Volume 251 — Missouri Reports

<p>APPEAL: Dismissal Upon Stipulation: Without Revivor. Under Sec. 2075, R. S. 1909, a revivor, where one of the appealing plaintiffs has died, is not necessary in order that the appeal- may be dismissed in accordance with a stipulation entered into by the sole surviving plaintiff and respondent.</p>

— Hon. L. B. Woodside, Judge. (1) The court should have given the peremptory-instruction to find for the plaintiff requested at the close of the defendant’s evidence. Where the facts are admitted, or there is a total failure of a defense pleaded, the application of the law is a matter for the court. Ford v. Dyer, 148 Mo. 528; Hite v. Bailroad, 130 Mo. 132; Wolff v. Campbell, 110 Mo. 114; Clemens v. Knox, 31 Mo. App. 185; Bank v. Hainline, 67 Mo. App. 483.

— Hon. J. E. Slover, Judge. • (1) There was no substantial evidence tending to show any negligence on the part of the defendant resulting in the accident in question; nor was there any substantial evidence tending to show that plaintiff received any injury in that accident. Spohn v. Railroad, 87 Mo. 84; Spiro v. Transit Co., 102 Mo. App. 250.

Prohibition. (1) The writ of prohibition lies to prevent an excessive or unauthorized application of judicial power, and also to prohibit a court from assuming judicial power not granted by law. State ex rel. v. Williams, 221 Mo. 227. (2) The suit instituted by London Jiner v. Lizzie Jiner is under Secs. 2401, 2402 and 2403, R. S. 1909, and the prayer of plaintiff is for a temporary restraining order.

Habeas Corpus. (1) Petitioner was deprived of Ms constitutional rights by tbe decision of Judge Guthrie, rendered without a hearing, and by the refusal to permit the introduction of competent evidence in his defense. In re Clark, 208 Mo. 147; Paving Co. v. Ridge, 169 Mo. 384; Mc-Clatchy v. Superior Court, 119 Cal. 413, 39 L. R. A. 692; State ex rel. v. Judges, 32 La.

— Hon. Alfred Page, Judge. There is absolutely no substantial evidence upon which to base the judgment of conviction in this case.

— Mon. James D. Barnett, Judge. (1) The alleged levy of the $38.94 for the use and benefit of the special road district of Montgomery county was made without authority of law. State ex rel. v. Railroad, 195 Mo. 228. (2) The taxable value of railroad, telegraph and telephone properties in Montgomery county could only be fixed by the State Board of Equalization. Secs. 9338, 9339, 9340, 9359, 9363, R., S. 1899; State ex rel. v. Railroad, 82 Mo. 683.

<p>Appeal from Montgomery Circuit Court. — Hon. James D. Barnett, Judge.</p>

— Hon. C. A. Denton, Judge. (1) The court erred in finding for the plaintiff in» this case for the reason that the patent shows the land was patented to Sylvestus H. Williams, and the plaintiff’s evidence shows that his father’s name, under whom he claims, is Sylvester H. Williams. Having failed to establish any title in Sylvester PI. Williams, the plaintiff as his heir cannot recover. Sylvestus and Sylvester are not idem sonans. 29 Cyc. 276; 16 Am. and Eng.

<p>1. APPELLATE JURISDICTION: Constitutional Question: Settled Since Appeal was Taken. Where the appeal was taken, to the Supreme Court on the ground that the statute upon which the action was based is unconstitutional, and its constitutionality has been determined in another case since the appeal was taken, the Supreme Court will retain jurisdiction and dispose of the case upon its merits.</p> <p>2. NEGLIGENCE: Excessive Speed: Train Known to Be Approaching. Because a train was running at a dangerous rate of speed, far in excess of the ordinance rate, across the main thoroughfare of the town, a pedestrian on a sidewalk crossing the track was not justified in stepping onto the track when she knew the train was approaching at its usual rapid rate of speed, and was so close she did not have time to pass rapidly across before it struck her.</p> <p>3. -: -: -: Presumption That Defendant Would Obey Ordinance. A pedestrian, who knew that a train on schedule time usually ran through the town at a speed far in excess of the ordinance rate, was not justified in supposing that the engineer on the particular day she attempted to cross the track in front of it would do the unusual thing -of reducing the speed to the ordinance rate.</p> <p>4. -: Proximate Cause of Injury. Where deceased, seventy-two years of age, her hearing and eyesight somewhat defective, walked toward the railroad track, and when she was within six or eight feet of it looked towards the approaching train, which she knew did not usually stop at the town and with whose schedule she was acquainted, and which was running, as usual, at a speed of 35 to 50 miles an hour, and pulling up her dress skirts, walked rapidly onto the track and had- almost passed over when the engine struck and killed her, the proximate cause of her injury was her own contributory negligence,- and there can be no recovery, notwithstanding the ordinance fixed twelve miles an hour as the maximum speed of trains.</p> <p>5. --: -: Humanitarian Rule. The humanitarian rule, requiring the engineer of a train to discover a pedestrian's-peril and stop or slácken the speed thereof, does not apply when the pedestrian, is aware of the train’s approach, and so knowing looks toward the train and then walks on the track in front of it. Where the adult pedestrian close to the track looks towards the approaching train the engineer is warranted in supposing she sees it and will exercise ordinary intelligence to keep out of its way.</p>

<p>Appeal from Jackson Criminal Conrt. — Hon. Ralph S. Latshaw, Judge.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The strip of ground which was known, first as Fifteenth, then as Twenty-first street, and was in fact a continuation or prolongation of Twenty-first street, was a public and legal street. (2) The tax bills are void because this street was ignored in making out of the bills sued on.

<p>1. DECREE: Appeal: Time for Filing Bond: Extended by Supersedeas. 'Where an appeal was taken from a judgment reading that defendant “may,” within ten days, “execute and deliver to plaintiff his bond,” etc., or, failing that, suffer designated consequences, the time for filing the bond was extended by supersedeas.</p> <p>2. APPEAL: Supersedeas: Terminates When Mandate is Filed in Trial Court. Stay of proceedings by supersedeas during appeal does not terminate until the Supreme Court’s mandate is filed in the trial court.</p> <p>3. -: Dismissed: Misconstruction of Decree Appealed From. Where plaintiff took proper preliminary steps to appeal and then withdrew or dismissed them, misconstruing the effect of the decree from which she appealed, the Supreme Court will not adopt her misconstruction in order to prevent her from losing' the benefit of the appeal she dismissed.</p> <p>4. -: From Order Approving Bond Filed in Accordance With a Decree: Questions for Review. Plaintiff appeals from an order of the circuit court approving defendant’s bond given in accordance with the court’s decree, and contends that the effect of the bond is to exempt other property of defendant from plaintiff’s claims. Plaintiff perfected no appeal from the decree itself. Held, that the contention is not to be considered. What the decree was and is and not what it ought to have been is now the question.</p> <p>5. --: -: Evidence: No Offer in Trial Court. Where no evidence was offered upon a point in the trial court, there is no record basis for an assignment of error before the Supreme Court based on the exclusion of such evidence.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Section 14 of article 6 of the charter of St. Louis is invalid in that it deprives the appellant of his property without due process of law and denies him the equal protection of the law. 14th Amendment of U. S. Constitution; Norwood v. Baker, 172 U. S. 277; French v. Asphalt Co., 181 U. S. 345; Seattle v. Kelleher, 195 U. S. 358; Martin v. District of Columbia, 205 U. S. 139; Raymond v. Chicago U. T. Co., 207 U.…

— Hon. R. L. McGune, Judge. (1) The court erred in sustaining the demurrer and dismissing the case. Westport had authority to. construct sewers and pay for the same out of the general fund, under the law governing cities of the fourth class, independently .of the Sewer Act of 1893. The •ordinance was binding and the contract effective, and an obligation to pay for the. work was thereby created, although made pursuant to the Sewer Act of 1893.

— Hon. Francis H. Trimble, Judge. (1) Because of the insufficiency and invalidity of the process, service and return thereof, of the sheriff of Harvey county, Kansas, in the case of G-illihan & Brosins v. H. Lindsey Harlow, and the insufficiency and invalidity, of the levy of the writ of attachment issued in said cause, no jurisdiction was ever obtained over the person of the defendant in that cause, and no-seizure of the res was ever made, and for these reasons no valid…

— Hon. Thomas J. Seehorn, Judge. • (1) A husband’s right of action for alienation of affections is personal, and is not barred by a judgment of divorce. Bennett v. Bennett, 116 N. Y. 584, 6 L. R. A. 553; Nolin v. Pearson, 191 Mass. 283; Wales v. Miner, 89 Ind. 118; Michael v. Dunlde, 84 Ind. 544; Wood v. Matthews, 47 Iowa, 409; Purdy v. Robinson, 133 App. Div. 155, 117 N. Y. Supp. 295; Prettyman v. Williamson, 1 Pa. St. 224; Beach v. Brown, 20 Wash. 266, 43 L. R. A. 114.

— Mon. James 3. Slover, Judge. (1) Under the pleadings and evidence in this case the judgment should be for defendant. The court should have so instructed, the jury.

<p>QUO WARRANTO: Judgment of Ouster: “Stay of Process. The Supreme Court stays and suspends, upon condition, its writ of ouster upon its judgment of ouster heretofore entered against a corporation convicted, upon the information of the Attorney-General, of entering into an unlawful combination and pool in restraint of trade; and retains jurisdiction of the case in order that, either upon the motion of the Attorney-. General or upon its own motion, it may compel compliance with said conditions.</p>

<p>1. MANDAMUS: Validity of Tax Bill: Improvidently Issued. The writ of mandamus should not be. issued by the Supreme Court where the only question at issue is the validity of a special tax bill issued by the city of St. Louis in an unimportant matter of improving a public street. The writ is not one of right, but one resting in a wise legal discretion, and the exercise of a sound discretion does not demand its issuance in an unimportant matter, in which the parties have an ample remedy in another forum.</p> <p>2. -: -: -: This Case. The street to be improved runs north and south and crosses a private park 110 feet wide, which runs east and west, and which the plat declares' “is a private place laid out for the exclusive use and benefit of the parties fronting thereon.” The lots front on this private park, and run back to alleys. Those on the south are 190 feet from the alley to the center of the park, and those on the north are 200 feet from the alley to the center of the park. Lots which have been sold were sold as running to the center of the park, but the tax bills describe the lots on the south as having a depth of 135 feet from the alley to the south line of the park, and those on the north as having a depth of 145 feet from- the alley to the north line of the park; and the only question is, should the lots have been assessed as extending from the alleys to the center of the private park, or as extending from the alleys to the outer line of the park? Held, that an alternative writ, issued by the Supreme Court, to compel ,the city to issue new tax bills in lieu of those already issued, was improvidently issued, and a peremptory writ should be denied, without prejudice.</p>

<p>1. CONSPIRACY IN RESTRAINT OF TRADE: Insurance Companies: Agreement to Withdraw from State. Foreign insurance companies, licensed to do business in this State, have a legal right, individually and of their own separate motion, to-withdraw from the State, and to discontinue the writing of-insurance contracts; but they do not have the right to- enter, into a joint agreement and confederation unitedly, on a day agreed upon, as the result of concerted action, to withdraw from the State and cease on that date to write insurance contracts, or unitedly to agree to cancel all contracts entered into by them. They have no more legal right to agree to do a lawful thing than they have to agree to do an unlawful act.</p> <p>2. -: -: Anti-trust Law in Force April 28, 1913: Oliver Law. The law of 1911, known as the Oliver Act, d,id not repeal the anti-trust laws then in force, either directly or by implication, and if any words in it could be construed to repeal them by implication they were invalid because there were no words in the title of the Act of 1911 to indicate that its purpose was to repeal the existing anti-trust laws. The Act of 1911 did not permit insurance companies to conspire for the purpose of withdrawing from the State or of limiting the amount of insurance that may be written in the State or of refusing to write insurance contracts or of canceling existing policies; and while the Act of March 29, 1913, repealed the anti-trust laws, it' also re-enacted them, in every respect, except by the addition of one new section, and hence the antitrust laws, namely chapter 98, R. S. 1909, were in force when this suit was brought on April 28, 1913.</p> <p>3. QUO WARRANTO: Injunction as Ancillary. The Supreme Court has jurisdiction to issue a temporary injunction in aid of or ancillary to a quo warranto writ pending therein, in order to stop the mischief complained of and to preserve matters in statu quo. The Supreme Court is given express authority to try a quo warranto, and wherever a court is given ex.press authority to try a cause it has the power to do all things that are incident to the trial, or that are necessary to be done in order to carry into full force and effect the judgment or decree the law authorizes the court to render. Where the Attorney-General charges, in an information in the nature of a quo warranto, that certain foreign insurance companies have entered into an agreement to unitedly withdraw from the State on a certain day, and to cease, by a concerted movement, to* write insurance contracts in the State, and asks that said agreement he declared unlawful and void, and that respondents be fined for entering into it, the court can also issue a temporary injunction restraining said companies from withdrawing from the State and otherwise doing irreparable injury to the business of the State and from canceling existing policies, pending a trial of said information.</p>

Mandamus. (1) An assessment cannot be considered completed until'it has passed the State Board of Equalization. Prickett v. Marceline, 65 Fed. 469; Lake County v. Standley, 24 Colo. 1; McLean v. Valley County, 74 Fed.'389.

Quo Warranto. (1) The burden of proof in a quo warranto case is upon the respondent. State ex rel. v-. McCann, 88 Mo. 386.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) The court erred in refusing to instruct the jury at the close of all the evidence that the plaintiffs were not entitled to recover; and this because: (a) There was not one scintilla of evidence as to how the boy came to be in the pool, (b) Because in thus submitting the case to the jury, the jury were permitted to speculate as to the manner in which the boy came to be in the pool.

— Hon. John P. Foard, Judge. (1) Candidates nominated by electors are not the nominees of a political party; but are the nominees of the individual electors nominating them, and only as such are they entitled to go upon the ballot. The names of. candidates, nominated by electors, cannot be placed upon the regular ticket of any political party although there be a vacancy upon the ticket of the party of which they are members.

— Hon. Samuel Davis, Judge. (1) The court erred in granting instruction 3 on the part of the respondent, (a) The conversation between respondent and witness Wilson, was not privileged. Holmes v. Fraternal Union, 222 Mo. 556; Finley v. Steele, 159 Mo. 305; Sullivan v. Company, 152 . Mo. 277; Byam v. Collins, 111 N. Y. 143; Gassett v. Gilbert, 6 Gray (Mass.), 94; Klinck v. Colby, 46 N. Y. 427; Wallace v. Jameson, 179 Pa. St. 116; Conway v. Pittsburg Times, 139 Pa.

— Hon. David H. Eby, Judge. (1) There is no evidence of any fraud or false representations in connection with the making of said deed. After deed was written, it was read and explained, signed, signatures witnessed and acknowledged, by and in the presence and hearing of three disinterested white persons, all witnesses in this case. There was neither occasion nor motive for anyone of these white witnesses doing these old folks, colored as they were, the least injury.

<p>APPELLATE JURISDICTION: Injunction: Judgment for $2000. Where plaintiff sued in injunction and alleged its damages to be ten thousand dollars, and upon a trial upon the merits recovered judgment for two thousand dollars, and defendants alone appeal, the Supreme Court does not have appellate jurisdiction. The value of the injunctive relief prayed cannot be considered for the purpose of ascertaining the amount in dispute; that was determined by the judgment for two thousand dollars for plaintiff, from which it did not, and defendants did, appeal.</p>

— Eon. Luden J. Eastin, Judge. (1) That Mosman had no jurisdiction as a judge of a court to enter the pretended judgment and issue the pretended commitment, is shown by the evidence to the effect that there was no case on trial when he pretended to enter of record an order upon which the commitment for alleged contempt was issued by him. No case being on trial, he had no legal right to proceed at all against appellant for refusing to answer questions.

— Hon. Luden J. Eastin, Judge. (1) The petition filed in this case is wholly bad. The curator seeks to sue in his own name as such. That he cannot do. Reed v. Wilson, 13 Mo. 28; Koenig v. Union Depot Co., 194 Mo. 572; Webb v. Hayes, 166 Mo. 50. (2)‘ There was no appointment, in law, of a curator of Jones. “A probate court shall have no jurisdiction to inquire into the sanity of a person who owns no property.” R. S. 1909, sec. 474.

— Hon. Jesse G. Sheppard, Judge. (1) The court erred in finding for the plaintiffs and against defendants. The patent under which plaintiffs claim title is void on its face, in that it shows upon its face that the land was sold for a less consideration than the county was authorized under the Swamp Land acts to sell same. Laws 1854-55, p. 154; Sec. 19, Chap. 48, G-.

<p>Appeal from Butler • Circuit Court. — Hon. Jesse C. Sheppard, Judge.</p>

Louis City Circuit Court. — Hon. William B. Homer, Judge.' (1) Tire court erred in refusing to give instruction numbered one, offered by plaintiff, and in changing and modifying same and giving to the jury in its changed and modified form. The court erred in giving instructions numbered five, six, seven, eight, nine, ten and eleven, offered by defendants Riechers. Perrigo v. St. Louis, 185 Mo. 274; Commonwealth v. Mc-Naugher, 131 Pa. St.- 55; 15 Am. & Eng. Ency.

— Hon. David H. Eby Judge. (1) The court erred in giving defendant’s instruction number 1. There is no evidence on which--to base this instruction.

'Appeal from Cape Girardeau Circuit Court. — Hon. Henry C. Riley, Judge. (1) County courts are trustees of the school funds and can only deal with, handle and loan the funds according to the provisions of the statutes, and the statutes require the courts to make the loans and take the security, and the courts cannot delegate such power.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) After the amendment made to the second count of plaintiff’s petition — the demurrer to the evidence having been sustained to the first count — it does not state a cause of action, Because: (a) If the defendant did not agree to subscribe, as therein alleged, to the capital stock of the plaintiff, there is no privity of contract between it and plaintiff, which would enable it to treat the defendant as a shareholder, (b)…

— Hon. B. B. Byors, Judge. (1) In order for the widow to maintain an action under the statute (now Sec. 5425, R. S. 1909), of the .suit is instituted more than six months after the death ■sued for, it must be alleged and proven that the deceased left no minor children. Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Mathieson v. Railroad, 219 Mo. 548. (2) The peremptory instructions asked by defendants at the end.of the evidence ¡should have been sustained.

Louis City Circuit Court. — Hon. George G. Hitchcock, Judge. (1) In construing a clause in a deed the principal object to be arrived at is the intention of the parties; and. in order to ascertain the true meaning, the court will consider all the facts and circumstances attending the execution of the deed. Bank v. Kennett Est., 101 Mo. App. 388; Lakeman v. Railroad, 36 Mo. App. 371'; 17 Am. & Eng. Ency. Law, 21, 22; Devlin on Deeds, secs. 836, 836a, 837, 839.

of Common Pleas.— Hon. David H. Eby, Judge. (1) A very comprehensive, terse, and apropos epitome of the law applicable to the facts in this case is treated in Landis v. McDonald, 88 Mo. App. 347,. and Babbitt v. Kelley, 96 Mo. App. 534. (2) Tbe court committed error, botb in refusing the two instructions asked by appellant, and in giving tbe instructions asked by tbe respondent.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) The court erred in giving defendant’s instruction in the nature of a demurrer to the evidence, for the reason that there was sufficient evidence for the case to go to the jury; and it was error in declaring as a matter of law the plaintiff could not recover, Graney v. St. Louis, 141 Mo. 180 ; Lattimore v. Union E. L. & P. Co., 128 Mo.

— Hon. George W. Goad, Special Judge. The title was defective and the grantors being insolvent authorized the relief demanded by appellants. Rozier v. Graham, 146 Mo. 352; Doener v. Doener, 161 Mo. 399; Emmerson v. Hughes, 110 Mo. 627; Wad-dell v. Waddell, 99 Mo. 338; Dennison v. Keasby, 200 Mo. 412; Bruce v. Wolfe, 102 Mo. App. 384; Coleman v. Clark, 80 Mo. App. 339; Eagan v. Martin, 81 Mo. App. 676; Thompson v. Dickson, 68 Mo. App. 535; Whiteside v. Magender, 75 Mo.

Louis City Circuit Court. — Mon. Virgil Buie, Judge. (1) Where an issue of fact is raised and tbe testimony in support of said issue is all on one side and uncontradicted, still the question must be referred to tbe jury, wbo are tbe triers of fact and wbo must pass upon tbe credibility of tbe witnesses. Dalton v. Poplar Bluff, 173 Mo. 39; Printz v. Miller, 135 S. W. 19; Gordon v. Bnrriss, 141 Mo. 602.

<p>Appeal from Louisiana Court of Common Pleas.— Son. David S. Eby, Judge.</p> <p>Transferred to the St. Louis Court of Appeals.</p>

— Hon. W. O. Thomas, Judge. (1) Where one sues on a written contract, alleging exact and specific performance with its every condition, as here, he may not abandon his cause of action in his reply, nor can he recover on an alleged waiver of the contract provisions, which he says he has kept when such issue is first tendered therein. The plea of waiver is inconsistent with the allegation of performance nor can such allegation in the reply, cure the defect in the petition.

Louis City Circuit Court — Row. William M. Kinsey, Judge. (1) In construing a deed every part should he given effect. Chew v. Kellar, 171 Mo. 223; 17 Am. & Eng. Eney. Law (2 Ed.), p. 7, n. 3. (2) Parol testimony is not permissible to vary or control the words of a grant in a deed. Wolff v. Dyer, 95 Mo. 545; Jennings v. Brizeadine, 44 Mo. 332.

— Hon. John G. Park, Judge. (1) While the motion to strike was preserved in a term bill of exceptions, there was no final bill of exceptions preserving the motion for new trial, and this is fatal to the right of review. Coffee v. Carthage, 200 Mo. 616, 629, 630. This is but an application of the rules that all matters of exception must be always again brought forward by a motion for new trial.

Louis City Circuit Court. — Hon. William B. Homer, Judge. (1) It can always be shown, in the case of natural persons, that one who signed a' contract, such as this, in his own name, did so as agent for another. Where authority exists the question is one of intention. The same doctrine is applied to corporations. ‘.Jones y. Williams, 139 Mo. 37; Lewis v. Pulitzer Pub. Co., 77 Mo.