: Fright. The instruction told the jury that if they “believed from the evidence that plaintiff exercised ordinary care for her own safety while approaching, entering and while on said elevator, and that after said elevator had started to descend and by reason of the descent thereof plaintiff was seized with terror and alarm for her own safety, and that plaintiff had reasonable cause to apprehend peril and danger to herself, and that the appearance of danger was imminent, leaving no time for her to deliberate, then the court instructs the jury that her attempt to escape from said elevator resulting in her injuries is not contributory negligence on the part of the plaintiff,” etc. Held, correct.</p> <p>7. -: Descending Elevator: Movement of Lever: Inferred From Other Facts. The facts showed that the elevator would neither descend nor ascend unless the lever moved back and forth across the tangent, but it showed the pawl that locked the lever was absent, that the car descended when its counterweights were overbalanced, and that it did descend when plaintiff stepped upon it. Held, that, although there was no positive or direct testimony that the lever moved, yet there were facts and circumstances from which it could reasonably be inferred, and that was sufficient.</p>