Volume 259 — Missouri Reports

— Hon. C. H. Skinker, Judge. (1) Prior to the Married Woman’s Act of 1889, the deed of a married woman in which her husband did not join was void, and did not convey her land. See. 609, R. S. 1879; Huff v. Price, 50 Mo. 228; Bartlett v. O’Dohoghue, 72 Mo.' 563; Sutton y. Casseleggi, 77 Mo. 404- To constitute the husband a party grantor to his wife’s deed it was necessary that he be described as grantor, either expressly or by necessary inference.

- — Hon. W. S. C. Walker, Judge. The statute upon which plaintiffs alleged cause of action was founded, is unconstitutional in that the title to the legislative act creating said statute does not disclose its true contents. Furthermore, said act is violative of both the Federal and State Constitutions in denying to defendant the equal protection of the laws, and is special and class legislation.

— Hon. John M. Williams, Judge. (1) The evidence' fails to show that a tender of the sum of twenty-four hundred dollars, or any other amount, was made to these defendants before the filing of plaintiff’s petition, or prior to the trial of the case, although it is alleged in the petition the sum of $2400 was offered to defendants.

— Hon. James T. Neville, Judge. (1) The law presumes that the deed was the result of undue influence, and the burden was on the defendant to explain that the deed was not the result of such undue influence. Kincer v. Kincer, 151 S. W. 424; Hall v. Knappenberger, 97 Mo. 509; Street v. Goss, 62 Mo. 226; Alimón v. Jewell, 94 U. S. 506; Griffith v. Godey, 113 U. S. 89.

<p>Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.</p>

— Hon. C. A. Calvird, Judge. The court erred in refusing to admit in evidence the record of the marriage of Thos. J. Fry, the former husband of the plaintiff, to L. J. Farris, and the other evidence offered by defendant tending to show the fact of said marriage, and that they lived together openly as man and wife in Bates county, Missouri, from the time of said marriage in 1891 until his death in 1906 as tending to show that Thos.

— Hon. George W. Wanamaker, Judge. (1) The action is properly-brought in the name of the county. Sec. 1729, R. S. 1909. (2) An action for money had and received is not barred by limitation until five years after the right of action accrues. Sec. 1889, R. S. 1909; Shelby County v. Bragg, 135 Mo. 291. (3) Where the fraud is an open one the Statute of Limitations runs within five years; if secret, ten. years. Sec. 1889, R. S. 1909; Callan v. Callan, 175 Mo. 346.

— Hon. L. B. Woodside, Judge. (1) A general warranty deed like the one in question, can only be set aside when it is procured by fraud or undue influence, or by mistake, and such fraud, undue influence and mistake must be charged in the petition, and not only charged, but must be proven as charged. Anderson v. Gaines, 156 Mo. 664; Brown v. Fickle, 135 Mo. 495'; Taylor v. Crocket, 123 Mo. 300'; Studdard v. Wells, 120 Mo. 25.

<p>1. FRATERNAL BENEFICIARY ASSOCIATION: Suicide Clause: Special Law. The statutes concerning fraternal -beneficiary associations being creative and regulatory of such associations and insurance by them, and being found in a separate article of the chapter concerning insurance, complete within itself and whose provisions are applicable to such associations as a class, are not inimical to the constitutional provisions concerning class legislation, and the section which exempts such associations from the provisions of the insurance laws of this State is not void as an attempt to confer a special grant or privilege on this class of corporations.</p> <p>2. -: Vested Rights: Change in By-Laws. No vested rights are conferred upon a member by a certificate issued by a fraternal beneficiary association. The amount the member may recover, or whether he may recover at all, can be made to depend upon conditions named in the contract, such as subsequent changes in the by-laws.</p> <p>3. -: -: Subject to Future Regulations: Suicide. At the time the certificate was issued by defendant fraternal beneficiary association one of its by-laws provided that in case the member committed suicide his beneficiary should “receive only one-half of the face value of his benefit certificate.” After-wards this by-law *was amended so as to read that death by the member’s own hand “shall forfeit all the rights and claims to the amount agreed to be paid on his death and specified in the benefit certificate of such member, and hie beneficiary shall receive and be paid in lieu thereof such a proportion of ,the sum named in his benefit certificate as the total amount he has paid into the Widows’ and Orphans’ Fund bears to the amount he would have paid had he lived out his entire life expectancy at his age of entering.” The certificate declared: “If accepted as a member, I agree to comply with and that my membership and all interests of the persons entitled to such benefits shall be subject to all the laws, rules and regulations now in force in the order or which may hereafter be adopted by it.” Another provision of the certificate recited that “the member expressly agrees to comply with all the rules and regulations now governing or that may hereafter be enacted” by the properly constituted authority of said association; and the plaintiff’s husband accepted the conditions by signing his name to this acceptance: “I accept this certificate on the condition therein named.” Held, that the association had a right to change the by-law, and that the member had no vested right in the $2000 named in the certificate as the amount of his insurance in case he did not commit suicide, nor to one-half of its face value in case he took his own life, but the subsequent change in the by-law fixing the amount his beneficiary should receive, in case of his suicide, at a proportionate part of the named fund, was valid, and all she could recover was that proportionate part. [Distinguishing Pearson v. Knight Templars, 114 Mo. App. 283, and Richmond v. Supreme Lodge, 100 Mo. App. 8.]</p> <p>4. -: Constitution and By-Laws Part of Contract: Subsequent Change. The constitution and by-laws of a fraternal beneficiary association are an integral part of the contract of insurance issued by it and accepted by the member, and are to be read into it, and- neither the member nor the beneficiary has any vested interest in the certificate; and, therefore, in the absence of such vested interest, it is permissible for the association and the member to contract in advance that the terms of the certificate may be subsequently changed, provided the change is reasonable.</p> <p>5.--: -: Reasonable Change in By-Law. Where the certificate provided that in case the member committed suicide his beneficiary should be paid one-half of the maximum amount of insurance named therein, and also provided, as a condition of the contract, that the amount to be paid should be subject to future changes in the by-laws, a subsequent change in the by-law, by which, in case of the member’s suicide, his beneficiary was to be paid “such a proportion of the sum named in his benefit certificate as the total amount which he has paid into the Widows’ and Orphans’ Benefit Fund bears to the amount he would have paid had he lived out his entire life expectancy at his age of entering,” is reasonable, since it is in consonance with the purposes of the association, and in proper regard for the rights of other members.</p>

— Hon. John T. Moore, Judge. • (1) The defendant insists that neither in pleading, nor in proof can the plaintiffs recover, hence the court committed error in submitting the cause to the jury. Harrington v. Railroad, 104 Mo. App. 671; Shields v. Railroad, 100 Mo. App. 517; Williams v. Railroad, 119 Mo. 316; Hager v. Railroad, 207 Mo. 302; McIntosh v. Railroad, 58' Mo. App. 285; Jackson v. Railroad, 104 Mo. 448; Bradley v. Railroad, 138 Mo. 302; Saxton v. Railroad, 98 Mo.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) The separate judgments for benefit assessments and order for issuance of executions thereon were void. Held: while the ordinance required five days. 1 Cooley on Taxation (3 Ed.), pp. 485-6; Re Bledsoe Hill, 200' Mo. 643; Leavitt v. Eastman, 77 Me. 117; Young v. Downey, 145 Mo. 256; Young v. Downey, 150 Mo. 328; Bird v. Norquist, 46 Minn. 318; Brownfield v. Dyer, 7 Bush. 505; Bank v. Bank, 89' N. Y. 397.

— Son. Thomas J. Seehorn, Judge. The only question involved in this case is whether it was proper to issue the special tax hills against the entire tract or parcel of land belonging to the Cemetery Association, or whether separate tax bills should have been issued against each lot as platted by the respondent.

Louis City Circuit Court. — lion. Daniel D. Fisher, Judge. (1) The benefit district was fixed automatically by the charter at the time of the passage of the ordinance, authorizing the improvement on July 24, 1907. Collier Estate v. Paving Co., 180 Mo. 362; G-ilsonite v. Fair Assn., 231 Mo. 589; State ex rel. Co. v. St. Louis, 183 Mo. 230.

<p>Appeal from Jackson Circuit Court. — Hon. Thos. J. Seehorn, Judge.</p>

— Hon. Alfred Page, Judge. (1) A judgment in ejectment is conclusive, as Long as it remains in force, upon the parties and their privies whether writ of restitution issues or not. Snell v’. Harrison, 131 Mo. 503; Estes v. Nell, 140 Mo. 650; Sanford v. Herron, 161 Mo. 184. The Act of 1895 (now Sec. 1912; R. S. 1909) did not affect a judgment rendered prior to the taking effect of that act.

— Ron. W. 8. G. Walker, Judge. (1) The first question that presents itself on this appeal is, whether the former decision of this court is res adjudicata, and therefore binding upon the court in the present appeal, as contended by the defendants. The rule of law is that questions of law determined on a former appeal are concluded only when considered thereafter with reference to the same state of facts.

<p>1. APPEAL: Order Functus Officio. It is useless to reverse or modify an order or judgment 'which has by its own terms expired.</p> <p>2. -: -: From Order Modifying Judgment: Ancillary Matter. Where plaintiff brought an equity suit to set aside a transfer of stock from one defendant to another, upon which execution had been levied to pay an existing judgment in her favor, and in aid of that suit asked for and obtained on injunction prohibiting a sale or transfer of the stock pending the equity suit, and having recovered judgment and defendants having appealed and given a sufficient bond, and the said judgment having been affirmed on appeal, an order of the circuit court, made after defendants had appealed and given bond, by which so much of the judgment as enjoined the sale and transfer of the stock was suspended during the appeal, is dead by its own terms, and hence an appeal from that order will be dismissed.</p>

Louis County Circuit Court. — Hon. G. A. Wurdeman, Judge. (1) The appointment of the mayor’s jury must be entered on the city records. Then it must be shown on the face of the record that notice has been served on all property owners affected. Both are parts of the record proper, and therefore jurisdictional. Tarkio v. Clark, 186 Mo. 297; Sec. 5993, R. S. 1899, now 9415, R. S. 1909.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) An agent for the sale of land is entitled to his commission even though the sale is made by the owners on other terms than those stated in the contract of agency. Stinde v. Blesch, 42 Mo. App>. 578; Grether v. McCormick, 79 Mo. App. 325; Crone v. Trust Co., 85 Mo. App. 607; Yeatch v. Norman, 95 Mo. App. 500; Wright & Orison v. Brown, 68 Mo. App. 582; Wetzel v. Wagoner, 41 Mo. App. 509; Glade v. Mining Co., 129 Mo.

<p>APPEAL: Motion for New Trial: Not Preserved. The motion for a new trial must either be copied into the bill of exceptions or the bill must contain a direction to the clerk to copy it; and unless the one or the other is done, no exception can be considered on appeal, although the abstract contains a copy of the motion.</p>

- — Eon. Carr McNatt, Judge. To operate as a complete and effectual conveyance of land, the delivery of the deed, actual or constructive, by the grantor and an acceptance by the grantee, or by some one for him, are essential requisites. Hall v. Hall, 107 Mo. 107; Standiford v. Standiford, 97 Mo. 238; Huey v. Huey, 65 Mo. 689; Taylor v. Davis, 72 Mo. 291; 2 G-reenleaf Ev., sec. 297; Tyler v. Hall, 106 M'o. 313.

Louis City Circuit Court. — Eon. J. Eugo Grimm, Judge. (1) Where the policy of a State is to exempt from taxation property used exclusively for religions, school, or educational purposes, such exemptions should not be construed as strictly as exemptions contrary to the public policy of the State, for as to such property, “exemption is the rule and taxation the exception.” “As the policy of the State has always been to exempt property of the character mentioned . . . it…

Louis City Circuit Court. — Eon. James E. Withrow, Judge. The trial court erred in sustaining defendant’s demurrer, because: Dower is not within the Statute of Limitations, unless made so expressly. Dyer v. Witter, 89 Mo. 95, affirming 88 Mo. 67. The Statute of Limitations does not commence to run against a widow until dower has been assigned, nor is staleness of demand any defense to an action for admeasurement of dower. Johns v. Fenton, 88 Mo. 67.

Louis City Circuit Court. — Now. George N. Shields, Judge. (1) The court erred in finding against plaintiff and for the defendants under the law and the evidence. Davis v. Stouffer, 132 Mo. App. 555; Cargile v. Wood, 63 Mo. 501; Dyer v. Brannoek, 66 Mo. 361; Wadding-ham v. Waddingham, 21 Mo. App. 609; Busch v. Busch, 81 Mo. App. 562; E. S. 1909, secs. 345, 351, 355, 358.

— Ron. Thomas J. Seehorn, Judge. (1) A powder mill, such as the defendant has, with its immense magazine for the storage of powder and its dynamite magazine, located as this is near a trunk line railroad, near public highways, near a public school, and in the midst of a populous community with its hotels, churches, stores, postoffices, shops and private residences, is a public nuisance.

Louis City Circuit Court . — Hon. William M. Kinsey, Judge. (1) The court erred in adjudging' a lien against the fee simple estate of defendant Delany. The plaintiff’s contract having been made with a lessee, his remedy is against the lessee only. R. S. 1909, sec. 8216; Rothe v. Bellingrath, 71 Ala. 55; Deatherage v. Sheidley, 50 Mo. App. 496; Koenig v. Mueller, 39' Mo. 165; Pinkerton v. LeBeau, 3 S. D. 440.

— Hon. E. E. Porterfield-, Jndge. (1) The information is fatally defective for the reason that there is no allegation of ownership of the storeroom or building to which the fire was alleged to have been set and upon which the attempt to burn was alleged to have been made. State v. Wacker, 16 Mo.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The circuit attorney in his closing argument to the jury was allowed by the court, over the objections of the defendant, to heap odium and invective on the head of the defendant in the presence of the jnry by calling him such names as “crook,” “scoundrel,” “whiner,” “perjurer,” “maudlin crook,” “sneak,” and other vile and insulting epithets.

— Eon. J. G. Slate, Judge. (1) Words of a statute which are descriptive of an offense — a part of the statutory definition — cannot be omitted from an information founded thereon without fatally vitiating such information. 19 Cyc. 1393; State v. Plesseltine, 130 Mo. 468; State v. Minton, 116 Mo. 605; State v. Pickett, 174 Mo. 663.

- — Hon. Ralph S~ Latshaw, Judge. The State must identify the person on trial as the person wbo actually committed the crime, and beyond a reasonable doubt. Williams v. State, 130 Ala. 31; State v. Jones, 71 Mo. 591. The burden of proof is on the State. State v. Hardelein, 169 Mo. 579;. State v. Hickman, 95 Mo. 322; State v. Wingo, 66 Mo. 181.

— How. J. G. Slate, Judge. (1) The court erred in refusing to permit appellant to impeach the witness, Rymel, by proof of contradictory statements made by the witness on the vital question in the case. Peck v. Ritchey, 66 Mo. 119 ; Sullivan v. Railroad, 133 Mo. 5; Mahaney v. Railroad, 108 Mo. 200'; Spohn v. Railroad, 122 Mo. 17; State v. Baker, 136 Mo. 83; Giarrett v. Transit Co., 219 Mo. 93; 30 Am. & Eng. Ency. Law (2 Ed.), 1111, 1112, and cases cited; 40 Cyc. 2737.

— Ron. L. B. Woodside, Judge. (1) The information charges a statutory crime and sufficiently follows the statute. The same form as used in the case at bar has the approval of this court. Sec. 4750, R. S. 1909; State v. Etchman, 184 Mo. 193; State v. Rosenblatt, 185 Mo. 114; State v. Cannon, 232 Mo. 211.

Louis City Circuit Court. — lion. William M. Kinsey, Judge. (1) The uncorroborated testimony of the prosecuting witness is so contradictory, so. at variance with the physical facts and the laws of nature, and so in conflict with the other evidence in the case, as to render it insufficient to support a conviction upon a criminal charge.

— Hon. W. S. G. Walker, Judge. (1) Tlie court erred in permitting the prosecuting attorney to ask leading questions in his examination-in-chief of the prosecuting witness, practically the entire examination being leading. Since this matter rests in discretion, we have cited no authorities on the point, as the appellate court will decide each case according to the peculiar facts and conditions of that case.

— Eon. Frank Kelly, Judge. (1) Instruction number 2, given by tbe court on bebalf of the State is error, and does not properly declare the law.

— Hon. David H. Harris, Judge. (1) The indictment in this case is based upon Sec. 7226, E. S. 1909. This lias been declared to be unconstitutional. State v. Eawlings, 232 Mo. 544. (2) The Constitution provides, first, “that all persons have a natural right to life, liberty, and the enjoyment of the gains of their industry.” Sec. 4, art. 2.

<p>PERJURY: Corroboration. Corroborative evidence against the accused on a prosecution for perjury means evidence aliunde which tends to show the perjury independent of any declaration or admission of the prisoner and the person to be corroborated.</p>

— Ho». Ralph 8. Latshaw, Judge. (1) Conceding for the sake of argument only that the instruction for manslaughter in the fourth degree was erroneous, the error was entirely harmless, as there was no evidence whatever that authorized an instruction on any grade of manslaughter.

<p>RAPE: Evidence. Tlie evidence in a prosecution for rape held insufficient to uphold a conviction.</p>

<p>.Appeal from Iron Circuit C.ourh— Hon. W. N. Evans. Judge.</p>

<p>Appeal from Iron Circuit Court. — Hon. W. N. Evans, Judge.</p>

<p>Appeal from Iron Circuit Court. — Hon. W. N. Evans, Judge.</p>

— Eon. E. B. Morrison, Judge. (1) There is no evidence that the defendant was guilty of any negligent act. The announcement of the station and the opening of the vestibule doors as the train approached the depot were not only proper but were required as a matter of convenience to the passengers.

— Hon. Thomas J. Seehorn, Judge. (1) Injunction lies. ‘ ‘ An abutting property owner bas tbe same right to the use of the street that rests in other property owners and the public at large. Besides this, he has the right of access to and from his lot, which right is special to him. It is an easement appurtenant to his real estate abutting on the street.

<p>1. JURISDICTION: Supreme Court: Consent. Jurisdiction cannot he conferred on the Supreme Court by consent of the parties, and if its jurisdiction has been improperly invoked, the court will upon its own motion refuse to exercise it.</p> <p>2. -:--: Constitutional Question. A litigant cannot on a second appeal invoke the jurisdiction of the Supreme Court by contending that certain statutes, which had been upheld by the highest courts of the State and Nation and upon the validity of which he had sought a decision in his favor at the former trial, are unconstitutional, thus using them to invoke jurisdiction upon the other questions in the case while abandoning them for every other purpose.</p>

— Hon. D. E. Blair, Judge. (1) The Legislature as well as the city is forbidden by constitutional and statutory enactment from exempting property from taxation. Secs. 6 and 7, art. 10, Constitution; Sec. 9366, R. S. 1909; State v. Railroad, 75 Mo. 208; Urana v. St. Louis, 164 Mo. 146. (2) A city cannot bind itself by an ordinance which is against public policy or abridge its legislative, police, taxing or governmental powers, by surrender or bargaining them away.

<p>1. PUBLICATION: Idem Sonans: Tax Sale. Notice by publication, in a tax suit, addressed to J. A. Myer, will not support a judgment against J. A. Myers, since the names are not idem sonans and there is no showing that the names Myer and Myers were a corruption of the German name Meier; therefore a sale of the land under such judgment is void.</p> <p>2. SUIT TO QUIET TITLE: Tax Sale: Action by Owner: Failure to Pay Taxes: Laches. Where a sale of land for taxes was void for lack of notice to the owner, his failure for almost twenty years to pay taxes does not constitute laches such as will prevent him from recovering the land from purchasers under the tax judgment of whose possession and improvements he had no knowledge and in whose favor the Statute of Limitations had not run.</p>

— Hon. John T. Moore, Judge. Fraud vitiates the most formal documents. In order to set aside a deed fraudulently procured, it is not necessary that the grantee wilfully and intentionally perpetrated the fraud in procuring the deed. Derby v. Donahoe, 208 Mo. 699. In this casé there was evidently wilful fraud, and wilful misrepresentations made by defendant to secure the making and delivery of the deed to him.

— How. James D. Barnett, Judge. (1) Section 1740-, R. S. 1909, is unconstitutional because in conflict with section 1, article 6, Missouri Constitution, and the appointment of Hall Taylor as next friend by the clerk in vacation was void. Therefore the action cannot be maintained on account of no legal capacity to sue. A next friend is an officer of the court.

— Row. B. G. Tfourmem, Judge. (1) The Merchants Bank borrowed the money. Any evidence of admissions of the officers of the bank subsequently made that they-were not looking to the Merchants Bank for payment was inadmissible. Gillespie v. Bank, 20 Okla. 768; Bank v. Steward, 37 Me. 519; Bank v. North, 41 N. W. 736; Hazleton v. Bank, 32 Wis. 34; Goetz v. Bank, 119 U. S. 551; LaRue v. St. Anthony, 54 N. W. 806; Mc-Dermott v. Company, 73 Mo. 516; Adams v. Company, 74 Mo. 553.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) The State by suing the appellant corporation and not the individuals who use its charter, has confessed all the issues in appellant’s favor. Quo warranto to oust .from a corporate charter, for reasons relating to the organization and to the right to use the charter thus obtained, must proceed against the individuals who usurp the charter.

— Eon. W. S. C. Walker, Judge. (1) The court erred in refusing td give for defendant instructions in the nature of peremptory instructions to find for the defendant.

<p>1. - CORPORATION: Negligence in Issuing Stock. "Where the vice-president who signed the stock issued to the company’s secretary testifies that by an examination of the stock books he could have determined that the stock was fictitious and was an over issue and that he made no such examination and no precautions against fraud were taken, the charge that the company was guilty of negligence in issuing the void stock is established.</p> <p>2. -: -: Reliance on Regularity. A bank which loans money and takes as security certificates of corporate stock issued to the borrower, has a right to rely upon the regularity of the issue as disclosed by the face of the certificates — in this case, upon the signature of the company’s vice-president, the signature of its secretary and its corporate seal.</p> <p>3.--: Certificates of Stock: Governed by Rules of Commercial Paper. The general rule of law respecting bona-fide purchasers of commercial paper for value, before maturity, are applicable to corporate stock certificates so far as their peculiar nature will admit. , -</p> <p>4. -:--: Holder for Value Without Notice: Damages. The holder for value of a fictitious certificate of corporate stock, issued by the proper officers of the corporation, without notice of the fraud or other defenses against it, has a primary and direct claim, the limit placed by the charter upon the issue of stock having been reached, to such damages from the corporation as shall be sufficient to recoup him for his loss, whether the stock was bought or taken as collateral security, or whether fraudulently or negligently put in circulation.</p> <p>5. -: -- — : -: Nominal or Actual Damages. Although the market value of the stock is not in terms shown, yet where it appears that there was a pool of most of defendant company’s stock, that the stock was not on the market, the fictitious certificate recites its value, and the evidence shows that the money value .of defendant’s holdings is in excess of its capital stock, the bank which in good faith accepts it as collateral security from the person to whom issued, without notice of its infirmity, in a suit for damages for its. negligent issue, is entitled to substantial and adequate damages, rather than a mere nominal sum..</p>

<p>1. EVIDENCE: Credibility: Measurements. It is not the province of the court to say that the testimony of witnesses who made actual measurement of a distance is to prevail over the testimony of other witnesses testifying without measurement. Testimony of the latter kind is competent, and its probative force and credibility are for the jury.</p> <p>2. NEGLIGENCE: Unused Post in Line of Work: Assumption of Risk. Plaintiff’s duty was to roll a wheelbarrow, containing concrete, on a wall, 18 or 20 inches wide, near which was a post that had been erected to carry an electric light for certain night work, the post having been left standing after the work was completed. In passing the post plaintiff ran his barrow against it, and the collision threw him into a basin on the opposite side of the wall, a depth of about twenty feet. Held, first, that, the presence of the post not being an auxiliary to the day work in which plaintiff was engaged and the night work to aid in which the post was placed having been completed, whether or not the failure to remove the post was negligence depended on its propinquity to the runway whereon plaintiff was required by the foreman to roll the wheelbarrow and the probability of its causing injury to him when so engaged;' and, second, the assumption of the risk of danger does not arise from the negligence of the employer unless it is a natural and reasonable incident of the work which the servant contracts to do, and under the circumstances the post was not an observable object which became one of the conditions under which the work of wheeling the barrow laden with concrete was to be done.</p> <p>3. -: -: Contributory Negligence: Obvious Danger. Where reasonable minds can differ as to the inferences to be drawn from facts and circumstances tending to prove contributory negligence, the question is one for the jury; and where the evidence establishes that another man employed in wheeling a barrow, laden with concrete, on a wall, near a post, as plaintiff was, safely passed the post, immediately in front of plaintiff, without striking it with his barrow, there was objective refutation of the presence of danger so glaringly imminent and threatening as to deter a man of ordinary prudence from performing a like work.</p> <p>4. -: Instruction: Assumption of Fact. Where the petition charged that the post which plaintiff’s wheelbarrow struck was witliin “one foot- or less” from tlie wall on which he was wheeling the harrow, an instruction telling the jury that if defendant negligently permitted said post to remain in dangerous and unsafe proximity, to-wit, “within a foot or less of said wall,” they should find for plaintiff, was prejudicially erroneous, since it assumed that any point within “one foot or less” to the wall was a dangerous proximity.</p>

— Hon. L. B. Woodside, Judge. (1) In this case, in stating the cause of action, plaintiff does not count on the bailment and ask judgment on the ground of non-delivery of goods on demand. This it could have done and could thus have imposed upon defendant the burden of showing that the damage was attributable solely to an act of God, or that it was not caused by any negligence of defend-, ant. Per contra, the petition alleges specific acts of negligence.

Mandamus. (1) All of that part of section 47 of the Public Service Commission Act of the State of Missouri under consideration in this case was copied verbatim from the Public Service Commissions Law of the State of New York, and in adopting the language of the New York statute the Legislature is presumed to have adopted the interpretation theretofore placed upon it by the commissions and courts of New York.