Volume 244 — Missouri Reports

— Hon. W. G. Ellison, Judge. The only question we think involved in this case is whether or not the defendant was guilty of negligence and whether or not the deceased was guilty of contributory negligence. The answer pleads contributory negligence and assumption of risk. We do not think the latter defense can have much to do with the case. It is an elementary principle of law and decided scores of times in Missouri that a servant never assumes the master’s, negligence.

Prohibition. (1) Where an action is brought in a State court in which there is a controversy which is wholly between a resident of Missouri and a non-resident of Missouri, the latter may remove the suit into the district court of the United States for the proper district. New Federal Judicial Code, 1912. (2) Where several parties cast debris into a stream a separate and distinct tort is committed by each and no joint tort is committed by them. R. & C. Co. v. Richards, 57 Pa.

Louis City Circuit Court. — No». Virgil Buie, Judge. (1) The peremptory instructions to find for defendant on the admitted facts should have been given.

— Hon. A. P. Terrill, Judge. (1) The defendant’s demurrer at the close of the evidence for the plaintiff and its demurrer at the close of all the evidence, should have been granted. At the close of the evidence for the plaintiff, the evidence showed that a view of the train nine hundred feet away could be obtained at any time while a person was going up the incline to the tracks or while upon the tracks.

— Hon. W. H. Martin, Judge. (1) The first point of the city that the nuisance complained of is a permanent injury and that all damages must in consequence thereof be recovered in one action has been heretofore adjudicated and put at rest in Smith v. City, 152 Mo. 300; and further the statement to the effect that the sewer was completed in Oetober, 1893, is erroneous, as it appears from tbe record that districts 10; 11, 15> and 16, were added to the system from May 28,1894,…

Saline Circuit Court. — Sew. Samuel B. Davis, Judge. (1) Parol partition, followed by possession, where all the parties derive title from a common source is valid. Bompart v. Roderman, 24 Mo. 385; Asken v. Barnett, 50 Mo. 506; Nave v. Smith, 96 Mo. 596; Sutton v. Porter, 119 Mo. 100; G-ulick v. Huntley, 144 Mo. 241; Whitsett v. Wamack, 159' Mo. 14; Starr v. Bartz, 219 Mo. 47.

— Hon. J. H. Slover, Judge. (1) The deed of. trust through which appellant claims title was a first deed of trust, and as such had priority over the deed of trust under which respondent claimed title in his petition. Young v. Comm. Co., 158 Mo. 410; Truesdale v. Brennan, 153 Mo. 600; McDonald y. Quick, 139 Mo. 498; Rogers v. Tucker, 94 Mo. 346.

— Hon. John M. Williams, Judge. (1) The demurrer ought to have been sustained. There was no evidence that Steinkraus ever applied for a policy of insurance on his building; no evidence that he paid the premium on said policy; no evidence of the delivery of said policy to him; and no evidence that he knew of the issuance of any such policy, if one were issued. Martin v. State, 28 Ala. 82.

— Hon. Francis H. Trimble, Judge. (1) The indictment should have been quashed, because it appears from the face thereof that the -alleged false pretenses were so absurd and irrational that no one had a right to rely thereon. State v. Cameron, 117 Mo. 641; State v. Barbee, 136 Mo. 440'; State v. Lawrence, 178 Mo. 350; State v. Keyes, 196 Mo. 136; Buckaleu v. State, 11 Tex. App. 352; Com. v. Drew, 19 Pick. 17; Com. v. Norton, 11 Allen, 266 ; People v. Crissie, 4 Den.

Louis City Circuit Courtr~Hon. Hugo Muench, Judge. (1) The attempted statutory dedication of West avenue by Baker, in filing for record a duly acknowledged plat, and tbe recognition of said plat by Camilla McManus in taking and recording deeds to property in which deeds reference was made to the plat, and in not returning the property, designated on the plat as West avenue, for taxation, or paying any taxes thereon for many years, and the acts of the city in making official…

— Hon. G. A. Denton, Judge. The will of J. J. Ryan which withdrew the administration of his estate from the probate court of Bates county was against public policy. 9 Cyc. 510; Noise v. Marsh, 123 Mass. 286; Conner v. Draker, 1 Ohio St. 166; Trust Co. v. Oreen Cove Springs, 139 U. S. 137; Steamboat Co. v. Salvage Co., 123 TJ. S. 40; Doyle v. Ins. Co., 94 U. S. 535; Ins. Co. v. Morse, 20 Wall. 445; Trott v. Ins.

— Eon. J. G. Sheppard, Judge. (1) The court erred in overruling defendant’s motions for a new trial and in arrest of judgment. (2) The court erred in overruling defendant’s motion to. quash the indictment. State v. Calvert, 209’ Mo. 286; State v. Crossman, 214 Mo. 242; R. S. 1909, sec. 5055. (3) There was not a scintilla of evidence in this case tending to show defendant guilty of the offense charged in the indictment.

— Son. Ralph 8. 'Latshaw, Judge. (1) Defendant should have been arraigned after the amended information was filed. State v. Hoffman, 70 Mo. App. 271; State v. Sovern, 225 Mo. 580; State v. Bloedow, 45 Wis. 279; State ex rel. v. Shields, 230 Mo. 103. The insertion of the word “felonious” before the word “intent” was essential, and if that made an indictment good that otherwise was bad, defendant should thereupon be arraigned. (2) The information is defective.

— Eon. J. E. Slover, Judge. ■ (1) These suits were brought as a result of an effort of the plaintiffs themselves to be the first in the field for receivership with a. view of getting control of the receivership proceedings. (2) As to the items of $2500 and $2000 for filing the suits in the two courts in the south, Missouri, Kansas and Texas Trust Company v. Kansas City, Shreveport & Gulf and Missouri, Kansas & Texas Trust Company v. Texarkana & Ft.

Election Contest. (1) None of the ballots cast at the election in 1910 for the offices in contest (or otherwise) had indorsed thereon the registration or line number of the voter casting the same, and, therefore, none of those ballots could legally be counted in this case. Sec. 6189, R. S. 1909' (Laws 190®, p. 170); sec.-5905, R. S. 1909; Constitution, sec. 5, art. 8; Donnell v. Lee, 101 Mo. 191.

<p>1. ELECTION LAWS: Special and General. It is the duty o£ the court, in an election contest, to dovetail and reconcile all election laws, so far as possible, and to give effect to all of them applicable to general elections; but if any inconsistency appears between the general law and the special law at any one point, the special law prevails.</p> <p>2. ELECTION CONTEST: Registration Number on the Ballots. The provisions of the general law (Sec. 5905, R. S. 1909) requiring the number found in the registration book opposite the name of the person voting to be placed on the ballot, do not apply to St. Louis; but what is required to go on the ballots in that city is determined by Secs. 5899 and 6220, R. S. 1909, which together declare that no other writing shall appear on the back of the ballot except the initials of the judges and the voting number. Section 6220, applicable only to St. Louis, is a special law, and is an exception to section 5905, and governs elections in that city so far as it goes, and it does not require the registration number to go on the ballots, neither does the law applicable to that city require or contemplate a registration number.</p> <p>3.--: Impossible Requirement. The law does not require an impossible thing to be done. It is impossible to indorse on a ballot a registration number that does not exist. Where all the names beginning with a certain letter of the alphabet are assembled on one and succeeding pages of the registration book, and each name on that page was given a number from the first name downward, the same method and numbers being thereby repeated in the book twenty-six times, there was in fact no registration number, but such numbers were simply made for the accommodation of the clerks.</p> <p>4. -: -: Long Acquiescence of Public. The fact that since the enactment of the Act of 1895 the election officials of the city of St. Louis have construed the law to require no number in the registration book and consequently no registration number on the ballot, and that after eight years of such construction the Legislature in 1903 substantially reenacted that statute without providing for such registration number, and that this construction has been acquiesced in by the entire community, including candidates defeated for office, since 1895, is of great persuasive force against a judgment that would hold invalid every ballot cast in the city at one general election because of the absence from each ballot of a registration' number.</p>

<p>1. ELECTION CONTEST: Jurisdiction: Challenged By Inter-meddler. A county clerk, commanded by the court’s writ to recount the ballots in his county, in aid of an election contest for a State office, to which he is not a party, cannot, by motion, challenge the jurisdiction of the court, for he is an intermeddler, and his motion without legitimate function.</p> <p>2. -: In Supreme Court: Jurisdiction. The Supreme Court has jurisdiction to hear and determine an election contest for the office of State Superintendent of Schools, brought by the unsuccessful candidate at the election, as contestant, against the candidate who received the certificate of election and the commission to take office, as contestee. [Following Gantt v. Brown, ante, 271.]</p> <p>2. -: Motion to Dismiss: Impliedly Overruled or Abandoned. A motion to dismiss the election contest, filed early in the proceeding, charging that the allegations of contestant’s petition are too general, are merely fishing in character and only aimed at making a discovery, and that the action has not been prosecuted with due diligence, was impliedly and in effect overruled by subsequent orders, sometimes made on showings and sometimes on stipulation of counsel, extending the time of the commissioners to take evidence, and will be considered as abandoned by the movent’s silence on the final hearing at which it is not contended the petition does not state a cause of action.</p> <p>4. -: Registration Number. All the ballots cast at a general election in the city of St. Louis will not be thrown out because of an absence from each of the ballots of the registration number thereof, although to throw them out would result in giving the office to the contestant. The ballots were not Illegal because-the registration number of each was not placed thereon. [Following Timmonds v. Kennish, «tie, 318.]</p> <p>5. -: Fraud: Secrecy of Ballot. The secrecy of the ballot. should be kept inviolate up to the point where it becomes necessary to show fraud in the ballot box or ballots, and no further. There is no place where fraud can take sanctuary from justice. But the proof of fraud must be kept within the averments of the petition.</p> <p>'6. -: -: Irregularities. Irregularities in detail are-bound to occur in all registrations and elections where little time is -allowed and a vast array of voters register or vote and. a multiform aggregation of minute details are necessarily crowded into that little time. Courts recognize that condition as a natural one in election contests, and work out the wrong' and right of the matter and the injury to the contestant or contestee by weighing the facts and giving heed to the letter and not losing sight of the spirit of the laws.</p> <p>7. -: -: Not Established. Where the averments of contestant’s petition relating to fraud are established neither by the recount of the ballots by the board of election commissioners of the city, nor by the recount of the county clerks of the ballots cast in their counties, nor by the report and findings of the court’s commissioner appointed to take evidence in the election contest ease, nor by the other testimony, the-issue of fraud will be put aside. Fraud is not to be grounded on suspicions or conjectures.</p> <p>8. -: Illegal Voters: Negroes: Names Stricken at Subsequent Registration. The fact that at a registration in January after the election in November the names of eleven hundred negroes who had voted in November were stricken from the registration books, as unknown and not found, along with the names of fifteen thousand men, white and black, is-not sufficient to establish the contention that those eleven hundred negroes were illegal voters; especially, where it is shown that the registration for said November election was taken in-September and at said November election a question was voted upon which was -of all-pervading interest. The vote of a voter is not impugned by the mere fact that his name is stricken from a precinct registration list on a recanvass two months-after an election.</p> <p>9. -: -: -: -: Presumption. The presumption is that a name placed upon the registration books-by the judges and clerks of election is properly there, and that when he has voted and his vote has been counted he was. a legal voter.</p> <p>10. -: -: -: -: From Disreputable Houses. The fact that negro voters registered from disreputable houses in a congested negro quarter of the city, or from lodging, rooming or boarding houses, in numbers ranging from one to nineteen from each of said houses, does not of itself tend to show that they were not legal voters. Technical or actual sexual immorality is not a statutory disqualification to vote; and the court will take judicial notice that imperious prevailing social conditions irresistibly drive negroes to herd together.</p> <p>11. -: -: Unnaturalized Citizens: Equal Number for Each. Where the number of persons voting for contestee who contestant claims were not naturalized citizens is counterbalanced by an equal number of persons voting for contestant who were by the same token not naturalized, the court will not determine whether any of them were or were not naturalized citizens at the time they voted.</p> <p>12. -: -: Sporadic Scratching: By a Single Mark. The striking off of contestant’s name with a single stroke of the pencil, sporadically, in all precincts of the city, if there is no evidence pointing to a motive or to a common and preconceived design to commit the wrong of unauthorized erasure, will not be held to constitute illegality in the election, especially if such sporadic scratching affects both candidates alike. The court cannot know judicially that a legal voter, wishing to scratch a name, would use more than a single stroke of his pencil.</p> <p>13. -: -: Registration: Neglect or Mistake of Clerk: No Entry Under Qualified Voter. If the entries under proper headings in the registration books show the voter to be a legal voter, d’nd he is permitted to vote, the fact that the registration clerk wrote the word “no” under the caption ’“Qualified Voter”, in the registry, when he should have written “yes,” or that he wrote nothing at all under that heading, will not justify the court in holding the ballot of such a voter to be illegal. Such act of the clerk would neither enfranchise an illegal voter nor disfranchise a legal one. The duty of the contestant in such case is to go further and show that the man who voted and opposite whose name on the registration book under the words “Qualified Voter” was written “no,” or nothing at all, was in fact an illegal voter.</p> <p>Meld, by WOODSON, J., that the statute requires the Board of Election Commissioners to state on the registration books what persons whose names appear thereon are “qualified voters,” and said statute is mandatory, • and the judges of election cannot change that determination by the board once made.</p> <p>14. -: -: One Initial on Ballot. The statutes do not themselves declare that a ballot on which the initials of only one judge of an. election appears is not to be counted; and unless there is such a statute, the court in an election contest will look into the matter to determine whether or hot actual fraud caused the omission of the initials of the other judge. But if the legal voter himself does no wrong, performs his own duty and casts an honest ballot, it should be counted, in the absence of a statute declaring it cannot be counted. [Overruling McKay v. Minner, 154 Mo. 609; and following Hehl v. Guión, 155 Mo. 76, and Bowers v. Smith, 111 Mo. 45.]</p>

— No». C. A. Denton, Judge. . (1) The possession of one tenant in common is the possession of all. Bernecker v. Miller, AO Mo. 473; Long v. McDow, 87 Mo. 197; Rodney v. McLaughlin, 97 Mo. 426 ; Stevens v. Martin, 168 Mo. 407. The entry and possession of one tenant in common is prima facie in support of the title of his cotenants. There must be some notorious and unequivocal act, indicating the intention to hold adversely.

<p>1. TAX SALE: Combination to Suppress Bidding. An agreement between outside bidders at an execution sale not to bid against each, other is good ground, when the agreement is operative, for setting aside the sale. But such an agreement to be available must be pleaded, and if not pleaded the admission of proof of it is reversible error in an appeal from a judgment setting aside the sale and deed.</p> <p>2. -: Pleading: Alleging Tax Deed: General Denial. A general denial to. a' petition charging that an illegal sale of plaintiff’s land under a judgment for taxes was made, at which defendant was the purchaser and received a sheriff’s deed, is slovenly pleading, to say the least, for thereby defendant denied the existence of the deed; and when defendant filed such an answer and failed to introduce the deed in evidence, he can not complain of a decree setting the sale aside were it not for the fact that both sides tried the ease on the theory that the sheriff’s deed was in existence.</p>

— Hon. Samuel . Davis, Judge. (1) The issue in this case is as to whether or not the plaintiff is a child of Nicholas Mooney, deceased, capable of participating in Nicholas Mooney’s estate under the law of descent and distribution; and not having been mentioned or provided for in the will of said Nicholas Mooney, the burden of. proof is upon plaintiff to show that he is such child of Nicholas Mooney. 5 Cyc. 628; Pickens’s Estate, 163 P'a. St. 14.

Louis City Circuit Court . — Hon. J. E. Withrow, Judge. (1) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence. Ege v. Brick Co., 118 Mo. 630 ; Fink v. Furnace Co., 82 Mo. 276; Morgan v. Bowman, 22 Mo. 538; Crenshaw v. Ullman, 113 Mo. 633'; Independence v. Slack, 134 Mo. 66; Blumb v. City, 84 Mo. 112; Dillon v. Hunt, 82 Mo. 1501; Uerdes v. Christopher, 124 Mo. 347; Salmon v. Kansas City, 241 Mo. 14.

Appeal freía Schuyler Circuit Court. — Hon. Nat M. Shelton, Judge. (1) A mortgagor of land owns the legal title thereof, subject to the lien of the mortgagee. Dickerson v. Bridges, 147 Mo. 235. '(2) The title of land of the decedent descends to his heirs, and the heirs hold the legal title to the land of the decedent, subject to be defeated by the sale of his administrator for the payment of his debts. Kane v. Railroad, 112 Mo. 34.

— Hon. Nat M. Shelton, Judge. (1) The court erred in directing a verdict for the proponents of the will.

Eon. L. J. Eastin, Judge. (1) There is a complete failure of considération as to the instrument pleaded in the answer. Failure of consideration and partial failure of consideration are always available as a defense. R. S. 1909', sec. 1974; Tinker v. Kier, 195 Mo. 183 ; Barr v. Baker, 9 Mo. 854; Tucker v. Bartle, 85 Mo. 114; Bank v. Crandall, 87 Mo. 208; Hess v. Draffen, 90 Mo. App. 580; Brolaski v. Carr, 127 Mo. App. 279; Kerwin v. Friedman, 127 Mo.

<p>Appeal from St. Louis City Court of Criminal Correction. — Ron, R. N. Moore, Judge.</p> <p>The ordinance on which this proceeding is based is unconstitutional. In re Kelso, 147 Cal. 609 ; 2 Dillon on Mun. C'orp. (5 Ed.), see. 695, p. 1061; Charter of St. Louis, art. 3, sec. 34; C'otting v. Stock Yards, 183 U. S. 112; Soon Hing v. Crowley, 183-U. S. 709; State v. Bixman, 162 Mo. 71; St. Louis v. Spiegel, 90 Mo. 587; St. Louis v. Spiegel, 75 Mo. 145.</p> <p>The city of St. Louis has- the power to prescribe the conditions upon which a stone quarry may be operated; the provision in the ordinance in question that a special ordinance shall be secured for the operation of a quarry, and the provision that this condition shall not affect those who were operating quarries at the time of the passage of the ordinance in question, are not discriminative, but are the exercise of a valid charter power. Charter,, art. 3, sec. 26, els. 6; Dillon on Mun. Corps. (5 Ed.), 598; City v. Ploward, 119 Mo. 47; City v. Fischer, 167 Mo. 654; Fischer v. City, 194 U. S. 361.</p>

<p>1. WILLS: Life Estate with Power of Disposal for Use and Comfort of Life Tenant. A clause of Eliza Andrews’s will read: “I give, devise and bequeath the residue of my estate to m,y said sister Sarah, and it is my desire that whatever of said, residue may be left undisposed of at her death shall go to her descendants per stirpes. In the .event that I survive my said sister Sarah I give, etc., said residue ... to her children. A, B and C, one-fourth each, and the remaining one-fourth to'I> and E, children of her deceased son F.” The sister Sarah outlived the testatrix. The residuary estate combined both realty and personalty and in it was a note for $2300 secured by a second deed of trust on certain property. Sarah bought in the prior outstanding note for $450 and purchased the property at trustee’s sale, paying therefor by allowing a credit on the note. She then executed and delivered a deed purporting to convey the land in fee to her son A, a volunteer. ■ Held, that the will gave a life estate to the sister Sarah, with full power to dispose-of the property for her use, comfort or enjoyment, or any other purpose incident to those ends, but with no power to will it or give it away, and her son A, being a volunteer, is charged with notice of her want of authority so to deed to him the property -obtained at said trustee’s sale.</p> <p>2. -: Construction: Intent of Testator. A will must be construed according to the intent of the maker, unless that intent runs counter to an inflexible rule of law or public policy.</p> <p>S. -: -: Life Estate by Implication. A life estate may be created, without using express words, by implication from a will, or by language of equivalent meaning. Words, •expressions or clauses, inferential only in import, contained in a will devising in general or indefinite terms real or personal property, with a limitation over after the death of the first taker, are sufficient to create a life estate in the immediate devisee and uphold the remainder.</p> <p>4. -: -: Life Estate: Power of Disposal. Where a life estate is created by will, whether by implication only or in express words, with ■ a remainder over, the power of the life tenant to defeat the remainder depends upon the exercise of a superadded power of disposition given by the will, and such power will be strictly construed and confined to its exact intendment, and any attempted exercise thereof beyond its just scope will not affect the rights of the remainderman.</p>

— Hon. J. D. Barnett, Judge. (1) The court erred in refusing to give the jury the peremptory instruction asked by plaintiff. The answer admits the slander and does not plead the truth, and defendant admits the slander. In these circumstances the only question open is the amount of damages. Mitchell v. Bradstreet, 116 Mo. 226. (2) The court erred in sustaining the objection to the question asked of witness Pool, what he understood by the words spoken of plaintiff by defendant.

— Eon. J. H. Slover, Judge. (1) Plaintiffs’ petition fails to state facts sufficient to constitute a cause of action, and the evidence slows that plaintiffs are not entitled to any relief, (a) Sec. 1176 of the Revised Ordinances of 1898, on which plaintiffs base their action, is invalid because its provisions limiting the power of the appointing officers to discharge their employees at will are inconsistent with the provisions of Sections 1 and 7 Article 13 of the charter of…

<p>For the reasons stated in Gregory v. Kansas City, 244 Mo. 523, ante, the judgment for plaintiffs in this case is reversed.</p>

— Eon. Nick M. Bradley, Special Judge. (1) The finding for the plaintiffs on the special count was proper, because the defendant ratified and adopted the unauthorized guaranty by collecting, retaining and appropriating the proceeds of the certificates of deposits issued to it by plaintiff, after full knowledge that such certificates had been obtained on the strength, and by means of the guaranty, (a) The defendant bank had the corporate power to raise money, either by direct…

— Hon. H. L. McCune, Judge. (1) The trial court should have directed a verdict for the defendant. The plaintiff was guilty of violating several positive and distinct rules of the company, the observance of any one of which would have prevented the accident. It is the duty of a railroad company to make rules for the operation of its trains, and a failure to-do so has been held to be negligence on its part.

— Hon. David H. Harris, Judge. (1) It is not within the power of the Legislature under the Constitution to create special road districts having the powers and functions of the Pulton Special Road District, and Art. 6, Ch. 102, R. S. 1909, as amended, and the act approved March 18, 1911, authorizing special road districts to issue bonds and providing for the payment thereof, are unconstitutional and void.

— Eon. J. M. Williams, Judge.- (1) The part of See. 63 of the appropriation bill directing the payment of $7000 for the salary and expenses of John H. Nolen “as special agent of the State and the commission and expert in the work of said commission” is violative of the Constitution, null and void.