Volume 260 — Missouri Reports

— Hon. 0. A. Lucas, Judge. (1) That part of the opinion in Turner v. Anderson, 236 Mo. 523, 542, relating to testamentary capacity, was coram non judice, and is not binding on this, appeal, because no one appealed on the issue of testamentary capacity, and there was no such issue before this court. McFadden v. Rippey, 8 Mo. 740; Campbell v. Coquard, 93 Mo. 474; Nearen v. Bakewell, 110 Mo. 645 ; Sanderson v. Wertz, 44 Mo.

<p>1. CONTRACTS: Permits to Use Electric Wire Poles: Construed in Light of Facts. The permit from the city to an electric light company to replace old poles with new ones along a street, upon condition that “same space be reserved for wire-using companies that are now occupying space on said poles,” .are to be read and construed in the light of the facts and circumstances that existed at the time the permit was granted; and if prior thereto, employees of one of the other “wire-using companies” were accustomed to go upon said poles to untangle “troubled” wires of their respective companies, it will be held that, after the erection hy defendant of new poles, the said employees had the same right to go upon one of said new poles for the purpose of untangling the wires of their companies. Said permit carried with it all reasonable uses necessary to properly conduct their business by the respective companies.</p> <p>2. NEGLIGENCE: Insulation of Eleoric Wire: Proof: In Manner as Charged. Where the evidence all shows that the insulation of the wire which caused the injury was worthless as a protection to the linemen whose duties required them to go upon the poles for the purpose of untangling “troubled” .wires, and that of defendant went so far as to show that no insulation manufactured would afford sufficient protection, it is wholly immaterial whether an allegation that the insulation had become decayed, worn and disintegrated, was specifically proven or not.</p> <p>3. CONTRIBUTORY NEGLIGENCE: Plea Admits Negligence. A plea of contributory negligence by necessary implication admits negligence on the part of him who makes the plea.</p> <p>4. -: Proper Plea. Held, by WOODSON, J., that, if defendant was not guilty of negligence, but the injury was caused by the sole negligence of the plaintiff, a plea of contributory negligence is improper, but the plea should be either a general denial or that the injury was the result of the plaintiff’s own negligence and not that of defendant.</p> <p>5. NEGLIGENCE: Hazardous Business: Degree of Care. A company engaged in a hazardous business is required to exercise the highest degree of care to avoid injuring others, if indeed it is not an insurer against such injuries.</p> <p>Observed by BOND, J., that modern industrialism has called into constant use, for the benefit of the public, many complex devices, whose handling is hazardous, and the multitude of injuries resulting therefrom calls loudly for a workingman’s compensation law, which will provide a means by which the injured employee may recover for his injuries, whether or not they were the result of defendant’s negligence.</p> <p>8. -: -: Demurrer to Evidence: Live Wire on Handhold. Three companies (the Bell, Kinloch and Union Light) had used the same city poles for stringing their electric wires, each upon separate cross-arms, the Union Light’s cross-arms being between those of the other two companies, and the entire number of wires very large. The employees of the three companies had equal rights to ascend the poles to repair the wires or adjust entanglements. The defendant (the Union Light Company) had obtained permission to remove old poles and substitute new ones, upon condition that the “same space” was “reserved Jor wire-using companies,” and in pursuance thereto had removed a pole and inserted a new one, but had ,not installed the cross-arms, but had driven into the pole iron-handholds, fourteen or sixteen inches apart. Sometime later there was a wind and rain storm, and the next day, plaintiff, a “trouble” man in the employ of the Kinloch Company, an experienced and skilled man for the business, was directed to investigate and discover the “trouble” with a Kinloch wire. Examining the cable-box he found that a slight current of electricity was passing from some other wire to the one in “trouble,” and proceeding along that wire he came to the pole and discovered that the trouble was caused by an entanglement of that wire with one of those of the Bell Company, eight or ten inches from the pole, and 20 or 25 feet from the ground. He climbed up the pole, without rubber gloves, using the handholds for his feet and hands. Before he began to mount he looked among the wires and saw nothing that indicated, danger. When he reached the neighborhood of the “troubled” wire, which was on the opposite side of the pole from his body, standing on a handhold with one foot and feeling around the pole with the other and his knee, he reached for the wire with one hand and, to keep his balance, for a handhold with the other, and as this hand closed over the iron handhold it also closed over a live wire lying loose thereon. This wire belonged to defendant, had been permitted to sag and rest on the iron handhold, was defectively insulated and defendant's evidence showed that no. insulation would withstand wind and weather, and it is inferable from the evidence, though there is none positive and direct upon the point, that the sagging of the wire was due to defendant’s failure to place the -cross-arms on the pole and attach the wires thereto. The electric shock rendered plaintiff unconscious, and when found his hands were badly burned. Held, that the facts show negligence on defendant’s part, and no such contributory negligence on plaintiff’s part as would authorize the court to declare as a matter of law that he could not recover.</p> <p>Held, by LAMM, C. J., concurring, with whom WOODSON, BROWN and WALKER, JJ., concur: first, that it cannot be held as a matter of law that ordinary care requires a “trouble” lineman on the ground to see the contact of a high-voltage wire with an iron foothold at the top of a pole forty feet high; and, second, that ordinary care does not, as a matter of law, require such lineman, as he climbs a pole, to see the contact of that wire with a handhold on the other side of the pole, since the law does not require a man in climbing to look up and down and around the pole at every instant of time, and hence whether or not plaintiff exercised ordinary care was a question for the jury.</p> <p>Held, By GRAVES, J., dissenting, with whom PARIS, J., concurs, that plaintiff’s own negligence Bars his recovery; .that being a “trouble” man among wires, his duties required alertness, and he knew the line of poles were occupied by the wires of more than one company, that wires were likely to be misplaced by a wind storm, that the pole had no cross-arms and that the wires had' not been attached to the pole that stood in the midst of them, and knowing these things and the steps and wires being in plain view his duty was to look; and if he had looked at each handhold before touching it he would not have been injured.</p> <p>Reid, by BOND, J., dissenting, that the judgment for plaintiff, cannot stand, for two reasons: first, the negligence charged in the petition is defendant’s failure to insulate the wire, and there is no evidence whatever to sustain that allegation; and, second, there is-no evidence that any right had been given to the Kinloch Company, by which plaintiff was employed, to use the pole before it had been equipped with cross-arms to support the wires, and therefore none that defendant could have foreseen the accident. '</p> <p>7. -: -: -: Sagging of Light Wires: Inference from Accompanying Facts. Common experience teaches that the removal of a pole upon'which electric wires have been strung, leaving them unattached to a new pole erected in place of the one removed, will cause them to sag and wave to and fro in a strong wind; and where a defectively insulated wire is found resting on the iron handhold driven into the pole, and no other reason is assigned for its loose and sagging condition, the jury are justified in finding, as a warrantable inference, that the absence of cross-arms on the pole was the cause of the sagging, and that the sagging and a strong wind of the ' night before were the cause of its resting on the handhold.</p> <p>8. CONTRIBUTORY NEGLIGENCE: Noninsulated Wires: Rubber Gloves. It does not seem logical or scientific to contend that science has discovered no insulation which will perfectly insulate a wire of high voltage strung in the open air, and thereby render it harmless in handling, and at the same time contend that science has produced a rubber glove which, when worn, will completely protect from danger any one handling the same wires; and, therefore, it does not seem fair or scientific, to hold, as a matter of law, that an electric light company should be excused for permitting an uninsulated wire to sag and remain unattached to a pole and to rest in an iron handhold, and that a lineman, who was required to mount .that pole for the purpose of untangling “troubled” wires and in doing so reached for the handhold in which rested the live wire, should be charged with contributory negligence for not wearing rubber gloves.</p> <p>9. -: Electric Wire: Duty to Look: Presumption: Obvious Defect. Where three companies used the same poles for their electric wires, a “trouble” lineman of one of them who, having discovered that a wire of his company was entangled with that of the second, mounted a new pole erected by the third, on which there were handholds-but no cross-arms, had a legal right to presume that the third had insulated its wires and had properly guarded them when it removed the old pole and erected the new one; and the fact that a loose live wire of said third company was lying in an iron handhold which he was expected to use, and which was situated on the opposite side of the pole from him, was not -a defeet or danger so apparent that the law required him, as a reasonably prudent person looking out for his own safety, to see or anticipate. A . negligent act of omission is not as grave as a negligent act of commission.</p> <p>10. --: -: -: Matter of Law. It cannot be held as a" matter of law that it is the duty of a “trouble” lineman', mounting a pole to adjust entangled wires, to discover that a live wire of another company which erected the pole for the joint use of both, is lying loose in an iron handhold on the opposite side of the pole, although there is evidence tending to show that he was guilty of contributory negligence in not seeing the defect. His duty is to be determined by the circumstances surrounding him, and if reasonable men would reach different conclusions as to his duty to anticipate and discover the presence in the handhold of, or a defect in, the imperfectly insulated wire, then the question of whether or not he was guilty of such contributory negligence in not seeing the danger as precludes a recovery, is one for the jury. The law imposes on him ordinary care for his own safety, and he is to be held, as a matter of law, guilty of negligence resulting in his injury, only in case he failed to exercise ordinary care to discover the danger.</p> <p>11. NEGLIGENCE: Allegation of Decayed Insulation of Electric-Wires: Proof of Insufficient Insulation. Although the petition alleged that the insulation of the electric wire left lying loose in the iron handhold was old and decayed and on that account was insufficient to confine the current of electricity to the wire, and that by reason thereof the electricity escaped therefrom and injured plaintiff when in climbing 'the pole he seized the handhold, and although there was no proof that the insulation was old and decayed, yet if all the evidence shows that the insulation was insufficient, and that of the defendant goes further and tends to show that there was no known insulation by which such wires could be perfectly insulated, it will not be held that there was a failure of proof, because the ultimate fact, namely, the insufficient insulation, was established.</p> <p>12. -: Instruction: Extra-Hazardous Business of Defendant: Corresponding High Degree of Care on Part of Plaintiff. Because the defendant is engaged in an extra-hazardous business and the law for that reason imposes upon it the duty to exercise a very high degree of care to make its electric wires reasonably safe for those who in the performance of their duties are brought into contact with them, it cannot be held that the law imposes upon a skilled lineman in the employ of another company the corresponding duty to exercise the same high degree of care for • his own safety. His duty is to exercise the ordinary duty of a reasonably prudent man engaged in the same kind of work.</p> <p>13. EXCESSIVE VERDICT: $18,000. Plaintiff was twenty-two years old, and prior to his injury was earning $100 per month, and since then $35 or $40. His life expectancy was 35 years. His net loss in wages up to date has been $4000. He was a^ skilled lineman, and when his hand came in contact with a live electric wire lying loose in a handhold to a pole he was ascending, 2300 volts of electricity poured through him for several minutes; he was rendered unconscious and was severely burned; the burns necessitated the amputation of most of his fingers and thumb, and all' that remains of his hands are* withered and gnarled stumps; and the mental and physical pain was beyond description. Held, that a verdict for $18,000 was not excessive.</p> <p>14. NEGLIGENCE: Maintenance of Nuisance: Liability. On rehearing it is held that, if it be true, as contended, that the new pole which defendant was permitted by the city to erect, for the stringing of the electric wires of three companies, had been erected thirty feet from where the old pole had stood, and that none of the wires of the three companies had been attached to the new pole, then it was a public nuisance, since not placed where the permit had authorized it to be placed; and plaintiff having been injured while ascending it for the purpose of untangling the wires of his company, defendant is liable regardless of the question of negligence on its part, even though it exercised the highest degree of care, since the establishment and maintenance of a nuisance is a graver breach of the law than any act of negligence.</p>

Mandamus. (1) Mandamus is the proper remedy in tliis case. State ex rel. v. Cook, 171 Mo. 348; State ex rel. v. Van-diver, 213 Mo. 187; State ex rel. v. Vandiver, 222 Mo. 206. (2) The demurrer to the petition for the writ (standing as and for the writ itself) admits all the material facts alleged therein. Dodson v. Lomax, 113 Mo. 555; Goodson v. Goodson, 140 Mo. 206; Rodgers v. Ins. Co., 186 Mo. 248; State ex rel. v. Reynolds, 121 Mo. App. 705.

Prohibition. Relator questions generally the constitutionality of the act establishing the said juvenile court; and even if said court has a valid existence, relator questions the right of said court to proceed against this relator in the manner in which it' is attempting to do.

<p>1. CERTIORARI: Court of Appeals. If the Court of Appeals did not follow the last previous decision of the Supreme Court, hut rendered judgment contrary thereto, the Supreme Court, upon certiorari, will quash its judgment.</p> <p>2. -: -: Reversal on Merits. Suit for damages for personal injuries had been brought against two railroads, and at the trial, after the evidence was in, the case was dismissed 'as to one of them, and in his argument to the jury counsel for the remaining defendant stated that an attempt was being made to load the entire responsibility for the- injury upon his client and to let the other company out. Thereupon a lengthy colloquy ensued between counsel for plaintiff and said defendant, defendant’s attorney contending that a judgment against his company would be conclusive and bar any right to compel the other company to contribute to the payment of the damages, and plaintiff’s attorney that it was immaterial whether a judgment for plaintiff would bar the other company’s right to compel contribution. The court directed the jurjr not to consider the question at all. The Court of Appeals reversed a judgment for plaintiff on the sole ground that plaintiff’s counsel used improper language in said colloquy. Held, that it was wholly immaterial, so far as plaintiff was concerned, what the rights of the two companies were as between themselves, and the Court of Appeals did not follow prior opinions of this court regarding remarks of counsel in their arguments before the jury, and its judgment, upon certiorari, is quashed.</p>

<p>1. PROHIBITION: Practice. The general rule of practice is that the right to the writ of prohibition is ordinarily to be determined upon a demurrer to the petition, or upon a motion to quash the preliminary rule, or upon a demurrer to the return, or upon a motion, for the writ, which motion would seem to be practically equivalent. to a motion for judgment upon the return.</p> <p>2. -:--: Imperfect Pleadings. Where the only pleadings in the prohibition case are the petition for the writ, the return to the preliminary writ, and the reply to said return, and each material averment in the return is denied in the ■ reply, and there is no stipulation as to the facts or any agreed statements of the facts, and no testimony taken by a .commissioner, and no motion for judgment upon the return, and the respondent circuit judge in his return indicates his perfect willingness 'to follow the decision in a kindred pending case, the writ will be discharged.</p>

Mandamus. (1) It was not necessary that the notice of the election should “ specify the rate of the increase of the tax levy.” (2) It is not required that the record and order of the county court show that the county court of New Madrid county found it was necessary for the county of New Madrid to incur an indebtedness for the purpose of building a courthouse. Gaston v. Lamkin, 115' Mo. 31. (1) The record does not show jurisdictional facts.

<p>Appeal from Cole Circuit Court.- Hon. J. G. Slate, Judge.</p>

<p>1. INJUNCTION: No" Bond: Jurisdiction. A circuit judge is forbidden, by statute to issue a temporary writ of injunction until a sufficient bond is executed; and a preliminary writ of injunction issued without bond is inoperative and disobedience to its commands is not a contempt.</p> <p>2. -: -: Stay Order. Under certain conditions and in order to preserve the status, the circuit judge, without issuing a .temporary injunction; may make an order requiring respondent to show cause at a specified time and place why a temporary writ should not be granted, and in aid thereof may restrain said respondent by an ad interim order until the day set for the hearing of the application for the writ; but whether or not a bond should be required, as a condition for the making of such stay order, is left to the sound discretion of the judge. But where there is no such stay order, the granting .of a -temporary injunction, without bond, is not authorized.</p> <p>3. RECEIVER: In Vacation. Under certain conditions, such as to prevent irreparable injury or the defeat of justice, a circuit judge has power in vacation to appoint a receiver in either a legal or equitable proceeding — but only after due notice or upon such conditions as will secure a prompt hearing of the right to make and continue the appointment.</p> <p>4. -: -: Prohibition. If the circuit court has jurisdiction of the parties and subject-matter, a writ of prohibition requiring the court to revoke the appointment of a receiver, should not issue pending the consideration of a timely rule to show cause why the appointment should not stand; since an opportunity should be given said court to make a ruling within its jurisdiction.</p> <p>5. -: To Prevent Waste: Corporation. By the rules of equity and under the statutes the stockholders of a corporation have the right to maintain an action, for the benefit of the corporation, to recover assets wasted or fraudulently appropriated to themselves by its officers, in case of the refusal of the directors to institute such suit.</p> <p>6. -: -: Petition. And a petition of stockholders whose reasonable intendment is to' obtain the appointment of a receiver to recover assets wasted or fraudulently appropriated, will be sufficient to give the court jurisdiction, although lacking in definiteness or precision of statement.</p> <p>7. -: Company Organized in Another State. If a proceeding has been brought against a corporation in the State of its franchise to administer its assets, the proceedings in this State, where it has not been licensed to do business but has its principal office, must be conducted under the auspices of and as auxiliary to the receiver appointed by its home State and where the bulk of its assets is located.</p> <p>8. -Í -: Foreign Receiver Made Party. A receiver appointed by the State of the corporation’s domicile cannot as a matter of legal right demand to be made a party to an action brought by its resident stockholders to have a receiver appointed to recover wusted assets, yet such a substitution is authorized upon principles of comity.</p> <p>9. -: Injunction: No Bond: Writ of Prohibition. The circuit judge, in vacation, upon the presentation of a petition by resident stockholders of a foreign insurance company, which was not licensed to do business in this State but whose prin- ■ cipal business office was here, charging a waste of its domestic assets by its officers and a fraudulent appropriation thereof, and praying for an injunction and the appointment of a receiver, without requiring a bond or notice, issued a temporary writ of injunction, and appointed a receiver (requiring him to give bond) and a commissioner to take testimony, and thereupon the plaintiffs petitioned the court to rule defendants (the company and its officers) to show cause why the .appointment of the receiver should not stand, which was accordingly done and a day set for the hearing; and pending that order, defendants applied for and received a writ of prohibition directed to said circuit. judge, requiring him to show cause for the further exercise of jurisdiction in the case. Held, that the court had jurisdiction over the matter of appointing a receiver, and there is no showing of an abuse of jurisdiction, and the writ is quashed, and the proceedings dismissed.</p>

<p>1. MANDAMUS: Waiver of Alternative Writ: Demurrer: Facts of Case. Where the issuance of the alternative writ in mandamus is waived, and by agreement the petition is to be taken for such writ, the facts pleaded in the petition, upon the filing of a general demurrer thereto hy respondent, become the facts of the case. .</p> <p>2. POLITICAL PARTIES: Regulation By State: Primary. The State, in the interest of good citizenship, and under the general welfare clause of the Constitution, can pass laws regulating political parties, and the manner of nominating candidates for office, and prescribe the terms upon which voters may be permitted to vote for candidates.</p> <p>3. -: -: Fraud: Fusion: Primary. Fraud and deceit are often imbedded in and attend party fusions: fraud, because it is practiced upon the unsuspecting voter by a few political manipulators; deceit, because when a candidate of one political faith permits his name to be placed upon a ticket under a caption indicating a different political faith, deceit is tolerated and practiced. Such fraud and deceit is a hurt to the State, and the State in the exercise of its police power can strike at such evils by laws designed to regulate party nominations and the printing of the names of candidates on the ballots to be used at the general election.</p> <p>4. DECLARATION OF CANDIDACY: Primary: Sec. 5862, R. S. 1909: Constitutionality. Section 5862, Revised Statutes 1909, providing that “no person shall file more than one written declaration indicating the party designation under which his name iS to be printed on the official ballot,” is not violative of the clause of the Constitution (Art. 2, sec. 9) declaring “that all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” General primary elections to nominate party candidates were not in mind when this constitutional clause was framed, and the word “elections” therein has reference to choosing a person or persons for office by votes, and was not used in the sense of nominating candidates for office by a political party. [BROWN, X, dissenting.]</p> <p>5. -: On More Than One Ticket: Sections 5862 and 5891 Read Together: Constitutional. Section 5862, Revised Statutes 1909, denying to a candidate the right to have his name appear on the tickets of two or more parties at the primary, and section 5891, declaring that the name of no candidate shall be printed oftener than once on the ballots to be used at the general election, must be read together, for it would lead to confusion and folly to strike down section 5862 and permit section 5891 to stand. When the words of section 5891, namely, “underneath the name of- each candidate [on the ballot to be used at the general election] shall be left a blank space sufficiently large to contain a written name,” are considered, it •cannot be said that an election is not “free and open” and that any voter can vote for any candidate for any office, whether nominated by his party or another.</p> <p>6. -: Qualification of Voters. The validity of section 5862, Revised Statutes 1909, denying to a candidate for office the right to declare himself a candidate of two or more parties, is not affected by section 9 of article 2 of the Constitution prescribing the qualification of a legal voter.</p> <p>7. -: Power of Legislature. The General Assembly has power to enact any reasonable regúlation of elections not prohibited by the Constitution.</p> <p>8. -: Equality of Opportunity: To Be Candidate of Two Parties: Primary Election Law. It is not to deny a candidate for office equality of opportunity to deny.him the right to be a candidate of two or more parties. That right is denied to all candidates alike, both at the primary and at the general election, and to allow it to one whom two or 'more parties wish to nominate in the primary, and deny it to all others, is to discriminate in his favor. Likewise to permit his name to be printed twice on the ballots used at the general election and all other candidates’ names to be printed only once thereon, is to be unfair, and to permit a discrimination in his favor. It would be also to promote political fusion at the sacrifice of political principles. The statute strikes at the evils of fusion by in ■effect declaring that the voters are not to be' deceived by a “false label” of a candidate.</p> <p>Held, by BROWN, J., dissenting, first, that a statute which is designed to prevent fusion or voluntary coalition of political parties tends to make possible the election of officers by a minority of voters, and is therefore contrary to the idea of “government by the consent of the governed;” second, the clause of the Constitution ordaining that “elections shall be free and open” means that every eligible person may aspire to office, and receive the same if the voters so direct, and the statutes which require a candidate to pay money to the treasurer of a political party for the privilege of having his name printed on the tickets to be used at the primary is not only violative of that constitutional guaranty, but a monstrous fraud upon candidates and the State itself; third, the provision of the primary law that permits judges of election to determine to what political party voters belong, and even to swear them to support the nominees of the party whose ticket he wishes to vote, in case his political allegiance is not known, is not only unconstitutional, but likewise monstrous; and, fourth, that voters will be deceived by the placing of a candidate’s name on two or more tickets, when the members . of those parties express their desire therefor at a primary, is untenable, and a dread of its fraudulent unfairness is imaginary, as shown by actual experience.'</p>

Quo warranto. (1) The information specifically charges facts which show, if true, that respondents have violated the antitrust statutes of this State. The information meets with, every technical requirement of informations in the nature of quo warranto. State ex inf. v. Railroad, 240 Mo. 35; State ex rel. v. Grimm, 220 Mo. 483; State ex inf. v. Oil Co., 218 Mo. 1.

<p>1. CAUSE OF ACTION: Conspiracy Between Commission Merchants Not to Buy from or Sell to Another Commission Merchant: Damages. Sections 10298-10305, Revised Statutes 1909, forbidding a combination “in restraint of trade or competition in the importation, transportation, ■ manufacture, purchase or sale of any product or commodity in this State or any article or thing bought or sold whatsoever,” and giving to “any person injured in his business or property” by such combination the right to “recover threefold the damages by him sustained,” do not give to a commission merchant a cause of action against other commission merchants engaged in buying and selling live stock for entering into a pool and combination to neither sell to nor buy from him live stock, nor to permit any other commission merchant to remain a member of their live-stock exchange who either sells to. or buys from him. Such commission merchant is not engaged in trade, but is simply the agent of those who are. Nor could a combination between the other commission merchants result in “restraint of competition in the importation, transportation, manufacture, purchase or sale of any product or commodity in this State.” Nor are such other- commission merchants purchasers within the meaning of the statute, since the combination was not entered into for the purpose of doing the things prohibited by the statute, hut solely to injure the said merchant’s commission business. In order that such commission merchant may have a cause of action under such statutes against the other commission merchants composing the association or exchange, it is necessary both to allege and prove that as a result of such combination injury resulted to plaintiff’s patrons or customers, or to stock raisers or shippers, or to the trade in live stock at the particular stock yards, or that importation of live stock thereto or transportation of live stock therefrom was lessened.</p> <p>2. HISTORY OF STATUTE: Combinations in Restraint of Trade. To properly ascertain the meaning of a remedial statute it is the duty of courts to read it in the light of its historical setting, to hold in view the existing evils it was intended to abolish, and to examine the instrumentalities provided by the Legislature for their destruction; and if the antitrust statutes are so viewed, it is apparent- that their purpose was to prohibit pools and combinations that would restrict commerce or increase the prices of the necessaries of life, either by limiting competition or the supply, or by “boycotts” or rebates to drive small dealers out of business. They never were intended to give to a mere agent engaged in the purchase and sale of any such necessary for others the right to recover damages from other such agents for the mere refusal to buy from or sell to him.</p>

<p>1. NEGLIGENCE: Contributory: Safe Place to Work: Demurrer to Evidence. The evidence for plaintiff tends to show that defendant’s foreman came into the mining room in which plaintiff was the sole worker and plaintiff asked him if he thought more of the roof would fall. After inspecting the part of the roof that afterwards fell the foreman assured the plaintiff that the roof was sound and safe. Plaintiff was somewhat inexperienced, was not familiar with the kind of rock in the roof, hut thought the foreman would know. Relying on his assurance of safety plaintiff continued to work in the room, and within two hours thereafter a large slab fell and injured him. Expert miners testified for the plaintiff that the slab was of a kind that became-loosened slowly and gradually and that a proper inspection by the foreman would have disclosed that the rock was liable to fall. On the other hand plaintiff’s evidence tended to show that, ordinarily, it was the duty of the plaintiff to look out for his own safety in the room in which he worked and that the duty of defendant was to furnish such props as might be required to prop the roof. Held, that it could not be said that plaintiff was guilty of contributory negligence as a matter of law, and that the trial court did not err in overruling a demurrer to the plaintiff’s evidence in' an action for damages.</p> <p>2. -:--: -: Negligent Assurance: Instructions. Where plaintiff’s claim for damages, as disclosed by his petition and evidence, is based on the negligent assurance of defendant that the roof of the mining room in which he worked was safe, an instruction undertaking to cover the whole case was erroneous which did not require the jury to find that the assurance was negligently given, and this error was not cured by the giving of another instruction which undertook to set forth what facts would constitute a negligent assurance.</p> <p>3. -: -: -: -: Reliance Thereon: Instructions. An instruction that although the jury might believe that the plaintiff knew, or by the exercise of ordinary care might have known, that the mining room in which he worked was not safe, yet this did not defeat a recovery if they found that he was negligently ordered into the room, and the danger was not such as to threaten immediate injury, is criticised for failure to require a finding that plaintiff relied upon the assurance of safety.</p> <p>4. -:--: -: Injury not Disputed: Instructions: Assumption of Suffering, etc. Where the fact of plaintiff’s injury is not disputed, an assumption, in an instruction, of his suffering, injury and loss of time, is not error.</p> <p>5. PLEADING: Special Damages. Special damages, which are the natural but not necessary result of the injury complained of, must be specifically alleged in the petition.</p> <p>6. --: -: Negligent Injury: Impotence. Under allegations in the petition in a personal injury case, that plaintiff’s body was severely and permanently wounded, torn and mangled, that his hips, pelvis, legs and ankles were broken and torn, that he is permanently injured, and that he will always suffer great bodily pain, etc., evidence was not admissible to show that his injuries had rendered him impotent. Impoteney in such case is a matter of special damages that must be specifically alleged. [Overruling, in part, Gurley v. Railroad, 122 Mo. 141, and Moore v. Transit Co., 226 Mo. 689.] [LAMM, C. J., and WOODSON, J., dissenting.]</p>

— Hon. Samuel Davis, Judge. (1) Plaintiff’s request for written findings of fact and conclusions of law having been made at the close of the evidence and before judgment was improperly-refused. R. S. 1899, sec. 695; R. S. 1909, sec. 1971; German-Am. Ins. Co. v. Trimble, 86 Mo. App. 546; Bailey v. Emerson, 87 Mo. App. 220; Fahy v. Grocery Co., 57 Mo. App. 73. (2) The deed from plaintiff’s father, Hubert M. Harvey, Sr.,- to defendant’s grantor was never delivered.

— Hon. Thomas J. Seehorn, Judge. , (1) The charter of Kansas City could not confer original civil jurisdiction on the municipal court, and so much of sections 1 and 2 of article 6 and section 10 of article 4 of the charter of 1908 as purports to do so, is violative of sections 1, 22, 34, 36 and 37, article 6, of the Constitution of Missouri, and section 15 of the Schedule of the Constitution, conferring civil jurisdiction exclusively on circuit courts except as otherwise…

— Hon. Thomas J. Beehorn, Judge. (1) Under the well-established rule of pleading, that where specific conditions are relied upon to avoid a contract, the evidence must be confined to the conditions pleaded and that the proof of other conditions is prejudicial, after setting up the illegality of the condition of the shipping contract, for the two specific reasons that the same was not authorized by the Board of Railroad and Warehouse Commissioners of Kansas and that the same…

- — Hon. A. D. Burnes, Judge. (1) The purpose of all construction is to arrive at the intention of the parties to the instrument, and such intention, when ascertained from a consideration of the language used in the whole instrument and the circumstances surrounding the parties at the time the instrument was executed, must govern, unless such intention he repugnant to some positive rule of law.

<p>Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.</p> <p>(1) The violation of a statute forbidding the employment of a child is negligence per se. Brombey v. Laundry Co., 134 Iowa, 45; Marino v. Lehmaier, 173 N.Y. 530; Strafford v. Iron & Steel Co., .238 111. 371; Car & Foundry Co. v. Dimentrant, 214 111. 509; Lore v. Am. Mfg. Co., 160 Mo. 622. These cases also held that contributory negligence is no defense. (2) An instruction requiring the jury to find that defendant’s negligence was the sole cause of the injury is erroneous. WallaehV. Transit Co., 123 Mo. App. 168; Newcomb v. Railroad, 169 Mo. 431; Harrison v. Light Co., 195 Mo. 623. Negligence of a parent cannot be imputed to a child suing in its own right. Berry v. Railroad, 214 Mo. 603; Neff v. Cameron, 213 Mo. 350. Minors are not expected to exercise the care of adults. Whether a minor exercises proper care is almost always a question for the jury. Obermeyer v. Chair Mfg. Co., 229 Mo. 106; Shortridge v. Scarritt Estate, 145 Mo. App. 295. Contributory negligence to be availed of must be pleaded in the answer. Hughes v. Railroad., 127 Mo. 453; Meily v. Railroad, 215 Mo. 588; White v. Railroad, 250 Mo. 476; Collett v. Kuhlman,- 243' Mo. 591. Where contributory negligence is not pleaded defendant can avail himself of the defense only when plaintiff’s evidence so clearly shows contributory negligence that the case must be taken from the jury. Stewart v. Railroad, 142 Mo. App. 324; State ex reí." v. Hallen, 146 S. W. 1176. Instructions undertaking to select certain portions-of the evidence, and commenting on the force and effect thereof are erroneous. . Barr v. Kansas City, 105 Mo. 559; Connolly v. Railroad, 120 Mo. App. 652; Williams v. Stevens, 38 Mo. App. 164; State v. Mitchell, 229 Mo. 697. (3) The law does not require a litigant to voluntarily give his deposition. It cannot be taken where plaintiff must be present to make out his case. Bispham on Equity (6 Ed.), p. 682, sec. 561; Matthews v. Railroad, 142 Mo. 668; Ess v. Griffith, 139 Mo. 322; Tyson v. Sav. & Loan Assn., 156 Mo. 595; Ex parte Kreiger, 7 Mo. App. 374.</p> <p>(1) Plaintiffs’ testimony itself does not show that she was an employee of defendant. The purpose of the statute, as shown by the title to the Act of 1907, was to “regulate the employment” of children in gainful occupations, and the term “employed” as used in the statute, must be given its plain and ordinary meaning. Railroad v. Wilson, 138 U. S. 505. Again, even upon plaintiff’s testimony in support of her theory, she was not employed to “operate or assist in operating” the freight elevator. If she was employed, she was employed to answer the telephone, and her evidence cannot show a violation of this criminal statute by defendant. (2) Plaintiff’s negligence was shown by plaintiff’s own testimony, and the defense of contributory negligence was open to defendant. Allen v. Transit Co., 183 Mo. 424.</p>

Mandamus. The ordinance in question is clearly authorized by the Enabling Act and by the provisions of the charter and also by the provisions of Ordinance 2336, which was duly accepted by the respondent,- and tinder which it has constructed the terminal station. Secs. 9751, 9752, 9*753', R. S. 1909’; Sec. 1, par. 12, art. 3, p. 142, Revised Charter and Ordinances of Kansas City; Pars. B. & H., sec. 6, Ordinance 2336; Tobacco Co. v. St. Louis, 247-Mo. 374.

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

<p>APPEAL: No Final Judgment: Order to Quash Service as to One Defendant. A judgment entry is not final so as to authorize an appeal unless it mates.some disposition of all the parties to the record. So, where, in a suit against several defendants, one appeared and filed answer, and another, a non-resident, appeared specially and the service against him was quashed upon his motion, there can be no appeal from the trial court’s action in overruling plaintiff’s subsequent motion to vacate the order sustaining the motion to quash, the cause remaining undisposed of as to the defendant who filed answer.</p>

— Hon. Allen C. Southern, Judge. (1) Although the county court is a constitutional court, it only has such powers and duties as may be prescribed by law. Constitution, art. 6, secs. 1 and 36; State v. Shortridge, 56 Mo. 126; Butler v. Sullivan Co., 108 Mo. 630; Walcott v. Lawrence Co., 26 Mo. 272; Steins v. Franklin Co., 48 Mo. 167; State ex rel. v. Harris, 96 Mo. 29.

St. Louis City Circuit Court. — Row. _. Matt G. Reynolds, Judge. (1) The circuit court erred in construing the reservation in the deed of Mr. Shaw as a condition subsequent, which is controlled by the technical rules of law concerning such conditions. Under the language of the deed, the specific reservation of exception therein, and in view of the subsequent and explanatory deed of 1872, and the declared and lifelong purposes of.

Prohibition. (1) This case, in view of'the pleadings, is to be determined on the facts shown by relator's petition and the exhibits filed therewith. State ex rel. v. Guthrie, 245 Mo. 150; State ex reí. v. Caulfield, 245 Mo. 278; State ex rel. v. Lamb,- 237 Mo. 437-; State ex rel. v. Sheppard, 192 Mo. 497.

<p>1. DEED BY ENTIRETY: Wife’s Separate Money: Proof Aliunde. A deed to a husband and wife, nothing more appearing, will be held to create an estate by the entirety, and the entire land on the death of either goes to the' survivor. But since the Married Woman’s Acts the husband cannot appropriate the wife’s money without her written consent, and, in spite of the fact that the deed names him and her as the grantees, she or her heirs may show by parol proof that without her written consent he used her money in part to pay the purchase price, and if that is satisfactorily shown the deed, as to her or her heirs, will be held to be a conveyance to him and her as co-tenants, in the proportion that the money contributed by each bears to the entire purchase price.</p> <p>2. -: As Result of Husband’s Wrong. But neither the husband during his life, nor his heirs after his death, can by parol testimony defeat a deed to the husband and wife and have it declared to create a cotenancy between him and her, by showing that, without her written consent, he used a part of her money to buy the land. The husband, being a wrongdoer, cannot in a court of equity obtain a change in .the-character of the conveyance which he has brought about in wrong of the wife, nor can his heirs after his death, any more than he or they could attack the validity of a deed which he had made in fraud of creditors. In such case equity leaves him where he placed himself, and declares the deed to him and his wife, so made at his instance, by using her money without her. written consent, to create _an estate by the entirety, and on his death the entire land goes to her as the survivor.</p>

Habeas Corpus. (1) The court should have sustained the demurrer to plaintiff’s petition on the ground that a court of equity has no jurisdiction to enjoin the commission of a crime, and neither has it jurisdiction to enjoin the maintenance of a bawdyhouse, or any other house not of a public character. State ex rel. v. Canty, 207 Mo. 455; State ex rel. v. Lamb, 237 Mo. 457.

— Ron. William G. Ellison, Judge. (1) Contestants should have been permitted to show the state of testator’s feeling’s toward his son Francis. There is possibly no thought in determining the validity of any will that is more potent than the feelings which a testator may have had for his offspring. That thought has perhaps been contained in the instructions of every will case coming before the court.

— Hon. George W. Wcmamaher, Judge. (1) Where by inadvertence principles of law have been incorrectly declared on the first appeal, or where later decisions have otherwise and correctly declared the law, this court will re-examine and correct its errors on the second appeal in the same case. Mangold v. Bacon, 237 Mo. 496; Timber Co. v. Railroad, 242 Mo. 11. (2) This court will review its own decisions on second appeal, where no hardship would result to innocent parties.

— Eon. E. L. McCune, Judge. (1) The rule res ipsa loquitur has no application to the facts of this case and the trial judge did right in granting the peremptory instruction and his successsor judge erred in setting aside the nonsuit. Even on plaintiff’s own testimony the proof does not show that the back table of the machine suddenly, unexpectedly or otherwise dropped or subsided while plaintiff was using the planer.

— Now. J. C. Sheppard, Judge. (1) Where special directions have been given to the lower court by the appellate court upon remanding a cause it'is out of the power of the lower court to open the cause for a new trial. Allen- v. Chouteau, 74 Mo. 56; Bridge Co: v. Stone, 194 Mo. 175; Black on Judgments (1 Ed.), sec. 614; Smith v. Kiene, 231 Mo. 234; Spratt v. Early, 199 Mo. 500.

— Him W. T. Ragland, Judge. (1) Tbe entire subject-matter below is subject to review by this 'court. Benne v. Schnecko, 100' Mo. 257. (2) The plaintiff is not entitled to maintain partition, when the defendant is in possession and claims the property adversely to plaintiff. Chamberlain v. Waples, 193 Mo. 96. (3) The administrator’s deed to appellant is sufficient to constitute color of title.