Volume 271 — Missouri Reports

— Eon. Alonzo D. Burnes, Judge. (1) Charitable trusts are recognized, enforced and protected by the courts of chancery of this State as a part of the general jurisdiction, not based upon — nor does it need the support of — the Statute 43d Elizabeth; nor is it dependent upon any prerogative power, but is inherent in a court of chancery.

<p>1. INFORMATION: Failure to Use Felonious Before Intent. An information charging that defendant “feloniously . . . did then and there make an assault with intent him . . . then and there to kill” charges' a felony and is not had because it does not use the word “felonious” before the word “intent.” [Overruling State v. Clayton, 100 Mo. 516.]</p> <p>2. ASSAULT: Intent: Proof of Both: Instruction. In a prosecution for assault with intent to kill, the intent with which the assault was committed is a necessary element which must be proved, whether a wound be inflicted or not, but the fact that a wound Was inflicted may be proven as -evidence of intent; and an instruction that requires the jury to find both an assault with intent to kill and a wounding by that assault places an unnecessary burden on the State, but it is an error of which defendant cannot complain; it does not require him to purge himself of two crimes before he can be acquitted. [Distinguishing State v. Melton, 102 Mo. 683.]</p> <p>3. REPUTATION: Outside of Issues. In a prosecution for assault to kill, impeachment testimony that the reputation of a witness for defendant for peace and quietude is bad, and that the reputation of defendant’s father for good citizenship and for abiding by the law is bad, is inadmissible, and reversible error. Their reputation in those respects is outside the issues. Only their reputation for truth and veracity is involved.</p> <p>4. -: Of Defendant: No Exception. Whether an inquiry as to the reputation of the defendant, charged with felonious assault, for peace and quietude made before he had himself put that reputation in issue, was error, will not be decided, unless the record shows a proper preservation of the complaint.</p> <p>5. DEFENDANT AS WITNESS: Failure to Clive Instruction. A judgment of guilty will not be reversed because the trial court refused to1 instruct in 'conventional terms that the defendant was a competent witness in his own behalf.</p>

<p>1. JURORS: Service for Parts of Two Weeks. Members of the panel who had served two days as jurors the week preceding the trial and been in attendance upon the court two days thereafter during the week they were impaneled to try the case, were not ineligible or disqualified under a statute which provided that “no petit juror shall be permitted to serve on such jury for more than one week consecutively during any term of court.” The statute limits the right of challenge to the time of actual service of the juror, and not to the period of his attendance upon the’ court under the venire.</p> <p>2. HYPOTHETICAL QUESTION: Insanity: Based on Absence of Evidence of Pact. Where the entire testimony prior to the cross-examination of defendant’s expert witness had been confined to showing insanity on the part of defendant’s father and congenital mental and physical weakness on the part of certain brothers and sisters of defendant, and there was no evidence of a taint of insanity in the family of defendant’s mother, it was not error for the hypothetical question propounded by the prosecuting attorney on cross-examination to assume that there was no insanity in the mother’s family.</p> <p>3. IMPROPER EVIDENCE: Exclusion on Wrong Ground. If the evidence offered was improper on any ground, an insufficient of er- ' roneous ■ reason assigned by the trial court for excluding it does not constitute prejudicial error. It is the ruling of the trial court, and not the reasons therefor, to -which the appellate court looks to determine error.</p> <p>4. EXPERT WITNESS: Own Estimate of Competency. The competency of witness to testify is not to be measured by his own estimate of his qualifications, but by the trial court; and if the preliminary examination of a physician satisfies the court that he is competent to testify as an expert on insanity and the facts justify that ruling, a statement by him that he is not an expert on insanity does not disqualify him to testify.</p> <p>5. REOPENING OF CASE: Discretion of Trial Court. The reopening of the case by the State for the introduction of the check alleged to have been forged by defendant was a matter within the discretion of the trial court; and in -the absence of prejudice, to the accused because thereof, will not be condemned by the appellate court.</p> <p>6. INSANITY: Former Affirmative Adjudication: Discharge. The presumption that one who has been adjudged insane continues in the same condition does not obtain after his discharge as curéd; and the presumption of sanity which always obtains in the absence of countervailing proof is not removed by such former adjudication after the commission of the crime and his discharge, but the proper inquiry is, did the defendant know he was doing wrong at the time he committed the offense?</p> <p>7. INSTRUCTION: Refusal of Defendant’s. If the instructions given were clearly and accurately framed and were ample in themselves, the trial court did not err in refusing instructions asked by defendant.</p>

<p>1. TELEPHONE COMPANY: Valuation of Properties. Where the Public Service Commission found the rates as fixed by the telephone company to be reasonable and overruled the complaints that they were excessive, the company cannot complain that the valuation of the company’s plant as fixed by the commission “for the purpose of determining reasonable and just rates” was unjust, in that it failed to take into consideration all the factors that should have been considered, and the court will not on the company’s appeal investigate the evidence and determine whether or not such valuation was correct. If no present relief is sought which in any manner can be affected by the valuation fixed by the commission, there is no sufficient reason why the court should review the valuation.</p> <p>2. -: -: Conclusive for All Time. The valuation of a telephone plant as fixed by the Public Service Commission is not conclusive for all time. If that were the meaning of section 101 of ' the Public Service Act it would be unconstitutional, since the Legislature cannot prescribe what shall be conclusive evidence. So the part of the section that provides that the facts found by the commission on the first valuation cannot be controverted except by a showing of a change in condition must be held to be inconsistent with and subservient to the further provision for a reexamination and revaluation. [Opinion on rehearing.]</p> <p>3. -: Installation Charge. A telephone installation charge of three dollars, required to be paid in advance, for which if the service is continued until the end of a year the subscriber is given credit on the last two months, and if the service is discontinued before the end of the year the deposit is forfeited as being in the nature of an additional charge for short-term service, is unreasonable.</p> <p>4. -: -: Pledge Without Interest. Said installation charge, paid in advance, is an addition to the working capital of the company on which it pays no interest, and ignores the principle that a pledgee is always liable to.the pledgor for the profit which he receives from the thing pledged.</p> <p>5. -: Removal Charge. A rule of a telephone company by which a removal charge of fifty cents is made where there is no such removal of the telephone, but the only change is that one tenant moves out and another moves in, without additional expense to the company except the small matter of book-keeping, is unreasonable.</p> <p>6. -: Extra Charge to Rooming Houses. Where the evidence is that there is a separate directory gotten up by students, in which are listed the names of three thousand students who are not telephone subscribers, and in which appear opposite the proper telephone numbers the names of most of them, and that students require telephone service to go with what they pay for room rent, an additional' charge of fifty cents per month for the use of a telephone in a private residence in which one or more roomers or boarders are kept, is not unreasonable.</p>

<p>1. STATEMENT AT CORONER’S INQUEST: Voluntary. The statement made by defendant at the coroner’s inquest into the cause of the death of the person killed by him may be introduced by the State at his trial for murder, if it was voluntary; and if he was subpoenaed to appear at the inquest, and was told by both the coroner and prosecuting attorney that he did not have to make any statement unless he wished to do so, and there is no evidence of imposition, although he was questioned by the prosecuting attorney and was not told that any statement he might make might be used against him, the statement made by him and put in writing and signed by him was voluntary, and no reversible error was committed in permitting the State to put it in evidence at his trial.</p> <p>2. SELF-DEFENSE: Instruction: Withdrawal; Revivor. An instruction telling the jury that if defendant voluntarily entered the difficulty with deceased for the purpose of seeking an opportunity to kill him or do him some great bodily injury, “then in such case defendant should not be acquitted on the ground of self-defense, however imminent his danger might afterwards have become,” ignores and excludes defendant’s right of self-defense in view of evidence tending to show his attempt to withdraw from the difficulty. The law is that, although defendant may have brought on the difficulty with the intent to kill deceased, yet if he was attempting to withdraw from the difficulty and was fleeing from deceased in good faith for the purpose of such withdrawal, and if deceased, knowing that he was endeavoring to withdraw from the conflict, pursued him and sought to kill him or do him some great bodily harm, then the defendant’s right of self-defense revived.</p> <p>3. EVIDENCE: Prior Violence Towards Person Defended. Previous threats and acts of violence towards the person defended is competent evidence on behalf of defendant. Where deceased threatened his wife (defendant’s mother) with 'an axe and defendant hastily secured a shot-gun and demanded that his father should put down the axe and in a difficulty which followed with shot-guns the father was killed, it was error to refuse to permit defendant to prove by his mother that deceased, about eighteen months prior to his death, in a fit of passion, struck his wife, threw her on a bed and was choking her when pulled off by an elder son; and that defendant was present and saw it.</p> <p>4. DEFENDANT AS WITNESS: Instruction: Credibility. An instruction telling the jury that defendant is a competent witness in his own behalf, “but in determining what weight you will give to his testimony you may consider the fact that he is the defendant, on trial, and testifying in his own behalf,” is erroneous under the ruling in State v. Finkelstein, 269 Mo. 612.</p>

<p>1. FELONIOUS ASSAULT: Use of Deadly Weapon: Presumption of Intent. In the prosecution of a defendant for an assault with intent to kill, it is not error to instruct that an intent to kill arises from an intentional striking upon a vital part with a deadly weapon. The rule is exactly the same in such a case as it is in mur- . der cases. As a matter of law a presumption of murderous intent should be indulged from the fact that defendant or his co-conspirator struck .the prosecuting witness upon the front and back of the head with a four-foot stick of oak cordwood and crushed his skull.</p> <p>2. CIRCUMSTANTIAL EVIDENCE: Failure to Instruct. If the defendant neither in his motion for a new trial nor in his exceptions to the instructions as given mentioned the failure of the court to instruct on circumstantial evidence, his complaint on appeal that the court failed to so instruct will not be considered.</p> <p>3. CONFESSION: Instruction: Comment Upon Evidence. An instruction telling the jury that what defendant in a written confession said against himself the law presumes to be true because said against himself, what he said for himself you are not bound to believe, but may believe or disbelieve as it is shown to be true or false by the' evidence in the case, is not erroneous as a comment on-the evidence.</p> <p>4. INTENTION TO ASSAULT: Mistaken Identity of Person Assaulted. Where defendant lay in wait with the intention to assault the driver of a milk wagon, whom he thought to be Peterson, but who - turned out to be Willy, and whom he did assault, it cannot be held that he did not intend to assault Willy. There was no mistake as to intent; it was only a mistake as to the identity of the intended victim.</p>

<p>1. CORPORATIONS: Consolidation: Revivor of Action. Where numerous corporations were consolidated into defendant company before the date of plaintiff’s injury and all acts of incorporation were made prior to that time, and the defendant has by stipulation agreed that for the purpose of the case it is the same corporation that it was at the date of the injury, there is no need of a revivor of the action, and it is not to be dismissed for failure to revive on the ground that the statute of the State in which the injury occurred requires an action to be revived against the successor of a defendant within one year after the defendant’s death or else to be dismissed.</p> <p>2. NEGLIGENCE: Res Ipsa Loquitur: Prima-facie Case: Instruction: Burden of Proof. Three men, one of whom was the plaintiff, a shipper, were trying to open the door of a car to be used .in the shipment of cattle. The door was suspended by hooks which hung over an iron rail at the top of the door, which was opened by being slid along on the rail. The evidence for plaintiff tended to prove that the hooks were too short; that the three men had difficulty in opening the door; that when it was opened far enough for one of them to get into the opening he got inside and pushed, while the other two stood on the ground and pushed up, whereupon the door fell outward from the top, and over onto plaintiff, and injured him. The car was furnished by defendant, but none of its employees was present at the time of plaintiff’s injury, jHeld, that the law does not prejudge the case by declaring that it was the fault of the car and not of the men that the door fell, that the case is not one in which the doctrine of res ipsa loquitur determines defendant’s liability, and the trial court erred in refusing to instruct the jury that the burden of proof was on the plaintiff to establish by a preponderance of the evidence that he was injured as the result of some defect in the car door.</p>

<p>1. SELF-DEFENSE: Instruction: Necessary to Kill. Instructions on self-defense which tell the jury that if defendant at the time he struck and killed deceased “had reasonable cause to believe and did believe that it was necessary for him to strike and kill,” and that “you must find and believe from the evidence that the defendant not only thought he was in danger of being killed, but that he had reasons to believe that he was in danger of being killed or receiving great bodily harm,” etc., are erroneous. Said instructions condition defendant’s right to self-defense upon his belief that he was in danger of being killed and upon the presence of a reasonable ground for believing it necessary to kill.</p> <p>2. -: The Rule. The rule of self-defense is that a defendant has the right to defend himself' and use such force as is necessary for the purpose, not only if he believes he is about to be killed, but if he believes he is in danger of receiving great personal injury, provided he has reasonable cause for so believing. Where under the evidence the jury might readily find that defendant was neither afraid of being killed nor believed it necessary to kill, but had .reasonable cause to believe and did believe himself in danger of being “beat up,” he had the right of self-defense and to use no greater force than was necessary to protect himself from that danger, and instructions which told the jury that it was necessary for him to believe he was in danger of being killed and must have had reasonable grounds for so believing took away that right.</p> <p>3. DEFENDANT AS WITNESS: Unwarranted Cross-Examination: Rebuke of State’s Attorney. The mere sustaining of objections to a cross-examination of defendant concerning matters entirely outside the scope of the examination in chief may not be a sufficient protection of defendant’s rights. Persistent and violent cross-examination of the defendant, especially the injection of inquiries concerning his moral turpitude disconnected from the issues, which was the course pursued in this case, require a severe rebuke of the prosecuting attorney.</p>

<p>1. INDICTMENT: Clerical Error. The omission of the letter “t” in the word “premeditatedly” and making it appear as “premediatedly," in an indictment charging murder in the second degree and other- . wise in proper form, was a clerical error, and did not in any manner tend to the prejudice of the substantial rights of the defendant upon the merits.</p> <p>2. HARMLESS ERROR: In Instruction for Murder in First Degree. If defendant was convicted of murder in the second degree, an . error, if any, in the given instruction on murder in the first degree, was harmless.</p>

<p>1. OBJECTION: No Reason. Where the only objection to testimony when it is offered is that it is incompetent, and where on motion to strike it out the only objection is that it is incompetent, immaterial and irrelevant, any error committed in admitting the testimony or overruling the motion cannot be determined on appeal.</p> <p>2. INSTRUCTION: Error in Giving: When Reviewable: Specific Assignment. Although the instruction given was in the identical language of the instruction condemned in State v. Mnkelstein, 269 Mo. 612, and proper exceptions were saved when it was given, yet if the only reference in the motion for a new trial which can by any fair construction be held to refer to it is: “Because the court gave the jury illegal, improper and erroneous instructions over defendant’s objections,” it cannot be held on appeal that error was committed in giving it. The assignment is‘not su iciently specific. Whatever may be the rule in -.civil cases, the statute (Sec. 5285, R. S. 1909) requires that the motion for a new trial in a criminal case “must set forth the grounds or causes therefor,” and a liberal construction of those words means that counsel owes it to the appellate court and to the trial court to point out by number, or by technical designation, or by intelligent description, what particular instruction or instructions are wrong, or upon what point or phase of the trial, or of the case, or of tho evidence, the court failed to instruct,</p> <p>3. -: Joint Defendants: Reference to One Who Did Not Testify. Where two defendants are jointly indicted and of their own volition jointly tried, and one of them testifies and the other does not, an instruction on credibility which is not error as to the defendant who did testify is not error as to -tho other and cannot be held to be forbidden comment as to him.</p> <p>4. CHALLENGED JUROR: Called to Sit in Case. Whore there is substantial evidence to support the finding of the trial court that a certain juror who sat in the case was not peremptorily challenged, and nothing appears to indicate an abuse of whatever discretion was vested in the trial court, the appellate court cannot decide the disputed question of fact, but must abide by tho decision of the trial court.</p>

<p>1. ROBBERY: Information: Extorting Money by Threat of Exposure, Particular Description of Offense Involved in Threat. It is not necessary that the information describe with particularity the offense involved in the defendant’s threat by means of • which the crime of robbery or blackmail was consummated, nor is it necessary, in order to make the crime of robbery complete, to prove that the threat was couched in language that completely described the crime threatened to be exposed. An information charging robbery consummated by threats of exposure, in so far as a description of the threatened accusation is material, sufficiently apprises the defendant of what he has to meet when it names the crime which he may identify with his alleged .threat. Sodomy ' is made a felony by statute (Laws 1911, p. 198), and an information charging that defendant “did verbally accuse and threaten one Peter Ibsen . of having committed the crime and offense of sodomy upon and with the said Edward C. Butler, with the felonious intent then and there and thereby to extort from the said Peter Ibsen certain sums of money and notes,” etc., sufficiently describes the offense of sodomy. [Distinguishing State v. Sekrit, 130 Mo. 401.]</p> <p>2. -; Blackmail: Threat to Accuse of a Crime. The words “accuse or threaten to accuse” used in the statute, in a prosecution for robbery and blackmail effected by accusing and threatening to accuse the victim of a crime, do not mean solely to threaten to lodge a formal complaint in court or to accuse by such means. Even if they meant that, the evidence in this case was sufficient to make out a case against defendant. ' But the threat is within the meaning of the statute if it includes exposure and publicity and imputes a crime as a means of inducing the threatened person to pay money to the accuser.</p> <p>3. -; Variance: Purchase of Paper Used as Means of Blackmail. Testimony by the victim that he .gave notes to the defendant for the purpose of getting back from him a damaging paper he had signed at the time the threats of exposure were made, does not constitute a variance from the charge that the victim gave the notes on account of the threat to accuse him of a crime, where the paper was held by defendant as a part of his scheme to extort by threats money and notes from his victim.</p> <p>4. -: Evidence of Similar Crimes: Intent. Evidence showing crimes, or attempts to commit crimes, of a character like .the one charged, is admissible, as tending to show the intent with which the crime charged was committed or attempted, In a prosecution for robbery and blackmail effected by threats to accuse the victim of a crime and to expose him. Where the charge was that defendant, by accusing and threatening to accuse Ibsen of a crime, obtained money and notes from him, it was not error for the State to introduce a witness named Boehlinger to testify that somewhere near the same time defendant attempted to extort money from him by the same means.</p>

<p>1. NEGLIGENCE: Passenger Elevator: Failure to Stop: Evidence of Defective Construction: Instruction. The failure of the elevator to stop at the proper place and the consequent injury of the passenger are evidence of negligence, and it is so strong that it raises a presumption of such negligence on the part of the elevator owner; and hence an instruction for defendant in an action by the injured passenger which tells the jury that there is no evidence that the elevator or its machinery “was defectively or improperly constructed,” is error.</p> <p>■ 2. -:-:-:-: Presumption and Burden. When the , evidence establishes the fact that plaintiff was a passenger on a passenger elevator, that it failed to stop at the proper place and that because of such failure plaintiff was injured, the law then presumes the negligence to consist of some defect in the construction of the elevator or its machinery or in the manner of its operation, and that presumption places on defendant the burden of proving that there was no negligence either in its construction or the operation, and an instruction which relieves defendant of that burden is error.</p> <p>3. -: Damages: Mental Suffering Unconnected With Physical Injury. An instruction telling the jury that a passenger “cannot Recover for any fright, terror, alarm, anxiety or distress of mind ■caused by or resulting from the descent of defendant’s passenger elevator if these were unaccompanied by some physical injury” is correct, unless the mental suffering was engendered by circumstances of malice, insult or inhumanity.</p> <p>4. -: Passenger Elevator: Standard- of Care. The standard of ; care required of a common carrier of passengers is the utmost care and skill- which prudent men would use and exercise in a like business and under similar circumstances. Consequently an instruction for plaintiff which required only'' “that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances” was erroneous, as was one for defendant which said that “defendant in operating and maintaining said elevator was only required to use that degree of care which a prudent common carrier would exercise under llKe circumstances.”</p>

<p>.1. LOCAL OPTION ELECTION: Valid on Face: Subsequent Election Within Four Years. The record of the county court showing on its face a valid local option election held in 1912, at which the Local Option Law was not adopted, is a complete bar to á prosecution for a violation of the Local Option Law adopted in 1913; for, if the record on its face shows a valid election held in 1912, the county court had no authority to call another election within four years, and will not be presumed, in face of such a record, to have acted within its jurisdiction in doing so.</p> <p>2. -: -. -: Jurisdiction. No election can be held unless provided for by law, and a local option election held within four years of another valid election is absolutely void and has no greater force than no election at all; and where the record of the county court discloses a judgment which on its face establishes a valid local option election held in 1912, it discloses a. lack of jurisdiction in the county court to call another election held in 1913.</p> <p>Held, by WOODSON, J., dissenting, that as the Constitution declares that “in each county there shall be a county court, which shall be a court of record, and shall have jurisdiction to transact all county and such other business as may be prescribed by law” and the Legislature has conferred upon said court original, general and exclusive jurisdiction over local option elections in the county, its ■ judgments in such election proceedings are entitled to the same weight and verity as are those of a circuit court, and cannot be attacked and impeached in a collateral proceeding; and the election held in 1913 cannot be held invalid on the sole ground that the county court record shows on its face that a valid election was held in 1912, for where jurisdiction depends upon the existence or non-existence of a fact, the law presumes, from tbe mere fact that the court assumed jurisdiction to order an election in 1913, that the court found the non-existence of the fact necessary to confer jurisdiction in 1912, and further presumes from that fact that the election in 1912 haa been set aside or nullified.</p> <p>3. -: Invalidity Established by Contest. If there was' a valid local option election held in 1912, the county court had no jurisdiction to call another election in 1913, and its order calling it, and the election itself held in pursuance thereto, were void, and it is not necessary to resort to a contest proceeding to have it declared void, hut the point of its invalidity may he raised in a prosecution for a violation of the Local Option Law alleged to have been adopted in 1913.</p>

<p>1. PUBLIC ROAD: Dedication by Estoppel. A common law dedication of land for use as a public road is one that operates by way of estoppel in pais, instead of by dedication by grant. It is a dedication that arises, by operation of law, from the acts of the owner. It need not be evidenced by writing, or by any form of words. If the owner’s acts are such as indicate an unequivocal intention to appropriate the land to public use, then, upon acceptance by the public, the dedication becomes complete.</p> <p>.2. -: -: Pacts Which Establish Public Road. Where the road, which was not established by the county court, was, when opened and fenced in 1900, intended by the owners of the land to be a public highway; was afterwards worked by. citizens and road overseers on the theory that it was a public road; was used by the public and considered a public highway down to 1911, it was a public road, and the dedicator cannot lawfully interfere with its use by the public, or recover the ground by suit.</p> <p>3. -: -: Consent of Other Dedicators. Where a road entirely through a section was opened for public use in pursuance to an agreement between plaintiff, who owned the north half, and the owner of the south half, the plaintiff cannot interfere with the use by the public of the part bordering his land, without the consent of the owner of the said south half or his suc•cessors in title.</p>

<p>HEIRS: Children of Deceased Adopted Child. Under the Statute of Descents (Sec. 332, R. S. 1909) declaring that the estate of a decedent shall go, “first, to his children, or their descendants,” an adopted child who dies prior to the death of the adopting parent stands in the same relation of heirship to the estate possessed by the adopting parent at the time of his death that a natural and lawfully born child would occupy under similar circumstances; and the children of such adopted child, who died before her adopting parents, take the same estate which their mother would have taken had she survived her adopting parents.</p>

<p>1. PUBLIC SERVICE COMMISSION: Order to Construct Passenger Station: No Substantial Evidence. If tbe order of tbe Public Service Commission is unsupported by any substantial evidence, it is unreasonable and must be nullified. Where the evidence before the commission does not tend to prove any defect or inadequacy in the present passenger depot which cannot be corrected by repairs, improvement or enlargement, an order of the commission requiring the railroad company to erect a new depot in a -new place is unreasonable.</p> <p>2. -: -: Offer to Construct. Plans submitted as those of the building the railroad company would be willing to construct at some time in the future when it deemed * itself in a financial condition to erect a new passenger depot, do not constitute an offer to erect a new building, although they were deemed acceptable by the city.</p> <p>3. -: Deference to Commission’s Binding: Burden of Proving Unlawfulness.</p> <p>Held, by BLAIR, J., that sections 123 and 124 of the Public Service Act, Laws 1913, p. 647, mean that a determination of a fact by the Public Service. Commission cannot be overthrown by a court until he who assails it discharges the burden of proving its unlawfulness or unreasonableness by clear and satisfactory evidence; that the court cannot put itself in place of the commission, try the matter anew as an administrative body, and substitute its findings for those of the commission: and that the direction to circuit courts, found in section 111, to review the orders and decisions of the commission “as suits in equity” is necessarily qualified by the specific provisions of said sections 123 and 124 which prescribe the weight to be given to such orders and decisions.</p> <p>Held, by BOND, P. J., that the findings of the commission are neither conclusive upon the court nor prima-faeie correct, but its orders and decisions are to “be tried and determined as suits in equity,” as is declared by section 111, and as was correctly held by Court in Banc in Railroad v. Pub. Serv. Comm., 266 Mo. 1. c. 340, and Lusk v. Atkinson, 268 Mo. 1. c. 117; and that sections 123 and 124 cannot be held to overthrow the specific and preclusive provision of section 111, which forms a special code applicable to the review of the commission’s orders.</p> <p>Held, by GRAVES, J., that the rulings of the commission, in these statutory certiorari proceedings, reach the court with - presumption of right action, and as prima-facie valid, just as does a judgment of a circuit court in a case appealed to this court, but this presumption and prima-facie case may be overcome by the evidence in the record, and sections 123 and 124 do not compel this court to consider the findings of the commission as otherwise than prima-facie lawful and reasonable. ■</p> <p>Held, by WOODSON, J., that when a case reaches the Supreme Court from the commission it shall be tried as a suit in equity, which means that the court will defer somewhat to the findings of the commission, but not abdicate its authority to make its own findings of fact.</p>

<p>1. CONSOLIDATED SCHOOL DISTRICT: Sufficient Notices and Plats. The notices and plats of the proposed consolidated school district required by the statute to be posted are designed to furnish a means by which the voters of the community can inform themselves of what lands and taxpayers will be included in the district if formed, who will be entitled to vote upon the proposition, the accessibility of the school to patrons and pupils, and the time and place of holding the election; and unless such information can be derived from the notices and plats they are insufficient, and the election would bé void.</p> <p>2. -: -: As Shown by Percentage of Voters. The fact that almost all the qualified voters of the proposed consolidated school district were present at the time and place designated in the notices and voted on the proposition, and that no complaint that any one was misled by the notices or plats is made, is some evidence that they were sufficient.</p> <p>3. -: -: Heavy Black Lines. Heavy black lines drawn upon the face of a complete map of the numbered townships, with arrows on the margins pointing to the .boundaries, should be held to indicate and constitute the outline or boundaries of the proposed consolidated district upon a plat captioned “Plat of Proposed Consolidated District No. 2 of Platte County,” although it contains no words stating that the boundaries are indicated by the heavy black line. They are at least a substantial compliance with the statute, which is all that is required.</p> <p>4. -: Existing Districts Abolished. By the formation and organization of a consolidated school district all existing common . school districts whose territory is embraced within its boundaries are abolished, and their directors cannot thereafter exerciso the functions of their offices.</p> <p>5. -: Forfeiture: Failure to Provide for Eight Months’ School. The corporate existence of a consolidated school district can be questioned only by the State in a direct proceeding instituted for that purpose; and it cannot be held in a quo warranto instituted by the Attorney-General to oust school directors of a common school district whose territory has been included in the consolidated district, that the legal existence of the consolidated district has been forfeited for its failure to provide for an eight months’ school.</p>

— Row. E. M. Bearing, Judge. (1) A married woman cannot convey her real estate without her husband joining in the deed, and the deed from Rosina Meier to Diedrich Meier her husband is null and void.

<p>1. TAX SUIT: Brought After Defendant’s Death.' If the defendant in a tax suit was dead at the time of attempted service of process, whether by publication or otherwise, proof of such fact renders the judgment void; and such proof can be made in a collateral proceeding, such as a suit to quiet title, wherein the defendant relies on a sheriff’s deed made in pursuance to a sale under said judgment.</p> <p>2. -: -: Void and Voidable Judgments. Jurisdiction of both the subject-matter and of the person is required in order to remove a judgment entered against a deceased defendant' from the category of void judgments to the category of voidable judgments.</p> <p>3. LACHES: Defense Only to Equitable Claim. Laches is peculiarly a defense to an equitable claim. If plaintiff stands on a legal title, as distinguished from an equitable claim, the doctrine of laches has no place in the case. The defense in such case is the Statute of Limitations.</p> <p>4. -: Estoppel in Pais: Paying Taxes. There is a difference between laches and estoppel in pais. Laches is not a defense to an action based on a legal title. Estoppel in pais may be, if the facts are sufficient to defeat the legal title because defendant and his grantors were caused to act to their injury by reason of the conduct of the plaintiff or his ancestor. Knowingly permitting a claimant, in good faith and under a belief of ownership, to make valuable improvements upon land, might amount to estoppel in pais, but the mere voluntary payment of taxes by such claimant will not estop the rightful owner.</p>

<p>1. CHILD: Adoption: Parol Contract With. Grandparents. Where a husband and wife, who had no children of their own, agreed with the grandparents of a little girl four years old, whose mother had died and whose father had turned her over to said grandparents and abandoned her, to take and rear the child as their own, that the grandparents were to have no further control oyer her and that she was to assume their name; and said agreement was fully carried out, and she was taken into their home, given their name, and treated as their own child, and continued to be considered and was known in the community as their own or adopted child until her marriage and the death of the husband, she was, if all these things had occurred in Missouri, his adopted child, and upon his death intestate entitled to inherit his property subject to the statutory interests of the widow.</p> <p>2. -:-:-: Kansas Statute. And where the parol agreement was made in Kansas and the adopting father afterwards moved to Missouri with his wife and child and. died here, and no property is sought by the suit to be reached in Kansas, the Kansas statute, providing for adoption by petition and order of the x.robate court, which was not complied with, does not, aftir the death of the adopting father, preclude the child from maintaining an equitable suit in Missouri to have enforced the parol contract, which has been specifically performed, and to have her status decreed to be that of an adopted child, with the inheritable rights of a natural-born child.</p> <p>3. PRACTICE: Suit in Equity: No Instructions: Effect of Finding for Defendant. , A court of equity alone has jurisdiction to enforce a parol agreement to adopt an infant child; and where the petition set out the , facts which entitled her to a decree that she is decedent’s adopted child and ashed the court to decree accordingly, and the case was tried throughout as an equity suit, the case will not on appeal be treated as an action at law.</p>

— Hon. W. K. Amich, Judge. (1) The court had no right to set the verdict aside on the ground that it was against the weight of the evidence. Sec. 2023, R. S. 1909; Vermillion v. Jarsons, 98 Mo. App. 72; McFarland v. Accident Assn., 124 Mo. 222; Nicol & Co. v. Hyre & Co., 58 Mo. App. 134; Troll v. Pro-. tected Home Circle, 161 Mo. App. 722.

Certiorari. (1) The relator was a domestic corporation engaged in writing insurance other than life, and under the Act of April 5, 1911, taxes are required to be assessed and taxed against it in its corporate name. Laws 1911, p. 417.

<p>1. REFERENCE: Findings: Review by Court. If by reason of the extended account involved the case is one in which the trial court could compel a reference, the trial court may review the evidence and findings of the referee and make its own findings of fact, notwithstanding the parties consented to the appointment of a referee.</p> <p>2. FINDINGS OF TRIAL COURT: Review on Appeal. Where the pleadings evidence an action at law rather than a suit in equity, the findings of fact by the trial court, if supported by substantial evidence,' are binding upon the appellate court, and the weight of the conflicting evidence will not be determined; and'that is the rule where the trial court has set aside the findings of the referee, and substituted findings of its own — the presumption of correct decision lying with the action - of the court, rather than with the action of the referee.</p> <p>Held,, by BOND, J., dissenting, that cases falling within the terms of the statute providing for compulsory reference are reviewable on appeal, like suits in equity.</p> <p>3. -: Equivalent to Special Verdict. Where by reason of an extended account involved the court could under the statute have compelled a reference in an action at law, the findings of the referee, if approved by the trial court, have on appeal the status of a special verdict, and cannot be reviewed if there is substantial evidence to support them. [BOND, J., dissenting.]</p> <p>4. FOREIGN CORPORATION: Doing Business in Missouri Without . License. A foreign corporation which agreed with a Missouri company to manufacture and deliver water pipe, free’ on board of cars at a designated point in this State, at a designated price per linear foot, to be placed in the flow line, not oy it, but by the purchaser, was hot doing business in the sense of the statute which forbids such a corporation to do business in this State without a license.</p> <p>5. PARTIES TO ACTION: Suit by City to Use of Contractor. A suit by a corporation which furnishes pipe to a private company to be used in the construction of a city water plant, should be brought in the name of the city to the use of such corporation, where the bond sued on provided that suit may be entered upon the bond by the city at the" instance of any materialman and shall be instituted to the use of such materialman.</p> <p>6. PURCHASE OF PIPE: Acceptance: Counterclaim. Where the contract between a foreign corporation to furnish water pipe to be used in a city water plant and the contractor, made the contract between the city and said contractor a part of said contract, and the contract with the citji provided that the pipe should stand every requirement and test of the city’s water commission and be fully in accordance with the contract between the city and said contractor and that the final pressure-test should be made after the pipes were placed in the flow line, it cannot be held that the pipe was inspected and accepted by the city at the factory in the foreign State, although the city had an inspector at the factory to watch the manufacture of the steel going into the pipes and the contract provided for such an inspection and also a test of strength. The pipe was not accepted by the city until accepted by the city water commissioner and the final pressure-test made after the pipes were in-place; and consequently the counter-claim of the contractor for a reduction from the purchase price on the ground that at the pressure-test some -of the pipes proved defective, was not foreclosed.</p> <p>7. -: Liquidated Damages: Penalty: Delay in Completing Contract. A provision in a contract for the purchase and delivery of water pipe providing for a deduction of $25 per day as liquidated damages for delay in completing the delivery within a deéignated time, may, under all the facts and "circumstances, be intended by the parties to provide a penalty to the amount of actual damages due to the delay, and not for liquidated damages in a definite amount; and if the contract itself contemplates delays over which the contractor was to have no control, the provision should be held to be a mere penalty, and not to intend liquidated damages.</p>

— Eon. George W. Barnett, Special Judge. The judgment should be reversed because the special judge presiding at the trial had no jurisdiction. (1) The regular judge during the same term had jurisdiction to set aside the order disqualifying himself. His ruling that after making that order he had no jurisdiction to set it aside or to entertain defendant’s motion in that behalf was contrary to both principle and precedent; and, hence, constituted reversible error.

— Hon. T. J. Seehom, Judge. (1) The Legislature vested tke Public Service Commission with complete authority and jurisdiction over the issuance by every railroad corporation of bonds to be secured by liens upon the property of such corporations situated in this State, whether such corporations be organized under the laws of this State or of some other State, Secs. 43, 54, 55, 57, 58 and 59, also subdivisions, 6, 8 and 9 of Section 2, Public Service Commission Act 1913; State…

— Eon. A. W. Walker, Judge. (1) The order of the commission and the confirmation thereof by the circuit court of Randolph County are void, in that they would take, damage and destroy the property of appellants, for a public use without just compensation ; without any compensation, and without assessment of damages and the payment of the same, all in violation of section 21, article 2, Constitution of Missouri.

Louis City Circuit Court . — Hon. Leo 8. Bassieur, Judge. (1) Where a person is employed by a company which uses á secret process in the manufacture of its product, there is an implied contract on the part of the employee not to divulge the secret or use it for his own purposes, after he leaves the company. Pape v. Lathrop, 18 Ind.

— Hon. David H. Harris, Judge. (1) The circuit court erred in holding that section 1 of an act entitled “Salaries and Fees: Salaries of circuit clerks in certain counties,” approved March 22, 1915, p. 378, was valid and not in conflict with section 8 of article 14 of the Constitution of Missouri. Folk v. St. Louis, 250 Mo. 116; State v. Bland, 91 Kan. 160; State v. Raine, 49 Ohio St. 580; People v. McCord, 143 111. App. 28; Williams v. Garey, 19 Cal.

' Appeal from St. Louis City Circuit Court.— Mon. Eugene McQuillin, Judge. (1) The bond sued on was one of indemnity, and as there was no evidence of the payment of any money by respondents or that they were damaged, they could at most recover only nominal damages. Walker v. Deaver, 79 Mo. 664; Hunt v. Marsh, 80 Mo. 396; Kellog v. Malin, 62 Mo. 433; Burén v. Hubbel, 54 Mr. App. 617; Bartlet v. Tinsly, 175 Mo. 329.

Louis City Circuit Court. — Hon. Éhodes E. Cave, Judge. The court erred in giving the instruction in the nature of a demurrer to appellant’s (plaintiff’s) evidence on his first cause of action, to-wit, that in false imprisonment.

Louis City Circuit Court. — Hon. Kent K. Koerner, Judge. (1) Sec. 314, R. S. 1909, does not apply to future estates created by will, as is tbe case bere. R. S. 1909, secs. 309, 316, 8057. (2)Uncertain future estates can be assessed only as they come into possession. Vanderbilt v. Eidman, 196 U. S. 480; In re Curtis, 142.

Louis City Circuit Court. — Hon. George C. Hitchcock, Judge. (1) Directors of a corporation sustain a fiduciary relation and are trustees, as well as agents, for the stockholders.

<p>1. WITHDRAWAL OF EVIDENCE: Error Not Raised by Motion for New Trial. Any error in permitting respondent to withdraw his answer to a question after defendant had objected to the same is not raised by an assignment in the motion for a new trial that the court admitted incompetent testimony offered by plaintiff. A complaint of the admission of evidence cannot be said to raise a question as to the effect of evidence actually excluded.</p> <p>2. ERRONEOUS EVIDENCE: Plaintiff’s Family: Prompt Withdrawal. A prompt withdrawal of evidence erroneously admitted and an oral direction by the court to the jury not to consider it, cures any error in getting it before the jury unless exceptional circumstances attend its admission. And where plaintiff, suing for personal injuries, was asked what family he had, to which question objection was made, and the court remarked that the statute was both penal and compensatory, and plaintiff answered that he had a wife and one child, whereupon defendant made a full and specific objection, and plaintiff’s counsel asked to withdraw the answer, and the court stated to the jury that the answer was withdrawn and directed them not to consider the testimony and the written instructions given on the measure of damages specifically confined the elements of damage to the injuries to plaintiffs person and further told the jury they must obey the instructions as the law of the case, there was no error in permitting the withdrawn' erroneous testimony to come before the jury, for there were no exceptional circumstances taking it out of the rule that, ordinarily, the withdrawal of erroneously admitted evidence leaves no ground for reversal on account of its admission.</p> <p>3. NEGLIGENCE: Sudden Stop of Train: Uncoupling Air-Hose: Presumption Upon Presumption. A train was backing in upon a sidetrack preparatory to being cut in two. A brakeman was ordered to get upon the caboose in order that he might observe and signal the train’s approach to cars already on the track. As the train backed in on the siding he gave an “easy” signal, and the speed was reduced to five or six miles an hour. In a few moments the conductor, who was on the ground near the middle of the train, signaled for a stop, and his order was obeyed so suddenly that the brakeman was thrown violently from the center of the top of the caboose over its rear end and fell upon the track. His petition charged that the stop was made “carelessly, negligently and suddenly, with unnecessary violence and in disregard of- the usual custom and practice.” The engineer testified he applied the air-brakes and the conductor that he uncoupled the air-hose. Held,. (1) that there was evidence that an employee of defendant was in a position to uncouple the air-hose, and testimony by plaintiff that ■ uncoupling the air-hose sets all the brakes back of that point and “stops the train right there” did not amount to basing one presumption upon another, and (2) the allegations were sufficiently broad to let in the evidence.</p> <p>4. -: Instruction: Facts Not Shown in Evidence. An instruction on the measure of damages telling the jury that “you should take into consideration, in connection with all the circumstances and facts in the evidence, the bodily pain,” etc., does not permit the jury to consider facts not shown in evidence.</p> <p>5 -: -: Authority to Find Amount Sued for. An instruction telling the jury to reasonably compensate plaintiff for the injuries received, “not to exceed $25,000,” which was the amount asked for by the petition, is not, because it contains the' words “not to exceed $25,000,” reversible error.</p> <p>6. -: -: Common Error, An instruction, in every material respect in which it is not similar to an instruction asked by defendant is supplemented and aided by such instruction, is not misleading, and need not be reviewed.</p> <p>7. -: Excessive Verdict: $10,000. A brakeman was thrown from the center of the top of a caboose over its rear end by a sudden stop of the train. For two months he was treated at home by the railroad’s physician, then was sent to a hospital for twelve days, and then was ander the same treatment at home again for a week. Since then he has walked on crutches. The injury is to the knee. There was testimony that there is a bony growth in the joint which prevents the knee from being straightened, that he cannot flex his knee and never will be able to do so, that an operation would give no relief, and that he will never be free from pain. Held, that a judgment for $10,000 is not excessive.</p>

— Hon. F. P. Divelbiss, Judge. • (1) The city, not having been organized at the time the plat was filed, and there being nothing indicative on the plat of the purpose for which it was left, it was error for the court to treat such land as having been dedicated. The persons reserving the land conic] do with that as they saw fit.

Certiorari. (1) This court will by certiorari review and quash the judgment and opinion of the Courts of Appeál in any cause, wherein it appears that said court in reaching and rendering’ such judgment and opinion, failed to follow the last previous decision of this court upon any question of law or equity arising therein.

<p>1. ABSTRACT: Showing of Motion for New Trial: Appellate Review. If “the short form of transcript” filed in the appellate court sets forth the filing and disposition of the motion for a new trial, the review will not be confined to the record proper, although the printed abstract of the record proper does not contain any recital showing the filing of the motion or the disposition made of it.</p> <p>2. DRAINAGE DISTRICTS: Canals Across Public Highways: Prior Condemnation and Assessment of Damages. A drainage district and those acting for it cannot be enjoined iron cutting channels or ditches across public highways until by condemnation proceedings the damages have been ascertained and paid, if their construction is authorized by the provisions of the drainage statutes.</p> <p>3. PUBLIC HIGHWAYS: Appropriation to Different Use: Prior Condemnation. The public highways belong to the State and are already devoted to a public use, and the Legislature may authorize their appropriation to a different public use, as it has done .through the drainage statutes. The State is not concerned in the ascertainment of the value of the public easement in them except to determine whether the proposed added use is one in the interest of the public, and of that the Legislature is the judge; and a proceeding by condemnatioh to ascertain the value of so much of the easement as the Legislature has by statute authorized to be appropriated for a drainage canal or ditch, being another or different public use, would be a useless formality.</p> <p>4. -: Bridges Over Drainage Canal. The statutes require the county to build the bridges made necessary by the construction of drainage canals or ditches across or through the public highways by a drainage district organized under the Circuit Court Act prior to 1913 and not since reorganized under the Act of 1913.</p>

<p>1. GENERAL ELECTIONS: Printing Wrong Name On Ballot: Vote Void. Only the names of party nominees can he printed on the ballots used at a general election. If the name of some one who is not a party nominee is printed on the ballots, they cannot be counted for such person. The only method hy which the voter can, on a party ticket, vote for any person other than the regularly nominated nominee of such party, is by erasing the printed name' of such nominee and writing in the vacant space under his name the name of the person of his choice.</p> <p>2. -:-: Writing in Name of Nominee Omitted. There is no provision in the law permitting the voter to write in the name of the party nominee which has been inadvertently omitted or misprinted. If the name of a person who is not the party nominee is printed on the ballot, the voter cannot erase that name and write in the vacant space under it the name of the nominee and then have his vote for that nominee counted. By statute the blank space is provided for the name of the voter’s choice when that choice is some other person than the nominee.</p> <p>3. -: Voter Providing His Own Ballot. The voter cannot provide his own ballot at a general election. He can use only the ballot prepared by the county clerk and received from the judges of election.</p> <p>4. Ballot Cast as Printed: Vote for Nominee. A i arty ballot, voted and cast as printed, must be counted as a vote for the party nominee for the office, even though his name is not printed upon it, hut the name of some other person is. [BOND, WALKER and WOODSON, JJ., dissenting.]</p> <p>5. -: Counting Vote for Nominee Whose Name Was Not Printed on Ballot. Bradley was the Democratic nominee. There were 1311 ballots cast on which the name of Johnson, who was not the nominee of any party, was printed. These ballots were headed “Democratic Party,” were prepared by the county clerk, and handed by the judges of election to the voters as they came to vote, and the names of the Democratic nominees for all other officers were printed thereon. The ballots were returned by the voters without erasing the printed name of Johnson and without writing in the name of Bradley or of any other person, and without any attempt to change them. The law required Bradley’s name to be printed on the ballots and prohibited the voters from writing his name thereon and from providing other ballots for themselves. Held, that the ballots must be counted for Bradley. This conclusion is enforced by the statutes themselves.</p> <p>Held, by BOND, J., dissenting, with whom WALKER, J., concurs, that the votes actually cast for Johnson cannot be counted for Bradley by the courts after the election is over.</p> <p>Held by WOODSON, X, dissenting, that conceding that all the voters who voted for Johnson thought they were voting for their party nominee, it does not follow that they thought they were voting for Bradley.</p> <p>6. -: Disfranchising Voters: Error of Official: Legal Fraud: Oral Evidence of Voter’s Intention. The courts should not so construe the statutes as to permit the disfranchisement of large bodies of voters because of an error of a single officer in any case in which they are fairly susceptible of a construction that will prevent such a result. The statutes are fairly susceptible of the construction that a party ballot, voted and cast as printed, must be held conclusively to show the voter’s intention to vote for the nominees of that party and that it must be counted, with respect to each office, for the party nominee therefor, regardless of what name appears in the particular space devoted to that office. And to reach that conclusion it is not necessary to resort to the oral testimony of what the voter’s intention was.</p> <p>Held, by GRAVES, C. J., concurring, with whom PARIS, J., concurs, that it is clear that the voters did not intend to vote for any person other than the party nominee, because they wrote no names in the blank spaces on their ballots; but the court is not in such case precluded from going to the voter’s evidence as to his intention, and the decisions holding that the voter cannot by oral evidence impeach his ballot do not apply to such a case. Held, also, that the facts pleaded make out a case of legal fraud, in that they show that more than half the voters of the county have been disfranchised by the act of the county clerk in erroneously causing the name of a man to be printed on the party tickets as the nominee of the party for an office who was not the party nominee, and thereby legal assurance and a legal presumption were conveyed to the voters contrary to the fact and to uproot that fraud oral evidence is admissible, whether fraud is specificálly charged or not.</p> <p>Held, by BOND, J., and WOODSON, J., dissenting, that oral evidence taken after the election is over cannot be used to overthrow the voter’s intention as manifested by his ballot.</p> <p>7, -: Vote Manifested by Ballot: Constitutional Requirement. The provision of the Constitution that all elections shall be by ballot does not preclude the counting of votes for the party nominee although on their face the ballots show they were cast for a man whose name was unlawfully printed on them. That provision is intended principally to secure secrecy, and any manner of voting that shows the voter’s choice and preserves secrecy is voting by ballot; and, besides, the votes were by ballot.</p>

<p>1. NEGLIGENCE: Duty of Engineer to Trackmen. In determining the relative duties of engineers of switch trains and track workers to each other the Missouri decisions hold: (1) that trackmen are under a duty to look out for their own safety; (2) that an engineer is not required to keep a lookout for trackmen in the ordinary operation of trains; (3) that the engineer has the right to assume that trackmen, although in a place of danger, will, in the exercise of their duty to protect themselves, remove themselves from such place of danger before the train reaches them; and (4) that it is only after the engineer discovers that the trackman is oblivious to his danger and is not going to retire to a safe place that the engineer is obliged to take steps to protect such trackman.</p> <p>2. -:-: Eight to Clear Track: Proximate Cause. Plaintiff and his crew were working on what was known as the Middle Yard Lead in switch yards. Having replaced a broken rail and raised the joints with jack screws, they were engaged in filling up the low places with cinders. While the track was thus raised it was not safe to run trains or engines over them. When a certain switch crew, with their engine and cars, attempted to pass over the raised track, plaintff warned and signaled them, and they waited until tne jacks were removed and then proceeded. The same thing occurred a second time. When the switch crew started to pass over the track a third time, the plaintiff says that the engineer was looking towards the back end of his train, and not towards the front end, and that, in attempting to signal the engineer, he left his track, and as he went to one side thereof he was struck by a car coming from the opposite direction on what was called the East Yard Lead, whose tracks were eight feet from the Middle Yard Lead. Held, that the engineer was not entitled to a clear track on the Middle Yard Lead,, but his negligent failure to be on the lookout for plaintiffs signal cannot be held to have been the proximate cause of plaintiff’s injuries.</p> <p>3. -: -: Proximate Cause: Anticipating Injury to Trackman. Where the trackman, in an attempt to. signal an engineer whose engine was about to pass over the track and who was not entitled to a clear track, stepped from a place of danger on the track to signal the engineer, and in doing so got so close to another track that he was struck by a car rightfully moving thereon, the negligent failure of the engineer to keep a proper lookout for the track-man’s safety was not the proximate cause of his injury, for it was the duty of the trackman to be on the lookout for moving cars on the adjoining track, and the injury to the trackman, in the manner in which it occurred, was not one reasonably to be anticipated by the engineer; and the Court of Appeals, in holding that the engineer’s negligence was the proximate cause of the trackman’s injury, contravened the previous rulings of the Supreme Court in American Brewing Association v. Talbot, 141 Mo. 1. c. 683 et seq., and similar cases.</p> <p>4. CERTIORARI: Conflict in Principles of Law. It is sufficient to uphold a writ of certiorari to a Court of Appeals on the ground of failure to follow the last previous rulings of the Supreme Court, that the holding of said court, on a given state of facts, contravened the well established rulings in law or equity of the Supreme Court.</p>

<p>1. CONFLICT OF DECISIONS: Similar Facts: Certiorari. If the decision of the Court of Appeals is opposed to the conclusion reached upon similar facts in the previous cases of the Supreme Court, such decision should be quashed.</p> <p>2. -: -: Foreign Corporation: Doing Business Without License. Since the facts of the case of Mergenthaler Linotype Company v. Hays, 181 S. W. 1183, are the same in all material substance as those of United Shoe Machinery Co. v. Ramlose, 210 Mo. 631, the decision of the Court of Appeals holding that said Lino-type Company was not doing business in this State within the meaning of the statute (Secs. 3037, 3039 and 3040, R. S. 1909) must be quashed.</p> <p>3. -: -: -: -: Office in State. The fact that in the Ramlose case the United .Shoe Machinery Company maintained an office in this State, while in the Mergenthaler case the Linotype Company had no such office, does not distinguish the cases, for the reason that the statute itself requires an office to be maintained, and no difference in favor of the Linotype Company can -be bottomed on its failure to comply with the statute.</p> <p>4. -: -: -: -: Warehouse. In the Ramlose case only repair parts and pieces for use upon the leased machines were kept in the company’s Missouri warehouse, but its business was not that of selling repairs, but of leasing machines. In the Mergenthaler ease $600,000 worth of linotype machines were moved bodily into this State and leased out at an annual rental far in excess of what their selling price would seem to warrant. Held, that the fact that the Linotype Company had no warehouse did not distinguish the cases, but if there is any difference the facts of the Mergenthaler case are stronger than those of the Ramlose case.</p> <p>5. FOREIGN CORPORATION: Leasing Machines and Collecting Rents: No License. No foreign corporation can through a period of ten years engage in this State in the business of renting out its property at an annual rental reserved, and of collecting rent yearly throughout rental periods of six years, without taking out a license to do business in this State. Such dealing is not buying and selling; it is not traffic; it is dealing with the property after the interstate commerce character of the shipment has ceased.</p> <p>6. -: -Conflict in Decisions: Royalty or Lump Sum. The fact that in the Ramlose case the foreign ^corporation collected the rental on its leased machines in the shape of one cent royalty on each pair of shoes manufactured does not distinguish it from the Mergenthaler case wherein the Linotype Company collected $632.50 per annum as rental for each machine leased. Both are in effect rent charges. .</p> <p>7. -:-:-: Agents: Interstate Commerce. The fact that the foreign corporation had resident agents in this State did not make its business of moving a large number of machines into this State, renting them for a long number of years at an annual rental, collecting the rents, and taking back the machines at the end of the rent period, interstate commerce. Agents are necessary instrumentalities of extensive intrastate or interstate commerce, and in no wise distinguishes the one from the other,.</p> <p>8. --■ — : Burden of Proof. The burden of proof is on the defendant to show that the plaintiff, a foreign corporation, is engaged in doing business in this State without a license.</p> <p>9. -: Proof of Contract: Admitted by Answer. ’A holding of the Court of Appeals that the defendant is not in a position to raise the point that he did not execute the contract sued on,- because his answer clearly admits the contract, is not in conflict with prior rulings of the Supreme Court.</p>

<p>1. PUBLIC UTILITIES FRANCHISE: Violation of Contract by'City: Injunction. Á city vested with power to do so and having entered into a contract with a light company whereby it agrees not to erect or acquire a competing plant, may be enjoined from violating such contract.</p> <p>2. -:-: Agreement Must Be Express and Not Simply Implied. But the agreement by the city not to erect or acquire a competing plant must be clearly expressed in the franchise contract, and cannot be implied from a reservation therein of a right to purchase the public utility company’s plant, or by the fact that the company’s franchise would be useless unless the city is excluded from competition with the company. Such contracts are -construed most strongly against the donee of the franchise and in favor of- the public.</p> <p>3. -: -: -: Agreement to Purchase. A reservation in the franchise contract to the city of a right to purchase the electric light plant does not raise an obligation to purchase in case the city is to acquire a plant during the franchise term, or prevent it from building a plant of its own.</p> <p>4. -: Construction: Implied by Judgment. A judgment dismissing an injunction brought by the light plant to restrain the city from building a plant of its own on the ground that the city had agreed not to do so during the life of plaintiff’s franchise, is a construction of the franchise, and the trial court is not called upon to construe it further.</p>

Louis City Circuit Court. — Eon. Wilson A. Taylor, Judge. (1) The court erred in giving the instruction of non-suit at the close of the plaintiff’s case in the nature of a demurrer to the evidence, (a) In passing on a peremptory instruction in the nature of a demurrer to plaintiff’s evidence, the court must consider the evidence introduced by plaintiff as true, and make every finding and deduction in his favor which the jury would have been warranted in making.

St. Louis City Circuit Court. — Hon. J. Hugo Grimm, Judge. (1) See. 5231, R. S. 1909, fourth subdivision, is as follows: ‘ ‘Whether requested or not, -the court must instruct the jury in writing upon all questions of law arising in the case which are necessary for their .information in giving their verdict.” Section 5244 is: “The court shall not on the trial of the issue in any criminal case sum up or comment upon the evidence or charge the jury as to matter of fact — but…

<p>1. DAMAGE TO REALTY: Necessary Plaintiffs: Trustee and Mortgagee. In a suit by the holder of the equity of redemption for damage to his real estate caused by an excavation on abutting property, the fact that the trustee in an existing deed of trust and the holder of the mortgage notes are not joined as plaintiffs, is no de- ' fense to the action; and a motion by defendant who knows of the existence of the deed of trust, to make them parties, made after all the evidence is in, comes too late.</p> <p>2. REMOVAL TO FEDERAL COURT: Demurrer as to Resident Defendant. Where the trial court without the consent of plaintiff sustains a demurrer to the evidence on behalf of the only resident defendant, the remaining non-resident defendant is not entitled to have the cause removed to the Federal court.</p> <p>3. EXCAVATION ON OWN GROUND: Damage to Neighboring Property: Ordinary Care. In the absence of an agreement or promise to do so, the defendant contractor, in making a deep excavation on a railroad company’s right of way and in constructing a retaining wall along or near tke line of plaintiff’s property, is under no legal duty to shore up or support the ground upon which plaintiff’s building stands, but is liable only for such injury to the building as results from a lack of ordinary care in doing the work.</p> <p>4. -: Notice. Where the work of excavation began in June and the damage did not occur until September and plaintiff in the meantime had full knowledge of the scope and progress of the work, with ample opportunity to protect his own adjoining property, no notice to him of the intended excavation was necessary.</p> <p>5. -: Scope of Foreman’s Agency: Implied: Promise to Protect Building. A promise made by defendant’s foreman that defendant would shore up the embankment along the line of the excavation and protect the building on plaintiff’s property and save him from damage by the slipping, sinking or falling of the building’s wall, is not binding on defendant, because clearly beyond the limits of his agency. Nor is such authority to be implied from the fact that, after the building cracked and was in danger of falling and the men at work on the excavation were threatening to leave for fear the house would fall on them, the foreman employed an outside workman to shore up the building and defendant paid his bill, for that was done to protect defendant’s interests, ^.ot plaintiff’s.</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (l)The estate of Louis Bernero, Sr., deceased, having been finally administered, final settlement thereof having been had and approved, and the executrix and executor thereof having been discharged in December, 1908, the probate court in January, 1912, had no jurisdiction over the estate of Louis Bernero, Sr., deceased, and therefore had no authority to appoint an appraiser and appraise and assess collateral…

— Ron. C. R. Skinket, J udge. (1) A will is a muniment of title, only if duly probated; and the probate of a will is a judicial act, which can be shown only by the record of the court. Creasy v. Alverson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Snuffer v. Howerton, 124 Mo. 637; Stowe v. Stowe, 140 Mo. 594; Cohen v. Herbert, 205 Mo. 537; Farris v. Bur-chard, 242 Mo. 1.

— Hon. W. C. Ellison, Special Judge. (1) The judgment rendered in the former suit between the same parties was a complete bar and estoppel to a subsequent litigation of the same question in this case; and the court erred in refusing to apply the doctrines of res adjudicata and estoppel by judgment. Turnverein v. Hagerman, 232 Mo. 693; Driving Park v. Kansas City, 174 Mo. 425; LaRue v. Kempf, 186 Mo.

— Hon. C. A. Denton, Judge. (1) There is no evidence tending to show that there was any excess in the safety fund, and it was error to permit the jury to find that there was an excess in such fund. The reports to the Insurance Department should have been excluded. Janssen v. Stone, 60 Mo. App. 402; Schwartz v. Frank, 183 Mo. 447.

<p>1. NOTICE: Posting: No Public Place. Where there is no store, no blacksmith shop, no school house, no public road in the proposed drainage district, the posting of the notices upon a maple tree, a fence post on the line of the interested parties and at other places along a private road where they will most likely be seen, is a compliance with the statute which requires the notices to be posted in at least five of “the most public places” in said district.</p> <p>2. DRAINAGE DISTRICT: Correcting Commissioners’ Report in Circuit Court. Where the organization of a drainage district has been begun in the county court, and has been transferred to the circuit court by the appeal of the remonstrators, the commissioners’ report may be amended and corrected' in matters relating to the description of each tract of land mentioned therein, and in any other respect which does not violate the substantial rights of the parties. Sec. 4091, R. S. 1909, gives the circuit court the same authority over such amendments as Sec. 5560, Laws 1913, p. 267, gives the county court.</p>

<p>1. TRIAL THEORY: Illegal Vote at Election: Evidence. In a proceeding to invalidate certain school bonds brought by a taxpayer against the district, where all parties, including the court, tried the case on the theory that inquiry could not be made into the question of who were legal voters at the election at which the proposition to issue bonds was determined, the plaintiff on appeal cannot complain of the exclusion of evidence offered for the purpose of showing that a certain person who voted at said olec-i tion was not a legal voter.</p> <p>2. ILLEGAL VOTE: Exclusion After Having Been Placed in Ballot Box. The judges of election after- having received and placed in the ballot box the ballot of an illegal voter and after having-counted it against the proposition voted on, have a right to throw it out and deduct it from the total vote on the proposition, even if they thereby change the previously announced result.</p> <p>3. ISSUE OP BONDS: Assent of Two-Thirds of Voters: Meaning. The provision of section 12 of article 10 of the Constitution, pertaining to the issuing of bonds by a school district and requiring “the assent of two-thirds of the voters thereof voting at an election to be held for that purpose,” means two-thirds of those voting on the proposition, and not two-thirds of the ballots cast at the annual school election. So that where 214 ballots were cast at the annual school election, and 204 voted for the proposition to issue bonds and there were 136 for said proposition and 68 against it, two-thirds voted “for that purpose,” *</p>

— Hon. Frank G. Johnson, Judge. (1) A license fee is not a tax but tbe price paid for a privilege. State v. Hudson, 78 Mo. 302. Held: “Payment under protest to an officer who has a warrant for collecting taxes and who threatens levy and sale of property, is not a voluntary payment.” McQuire v. Saving Assn., 62 Mo. 343; Wolf v. Marshall, 52 Mo. 167. (2) The county of Jackson exacted $405.30 from the appellant which in good conscience and equity it should not retain.

<p>1. PRIVIES: Annuled Judgment: Evidence. No one is a privy to a judgment whose succession to the rights of property thereby affected occurred previously to the suit in which the judgment was rendered. A grantee cannot be bound by a judgment in an action commenced against his grantor subsequent to the grant.</p> <p>2. -: -: -: Purchaser at Partition Sale Set Aside. Where an interlocutory judgment in partition was rendered and the land sold, the sale approved and a deed made to defendant, and thereafter one of the coparceners filed suit to set aside the judgment and its approval and the deed on the ground of fraud, without malting defendant a party, the subsequent judgment which resulted in setting aside the prior sale, the order approving the same and the deed, but not setting aside the interlocutory decree in partition, is not competent- evidence in a suit to quiet title brought by the purchaser at the sale under a renewed decree and order of sale, offered by him for the purpose of showing that the sale and judgment approving the same under which defendant claims were set aside.</p> <p>3. BULE OF PROPERTY: Decision of Court: Judgment in Partition Set Aside for Fraud. A decision of the Supreme Court setting aside a judgment in partition and an order approving a sale thereunder, on account of facts dehors the record showing fraud in the sale and order approving it, did not establish a rule of property in such a way as to relieve a purchaser at a second sale under a renewed order made after.the decision, from examining the record to find out whether the purchaser at the first sale had acquired title before the rule in the fraud case was announced. The rule of stare decisis protects only those who obtain title in reliance upon the decision announced.</p> <p>4. PARTITION: Title of Purchaser: Impairment. The title acquired by a purchaser at a sale under a judgment in partition regular on its face and an order approving the sale and a deed, cannot bo impaired by a subsequent modification or annulment of that judgment in a suit to which he is not a party.-</p> <p>5. -: -: -: Fraud in Procurement. A decision which held that evidence dehors the record established falsity in the record and fraud in the sale under the decree in partition and in the order approving the same, will not be held, in a subsequent suit to quiet title between the purchaser under the first sale and the purchaser under a renewed order, to establish that the first order approving the sale and the deed thereunder were void; but in order to be available as a ground for a holding that the purchaser by his deed at the first sale did not obtain the title because of the fraud in the order, the evidence to establish such fraud must be produced.</p> <p>6. FEAUDULENT JUDGMENT: Attack by Stranger.. A judgment cannot be impeached for fraud in a collateral proceeding by a stranger whose rights in the property affected accrued to him after its rendition. Where plaintiff purchased property at a sale under a renewed order in a partition proceeding to which he was not a party, he cannot show that a prior order of sale and- an order approving the sale, at which defendant purchased, were obtained by fraud on the court.</p> <p>7. -: Sale to Non-Existent Corporation: Eelation. Where the sale was made to the corporation on the 12th, its corporate articles were filed on that day, the certificate of association was issued by the Secretary of State on the 14th, the report of the sale was approved on the 22nd and the deed made on the same day, the conveyance was not made to a non-existent corporation, for the right of the company related back to the day the contract was made.</p> <p>8. PUECHASEE AT PARTITION SALE: Estoppel. An attempt to purchase an adverse claim in order to avoid future trouble will not estop the party to assert a title previously acquired. Neither does competitive bidding at a partition sale for such purpose, operate to estop a purchaser at a prior sale from asserting his title acquired at such .previous sale.</p>

<p>1. WILL: Proof: By One Subscribing Witness: Remaindermen Considered Heirs. Proof by only one subscribing witness to a will, without any showing as to what has become of the other witnesses, is not proof in accordance with the statutes of Missouri; and where the will offered in evidence was never proved in this State, and the proof made in the foreign State shows it to have been proved by only one witness, it cannot be held to be a valid will, and though it undertakes to make the claimants of land remainder-men subject to a life estate, they must be held, upon an adjudication of its invalidity, to be only heirs of the owner and to have taken, if anything, an estate in praesenti.</p> <p>2. LIMITATIONS: Thirty Years. Claimants to land cannot be held to be remaindermen under a void will, tut they took an estate in praesenti; and if the owner under whom they claim died in 1876 and no taxes were paid by them at any time, and they were at no time in possession of the wild land, which was sold at a tax sale in 1907 to defendant, who has since been in actual adverse possession, they are barred and the title has vested in defendant by the thirty-year Statute of Limitations.</p>

<p>1. FIRE INSURANCE: Meaning of Property. The word “property” used in a clause in a fire insurance policy declaring that the policy shall be void “if the interest in the property be not truly stated” means the, property which in fact is protected by the policy; and if the insured was the unconditional owner of that property his interest is truly stated by a clause which names him as the owner, although there was at the time litigation over the fee of the ground on which the property stood.</p> <p>2. -: Interest of Insured. The words “interest of the insured” in a clause of the policy, in this case, declaring that the entire policy shall be void “if the interest of the insured be other than unconditional and sole ownership,” mean the interest of the insured in the property insured, and was not intended as including any interest which the insured might have or not have in the ground on which the property was located.</p> <p>3. -: Warranties: Fee Simple Title: Outstanding Inehoate Dower. Within the contemplation of a clause in the policy declaring it should be void “if the subject of insurance be a building on ground not owned by the insured in fee simple,” an outstanding contingent dower right did not render the title of the insured less than the fee simple title.</p> <p>4. -: -: Concealment: Materiality: Test. A clause in an insurance policy declaring that the policy shall be void "if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof” does not avoid the policy or render a concealment material unless the disclosure of the facts concealed would have induced the insurer to decline the risk or enhance the premiums.</p> <p>5. -: -: -: Pending Litigation: Materiality: Question for Jury. Where the insurance policy covered a baseball stand, bleachers, club-house, ticket-office and fencing, which had been built, under a contract containing an option to purchase the ground, and in a suit for specific performance the title had been decreed to the insured, and he had paid the purchase money into court and thereafter filed his motion asking for a diminution in the purchase price because the vendor’s wife had an outstanding dower right which could not be controlled by the decree, the policy, thereafter issued, was not avoided by said clause because of the fact that the insured failed to inform the insurer that an appeal was pending from said decree, since the question of materiality was one for the jury, and there was evidence tending to show that the pending litigation was an immaterial fact in determining the risk or amount of premium.</p>

— Hon. Carr Mc-Natt, Judge. (1) The conduct and admission of David J. Green at the very time the method of loaning the money was being agreed upon, and Ms statements, conduct and declarations while it was being loaned, conclusively show that the fund belonged absolutely to Edward, and that David- had no interest in it.

— Hon. S&muel Davis, Judge. (1) The first count in plaintiffs’ petition is based upon Sec. 3150, R. S. 1909. (2) By legislative enactment, since 1883, tbe right to recover damages for failure to maintain ditches and drains has been assured to every person suffering injury by such failure. R. S. 1889, sec. 2614; Laws 1891, p. 82; R. S. 1899, sec. 1110; Laws 1907, p. 169; Laws 1909, p. 359; R. S. 1909, sec. 3150; Cos v. Railroad, 174 Mo. 600.

Louis City Circuit Court. — Hon. Leo. 8. Rassieur, Judge. (1) In cases of remoteness, the court is hound to construe the will as though the rule against perpetuities was non-existent. The intention of the testator must be discovered from the words of the will alone, and these words must he given effect according to their natural and ordinary meaning.

<p>1. BILL OF EXCEPTIONS: Filed Without Leave. In view of Laws 1917, p. 139, it is no longer necessary, as a condition precedent to filing a proper bill of exceptions in vacation, to obtain leave for such filing in term time.</p> <p>2. SPECIAL APPEAL: How Determined. The special appeal authorized by Sec. 2048, R. S. 1909, must be determined upon the record existing when the appeal was allowed, and which shows the error or errors complained of and to be determined when the case is heard.</p> <p>3. -:-: Record Proper: Ho Bill of Exceptions. The statute (Sec. 2043, R. S. 1909) provides that an appeal shall not be granted by a judge of the Supreme Court “unless it- appear from an inspection of a copy of the record that error was committed by the trial court;” and if a copy of the evidence had not at that time been made á part of the record by a bill of exceptions approved and filed in the trial court, no error except errors in the record proper can be considered when the case is heard by the Supreme Court.</p> <p>4. -: -: -:--: Certified Transcript. A mere certified transcript of the evidence, exhibited to the judge of the Supreme Court at the time the appeal is granted, does not constitute a part of the record of the trial court; and though such transcript is incorporated in a bill of exceptions filed and approved three years thereafter, the bill will not be considered by the Supreme Court, because it was no part of the record when the appeal was granted.</p>