Volume 268 — Missouri Reports

— Hem. W. K. Ámick, Judge. (1) This case cannot be adjudged by the rule of ultra vires without disregarding the principles of justice.

<p>1. FEDERAL EMPLOYERS’ LIABILITY ACT: Jurisdiction. An action for damages for personal injuries bottomed on the Federal Employers’ Liability Act cannot be removed to the Federal court on the ground of diverse citizenship.</p> <p>2. VERDICT CONTRARY TO WEIGHT OF EVIDENCE: Reversal on Appeal. On appeal a verdict will not be set aside on the ground that it is contrary to the greater weight of the evidence, if there is substantial evidence supporting it. It is for the jury to settle a conflict in the evidence.</p> <p>3. FEDERAL EMPLOYERS’ LIABILITY ACT: Contributory Negligence. Contributory negligence constitutes neither defense nor mitigation to a suit founded on the Federal Employers’ Liability Act.</p> <p>4. EVIDENCE: Photographs: Illustrating Testimony.. A photograph of a tender of the class to which the tender by which plaintiff was injured belonged, may be introduced in evidence in explanation of the testimony of a witness who testifies as to the location of the handhold or • grab-iron which is complained of as being a defective and unsafe appliance, and cannot be excluded on the ground that it is not admissible for other purposes.</p> <p>5. RESTRICTING EVIDENCE TO PROPER PURPOSE. If it is desired to restrict evidence proper for some purposes to the purposes for which only it is admissible, that can be done by .instructions.</p> <p>6. SAFETY APPLIANCE ACT: Defective Coupler:. No Negligence in Backing Train. Under the Safety Appliance Act and the Federal Employers’ Liability Act, an employee of an interstate railroad, injured while engaged in coupling a tender and car, is entitled to recover damages if the tender was not equipped with grab-irons and an operative automatic coupler and- the absence of either contributed to his injury, without regard to contributory negligence; and an instruction so predicating his right to recover is not erroneous because it does not also require the jury to find to be true the allegation that the engine was negligently backed against him while he was attempting to make the coupling.</p> <p>7. INSTRUCTION: Assuming Controverted Fact. An instruction which assumes as true a material fact in controversy is erroneous; but the instruction for plaintiff set out in the opinion did not make such an assumption.</p> <p>8. CONTRADICTING "WITNESS: Reading From Deposition. It is not prejudicial error to read to the jury from the prior deposition of a witness certain questions and answers thought to be in conflict with his testimony in court, where (1) there is no fact of the slightest consequence embraced by the one that is not found in the other, or (2) the testimony of the witness on the stand was in entire harmony with that read from the depositions.</p> <p>9. -: -: Traveling Outside Record. In such case the rule which prohibits counsel to .go outside of the record and present to the jury extraneous matter of a prejudicial character, has no application.</p> <p>10. VERDICT ON ONE COURT: Silence as to Others. The rule that when a jury returns a verdict for plaintiff on one count of a petition that is equivalent to finding against him on the other counts concurrently submitted, does not prohibit the jury from rendering a valid verdict by finding for plaintiff on the ■ first count and making no finding as to the second. Although the facts alleged in both counts are much the same, such a i verdict is not a finding against the truth of those stated in the second, nor is such a verdict, because of that rule, inconsistent.</p> <p>11. SAFETY APPLIANCE ACT: Grab-Irons and Handholds: Substitutes. The Safety Appliance Act declared that “it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab-irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.” That language as applied to an injury to an employee in 1910 was an absolute command, and did not authorize the placing .on cars or tenders of substitutes for grab-irons or handholds, nor did such substitutes excuse their omission.</p> <p>12. -: -: -: Reasonable Security. And an instruction which excuses the railroad company if it supplied the car with other attachments or devices in place of grab-irons or handholds,, which “furnished reasonable security to employees in coupling cars,” is a concession to the company to which it is not entitled. Nevertheless, it cannot be said to have misled-the jury to the company’s prejudice.</p> <p>13. —-: -: Car Includes Tender. The word “car” used in the quoted language from said Safety Appliance Act includes “tender.”</p> <p>14. EXCESSIVE VERDICT: $25,000. Prior to bis injuries, at the age of twenty-two years, plaintiff, a railroad employee, had been in excellent health and earning $75 to $100 per month. As a result of his injuries, he has lost both hands, and one leg . was broken and so injured that it is two and one-half inches shorter than the other. He is unable to feed himself, walks but little, and that little is painful and difficult, and he still suffers, and there is nothing he can do to earn anything. Helé that a verdict for $25,000 was not excessive..</p>

— Hon. William D. Rush, Judge. Under the law and the evidence the respondent is estopped to deny the abandonment of that portion of Seventh Street occupied by appellant and is estopped to deny appellant the right to occupy and use said street. The doctrine of equitable estoppel applies to municipalities the same in all respects as it applies to individuals when facts and circumstances warrant its application.

Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge. (1) Good-will is recognized as a species of property which may have great value. As such it has been held to be taxable by the State. State ex rel. v. Jones, 51 Ohio St. 492; Express Co. v. Ohio State Auditor, 165 U. S. 194; People ex rel. v. Roberts, 154 N. Y. 101; Beebe v. Hatfield, 67 Mo. App. 609; White v. Jones, 79 App. Div. (N. Y.) 373; Washburn v. Wall Paper Co., 81 Fed. 17.

Louis City Circuit Court. — Hon. W. B. Homer, Judge. (1) Where a minor under fourteen has lost both father and mother, and no guardian or curator has been appointed by will, the next of kin should be appointed by the probate court on behalf of such minor. R. S. 1909, sec. 403; 15 Am. & Eng. Ency. Law, pp. 39, 44; Morehause v. Cooke, Hopk. Ch. 226.

<p>1. CONSOLIDATED SCHOOL DISTRICT: Recording Proceedings. The Consolidated School District Law, Laws 1913, p. 722, does not require the petition and certificate of the .proceedings at the election to be spread of record by the county superintendent, nor are they unavailing in a quo iparranto because they have not been recorded by him.</p> <p>2. ——■—: Rights of Existing Districts. The Consolidated School District Law does not make the welfare of common school districts which are divided by the formation of the consolidated district a judicial question, but submits it to the discretion of the county superintendent in the first instance, and next to the voters at the election required to be held.</p> <p>3. -: Notices: Boundaries. Notices of an election for the formation of a consolidated school district are not void because they do not set out the description and boundaries of the proposed district. The statute (Laws 1913, sec. 3,' p. 722) only requires the notices to state “the place, time and purpose” of the meeting, and the word “purpose” does not impose the duty of setting out the exact boundary. Especially should this be the ruling since (1) the statute is to be liberally construed, (2) in addition to notices it requires plats designed to inform the voters of the exact boundaries to be posted in at least five places in the proposed district, and , (3) the notices in this case stated that it was proposed to organize a consolidated district “with boundaries as laid out on the plats posted.”</p> <p>4. -: Certificate of Proceedings: Place of Meeting: Oral Evidence. The attempted formation of the consolidated school district is not to be held void on the ground that the certificate of the proceedings of the special meeting does not expressly state that the meeting was held in the building designated in the notice; because: (1) the statute does not require the chairman and secretary’s certificates to state the place of meeting, but merely requires them to certify the proceedings of the meeting and (2) oral evidence is therefore admissible to supplement the certificate-in this respect, and .(3) in this case the certificate states the “meeting of the qualified voters of the proposed consolidated school district as per attached notice and plat” met at a designated hour, and the notice designates a definite place, and therefore the certificate gives definite information as to the place of meeting.</p> <p>5. PLATS: Boundaries. Plats oí the proposed consolidated school district, .drawn to a regular scale, in which a relatively small portion of the boundary is represented by an irregular line which does not follow the section lines or lines of section subdivisions, is not so insufficient as to render void the attempted formation of the district.</p> <p>6. - — : Discrepancies. Nor are the plats posted insufficient because there is an extremely slight discrepancy in the irregular line in two of them.</p>

Louis City Circuit Court.— Hon. ' Rhodes E. Cave,. Judge. (1) Shipments of lumber on local bills of lading from one point in a State to another point in the same State, destined from the beginning for ultimate delivery in another State, are interstate commerce. Railroad v. Tram Co., 227 U. S. Ill; Terminal C'o. v. Interstate Commerce Comm., 2191 U. S. 498; Railroad Comm. v. Worthington, 225 U. S. 101.

Prohibition. (1) The two motions filed in the circuit court are founded on the proposition that the final settlement of July 7, 1909, of the Leathe estate was valid. If the settlement was void the motions have no legal basis on which to rest.

— How. D. E. Blair, Judge. (1) A statute duly enacted hy the Legislature is presumed to be constitutional until the contrary appears beyond a reasonable doubt. State v. Cantwell, 179 Mo. 261; Ex parte Loving, 168 Mo. 203; State v. Aloe, 152 Mo. 477. (2) A legislative act general in its nature but creating certain classifications, based upon differences in population alone, is a valid act.

<p>1. FOUNDRIES: Toilet Rooms:'Constitutional Statute. The Act of 1913, Laws 1913, p. 401; requiring every corporation or person engaged in operating a foundry in which ten or more men are employed to provide suitable toilet rooms, containing washbowls or sinks provided with runni lg water, hot and cold)' and water closets connected with running water and a suitable room, properly heated and ventilated, wherein the men may change their clothes, is a reasonable exercise ot the police power and is constitutional, since the employment is such that it subjects those engaged in it to extreme changes of temperatures, exposure to dirt and danger, and demands great endurance.</p> <p>2. ———: -- — : Special Law. Said act is not a special law; it is not an arbitrary singling out of one of the many forms of industrial activity. Foundries are not a subdivision of factories, but a class within themselves.</p>

— Hon. Edward E. Porterfield, Judge. (1) The testimony affirmatively established the fact that the prosecuting witness, T. M. Brown, parted with the title and possession of the money in question solely upon his belief in and in his reliance upon the ¿Ileged statement made to him by the defendant to the effect that he, Brown, did not and would not have to become a resident upon the land in question in order to obtain title thereto from the government.

<p>1. MOTION FOR NEW TRIAL: Place in Record: Called For But Not Set Out in Bill. The proper place for a motion for a new trial in a criminal case is not in that part of the .transcript usually designated as the record proper, but in the bill of exceptions. But when there is set out in the bill a recital that defendant excepted to the action of the ■ court in overruling his motion for a new trial and that said motion is set out at certain pages “of the transcript of the record hereto attached and made a part hereof,” and said motion is found at the pages designated, the motion will be considered and reviewed on appeal.</p> <p>2. FAILURE TO SUPPORT CHILD: Evidence: Complaint. . Where the charge is that defendant bad refused and neglected to provide for his minor child necessary food, clothing and lodging it is error to permit the mayor of the town to testify that complaint had been made “about defendant not providing” for said child. Such testimony is an uncalled for verbal confrontation of defendant by a mere volunteer. And especially is it error, where the witness proceeds to testify that he sent the marshal for defendant, and when he was brought in he told him complaint had been made against him for not providing for his family, that it was not the first time complaint had been made, that he was tired of fooling with him and that he must support his family and provide clothing and fuel for them. !</p> <p>3. -: Meaning of Statute. The history, language and severe penalty of Sec. 4492, R. S. 1909, show that nothing more was intended by the Legislature than that the neglect or refusal by the father «to furnish necessary food, clothing or lodging must be to an extent that the life of his child under sixteen years of age is endangered thereby, or its health is permanently injured or is likely to be permanently injured thereby. The words “necessary food, clothing or lodging” mean such food, clothing or lodging as is necessary to sustain life and health, and lacking which the life of the child will be endangered, or its health permanently injured or is likely to be; they do not mean that a failure to furnish one meal, or food or lodging of a giver quality and kind, would be a crime.</p>

Louis Court of Appeals. (1) 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. State ex rel. v. Ellison, 260 Mo. 129; State ex rel. v. Reynolds, 257 Mo. 19.

— Hon. B. O. Thurman, Judge. (1) A city or town may control and regulate tbe use of ground dedicated to tbe public, but it cannot sell tbe land or devote it to private use, and thereby destroy tbe trust created for tbe benefit of tbe public. Cummings v. St. Louis, 90 Mo. 259; Board of Regents v. Painter, 102 Mo. 464; G. S. 1865, chap. 44, sec. 8; R. S. 1909, sec. 10294. Nor is the establishment of a public school therein a compliance with the purpose of the dedicator.

(1) The assessment of punitive damages and the amount thereof rests in the sound discretion of the jury, and the court will not interfere except in flagrant cases of bias, prejudice and oppression. Clearly a penalty of five hundred dollars against a railway company for a continuing violation of law extending over a period of more than seven years, is not an abuse by the jury of the discretion reposed in it. Summers v. Keller, 152 Mo. App. 636; Canfield v. Eailroad, 59 Mo.

(1) Relator contends that instruction No. 2 given for the plaintiff and approved by the Court of Appeals is erroneous and the opinion of the court in approving that instruction is in direct conflict with the opinions of this court in the following cases: Rodan v. Transit Co., 207 Mo. 392; Mockowik v. Railroad, 196 Mo. 571; State v. Kennedy, 154 Mo. 268, and Morton v. Heidorn, 135 Mo. 608.

Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge. . (1) The demurrer to the evidence offered at the close of the plaintiff’s case and renewed at the close of the entire case should have been sustained, because the evidence in the case did not warrant a recovery for the reason that the action was brought under Secs. 5426 and 5427, B. S. 1909, which are compensatory statutes and not penal, and the evidence did not show that any surviving relative had sustained any…

— Ron. Williaim G. Ellison. Judge. (1) This act is local and special in that it provided that town or city school districts having an enumeration of two hundred children of school age shall not he included in any consolidated school district, thereby exempting from the provisions of the act large portions of the State embraced in city and town districts that can never have an opportunity to vote on consolidated schools, this being a Local Option Law.

— Mon. L. B. Wood-side, Judge. (1) Under See. 2298, R. S. 1909, just as soon as the defendant entered his voluntary appearance and filed his answer to the merits, the writ of attachment was ipso facto dissolved; the declaration of law requested by ’ the plaintiff should have been given by the court.

— Hon. B. G. Thurman, Judge. (1) The matter of establishing a public road is in the nature of condemnation proceedings, strictly a statutory proceeding, and contrary to the course of the common law. The statute must be strictly complied with. Sec. 10435, R. S. 1909; Spurgeon v. Bartlett, 56 Mo. App. 355; Anderson v. Pemberton, 89 Mo. 601; Railroad v. Kellogg, 54 Mo. 334; Jefferson County v. Cowan, 54 Mo. 234; Whitelet v. Platt County, 73 Mo. 30; Bennett v. Hall, 184 Mo. 407.

Prohibition. (1) Any interest, “though it be ever so small and trifling,” disqualifies the judge. Any order or judgment on the hearing of the exceptions to the commissioners’ report that might be entered by the respondent would directly affect his pecuniary interest. Such being true, it was the duty of the respondent to have voluntarily called in some other judge who was not interested.

Prohibition. (1) The writ of prohibition here should he made absolute, because the circuit court is without jurisdiction to issue a subpoena duces tecum for the production of books or papers before a special commissioner under tbe deposition statute; it being certain that taking testimony this way is entirely a statutory proceeding wherein the circuit court is not given power with respect to such taking of depositions further than to appoint such commissioner in the instance…

Mandamus. (1) Voting on the proposition to issue bonds to build two court houses, in the same county, one at the city of Bowling Green and the other at the city of Louisiana, is not two separate and distinct propositions, for separate, different and distinct purposes, as set out and urged in the first division of respondent’s brief. • There is no difference between the relator and the respondent, as to what the law is, in this case.

— Hon. James D. Barnett, Judge. (1) That part of Sec. 1408, R. S. 1899, designating the class of persons to whom benefit certificates may be made payable is no part of the definition or description of a fraternal benefit society. Westerman v. Supreme Lodge, 196 Mo. 670; Tice v. Supreme Lodge, 123 Mo. App. 85, 204 Mo. 354; Armstrong v. Modern Brotherhood, 132 Mo. App. 171.

Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) “A person injuriously affected by an ordinance may show that its passage was obtained by fraud or other unlawful means, or for an unlawful purpose; and the fraud which will invalidate an ordinance is shown by proof of fraud, defined to be the wilful doing of an unlawful act.” Kansas City v. Hyde, 196 Mo. 507, 7 L. R. A. (N. S.) 639; State ex rel. v.' Gates, 190 Mo. 555; Glasgow v. St. Louis, 107 Mo. 203; McQuillin on…

— Eon. O. A. Lucas, Judge. (1) The trial court was wrong in holding that profits are not recoverable and that appellant was only entitled to recover nominal damages.

<p>1. ACCIDENT INSURANCE: Passenger. If the insured would be classified as a passenger in an action against the carrier, he should likewise be deemed a passenger under the terms of an accident policy, unless it by its terms restricts the conditions.</p> <p>2. -: -: On Street Car. The plaintiff’s evidence showed that the insured had gone up the steps and through the station of a street railway company and when the street car stopped at the usual place and before it started he was in the act of stepping upon the steps thereof to become a passenger thereon, hut whilst he was on the steps or partially oh the steps the conductor closed the door (previously open) and gave the signal for the car to go forward, and it did go forward with the insured clinging to the handhold, one foot on the step, and so continued until he was mocked off by a structure on the side of the track. For defendant there was much evidence to the effect that the insured ran and tried to board a moving car after the door through which passengers were admitted had been closed. Held, that the evidence for plaintiff, if true, made the insured a passenger under an accident insurance policy promising double-indemnity if the injuries were sustained “while the insured is a passenger in or on a public conveyance provided by a common carrier for passenger service (including platform, steps or running hoard of railways or street railway cars),” and the credibility of the testimony was for the jury.</p> <p>3. -: -: Instruction: As Between Insured and Railway: As Between Insured and Insurance Company. An instruction which tells the jury that if the insured, “with the intention in good faith to become a passenger, had gone up the steps and through the station before the doors of said car were closed, and before said car had started he was in the ret of stepping upon the steps of said car to become a passenger, then he was a passenger on said ear,” stated the acts necessary to make the insured a passenger as between him and the railway company. And the next clause telling the jury that if the “insured was a passenger as above defined and had actually gotten onto the steps of said car and was standing thereon when he was caused to fall therefrom and to be killed by falling from said steps” then he “was a passenger on said car within the meaning of the terms of said insurance policy,” stated the necessary facts to make insured a passenger as between him and the insurance company under an accident policy which promised double indemnity if the injuries were sustained “while the insured is a passenger in or on a public conveyance provided by a common carrier for passenger service,” etc. And, so viewed, the two clauses are r\ot contradictory or misleading.</p> <p>4. -: Vexatious Delay: Separate Issue: Evidence Confined to Main Issue. Under the statute a plaintiff in an action on an insurance policy, if he desires to recover damages for vexatious delay, must have in his petition allegations showing that he is entitled to those damages, and these allegations then become a triable issue, and being such any evidence that tends to prove that issue is competent, whether such evidence tends to prove the main issue or not; and if there is sufficient evidence to support that issue, plaintiff is entitled to recover separate damages for such vexatious refusal to pay but only when he recovers on the policy. But evidence on that issue cannot be confined to matters and things which would tend to show defendant’s liability for the principal sum of the policy.</p> <p>5. -: -: Competent Evidence: After Plea of Release Withdrawn. Defendant, after pleading that the beneficiary had for a valuable consideration released it of all liability on the insurance policy and plaintiff has replied charging that said release was fraudulently obtained and asking for damages and attorney’s fees for vexatious delay, cannot avoid the introduction of competent evidence showing the vexatious delay, even if it tends to establish the charge of fraud, by withdrawing its answer and filing another from which all pleas of settlement and release are omitted.</p> <p>6. -: -: -: Fraudulent Release. Evidence that the defendant insurance company purposely delayed the payment of one half of th,e insurance policy by fraudulently procuring a release of the other half, is competent evidence on the issue, of vexatious delay.</p> <p>7. -: -: -: Inquiry from Railway Witnesses. In a suit on an accident insurance poli ;y for double indemnity on the ground that the insured was a passenger on a street railway o'", evidence that defendant went to the railway company to get the facts as to whether the insured was a passenger at the time he fell from the steps of the ear in the act of boarding it, and that that company husbanded the witnesses who would testify to facts showing that such relation did not exist, is competent evidence to establish vexatious delay, since, before refusing to pay, defendant should have made a fair investigation and not confined it to such facts as these witnesses might give.</p>

<p>Appeal from Crawford Circuit Court. — Eon. R. A. Breuer, Judge.</p> <p>(1) -By the general law in force at the time the Meramec Iron Company was incorporated it was provided that “every corporation, as snch has power: First, to have succession fey its corporate name, for the period limited in its charter, and when no period is limited, for twenty years.” G-. S. 1865, p. 362, sec. 1. And that “upon the dissolution of any corporation —the president and directors, or managers of the affairs of said corporation, at the time of its dissolution — shall fee trustees of such corporation, with full power to settle the affairs,” etc. Gr. S. 1865, p. 329, sec. 19. This feeing the law, which has been carried forward in evéry revision since that time down to the present, the Meramec Iron Company had been dissolved fey operation of law at the date of the institution of the suit against it for hack taxes in 1894, and no suit could fee maintained against it. The title to the land it formerly owned was in the surviving directors. Bradley v. Reppell, 133 Mo. 545; Richards v. Coal So ¡Mining Co., 221 Mo. 149; State ex rel.' v. Road Co., 207 Mo. 54; State ex rel. v. Road Co., 138 Mo. 332; Landis v. Saxton, 105 Mo.'486; Gr. S. 1865, p. 326, sec. 1 (now Sec. 2990, R. S. 1909); Q. S. 1865, p. 329, sec. 19 (now Sec. 2995, R. S. 1909) ; Aldridge v. Pardee, 60 S. W. 789. After a corporation becomes dissolved, it can neither sue, nor fee sued, unless the faculty of suing or being sued is prolonged fey statute for the purpose of winding up its affairs. 6 Thomp. Corp.', sec. 7360; Stiles v. Oil So Coal Co., 36 S. E. 986; Thornton v. Railroad, 123 Mass. 32. No judgment can fee rendered against a corporation after its dissolution. Thomp. Corp. (2 Ed.), see. 6564; Kinney v. Ice Cream Co., 57 N. Y. App. Div. 206; Pendleton v. Russell, .144 U. S. 640; 10 Cyc. 1323, sec. 8-A; Thornton v. Railroad, 123 Mass. 32; 10 Cyc. 1271; Scanlan v. Crenshaw, 5 Mo. App. 337; Fairchild v. Masonic Hall Assn., 71 Mo. 526; Cross-man v. Water Co., 150 Cal. 575; 5 Thompson on Corp., secs. 6721, 6722, 6723; Clark & Marshall on .Private Corporations, secs. ,322, 329; Angelí & Ames on Corporations, sec. 195; 2 Morawitz on Corporations, sec. 1031; 7 Am. & Eng.' Ency. Law, p. 854; Bank v. Colby, 21 Wall. 609; Mnmma v. Potomac Co., 8 Pet. 281; Sturges v. Vanderbilt, 73 N. Y. 383; Rogers v. Adriatic Co., 148 N. Y. 38. (2) There can be no serious doubt that such a void judgment can be collaterally impeached and its invalidity shown by anyone interested, such as one entitled either as a creditor or stockholder to participate in the assets of the corporation. Crossman v. Water Co., 150 Cal. 575.</p> <p>(1) Aside from the objections made to the tax proceedings upon which respondent’s title rests, appellant raises the further issue that the corporation known as the Meramec Iron Company had become extinct and was dead as a matter of law, and that even though the proceedings in the .tax suit were regular and valid, no suit could be maintained against such corporation and no judgment rendered against it, any more than a suit could have been maintained and a judgment rendered against a dead person. Appellant bases this contention on the theory that it became a corporation de'jure under the statute of 1865 which provided that unless otherwise stated in the articles of incorporation the life of the corporation could run only twenty years, and that at the end of the twenty years said corporation became dissolved as a matter of fact and its franchises ceased and the title to its property vested in its board of directors as trustees. The appellant was not a corporation de jure but a corporation de facto. Gr. S. 1865, sec. 2, p. 327; State ex rel. v. Medical College, 59 Mo. App. 267; 3 Ruling Case Law, p. 48, sec. 48; 10 Cyc. 253; 2 Cook on Corp. (5 Ed.), pp. 637-1416; 7 R. G. L., sec. 49. (2) The existence of this corporation could not be attacked by any person other than the State; and the corporation itself cannot deny its existence at the time of the bringing of the tax suit and the rendition of the judgment against it, and the sale of the land under such judgment. In other words, the rightful existence of the corporation cannot be raised in a collateral proceeding. 10 Cyc. 256; 7 R. C. L., see. 49; Barbour v. Occidental Grove, 4 Mo. App. 434; Rutherford v. Williams, 62 Mo. 252; Stoutimore v. Clark, 70 Mo. 477; Stubacker Bros. v. Montgomery, 74 Mo. 103; Franklin Saving Inst. v. Board of Education, 75 Mo. 411; Catholic Church v. Tobin, 82 Mo. 424; Mining Co. v. Richards, 95 Mo. Ill; Coal Co. v. Bingham, 97 Mo. 213; Finch v. Ullman, 105 Mo. 263; Black v. Early, 208 Mo. 303. (3) The doctrine is universally settled that a corporation may exist de facto, when not de jure. It has an existence which is perfectly valid in so far as the rights of third persons are concerned, but' which, nevertheless, cannot be maintained against the "State. That is, it may exist so long as the State acquiesces and does not institute proceedings to oust it. 10 Cyc. 520; 7 R. C. L., sec. 48; Railroad v. Railroad, 2 L. R. A. (N. S.) 146;. State ex rel. v. Medical College, 59 Mo. App. 267,</p>

— Hon. W. 8. C. Walker, Judge. (1) The information in this case is fatally defective. The second subdivision of the statute does not denounce embezzlement, but the offense of making way with and secreting the property with intent to embezzle. State v. Lentz, 184 Mo. 237; State v. Larew, 191 Mo. 199.

<p>1. COSTS OF LITIGATION: Attorney' Fees: Independent Action. The successful plaintiff in a suit to set aside a deed for fraud and for an accounting, cannot maintain á subsequent independent action to recover the cost of litigation, including attorney’s fees, incurred in the necessary prosecution of that suit.</p> <p>2. -: - — ■: In Principal Suit: Res Adjudicata. If costs of litigation, including attorney’s fees, are recoverable by the successful litigant, a claim therefor should he made in the principal suit; otherwise, they are barred by the rule of res i ad judicata, for if recoverable for a- breach of duty or contract in issue in that case, it would be to split causes of action and multiply litigation to allow them to be recovered by a subsequent independent suit.</p> <p>S'. RE3 ADJUDICATA: Rule. All issues which might have been raised and determined in a given case, but were not, are as completely foreclosed as if they had been adjudicated and included in the verdict and judgment therein.</p>

— Hon. William O. Thomas, Judge. A writ of error will not lie from an error sustaining a motion for new trial, as is sought in this case, hence the writ should be quashed. Held: after the exhaustive review of cases, that this in substance was a finality, although there were orders necessary to be made later on in the case.

— Hon. W. V.' Evans, Judge. (1) The evidence on the part of the State is insufficient to support a verdict of guilty under a charge' of embezzlement of money. There is no evidence that defendant embezzled the sum charged, or any sum at any time. State v. Mispagel, 207 Mo. 557; State v. Martin, 230 Mo. 680; Hanna v. Insurance Co., 241 Mo. 400; State v. Moreaux, 254 Mo. 398; State v. Castleton, 255 Mo. 201; State v. Hamilton, 263 Mo. 300.

— Hon. Frank G. Johnson, Judge. (1) If the hauling of earth from the more distant borrow pit was outside of and in addition to plaintiff’s obligations under the contract, he would be entitled to compensation for the overhaul only upon showing a written agreement for such overhaul, signed by both parties to such agreement, and at a price agreed upon between him and the city in advance of the ,doing ’of the work, and in the absence of such showing plaintiff’s action must fail.

<p>1. CAUSES OF ACTION: Meaning: Survival. The words “causes of action” used in the statute (Sec. 5438, R. S. 1909) declaring that “causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries” shall survive the death of either the injured party or the party responsible for the injury, mean matters for which actions may be brought, tl 5 right to bring suits, the facts or combination of facts that give rise to rights of action, the right to institute and prosecute proceedings, etc.; and, therefore, it is not the suits or actions that survive, but the causes or rights of action upon which such suits are based.</p> <p>2. -: Survival: Limited to Suits Brought. Held, by Walker, X, as to which the other judges express no opinion, that, under Sec. 5438, R. S. 1909, the right of survival of a cause of action for personal injuries cannot be limited to cases in which actions were pending at the time of the death of the .injured party or the tortfeasor. The right of action having accrued, the death of a party in interest before the institution of a suit to enforce such right will not abate the action, or bar the right to bring it. [Disapproving Showen v. Street Ry., 164 Mo. App. 1. c. 47.]</p> <p>3. LANDLORD: Duty to Repair: Agreement. A landlord is not bound to keep leased premises in repair in the absence of an agreement so to do. Without such an agreement his liability for defects in the residence is limited to misfeasance; he is not liable for non-feasance.</p> <p>4. -: Agreement to Repair: Personal Injuries to Tenant: Liability In Tort. For a breach of a covenant to repair leased premises in possession of the tenant, the landlord cannot beheld liable in tort for personal injuries received by the tenant or a member of his family as a result of a defect in the premises; the obligation to repair being a duty assumed by the contract, its breach does not constitute a tort. And a petition sounding in tort, but disclosing no active' negligence independent of a breach of the contract, does not state a cause of action. [Disapproving Graff v. Brewing Co., 130 Mo. App. 1. e. 623 and 145 Mo. App. 364.]</p> <p>5. --: —-: -: Negligence Independent of Contract. •A breach of the contract to repair resulting in personal injuries to the tenant may arise fron the negligence of the landlord, but that is not such technical negligence as will authorize a right of action in tort; an action for tort can only exist independent of the contract for injuries not proximately resulting from the breach and not therefore within the contemplation of the parties.</p> <p>6. -: -: -: -: Presumption of Knowledge: Tort not Pleaded. Where the nature of the defect (a worn floor) in the leased premises is as easily discoverable by the tenant as the landlord, a petition charging presumption of knowledge from the landlord’s owne 'ship rather than actual knowledge, and containing no charge of fraud or deceit, does not charge a liability in tort on the landlord’s part for personal injuries received by the tenant.</p> <p>7. -: -: -: -: Arising from Ownership. Ownership does not create a presumption of knowledge by the landlord of a particular defect in the leased premises.</p> <p>8. -: -: -: -: Latent Defect. A defect in the leased premises alleged to he latent, if easily discoverable by both landlord and’ tenant, is not ground oi liability for personal injuries to the tenant arising therefrom.</p>

<p>1. ESCAPING PRISONER: Form Street Commissioner. Under Sec. 4381, R. S. 1909, declaring that “if any person confined in the county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody, and escape therefrom, he shall, upon conviction, he punished by imprisonment in the penitentiarv” etc., a prisoner who has by order of the court been placed in the custody of the street commissioner'and,required to work on the streets, cannot he convicted for breaking custody and escaping from said street commissioner. The statute limits its violation to a breaking and escaping from a county jail or from custody going to jail. Nor«is there any other statute under which a prisoner can he convicted for breaking custody and escaping from a street commissioner while engaged at work in the streets.</p> <p>2. -: Construing Criminal Statute. Criminal statutes must he strictly construed. The court cannot, on a plea of a failure of justice, extend a criminal statute beyond the grammatical and natural meaning of the terms it uses.</p>

<p>1. TORTFEASORS: Several Liability. Section 5431, R. S. 1909, requiring joint tortfeasors to contribute to the redress of a private wrong, applies to cases of personal injuries resulting from a negligent omission of duty.</p> <p>2. -: -: Judgment Conclusive. A judgment against two defendants for damages for personal injuries due to negligence is conclusive as to the liability of each to the judgment plaintiff. After such judgment has become final, neither can be heard to contend that it was not liable to the plaintiff for damages in that action.</p> <p>3. -: City and Telephone Company: Negligence. A telephone company which has erected its poles along a street is liable over to the city for any damages the city may be compelled to pay to a pedestrian who has fallen into a hole caused by the negligence of the telephone company.</p> <p>4. ——: Contribution: Primary Liability of the Telephone-Company. Where the record shows a primary liability ol the telephone company as between it and the city for injuries ■ due to the falling of a pedestrian into a hole resulting from the placing of a telephone pole along a public street, the company does not make out against the city a prima-facie case for contribution by alleging and proving that both it and the city were sued by the pedestrian and that he recovered a judgment against both jointly.</p> <p>5. -: -: -: Evidence: Sole Liability of One Defendant. There is a wide difference between the primary liability of tortfeasors and the sole liability of one of them. Where both the city and a telephone company were sued for damages for personal injuries due to the falling of a pedestrian into a hole negligently allowed to exist at the side of a public street where a telephone pole had been placed, and judgment was rendered against both, neither can claim in an action for contribution that the other was solely liable to the pedestrian, for the judgment concludes both against such contention; and, therefore, it is not error, in a suit by the telephone company against the city for contribution, to exclude testimony tending to show that the hole was not ■ caused by the telephone company, but by a leaking fire plug. Such testimony would not show that the city was primarily liable, but would show a sole liability on its part.</p> <p>6. -: -: Estoppel: Must Be Pleaded. Estoppel to be available must be pleaded. The city, when sued by a telephone company for contribution for one half of the judgment rendered in a negligence case against both, cannot be heard to contend that an agreement between the attorneys of the two defendants as to the course of defense to be pu-sued in the negligence case estops the city from asserting the primary liability of. the company, unless it pleads such agreement as estoppel.</p> <p>7. -: -: -: Agreement Upon a Common Defense. The facts of this case do not show that two tortfeasors, jointly sued, had an agreement, in the interest of a Common defense, under which neither would attempt to cast primary liability upon the other; but under the agreement to make a joint defense, each was free to show the other solely liable. In a suit for damages for a tort against two tortfeasors, each may show that the injuries were due to the negligence of the other alone, but neither can show that the other was alone primarily liable.</p> <p>8. -: Telephone Company: Erection of Poles: Bond to City. A bond given by a telephone company, which by the permission of the city has erected telephone íoles along a public street, obligating the company to save the city harmless from all loss or damage by reason of the exercise of the permission, fixes primary liability upon the company, as the law does without the bond, for damages to a pedestrian falling into a hole near where a pole was placed.</p>

<p>1. INTERSTATE COMMERCE: Definition: Police Regulation. Interstate commerce includes intercourse, and cannot be confined to traffic alone. It embraces intercourse between persons, firms or corporations of different states: and importation is not only an indispensable element, but the test of interstate commerce. But the Federal statute regulating interstate commerce will not he construed to interfere with the power of the State to fully regulate its police and taxing powers and domestic trade unless the State statute conflicts with the plain provisions thereof.</p> <p>2. -: Sales by Samples: Canvasser: Interruption in Interstate Character. But shipments fro.a outside the State to a canvasser, who sells goods upon order, which of itself gives to them an interstate character, will not alone suffice to relieve the canvasser from the burden of a State license, unless the interstate character of the transaction continues up to and includes the sales to purchasers. If the interstate character of the shipments ceases upon the delivery of the goods by the foreign corporation to the canvasser, the goods do not thereafter move in interstate commerce, but the movement becomes local in its nature upon such delivery to him.</p> <p>3. -: -: —:-: -: Facts of Case. Defendant went from house to house in a city in this State, carrying samples of wares, exhibiting them to prospective purchasers, who- agreed to buy from him goods similar to the samples and to pay for them upon delivery after satisfactory examination. Orders for wares, made by defendant, were directed to the manufacturing company in another state, sufficient to meet the requirements of the prospective sales. In no case did he furnish the company the names of the particular purchasers, but before making the orders he had furnished the company with letters of credit to cover the cash amount of the particular order. The goods were billed and shipped to defendant in bulk and he paid the freight charges, and upon receipt he sorted and delivered them in accordance with the conditional sales theretofore made, and if the goods were accepted he received payment therefor from the purchasers. He had an agreement with the company that he might return at its expense to a certain amount on any order goods not taken by persons to whom contracted and who declined to receive them. Held, that the goods became defendant’s property when they were delivered to him, and upon such delivery their movement lost its character as interstate commerce, and thereafter became local in it nature, and defendant was subject to a fine for selling them without first having obtained from the city a license as a “canvasser or agent taking orders or selling goods to customers, by canvassing or going about from house to house.” [Distinguishing Fleming v. Mexico, 262 Mo. 432; Jewel Tea Co. v. Carthage, 257 Mo. S'83; and Kansas City v. McDonald, 175 S. W. 917.]</p> <p>4. -: -: -: Rebates. The contract by the canvasser for rebates from the foreign company in the event of his failure to consummate the sale of wares for which he canvassed from house to house and obtained conditional contracts of sale, does not add to nor serve to continue the interstate character of the shipment after the movement of the goods in interstate commerce had been broken by delivery to him.</p> <p>5. CANVASSER: License: Merchant or Peddler: Engaging in Business: Validity of Ordinance. Sec. 9399, R. S. 1909, empowering cities of the fourth class “to regulate and license all business, trades and avocations whatever,” authorizes such cities by ordinance to prohibit “any person, firm or corporation from carrying on or engaging in any business in said city without having obtained and paid for a license,” which includes a canvasser who goes from house to house soliciting and taking orders for goods by sample, since that is carrying c'n and engaging in a business, and therefore it is immaterial whether a canvasser be considered a merchant or a peddler.</p> <p>6. -: No Specific Use of Word in Statute: General Words. Simply because the word “canvasser” is not used in the statute, it will not be held that the city is powerless to tax “canvassers” engaged in canvassing from house to house for orders for goods to be delivered upon conditional sale. While general words used in a statute are to be limited in their meaning to the particular words preceding them, and while, strictly speaking canvassers may not be ejusdem generis with merchants and peddlers, they are sufficiently so within the meaning of a statute authorizing the city to “regulate and license all business, trades and avocations,” even though it does not use the word “canvasser.”</p> <p>7. MISDEMEANOR: Charge in Words of Statute: Synonym. Charging a misdemeanor in the substantial lan 'rage of the statute is sufficient. Nor is the complaint insufficient because a synonym of the statutory words is used instead of the words themselves.</p>

<p>1. JUROR: Prior Opinion. The fact that a juror has made up his mind from what he saw in a newspaper is no ground for challenge after he has stated he can disregard that opinion and decide the case solely from the evidence.</p> <p>2. WITNESSES: Competency: Harmless Testimony. The court will not on defendant’s appeal consider the competency of witnesses confined as patients in an insane asylum where they testified to nothing having a tendency to convict defendant, and their testimony was really favorable to him and could not have harmed him.</p> <p>3. -: -: Person of Unsound Mind: Patient Confined in Insane Asylum. Under the statute declaring that “a person of unsound mind at the time of his production for examination” shall be incompetent to testify, a person adjudged to be of unsound mind who is confined in an asylum for the insane is presumed to continue insane; but such presumption may be rebutted by a proper, voir dire examination conducted by the court, and such a person is competent to testify if (1) upon examination he be found to be of sufficient mental capacity to understand the nature of an oath, that is, to know it is both a moral and legal wrong to answer falsely, and that false swearing is a punishable crime in law, and (2) if he be possessed of sufficient mind and memory to observe, recollect and narrate the things he saw or heard.</p> <p>4. -: -: Presumption: Burden: Credibility. The burden of rebutting the presumption of incompetency cf a witness confined in an insane asylum is upon the party offering him; hut absent such confinement, or an adjudication that he is insane, the burden of showing his incompetency is on the party objecting. And while the question of his incompetency is for the court, it is for the jury to determine the credit that ought to be given to his testimony.</p> <p>5. INSTRUCTION: Reference to Information. An instruction which refers the jury to the information for matters which are not in the instruction and which are necessary for their consideration, is erroneous; but it is not erroneous if, in spite of such reference, it contains the matters necessary for their consideration, but such reference is merely surplusage and harmless.</p> <p>6. -: Non-Direction: Manslaughter: Force by an Officer. An instruction which tells the jury that defendants, officers of an asylum for insane persons, had the right to use all force necessary to control the assaulted patient, and that if the jury should find that they did unnecessarily strike, heat and injure said patient with their feet and fists, and that said patient died therefrom, they should find them guilty of manslaughter in the fourth degree, was correct as far as it went; and if defendants desired to have the jury instructed to the effect that defendants were not required to nicely gauge the amount of force necessary to subdue the patient and that they had the right to use such force as reasonably seemed to them necessary for that purpose, it was their duty to ask for such instruction, and having failed to do so they cannot complain, since the complaint is one of non-direction, not one of misdirection.</p>

Prohibition. (1) The portion of section 7242 under which the election contest is brought and which attempts to provide for the contest of a local option election is a special law and is unconstitutional because a general law providing for the contest of all elections by the people, other than those held for the election of public officers, could have been made to apply.

— Hon. J. H. Slover, Judge. (1) By the terms of the so-called warehouse receipts the grain mentioned therein was held by the Flanagan Company subject to the order of the National Bank of… Held: as between him and the holder with whom he had deposited them as collateral security for money loaned, to be valid, both as pledges and as warehouse receipts. Furthermore, in none of those states were there any statutes like our sections 11951, 11952, 11957 and 11959, R. S. 1909.

Genevieve Circuit Court. — Now. N. Q. Ramsey, Judge. (1) The title to the Absentee Voter Act is sufficient to include and make operative all of the provisions of the act.

<p>1. CONSTITUTIONAL LAW: Mandatory Statute: Mandamus: Burden. It is incumbent on a board of curators of an institution established by the State who refuse to obey a mandatory statute, to establish beyond reasonable doubt that the statute is not susceptible of any reasonable interpretation consistent with the Constitution, which will leave in it any command to them which is enforcible by mandamus and within the scope of the alternative writ.</p> <p>2. -: Interpreted by Words Used. No forced or unnatural construction is to be put upon the language used in the Constitution. The primary rule of interpretation is to seek out the thought expressed by the words used. To ascertain that thought, the first resort in all cases is to the natural signification of the words employed, in the order of grammatical arrangement in which the framers have plpced them. If thus regarded, the words embody a definitt meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the instrument, is the one alone that was intended to be conveyed.</p> <p>3. -: Departments of the Univercity. The language of the Constitution which commands that “the General Assembly shall, whenever the public school fund will permit and the actual necessity of the same shall reouire, aid and maintain the State University, now established, with its present departments,” did not deal with the right or power of the General Assembly to establish other departments, but spent its direct force entirely upon an injunction to aid and maintain, under stated conditions, the departments already established. And that being the case, courts are not permitted, for the purpose of attempting to discover some hidden, some occult intent of the people, to resort to documents other than the Constitution itself.</p> <p>4. -: -: In Light of Constitution of 1865. There is no such difference between the language of the Constitution of 1875, which required the General Assembly to “aid and maintain the State University, now established, with its present departments” and the language of the Constitution of 1865 which required the General Assembly to “establish and mairtain a State University with departments for instruction in teaching, in agriculture, in natural science,” as makes invalid a statute increasing the departments of the University. It cannot be assumed, because the word “establish” used in the Constitution of 1865 was omitted and the word “aid” substituted therefor in the .Constitution of 1875, that the framers of the Constitution of 1875 recognized the University as already established with definite departments and meant the General Assembly should maintain it with only those departments. There is no need, either for the courts or the General Assembly, to resort to the Constitution of 1865 for an ascertainment of the words used in the Constitution of 1875, for those words are so plain that they need no construction.</p> <p>5. -: Department in University: Not Aided by Other Schools. A statute authorizing the School of Mines and Metallurgy to provide for courses of study in mining, mechanical, electrical, chemical and civil engineering and to confer scientific degrees, is not violative of the constitutional provision requiring the General Assembly to “aid and maintain the State University,” on the theory that it affords a means by which students will be attracted to said school and away from the University, and would not to that extent be an “aid” to the University. The word “aid” means to assist by an appropriation of money.</p> <p>6. -: -: No Actual Necessity For. The statute providing for new courses of study in the School of Mines and Metallurgy is not unconstitutional on the theory that there is no “actual necessity” for their establishment. The constitutional provision requiring the General Assembly to aid and maintain the State University as “the actual necessity of the same may require” simply commands aid to be given under stated conditions, does not forbid aid, and does not refer to necessary courses of study.</p> <p>7. -: -: Investment of Government in Curators: Control by Legislature, The language of the Constitution declaring that “the government of the State University shall be vested in a board of curators” does not deprive the General Assembly of power to legislate concerning the University with respect to the establishment of new departments or new courses of study in established departments. These words do not constitute the board a separate and distinct depart: :ent of the State Government, over which the General Assembly has no control except in the matter of appropriations for its maintenance.</p> <p>8. -: -: The Word Government. The language of the Constitution declaring that “the government of the State University shall be vested in a board of curators” vests nothing in them save the government of the University; and “government” means control, direction, regulation, management, exercise of authority in regulating something, and there was in the use of that word no express or implied restriction upon the power of the Legislature to add new departments or courses of study to the University, nor anything to devest the General Assembly of power to legislate respecting the University.</p> <p>9. -: -: Legislative Power. The legislative power, subject to the limitations contained in the Constitution, is vested in the General Assembly, which is vested with all legislative power not expressly or by necessary implication for- • bidden by that instrument.</p> <p>10. --: In Light of Creative Statute. There is no necessity to resort to extrinsic matter for an ascertainment of the meaning of the words of the Constitution declaring that “the government of the State University shall be vested in a board of curators,” for those words plainly do not devest the General Assembly of all legislative control over the University; but if such extrinsic matter is pertinent the most relevant is the Act of 1839 which gave origin to the University and used the same words, and it would be unreasonable to say that the General Assembly by using those words intended to devest itself, for all time, of power to legislate respecting the University.</p>

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) Plaintiff made no ease, (a) Plaintiff and defendants were not at the time of the injury both engaged in interstate commerce. Thompson v. Railroad, 262 Mo. 468; Railroad v. Behrens, 233 U. S. 473; Federal Emp. Liability Act, 35 U. S. Stat. at L., p. 65, as amended by 36 U. S. Statutes L. 291. (b) The record fails to show any negligence on the part of defendants.

— Row. J. G. Slate, Judge'. (1) The circuit court committed reversible error in finding that respondent was not barred and estopped from denying the authority and capacity of the appellant to approve respondent’s bond issue, after it had expressly recognized such authority and capacity by its application and proceeding for such approval and by its formal acceptance of appellant’s certificate of approval. 8 Cyc. 791; 6 Ruling Case Law, pp. 94, 95; State v. Collins, 225 Mo.…

— Hon. Frank Divilbiss, Judge. (1) The lands sought to be charged with the tax in controversy weré not incorporated within the plaintiff levee district, • and hence not subject to this tax. The Hillside Securities Company, the appellant herein (defendant below), was the record owner of the lands in question at the time the .proceeding to institute the levee district was begun.

<p>1. NEGLIGENCE: Liability: Last-Chance Doctrine. If the traveler, about to cross a railroad track in front of an approaching train, so suddenly changed his position of safety into one of danger that the - collision with him could not have been avoided by the exercise, of the care which the circumstances required the railroad company to use, there can be no recovery for his consequent death; on the other hand, although himself careless, if he was in a perilous position and oblivious thereto, and this was known, or should have been known to the company, and it failed to use the means reasonably at hand to avert the injury, it is liable under the last-chance doctrine.</p> <p>2. -: Liability Notwithstanding Adverse Testimony of Own Witness. The fact that if the testimony of one of plaintiff’s own witnesses is true he cannot recover does not preclude him from establishing a case by the testimony of other witnesses, even though contradictory of that of the one offered for the express purpose of establishing the main point at issue.</p> <p>.3. -: Demurrer to Evidence: Rule: Inference of Fact. A demurrer to the evidence admits whatever facts the evidence tends to prove, and the court in passing upon it must make every inference of fact in favor oi the party offering the evidence which the jury, might with any degree of propriety have made; and if, when viewed in that light it is sufficient to support á verdict, the demurrer must be overruled. To give full effect to the rule the court cannot weigh conflicting evidence, nor make inferences of fact in favor of the defendant to countervail or overthrow inferences of fact in favor of plaintiff.</p> <p>4. -: Pedestrian on Track. Where there is testimony that a pedestrian, at a recognized road crossing, was seen by the engineer from the time he was within sixty feet of the crossing; that after he came upon the west end of the crossing he proceeded east on the track a distance of sixteen feet; that he was seen by the engineer to be apparently oblivious of his danger and unconscious of the approach of the train, from behind, it was the plain duty of the, engineer to take the most appropriate action to avoid injuring the man, and that duty began as soon as it, was apparent that he was intent upon placing himself in a position of danger; nor could action be postponed until the man actually went upon the tracks, because, under the circumstances, the danger zone extended beyond those limits.</p> <p>5. -: -: Warning. The engineer of a railroad train should at least give a warning as soon as the danger to a pedestrian first becomes apparent.</p> <p>6. -: -: Confusion. Where th pedestrian, during the time he was traveling on foot a distance of 70 to 87 feet across a railroad crossing; and on the tracks, was seen by the engineer of the train, approaching from behind, the engineer is not to be excused from taking some appropriate action to avoid injuring the man, by the fact; that surprise at seeing a pedestrian in danger sometimes creates mental confusion and forestalls instant action.</p> <p>6. -: Anticipating Persons o"n Track. It is the duty of an engineer of a railroad train to anticipate the possible, and even probable, presence of persons at a public crossing, and to be in a position not to be surprised when they are seen by him to be on the track or in a position of danger, and to act quickly and intelligently.</p>

— Hon. James H. Slover, Judge. (1) The mere designation upon the plat of a subdivision of land, or addition, whether within or without a city, of a plain line or lines, and writing on the plat near or along such line or lines the words “Building Line” is too indefinite and indeterminate, and is not a sufficient expression of a positive and perpetual restriction upon the use of the land to be binding as a restriction of the ordinary and usual exercise of ownership and…

— Hon. Thomas J. Seehorn, Judge. (1) As to the property of this defendant, the imposition of the special assessments in question could result in no possible benefit, actual or potential. The acts were' manifestly oppressive and an unreasonable exercise of municipal authority and therefore void. The trial court erred in not so finding and deciding.

Appeal frqm Jasper Circuit Court. — Eon. J. D. Perkins, Judge. (1) In the original case, the plaintiff did not ask nor did the decree award anything for the maintenance, support and education of the child, and therefore the court was without jurisdiction to make any order touching such matters in this case. Lukowski v. Lukowski, 108 Mo. App. 204; Seely v. Seely, 116 Mo. App. 362; R. S. 1909, secs. 2381 and 2375.

Mandamus. (1) The organic law of this State is not like the Federal Constitution, a grant of power, but is simply a limitation upon legislative power which the Legislature otherwise possesses; and the Legislature may enact any law which does not contravene the Federal or State Constitution.